KRUSHNAKANT B. PARMARversusUNION OF INDIA & ANR.

                          [2012] 3 S.C.R. 484


A                    KRUSHNAKANT B.PARMAR
                                     v.
                        UNION OF INDIA & ANR.
                    (Civil Appeal No. 2106 of 2012)

                         FEBRUARY 15, 2012
B
              [G.S. SINGHVI AND SUDHANSU JYOTI
                      MUKHOPADHAYA, JJ.)

         Service law:
c
          Central Civil Services (Conduct) Rules, 1964 - r. 3(1)(ii)
    and (iii) - Employee unauthorisedly absent from duty for three
    consecutive periods - Held guilty of violating r. 3(1)(ii) and (iii)
    for failure to maintain devotion to duty and conduct
    unbecoming of government servant - Order of dismissal from
0
    service - Said order upheld by the appellate authority, the
    tribunal and the High Court - On appeal, held: In a
    Departmental proceeding, if a/legation of unauthorised
    absence from duty is made, the disciplinary authority is
E   required to prove that the absence is wilful, in absence of such
    finding, the absence will not amount to misconduct - On facts,
    the Inquiry Officer on appreciation of evidence though held
    that the appellant was unauthorisedly absent from duty but
    failed to hold the absence willful - Disciplinary authority as
    also the Appellate Authority failed to appreciate the same and
F   wrongly held the appellant guilty - Specific defence of the
    appellant that he was prevented from attending duty by the
    Controlling Officer and other evidence ignored - Thus, the
    order of dismissal passed by disciplinary authority, upheld by
    the Appellate Authority; the tribunal and High Court set aside
G   - Employee reinstated with 50% back wages - Employee
    having suffered a lot since the proceedings were initiated
    against him, matter not remitted to the disciplinary authority.

         Appellant was charged for unauthorised absence
H                            484
  KRUSHNAKANT B.PARMAR v. UNION OF INDIA                485


from duty during three consecutive periods (36 days, 32         A
days and 234. days). The appellant alleged bias against
the controlling officer who prevented him from
performing the duty to sign the attendance register. The
enquiry officer submitted a report and the charges were
proved. The appellant was held guilty of violating Rule         B
3(1)(ii) and (iii) of the Central Civil Services (Conduct)
Rules, 1964 for failure to maintain devotion of duty and
his behavior was unbecoming of a government servant.
Thereafter, the appellant was dismissed from service. The
said order was upheld by the Appellate Authority, the           c
tribunal and the High Court. Therefore, the appellant filed
the instant appeal.

    Allowing the.appeal, the Court

     HELD: 1.1. From a bare perusal of the charge memo          D
and the Inquiry Report it can be deduced that the Inquiry
Officer proceeded on a wrong premise. [Para 10] [490-E]

     1.2. The question whether 'unauthorised absence
from duty' amounts to failure of devotion to duty or            E
behaviour unbecoming of a Government servant cannot
be decided without deciding the question whether
absence is wilful or because of comp.elling
circumstances. If the absence is the result of compelling
circumstances under which it was not possible to report
                                                                F
or perform duty, such absence cannot be held to be
wilful. Absence from duty without any application or prior
permission may amount to unauthorised absence, but it
does not always mean wilful. There may be different
eventualities due to which an employee may abstain from
duty, including compelling circumstances beyond his             G
control like illness, accident, hospitalisation, etc., but in
such case the employee cannot be held guilty of failure
of devotion to duty or behaviour unbecoming of a
Government servant. In a Departmental proceeding, if
allegation of unauthorised absence from duty is made,           H
    486 -   SUPREME COURT REPORTS               [2012] 3 S.C.R.

A the disciplinary authority is required to prove that the
  absence is wilful, in abs~nce of such finding, the absence
  will not amount to misconduct. [Paras 16, 17, 18, 19]. [492-
  F-H; 493-A-B]

         1.3. In the instant case, the Inquiry Officer on
8
    appreciation of evidence though held that the appellant
    was unauthorisedly absent from duty but failed to hold
    the absence is wilful; the disciplinary authority as also the
    Appellate Authotity, failed to appreciate the same and
    wrongly held the appellant guilty. No such finding was
C   given by the Inquiry Officer. Though the appellant took a
    specific defence that he was prevented from attending
    duty by DCIO, Palanpur who prevented him to sign the
    attendance register and also brought on record 1 ~
    defence exhibits in support of his defence that he was
D   prevented to sign the attendance register, but such
    defence and evidence were ignored and on the basis of
    irrelevant fact and surmises the Inquiry Officer held the
    appellant guilty. DCIO, Palanpur, who was the
    complainant and against whom appellant alleged bias
E   refused to appear before the Inquiry Officer in spite of
    service of summons. Two other witnesses made no
    statement against the appellant, and one of them stated
    that he had no knowledge about absence of the appellant.
    Ignoring the evidence, on the basis of surmises and
F   conjectures, the Inquiry Officer held the charge proved.
    Though the Appellate Authority noticed the said facts but
    ignored such facts giving reference of extraneous
    allegations which were not the part of the charge and
    dismissed the appeal with the uncalled observation.
G   [Paras 20, 22, 23 and 24] [493-C; 494-8-G]

      1.4. The impugned orders of dismissal passed by
  disciplinary aut_hority, affirmed by the Appellate Authority;
  Central Administrative Tribunal and High Court are set
H aside. The appellant is reinstated. Taking into
  KRUSHNAKANT B.PARMAR v. UNION OF INDIA                    487


consideration the fact that the Charged Officer has                 A
suffered a lot since the proceeding was drawn in 1996 for
absence from duty for a certain period, the proceeding
is not remitted to the disciplinary authority for any further
action. Keeping in view the fact that the appellant did not
work for a long time the appellant is directed be paid 50%          B
of the back wages but there would be no order as to
costs. [Para 25] [495-A-C]

     M.B. Bij/ani vs. Union of India and Ors. (2006) 5 SCC
88: 2006 (3) SCR 896 - referred to.
                                                                    c
                      Case Law Reference:

    2006 (3) SCR 896           Referred to.           Para 21

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2106 of 2012.                                                       D

    From the Judgment & Order dated 26.07.2006 of the High
Court of Gujarat in Special Civil Application No. 21778 of 2005.

    Nikhil Goel, A. Venayagam Balan for the Appellant.
                                                                    E
    Sushma Suri for the Respondents.

    The Judgment of the Court was delivered by

    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave                        F
granted.

     2. The appellant, who was working as Security Assistant,
was proceeded departmentally on 2nd September, 1996 for the
following charge:
                                                                    G
    "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
                                                                    H.
    488       SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A         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.
8
    Venkateswarfu 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.

C      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
D 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
E 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:
F
          (i) Mr. Venkateswarfu, 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;
G
          (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
H         on by him;
   KRUSHNAKANT B.PARMAR v. UNION OF INDIA                    489
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    (iv) the attendance register for the relevant period was not     A
    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        B
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            C
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       D
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             E
     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                  F
    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          G
    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          H
    490      SUPREME COURT REPORTS                      [2012] 3 S.C.R.


A the appellate order in Original Application No. 619 of 2004
  before the Central Administrative Tribunal which was dismissed
  by order and judgment dated 28th September, 2005 and
  affirmed by the Gujarat High Court.

       8. Learned counsel appearing on behalf of the appellant
8
  has taken us through records including report submitted by the
  Inquiry Officer and the order passed by the Appellate Authority
  and argued that the Inquiry Officer failed to consider the relevant
  evidence produced by the appellant and misdirected himself
C in arriving at the finding of guilt against him. He would further
  contend that no specific finding has been given with regard to
  the charge that he violated Rule 3(1 )(ii) and .Rule 3(1 )(iii) of the
  Conduct Rules.

       9. Per contra, according to the learned counsel for the
D respondents, departmental inquiry was conducted in
  accordance with law, and after providing full opportunity to the
  appellant, on appreciation of evidence, as the Inquiry Officer
  held the appellant guilty, the Appellate Authority affirmed the
  same.
E
        10. We have heard learned counsel for the parties. From
    a bare perusal of the charge memo and the Inquiry Report it
    can be deduced that the Inquiry Officer proceeded on a wrong
    premise.

F      The appellant was principally charged for unauthorised
  absence from duty during three consecutive period: (i) 3rd
  October, 1995 to 7th November, 1995 (36 days); (ii) 9th
  November, 1995 to 10th December, 1995 (32 days); and (iii)
  10th December, 1995 to 2nd August, 1995 (234 days), in
G violation of Rule 3(1 )(ii) and Rule 3(1 )(iii) of the Rule 3(1 )(ii) and
  Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.

       11. The charge was sought to be proved by respondents
  on the basis of statement of three witnesses, namely, (i) Shri
H P. Venkateswarlu, DCIO, SIB, Hyderabad, (ii) Shri B.P. Jivrani,
   KRUSHNAKANT B.PARMAR v. UNION OF INDIA                   491
     [SUDHAl\JSU JYOTI MUKHOPADHAYA, J.]
ACI0-11, Palanpur and (iii) Shri L.N. Thakkar, JIO-l(MT),           A
Gandhidham, and seven documentary evidence, including
attendance register of the office of DCIO, Palanpur, but the
complainant refused to appear in the Inquiry in support of
complaint and charge.
                                                                    B
      12. The records suggest that on 11th August, 1995, the
appellant requested the respondents to transfer him from
Palanpur to any nearest place at Ahmedabad or Nadiad or
Anand which was accepted by respondents and an order of
transfer was issued by the respondents on 21st August, 1995
transferring the appellant to the office of DCIO, Nadiad with       C
immediate effect. On 25th August, 1995, the Joint Assistant
Director, SIB ordered to release the appellant from Palanpur
to join duty at Nadiad with effect from 31st August, 1995. In
view cif such order the appellant was relieved and joined at
Nadiad. However, the order of transfer was cancelled by the         D
respondents on 4th September, 1995 and he was transferred
at a distance place which was challenged by him before the
Central Administrative Tribunal. After cancellation of the order
of transfer the appellant sent a complaint on 18th September,
1995 before the authorities that the DCIO, Palanpur, Mr. P.         E
Venkateswarlu was not allowing him to join duty. The order of
transfer was challenged by him before the Central
Administrative Tribunal, Ahmedabad alleging bias against Mr.
Venkateswarlu, DCIO, Palanpur, in-charge of the office which
was accepted by the Central Administrative Tribunal and the         F
order of transfer was set aside. Thereafter appellant joined duty
on 11th December, 1995 and proceeded on leave for 11 days
due to illness of his father.                                   ·

     13. The Inquiry Officer noticed the aforesaid facts and held   G
the appellant was unauthorisedly absent between 3rd October,
1995 and 7th November, 1995; 9th November, 1995 and 10th
December, 1995; 10th December, 1995 and 2nd August, 1995.
However, while coming to such contention, the authority failed
to decide whether such absence amounted to misconduct. The
                                                                    H
    492        SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A evidence led by the appellant in support of his claim that he was
  prevented to sign the attendance register and to perform duty
  though noticed the Inquiry Officer on presumption and surmises,
  held the charge proved.
        14. Rule 3(1 )(ii) and Rule 3(1 )(iii) of Central Civil Services
8
    (Conduct) Rules, 1964, relates to all time maintaining integrity,
    devotion to duty and to do nothing which is unbecoming of a
    Government servant and reads as follows:
          .,
          !'Rule 3 - General.
c
           (1) Every Government servant shall at all times-

           (i) maintain absolute integrity;

           (ii) maintain devotion to duty; and
D
           (iii) do nothing which is unbecoming of a Government
           servant."

       15. In the case of appellant referring to unauthorised
  absence the disciplinary authority alleged that he failed to
E maintain devotion of duty and his behaviour was unbecoming
  of a Government servant.

       16. The question whether 'unauthorised absence from duty'
  amounts to failure of devotion to duty or behaviour unbecoming
F of a Government servant cannot be decided without deciding
  the question whether absence is wilful or because of compelling
  circumstances.
      17. If the absence is the result of compelling circumstances
G under which it was not possible to report or perform duty, such
  absence can not be held to be wilful.
       18. Absence from duty without any application or prior
  permission may amount to unauthorised absence, but it does
  not always mean wilful. There may be different eventualities due
H to which an employee may abstain from duty, including
  KRUSHNAKANT B.PARMAR v. UNION OF INDIA                        493
    [SUDHANSU JYOTI MUKHOPADHAYA, J.]
compelling circumstances beyond his control like illness,               A
accident, hospitalisation, etc., but in such case the employee
cannot be held guilty of failure of devotion to duty or behaviour
unbecoming of a Government servant.

    19. In a Departmental proceeding, if allegation of                  8
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.

     20. In the present case the Inquiry Officer on appreciation        C
of evidence though held that the appellant was unauthorisedly
absent from duty but failed to hold the absence is wilful; the
disciplinary authority as also the Appellate Authority, failed to
appreciate the same and wrongly held the appellant guilty.
                                                                        D
     21. The question relating to jurisdiction of the Court in
judicial review in a Departmental proceeding fell for
consideration before this Court in M.B. Bijlani vs. Union of
India and others reported in (2006) 5 SCC 88 wherein this
Court held:
                                                                        E
    "It is true that the jurisdiction of the court in judicial review
    is limited. Disciplinary proceedings, however, being quasi-
    criminal in nature, there should be some evidence to prove
    the charge. Although the charges in a departmental
    proceeding are not required to be proved like a criminal            F
    trial i.e. beyond all reasonable doubt, we cannot lose sight
    of the fact that the enquiry officer performs a quasi-judicial
    function, who upon analysing the documents must arrive
    at a conclusion that there had been a preponderance of
    probability to prove the charges on the basis of materials          G
    on record. While doing so, he cannot take into
    consideration any irrelevant fact. He cannot refuse to
    consider the relevant facts. He cannot shift the burden of
    proof. He cannot reject the relevant testimony of the
    witnesses only on the basis of surmises and conjectures.            H
    494'      SUPREME COURT REPORTS                [2012] 3 S.C.R.


A          He cannot enquire into the allegations with which the
           delinquent officer had not been charged with."

        22. In the present case, the disciplinary authority failed to
  prove that the absence from duty was wilful, no such finding has
8 been given by the Inquiry Officer or the Appellate Authority.
  Though the appellant had taken a specific defence that he was
  prevented from attending duty by Shri P. Venkateswarlu, DCIO,
  Palanpur who prevented him to sign the attendance register and
  also brought on record 11 defence exhibits in support of his
C defence that he was prevented to sign the attendance register,
  this includes his l~tter dated 3rd October, 1995 addressed to
  Shri l<.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO
  office of Telephone calls dated 29th September, 1995, etc. but
  such defence and evidence were ignored and on the basis of
  irrelevant fact and surmises the Inquiry Officer held the appellant
D guilty.

      23. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the
  complainant and against whom appellant alleged bias refused
  to appear before the Inquiry Officer in spite of service of
E summons. Two other witnesses, Shri Jivrani and Shri L.N.
  Thakkar made no statement against the appellant, and one of
  them stated that he had no knowledge about absence of the
  appellant. Ignoring the aforesaid evidence, on the basis of
  surmises and conjectures, the Inquiry Officer held the charge
F proved.

         24. Though the aforesaid facts noticed by the Appellate
    Authority but ignoring such facts giving reference of extraneous
    allegations which were not the part of the charge, dismissed
    the appeal with following uncalled for observation:
G
        "The appellant even avoided the basic training required for
        the job and asked ~AD Ahmedabad to send all the training
        papers for his training at IB Training School, Shivpuri
        (Madhya Pradesh) to his residence at Ahmedabad. 'An
H       untrained officer is of no worth to the department'."
  KRUSHNAKANT B.PARMAR v. UNION OF INDIA                   495
    [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     25. In the result, the aprieal is allowed. The impugned       A
orders of dismissal passed by disciplinary authority, affirmed
by the Appellate Authority; Central Administrative Tribunal and
High Court are set aside. The appellant stands reinstated.
Taking into consideration the fact that the Charged Officer has
suffered a lot since the proceeding was drawn in 1996 for          B
absence from duty for a certain period, we are not remitting the
proceeding to the disciplinary authority for any further action.
Further, keeping in view the fact that the appellant has not
worked for a long time we direct that the appellant be paid 50%
of the back wages but there shall be no order as to costs.         c
N.J.                                          Appeal allowed.