General Manager and 1 vs Usman Hassanbhai Bhatti and 2

Vijay Manohar Sahai, Actg. C. J.

We have heard Ms. Roopal R. Patel, learned counsel for the petitioners in Special Civil Application No. 7247 of 2013 and Ms. Sejal K. Mandavia, learned counsel for the petitioners in Special Civil Application No. 7274 of 2013. In both these writ petitions, the order dated 5.12.2012 passed by Central Administrative Tribunal, Ahmedabad in OA No. 368 of 2007 has been challenged.

The brief facts are that respondent No. 1 was working as SGTO, Bharuch. He was transferred by order dated 6.2.1991 from Bharuch to Rajpipla. The respondent No. 1 did not join his duties and remained absent. The Department issued a charge-sheet to him on 7.2.1992. Thereafter the respondent No. 1 submitted medical leave. The Inquiry Officer, after conducting the inquiry proceedings, found the respondent No. 1 guilty of charge of absence from duty without any leave and the Disciplinary Authority, after considering the report of the Inquiry Officer, removed the respondent No. 1 from service. The respondent No. 1 challenged the removal order dated 5.3.1999 as well as the order passed by the Appellate Authority dated 3.8.1999 before the Central Administrative Tribunal in OA No. 868 of 1999 which was decided on 23.9.2003. The Tribunal passed the following order :-

In the result, we quash and set aside the show cause notice dated 16.12.98, the DA''s order dated 5.3.99 and AA''s order dated 3.8.99 and remand the matter back to the DA to reconsider the matter and take action under Rule 15(1) of CCA Rules for further inquiry and report on the aspects as mentioned by him in para 11(1) and 11(2) of his order and thereafter pass an appropriate order. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.

The Tribunal allowed OA and remanded the matter back to the petitioner for reconsideration of the matter and to take action under Rule 15(1) of the CCA Rules and for further inquiry and report on the aspects as mentioned by him in paragraph 11(1) and 11(2) of his order and thereafter pass appropriate orders. The entire exercise shall be completed within a period of three months.

After the matter was remanded by the Tribunal, the respondent No. 1 was placed under deemed suspension. The Inquiry Officer held further inquiry and submitted his report on 15.2.2004 holding that both charges mentioned in paragraph 11(1) and 11(2) of the order of Disciplinary Authority stand proved. The respondent No. 1 filed a representation against the report of the Inquiry Officer which was not accepted by the Disciplinary Authority and by order dated 25.2.2005, the Disciplinary Authority imposed a penalty of removal from service against the respondent No. 1. The respondent No. 1 filed an appeal against the order of Disciplinary Authority which was not decided by the Appellate Authority. Therefore, the appellant challenged the removal order by means of OA No. 368 of 2007 which has been allowed by the Tribunal on 5.12.2012.

The learned counsel for the petitioners have urged that the Tribunal committed serious error of law in allowing the OA inasmuch as the respondent No. 1 was guilty of unauthorised absence from service and the Tribunal could not in such a situation allowed the OA and directed reinstatement of the respondent No. 1 in service. It was also pointed out before the Tribunal that the Appellate Authority has also passed an order on 2.8.2007 which was also challenged before the Tribunal by the respondent.

The Tribunal has considered the facts of the case and has found that the medical report was submitted by the respondent No. 1 after the charge-sheet was submitted to him and further the medical certificate was duly counter-signed by Civil Surgeon, Bharuch. The Tribunal also found that the Inquiry Officer in the inquiry report did not consider the medical certificate issued along with the letter of Superintendent, Civil Hospital "for Civil Surgeon, Bharuch" dated 3.4.1998 which was marked as document ADD-1 at page 44 of the original records and which was addressed to the General Manager, Telecom District, Bharuch. The letter clearly mentioned that the private medical certificate in respect of Shri UH Bhatti was countersigned by Dr. MV Parikh, Full Time Physician and also Incharge Civil Surgeon. According to the Tribunal, this letter could not have been ignored by the Inquiry Officer. It is necessary to extract paragraphs 10, 11 and 13 of the impugned order of the Tribunal, which are extracted below :-

The Disciplinary Authority has noted in his order dated 25.2.2005 that as per the order of the Tribunal dated 23.9.2003, the Disciplinary Authority was directed to reconsider the matter under Rule 15(1) of the CCS (CCA) Rules and for further inquiry on the following two points :

Para 11(1) The medical certificates are submitted after a long period that too, only after issue of charge sheet dated 7-2-1992 to the charged official.

Para 11(2) The medical certificates submitted duly countersigned by Civil Surgeon of Bharuch are not confirmed by them and hence they are unauthenticated.

The Inquiry Officer after thorough inquiry, gave his report concluding in his finding that both the aforenoted two points were proved beyond doubt. The Disciplinary Authority relying on the report of the Inquiry Officer has held that the charges against the present applicant of not joining his new place of posting, disobedience of the order of the Administration as also remaining absent for a long time without any sanction of leave or intimation to the competent authority, stand proved.

From the aforenoted facts, however, what is not clear is the basis on which the Inquiry Officer concluded that both the points were proved beyond doubt. On the one hand, the then Civil Surgeon Dr. Parikh, who had countersigned the medical certificates could not be examined during the further inquiry. Even his successor in office, i.e. the Civil Surgeon at the time of the further inquiry also did not give any opinion or state any disagreement with the medical certificates countersigned by Dr. Parikh, regarding the illness of the applicant. Thus, there does not appear to be any material evidence before the Inquiry Officer to suspect the genuineness and veracity of the medical certificates produced by the applicant in support of his illness, because of which he had stated that he was unable to join his new place of posting. On the other hand, on record in the disciplinary proceedings was a letter of Superintendent, Civil Hospital "for Civil Surgeon, Bharuch" dated 3.4.1998 (marked as document ADD-1-page-44 of the original records), addressed to the General Manager, Telecom District, Bharuch with reference to the latter''s dated 6.3.1998, informing as under:

In this connection, I am to inform you that the Private Medical Certificates in respect of Shri U.H. Bhatti was countersigned by Dr. M.V. Parikh, Full Time Physician and also 1/C Civil Surgeon.

It is, therefore, not clear as to how this letter could be ignored by the Inquiry Officer without any material evidence to the contrary, or without any denial by Dr. Parikh himself or the successor Civil Surgeon regarding the same. In these circumstances, it is difficult to appreciate as to how the Inquiry Officer in his report dated 15.2.2004 and the Disciplinary Authority in the impugned order dated 25.2.2005 have held that the medical certificates which were submitted by the applicant were not genuine and based on such conclusion held that the charges against the applicant were proved beyond doubt.

In effect, therefore the further inquiry by the Inquiry Officer, the reliance of the Disciplinary Authority on the inquiry report and the order of penalty of dismissal from service suffer from arbitrariness in as much as it does not appear to be based on substantive evidence. It can, at best, be treated as a presumption. Such presumption cannot in any way lead to a conclusive finding about the charge being proved. The defence of the applicant in the disciplinary proceedings thus stands prejudiced, and to that extent there being an absence of reasonable opportunity to the applicant to defend himself in the disciplinary proceedings, it is clear that the findings of the I.O. and the conclusion arrived at by the Disciplinary Authority being based on presumption, suffer from arbitrariness.

In the present OA also, the entire defence of the applicant in the disciplinary proceedings rested on whether the absence was willful or not. The Disciplinary Authority as aforesaid, has been unable to establish such willful absence of the applicant. No material evidence was taken into account to suspect the defence of the applicant that his absence was because of his illness. The findings of the I.O. in his report dated 15.2.2004 and the conclusion of the Disciplinary Authority on the basis of which the order of penalty has been issued both suffer from arbitrariness. The applicant''s plea and defence that he could not join his place of posting on account of his illness has thus not been controverted on the basis of substantive evidence. On account of this, the disciplinary proceedings stands vitiated.

In view of the clear finding recorded by the Tribunal that the absence of the respondent No. 1 was not willful, therefore, in our opinion, the Tribunal has not committed any error of law in setting aside the impugned removal order passed by the Disciplinary Authority dated 25.2.2005 and the Appellate order dated 2.8.2007. We do not find any merit in the writ petitions. Both the writ petitions are accordingly dismissed.