Bombay High Court

MR. CHARANJIT SINGH BRIGHT ,versusNATIONAL INSURANCE COM. LTD. AND ANR

Decided: 9 October 2026
Disposal: Disposed Off

Holding

The removal order was void because the authority dispensed with the mandatory departmental inquiry under Rule 30(ii) and (iv) without recording any reasons, violating natural justice and the procedural safeguards of Article 311(2).

Summary

The petitioner, a long‑serving employee of National Insurance Company Ltd., claimed that repeated transfers aggravated his serious health conditions, leading to prolonged medical leave. The employer issued charge sheets and, without conducting a departmental inquiry, removed him from service on 8 April 2013, invoking Rule 30(ii) and (iv) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975. The petitioner challenged the removal, arguing violation of natural justice, the requirement to record reasons for dispensing with an inquiry, and that his absence was due to illness, not abandonment. The High Court examined the statutory provisions, relevant Supreme Court precedents, and found the employer had failed to record any reasons, rendering the removal order illegal and void. Consequently, the Court quashed the removal order and the appellate order, directed payment of back wages for periods actually worked, and ordered release of retirement and provident fund benefits with interest.

Issues considered

The validity of the removal order passed without a departmental inquiry under Rule 30(ii) and (iv).
Whether the employer complied with the requirement to record reasons for dispensing with an inquiry as mandated by the 1975 Rules and Article 311(2).
Whether the petitioner's prolonged absence constitutes abandonment of service.
Whether the writ petition is maintainable despite being a contractual dispute.

Legislation cited

General Insurance Act, 1978 — s. 21, 22
General Insurance (Conduct, Discipline and Appeal) Rules, 1975 — s. 23, 25, 30

Subjects

Removal from service
Departmental inquiry
Natural justice
Rule 30
Abandonment of service
Writ petition
Back wages
Retirement benefits
Article 311
General Insurance Rules

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3259 OF 2018

Mr. Charanjit Singh Bright ...Petitioner
Vs.
National Insurance Company Ltd. and Another ...Respondents

-----------------

Mr. Rishi Ashok a/w. Mr. Amogh Patkar i/b. Bekay Legal, for the Petitioner.
Mr. Vipul Shukla i/b. S. Shenoy and Associates, for Respondent Nos.1 and
2.
-----------------

Digitally
signed by
MAMTA
MAMTA AMAR
AMAR KALE
CORAM :
R. I. CHAGLA AND
KALE Date:
2026.10.09
19:26:27
+0530
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON : 29th AUGUST 2026
PRONOUNCED ON : 9th OCTOBER 2026

ORAL JUDGEMENT (per FIRDOSH P. POONIWALLA, J.)

1. This Writ Petition has been filed seeking the following reliefs:

(a) This Hon’ble Court be pleased to set aside and
quash the Inquiry Orders passed by the Respondents dated
01.04.2009.
(b) This Hon’ble Court be pleased to set aside and
quash the Ex-parte Inquiry Order passed by the
Respondents dated 30.11.2009.
(c) This Hon'ble Court be pleased to set-aside and
quash the order dated 8.4.2013 passed by the Respondents
terminating the Petitioner from Respondent No.1's service
w.e.f 08.04.2013 and the Respondents be directed to pay
full back wages and consequential benefits till age of

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superannuation of the Petitioner.
(d) This Hon'ble Court pleased to pass an order, writ
and direction against Respondents to release all retirement
benefits including pension withheld by Respondents on his
superannuation from services with an interest of @ 18%
from the aforesaid date till the date of filing of this Petition
on the basis of his actual salary structure without any
deductions as imposed by the Respondents.
(e) That the Hon'ble Court be please to direct to
release the Provident Fund dues of the Petitioner alongwith
the interest as per the trust rules of the Respondents
company.
(f) The Respondents be directed to pay the pension
with arrears to the Petitioner as per the prevailing practice.
(g) Ad-Interim and interim reliefs in terms of the
aforesaid; and
(h) Such other reliefs as this Hon'ble Court may deem
fit and proper in the interest of justice and in the facts and
circumstances of the case.
(i) This Hon'ble Court be pleased to set aside and
quash the Order dated 5th June 2017 (31st May 2017)
passed by the Appellate Authority and the Respondents be
directed to pay retiral dues and consequential benefits.

FACTS

2. The facts as stated by the Petitioner in the Petition are as

follows:

3. The Petitioner joined Respondent No.1 as Development Officer,

Grade II. Since then, the Petitioner has served Respondent No.1 in various

positions such as Assistant Administrative Officer, Assistant Manager etc.,

According to the Petitioner, his above service record in Mumbai was clean

and unblemished. He had gained wide appreciation and goodwill from the

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Manager and other Senior Officers of Respondent No.1. According to the

Petitioner, he had given 36 years of service to Respondent No.1.

4. In 2005-06, the Petitioner was undergoing several serious

health related issues and diseases for which the Petitioner was required to

take treatment from specialist and renowned doctors and medical

practitioners in Mumbai. The Petitioner was suffering from heart disease,

hypertension, obesity, degenerative spinal disease, sleep apnea, fatty lungs,

kidney related issues and is still undergoing regular medication, treatments,

medical checkups etc. in Mumbai. The Petitioner had further undergone a

surgery for osteoarthritis on both knees at Seven Hills Hospital in Mumbai.

5. In 2005, Respondent No.1 issued an order of transfer from

Mumbai to Vapi in the State of Gujarat.

6. Although, the Petitioner was transferred to Vapi Gujarat, before

the Petitioner could join the transferred place of work, he was issued

another transfer order to report at Pune, Maharashtra.

7. As per the directions of Respondent No.1, the Petitioner

reported at the office of Respondent No.1 at Pune i.e. Regional Office of

Respondent No.1. The Petitioner immediately made arrangements for

settling at Pune by shifting his family from Mumbai to Pune. As a matter of

shock, Respondent No.1 again issued a transfer order, after 15 days of the

Petitioner working at Pune Regional Office, to the Pimpri Divisional Office.

The Petitioner was mentally stressed due to the frequent transfers inflicted

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by the Respondents. The Petitioner, however, accepted the said third

transfer and accordingly reported at the Respondent No.1's Divisional Office

at Pimpri, Maharashtra. The Petitioner was not at all keeping good health

and was required to travel to Mumbai to take medical treatment. The

Petitioner was not getting proper care at Pimpri and his health condition

further deteriorated.

8. Considering the advice from his doctors and medical

practitioners to shift to Mumbai on account of severe health issues and to

avoid long distance travel, the Petitioner, on several occasions, requested

the Respondents to transfer the Petitioner to Mumbai. However, there was

no response from the Respondents and, hence, the Petitioner continued to

attend the Pimpri Office ignoring the severe ailments suffered by him. The

Petitioner has annexed as Exhibit A (Colly) to the Petition the copies of

initial medical reports pertaining to the Petitioner's ailments.

9. In 2006, while attending Respondent No.1’s Pimpri Office, the

Petitioner felt uneasiness, fainted and fell unconscious. When the Petitioner

regained consciousness, he was feeling very uneasy, badly perspiring and

was having severe difficulty in breathing. According to the Petitioner, none

of the officials at Pimpri office either helped or hospitalized the Petitioner.

They did not call for the doctor and remained as mute spectators despite

witnessing the Petitioner struggling for his life. It is the case of the

Petitioner that, after sometime, the Petitioner himself contacted his doctor

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and medical practitioners in Mumbai and they advised the Petitioner to

immediately take two tablets of Sorbitate, which the Petitioner requested

his Office Assistant to buy on his behalf and paid the Office Assistant the

requisite amount for buying the aforesaid tablets. After the consumption of

the aforesaid tablets, the Petitioner felt temporary relief and immediately

thereafter hired an ambulance and attended a nearby Government Hospital

at Pimpri, namely LTMJ Hospital. At LTMJ Hospital, the Petitioner was

given preliminary and first aid treatment.

10. During the course of his treatment at LTMJ Hospital, the

Petitioner was first advised to be shifted to any reputed hospital in Mumbai.

The family members of the Petitioner shifted the Petitioner to a Mumbai

Hospital for better and advanced treatment. The Petitioner suffered a severe

setback on his health. The Petitioner had undergone mental and physical

depression due to the pathetic situation in and around Pune region. The

Petitioner realized that he had to take better medical care from specialized

doctors in Mumbai. The Petitioner made a fervent request to his superiors

and requested them to transfer him to Mumbai for taking medical care. The

Petitioner repeatedly appraised his superiors about his health condition

from time to time and requested for medical leave to the maximum extent.

11. After the aforesaid incident at Pimpri, the Petitioner was

physically weak and his health condition deteriorated substantially. The

Petitioner was further diagnosed with multiple sicknesses and was running

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after doctors for regular medical treatment. Most of the time, Petitioner was

bedridden as he was suffering from obesity and hypertension.

12. It is the case of the Petitioner that, due to the health reasons,

he could not attend his job at Pimpri and remained on medical leave.

During the relevant time, the Respondents appointed a retired Assistant

Commissioner of Police (ACP) to inquire into the genuineness of the

Petitioner's health issues and the reason for his absenteeism. The said ACP

visited the Petitioner in Mumbai and witnessed the severe bedridden

condition of the Petitioner. Since the Petitioner was unable to move around,

the said ACP extended help to the Petitioner to take him to the Holy Spirit

Hospital, Mumbai. The said ACP thereafter submitted his Inquiry Report to

the Respondents, which was neither disclosed nor shared by the

Respondents at any point of time. The Respondents ignored the said Report

of the ACP and started harassing the Petitioner without considering his

request to transfer him from Pimpri to Mumbai. The Petitioner could not

abide by the aforesaid directions of the Respondents to report to the Pimpri

Office on account of Petitioner's serious health condition and the same was

explained to the Respondents.

13. Thereafter, Respondent No.1 issued a Charge Sheet vide

Memorandum dated 10th July 2007 inter alia leveling the following charges

against the Petitioner.

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a. The Petitioner colluded with the officials and

private parties and did not disclose vital information

regarding Claim to his Superior Officer and allowed

approval of forged claim and release of claim amount.

b. The Petitioner, as an Authorised Signatory,

colluded with the other Signatory and Private Party and

signed a cheque for Rs.79,000/- in favour of Popular Car

Bazaar, though the Disbursement Voucher was drawn and

authorized in favour of Shri. K. R. Thampi, thus causing loss

to Respondent No.1.

14. In this regard, the inquiry officer submitted a Report to the

Disciplinary Authority, who passed an Order dated 1 st April 2009 imposing a

penalty of “Reduction in basic pay by 2 stages.”

15. Thereafter, Respondent No.1 issued another Charge Sheet to

the Petitioner. The Petitioner, through his Advocate’s letter dated 23 rd

August 2008, requested the Respondents to conduct an Inquiry at Mumbai

so as to participate effectively in the same. The Petitioner also requested to

appoint a Commission to record his evidence at his residence/ hospital.

However, despite the said Notice, the Respondents arbitrarily proceeded

with an ex-parte inquiry and imposed a penalty vide Order dated 13 th

November 2009. The penalty imposed by the said Order dated 13 th

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November 2009 was “Reduction of basic pay by four stages."

16. Despite imposing the aforesaid two punishments on the

Petitioner, Respondent No.1, without notice and without conducting an

inquiry, passed an Order darted 8 th April 2013 against the Petitioner.

According to the Respondents, the Petitioner remained absent for more than

600 days for the period from 2008 till then. The Respondents also rejected

the Voluntary Separation Scheme applied for by the Petitioner. As per the

said Order, the Respondents imposed a penalty of "Removal from service

which shall not be a disqualification for future employment."

17. Aggrieved by the aforesaid Order dated 8th April 2013, the

Petitioner filed an Appeal before the Appellate Authority.

18. Since the Respondents were not giving any response to the

Appeal of the Petitioner, the Petitioner was constrained to file a Writ

Petition before this Court, being Writ Petition No. 14377 of 2016, and this

Court was pleased to pass an Order dated 4 th May 2017 directing the

Respondents to decide the pending Appeal.

19. The Petitioner served a copy of the said Order dated 4 th May

2017 to the Respondents and called upon them to decide the pending

appeal vide his letter dated 31st May 2017. By an Order dated 5 th June

2017, the Petitioner’s Appeal was rejected.

20. In these circumstances, the Petitioner filed the present Writ

Petition.

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21. By an Order dated 6th January 2020, this Court issued Rule in

the present Writ Petition.

22. The Respondents have filed an Affidavit-in-Reply of one

Pramod Kumar, Regional Manager of Respondent No.1, Pune Regional

Office, affirmed on 27th July 2023.

PETITIONER’S SUBMISSIONS :

23. Mr. Rishi Ashok, the learned Counsel appearing on behalf of

the Petitioner, submitted that the impugned Order of Removal dated 8 th

April 2013 is illegal and void as it was passed without holding any

Departmental Inquiry. Mr. Ashok submitted that the impugned Order dated

8th April 2013 imposes a major penalty of Removal from Service solely on

the allegation that the Petitioner remained absent from duty after 2008.

Further, before imposing such penalty, the Respondents did not issue any

Charge Sheet regarding the period of absence, did not appoint any Inquiry

Officer, did not record any oral or documentary evidence, did not examine

witnesses and did not afford the Petitioner an opportunity to defend

himself. The mandatory disciplinary procedure was completely bypassed.

Mr. Ashok submitted that the General Insurance (Conduct, Discipline and

Appeal) Rules, 1975 (hereinafter referred to as “the 1975 Rules”)

contemplate that a major penalty such as Removal from Service can only be

imposed after a regular Departmental Inquiry conducted in accordance with

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the principles of natural justice. The Respondents could not lawfully

dispense with the inquiry altogether while imposing the graver punishment

of Removal from Service. Mr. Ashok submitted that the impugned Order is

therefore vitiated by complete violation of the principles of natural justice,

the Rule of audi alteram partem, the mandatory disciplinary procedure

prescribed in the 1975 Rules and Articles 14 and 21 of the Constitution of

India. Mr. Ashok submitted that an Order imposing a major penalty

without holding a Departmental Inquiry is a nullity in law.

24. Further, Mr. Ashok submitted that the Respondents have sought

to justify the impugned Order of Removal dated 8 th April 2013 by invoking

Rule 30(ii) of the 1975 Rules which permits dispensing with the

Departmental Inquiry only when the Competent Authority is satisfied, for

reasons to be recorded by it in writing, that it is not reasonably practicable

to hold an Inquiry in the manner prescribed under the Rules.

25. Mr. Ashok submitted that the plain reading of Rule 30(ii) of the

1975 Rules makes it abundantly clear that the power to dispense with a

Departmental Inquiry is an exception to the normal rule and can be

exercised only upon the Competent Authority recording specific, objective

and cogent reasons in writing demonstrating why it was not reasonably

practicable to hold such Inquiry. The requirement of recording reasons is

mandatory and is not an empty formality. Mr. Ashok submitted that, in the

present case, the impugned Order of Removal dated 8 th April 2013 is

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conspicuously silent on this mandatory requirement. The Disciplinary

Authority has neither recorded any reasons nor disclosed any

circumstances, whatsoever, to indicate why it was allegedly not reasonably

practicable to conduct a regular Departmental Inquiry. Mr. Ashok submitted

that the mere invocation of Rule 30(ii), without recording the requisite

satisfaction founded on objective material, is fully insufficient in law and

vitiates the impugned Order.

26. In support of his aforesaid submissions, Mr. Ashok relied upon

the following Judgements:

a) Union of India and Another Vs. Tulsiram Patel (1985) 3

SCC 398.

b) Jaswant Singh and Others Vs. State of Punjab and Another

1991(1) SCC 362.

c) Chief Security Officer and Others Vs. Singasan Rabi Das

(1991) 1 SCC 729.

d) Manohar Lal Vs. Commissioner of Police and Others

2026 SCC OnLine SC 363.

27. Further, Mr. Ashok submitted that the Respondents have failed

to satisfy the mandatory pre-condition prescribed under Rule 30(ii). The

impugned Order does not disclose any reason, much less any compelling or

exceptional circumstances, for dispensing with the Inquiry. Mr. Ashok

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submitted that such mechanical invocation of Rule 30(ii), without

compliance with its mandatory requirements and the constitutional

safeguards underlying Article 311(2) of the Constitution of India, renders

the Order of Removal arbitrary, illegal and violative of the principles of

natural justice, and is therefore liable to be quashed and set aside.

28. Mr. Ashok submitted that the allegation of abandonment of

service under Rule 30(iv) has not been proved and the very foundation of

the Removal Order fails. In this context, Mr. Ashok submitted that the

Respondents have proceeded on the erroneous assumption that prolonged

absence automatically amounts to abandonment in service. Mr. Ashok

submitted that such an approach is contrary to settled law. Abandonment

of service is never presumed merely because an employee remains absent

for a long time. The employer must establish by cogent evidence that the

employee had a clear, unequivocal and conscious intention to permanently

sever the employer-employee relationship.

29. Mr. Ashok submitted that the facts of the present case establish

precisely the opposite. Throughout the relevant period, the Petitioner

repeatedly requested transfer to Mumbai on medical grounds, continuously

informed the Respondents of his deteriorating health, submitted medical

certificates from specialist hospitals, sought medical leave, requested that

the Inquiry be conducted at Mumbai or that evidence be recorded on

Commission due to his inability to travel, and even applied under the

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Voluntary Separation Scheme. Each of these acts demonstrate the

Petitioner's continuing intention to remain in service and is inconsistent

with the intention to abandon employment. Further, Mr. Ashok submitted

that the Respondents themselves had deputed a retired ACP to verify the

Petitioner’s illness. The ACP personally visited the Petitioner, found him

bedridden and submitted a Report to the Respondents. Instead of relying

upon this material evidence, the Respondents withheld the Report

altogether. In support of his submissions, Mr. Ashok relied upon the

Judgement of this Court in Noble Paints Private Limited Vs Mr. Ashok

Tukaram Shinde LAWS(BOM) 2003-9-66.

30. Further, Mr. Ashok submitted that the medical evidence

consistently established that the Petitioner's absence was involuntary. In

this context, Mr. Ashok submitted that the Petition is supported by extensive

medical records demonstrating that the Petitioner suffered from ischemic

heart disease, hypertension, obesity, degenerative spinal disease, sleep

apnea, kidney ailments, orthopaedic complications, repeated hospitalization

and was repeatedly advised against long-distance travel. Mr. Ashok

submitted that the Respondents did not refer the Petitioner to an

independent Medical Board nor produced any contrary medical evidence to

establish that the absence was deliberate or wilful. Mr. Ashok submitted

that hence the conclusion that the Petitioner intentionally absented himself

is therefore unsupported by evidence. Mr. Ashok submitted that, for all the

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aforesaid reasons, this Court may be pleased to allow the present Writ

Petition.

RESPONDENTS’ SUBMISSIONS :

31. Mr. Vipul Shukla, the learned Counsel appearing on behalf of

the Respondents, submitted that the present Writ Petition is wholly

misconceived, devoid of merit and is premised entirely on unsubstantiated,

selective and misleading averments. Mr. Shukla submitted that the

Petitioner had approached this Court with unclean hands, suppressing

material facts that go to the very root of the controversy and has failed to

establish any infringement of a constitutional or legal right such as would

warrant invocation of the extraordinary writ jurisdiction of this Court under

Article 226 of the Constitution of India. Mr. Shukla submitted that it is well

settled that the writ jurisdiction is discretionary and equitable in nature,

and is not available as a matter of course to a litigant who has approached

the Court with distorted or incomplete facts. In this context, Mr. Shukla

referred to the Judgements of the Hon’ble Supreme Court in B. Singh (Dr.)

Vs. Union of India, (2004) 3 SCC 363; and B.P. Singhal v. State of T.N.,

(2004) 13 SCC 673.

32. Mr. Shukla submitted that the present Writ Petition is not

maintainable as the dispute is one of purely private contractual character.

Mr. Shukla submitted that the relief claimed by the Petitioner relates

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exclusively to alleged violations of the terms and conditions of his service,

which is governed entirely by the law of contract as between the Petitioner

and Respondent No.1. Mr. Shukla submitted that it is a settled principle of

law that the enforcement of purely personal or contractual obligations

arising out of a contract of service, even where the employer happens to be

a statutory or public sector body, cannot be agitated or enforced through

the extraordinary writ jurisdiction under Article 226 of the Constitution. Mr.

Shukla submitted that what the Petitioner seeks to project as a public law

grievance what is, in substance, and in truth, nothing more than a private

law claim dressed up in constitutional vocabulary, and such an attempt does

not, and cannot, clothe this Court with jurisdiction to interfere. In this

background, Mr. Shukla placed reliance upon Judgement of the Hon’ble

Supreme Court in the case of K. K. Saksena Vs. International Commission

on Irrigation and Drainage, (2015) 3 SCC 670 and Ramesh Sanka Vs. Union

of India, (2019) 3 SCC 589.

33. Mr. Shukla submitted that the Petitioner has approached this

Court with suppression and misrepresentation of material facts. In this

context, Mr. Shukla submitted that the averments made in paragraph 7 of

the Petition to the effect that his transfer from Mumbai to Pune was effected

unilaterally and without cause, are factually incorrect and constitute a

wilful and deliberate misrepresentation intended to mislead this Court. Mr.

Shukla submitted that the record demonstrates that the said transfer was, in

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fact, effected at the Petitioner's own request, on account of his medical

constraints and the consequent need to remain closer to his family. The

attempt to now potray a transfer sought and obtained by the Petitioner

himself as an act of unilateral victimisation by the Respondents is a clear

instance of the Petitioner seeking to build a case on a foundation of

falsehood.

34. Mr. Shukla submitted that the Petitioner has conveniently and

selectively omitted to disclose, in his narration of the transfer from the Pune

Regional Office to the Pimpri Divisional Office, that he was in fact posted as

Divisional Manager of the Pimpri Office, which was barely 15 kilometres

from the Regional Office, and one that carried with it the added benefit of

eligibility for a company car, a benefit for which he would not otherwise

have qualified had he continued at the Regional Office. Mr. Shukla

submitted that the Petitioner had, in fact, availed of a car loan for the

purchase of a vehicle expressly for the purpose of commuting and for

meeting prospective clients in the course of business development, an

obligation squarely within the scope of his duties as Divisional Manager. Mr.

Shukla submitted that, in these circumstances, the transfer occasioned no

genuine hardship, whatsoever, and the grievance now sought to be raised is

wholly incorrect.

35. Mr. Shukla submitted that, however, it is well settled that the

transfer of an employee from one office to another, in the exercise of the

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employer's administrative discretion and prerogative to meet operational

and manpower requirements, is a matter falling squarely within the domain

of management function, and is not amenable to adjudication in writ

proceedings. Mr. Shukla submitted that the Petitioner has chosen not to

disclose to this Court that he remained on unauthorised leave for a

continuous period exceeding 437 days from March 2006 to December 2007,

a fact which was expressly recorded in the Disciplinary Authority's Order

dated 13th November 2009 and the same impaired the Respondent No.1-

Corporation's operational efficiency. Mr. Shukla also submitted that the

Petitioner had failed to register with the Regional Transport Office a

company financed Tata Indica motor vehicle until as late as 31 st March

2007, notwithstanding that he has already received reimbursement from

the Respondents towards the registration charges and insurance premium

of the said vehicle. Mr. Shukla submitted that such conduct involves the

receipt of monetary benefit for a statutory obligation subsequently left

unperformed for years, constituting grave misconduct in the course of

employment, and is a further material fact conspicuously and tellingly

absent from the Petition.

36. Mr. Shukla further submitted that disciplinary proceedings

were conducted in accordance with law and on well founded charges. In

this context, Mr. Shukla submitted that first inquiry arose out of a

Memorandum of Charge Sheet dated 10 th July 2007, alleging approval of a

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forged claim and collusion by the Petitioner in signing a disbursement

voucher in favour of Popular Car Bazaar, thereby causing financial loss to

Respondent No.1. Mr. Shukla submitted that the Petitioner neither

submitted a Reply nor responded to the said Memorandum, despite due

opportunity, culminating in the Order dated 1st April, 2009 imposing a

penalty of reduction in basic pay by two stages.

37. Next, Mr. Shukla submitted that the second inquiry was held

pursuant to a Memorandum of charges dated 4 th July 2008 concerning the

Petitioner's unauthorised absence for 437 days, culminating in the Order

dated 13th November, 2009 imposing a penalty of reduction in basic pay by

four stages.

38. Further, Mr. Shukla submitted that the Order dated 8 th April

2013 records that, notwithstanding the imposition of the aforesaid

penalties, the Petitioner continued to remain unauthorisedly absent from

office for further period exceeding 600 days, and in effect, abandoned his

post at the Divisional Office. Having regard to this continuing and

escalating history of unauthorised absence, the Disciplinary Authority was

constrained to impose the penalty of ‘Removal from Service’, with the

express qualification that such removal would not operate as a

disqualification for future employment. Mr. Shukla submitted that this

history, taken cumulatively, demonstrates a sustained dereliction of duty

and a callous disregard on the part of the Petitioner, for the obligations he

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owed under his contract of employment, the obligations that he has

deliberately shirked with impunity, while now seeking, before this Court, to

cast himself in the guise of a victim when he has not approached this Court

with clean hands.

39. Mr. Shukla submitted that had the Petitioner genuinely been

unable to discharge his duties as Divisional In-Charge, the appropriate and

bonafide course open to him was to seek voluntary retirement, rather than

to abandon his post for a period of 600 days between January 2008 and

April 2013, as recorded in the Order dated 8 th April 2013, an abandonment

that resulted in demonstrable financial loss to the Respondents. Mr. Shukla

submitted that the Petitioner did, in fact, subsequently apply for voluntary

retirement, but was found ineligible on account of his prolonged

unauthorised absence and the penalties already imposed upon him.

40. Further, Mr. Shukla submitted that the Petitioner is a chronic

defaulter and approached this Court to evade liability. In this regard, Mr.

Shukla submitted that the Petitioner has suppressed the material fact that

he had defaulted on both the housing loan and the auto loan availed by him

from the Respondents, in consequence whereof the Respondents were

constrained to institute recovery proceedings against him by way of Civil

Suit No. 2161 of 2017 before the City Civil Court at Dindoshi, for recovery

of Rs.6,51,727/-, and Civil Suit No.1582 of 2016 before the Court of the

Civil Judge (Senior Division), Pune, for recovery of Rs. 4,48,441/-. Mr.

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Shukla further submitted that neither of these loans stand cleared by the

Petitioner to date. In these circumstances, the present Petition is nothing

but a malafide device to project the Petitioner as an aggrieved party, when

he has defrauded the Respondents by availing of housing and vehicle loan

facilities extended to him in his capacity as Divisional In-Charge, while

simultaneously and willfully failing to discharge his duties through

prolonged unauthorised absence, and defaulting on both loans.

41. Mr. Shukla further submitted that, for all the aforesaid reasons,

the present Writ Petition should be dismissed with costs.

ANALYSIS AND FINDINGS :

42. Although, in the prayers of the Petition, the Petitioner has also

challenged the Orders dated 1 st April 2009 and 13th November 2009, in this

Judgement, we have confined ourselves to the Orders dated 8 th April 2013

and 5th June 2017, as the Petitioner’s Counsel has limited his arguments to

the Orders dated 8th April 2013 and 5th June 2017, and further, in any case,

the challenge to Orders of 2009 cannot be raised in a Petition filed in 2018

on the ground of delay and latches.

43. The Order dated 8th April 2013 has been passed admittedly

without giving any Notice or hearing to the Petitioner. Rule 25 of the 1975

Rules provides for a detailed Inquiry procedure for imposing a major

penalty under Rule 23 of Removal from Service which shall not be a

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disqualification for future employment.

44. Despite the same, Respondent No.1 imposed such a major

penalty on the Petitioner, under Rule 23, without following the procedure

laid down in Rule 25 on the basis of the provisions of sub-Rule (ii) and (iv)

of Rule 30.

45. Rule 30 of the 1975 Rules reads as under:

"30. Special procedure in certain cases :-
Notwithstanding anything contained in Rule 25 or
26 or 27, the competent authority may impose any of the
penalties specified in Rule 23 in any of the following
circumstances :-
(i) the employee has been convicted on a criminal
charge, or on the strength of facts or conclusions arrived at
by a judicial trial; or
(ii) where the competent authority is satisfied for
reasons to be recorded by it in writing that it is not
reasonably practicable to hold an inquiry in the manner
provided in these Rules, or
(iii) where the competent authority is satisfied that in
the interest of the security of the Corporation / Subsidiary it
is not expedient to hold any inquiry in the manner provided
in these rules.
(iv) where an employee has abandoned his post, the
competent authority may consider the circumstances of the
case and pass such orders thereon as it deems fit.
Explanation :

For the purpose of this rule, an employee shall be
deemed to have abandoned his post if he absents himself
from duty without leave or overstays his leave for a
continuous period of 90 days without any intimation
therefor in writing.”

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46. The plain reading of 30(ii) of the 1975 rules makes it

abundantly clear that the power to dispense with the Departmental Inquiry

is an exception to the normal rule and can be exercised only upon the

Competent Authority recording specific, objective and cogent reasons in

writing demonstrating why it was not reasonably practicable to hold such

an Inquiry. The requirement of recording reasons is mandatory and is not

an empty formality. In the present case, the impugned Order of Removal

dated 8th April 2013 is conspicuously silent on this mandatory requirement.

The Disciplinary Authority has neither recorded any reasons nor disclosed

any circumstances, whatsoever, to indicate why it was allegedly not

reasonably practicable to conduct a regular Departmental Inquiry. Mere

invocation of Rule 30(ii), without recording the requisite satisfaction

founded on objective material, is fully insufficient in law and vitiates the

impugned Order.

47. Rule 30(ii) has wording similar to Clause (b) of the 2 nd proviso

to Article 311 of the Constitution of India, which reads as under:

Art. 311 (2)(b) - Where the authority empowered to
dismiss or remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded by that
authority in writing, it is not reasonably practicable to hold
such inquiry;

48. In Union of India Vs. Tulsiram Patel (Supra), the Hon’ble

Supreme Court, while dealing with Clause (b) of 2 nd Proviso to Article

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311(2) of the Constitution of India, held that satisfaction of the Disciplinary

Authority under the second proviso to Article 311(2) must be based on

objective material and that reasons must be recorded in writing showing

that it was not reasonably practicable to hold an inquiry. The Court further

held that the existence of such reasons are amenable to judicial review.

Paragraphs 133, 134 and 138 of the Judgement are relevant and are set out

hereunder:

133. The second condition necessary for the valid
application of clause (b) of the second proviso is that the
disciplinary authority should record in writing its reason for
its satisfaction that it was not reasonably practicable to hold
the inquiry contemplated by Article 311(2). This is a
constitutional obligation and if such reason is not recorded
in writing, the order dispensing with the inquiry and the
order of penalty following thereupon would both be void
and unconstitutional.

134. It is obvious that the recording in writing of the
reason for dispensing with the inquiry must precede the
order imposing the penalty. The reason for dispensing with
the inquiry need not, therefore, find a place in the final
order. It would be usual to record the reason separately and
then consider the question of the penalty to be imposed and
pass the order imposing the penalty. It would, however, be
better to record the reason in the final order in order to
avoid the allegation that the reason was not recorded in
writing before passing the final order but was subsequently
fabricated. The reason for dispensing with the inquiry need
not contain detailed particulars, but the reason must not be
vague or just a repetition of the language of clause (b) of
the second proviso. For instance, it would be no compliance
with the requirement of clause(b) for the disciplinary

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authority simply to state that he was satisfied that it was
not reasonably practicable to hold any inquiry. Sometimes a
situation may be such that it is not reasonably practicable to
give detailed reasons for dispensing with the inquiry. This
would not, however, per se invalidate the order. Each case
must be judged on its own merits and in the light of its own
facts and circumstances.

138. Where a government servant is dismissed, removed or
reduced in rank by applying clause (b) or an analogous
provision of the service rules and he approaches either the
High Court under Article 226 or this Court under Article 32,
the court will interfere on grounds well established in law
for the exercise of power of judicial review in matters where
administrative discretion is exercised. It will consider
whether clause (b) or an analogous provision in the service
rules was properly applied or not. The finality given by
clause (3) of Article 311 to the disciplinary authority's
decision that it was not reasonably practicable to hold the
inquiry is not binding upon the court. The court will also
examine the charge of mala fides, if any, made in the writ
petition. In examining the relevancy of the reasons, the
court will consider the situation which according to the
disciplinary authority made it come to the conclusion that it
was not reasonably practicable to hold the inquiry. If the
court finds that the reasons are irrelevant, then the
recording of its satisfaction by the disciplinary authority
would be an abuse of power conferred upon it by clause (b)
and would take the case out of the purview of that clause
and the impugned order of penalty would stand
invalidated. In considering the relevancy of the reasons
given by the disciplinary authority the court will not,
however, sit in judgment over them like a court of first
appeal. In order to decide whether the reasons are germane
to clause (b), the court must put itself in the place of the
disciplinary authority and consider what in the then
prevailing situation a reasonable man acting in a reasonable
way would have done. The matter will have to be judged in

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the light of the then prevailing situation and not as if the
disciplinary authority was deciding the question whether
the inquiry should be dispensed with or not in the cool and
detached atmosphere of a court-room, removed in time
from the situation in question. Where two views are
possible, the court will decline to interfere.

49. This principle was reiterated by the Hon’ble Supreme Court in

Jaswant Singh and Others Vs. State of Punjab and Another (Supra),

wherein the Hon’ble Supreme Court held that the Authority cannot

dispense with an inquiry merely on its ipse dixit and that objective material

must exist to justify such satisfaction. The relevant portion of paragraph 5

the said Judgement is set out hereunder:

“Clause (b) of the second proviso to Article 311(2) can be
invoked only when the authority is satisfied from the
material placed before him that it is not reasonably
practicable to hold a departmental enquiry. This is clear
from the following observation at page 270 of Tulsiram
case: (SCC p. 504, para 130)

"A disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or arbitrarily or
out of ulterior motives or merely in order to avoid the
holding of an inquiry or because the department's case
against the government servant is weak and must fail."

The decision to dispense with the departmental enquiry
cannot, therefore, be rested solely on the ipse dixit of the
concerned authority. When the satisfaction of the concerned
authority is questioned in a court of law, it is incumbent on
those who support the order to show that the satisfaction is
based on certain objective facts and is not the outcome of
the whim or caprice of the concerned officer.”

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50. Likewise, in Chief Security Officer and Others Vs. Singasan

Rabi Das (Supra), the Hon’ble Supreme Court observed that dispensing

with a Departmental Inquiry is an exceptional course and cannot be

resorted to mechanically or for administrative convenience. The Authority

must establish, on the basis of contemporaneous material, that holding an

inquiry was genuinely impracticable. Paragraph 5 of the said Judgement is

relevant and reads as under :

5. In our view it is not necessary to go into the
submissions made by Dr Anand Prakash because we find
that in this case the reason given for dispensing with the
enquiry is totally irrelevant and totally insufficient in law. It
is common ground that under Rules 44 to 46 of the said
Rules the normal procedure for removal of an employee is
that before any order for removal from service can be
passed the employee concerned must be given notice and
an enquiry must be held on charges supplied to the
employees concerned. In the present case the only reason
given for dispensing with that enquiry was that it was
considered not feasible or desirable to procure witness of
the security/other railway employees since this will expose
these witnesses and make them ineffective in the future. It
was stated further that if these witnesses were asked to
appear at a confronted enquiry they were likely to suffer
personal humiliation and insults and even their family
members might become targets of acts of violence. In our
view these reasons are totally insufficient in law. We fail to
understand how if these witnesses appeared at a
confronted enquiry, they are likely to suffer personal
humiliation and insults. These are normal witnesses and
they could not be said to be placed in any delicate or
special position in which asking them to appear at a

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confronted enquiry would render them subject to any
danger to which witnesses are not normally subjected and
hence these grounds constitute no justification for
dispensing with the enquiry. There is total absence of
sufficient material or good grounds for dispensing with the
enquiry. In this view it is not necessary for us to consider
whether any fresh opportunity was required to be given
before imposing an order of punishment. In the result the
appeal fails and is dismissed. There will be no order as to
costs.

51. Recently, the Hon'ble Supreme Court in the case of Manohar

Lal Vs. Commissioner of Police and Others (Supra), has considered all the

above judgments and reiterated the position that reasons need to be given

for dispensing with inquiry. Paragraphs 19 and 41 of the said Judgement

are relevant and are set out hereunder :

19. Further, the Court emphasised the words used in
clause (b) of second proviso that the disciplinary authority
should record its reasons in writing for its satisfaction that
holding an inquiry is not reasonably practicable. In case
such reason is not recorded in writing or not valid and
justifiable, the order dispensing with the inquiry and the
order of penalty flowing therefrom would be void and
unconstitutional. Emphasising the scope of judicial review,
it is said that in the matters where administrative discretion
is exercised, it is open to assail either under Article 226
before High Court or under Article 32 before this Court.
Referring clause 3 of Article 311 and reiterating that the
decision of disciplinary authority indicating why it is not
reasonably practicable to hold an inquiry is not binding on
Court and the scope of judicial review is open. In the said
contingency, the Court will examine the charges of mala

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fides if any made in the Writ Petition. It is emphasised that
the Court, while exercising judicial review, would not sit as
an appellate court but it shall consider the situation due to
which, according to the disciplinary authority, it was not
reasonably practicable to hold an inquiry. While examining
the relevance of the reasoning, the Court ought to place
itself as a disciplinary authority and consider whether in the
prevailing situation, a reasonable man acting in a
reasonable way, would have taken the same decision as
taken by the disciplinary authority. If the Court finds that
the reasons are irrelevant, then satisfaction of the
disciplinary authority may be held to be an abuse of power.
In that situation, it would be open to the Court to take the
case out of purview of that clause and the order of penalty
would stand invalidated.

41. In case such a decision invoking the extraordinary
power is taken by the competent authority in light of the
judgment Tulsiram Patel (Supra) within the parameter as
discussed, the scope of judicial review is available to the
Constitutional Courts wherein the reasons as assigned for
satisfaction of the authority must be reasonable, valid,
justified and in writing. In addition, the satisfaction as
recorded must be the objective satisfaction on the basis of
material brought on record which ordinarily the disciplinary
authority may take as a prudent person. Otherwise,
dispensing with the enquiry is not permissible in law. In the
present case, Section 21 of the 1978 Act confers power of
punishment and Section 22 prescribes the procedure for
awarding such punishment. The procedure as contemplated
has been elaborated under the 1980 Rules. In the present
case, in our view, the power exercised by the authority is
completely without application of mind, thus, the question
of recording of satisfaction as affirmed by the appellate
authority, the CAT and the High Court does not arise.
Therefore, we can hold that the order dispensing with the

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regular procedure of inquiry is arbitrary and consequently
the order of dismissal of the appellant is liable to be
quashed and the orders of the CAT and the High Court
affirming the said dismissal order stand set aside.

52. In the present case, the Respondents have failed to satisfy the

mandatory pre-condition prescribed under Rule 30(ii) of the 1975 Rules.

The impugned Order dated 8th April 2013 does not disclose any reason for

dispensing with the inquiry. Such mechanical invocation of Rule 30(ii)

without compliance with its mandatory requirements renders the Order of

Removal arbitrary, illegal and violative of the principles of natural justice

and liable to be quashed and set aside.

53. Further, as far as sub-Rule (iv) of Rule 30 is concerned, the

same is applicable when an employee has abandoned his post. The

explanation to sub-Rule (iv) of Rule 30 lays down when employee shall be

deemed to have abandoned his post. In our view, the Respondents

proceeded on the basis that taking medical leave automatically amounts to

abandonment of service. Abandonment of service is never presumed

merely because an employee remains absent for a long time. The employer

must establish by cogent evidence that the employee had a clear,

unequivocal and conscious intention to permanently sever the employer-

employee relationship. The facts of the present case show otherwise.

Throughout the relevant period, the Petitioner repeatedly requested transfer

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to Mumbai on medical grounds, continuously informed the Respondents of

his deteriorating health, submitted medical certificates from specialist

hospitals, sought medical leave, requested that the inquiry be conducted at

Mumbai or that evidence be recorded on Commission due to his inability to

travel, and even applied under the Voluntary Separation Scheme. Each of

these acts demonstrates the Petitioner's continuing intention to remain in

service and is inconsistent with the intention to abandon employment.

Further, the Respondents themselves had deputed a retired ACP to verify

the Petitioner’s illness. The ACP personally visited the Petitioner, found him

bedridden and submitted a Report to the Respondents. Instead of relying

upon this material evidence, the Respondents withheld the Report

altogether.

54. This Court in paragraph 9 of the case of Noble Paints Private

Limited Vs Mr. Ashok Tukaram Shinde (Supra), held as under:

“(9) IN so far as the question of abandonment is
concerned, in view of the well settled position in law,
abandonment or relinquishment of service is a question of
intention. Whether there has been a voluntary
abandonment of service is a question of fact which has to
be determined in the light of the surrounding circumstances
of each case. In (G. T. Lad arid others v. Chemicals and
Fibres of India) 1979 (1), L. L. J. page 258, a Bench of three
learned Judges of the Supreme Court, while laying down
these principle, also held that normally such an intention
cannot be attributed to an employee without adequate
evidence in that behalf. In so far as this Court is concerned,
in (Gaurishankar Vishwakarma v. Eagle Spring Industries

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Private Limited and others), 1988 (1) C. L. R. page 38, a
Division Bench held that it is well settled that even in a case
of abandonment of service, the employer has to give a
notice to the workman calling upon him to resume his duty
and must hold an enquiry before terminating his service on
that ground. In (Abdul Rashid v. Indian Sailors Home
Society and others), 1988 (1) L. L. N. page 120, the
Division Bench, in a case where the employer had raised the
defence of abandonment of service, noted that if it was a
case of voluntary abandonment, the employer would have
communicated with the workman and asked him to report
for duty. That was not done.”

55. Accordingly, the allegation of abandonment has never been

established. Absence occasioned by genuine illness, coupled with

continuous intimation/communication with the employer and repeated

assertion of service rights, can never constitute voluntary abandonment. In

these circumstances, the Respondents were not correct in dispensing with

an inquiry under Rule 25 of the 1975 Rules on the ground that the

Petitioner had abandoned his post under sub-Rule(iv) of Rule 30 of the

1975 Rules.

56. For all the aforesaid reasons, the Order dated 8 th April 2013 is

required to be set aside. The Appellate Order dated 5 th June 2017 also does

not provide adequate reasons as to why sub-Rules (ii) and (iv) of Rule 30

were invoked. The only reason stated is that the Petitioner did not attend

the earlier inquiry. In our view, for the reasons stated above, sub-Rules (ii)

and (iv) of Rule 30 of the 1975 Rules could not have been invoked on that

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ground. Therefore, the Appellate Order dated 5 th June 2017 is also

required to be set aside.

57. We will now deal with some of the other submissions made by

the Respondents.

58. It is the case of the Respondents that the present Writ Petition

is not maintainable as the dispute is one of purely private contractual

character. In support of this submission, the Respondents have relied upon

the Judgement of the Hon’ble Supreme Court in Ramesh Sanka (Supra) and

K. K. Saksena Vs. International Commission on Irrigation and Drainage

(Supra). There can be no dispute with the law laid down in both these

Judgements. However, in the present case, Respondent No.1 is ‘State’ within

the meaning of Article 12 of the Constitution of India, and therefore, the

present Writ Petition is maintainable against it. Further, sub-Rules (ii) and

(iv) of Rule 30 of the 1975 Rules are wrongly invoked in the present case,

which is certainly a public issue warranting interference by this Court.

Further, in the present case, there has been a wrongful removal of the

Petitioner from employment by the said Order dated 8 th April 2013. The

statutory remedy of an Appeal was also exhausted and the Appellate Order

dated 5th June 2017 confirmed the Order dated 8th April 2013. Therefore,

the Petitioner is entitled to invoke the writ jurisdiction of this Court to get

his grievances redressed.

59. It is further the submission of the Respondents that the

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Petitioner has approached this Court with suppression and

misrepresentation of material facts and, therefore, the present Writ Petition

should be dismissed. In this context, it is well settled that suppression of

material facts disentitles the Petitioner from getting relief. Having

considered the submissions of the Respondents and having perused the Writ

Petition, we are of the opinion that the Petitioner has not suppressed any

material fact which would disentitle him to relief.

60. The next submission of the Respondents is that the Petitioner is

a chronic defaulter and has approached this Court to evade liability and

therefore, on this ground also, the Writ Petition deserves to be dismissed. In

support of this submission, the Respondents have contended that the

Petitioner has committed defaults in repayment of housing loan and the

vehicle loan availed from the Respondents. In our view, the default on

housing loan and vehicle loan cannot be the ground for not entertaining the

present Writ Petition which has been filed alleging that the Petitioner has

been wrongfully removed from service. The Respondents have their own

remedy in respect of default of housing loan and vehicle loan, and they

have invoked the said remedy by filing Civil Suits for recovery of these

loans.

61. As far as the reliefs sought by the Petitioner are concerned,

along with other reliefs, the Petitioner has also sought payment of back

wages. In our view, the Petitioner is not entitled to back wages for the

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period for which he was not working and was on leave. Therefore, we are

not inclined to grant the said relief.

ORDER

In light of the aforesaid discussion and for the aforesaid

reasons:

(a) The Orders dated 8th April 2013 and 5th June 2017

are hereby quashed and set aside.

(b) The Respondents are directed to pay to the

Petitioner back wages, if any, for the period for which the

Petitioner was actually working with the Respondents and

was not on leave.

retirement benefits to the Petitioner, including pension on

his superannuation from service, with simple interest

thereon at the rate of 9% per annum, from the date of

superannuation till the date of payment.

(d) The Respondents are directed to release the

Provident Fund dues to the Petitioner as per Trust Rules of

Respondent No.1, along with simple interest thereon at the

rate of 9% per annum from the date of superannuation till

the date of payment.

(e) The Rule is made absolute in the aforesaid terms

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and the Writ Petition is disposed of in the aforesaid terms.

(f) In the facts and circumstances of the case, there

shall be no order as to costs.

[FIRDOSH P. POONIWALLA, J.] [R.I. CHAGLA, J.]

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