Moti Ram vs Union of India and Another

V. Kameswar Rao, J.—The petitioner challenges order dated April 15, 2011 in O.A. No. 2031/2009 and M.A. No. 1357/2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, whereby the Original Application filed by the petitioner has been dismissed. The challenge by the petitioner before the Tribunal was to the orders dated August 08, 2006 and September 10, 2007 passed by the disciplinary authority and the appellate authority, whereby the disciplinary authority had imposed the penalty of removal from service upon the petitioner, which was upheld by the appellate authority. The grounds for challenge to the aforesaid two orders before the Tribunal were as follows:-

(i) The evidence available in support of the enquiring authority and the disciplinary authority.

(ii) The enquiring authority has not applied its mind while holding the charges as proved.

(iii) The principles of natural justice have been violated as the IO did not examine the application after examination of witnesses and close the enquiry.

The Tribunal by way of a detailed order rejected the aforesaid contentions and also other contentions raised by the petitioner before it. The relevant paras of the Tribunal''s judgments are as under:-

One of the grounds taken by the Applicant is that Respondents conducted a de novo enquiry without giving any reason through a different IA. During the hearing, the Counsel for the Respondents submitted a copy of the order dated 23.08.2004 which was sent to the Applicant intimating therein that there were defects in the inquiry proceedings. In Para 4 of the said order as many as 9 defects were pointed, and the Disciplinary Authority remitted back the case for further enquiry. This is not de novo enquiry. The further enquiry was ordered to rectify those defects pointed out in Para 4(a) to (j) and to submit detailed assessment and findings. The Applicant was requested to cooperate in the said further enquiry. On a close perusal of the order, we find that the competent authority has passed the order for further inquiry and the defects in the inquiry proceedings were the reason for the same. The Applicant was informed of the same and a copy of the order was given to him. We, therefore, find that the grounds taken in this regard treating further enquiry as de novo enquiry are not acceptable.

With regard to the controversy of the Applicant''s unauthorized absence, it is noted that there are two components of the controversy viz. (i) wilfull and intentional absence and (ii) prior approval and authorization not available for the absence period. Though both components of the controversy are interlinked and intertwined, the chronology of events and reasons advanced by the Applicant for remaining absent being common for both, we would analyse these aspects here.

The above chronology of events clearly bring out the Applicant''s wilfull absence and avoidance to receive letters from the Respondents. So much so initially during the enquiry Defence Assistant alone attended. His family members informed the Postal Departmental representative that the Applicant was on duty at Delhi. If the Applicant was sick and under treatment, how his family members were unaware of the illness? Question also arose what duty he was doing during his absence period. In support of his contentions, he submitted certain medical papers indicating that he was getting homeopathic treatment and some days treatment in Dr. R.M.L. Hospital, Delhi. Had he been seriously ill, his family members would have known the same. We find from the pleadings that there is no evidence that he was seriously bed ridden and ill by which he could not contact his office. Though his argument was that his information of illness given to the concerned officer, corroborated in the inquiry and the same had been considered but he was asked to produce genuine medical certificates and documents. He did not do so. Thus, we find that the IA and Disciplinary Authority have rightly held the Applicant''s absence as unauthorized and wilfull. Even the directions issued to rejoin did not yield any substantive response from the Applicant. As a result, the charge of disobedience of the orders of the concerned authorities was correctly held as proved.

Another ground taken by the Applicant was about the IA not asking the questions after the closure of inquiry. It is seen that the Applicant and Defence Assistant were asked to bring in their briefs. The Applicant was at liberty to raise the issue before the IA and also in his appeal and revision petitions. He cannot raise the same in the OA which he did not raise before the authorities concerned. AS this is a case of absence termed as unauthorized, the documentary evidence was more than adequate for the prosecution side. Thus, this technical contention does not come to Applicant''s rescue.

It was also contended that this was a case of no evidence and the evidence available in support of the Applicant was not taken into account by the IA. We find that the prosecution has produced number of documents in support of their evidence against the Applicant wherein the Applicant was requested to join back to produce appropriate medical certificates. Even while ordering further inquiry the Disciplinary Authority has identified as one of the points "The oral inquiry proceedings submitted by IO is unilateral" The further inquiry and the report furnished thereon rectified the defects. We note that the evidence in the disciplinary proceeding is not required to be in the nature as admissible in criminal cases. It is trite law that "Preponderance of Probability" is adequate for the IA and Disciplinary Authority to decide the case in departmental proceeding. Undisputedly, the Applicant was absent for long period and as analysed within the absence was properly treated as unauthorized. There is more than adequate evidence in the said charge of unauthorized absence. Besides on the 2nd charge of "disobedience of orders" there are documentary evidence to the effect that despite orders to rejoin his duty, he did not do so. This is clear case of disobedience. Hence, it is found that the contentions raised on the above grounds, do not stand to logic and rationality.

The only submission made by the learned counsel for the petitioner before us is that the petitioner was sick and has been sending due intimation through telegrams to the respondents about his sickness. Hence, the charge of unauthorized absence could not have been alleged against the petitioner.

We reject such a submission of learned counsel for the petitioner. The defence of the petitioner is not at all a bonafide one, as mere intimation of sickness would not mean that the leave as due has been granted to him. He has not supported his communications with proper medical certificates. Leave Rules stipulates many kinds of leaves. The same has to be approved by the competent authority. It is noted that even after joining on December 16, 2005, he had not submitted medical certificates regarding illness. In the absence of any medical certificate to support illness, it is clear that the petitioner has feigned illness.

The enquiring authority and the disciplinary authority have come to the conclusion that the petitioner''s absence was unauthorized and willful. The Tribunal also concurred with the finding in the enquiry. We as a writ court cannot appraise the evidence. It cannot be said that the finding of the enquiring authority is perverse. The law on the subject is well settled. The Supreme Court in its opinion reported as State of Andhra Pradesh and Others Vs. Chitra Venkata Rao, has held as under:-

The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an Appellate Court. The findings of fact reached by an inferior court or Tribunal as a result of the. appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of facts however grave it may appear to be. In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal.

The aforesaid position of law has been reiterated by the Supreme Court in the judgment reported as Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, wherein in para No. 13 the Supreme Court opined as under:-

It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision-making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.

We find no infirmity in the order of the Tribunal. The writ petitioner is, accordingly, dismissed. No costs.