Mohan Chandra Naik vs Engineers India Limited and Others

S.N. Prasad, J.—Heard learned counsel for the petitioner and learned counsel for the opposite parties.

The writ petition is against the order of removal from service dated 14.02.1998 (Annexure-11) communicated through the covering letter dated 11.09.2000 (Annexure-10) and the appellate order dated 8th December, 2000 affirming the order of removal from service passed by the Disciplinary Authority (Annexure-4).

Brief facts of the case is that the petitioner after completion of his study from Regional Engineering College, Rourkela selected for employment after being successful in the selection process as Management Trainee (Technical) joined at Visakha Refinery Project at Vizag.

On satisfactory completion of training the petitioner was appointed as the Engineer against the Regular post w.e.f. 24.06.1991.

While the petitioner was working in the factory premises of Visakha Refinery, suddenly feel discomfort and illness and after undergoing a medical check-up. He made an application to the opposite party No. 2 to leave headquarters, to come to his native place vide application dated 26.10.1996 and on the same day he came to his native place where he remained for a long period due to prolonged illness and could be not able to resume his duty at Vishakhapatna although the petitioner has made several representation/applications for extension of leave along with medical certificates.

The Executive Director, Construction has issued a registered letter on 28.11.1997 to the petitioner at his native village communicating him that an enquiry report has been submitted by the Enquiry Officer, as per the Enquiry Report, appropriate decision will be taken but if the petitioner wish to make representation, the petitioner may do so within the period of 21 days.

After receiving the aforesaid letter the petitioner has submitted his reply on 14.12.1997 specifically mentioned there that he has not received any charge-sheet said to have been issued on 15.05.1997 hence requesting the authority to set aside the Enquiry Report as the same have been concluded by way of an ex-parte enquiry. The petitioner has tried to satisfy the authority that due to the serious illness for which the petitioner was undergoing treatment in the Government Hospital, absence was beyond his control, could not resumed his duty and as such could not be able to participate in the enquiry proceeding.

Now since he is medically fit he wants to defend the charges levelled against him if the opportunity would be provided and if the petitioner will be given a fitness certificate in this regard from the Doctor.

The petitioner after recovery from the ailment has made representation on 16.02.1998 addressed to the opposite party No. 2 to allow him to join in his post also mentioning therein reasons for absence.

The Resident Construction Engineer communicated to the petitioner vide communication dated 03.08.1999 that an amount of Rs. 5636/- is payable to the Company towards rent.

The petitioner being surprised with the action of the authority while a writ petition was pending before this Court being OJC No. 1372 of 2000 for quashing of the entire departmental proceeding, this Court vide order dated 22.06.2000 has been pleased to quash the order directing the opposite party No. 2 to supply the copy of termination in the address of the petitioner.

After receiving the order, if so advised the petitioner may prefer an appeal/representation as the case may be.

Accordingly the opposite parties have communicated vide communication dated 11.09.2000 regarding the order of termination dated 14.02.1998, the petitioner after receiving the order of removal dated 14.02.1998, has preferred an appeal before the Chief Managing Director of Engineers India Limited being the appellate authority vide order dated 12.12.2000 has rejected the appeal communicated the order of rejection of appeal in the native address of the petitioner against which the petitioner has filed this present writ petition on the following grounds:-

(i) That the Disciplinary Authority has passed an order which is non-peaking and without any reason;

(ii) The reply submitted by the petitioner dated 14.12.1997 in pursuance to the letter dated 28.11.1997 explaining the difficulties and the medical ailments has not been taken into consideration while passing the order of removal from service;

(iii) The appellate authority has also given a finding holding therein that the petitioner was unauthorised absence from duty which was willful and deliberate but no such finding has been by the Enquiry Officer.

While the petitioner has submitted medical check-up report to substantiate the fact that the petitioner was medically unfit. The petitioner in this context has relied upon a judgment rendered by the Hon''ble Supreme Court in the case of Chhel Singh Vs. M.G.B. Gramin Bank, .

Further submission with respect to the preliminary objection of the opposite party regarding the maintainability of the petition, submission has been made that the part of cause of action is a reason within the territorial jurisdiction of this Court because all the corresponds has been made under the native place which is situated within the territorial jurisdiction of this Court.

Further submission has been made in this point is that this Court has entertained the earlier round up litigation which is OJC No. 1372 of 2000 disposing of the writ petition directing the opposite parties to communicate the order of termination giving opportunity to the petitioner to prefer an appeal/representation and the opposite party in pursuance to the order passed in OJC No. 1372 of 2000 has entertained the appeal adjudicated the same and rejected it.

In the light of this the jurisdiction lies with this Court because the appellate authority has passed an order in view of the direction passed by this Court and as such the illegality and propriety of the order passed by the appellate authority is to be seen by this Court only, hence this writ petition is well maintainable within the territorial jurisdiction of this Court.

Learned counsel for the petitioner has again relied upon two judgments in the case of Nawal Kishore Sharma Vs. Union of India (UOI), and in the case of Sri Janardan Mohanty Vs. Union of India (UOI) and Others, .

With respect to other objection regarding the opposite party whether it is a State or not, submission has been advanced that the Engineers India Limited is within the meaning of Article 12 of the Constitution of India and in this respect judgment has been rendered reported in Employees of Engineers India Ltd. and Others Vs. Engineers India Ltd. and Others, and Jute Corporation of India Officers'' Association Vs. Jute Corporation of India Ltd. and Another, . Against this the learned counsel for the opposite party has submitted that the petitioner has joined his service as Management Trainee (Technical), thereafter taking into regular establishment w.e.f. 24.06.1991, after completion of training successfully.

The petitioner all of a sudden absented himself from the office w.e.f. 26.10.1996 simply by making an application for leave which has not been sanctioned, remained absent from the office without any permission from the higher authorities fairly after a long period.

Since the unauthorised absence amounts to be misconduct, the opposite party have decided to initiate a departmental proceeding against the petitioner for his unauthorised absence and accordingly communications have been issued in the present local address of the petitioner but the same has not been received.

The opposite parties have tried to communicate the decision regarding initiation of departmental proceeding even by registered post on his native address but the registered post has been returned undelivered with the noting that "addressee is not present".

It has been submitted that the petitioner being holding a substantive post has merely been duty bound to communicate about the absence whatever may be the reason but he has not bothered to make any communication and when the petitioner has refused to accept the notice for his appearance in the departmental proceeding, the proceeding has been fixed as an ex-parte proceeding since has proceeded ex-parte enquiry has been concluded, after conclusion of the enquiry, the enquiry report has been submitted on the address of which the communication has been made on earlier occasion, the petitioner has received the same and thereafter made correspondence to the opposite parties to set aside the enquiry report, install the enquiry and keeping the enquiry pending awaiting his appearance till the date when the petitioner will be medically declared fit by the Doctor before whom he is under treatment at his native place.

Even after accepting the enquiry report, the petitioner has not submitted any defence reply defending the charges rather he has only demanded to keep the proceeding pending which has not been accepted due to the conduct of the petitioner and thereafter the Disciplinary authority has imposed the punishment in consequence thereof removed the petitioner from service vide order dated 14.02.1998.

The order of termination has also been communicated to the petitioner thereafter the petitioner immediately on 16.02.1998 has made representation to consider the problem sympathetically and allow him to resume his duty but the same has not been accepted on the ground that the petitioner has already been removed vide order dated 14.02.1998 thereafter communication has been made for payment of liability towards the opposite parties.

The petitioner has approached this Court vide OJC No. 1372 of 2000, this Court has disposed of the writ application directing the opposite party to communicate the order of termination in the address furnished by the petitioner which was communicated to the petitioner and thereafter in terms of the order passed by this Court appeal was preferred, the appellate authority after taking into consideration all aspects of the matter, has rejected the same.

Learned counsel for the opposite parties has submitted that the appeal is not maintainable both on territorial jurisdiction and the opposite parties are not State within the meaning of the Article 12 of the Constitution of India and further on the ground that the petitioner was found to be unauthorised absent from duty to that effect a regular departmental proceeding was initiated in which the Enquiry Officer has concluded the enquiry found the charges proved and thereafter the order of removal has passed on 14.02.1998.

The Enquiry Officer has taken into consideration the fact that in spite of several communication having been issued by the Disciplinary Authority or the Enquiry Officer securing presence of the petitioner in the enquiry proceeding he has not chosen to appear taking the ground of illness but the medical certificate which he has produced was not reflecting the disease which was of serious in nature since all the medical certificates was of Outdoor Patient Department and it is known to all if the petitioner was suffering from any serious kind of disease he would have been taken in the indoor treatment in a hospital but no such certificate has been produced, basis upon which it cannot be said the reason was beyond control of the petitioner for his appearance before the enquiry Officer rather all the medical certificate shows the outdoor patient discharging summarily which cannot be said that the petitioner was suffering from any serious nature of disease.

It has further been argued that the petitioner at the time of leaving office although has made leave application on 26.10.1996 but without any address upon the same and thereafter he has left the Headquarters.

When he has not presented himself in the office fairly for a long period a regular departmental proceeding was initiated on the ground of unauthorised absence since unauthorised absence is misconduct under the conduct and jurisprudence Rule, 1971 applicable to the employees of the opposite parties.

The Disciplinary Authority with all fairness has tired to communicate about the initiation of departmental proceeding but the petitioner with ulterior motive only in order to avoid his participation in the departmental proceeding, has not appeared, the Enquiry Officer having no option proceeded with the enquiry ex-parte and proceeding in pursuance to the same concluded enquiry, found the charge proved.

Although the petitioner has taken ground against the ex-parte enquiry on the ground that he has not been communicated/served with any of the decision of the authority regarding initiation of departmental proceeding but when the enquiry has been concluded it was sent to the petitioner on the same address i.e., on the earlier correspondence the petitioner has received it and thereafter requested the authorities to recall the ex-parte enquiry proceeding, this shows that the petitioner intentionally was not appearing with the enquiry proceeding.

Further contention of the petitioner would appeared from his conduct that when the order of removal has been passed on 14.02.1998, immediately after two days he has made representation apprising the authority regarding medical ailments and requested to permit him to resume his duty.

Further argument has been advanced by the learned counsel for the opposite parties is that the judgment relied upon by the learned counsel for the petitioner rendered in the case of Nawal Kishore Sharma Vs. Union of India (UOI), and in the case of Sri Janardan Mohanty Vs. Union of India (UOI) and Others, is not applicable in the instance of this case.

Heard learned counsel for the parties and perused the documents on record.

Before going into the merit of the issue it would be relevant to adjudicate the issue with respect to the preliminary objection raised by the opposite parties regarding the maintainability of the writ petitioner on the ground of lack of territorial jurisdiction, secondly the opposite party is not the State within the meaning of Article 12 of the Constitution of India.

So far as first objection is being made regarding maintainability of this writ petition from the fact which has been pleaded in the writ petition has not been disputed in the counter affidavit which is the filing of the earlier writ petition being in OJC No. 1372 of 2000 preferred by the petitioner regarding quashing of the departmental proceeding.

This court vide order dated 22.06.2000 has passed the order in presence of the learned counsel for the parties i.e., both the petitioner as well as the opposite parties and in presence of the learned counsel for the opposite parties, the writ petition was disposed of directing the concerned authority to serve the order of termination of discharging accordingly liberty has been accorded to the petitioner to prefer an appeal with a direction to the opposite party to dispose of the same without undue delay.

The order dated 22.06.2000 has duly been communicated to the opposite party. The opposite party has accepted the order, communicated the order of termination/removal to the petitioner.

The petitioner has challenged the order of removal from service before the appellate authority, the appellate authority has passed a detailed order in pursuance to the order passed by this Court in OJC No. 1372 of 2000 for ready reference the part of the appellate order is being quoted herein below:-

"This has reference to your appeal dated nil against the penalty of removal from service imposed on you following disciplinary proceedings. This appeal sent by you in terms of order No. 2 dated 22.6.2000 passed in your Writ Petition O.J.C. No. 1372 of 2000 by the Hon''ble High Court of Orissa was received in our office on 25.10.2000 and has been forwarded to the undersigned as the undersigned is the Appellate Authority under the Company''s Rules and Regulations in respect of this matter."

Now question is that the petitioner has approached this Court in earlier round up litigation by invoking the jurisdiction of this Court conferred under Article 226 and 227 of the Constitution of India by serving copy of the same upon the opposite parties and the writ petition was disposed of with some observation.

The opposite parties have not chosen to assail the said order on the ground of having territorial jurisdiction rather the same has been accepted and given effect to first letter by communicating the order of removal to the petitioner and secondly by entertaining appeal adjudicating the same on merit then this point is not available with the opposite party at this stage to say that the writ petition is not maintainable due to lack of territorial jurisdiction on account of the fact that the opposite party-authority after accepting the jurisdiction by passing an order on appeal, the said order of appeal is under challenge for testing its illegality and propriety hence at this stage it cannot be said that the writ petition is not maintainable due to lack of territorial jurisdiction.

In view of the foregoing reasons, the writ petition is maintainable on the ground of territorial jurisdiction.

So far as the other ground of non-maintainability of the writ petition that the opposite party is not a State within the meaning of the Article 12 of the Constitution of India but in the light of the judgment passed in the cases of Employees of Engineers India Ltd. and Others Vs. Engineers India Ltd. and Others, , Employees of Engineers India Ltd. and another Vs. Engineers India Ltd. and another, and Jute Corporation of India Officers'' Association Vs. Jute Corporation of India Ltd. and Another, respectively, there cannot be any dispute that the opposite party-Engineers India Ltd. is not State within the meaning of Article 12 of the Constitution of India rather it is instrumentalities of State.

The plea regarding non-maintainability on this ground is hereby rejected since the matter has already been settled.

Now so far as the merit of the case is concerned, the argument advanced on behalf of the petitioner that the unauthorized absence is not willful and not deliberate rather the petitioner was compelled to remain absent due to the reason beyond his control since he was suffering from serious ailments.

Further the Enquiry Officer has not come out with a specific finding regarding unauthorised absence and the absence was deliberate, in absence of such specific finding and applying ratio of the judgment rendered by Hon''ble Supreme Court in the case of Nawal Kishore Sharma Vs. Union of India (UOI), and in the case of Sri Janardan Mohanty Vs. Union of India (UOI) and Others, , the removal of the petitioner is not sustainable in the eye of law.

Further the petitioner has not provided with adequate and sufficient opportunity to participate in the enquiry, the order of removal since been based upon ex-parte enquiry hence the order of removal against the principle of natural justice.

In order to assess the merit of the case the charge is to be seen what has been alleged against the petitioner, the charge against the petitioner is that he was absent without any permission from the competent authority till 26.10.1996 to 14.02.1998.

The petitioner has joined his service as Management Trainee (Technical) on 10.05.1990 and thereafter taken into regular establishment as Engineer against regular post vide order dated 24.06.1991. The petitioner continued on the said post but from 26.10.1996 he absented himself from the office of the opposite party No. 2 without any permission of the competent authority and only by making leave application in the office of the opposite party No. 2 for his medical treatment since he was suffering from discomfort and illness.

From perusal of the enquiry report it is evident that consequent upon an enquiry several letters through registered post was sent to the petitioner giving him opportunity of being heard through registered letter No. 740.8489(DE) dated 09.01.1997, he was asked to explain his conduct and failure to report for duty has been said to be misconduct.

In spite of several correspondence made by the Disciplinary Authority, when the petitioner has not presented himself to resume his duty, the disciplinary authority has taken decision to initiate departmental proceeding.

At this stage it is to be seen what was the duty of the petitioner being a permanent employee of the opposite party No. 2.

There is no dispute that a person can fallen ill all of a sudden. That has happened to the petitioner but simultaneously there is no dispute if anyone fallen ill he being a public servant is duty bound for due communication.

From the pleadings it appears that the petitioner was a regular employee of the opposite party No. 2 which is a Government of India Undertaking with all medical facilities but in spite of going for immediate check-up at the place where the petitioner was posted he immediately rushed to his native place by making communication of leave without sanction of the same, the petitioner left the office, continued to remain absent for a long time.

It further appears from the appellate order which has been recorded on the basis of paper adjudication that the petitioner was required in connection with the investigation into the death of a nurse, perhaps due to the said reason, the petitioner left the office in a great hurry otherwise being a public servant in normal situation cannot be taken such a step by not making any communication to the office and without going for any first-aid treatment where he was posted, has rushed to his native place that too without giving any detail address where he was going. These shows conduct of the petitioner that he for one reason or other wanted to remain absent and for the he has taken help of the medical treatment.

It is the admitted case of the petitioner that he is fallen ill while on duty on 26.10.1996 and decided to rush immediately to his native place. It is admitted case of the petitioner that he was unmarried and living alone in the native place hence it would not be said to be practical instead of going first-aid treatment before the local doctor where the petitioner was posted availing medical facilities for his entitlement has come to the native place.

When the petitioner has not reported fairly for a long period the opposite parties have taken all endeavours to communicate the petitioner to come and resume duty but no response was given fairly for a long period. His response has come only in the year 1997 enclosing the medical certificates that he is suffering from disease but the enquiry officer after taking into consideration the medical certificates all of them are discharging an out-door patient department and not of in-door patient save and except which was for a period of seven days when the petitioner was said to have undergone for surgery.

The ground has been taken by the petitioner that the nature of disease from which he was suffering was serious and not in a position to report his office that was the reason for not resuming his duty.

From the material available on record especially the enquiry report and the order passed by the appellate authority and the medical certified produced by the petitioner, no such serious nature of disease has ever been brought to the notice of the authorities, on the basis of which the reason of the petitioner for not presenting himself in the office cannot be said to be beyond his control.

The reason beyond his control can be said when the petitioner was advised complete bed rest or hospitalised to the hospital but that cannot also for a period of two years. Moreover, no such certificate has been produced by the petitioner before the authorities along with the application. Hence the reason shows by the petitioner cannot be said to be beyond his control.

If a public servant is suffering from a disease who was being treated in the outdoor patient department in the local dispensary, the petitioner could have communicated the same through registered post at least before the competent authority but he has not chosen to do so, it also shows the tendency and conduct of the petitioner.

It is the normal behaviour of the petitioner if a public servant suffering from any ailment even is he is alone he will take all endeavours to make proper correspondence to the authority concerned by sending leave applications along with the medical certificates for sanction of leave but nothing has been produced by the petitioner.

The ground of the petitioner is that Enquiry Officer has not given a specific finding regarding willful and deliberate absence. Hence the order of removal is not sustainable, this cannot be accepted in the background of the facts of this case because willful and deliberate can only be said if the employee will be restrained to discharge his duty to present himself in the office if he will be suffering from such a disease, he could not be able to resume his duty but no such ground has been taken by the petitioner and nothing has been suggested from the medical certificate which has been produced by him.

So far as applicability of the judgment in the case of Chhel Singh vrs. MGB Gramin Bank, Pali and others (supra) is concerned, facts of this case is quite different. In that case the petitioner had appeared in the departmental proceeding, submitted his reply before the Disciplinary Authority and thereafter the question regarding finding having not been given by the petitioner with respect to willful and deliberate absence and while the specific plea was taken that the petitioner in that case was unauthorised absence from duty for the reason which was beyond his control of the petitioner but here in this case the petitioner has not chosen to participate in the enquiry even ignoring the fact that being a public servant he might be proceeded in case of absence for long period.

Secondly, the facts of this case distinguishable from the fact of the Chhel Singh case wherein the petitioner has produced list of seven defence witnesses out of which the Enquiry Officer has only called two witnesses and refused rest of five witnesses and further saying untrustworthy and thereafter held the appellant guilty of the charges but that is not the fact of this case.

Further this case is definitely different from the case of Chhel Singh for the reason that in the said case it is neither a case of the Disciplinary Authority that the medical certificate was forged though he was not ill during the said period.

But here the fact as is emerging from the appellate order that none of the medical certificate suggests that the nature of disease was so serious for which the petitioner cannot resume his duty for period of more than one year.

Likewise the judgment rendered in the case of (Sri) Janardan Mohanty vrs. Union of India and 3 others (supra) is definitely different since the fact of this case is quite different from the said case.

In the light of the foregoing reasons the argument advanced on behalf of the petitioner since there is no finding regarding willful and deliberate absence cannot be accepted because of the conduct of the petitioner i.e.,

(i) He has never chosen to participate in the proceeding and give response.

(ii) He has not before the authority to give response to the letters issued by the opposite party No. 2 to resume his duty.

(iii) Being holding post of Engineer in the regular establishment knowing the consequence of absence without any permission not taking any steps in this regard.

(iv) He has not produced any medical certificate justifying his claim that the reason was beyond of his control since all the medical certificates pertains to outdoor patient and not of indoor patient.

(v) Although the petitioner has made application on 16.02.1998 i.e., two days after the issuance of the order of termination this also shows the intention that how and why he has made application only after order of termination i.e., two days after the order of termination.

In the light of this, the Enquiry Officer has found the charges proved which has been accepted by the Disciplinary Authority, order of removal has been passed after providing sufficient opportunity of being heard to the petitioner thereafter the appellate authority has affirmed the same.

So far as the ground of enquiry has held as ex-parte it is right that a delinquent employee is supposed to be given adequate and sufficient opportunity of being heard but when he has chosen not to appear or if he will not appear enquiry proceeding cannot be installed indefinitely.

There is concept of ex-parte enquiry but before that even thereafter the delinquent employee is not participated himself in the enquiry the Disciplinary Authority will go for enquiry.

In this case the petitioner has gone from office from 26.10.1996 without any permission of the competent authority after waiting for long period the authority has tried to communicate to resume his duty through registered post but not received the same rather the registered letter has been sent back to the sender with the noting "addressee is not present".

The opposite parties have taken all endeavours available to them to secure the presence of the petitioner so that he may appear and discharge his duty but no response has been given. Even assuming that thereafter when the petitioner has not received any letter or not even taken remedy to make application to communicate the authorities regarding the reason of absence, the authorities have proceeded with departmental proceeding after initiation of departmental proceeding, due enquiry has been made through registered post but time and again the petitioner has refused to accept the letter on the pretext that addressee is not available.

Now the Enquiry Officer after discussing all these aspects of the matter and presuming the fact that the petitioner is avoiding accepting letter has ex-parte enquiry and initiate departmental proceeding against the petitioner.

The Enquiry Officer proceeded with the enquiry, the charge has been found to be proved after the conclusion of the enquiry, the Enquiry Officer has forwarded the report before the Disciplinary Authority, the Disciplinary Authority after accepting the finding has issued second show cause notice, communicated to the petitioner in the same address on which it was sending earlier letters, this time has accepted the same requesting the authorities to recall the ex-parte proceeding. Thereafter the order of punishment has been passed.

In the facts of this case the authorities having no option has proceeded ex-parte enquiry and concluded the departmental proceeding.

It is settled that a departmental proceeding must be concluded without any delay simultaneously it is also necessary to see that the delinquent employee has to be given adequate opportunity of hearing and for that the authorities have communicated several letters to the petitioner to discharge his duty but no response was given by the petitioner then the Disciplinary Authority has tried to communicate about the initiation of departmental proceeding.

The authorities in this case has communicated by taking available remedy i.e., by sending letter by registered post but that has not availed by the petitioner hence the departmental proceeding has proceeded ex-parte.

In view of this, it cannot be said that initiation of ex-parte proceeding is bad in law.

So far interference of this Court or jurisdiction of this Court with respect to interference in the fact finding departmental proceeding rule is well settled that the High Court sitting under Article 226 cannot sit as an appellate court since the scope of judicial review is very limited.

In this respect the judgment in the case of State Bank of India and Others Vs. Ramesh Dinkar Punde, wherein their lordships at paragraph-6, 9, 12 and 15, it has been held as follows:-

"6. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an Appellate Authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an Appellate Authority.

Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority."

"9. It is impermissible for the High Court to reappreciate the evidence which had been considered by the inquiry officer, a disciplinary authority and the Appellate Authority. The finding of the High Court, on facts, runs to the teeth of the evidence on record."

"12. From the facts collected and the report submitted by the inquiry officer, which has been accepted by the disciplinary authority and the Appellate Authority, active connivance of the respondent is eloquent enough to connect the respondent with the issue of TDRs and overdrafts in favour of Bidaye."

"15. In Union of India (UOI) Vs. Sardar Bahadur, , it is held as under:

A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal as the Single judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts."

Similarly, in the case of Nirmala J. Jhala Vs. State of Gujarat and Another, at paragraph-22 it has been held as follows:-

"22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (vide State of Tamil Nadu and another Vs. S. Subramaniam, , R.S. Saini Vs. State of Punjab and Others, and Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, )"

Thus, it is settled that the scope of judicial review is very limited regarding concurrent finding given by two authorities and the punishment in course of a departmental proceeding.

Here in this case also the petitioner being a public servant has continuously absented himself from discharging his duty without intimation. No communication has ever been made even in course of his absence, thereafter departmental proceeding has been initiated, the Enquiry Officer has given finding after taking into consideration application dated 26.10.1996 by stating therein that the petitioner time and again showing his inability to reply requested every month to postpone for the same month.

Thereafter all the documents has been assessed i.e., the document dated 1.11.1996 exhibited as M.D. 1 which was proof on account of irregularity in attendance by the petitioner. Exhibit MD. 2 was a copy of Telegram advising the petitioner to report on duty. Exhibit MD. 3 is the application seeking explanation of leave supported with medical certificate and not intimating the contact to the address to the company, exhibit M.D. 4 and 5 which are the letters issued to the petitioner intimating him act as unauthorised absence from 26.10.1996.

Hence after recording all these facts, the Enquiry Officer has given his finding stating therein that the petitioner being an Engineer having status of an Officer it is expected to abide by the disciplinary rules with caution and after being not availed the remedy to appear before the authority by refusing to take part in the enquiry which proves his conduct of an employee.

Specifically it has been stated in the enquiry report that no documents is before the Enquiry Officer postponing the enquiry which clearly indicates that he is not interested in attending the enquiry. The medical certificate submitted by him for the purpose of postponing does not indicate he is suffering from serious disease for which the petitioner is required treatment for a long period.

The medical certificates which was produced by the petitioner is of out-door patient is not advised to take bed rest.

Taking into consideration all these aspect of the matter, the Enquiry Officer has held that the petitioner avoiding the enquiry on the pretext although the petitioner has taken a ground of serious ill but no record to support his defence of his health and thereafter held enquiry as ex-parte has proved the charge against the petitioner.

Thus, since after taking into consideration all aspects of the matter has given a specific finding that the conduct of the petitioner is willful and deliberate.

After submission of enquiry report, disciplinary authority has imposed punishment of discharge from removal of service after accepting the enquiry report.

The appellate authority after taking into consideration all aspects of the matter has passed a well reasoned order and by agreeing with the finding has affirmed the order passed by the Disciplinary Authority.

Learned counsel for the petitioner has also defended regarding the order of Disciplinary Authority by submitting that the order is non-speaking hence it is not sustainable but from perusal of the order passed by the Disciplinary Authority in my considered view the Disciplinary authority has passed the order on the basis of the report of the Enquiry Officer and after taking into consideration all aspects of the matter.

It is settled that the Disciplinary Authority need not to write a detail judgment but brief reason is to be given while showing agreement with the finding of the Enquiry Officer. In this respect reference of the judgment in the case of State of U.P. and others vrs. Harendra Kumar reported in (2004) 13 SCC 117 needs to be referred.

In view of the settled proposition, there is no need to write any detail judgment by the Disciplinary authority rather the reason is to be given showing agreement with finding of the Enquiry Officer which is available in the order passed by the Disciplinary authority dated 18.12.2000.

Hence, the plea of the petitioner is not acceptable hence rejected.

Hence, in view of the foregoing reasons I find no merit in the writ petition.

Accordingly, the writ petition is dismissed being devoid of merits.