Kailash Gambhir, J.@mdashBy way of this writ petition the petitioner seeks quashing of removal order dated 4th May, 1989 besides seeking directions for his reinstatement with back wages. Brief facts relevant to decide the present writ petition, as set out by the petitioner inter alia, are that the petitioner was appointed as a Research Officer in 1982 on probation with respondent No. 1 vide memorandum dated 16th January. 1986. Due to some acts of indiscipline complained by the respondent an enquiry for major penalty under Rule 14 of the CCS Rules, 1965 was set up against the petitioner. One Mr. R.S. Gupta, Vigilance Officer of respondent No. 1 was appointed as an Enquiry Officer. The petitioner raised certain objections against the said Enquiry Officer and one of the ground raised was that the said Enquiry Officer had declined the request of the petitioner to engage services of a lawyer as his defence assistant. The petitioner also took objection to the presence of one Mr. R.K. Verma during the entire enquiry proceedings to assist the Enquiry Officer. Due to such objections raised by the petitioner, the Disciplinary Authority appointed one Mr. T.R. Anand as Enquiry Officer in place of Mr. R.S. Gupta. Prior to appointment of this Enquiry Officer, the petitioner nominated one Mr. S.S. Saini, Senior Accounts Officer to act as his defence assistant and a request was made to adjourn the ensuing proceedings till Mr. Saini makes him available to defend the case. However, the said Enquiry Officer proceeded to hold enquiry on day to day basis even in the absence of defence assistant. The said Enquiry Officer recorded the statement of the witnesses as adduced by respondent No. 1 without caring about the absence of the petitioner. By letter dated 12th June, 1987 the Enquiry Officer was contacted by the petitioner to point out that the procedure adopted by him was in violation of CCS Rules, 1965. This Enquiry Officer had also rejected the request of the petitioner for the nomination of a legal practitioner so as to present his case. Since the enquiry was in progress, therefore, instead of appointing a legal practitioner the petitioner had nominated one Mr. K.L. Juneja, who was working with MCD on the post of Accountant, as his defence assistant. MCD had also granted permission to Mr. Juneja to act as a defence assistant of the petitioner vide letter dated 17th February, 1987. In the interregnum, the Enquiry Officer had proceeded with the enquiry proceedings without even waiting for the presence of Mr. Juneja. The petitioner gave many representations to the Enquiry Officer about his various irregularities, but the Enquiry Officer proceeded with the matter ignoring the said objections raised by him. An ex parte report dated 13th March. 1987 was submitted by the Enquiry Officer. In the said enquiry report the petitioner was found guilty of three charges out of a total of 7 charges. The matter was again taken up by the petitioner with respondent No. 1, complaining various irregularities committed by the Enquiry Officer during the enquiry proceedings. Agreeing with the request of the petitioner, respondent No. 1 directed the same Enquiry Officer to re-open the enquiry proceedings and give due opportunity of hearing to the petitioner. This time again, the petitioner made a request to allow him to take the services of a legal practitioner but again request of the petitioner was turned down. The petitioner failed to engage any defence assistant and vide report dated 22.9.1988 the Enquiry Officer resubmitted his report almost verbatim of the earlier report dated 13th March, 1987. The Disciplinary Authority after considering the finding of the Enquiry Officer awarded major penalty of removal vide order dated 4th May, 1989.
2. Feeling aggrieved, the petitioner has assailed the decision of the Enquiry Officer as well as that of the Disciplinary Authority in the present writ petition.
3. I have heard leaned counsel for the parties at great length and have perused the records.
4. The first argument of the counsel for the petitioner is that the Enquiry Officer has failed to follow the instructions given by respondent No. 1 after the enquiry was re-opened. Placing reliance on the covering letter dated 22th September, 1988 counsel for the petitioner contended that vide letter dated 6.7.1987 respondent No. 1 had given certain to the Enquiry Officer, but due to ulterior design, he did not follow the same. The directions given by respondent No. 1 vide letter dated 6.7.1987, which forms part of the covering letter dated 22th September, 1988 are as under:-
i. The Inquiry Officer should re-open the inquiry and give opportunity to the Charged Officer to cross-examine the prosecution witnesses with the help of Defence Assistant.
ii. The charged officer should be given permission to produce his Defence Witnesses if any and allow the Presenting Officer to cross-examine the defence witnesses.
iii. After completing these formalities the Presenting Officer may be asked to submit a fresh written brief which may be supplied to the Charged Officer so that the Charged Officer may submit his written brief taking into accounts the contents of the brief by the presenting Officer.
5. The contention of the counsel for the petitioner is that the entire purpose of reappointment of the Enquiry Officer was defeated as the Enquiry Officer failed to follow the said directions. Counsel also contended that the pervious defence assistant, Mr. K.L. Juneja, was withdrawn by MCD but still the Enquiry Officer did not permit the petitioner to engage the services of a legal practitioner. The Enquiry Officer thus blatantly flouted the principles of natural justice by denying the right of the petitioner to engage the services of a legal practitioner. Counsel also contended that the same report, which was earlier given by the said Enquiry Officer was resubmitted without there being any change.
6. The next contention of the counsel for the petitioner is that as against seven charges, the petitioner was found guilty in respect of three charges, while in respect of the remaining four charges the petitioner was not found guilty. The contention of the counsel for the petitioner is that even in respect of three charges i.e. charge No. 1, 4 and 6 the Enquiry Officer failed to give any reasons whatsoever as to why the petitioner was held guilty of these charges. The counsel contended that there is a total non-application of mind as the Enquiry Officer jumped to conclusions without there being any reason to justify the conclusions arrived at by the Enquiry Officer. In support of his argument counsel for the petitioner placed reliance on sub rule 23(d) of Rule 14 of CCS Rules, which states that the report of the Enquiry Officer shall contain findings on each article of charge and the reasons thereof. Counsel thus contended that the enquiry report given by the Enquiry Officer is in utter violation of said provision of CCS Rules and therefore, the report given by the Enquiry Officer is ex-facie illegal. Counsel for the petitioner further contended that despite specific request made by the petitioner vide his letter dated 23rd September, 1987 the petitioner was not supplied with documents, which were material to the controversy involved. The counsel for the petitioner contended that in the absence of the said documents the petitioner was not in a position to cross- examine the witnesses. The counsel for the petitioner also submitted that the examination of all these witnesses was required to be conducted in presence of the petitioner and not in his absence as it was done by the Enquiry Officer. The counsel also submitted that vide letter dated 25.11.1987 the petitioner had apprised the Enquiry Officer off the fact that he was not allowed to inspect various documents, details of which was given in the said letter. The contention of the counsel for the petitioner was that in absence of all these documents and assistance of a legal practitioner, the petitioner could not effectively participate in the enquiry proceedings. The Enquiry Officer should not have proceeded in the matter unless the petitioner was allowed assistance of a legal practitioner and the inspection of ail the documents for the purpose of giving free and fair trial to the petitioner, counsel contended.
7. Counsel for the petitioner raised another contention that the Disciplinary Authority has not given any reasons in its order for agreeing with the findings given by the Enquiry Officer. The counsel contended that order of the Disciplinary Authority is not a reasoned order and, therefore, the same is also illegal and arbitrary in nature.
8. The counsel also contended that even the punishment awarded by the Disciplinary Authority directing removal of the petitioner from his service is highly disproportionate to the charges, which were proved against him by the Enquiry Officer. In support of his arguments learned counsel for the petitioner has placed reliance on the following judgments:-
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Per contra, the counsel for the respondent contended that the petition is not maintainable as the petitioner did not avail the remedy of filing an appeal to the Governing Body against the order of removal of service passed by the Chairman. It was also contended that the petitioner was non-cooperative throughout the enquiry proceedings and he consistently and deliberately attempted to obstruct the progress of the enquiry proceedings one way or the other. He further contended that no specific reference was made to any document or material which was stated to have been withheld from or not supplied to the petitioner so as to handicap the petitioner in his defence. He also denied that the Disciplinary Authority did not apply its independent mind after submission of the report by the Enquiry Officer or that CCS Rules were not fully complied with. It was further denied by the counsel for the respondent that the petitioner was performing his duties satisfactorily, as during his period of probation, due to his work and conduct not being up to the mark, the Chairman of the Governing Body of the respondent No. 1 who was the appointing authority, decided to extend the period of probation twice i.e., on 3rd September, 1984 and then on 3rd September, 1985.
9. It was further contended by the counsel for the respondent that the memorandum dated 16 Jan 1986 containing the Articles of Charges, statement of imputation of misconduct and misbehavior in support of each Articles of Charge, the list of documents and witnesses relied upon were duly supplied to the petitioner and hence it could not be said that there was no prior intimation of proposal to initiate proceedings. It was further submitted that the petitioner was not at all cooperative and he himself refused to receive and accept the charge sheet on 24th January, 1986, 27th January, 1986, 13th March 1986 and 20th March 1986. The counsel for the respondent further disputed that no opportunity was given to the petitioner by the Enquiry Officer to arrange for a Defence Assistant. The petitioner instead of nominating a Defence Assistant requested for permission to be represented by a legal practitioner before the Enquiry Officer. But, the said request was not acceded to, by the Chairman of the Governing Body of the Institute/Disciplinary Authority, on the ground that the presenting Officer was not a legal practitioner.
10. Furthermore, it was contended by the counsel for the respondent that it was because of the dilly-dally tactics of the petitioner that the Enquiry Proceedings took an year to commence. Also, the Enquiry Officer had given a specific decision vide letter dated 13th January 1987 on the representation of the petitioner dated 12th January, 1987. Also it was disputed that Mr. R.K. Verma rendered any assistance to the Enquiry Officer. All he did was to produce original records in his capacity as Section Officer-in-charge of Administrative Section of the Institute. The counsel also submitted that the petitioner intentionally refrained from participating in the enquiry proceedings even when he was informed that the enquiry would proceed on day to day basis 12.1.87 vide letter dated 22.12.86 of the Enquiry Officer and that witnesses already examined shall be available for cross-examination from 22 January to 30 January 1987 vide information given to him on 16.1.87. It was also explained to him that upon his failure to avail the opportunity, the proceedings would be set ex-parte against him. It was further submitted that on 20.1.87 the petitioner requested for assistance of Mr. K.L. Juneja, Divisional Accounts Officer of MCD and on the same day this request was forwarded to the Commissioner, MCD by the Enquiry Officer and due to this request the petitioner was informed that the witnesses would be available for cross-examination of 9.2.87 and he should arrange for Defence Assistant by that time. The petitioner was also allowed inspection of the relevant documents and, therefore, the petitioner cannot complain that he was not granted fair opportunity.
11. The Enquiry Officer submitted his report on 13.3.87 after proceeding ex-parte the petitioner after his failure to persuade him to participate in the enquiry. However, the enquiry proceedings were re-opened and fresh opportunity was directed to be given to the petitioner to cross-examine prosecution witnesses with the help of the Defence Assistant. The petitioner was also given fresh opportunity to lead defence evidence. Earlier, Enquiry Officer was changed at the behest of the petitioner and the respondent did not find any cogent reason or occasion to change the Enquiry Officer again on the ground of bias against the petitioner. Counsel for the respondent also invited attention of the Court to Clause 34 (ii) of the Bye-laws of the respondent no. 1 Institute & Rule 25 of CCS (CCA) Rules, whereby remedy of filing an preferring appeal to the Appellate Authority i.e., the Governing Body of the respondent no. 1 Institute from the order of the Disciplinary Authority has been provided. The counsel for the respondent relied upon the judgments of the Apex Court entitled
18. At another place, the court observed:
We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent Officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority mast say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that words in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2) There is no doubt that after the report is received, the appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not. It is only if the findings recorded in the report against the government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him. But this dose not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer.
19. In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed by the Dy. Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved.
12. Further, in order to support his contention that all cases where penalty was imposed prior to 20.11.90 without providing copy of the Enquiry Report to the petitioner were saved by the decision of the Constitution Bench of the Apex Court in
33. Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the enquiry officer''s report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges, before the Forty-second Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the Forty-second Amendment of the Constitution which abolished the second stage of the inquiry, viz. the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E. Bashyan case 17 by the two learned judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K.C. Asthana case 2 no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan case 3 that the question squarely fell for decision before this Court. Hence till November 20, 1990, i.e., the day on which Mohd. Ramzan Khan case 3 was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan case 3 that Court laid down the law. That decision made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the enquiry officer''s report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.
13. In order to support his contention that while exercising jurisdiction of judicial review under Article 226, High Court may not go into re-appreciation or sufficiency of evidence the counsel for the respondent has relied upon the judgment of the Supreme Court in UOI vs. P.P. Tiwari 2006 (1) SCC 388. The relevant portion of the said judgment is reproduced below:
10. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter.
11. Lord Greene said in 1948 in the famous Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service (called the CCSU case) summarised the principles of judicial review of administrative action as based upon one or the other of the following viz. illegality, procedural irregularity and irrationality. He, however, opined that "proportionality was a "future possibility".
In B.C. Chaturvedi case it was observed: (SCC p. 762, Para 18)
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If he punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
14. In reply to the submissions made by counsel for the respondents, the counsel for the petitioner argued that in absence of any statutory rules or regulations regarding appeal to the Governing Body against the order passed by the Chairman of the Governing Body, what is legislatively not permitted cannot be read by implication and hence, this wit petition is maintainable. Also it was contended that notwithstanding existence of an alternative remedy under the statute, High Court can still exercise its powers under Article 226.
15. It was submitted by the counsel for the petitioner that the probationary period was extended without communication of any reason and hence it cannot be said that his work was unsatisfactory in the absence of any reason being given in this regard.
16. While disputing the issue of his being non-cooperative and denying that he refused to accept the chargesheet, it was contended that the respondent had deliberately sent the chargesheet by registered post as nobody was at home to receive it. Further, nobody was willing to act as a defence assistant as the institute represented that it was not a government organization and so anybody action as a defence assistant would not be entitled to any allowance. No enquiry report was submitted to the petitioner by the I.O. and hence, it cannot be said that the petitioner was non-cooperative.
17. While, denying that Mr. Verma was called only to produce original records, it was contended that Sh. R.K. Verma was a law graduate and duly participated in the inquiry proceedings. While, countering the allegation of adopting dilly-dally tactics by the petitioner it was contended that the official higher in rank to Mr. Saini informed that Mr. Saini was already acting as Defence Assistant in two matters, hence, he could not act as Defence Assistant to represent the petitioner. While, petitioner was trying to engage a Defence Assistant, the I.O. Proceeded with the enquiry on day-to-day basis and prepared the report without giving opportunity of being heard. Even after appointment of Mr. Juneja, without ensuring his presence the I.O. had proceeded to record statements of witnesses in the absence of the petitioner. Again, due to death of petitioner''s uncle the petitioner along with the Defence Assistant could not appear before 17th February, 1987.
18. The petitioner who at the relevant time was a Research Officer on probation in the Department of Re-productive Bio Medicine National Institute of Health and Family Welfare faced a departmental inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as certain charges of misconduct were levelled by the department against him. Vide letter, dated 4.5.1989, major penalty of removal was imposed on him and aggrieved with the same, challenge has been made in the present petition seeking quashing of the said order as well as seeking reinstatement with back wages.
19. As would be seen the petitioner has taken number of objections legal and factual both so as to assail the findings of the inquiry officer as well as the order of removal passed by the disciplinary authority. On the other hand, besides taking other objections the respondent had taken a preliminary objection to the very maintainability of the present writ petition on account of the failure of the petitioner to avail the alternative remedy by filing appeal before the Appellate Authority under Clause 34 (ii) of the bye laws by respondent No. 2 institute read with Rule 25 of CCS (CCA) Rules. Considering the fact that the present writ petition is pending disposal before this Court for the last more than 16 years no useful purpose will be served to relegate the petitioner to the forum of Appellate Authority even if the plea of availability of alternative remedy to the petition of the respondent is accepted. Even otherwise, it is no more res integra that existence of an alternative remedy does not absolutely bar the remedy of invoking the writ jurisdiction of this Court more particularly when one complains breach of Fundamental Rights or violation of any Statute, Law or Enactment or violation of principles of natural justice.
20. Dealing with the next contention raised by the petitioner that he was not allowed to engage the services of a lawyer as defence assistant, I am of the view that the objection taken by the petitioner is devoid of any merit. It is a settled legal position that it is only in those cases where the presenting officer appointed by the disciplinary authority is a legal practitioner, the assistance of legal practitioner can be made available to the delinquent employee on the satisfaction of the disciplinary authority who will exercise his discretion depending upon the facts and circumstances of each case. In the present case, allegation of the petitioner is that one Mr. R.K. Verma was present throughout the entire inquiry proceedings to assist the presenting officer, but nowhere it is the case of the petitioner that the said R.K. Verma himself was appointed as a presenting officer. As per the respondent, Mr. R.K. Verma was working as Section Officer, in charge of Administrative Section of the Institute and he was required to be present to produce the original records. Presence of such an officer during the inquiry proceedings could not have given any right to the delinquent employee to engage services of a legal practitioner simply on account of the fact that such officer possessed a law degree. The position would have been different had the presenting officer himself been the legal practitioner, which is not the case here.
21. Time and again, the petitioner was given opportunity to engage services of defence assistant but the petitioner himself failed to avail the opportunity granted by the inquiry officer even after re-opening of the inquiry proceedings. The proceedings before the inquiry officer could not have been prolonged for unduly long time due to the inaction on the part of the petitioner in engaging services of the defence assistant vide letter dated 22.12.1986 the petitioner was advised to arrange for a defence assistant for the inquiry to be held on day to day w.e.f. 12.1.1987. Even vide letter dated 13.1.1987, the petitioner was duly notified about the proceedings and the officer before whom the inquiry proceedings commenced and it was for the petitioner to have nominated any office as his defence assistant. It was also notified to the petitioner that he could not be permitted to engage legal expert/practitioner as his defence assistant because of the fact that the presenting officer before the inquiry officer was not a legal practitioner. Even the request of petitioner made vide letter date 21.2.1987 to engage the services of one Mr. K.L. Juneja as a legal assistant was duly forwarded by he respondent and it was made clear to the petitioner that the witnesses will be available for cross examination on 9.2.1987 and by that time he should be ready to arrange the services of a defence assistant. The inquiry officer had submitted his report on 13.3.1987 after proceeding exparte against the petitioner and when the proceedings were reopened, again also, no steps were taken by the petitioner to engage services of a defence assistant. Considering the entire conduct of the petitioner, it cannot be said that the inquiry officer had misconducted the proceeding for not affording due and adequate opportunity to the petitioner to engage services of a defence assistant.
22. With regard to the contention of the counsel for the petitioner that the inquiry officer had failed to follow the instructions given by respondent No. 1 after inquiry was re-opened, the petitioner in his letter dated 28.12.1987 has duly admitted that he along with this defence assistant Sh. K.L. Juneja had inspected all the 17 documents except one documents listed at serial No. 12 dated 25.1.1985 which as per the petitioner, was made available to him for inspection. In the said letter the petitioner also sought inspection of some additional documents. The petitioner himself stated in the said letter that he did not feel proper to disclose further relevancy as a disclosure of relevancy would mean disclosing his defence.
23. The grievance of the petitioner that the inquiry officer had failed to follow the instructions given by respondent No. 1, thus, cannot sustain as throughout the proceedings before the inquiry officer even after reopening of the inquiry, the petitioner remained totally uncooperative and was creating hindrance in the progress of inquiry proceedings. The letter dated 22.9.1988 written by the said inquiry Officer to the Director clearly highlights the helplessness of the Inquiry Officer due to the conduct of the petitioner. The petitioner, thus cannot take advantage of his own wrongs and uncooperative attitude and then put blame on the conduct of the inquiry officer.
24. Dealing with next contention raised by the counsel for the petitioner that the Enquiry Officer failed to give any reason to justify the conclusion in violation of sub rule 23(D) of Rule 14 of CCS (CCA) Rules, I find that there is some merit in the submission made by the counsel for the petitioner. It is a settled legal position that the disciplinary is in the nature of quasi judicial inquiry and the minimum expectation from the enquiry officer is that the report given by him must be reasoned one and the same cannot be an ipse dixit of the enquiry officer. Merely giving a reference to the statements made by various witnesses during the course of the evidence of the prosecution without discussing the same in the enquiry report clearly proved failure on the part of the enquiry officer to establish linkage to show as to how such statement made by the witness goes to prove a particular charge against the delinquent official. To state that the statement of SW-1 and the documentary evidence in Ex-X-1 at pages 2, 3, 4, 10, & 11 are relevant regarding Article of Charge No. 1 is not the correct method to hold the delinquent official guilty of such a charge. While holding the delinquent official as guilty of charge no. 1, the inquiry officer observed that there is plenty of evidence pointing out to the fact that Dr. C.P. Rai is not interested in the job he was appointed for and therefore, he was found guilty of such charge. Similarly, for holding the petitioner guilty of charge no. IV, the enquiry officer held that the evidence is quite convincing proving the charge against him of quarrelling with the LDC on duty. Likewise for holding the appellant guilty for charge no. IV, it was held that there is sufficient evidence to prove that he had broken the door of microscope room and therefore he was held guilty. Such findings without establishing any linkage with the evidence produced on record by the prosecution is in clear violation of sub rule 23(D) of Rule 14 of CCS (CCA) Rules. The Apex Court in the judgment of
5. We have extracted the charges famed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhva Pradesh Industries Ltd. vs. Union of India 1 this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar vs. State of U.P. 2 this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination base on such proceeding disclosing non-application of mind would be unsustainable.
25. In view of the said legal position the inquiry report submitted by the enquiry officer holding disciplinary enquiry for immediate removal suffers from infirmity and illegality on account of the violation of sub rule 23(D) of Rule 14 of CCS (CCA) Rules and therefore, the same is not sustainable in the eyes of law. Even otherwise, the disciplinary authority has imposed major punishment of removal of the petitioner from service, although out of seven charges, three were held to be proved against him. The three charges which were proved against the appellant even if the same are taken to have been proved against the petitioner are not so grave in nature warranting dismissal of appellant from his service. The punishment of removal is therefore totally disproportionate to the gravity of said three charges proved against the petitioner.
26. It is a settled legal position that normally the court would not substitute its own decision on the order of punishment passed by the disciplinary authority and it is only in a case where it shocks the conscience of the Court, then only the same can be interfered. In the present case after taking into consideration the proven charges against the appellant certainly, the of removal shocks the conscience of the court and therefore also the impugned order is illegal, perverse and unconscionable. Since the present writ petition filed by the petitioner succeeds on these two grounds, therefore, I do not feel inclined to discuss other contentions raised by the parties. The impugned order dated 4.5.89 is quashed and consequently the respondents are directed to reinstate the petitioner with continuity of service and grant of 50% back wages. The petitioner is not found entitled to claim full back wages as he himself was responsible for causing delay in the expeditions disposal of disciplinary proceedings. In view of the above position, the writ petition is allowed.
