Service matter – Dismissed from service for unauthorized absent – refused to receive the witnesses and refused to receive Medical certificates – Single judge High court allowed the writ and set aside the dismissal order – DB bench reversed the single Judge – Apex court set aside the order of DB and held that In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate.The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.=
The appellant was working with the respondent-Bank since 17th
February, 1984 as Clerk-cum-Cashier.
While in service he remained absent
from duty from 11th December, 1989 to 24th October, 1990 (approximately 10
and 1/2 months) without obtaining prior permission of the competent
authority.
For the said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the Marwar Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October, 1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him which were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and submitted
the same after much delay.=
During the inquiry
the appellant submitted list of seven defence
witnesses. However, Inquiry Officer called only two witnesses and refused
to call rest of the five witnesses on the ground that the presenting
officer of the Bank was ready to answer the questions on behalf of them as
may be raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses as
“untrustworthy” and held the appellant guilty for the charges.=
Finally, after hearing the appellant, the Disciplinary Authority held the
charges to be proved and removed the appellant from service by order dated
17th October, 1994.=
The learned Single Judge by judgment dated 31st March, 2009 allowed
the writ petition, quashed the order of removal and directed the respondent
to reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant case the reason given for not calling the witnesses named
by the delinquent employee is absolutely vague and irrelevant. It does not
and cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the charged
employee for defending himself. A definite prejudice, therefore, is caused
by not calling the witnesses named by the petitioner without examining
their relevance and ultimately holding him guilty for the charges in
defence of which he indicated his desire to examine those witnesses.”=
But D.B. Bench Reversed the single judge =
Apex court held that
From the plain reading of the charges we find that the main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10
and ½ months), for which no prior permission was obtained from the
competent authority.
In his reply, the appellant has taken the plea that
he was seriously ill between 11.12.89 and 24.10.90, which was beyond his
control;
he never intended to contravene any of the provisions of the
service regulations.
He submitted the copies of medical certificates issued
by Doctors in support of his claim after rejoining the post.
The medical
reports were submitted after about 24 days.
There was no allegation that
the appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate.
It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by the
appellant were forged or fabricated or obtained for any consideration
though he was not ill during the said period.
In absence of such evidence
and finding, it was not open to the Inquiry Officer or the Disciplinary
Authority to disbelieve the medical certificates issued by the Doctors
without any valid reason and on the ground of 24 days delay.
16. In view of the observation made above, the order passed by the
Division Bench of the High Court cannot be upheld.
We, accordingly, set
aside the impugned judgment and order dated 10th May, 2012 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No.
850 of 2009 and upheld the order passed by the learned Single Judge dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995.
The
respondents are directed to implement the direction and order dated 31st
March, 2009 issued by the learned Single Judge within four weeks from the
date of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No
costs.
advocatemmmohan 
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