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Judgment
G.L. Raina, J.—While posted as a Staff Graduate Nurse in the SheriKashmir Institute of Medical Sciences, Soura (hereinafter the Institute),
the petitioner's services were terminated by respondentDirector of the Institute, vide his order No. SIMS/HA73/95, dated 3111995. She
challenged its legality and validity through SWP No. 252 of 1995. This Court vide the order dated 771997 allowed that writ petition and quashed
the termination order but permitted the conduct of fresh enquiry against the petitioner for her alleged unauthorised absence from duty with effect
from 2121991 to 812 1994.
This order of the Court was appealed against through LPA No. 291/1997. The Division Bench of this Court vide its order dated 24th of
October, 1997, while turning down the appeal directed that the petitioner be allowed to join her duties as such nurse and in case the management
of the Institute decides to initiate disciplinary proceedings against her, they shall do it in accordance with the law and complete it within a period of
six months.
In pursuance to this direction the petitioner was allowed to join her duties with effect from 22121997, but the Enquiry Committee was
constituted vide order No. SIMS/HA547 of 1997, communicated to the Deputy Medical Superintendent vide No. SIMS/138/DMS/04/9764951,
dated 22121997. The Committee comprised of the Administrative Officer (HA), Administrative Officer (Per) and the Law Officer.
The chargesheet drawn up on 10th of January, 1998, by the Director of the Institute, inter alia set out the background in which the chargesheet
was required to be served afresh. The chargesheet contains the particulars of the alleged misconduct, namely the petitioner's unauthorised absence
from duty with effect from 2121991 to 8121994. The Disciplinary Authority called upon the petitioner to substantiate her cause of absence and to
explain as to why disciplinary action be not taken for the said misconduct. The petitioner replied through counsel on 2411998 demanding the fresh
chargesheet and the statement of allegations whereon the chargesheet was based. The petitioner sought through the reply to the chargesheet, the
copies of the documents referred to in the chargesheet. The fresh Enquiry Committee came to be constituted consisting of Mr. Akhter Ali,
Administrative Officer (Per) and Mrs. Haseena Wani, Nursing Superintendent. This was done by the Director vide the Administrative Officer's
communication No. SIMS/HA75/98, dated 1221998. Convenor of the Enquiry Committee, that is the Administrative Officer, intimated the
petitioner, vide his no. SIMS/HA/511/98/48084, dated 1821998, to present herself before the Enquiry Committee at the stated time, date and
place. The convenor again intimated the petitioner vide No. SIMS/HA511/98 535, dated 2121998 to attend at the stated date, time and place
before the Enquiry Committee and produce the documentary evidence in support of her statement of illness during the period of absence. Their
communication intimated the petitioner that her failure to appear and produce documentary evidence in support of her illness will lead to the
presumption that she had nothing to substantiate the statement of her having remained ill during the period of absence. The convenor vide his No.
SIMS/Enquiry/98127375 dated 2031998 yet again called upon the petitioner to produce the medical certificate or any other document in support
of her statement of illness during the absence period. The petitioner having ostensibly not come up with the supportive material about her statement
of illness led the Enquiry Committee to submit the enquiry report, vide No. SIMS/Enquiry/981328, dated 2131998, with the finding that the
delinquent, the petitioner had wilfully and unauthorisedly absented herself from the duty during the period in reference. The disciplinary Authority,
that is the Director, who is the Ex officio Secretary of the Government issued the second show cause notice calling upon the petitioner to show
cause as to why she be not removed from service from the date of her wilfull and unauthorised absence from duty. The Director issued this show
cause notice under No. SIMS/HA/511/98/88283, dated 341998.
The petitioner replied it in terms of AnnexureS intimating the punishing authority that as the chargesheet whereon the enquiry report was based
had been challenged in a separate writ petition, and whereas on the interlocutory application the Court had stopped further action against the
petitioner till the date of hearing before the Court, and whereas the disciplinary Authority had appeared/entered upon appearance in the said writ
petition, so in the circumstances the second show cause notice calling upon her to show cause as to why the penalty of removal from service be not
imposed deserved to be withdrawn.
The Directorrespondent thereafter issued/passed order No. SIMS/HA186/98, dated 2241998 whereof the operative part is extracted :
Now in exercise of powers conferred under Rule 33 of the J. & K. Civil Services (Classification, Control and Appeal) Rules, 1956 and having
observed all the codal formalities as established and undergone due process of law/regulations/rules/procedure etc. as laid down in this behalf, the
services of Mrs. Nafisa Akhter (511) Staff Nurse GradeI Department of Nursing, Administration D/O Bashir Ahmad Shah R/O Solina, Silk
Factory Road, Rambagh, Srinagar are hereby terminated and she is removed from rolls of the Institute for all practical purposes with effect from
2121991 viz. from the date Mrs. Nafisa was wilfully unauthorisedly absent from duty.
The order of termination and removal from service is challenged interalia on the grounds :
(1) that the chargesheet, Annexure K, being not only defective, was not accompanied by the statement of allegations and the copies of the
documents relied upon during the enquiry;
(2) that there was no material before the Enquiry Committee to make the report and thereby there was no material before the disciplinary authority
to pass the impugned order;
(3) that the enquiry proceedings got vitiated because she was not allowed to engage the services of a legal counsel to defend herself; and
(4) that the punishment imposed is disproportionate to the alleged mis conduct.
In the reply affidavit the respondents have conceded that in the light of the order of the Court passed in LPA No. 291 of 1997, the petitioner
was allowed to join her duties but the disciplinary proceedings as allowed by the Court, were initiated about her unauthorised absence from duty.
The Enquiry Committee was duly constituted. After the decision in the LPA, the Director of the Institute issued fresh show cause notice against the
petitioner calling upon her to substantiate the projected cause of her absence from duty. The grounds of chargesheet being simple in nature, there
was, therefore, no necessity to attach the statement of allegations to the chargesheet. On receipt of the reply to the chargesheet the disciplinary
authority after its perusal came to the conclusion that as the charge of unauthorised absence from duty for the said period was denied it was as
such proper to hold the enquiry into the matter consequent upon which the Enquiry Committee came to be constituted. It is further pleaded in the
reply that the delinquent official, that is the petitioner, participated in the enquiry proceedings on 2121998 when she appeared before the
committee and rendered the statement which has been recorded in the shape of typedform but when put to her, she refused to sign it and left the
venue. It is denied in the counter, that the petitioner had ever sought permission from the enquiry committee to engage a lawyer to defend her. Even
if she had made such a request, it would not have been accepted as it was not permissible under the rules applicable. It is pleaded that the enquiry
committee adhered to the procedure of enquiry strictly in accordance with the law by providing the opportunity of hearing and to produce the
proof of her illness for the period she had remained absent from duty. She adopted the noncooperative attitude and instead of coming forth to
substantiate the statement of her having remained ill for the period of her absence attempted to stall the enquiry proceedings.
The Court order dated 1131998 passed in Writ Petition No. 329/1998 was, as per the counter, brought to the notice of the Enquiry Committee
on 243 1998, but by that date the Enquiry Committee had submitted its report. The second notice dated 2031998 issued by the Disciplinary
Authority requiring the petitioner to show cause as to why the proposed penalty be not imposed was instead of being replied challenged by her
through the medium of SWP No. 647/1998 which was subsequently dismissed along with SWP No. 328 of 1998 by the Court vide order dated
251998.
Codal requirements and statutory formalities are pleaded to have been adhered to, both at the enquiry level and at the level of disciplinary
action but the petitioner adopted noncooperative attitude by not coming forward to substantiate by documentary evidence or otherwise her alleged
illness during the period of absence from duty. The final show cause notice issued by the disciplinary authority having been not replied, led to the
passing of the impugned order of termination and removal from service. It is pleaded that the enquiry had to be concluded within a period of six
months as was enjoined by the direction of the Court passed in LPA No. 291/1997.
In the rejoinder the petitioner has after restating plea projected in the writ petition come to label the impugned order as vindictive,
discriminatory and disproportionate to the misconduct of unauthorised absence. It is in this context pleaded that a number of employees in the
Institute had either gone abroad on Foreign assignments without any permission from the competent authority or had remained unauthorisedly
absent but all of them were subsequently permitted to resume their duties despite the fact that they had remained on unauthorised absence from
duty. Instances have been quoted in this context to put across that the management of the Institute has been liberal in dealing with the rest of the
delinquents of the Institute but in her case she has been subjected to the hostile discrimination which is violative of the concept of equality before
law as guaranteed by the Constitution.
It is well settled principle of law that the findings on facts recorded at the domestic enquiry are not interfered with in the writ jurisdiction. It is
only where the finding of guilt is based on no evidence or where the finding is perverse that the judicial scrutiny gets attracted to set aside the
finding of guilt recorded at the domestic enquiry. If a decision is arrived at by the disciplinary authority on no evidence or where the evidence relied
upon is thoroughly unreliable, not acceptable on unreasonable considerations, then the order of domestic enquiry can be labelled as perverse. It is
on the other hand that if there is some evidence on record which is acceptable and which would be relied upon the conclusions would not be
treated as perverse and the findings of the domestic enquiry cannot be interfered with. Findings recorded by the enquiry officer which are not
supported by evidence or where the evidence is unreliable as no reasonable person would act upon, then the order of termination/removal based
on such findings has to be set aside. This is the principle of law laid down in the cases reported in AIR 1999 SCW 129 : 1999 Lab IC 437 and
AIR 1999 SCW 625 : AIR 1999 SC 999.
Keeping the above legal position in view it has to be seen whether the requirements of S. 126 of the Constitution of J&K (corresponding to
Art. 311 of the Constitution of India) reflected in Rules 33 and 34 of the CSR have been in this case fulfilled. The settled law in this context is that
a public officer/person holding a public post, against whom disciplinary proceedings are intended to be taken, is entitled to have two opportunities
before disciplinary action is finally taken against him. The enquiry as envisaged for disciplinary proceedings must be conducted in accordance to the
rules prescribed in that behalf which are consistent with the requirements of natural justice. At the domestic enquiry the delinquent public servant
would be entitled to test the evidence adduced against him by crossexamination, where necessary and to lead his own evidence. He is entitled to
have an opportunity to defend himself at the first stage of the proceedings. Where the enquiry is over and the enquiry officer submits his report the
disciplinary authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings of the enquiry
report are against the public officer and the disciplinary authority agrees with the findings then the stage is reached where another opportunity to the
delinquent officer to show cause as to why the action be not taken against him comes up. In issuing the second notice, the disciplinary authority has
to come to a tentative or the provisional conclusion about the guilt of the public officer as also about the punishment which would meet the
requirement of justice in case of the alleged misconduct. On both these matters that the conclusions provisionally arrived at, the competent
authority issues the second notice which enables the delinquent to cover the whole ground and to plead that no case has been made out against him
for taking and disciplinary action and to urge that if he fails in substantiating his innocence the proposed action to be taken is either unduly severe or
not called for. Denial of opportunity to show cause either during the enquiry proceedings or after the disciplinary authority comes to tentative
conclusions violates the principles of natural justice and the power under Art. 226 of the Constitution gets attracted.
There is no denial of the fact that in departmental enquiries details of accusation have to be furnished to the employee. He has to be informed
about the evidence sought to be relied against him and the enquiry has to be conducted in his presence. The results of the enquiry or the
conclusions recorded by the enquiry officer will not get vitiated simply because the delinquent has of his own volition stayed away from the enquiry
proceedings.
In the case at hand the misconduct attributed to the writ petitioner is her unauthorised absence from duty from 2121991 to 8121994. This is
the allegation against her. This accusation is simple and very short. This allegation is specifically and unambiguously mentioned in the chargesheet
issued by the Director under his No. SIMS/HA511/98/8688 dated 1011998. It has to be noticed at this stage that all the proceedings that
followed the first chargesheet and the first order of termination got struck down by the decision in the first writ petition and confirmed in LPA No.
291 of 1997. Earlier proceedings got washed out. Fresh chargesheet, AnnexureK, dated 1011998 was issued by the Director. The Director's
competence to issue the chargesheet against the petitioner is not disputed.
True the chargesheet does not say that the statement of allegations was drawn up and served on the delinquent petitioner. True the requirement
of the rules is that the statement of allegations has to be served on the delinquent along with the chargesheet but where the allegation is so simple
and short and where it is reflected and mentioned specifically in the chargesheet, then the nonservice of the statement of allegations with the
chargesheet loses its significance/importance. Where the charge(s) pertain to certain details, certain allegations or certain accusations then the
chargesheet has to be accompanied by the statement of allegations; the purpose being to convey it to the delinquent official as to what is the
material on which the charge/charges is/are based. Nonservice of the statement of allegations in such a situation assumes significance as the
delinquent can get prejudiced in making the reply to the chargesheet on account of the nonfurnishing of the details of the allegations on which the
charge/charges are based. To say at the cost of repetition the nonservice of statement of allegations with the chargesheet is in the present case of
no significance because the chargesheet itself set out the allegations on which the proposed enquiry was to be initiated; the allegation being that the
petitioner had remained on unauthorised absence from duty with effect from 2121991 to 8121994. The nonservice of statement of allegations
about this misconduct has no significance as it cannot be countenanced that the petitioner was not informed of the material on which the allegation
of unauthorised absence was based. It has to be kept in view in this context that the petitioner's case is not that she had not absented herself from
duty but her case appears, as borne out by the records produced for perusal, that she because of her alleged illness could not attend her duties
from 2121991 to 8121994. The charge of unauthorised absence for the said period was not based on lengthy allegations nor was based on any
such record of which the petitioner had no knowledge. She according to her plea, projected throughout, had fallen ill and had thus been prevented
from attending to her duties from 2121991 to 8121994. It is in this situation hard to accept that any prejudice has been caused to her in defending
herself by nonservice of the statement of allegations or nondisclosure of the material on which the charge of her unauthorised absence for the
period in reference was based. The matter of the fact is that the disciplinary authority called upon the petitioner to substantiate her alleged illness,
the cause of her absence from duty and to explain as to why the disciplinary action as warranted by the rules be not taken against her. It is in this
context to be noted that the nature of misconduct attributed through the chargesheet did not warrant either the issuance of statement of allegations
or the copies of the documents sought to be relied upon during the enquiry. It is perhaps not open to the delinquent public servant, to say that she
was prevented in making the reply to the charge by the nonsupply of the statement of allegations or by nonsupply of the copies of the documents.
The matter of fact is, as stated above, that the misconduct whereabout the enquiry has been conducted is in respect of her unauthorised absence
from duty for a long time. No separate statement of allegations was required to be issued in respect of this mis conduct. The chargesheet did not
convey that any document was to be relied upon during the enquiry. The matter of the fact appears to be that having noticed and communicated
that the petitioner had absented herself from duty unauthorisedly, she was called upon through the chargesheet, to put forth the cause/reason for
such unauthorised absence.
It is in the facts and circumstances of the case that the nonissuance of the statement of allegations or the copies of the documents, as would
have become necessary, had the alleged misconduct been in respect of any other act or omission, has not caused any prejudice to the delinquent.
Fetish and exaggerated devotion to the concept of natural justice reflected in the rules providing for domestic enquiries sometimes can lead to such
results as would enable the strong spider to break our of its web. The principle behind the requirement to communicate in writing the statement of
allegations or provide the copies of the documents sought to be relied in the domestic enquiry with respect to a misconduct is to intimate and
inform the delinquent public servant as to what charge(s) has it to meet in the enquiry and what is the material to be relied upon in support of the
charge/charges. Where the charge is very brief and simple, as for example the unauthorised absence from duty, the nonsupply of the statement of
allegations does not keep the delinquent in darkness as to what is the accusation/allegation against him. Unauthorised absence is such a misconduct
on the part of the public servant that its bare recital in the chargesheet is sufficient to tell him as to what is to be met by him in the domestic enquiry.
I am, therefore, unable to agree with the contention that the charge sheet served at the domestic enquiry against the petitioner has been in any
mode or manner defective. It does not open to be countenanced that the statement of allegations having been not furnished with the chargesheet
has in any manner either been prejudicial to the delinquent or has rendered the chargesheet defective.
The record that is produced for perusal goes to indicate that the petitioner initially applied on 1621991 for fifteen days earned leave. The leave
was not sanctioned but nonetheless she proceeded to avail it. The Institute informed her vide the telegram dated 441991 to resume her duties or
else face the consequences. In reply she telegraphically (dated 651991) sought extension of earned leave by ninety days. The Administrative
Officer thereafter issued the chargesheet on 2451991 calling upon (sic) taken for her unauthorised absence from duty. The record reveals that she
replied the chargesheet intimating that having applied for fifteen days earned leave with effect from 2121991, she had suddenly fallen ill, and under
the medical advice had to take complete bed rest for the period of three months and had accordingly sought extension of leave. She made in the
reply to the charge sheet the specific mention that she will resume her duties as soon as the medical advice permitted her to do so. The reply having
not led to the satisfaction of the disciplinary authority, another show cause notice appears to have been issued to her to explain as to why her
services be not terminated, for the said unauthorised absence. She replied to this notice vide her communication dated 2241993 whereunder she
again projected her illness as the cause of her absence and assured that she will produce requisite medical certificate on joining her duties. The
Medical Superintendent of the Institute thereafter vide his No. SIMS/HA5/91/932186 dated 1461993 called upon her to produce medical
certificate in support of her illness as the alleged cause of her absence. The disciplinary authority thereafter issued the termination order No.
SIMS/HA73/95 dated 3111995. The validity and legality of this order came to be challenged in SWP No. 252/95. This termination order was
quashed vide the judgment dated 771997. It was appealed against (LPA No. 291/97), but to no other result. The Court instead directed that the
petitioner be permitted to join her duties subject to the outcome of the disciplinary proceedings qua against her unauthorised absence from duty.
The enquiry committee was got constituted and the Director issued the fresh chargesheet, Annexure K, which came to be replied by her. In the
reply she harped upon the tune that the summary of allegations having been not furnished the chargesheet could not be proceeded with. The
enquiry committee was constituted vide Annexure M. Then the enquiry committee asked her vide Annexure D to put forth the documentary
evidence in support of her alleged illness that had prevented her from performing her duties for the period of her absence. This was challenged by
the petitioner in SWP No. 328/98. The petition was dismissed on 1131998. Enquiry report was furnished by the enquiry committee indicating that
no material had been putforth in the nature of medical certificate to sustain the petitioner's alleged cause of absence from duty. The committee while
submitting the report recommended that another chance for producing medical documents in support of the alleged cause of absence be provided
to the delinquent and the matter be thereafter decided on its merits. The enquiry committee asked vide Director's No. SIMS/Enquiry/98 127375
dated 2031998, the petitioner to produce documents in support of her alleged illness during the period of absence. She again did not meet the
demand of the enquiry committee which led to the submission of the final enquiry report under No. SIMS/Enquiry/981328 dated 2331998
wherein the enquiry committee forwarded the finding that as the delinquent official had failed to substantiate her statement of prolonged illness
despite repeated notices, the conclusion was that she had wilful and unauthorisedly absented herself from duty during the period in question. The
enquiry report having received the due consideration of the disciplinary authority led to the issuance of the second notice under No.
SIMS/HA511/98/1823 dated 341998 calling upon the delinquent to show cause as to why she be not removed from service as the enquiry
committee had reached the conclusion that she had wilfully and unauthorisedly absented herself from duty for the period in reference. The
disciplinary authority not only referred, in this second notice, to the conclusions of the enquiry proceedings and the findings of the enquiry
committee but also decided on the proposed punishment to be imposed for the misconduct in reference. This show cause notice was replied by the
petitioner vide her communication dated 1541998 wherein she sought deferment of the final orders on the enquiry proceedings as she had filed writ
petition No. 318 of 1998. The disciplinary authority after consideration of all the factors and circumstances passed the impugned order whereby
the petitioner has been removed from service.
The aforestated sequence of events, though referred to at the cost of repetition, goes to indicate that in the nature of the charge, namely the
wilfully and unauthroised absence from duty, the delinquent petitioner projected the cause of absence as her prolonged illness. She was repeatedly
called upon to substantiate the statement of illness by production of medical certificate(s). Instead of putting forth the material in support of her
alleged illness, she wilfully and deliberately disassociated herself from the enquiry proceedings and instead resorted to the filing of one writ petition
after another to challenge the notices.
It is true that the enquiry committee did not examine any witness in support of the charge. It relied only on the records that were putforth by the
presenting officer, appointed by the competent authority. It is contended that the records would not have spoken itself but in order to base the
findings on the record the enquiry committee ought to have examined some witness(s) to speak from the records. Put in other words, the
contention urged is that the enquiry committee had no material, whatsoever, before it to base the finding that the petitioner had wilfully and
unauthorisedly absented herself from duty during the period in reference.
In departmental/domestic enquiries as envisaged by Section 126 of the Constitution of the State read with Rules 33, 34 and 35 of the J. and
K. Civil Services (Classification, Control and Appeal) Rules, 1956, examination of the witness/witnesses by the enquiry officer/agency is not
always and in every situation necessary for the recording of the findings on the charge/charges.
The charge against the petitioner in this case pertains to her unauthorised absence from duty. The enquiry committee examined the record and
from the records it came to the conclusion that the charge is established against her. No witness was required to be examined as the record could
be seen by the enquiry committee. Conclusion(s) can be deduced from the records, if not challenged/refuted. The petitioner chose not to
participate in the enquiry and not to produce any material in support of her statement of illness that had become the cause of her unauthorised
absence. The enquiry committee on examination of the records and on the ground of her not substantiating, by documents or otherwise, her
statement of illness during the period in reference reached the conclusion that the petitioner had wilfully and unauthorisedly absented herself from
duty. Had the petitioner participated in the enquiry, she could have convinced the enquiry committee about the cause of the absence either by
putting forth the medical certificate(s) or by examination of certain witness(s). In the absence of the petitioner the enquiry committee did not
ostensibly feel the necessity of examining any witness and instead made up its mind and reached the conclusion from examination of the record. It
cannot be, in this situation, countenanced that the enquiry is vitiated as no witness was examined or no document was exhibited. Examination of
witness and exhibition of documents would arise had the petitioner associated herself with the enquiry. She cannot take advantage of her any
conduct and urge that the enquiry report is based on no material/no evidence and the conclusions arrived by the enquiry committee are perverse.
No infirmity can, in the totality of the circumstances of this case, be attributed to the report of the enquiry committee.
In the facts and circumstances of this case, I am not satisfied to subscribe to the view that there was no material before the enquiry committee
to reach the conclusion that the petitioner had wilfully and unauthorisedly absented herself from the duty.
After the enquiry committee was constituted vide Annexure M dated 122 1998 the convenor of the committee associated, vide Annexure M,
the law officer with the enquiry. It is contended that the petitioner was not permitted to engage the services of the legal counsel and thus the
guarantee of equality extended by Articles 14 and 16 of the Constitution have been observed in breach rendering the report of the enquiry
committee unsustainable.
It is not always obligatory on the part of the enquiry authority to allow the delinquent to engage the services of a legal counsel. It is in this
context that the nature of the charge/charges, which the delinquent public servant has to face at the enquiry, become relevant. Allegations of the
misconduct that is the basis for the chargesheet in this case is the unauthorised absence from duty. This charge is not at all complicated but is very
simple; so even if it be assumed that the petitioner was not permitted to engage the legal counsel, yet it cannot be countenanced thereon that the
principles of natural justice have been violated. This opinion is based on the Apex Court decision in the case, reported in AIR 1997 SC 3658 :
1997 Lab IC 2076.
The enquiry committee through its convenor called upon the petitioner vide letter dated 2031998 to produce the medical certificate or any
other document in support of her statement of illness during the period of absence. The petitioner complaints that this notice was not served on her
and no occasion was provided to her to produce the certificate. Assuming that it was so, even then the petitioner ought to have responded to
second show cause notice wherein the findings of the enquiry committee were tentatively accepted by the disciplinary authority and it had
tentatively taken the view that she be removed from service. She could have projected it that she was not informed of the need or necessity to
produce the medical certificate and/or that the enquiry committee's letter dated 2031998 had not been served. In 14th paragraph of the second
disciplinary authority mentioned that the petitioner had in terms of the report of the enquiry committee not putforth any medical certificate or other
documents in support of her statement of illness during the period of her absence though she was required by the committee to do so vide the
communication dated 1721998 and 2031998. The receipt of this show cause notice is acknowledged by the petitioner as she filed the reply to this
notice on 1541996. Instead of raising any objection as to the sustainability of the enquiry committee's findings and the reasons therefor the
petitioner while making the reference to the pendency of the SWP No. 328 of 1998 sought the withdrawal of the second show cause notice till the
disposal of the writ petition. It is, therefore, not open to her to say that she was not informed at any stage either by the enquiry committee or by the
disciplinary authority that she was required to put forth the medical certificate or any other document in support of her statement of illness during
the period in question. It is in this context worth to be restated that in this second opportunity afforded by the disciplinary authority the petitioner
could have come forward to cover the whole ground of enquiry and to plead that no case had been made out against her for taking the disciplinary
action. She could have even urged that there was no basis for the enquiry committee to reach the conclusions and the disciplinary authority had no
material to take any tentative decision either about the findings or about the proposed punishment. She could have in this context at the stage of
second opportunity putforth the medical certificate or any other document to support the statement of illness during the period of absence. She
could have urged her innocence as against the action proposed to be taken against her. She could have been canvassed that the tentative/proposed
punishment was disproportionate or not called for. None of these courses/options was adopted but instead withdrawal of the second show cause
notice was sought till the disposal of the writ petition No. 328/1998.
She cannot be heard to say that she had no notice at any stage, prior to the issuance of the impugned order of termination, that she was
required to produce medical certificate or any other document in support of her statement of illness that prevented her from attending to her duties
during the period of her absence. This view is fortified by the authority reported in AIR 1963 SC 1612.
The facts and the circumstances as referred to herebefore go to show that neither was the charge vague not was it obligatory on the part of the
enquiry authority to have examined any witness in support of the simple charge of unauthorised absence from duty. The enquiry committee was
justified to reach the conclusion on the perusal of the records. It is so, as the delinquent despite notice did not come up with the documentary
evidence in support of her statement of illness that had allegedly prevented her from attending to her duties. There is evidence thus to support the
findings and sustain the view taken by the disciplinary authority. No interference is called for on that count.
It has been contended that other persons/employees of the Institute against whom the same type of charges of unauthorised absence were
levelled have been taken back into the service and the petitioner has been singled out to be visited by the severest of the punishments in the nature
of termination from service. Instead of taking this plea in the Court, the petitioner could have in response to the second show cause notice issued
under Classification, Control and Appeal Rules gone to the disciplinary authority/punishing authority to cover the whole ground and plead that no
case had been made out against her for action being taken. She could not also in response to this notice urge that the action proposed to be taken
against her was either unduly severe or even not called for (Reliance AIR 1963 SC 1612). She did not choose this course and instead she sought
to forestal the disciplinary authority from taking the final decision by making reference to the pendency of SWP No. 328/1998. This is Annexure S
to the writ petition. It cannot thus lie with her to groan that the punishment imposed is too severe and disproportionate or that she has been singled
out for such type of punishment, though other employees of the Institute who were similarly circumstanced had been lightly dealt with. It has to be
noticed in this context that reference to the similarly circumstanced employees of the Institute is made not in the writ petition but in the rejoinder.
No case can be built up on the averments in the rejoinder. Whoever invokes the writ jurisdiction has to set out all the circumstances and the facts in
the writ petition itself. Assuming that the similarly circumstanced employees of the Institute have been either not punished for authorised absence or
have been lightly dealt with, yet in the manner and the fashion in which the petitioner conducted herself with the enquiry disentitles her to the claim
of similar treatment.
In the totality of the circumstances, I am unable to subscribe to the view that the punishment imposed on the petitioner is disproportionate to
the charge or that she has been victimised. Had she not deliberately and wilfully disassociated herself from the enquiry proceedings and had she
projected before the punishing authority the same grounds which she has now projected then perhaps the plea could be accepted that enquities are
in her favour or that she has been shockingly discriminated in the matter of infliction of punishment that is disproportionate to the established
misconduct. She cannot even appeal to the compassion of the Court. Having wilfully and unauthorisedly absented herself from duty for nearly four
years, she cannot be heard to say that she has been unevenly dealt with or that the punishment imposed is severe or excessive. Appeal to
compassion could perhaps help her had she associated herself with the enquiry proceedings up to the filing of the writ petition. Her defiant attitude
and noncooperative behaviour renders her plea of equal treatment untenable. No reasons are there to subscribe to her contention that the
punishment imposed is harsh or severe or that she has been unevenly dealt with. There is no case for judicial intervention.
For the reasons said herebefore, no scope for intervention with the imposed order is made out. The petition is, therefore, hereby dismissed but
without any order as to costs. Records produced for perusal be returned.