In the High Court of Punjab and Haryana, Chandigarh C.W.P. No. 21850-CAT of 2008 Date of Decision: May 10, 2010 Krishan Kumar Sharma …Petitioner Versus Union of India and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN PRESENT: Mr. Raj Kumar Sharma, Advocate, for the petitioner. Mr. R.N. Raina, Advocate, for respondent Nos. 2 and 3. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 28.7.2008 (P-3), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), in MA No. 338/2007 & O.A. No. 314-CH-2007, dismissing the Original Application filed by the petitioner. A further prayer has been made for quashing order dated 1/10.3.2005 (A-1), passed by the Director Public Instruction, Chandigarh Administration-respondent No. 3, under sub-rule (4) of Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (as applicable to the employees of the Union Territory, Chandigarh) [for brevity, ‘the Rules’], C.W.P. No. 21850 of 2008 inflicting upon the petitioner a major penalty of removal from service with immediate effect. The petitioner has also challenged order dated 4.8.2005, passed by the Appellate Authority rejecting his appeal against the order of removal (A-2). He has still further sought a mandamus directing the respondents to reinstate him in service from the date of termination i.e. 1.3.2005 along with full back wages and consequential benefits. 2. Brief facts of the case are that the petitioner while working as an Senior Assistant (Accounts) in the Government Model Senior Secondary School, Sector 46, Chandigarh, applied for Ex-India leave w.e.f. 1.8.2000 to 31.7.2001 on the ground of meeting his brother-in-law and sister-in-law in Canada, which was sanctioned by the competent authority, vide order dated 12/14.6.2000 (R-1). On 30.7.2001, he sent an application for extension of leave from 1.8.2001 to 31.7.2002. The reason of seeking extension of leave was that surgical procedure concerning his wife Smt. Tripta Sharma was fixed for 27.9.2001. She has been a chronic patient of asthma. On 23.8.2002, the request of the petitioner for extension of leave was rejected in view of the condition imposed in the order dated 12/14.6.2000 that “he will not ask any extension in Ex-India Leave from abroad and will return to India to join his duties on the expiry of leave sanctioned”. He was directed to join his duties immediately (R-II). On 27.9.2001, the petitioner again requested for reconsideration of his case on account of illness of his wife (A-3). 3. On 14.12.2001, a charge sheet under Rule 8 of the Rules was served upon the petitioner alongwith the statement of articles of charges, statement of imputation of misconduct etc. (A-4). The Article of Charge levelled against the petitioner reads thus: 2 C.W.P. No. 21850 of 2008 “ That Sh. Krishan Kumar while functioning as Sr. Assistant (Accounts) at GMSSS-46, Chandigarh has misconducted by remaining wilfully absent from duty w.e.f. 1.8.2001 to date. The said Sh. Krishan Kumar proceeded on Ex-India leave w.e.f. 1.8.2000 to 31.7.2001 after getting the leave sanctioned from the competent authority. He was supposed to resume his duty w.e.f. 1.8.2001 after expiry of his leave, as per undertaking given by him. But instead of joining his duties, he applied for extension in leave vide his request dated 30.7.2001 from abroad i.e. Canada up to 31.7.2002, which was refused and he was directed to join his duties immediately vide this office Memo No. 1394-DPI-UT- Ad.III-13(76)99 dated 23.8.2001. The Principal, Govt. Girls Sr. Secondary School, Sector 20-B, Chandigarh where the lien of the said Sh. Krishan Kumar, Sr. Assistant (Accounts) have been shifted has informed that the official has not joined in her school after the expiry of leave. The said Sh. Krishan Kumar, Sr. Assistant (Accounts) sought extension from abroad on receipt of this office letter dated 23.8.2001 as referred above on the ground that the operation of his wife has been fixed from 27th September, 2001, hence his leave be extended up to 31.7.2002. The said request has also been turned down in the public interest. The manner in which the said Sh. Krishan Kumar has been applying for extension of leave make it amply clear that he is wilfully absenting himself from duty. By remaining absent from duty in contravention of undertaking so given before proceeding abroad, the said Sh. Krishan Kumar has 3 C.W.P. No. 21850 of 2008 acted in a manner unbecoming of a Government servant violating the provisions of rule 3 of the Punjab Government Employees (Conduct) Rules, 1966, as made applicable to the employees of the Union Territory, Chandigarh calling for disciplinary action against him.” 4. On 1.8.2002, the petitioner submitted his reply to the charge sheet taking the stand that he did not intentionally extend his leave but the circumstances were beyond his control. He also showed his willingness to join the duty (A-5). On 21.11.2002, an order was passed permitting the petitioner to join his duties w.e.f. 13.11.2002 without prejudice to the disciplinary proceedings pending against him. He was posted in the Government Senior Secondary School, Sector 45, Chandigarh against a vacant post (A-6). He also joined the inquiry proceedings. 5. On the request of the petitioner, again Ex-India Extra Ordinary Leave (without pay) w.e.f. 23.12.2002 to 21.4.2003 under Rule 8.121 of the Punjab Civil Services Rules, Vol. I, Part-I was granted to him on the ground of operation of his wife in Canada, subject to fulfilment of certain conditions. One of the conditions imposed at Sr. No. 5 was that “in case he fails to return after the expiry of leave sanctioned to him, the action for the termination of his services will be initiated” (A-7). 6. On 16.1.2003, the Enquiry Officer submitted his report exonerating the petitioner of the charge of willful absence. However, he was held guilty of misconduct for suppressing and concealing the grave sickness of his wife and impending surgery, which, in fact, was never a charge levelled against him. Not only this, the period of alleged absence w.e.f. 1.8.2002 was taken into consideration, which also was not a part of the charge sheet (A-13). After 4 C.W.P. No. 21850 of 2008 submission of reply to the inquiry report by the petitioner, he was asked to appear before the DPI on 16.4.2003. It is claimed by the petitioner that due to illness of his wife he could not appear on the said date and instead sent a request for extension in Ex-India leave up to 31.12.2003. The leave was extended from 1.11.2003 to 30.4.2004, vide order dated 18.3.2004, with a stipulation that no extension of leave of any kind would be granted to him from abroad as per undertaking given by him and his services would be deemed to have been terminated if he applies for extension of leave from abroad (A-8). 7. Instead of joining his duties, on 1.3.2004, the petitioner again made an application for extension of his leave till 31.12.2005 on the ground that the operation of his wife had not taken place (A-9). Again a representation dated 29.4.2004 was sent by the petitioner along with medical certificates of his wife from Canada and requested for extension of his leave w.e.f. 1.5.2004 to 31.12.2005 (A-12). 8. On 10.3.2005 (A-1), the impugned order of removal was passed against the petitioner by the Director Public Instructions, Chandigarh Administration, on the ground that as per condition imposed in the order dated 15.4.2004, no extension in leave was to be given and his service was deemed to have been terminated if he applies for extension in leave from abroad. It has been alleged that for the said reason no charge sheet etc. was ever issued to the petitioner. The charge sheet which was earlier issued to him was with respect to a particular period that is from 1.8.2001 to 14.12.2001 (4½ months) whereas the disciplinary authority while passing the impugned order of removal has recorded that the petitioner has remained on Ex-India Extra Ordinary leave for more than four years and he has misconducted by not joining his duties on 5 C.W.P. No. 21850 of 2008 1.5.2004, ignoring orders dated 15.4.2004 and 21.6.2004, despite the fact that those orders were never part of the charge sheet dated 14.12.2001 (A-4). 9. Against the order of removal, the petitioner filed an appeal which was also dismissed vide order dated 4.8.2005 (A-2). Challenging order of removal dated 10.3.2005 (A-1) and order dated 4.8.2005 (A-2) passed by the Appellate Authority, the petitioner initially filed a civil suit in the Court of Civil Judge (Senior Division) Chandigarh, which was dismissed as withdrawn with liberty to file an Original Application before the Tribunal, vie order dated 12.5.2007. Thereafter, the petitioner filed O.A. No. 314-CH-2007 before the Tribunal along with MA No. 338 of 2007 seeking condonation of delay in filing the Original Application. The Tribunal dismissed the aforementioned Original as well as Miscellaneous applications of the petitioner vide impugned order dated 28.7.2008 upholding the orders dated 10.3.2005 and 4.8.2005 (A-1 & A- 2) 10. During the course of arguments the charge of misconduct against the petitioner by extending his leave from abroad and remaining willfully absent from duty with effect from 1.8.2001 till 14.12.2001 (the date of issuing of charge sheet) was read out to us. Thereafter the findings recorded by the Enquiry Officer were also read out which shows that the petitioner remained absent from duty involuntarily and not wilfully. 11. On 30.4.2010, when the matter came up for consideration, we confronted Mr. R.N. Raina, learned counsel for respondent Nos. 2 and 3, with the aforesaid factual and legal position. He prayed and was granted time to seek instructions as to whether the official respondents on their own would take a decision to pass an order substituting the punishment of removal from service to any other punishment. 6 C.W.P. No. 21850 of 2008 12. At the hearing Mr. R.N. Raina after obtaining instructions from the competent authority has stated that respondent Nos. 2 and 3 have shown their inability to alter the impugned order of removal passed against the petitioner. In this view of the matter we are left with no other option but to proceed further to decide the matter on its merits. 13. The narration of facts in the preceding paras leads to the conclusion that the sole charge of willful absence from duty from 1.8.2001 to 14.12.2001 was not proved in the inquiry and there are categorical findings to that effect. However, the Enquiry Officer proceeded to record finding entirely on a different charge by holding that the delinquent employee was guilty of misconduct for suppressing and concealing grave sickness of his wife, impending surgery and ongoing treatment when he was accorded sanction for leave from 1.8.2001 to 31.7.2002. The finding of the Enquiry Officer expressed in his report dated 11.1.2003 (A-13), reads as under:- “ In view of the foregoing reasons, it is quite clear that serious illness of wife of CO was beyond the control of CO under the circumstances. The extension in leave from 1.8.2001 to 31.7.2002 and thereafter 1.8.2002 onwards was justified for treatment of Smt. Tripta Sharma wife of CO, which was available only in the foreign country as per certificate of PGI Annexure A23. The absence of CO under aforesaid special and extra ordinary circumstances was not intentional and without sufficient cause. However, CO is guilty of misconduct for suppressing and concealing the grave sickness of his wife and impending surgery and ongoing treatment while applying for extension in leave from 1.8.2001 to 31.7.2002 7 C.W.P. No. 21850 of 2008 and from 1.8.2002 onwards. Charge No. 1 is proved this extent against Sh. Krishan Kumar, Sr. Assistant.” 14. When the matter was considered by the Director, Public Instructions, who is the punishing authority, he proceeded in gross violation of principles of natural justice. Without recording any note of dissent and evidence to sustain the charge of willful absence from duty, which was not proved before the Enquiry Officer, the punishing authority in the recital of the order dated 10.3.2005 proceeded to record that the charge has been proved. In the un-numbered para 5 of the order, the punishing authority records as under:- “ And whereas, a copy of Enquiry Report was supplied to the said Sh. Krishan Kumar vide registered post dated 7.2.2003 at his foreign address as the charges of wilful absence were proved. He submitted the reply on 26.3.2003 which was not satisfactory……..” (emphasis added) 15. It is, thus, obvious that the punishing authority without discussing evidence to sustain the charge of wilful absence from duty and without recording a note of dissent, serving it upon the petitioner and obtaining his reply to the same, has imputed the finding of wilful absence from duty to the Enquiry Officer, which is contrary to the findings recorded by the Enquiry Officer. The order of removal from service, dated 10.3.2005, has been passed under the aforesaid belief that punishing authority could reverse the findings of Enquiry Officer on his own without following the principles of natural justice. 16. The other illegality fatal to the order of removal from service (A-1) is that in the charge sheet the period of absence from duty mentioned was 1.8.2001 till the date of service of charge sheet i.e. 14.12.2001. However, a 8 C.W.P. No. 21850 of 2008 new charge appears to have been sustained by the appointing authority, as is evident from the following para:- “ And whereas the said Sh. Krishan Kumar has failed to join his duties on the expiry of extra ordinary leave i.e. 1.5.2004 and is wilfully absent from duty. And whereas Sh. Krishan Kumar, Accountant remained on Ex-India extra ordinary leave for more than four years and he misconducted by not joining his duties on 1.5.2004 ignoring the orders dated 15.4.2004 and 21.6.2004 which clearly stipulated that no extension of any kind of leave will be granted to him and his services will be deemed to be terminated.” (emphasis added) 17. It is, thus, obvious that extraneous matter has entered the consideration of the punishing authority. It remained undisputed that neither any new charge sheet was issued nor opportunity to show cause against willful absence from duty in respect of the aforementioned period has ever been granted. There cannot be any question of recording of any finding to that effect by the Enquiry Officer. Such a course is against rudiment principles of natural justice. In that regard reliance may be placed on the judgment of Hon’ble the Supreme Court rendered in the case of Narayan Misra v. State of Orissa, 1969 SCWR 829. On that account also the order of removal dated 10.3.2005 (A-1), passed by the punishing authority is vitiated. 18. The matter does not end there. The appellate authority not only repeated the same mistake but also found proof in respect of two new allegations, which were never a part of charge sheet, and recorded further findings, which is evident from the following paras of the order dated 4.8.2005 (A-2), passed by the appellate authority, which reads thus:- 9 C.W.P. No. 21850 of 2008 “ And whereas a copy of Enquiry Report on the basis of Charge Sheet vide dated 14.12.2001 & Inquiry Proceeding conducted vide letter dt. 2.4.2002 was supplied to the said Sh. Krishan Kumar vide registered post dated 7.2.2003 at his foreign address as the charges of willful absence were proved. …….. It has been observed that Sh. J.P.S. Puri, IAS (Retd.), Enquiry Officer has concluded that the serious illness of wife of the appellant was beyond the control of the appellant. The extension in leave from 1.8.2001 to 31.7.2002 and thereafter from 1.8.2002 onwards was justified for treatment of Smt. Tripta Sharma wife of the appellant which was available only in the foreign country as per certificate issued by the PGI authorities. The absence of appellant under special and extra-ordinary circumstances was not intentional and without sufficient cause. However, the appellant is guilty of misconduct for suppressing and concealing the grave sickness of his wife and impending surgery and ongoing treatment while applying for extension in leave from 1.8.2001 to 31.7.2002 and from 1.8.2002 onwards. The enquiry report reveals that though the enquiry officer has justified the extension in leave of the appellant from 1.8.2001 to 31.7.2002 and thereafter from 1.8.2002 onwards, yet it has been proved that the appellant concealed the fact of his wife being in grave sickness. The record suggests that the leave application of the appellant for extension in leave was rejected by the competent authority and was directed to report for duty. But he failed to resume his duties and as such the charge of disobedience is proved 10 C.W.P. No. 21850 of 2008 against him. He deliberately and intentionally disobeyed the orders of the competent authority and even not bothered to apply for further extension in his leave. In view of the circumstances, I am of the opinion that the appellant does not deserve a lenient view in the matter and accordingly his appeal is hereby dismissed/rejected being devoid of merits.” (emphasis added) 19. Thus, from the point of the inquiry report to the order of the appellate authority there are patent errors, which have led to inverted conclusions. The following table sums up the whole factual position:- Imputation of charge Enquiry Officer Punishing Authority Appellate Authority 11 C.W.P. No. 21850 of 2008 Dated 14.12.2001 (A- 4) – Mis- conducted by extending his leave from abroad, remaining wilfully absent from duty w.e.f. 1.8.2001 to date i.e. 14.12.2001. (i) In the Enquiry Report dated 11.1.2003 (A- 13), extension in leave from 1.8.2001 to 31.7.2002 and thereafter was justified for treatment of Smt. Tripta Sharma, wife of the petitioner. The treatment was available only in the foreign country as per the certificate issued by the PGI (A-23). No willful absence. (ii) However, the petitioner was found guilty of misconduct for suppressing and concealing grave sickness of his wife, impending surgery and ongoing treatment abroad while applying for extension. (i) Mis-quoted the inquiry report with the observation that ‘the charges for willful absence were proved’. (ii) The punishing authority also recorded the finding on foreign material. It has been observed that the petitioner misconducted by not joining his duties from 1.5.2004 ignoring the orders dated 15.4.2004 and 21.6.2004, which stipulated that no extension was to be given and his services were to be terminated. (i) Again mis-quoted the Enquiry Officer taking the charge of willful absence from duty as proved. (ii) Charge of disobedience of not deliberately and intentionally obeying the orders of the competent authority was also taken to be proved. 20. The aforesaid summary of dealing with the case of the petitioner shows serious lapses on the part of the enquiry officer, punishing authority and appellate authority. The Enquiry Officer has taken upon himself the task of travelling beyong the chargesheet. There may be cases where an employee is charged with a misconduct consisting of several particulars which may constitute a major misconduct. In such a case an employee might be found guilty of a minor misconduct if combination of some constituents constitutes a minor misconduct and it is proved by adducing evidence proving the limited constituents. The aforesaid principle is deducible from the provisions of 12 C.W.P. No. 21850 of 2008 Sections 221 and 222 of the Cr.P.C. In the facts and circumstances of this case, the illustration could be that if the petitioner is charged with absence from duty for a longer period and the charge is proved in respect of a smaller period then it would not be possible for the Court to say that a charge is different than the one imputed to the delinquent employee. However, a charge which is based on entirely different constituents and features and by no stretch of imagination it could form part of the principal charge then no finding of such a charge could be returned by the Enquiry Officer nor the punishing authority or any other authority could have taken into consideration any such findings. Therefore, it is safe to conclude that the Enquiry Officer did not have any authority to record a finding with regard to suppression of illness of his wife, ongoing treatment abroad and her impending surgery. 21. The second serious blunder has been committed by the punishing authority who has without discussion of any evidence or recording a note of dissent, has reached a finding contrary to the one recorded by the Enquiry Officer. The punishing authority has held that the petitioner was wilfully absent from duty and it has also relied upon material which is wholly foreign to the charge sheet. No such evidence was ever produced before the Enquiry Officer. The punishing authority on his own without anything more has found that the petitioner mis-conducted by not joining duty on 1.5.2004, disobeying the orders dated 15.4.2004 and 21.6.2004. It has also repeated the same blunder by recording the finding of willful absence from duty imputing the same to the Enquiry Officer in his inquiry report. The aforesaid factors are sufficient to show that the order removing the petitioner from service is vitiated and is, thus, liable to be set aside. 13 C.W.P. No. 21850 of 2008 22. However, when the petitioner filed O.A. No. 314/CH/2007, the Tribunal also joined the chorus by repeating the same blunder and committed jurisdictional error. After referring to the findings recorded by the Enquiry Officer with regard to suppressing and concealing the sickness of his wife by the petitioner, the Tribunal proceeded to observe as under:- “ 15. ……In view of this, we are of the view that he is estopped from challenging the findings recorded by the enquiry officer. The enquiry officer may have been carried away on account of emptional outburst as is apparent from the report itself, but it is apparent that even he had recorded a finding at para 3 of the report that “CO had applied for extension of leave from abroad w.e.f. 1.8.2001 to 31.7.2002 in violation of terms and condition of the office order EXPW/A dated 14.6.2000”. In the said order, a condition is imposed upon the applicant, while granting leave, that he will not extend the period of leave. 16. However, it is well settled that enquiry report is only an enabling document for the disciplinary authority to form an opinion as to whether the concerned employee is guilty or not guilty. In this case, the disciplinary authority considered the enquiry report and recorded findings that the applicant has violated the undertaking given by him of not extending the leave period applied for by him and sanctioned by the respondents, particularly, when there was specific condition that his services will be terminated. A specific finding was recorded that applicant has failed to join his duties on the expiry of extra ordinary leave and is wilfully absent from duty. 14 C.W.P. No. 21850 of 2008 17. The applicant was also issued a show cause notice, to which he did not file any reply, despite lapse of more than 8 month, wherein a proposal was made for termination of services of the applicant. In view of these facts, the competent authority imposed penalty of removal from service vide Annexure A-1.” (emphasis added) 23. The Tribunal has failed to take into account the constitutional and legal consequences which arise from a situation like the one in hand. Where the punishing authority is different than an Enquiry Officer and in a regular departmental inquiry, the Enquiry Officer has reached a particular conclusion then in order to reverse the finding of the Enquiry Officer, the punishing authority/appointing authority has to record the finding by referring to the evidence on record which may sustain the contrary findings found to be proved by the evidence on record. The dissenting note along with the inquiry report is then required to be served on the delinquent officer. The response of the delinquent officer, if any, is then required to