IMPORTANT POINT
In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

Headnote:Service Law-Central Civil Services (Conduct) Rules, 1964- Rules 3(1)(ii) , 3(1)(iii) - Appellant, a Security Assistant, was proceeded departmentally for unauthorisedly being absent from duty and was dismissed from service-Challengethereagainst-Appellant alleged bias against his Controlling Officer, with specific stand that he was prevented by him from signing the attendance register and to attend the office- In a Departmental proceeding, if allegation of unauthorised absence from duty is made, disciplinary authority is required to prove that absence is wilful, in absence of such finding, absence would not amount to misconduct-Instantly Inquiry Officer on appreciation of evidence though held that appellant was unauthorisedly absent from duty but failed to hold absence was willful-The disciplinary authority as also Appellate Authority, failed to appreciate the same and wrongly held appellant guilty- Complainant against whom appellant alleged bias refused to appear before Inquiry Officer in spite of service of summons- Two other witnesses, made no statement against appellant, and one of them stated that he had no knowledge about absence of appellant- Ignoring said evidence, on the basis of surmises and conjectures, Inquiry Officer held the charge proved- Impugned orders of dismissal passed by disciplinary authority, affirmed by Appellate Authority, Central Administrative Tribunal and High Court set aside-Appeal allowed (Paras 19 to 25)
       Facts of the Case :
        Appellant, a Security Assistant, was proceeded departmentally for unauthorisedly being absent from duty and was dismissed from service. Appellant however alleged bias against his Controlling Officer, with specific stand that he was prevented by him from signing the attendance register and to attend the office.
       Findings of the Court :
        The Court held that in a Departmental proceeding, if allegation of unauthorised absence from duty is made, disciplinary authority is required to prove that absence is wilful, in absence of such finding, absence would not amount to misconduct.Instantly Inquiry Officer on appreciation of evidence though held that appellant was unauthorisedly absent from duty but failed to hold absence was willful. The disciplinary authority as also Appellate Authority, failed to appreciate the same and wrongly held appellant guilty. Complainant against whom appellant alleged bias refused to appear before Inquiry Officer in spite of service of summons. Two other witnesses, made no statement against appellant, and one of them stated that he had no knowledge about absence of appellant. Ignoring said evidence, on the basis of surmises and conjectures, Inquiry Officer held the charge proved. Impugned orders of dismissal passed by disciplinary authority, affirmed by Appellate Authority, Central Administrative Tribunal and High Court were set aside.

Judgement Key Points

Certainly. Here are the key legal points derived from the provided document:

In departmental disciplinary proceedings, the disciplinary authority must establish that the alleged absence from duty was wilful. Without a specific finding of wilfulness, such absence does not constitute misconduct (!) (!) .
The inquiry officer's appreciation of evidence must be thorough, and the findings should be based on relevant and admissible evidence. Relying on surmises, conjectures, or irrelevant facts invalidates the conclusion of guilt (!) (!) (!) .
The burden of proof in departmental proceedings is not as stringent as in criminal trials, but the evidence must demonstrate a preponderance of probability. The inquiry officer cannot shift the burden or ignore relevant evidence, especially evidence supporting the defense (!) .
The absence of the complainant or key witnesses from the inquiry, especially when they refuse to testify or provide no knowledge about the incident, weakens the case against the employee and necessitates careful consideration of such evidence or lack thereof (!) (!) .
An employee's defense that they were prevented from attending duty or signing attendance registers must be considered, and the inquiry must determine whether the absence was due to compelling circumstances beyond the employee's control (!) (!) .
Disciplinary actions based on unsubstantiated or conjectural findings, without establishing the wilfulness of the misconduct, are liable to be set aside by the courts or tribunals (!) .
The court or tribunal has limited jurisdiction and can review disciplinary proceedings to ensure they are conducted fairly, legally, and based on relevant evidence. If the proceedings are found to be defective, the orders can be quashed, and the employee may be reinstated (!) (!) .
When the disciplinary proceedings are found to be flawed, including failure to consider relevant defenses or evidence, the appellate authority's decision can be overturned, and the employee can be reinstated with or without back wages, depending on the circumstances (!) .
The principles of natural justice require that the employee be given a fair opportunity to defend themselves, and any bias or denial of such opportunity can invalidate the disciplinary action (!) (!) .
The severity of the penalty, such as dismissal, should be proportionate to the misconduct established, and if misconduct is not proven, the order of dismissal can be set aside (!) .

Please let me know if you need further analysis or specific legal advice based on these points.

JUDGMENT

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. The appellant, who was working as Security Assistant, was proceeded departmentally on 2nd September, 1996 for the following charge:

“While functioning as SA(G) in the office of Deputy Central Intelligence Officer, Palanpur, under Subsidiary Intelligence Bureau, Ahmedabad, unauthorisedly absented from duty between 3.10.1995 and 7.11.1995, 9.11.1995 and 10.12.1995 and from 10.12.1995 to 2.8.1996, thereby violating Rule 3(1)(ii) 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.”

3. On receipt of charge-sheet the appellant denied the allegation by his reply dated 7th October, 1996 and also alleged bias against his Controlling Officer, Mr. P. Venkateswarlu with specific stand that he was prevented by him from signing the attendance register and to attend the office. He also explained reasons of absence for certain period for which he had applied for leave.

4. During the pendency of the departmental proceedings, the appellant was transferred to another place which he challenged before the Central Administrative Tribunal alleging bias against his superior Officer. The Central Administrative Tribunal by order dated 15th November, 2000 set aside the order by holding ‘the order of transfer is vitiated due to malice in law and fact’ which was affirmed by the Gujarat High Court on 17th August, 2001. After about seven years Inquiry Officer submitted a report on 28th April, 2003 and held that the charge has been proved against the appellant beyond all reasonable doubt, holding him guilty of violating Rule 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.

5. A copy of the Inquiry Report was forwarded to the appellant who submitted a reply on 13th July, 2003 and raised following objections:

(i) Mr. Venkateswarlu, the then DCIO, Palanpur who was the complainant against the appellant about absence from duty, against whom the appellant has alleged malice and was the prime witness, refused to attend the inquiry;

(ii) the Report of the Inquiry Officer is based on statements of two prosecution witnesses, who have not proved the charges;

(iii) the Inquiry Officer failed to discuss the evidence relied on by him; (iv) the attendance register for the relevant period was not produced and

(v) the defence taken by him that he was not allowed to attend duty has not been dealt with by the Inquiry Officer.

The Joint Deputy Director, SIB, thereafter, dismissed the appellant from service by an order dated 02.12.2003.

6. The appellant challenged the order of dismissal before Central Administrative Tribunal which by order dated 4th May, 2004 refused to entertain the application and allowed the appellant to avail alternative remedy of appeal. Accordingly, the appellant preferred an appeal on 17th May, 2004 before the Director, Intelligence Bureau highlighting lapses committed by the Inquiry Officer, and also alleged bias against the controlling officer who prevented him from performing the duty and to sign the attendance register. The Appellate Authority without discussing the aforesaid objections rejected the appeal by order dated 30th November, 2011 and observed as follows:

“........the undersigned has come to the same conclusion that the appellant should have been discharged from service under the Temporary Service Rules when the first instance of indiscipline on his part was noticed.

..........the charge against the appellant, Shri K.B. Parmar that he remained absent unauthorisedly has been established beyond doubt..........

Now, therefore, the undersigned, being the competent Appellate Authority hereby rejects the appeal dated 17.5.2004 submitted by Shri K.B. Parmar, against the order of Disciplinary Authority dated 2.12.2003 both on account of being time-barred as well as having no merit and confirms the penalty of removal from service on the said Shri K.B. Parmar vide order dated 2.12.2003.”

7. The appellant challenged the order of punishment and the appellate order in Origi

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2012 Supreme(SC) 139

2012 (2) Supreme 254SUPREME COURT OF INDIAG.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.Krushnakant B. Parmar — AppellantversusUnion of India & Anr. — RespondentsCivil Appeal No.2106 of 2012(Arising Out of Slp(C)No.15381 of 2006)Decided on : 15-2-2012

IMPORTANT POINT In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

2012 (2) Supreme 254
SUPREME COURT OF INDIA
G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.
Krushnakant B. Parmar — Appellant
versus
Union of India & Anr. — Respondents
Civil Appeal No.2106 of 2012
(Arising Out of Slp(C)No.15381 of 2006)
Decided on : 15-2-2012

IMPORTANT POINT
In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.