[Cites 18, Cited by 0]

Gujarat High Court

Dy Chairman vs Kanchan Navinkumar Vinayak on 17 December, 2025

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/LETTERS PATENT APPEAL NO. 1651 of 2017

                                                          In
                                     R/SPECIAL CIVIL APPLICATION NO. 11617 of 1994


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                      and
                      HONOURABLE MR.JUSTICE L. S. PIRZADA

                      ==========================================================

                                   Approved for Reporting                      Yes           No
                                                                                             ✓
                      ==========================================================
                                                    DY CHAIRMAN & ORS.
                                                          Versus
                                                KANCHAN NAVINKUMAR VINAYAK
                      ==========================================================
                      Appearance:
                      ADVOCATE NOTICE SERVED for the Appellant(s) No. 2,3,4
                      MR YOGI K GADHIA(5913) for the Appellant(s) No. 1
                      DARSHAN M VARANDANI(7357) for the Respondent(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                               and
                               HONOURABLE MR.JUSTICE L. S. PIRZADA

                                                           Date : 17/12/2025

                                                           ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1.Heard learned advocate Mr. Yogi K. Gadhia for

the appellants and learned advocate Mr.

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Darshan M. Varandani for the respondent.

2.This appeal filed under Letters Patent, 1865

was admitted by order dated 08.08.2019 on

condition of Rs.5 lakh to be deposited with

the Registry.

3.The appellants - Kandla Port Trust issued an

advertisement for recruiting eligible

candidates to the post of Office

Superintendent in the year 1989. One of the

requirements besides the qualifications

stipulated in the advertisement was

experience of five years in any Government or

private undertaking.

4.The respondent was selected for the post of

Office Superintendent and was appointed by

order dated 09.11.1989.

5.Charge-sheet was issued on 17.07.1992 upon

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the respondent on the ground of furnishing

false experience certificate at the time of

his appointment because the respondent had

shown an overlapping experience of four

months so as to secure the employment. The

Statement of Article of Charge reads as

under:

"ARTICLE OF CHARGE - I.

That Smt. Kanchan N. Vinayak, Office Supdt. at the time of her initial appointment in the said capacity in the KDLB, furnished false information and submitted a false certificate to the effect that she worked as Office incharge in M/s. Triveni Electronics Tube Factory & Co., Delhi for the period from 5/8/1978 to 18/2/1981, as per the details give in the imputation of misconduct in support of article of charge vide Annexure II. She has, therefore, exhibited gross misconduct by her failure not only in maintaining absolute integrity as required under Regulation, 3(1)(i) of the KDLB Employees (Conduct) Regulations, but also behaving in a manner of unbecoming of an employee of the KDLB in violation of Regulation 3(1)(iii) of the aforesaid Regulations.

She has further ignored the warning

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No.3 indicated in Annexure III of the Attestation form which was filled by her in her own handwriting and submitted to the office on 2/11/1989, in furnishing false information and hence, liable to be dealt with under the said warning.

ARTICLE OF CHARGE - II.

That the aforesaid Smt. Kanchan N. Vinayak, in filling item No.11(a) of Attestation form in her own handwriting, falsely stated that she worked as Jr. Clerk in Ahmedabad Electricity Co. Ltd, for the period from 5/1/1983 to 25/11/1985 and as a Teacher in Mount Carmel High School, Gandhidham from 29/7/1985 to 4/4/1987, showing an over laping experience of over 4 months to cook up the required experience for the post of Office Supdtt in the KDLB with an ulterior motive to secure employment as Office Supdtt, in KDLB by false declaration.

She has, therefore, exhibited gross misconduct by her failure not only in maintaining absolute integrity as required under Regulations, but also behaving in a manner of unbecoming of an employee of the KDLB in violation of Regulation 3(1)(iii) of the aforesaid Regulations."

6.The Inquiry Officer after conducting the

departmental inquiry held that the two

charges levelled against the respondent had

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been proved. Memorandum along with Inquiry

report was provided to the respondent.

7.The disciplinary authority relying upon the

inquiry report and other materials placed on

record passed the order dated 08.10.1993

imposing major penalty of removal from

service upon the respondent.

8.The respondent being dissatisfied with the

order passed by the disciplinary authority

preferred an appeal before the appellate

authority which was dismissed by order dated

12.07.1994. The respondent therefore,

preferred writ petition before this court.

9.Learned Single Judge by judgment and order

dated 05.07.2016 partly allowed the writ

petition by quashing and setting aside the

orders passed by the disciplinary authority

affirmed by the appellate authority and

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directing the appellants to pay Rs. 5 lakh

towards compensation as the respondent would

have retired in the year 2018.

10. Learned advocate Mr. Yogi K. Gadhia

appearing for the appellants submitted that

the respondent was given sufficient

opportunity and there is no error committed

by the disciplinary authority imposing the

penalty of removal of service which is

affirmed by the appellate authority as the

complaint was received in writing that the

respondent had obtained the employment on the

basis of false information and false

certificate.

11. It was pointed out that the Vigilance

Officer of the appellants-trust carried out a

preliminary inquiry which revealed that one

Mr. Bahl was not the partner of the firm who

had issued the experience certificate to the

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respondent and, therefore, the inquiry

officer rightly did not permit the writ

applicant to examine Mr. Bahl as defence

witness.

12. It was submitted that learned Single

Judge has failed to consider that without

proper identification of a particular person,

the inquiry officer has rightly not permitted

such person to be examined by the delinquent

as defence witness.

13. It was submitted that the act of

misconduct on part of the respondent was

serious in nature and, therefore, the learned

Single Judge while exercising the

jurisdiction under Article 226 of the

Constitution of India, ought not to have

interfered with the concurrent findings

arrived at by the disciplinary authority and

the appellate authority to arrive at the

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conclusion to impose major penalty of removal

from service upon the respondent.

14. It was further submitted that the

learned Single Judge after reproducing the

averments made by the appellants in the

affidavit-in-reply has failed to consider the

same in its proper perspective and has come

to the conclusion that the writ petition was

maintainable by examining the merits of the

matter.

15. It was submitted that learned Single

referred to the report of Vigilance Officer

and examined the letter from M/s. Triveni

Electronics addressed to the appellants

wherein information sought for regarding the

service of the respondent was clarified.

However, such letter was not relied upon in

the inquiry case which was not having any

date and signature of the author of the

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letter was not legible. It was therefore,

submitted that learned Single Judge ought not

to have interfered with the findings of the

inquiry officer discarding such letter

received from M/s. Triveni Electronics

confirming the services of the respondent

showing overlapping of experience.

16. It was further pointed out that learned

Single Judge could not have arrived at the

conclusion that the inquiry officer should

not have insisted upon the identity of Shri

R.J. Bahl for the purpose of examining him as

defence witness of the delinquent. It was

submitted that Shri R.J. Bahl was not the

partner of M/s. Triveni Electronics who had

issued the letter and therefore, the inquiry

officer has rightly not permitted his cross

examination by the respondent delinquent.

17. It was submitted that though the learned

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Single Judge has recorded that the reasoning

adopted in the impugned order is in the

nature of re-appreciation of evidence on

record but the same has been wrongly decided

to come to the conclusion that findings

recorded by the inquiry officer to a

considerable extent is perverse without there

being any basis for the same.

18. It was submitted that the failure to

permit the delinquent to lead evidence by

examining the defence witness cannot be

termed as breach of procedural provisions of

fundamental nature.

19. It was also pointed out that learned

Single Judge could not have re-appreciated

the evidence on record as the appeal filed by

the respondent was already dismissed by the

appellate authority confirming the findings

of fact arrived at by the inquiry officer and

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the appellant was given full opportunity

adhering to the principles of natural justice

during the course of inquiry.

20. It was therefore, submitted that the

appeal may be allowed by quashing and setting

aside the impugned judgment and order passed

by the learned Single Judge by restoring the

order of the disciplinary authority affirmed

by the appellate authority imposing major

penalty of removal from service of the

respondent and the amount of Rs. 5 lakh

deposited by the appellants may be directed

to be refunded along with accrued interest.

21. On the other hand, learned advocate Mr.

Darshan M. Varandani appearing for the

respondent submitted that no interference is

required to be made in the impugned judgment

and order, whereby after considering the

facts on record as well as affidavit-in-reply

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filed on behalf of the appellants, learned

Single Judge has come to the conclusion that

disciplinary inquiry conducted by the inquiry

officer is to a reasonable extent perverse as

the inquiry officer ought not to have

insisted to establish the identity of Shri

R.J. Bahl for the purpose of examining him as

defence witness of the respondent.

22. It was pointed out that the learned

Single Judge after considering the evidence

on record has rightly come to the conclusion

that the appellants by hook or crook wanted

to remove the respondent from service.

23. It was submitted that learned Single

Judge has given cogent reasons to come to the

conclusion that writ petition is not

maintainable when the findings recorded by

the inquiry officer are contrary to the basic

elementary principles of service

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jurisprudence that a person proceeded against

must feel that he or she is being given a

fair impartial treatment.

24. It was pointed out that the disciplinary

authority relying upon the inquiry officer's

report and other material on record,

committed a serious error in passing the

order of removal from service resulting into

victimisation of the respondent in absence of

any legal evidence on record. It was

submitted that the findings recorded by the

inquiry officer that respondent had produced

a false experience certificate is not tenable

as none of the witnesses during the course of

inquiry proceedings had deposed that

certificate in question was false

certificate.

25. It was submitted that the entire inquiry

proceedings stood vitiated on account of

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gross violation of principles of natural

justice as the inquiry officer has denied the

cross examination of Shri R.J. Bahl, one of

the partners of M/s. Triveni Electronics to

establish that the respondent was employed

with the said firm and is working in the

office at Ahmedabad.

26. It was submitted that it was pointed out

to the inquiry officer that there was dispute

between the partners of the said firm and

oral submission was made before the Vigilance

Officer by one of the partner Shri Kumar that

Shri Bahl was not one of the partners of the

firm resulting into perfunctory inquiry

conducted in a bias manner.

27. It was pointed out that the inquiry

officer conducted the proceedings in a hasty

manner because by letter dated 11 th/12th

September 1991, M/s. Triveni Electronics was

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called upon to furnish the information

whether the respondent had worked with the

firm during the period between 5th August,

1978 and 18th February, 1981 or not which was

confirmed by the said firm and inspite of

such a written confirmation, the inquiry

officer reached to the conclusion that the

certificate was not issued by the firm.

28. It was submitted that charge no.2 also

cannot be said to have been proved in absence

of any legal evidence as the respondent had

joined as a Junior Clerk in the Ahmedabad

Electricity Company on 5th January, 1983 and

thereafter, got married in June, 1985 and was

on leave without pay in the Ahmedabad

Electricity Company and thereafter, the

respondent joined the Mount Carmel High

School by tendering the resignation from

Ahmedabad Electricity Company on account of

personal problems.

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29. It was therefore, submitted that the

learned Single Judge after considering the

entire facts and after considering the

decisions relied upon by the respondent, has

rightly allowed the petition by directing the

appellants to pay the lump-sum compensation

of Rs. 5 lakh to the respondent.

30. It was therefore, prayed that the appeal

may be dismissed by directing the Registry to

pay the amount of Rs. 5 lakh with accrued

interest to the respondent.

31. Having heard the learned advocates for

the respective parties and considering the

impugned judgment and order passed by the

learned Single Judge and on perusal of the

documentary evidence placed on record, it

would be germane to refer to the undisputed

facts emerging from the record as under:

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1) The respondent was appointed as Office

Superintendent after following the due

process of interview and selection on

09.11.1989.

2) Charge-sheet was served upon the

petitioner levelling two charges namely, (i)

respondent furnished false experience

certificate and (ii) respondent had shown

four months of experience as overlapping

experience with ulterior motive to secure

employment.

32. Learned Single Judge relied upon the

decision of Hon'ble Supreme Court in case of

Union of India and others v. P. Gunasekaran

reported in 2015(2) SCC 610, wherein Hon'ble

Apex Court has explained in detail the

position of law so far as scope of

interference in the matter relating to

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disciplinary proceedings is concerned as

under:

"12. Despite the well settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a). the enquiry is held by a competent authority;

(b). the enquiry is held according to the procedure prescribed in that behalf;

(c). there is violation of the principles of natural justice in conducting the proceedings;

(d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i). the finding of fact is based on no evidence.

13 Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). reappreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some

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legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

14 In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, many of the above principles have been discussed and it has been concluded thus:

"7. .....The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.

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The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

15 In State of Andhra Pradesh and others v. Chitra Venkata Rao [(1975) 2 SCC 557], the principles have been further discussed at paragraphs 21 to 24, which read as follows:

"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two

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propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where

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the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.

22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh (AIR 1969 SC 966) said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded

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its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shutdown of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.

23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a

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writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC

477).

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did

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not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

16 These principles have been succinctly summedup by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh [(1977) 2 SCC 491]. To quote the unparalled and inimitable expressions:

"4. ...... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through caselaw and other authorities by counsel on both sides. The essence

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of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ....."

17 In all the subsequent decisions of this Court up to the latest in Chennai Water Supply and Sewarage Board v. T. T. Murali Babu (2014) 4 SCC 108 : (AIR 2014 SC 1141), these principles have been consistently followed adding practically nothing more or altering anything.

18 On Article I, the disciplinary authority, while imposing the punishment of compulsory retirement in the impugned order dated 28.02.2000, had arrived at the following findings:

"Article I was held as proved by the Inquiry authority after evaluating the evidence adduced in the case. Under the circumstances of the case, the evidence relied on viz., letter dated 11.12.92 written by Shri P. Gunasekaran, provides a reasonable nexus to the charge framed against him and he did not controvert the contents of the said letter dated 11.12.92 during the time of inquiry. Nor did he produce any defence witness during the inquiry to

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support his claims including that on 23.11.92 he left the office on permission. There is nothing to indicate that he was handicapped in producing his defence witness. ...."

19 The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

20 Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness,

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virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

33. Thereafter learned Single Judge has

considered the fact that after almost a

period of three years from the date of

appointment, the appellants had entertained

the complaint against the respondent for

obtaining the appointment by fraud by

furnishing false experience certificate and

thereafter, on the basis of report of the

Vigilance Officer, departmental inquiry was

initiated by issuing the charge-sheet. The

appellant also issued a letter to M/s.

Triveni Electronics to furnish necessary

information relating to the services rendered

by the respondent. It would therefore, be

germane to refer to the findings recorded by

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the learned Single Judge and justification

for re-appreciation of the evidence as under:

"25 It is not the case of the respondents that the letter received by them from the M/s. Triveni Electronics is a forged letter or the contents of the said letter are incorrect. The respondents wanted the information from the M/s. Triveni Electronics and called for the same and in response to the same, the M/s. Triveni Electronics clarified and furnished the necessary information.

26 In the affidavit-in-reply, more particularly, in para - 24 of the same, it has been stated that the reply dated 'Nil' Exhibit:15 of M/s. Triveni Electronics was not relied upon in the inquiry, because the same was dated 'Nil' and the signature of the author of the letter was not legible. The respondents also found fault with the letterhead and the telephone numbers printed on the same. However what is important to note is the conspicuous silence on the part of the respondents that such letter was not received by the office from M/s. Triveni Electronics. If it is not the case of the respondents that such letter was not received, then the onus is upon them to explain how come M/s. Triveni Electronics replied to their letter dated 12th September 1991 Exhibit: 14. It is too much to say that Exhibit: 15 is

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also a creation of the writ applicant.

27 I take notice of the fact that in the list of documents produced by the department for the purpose of framing the Article of charge, there is a reference of the acknowledgment dated 'Nil' received from the M/s. Triveni Electronics, New Delhi with the signature of one Shri Ramkumar as well as the letter dated 'Nil' received on 28th October 1991 from the proprietor of M/s.Triveni Electronics. Thus, when the documents were produced and relied upon by the department itself, then it is too much to say that since the letter was not dated, the same was, therefore, eschewed from consideration.

28 Let me now look into the particulars of experience according to the service. The chart is as under:

Sr Name of the firm Designation Period Total . experience From To No .

                       1    M/s. Triveni                   Office-in-      '5/8/78    '18/2/81 2 yrs. 6 mths
                            Electronics,                    charge                                13 days
                            Shahdara, Delhi
                       2    Food Craft Institute           P.A. to the     '8/6/82     '4/1/83      - 6 mths 26
                            Ahmedabad                       Principal                                   days
                       3    The Ahmedabad                   Jr. Clerk      '5/1/83    '25/11/8        2 yrs. 10
                            Electricity Co. Ltd                                           5           mths 20
                            Ahmedabad                                                                   days
                       4    Mount Carmel High               Primary       '29/7/85     '4/4/87      1 yr 8 mths
                            School,                         Teacher                                   5 days






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                            Gandhidham

Total experience works out to be 7 yrs 8 mths 4 days.

29 The particulars of the experience after deleting the period of overlapping reads as under:

Particulars of Experience

(After deleting the period of overlapping of the A.E. Co. Ltd, A'bad & Mount Carmel High School, Gandhidham. The experience with M/s. Triveni Electronics, Delhi is also not taken into account) Sr. Name of Designa- Period Total Period of No the firm tion experi- overlapping From To . ence 1 Food Craft P.A. to '8/6/82 '4/1/83 -7 mths - -

                             Institute          the
                             Ahmedab         Principal
                             ad
                       2     The             Jr. Clerk     '5/1/83    '28/7/8    2 yrs     '29/7/85 25/11/85
                             Ahmedab                                     5      6 mths
                             ad
                             Electricity
                             Co. Ltd.
                             Ahmedab
                             ad
                       3     Mount           Primary       '29/7/85 '4/4/87       1 yr     '29/7/85 '25/11/8

                             High
                             School,
                             Gandhidh
                             am

Total experience works out to be 4 yrs 10 mths.

30 I am of the view that the insistence on the part of the Inquiry Officer to first establish the identity of Shri R.J. Bahl for

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the purpose of examining him as the defence witness of the delinquent was not reasonable. It appears that by hook or crook, the respondents wanted to remove the writ applicant from service and they did so. If the Inquiry Officer had any doubt as regards the genuineness or the identity of Shri Bahl, the officer appearing on behalf of the respondents in the inquiry could have cross-examined him. His credibility could have been impeached by appropriate cross-

examination, but to turn down the request of the writ applicant to examine Shri Bahl as her defence witness outright was absolutely untenable in law. The Inquiry Officer's duty was clear. He had to take all necessary steps in the matter, reasonably within his power, even though he was not a Court or a full fledged Tribunal with authority to enforce the attendance of the witnesses and he could have refused to summon the defence witness as requested by the delinquent only for special and sufficient reasons, to be recorded by him in writing but not, certainly, on the sole and preliminary ground that the delinquent could not establish the identity of Shri Bahl or to put it in other words, could not adduce sufficient evidence to establish that Shri Bahl was one of the partners of M/s. Triveni Electronics. It cannot be said that the request or the prayer made by the delinquent to permit her to

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examine Shri Bahl as her defence witness was not bonafide or was made with some ulterior motive. It was the duty of the Inquiring Officer to take all necessary steps in the matter, even though they may ultimately prove to be unavailing, and he cannot refuse to decline the prayer or request on his own whims and caprice. Even in the course of the examination of Shri Bahl, the department could have asked for the necessary documentary evidence to establish that at some point of time, he was one of the partners of M/s. Triveni Electronics."

34. Learned Single Judge after considering

that though re-appreciation of evidence could

not have been done while entertaining the

writ petition, same was done on the ground

that the findings arrived by the disciplinary

authority to a reasonable extent was

perverse. However, learned Single Judge ought

not to have re-appreciated the evidence

without arriving at the findings of

perversity in the order passed by the

disciplinary authority or appellate

authority, the only ground on which the

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disciplinary inquiry report and decision

arrived at by the disciplinary authority

affirmed by the appellate authority would

lose its substratum as the inquiry officer

did not permit the cross examination of Shri

R.J. Bahl as defence witness. In such

context, learned Single Judge has observed as

under:

"35 It is well-settled that the evidence of a defence witness has to be appreciated in the very same manner as the evidence of a witness produced by the department. Equal weight has to be given to the evidence of a defence witness. The Inquiring Officer could have refused to permit the writ applicant to examine Shri Bahl as her defence witness only on the ground that Shri Bahl was not a material witness and his evidence would be irrelevant. On the contrary, the evidence of Shri Bahl, if permitted to have been led, would have made things more clear rather than leaving the entire issue in doubt. I am also not convinced or impressed with the submission canvassed on behalf of the respondents that the request or prayer to examine Shri Bahl as defence witness came at a belated stage.

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36 As held by the Supreme Court in State Bank of Patiala (supra) that even among the procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance or the test of prejudice may not be applicable. Failure to permit the delinquent to lead evidence by examining defence witness is one of the examples of breach of procedural provisions of a fundamental nature. One oral statement made by Rajendrakumar and believed to be a gospel truth sealed the fate of the writ applicant."

35. The Hon'ble Apex Court in case of

Kesoram Cotton Mills Limited vs. Gangadhar

reported in AIR 1964 SC 708, has held that

inquiry would be vitiated by disregard of

rules of natural justice as under:

"13. Coming now to the second term of reference, we find that inquiries were held in the case of the five workmen with whom we are concerned. The respondents however contended that the inquiries were not in accordance with the principles of natural justice inasmuch as the witnesses were not examined-in-chief before the inquiry officer. What actually happened at the inquiries

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was that when the witnesses were produced, previously prepared signed statements of the witnesses were read over to them and they were asked whether the statements were correct, and they had signed them. Statements were also read over and explained to the workmen charged and they were then asked to cross- examine the witnesses. No copies of statements of witnesses were supplied to the workmen at any time. The tribunal has held that this procedure followed by the inquiry officer was open to objection and was against the principles of natural justice and that the witnesses should have been examined- in-chief in the presence of the workmen against whom the inquiries were going on. The requirements of principles of natural justice were laid down by this court in Union of India v. T. R. Varma. 1958 SCR 499 :

( (S) AIR 1957 SC 882) where it was observed-

"Rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied upon against him without his being given an opportunity of explaining them. If these rules

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are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act was not strictly followed''.

14. This matter was further considered in State of Mysore v. Shivbasappa Shivappa. AIR 1963 SC 375 where the following observations were made:

"When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put of him; and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross- examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of form but of substance. In our opinion they are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and

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he is given an opportunity to cross-examine them''.

15. It is urged on behalf of the appellant that rules of natural justice are the same whether they apply to inquiries under Art. 311 or to domestic inquiries by managements relating to misconduct by workmen. It may be accepted that rules of natural justice do not change from tribunal to tribunal. Even so the purpose of rules of natural justice is to safeguard the position of the person against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore the nature of the inquiry and status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient:

(see New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd. 1957 SCR 98 : ( (S) AIR 1957 SC

232), but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading to statements to be used will have to be required in order to safeguard the interest of the industrial

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worker. Further we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case to read over a prepared statement, in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us therefore that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the inquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement on the same length and brings home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking therefore we should expect a domestic inquiry by the management to be of this kind. Even so, we recognise the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from tribunal to tribunal and therefore it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the manner laid down in Shivabasappa's case,

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AIR 1963 SC 375. The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it should be given at least two days before the inquiry is to begin. If this is not done and yet the witnesses are not examined-in-chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have in adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter. In the present case all that had happened was that the prepared statements were read over to the workmen charged and they were asked then and there to cross-examine the witnesses. They were naturally unable to do so and in the circumstances we agree with the tribunal-though for different reasons-that the inquiry did not comply with the principles of natural justice. The order of the tribunal therefore holding that the inquiries were vitiated by disregard of rules of natural justice is correct. We may add however that in spite of the above finding the

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tribunal permitted termination of the service of four of these five workmen and reinstated only one. We shall deal with this aspect of the matter further when considering the appeal of the workmen."

36. Similarly, in case of Central Bank of

India vs. Prakash Chand Jain reported in AIR

1969 SC 983, it is held that the principle

that a fact sought to be proved must be

supported by statements made in the presence

of the person against whom the enquiry is

held and that statements made behind the back

of the person charged are not to be treated

as substantive evidence, which is the basic

principle which cannot be ignored on the mere

ground that domestic inquiry are not bound by

the technical rules of procedure contained in

the Evidence Act. The Hon'ble Apex Court has

held as under:

"8. However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer were perverse. The Tribunal

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gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified. The first and the third elements of the charge relating to payment of the sum of Rs. 30,400 to the respondent by Nand Kishore and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s. Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N. N. Vazifdar, but the latter could not give any direct evidence, as he was not present at the time when money was paid to the respondent or when the respondent left for Muzaffarnagar. He purported to prove these elements of the change by deposing that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs. 30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons. The Enquiry Officer accepted this evidence of Vazifdar, but ignored the fact that Vazifdar's evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nand Kishore which, as rightly held by the Tribunal, would amount to hearsay evidence. Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive

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evidence, he made no statement that this sum of Rs. 30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the company of some persons to retire the bills drawn by M/s. Gupta Iron Industries. In fact, Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar. The Enquiry Officer was, of course, entitled to form his own opinion and to believe Vazifdar in preference to Nand Kishore; but on this basis, the only finding that the domestic tribunal could record was that Nand Kishore's statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar. Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge. It is in this connection that importance attaches to the views expressed by this Court in the cases cited above where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be

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ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings."

37. In case of State of Punjab vs. Dewan

Chuni Lal, Son of Late R.S. Shiv Narain

reported in 1970(1) SCC 479, the Hon'ble Apex

Court held that regarding the limit of the

right to cross examine dissociated from the

context in which it was made cannot help the

authority and refusal of the right to examine

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the witness available at the time of inquiry

amounts to denial of a reasonable opportunity

of showing cause against the action. The

Hon'ble Apex Court held as under:

"17. The High Court opined that the enquiry officer, Bishamber Das, should not have neglected to summon five officers who made reports about the respondent and were available for examination at the enquiry. They were Chunilal Malhotra, Choudhry Roshan Lal, Deputy Commissioner, Shri Ismail, Shri Holiday and Shri Sant Prakash Singh. According to the High Court the defence of the respondent in the enquiry being that the reports against him were based upon no sufficient date and/or were made partly because of the poisoning of the mind of the District Superintendent of Police by the Deputy Superintendent of Police on communal considerations the only way the respondent could have substantiated his defence version would be by putting questions to the reporting officers if made available during the enquiry. One of the above officers Shamsher Singh was actually examined as the respondent's witness in the suit and his evidence showed that he had left the column for honesty in the report for 1946 blank as he had not seen the respondent at his work. This evidence went to show that if he had been examined by the enquiry officer a portion of the

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report taken in consideration against the respondent would have been found to be without substance. Another officer, Chunilal Malhotra though not examined before the enquiry officer was called in defence in the suit. All that he could say was that he had received complaints against the respondent but he did not remember whether they were oral or in writing. The High Court justifiably commented that there was no sufficient reason for the enquiry officer refusing to summon Chunilal Malhotra. On an overall consideration of the facts, the High Court took the view that :

"The approach of the enquiry officer was such that whatever be the testimony of other witnesses, it could not undo the effect of the reports made by the superior officers about the plaintiff."

In other words the enquiry officer shut his mind to the testimony afforded by a large number of witnesses including a Deputy Commissioner, Under Secretary, two Superintendents of Police, a few Magistrates and some Deputy Superintendents of Police who had given evidence about the respondent's reputation and work."

"19 In our view the High Court arrived at the correct conclusion and on the facts of this case it is

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impossible to hold that the respondent had been given reasonable opportunity of conducting his defence before the enquiry officer. From what we have stated it is clear that if the enquiry officer had summoned at least those witnesses who were available and who could have thrown some light on the reports made against the respondent the report might well have been different. We cannot also lose sight of the fact that charges based on the reports for the years 1941 and 1942 should not have been levelled against the respondent."

"25. In our opinion the above observation regarding the limit of the right to cross-examine dissociated from the context in which it was made cannot help the appellant. Although the case is governed by Article 311 as it stood prior to its amendment in 1963 the respondent could not be deprived of an effective right to make representation against the action of dismissal. In our opinion refusal of the right to examine witnesses who had made general remarks against his character and were available for examination at the inquiry amounted to denial of a reasonable opportunity of showing cause against the action."

38. In case of State Bank of Patiala vs.

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S.K. Sharma reported in 1996 (3) SCC 364,

Hon'ble Apex Court held as under:

"11. It is not brought to our notice that the State Bank of Patiala (Officers') Service Regulation contains provision corresponding to Section 99 C. P. C. or Section 465 Cr. P. C. Does it mean that any and every violation of the regulations renders the enquiry and the punishment void or whether the principle underlying Section 99 C. P. C. and Section 465 Cr. P. C. is applicable in the case of disciplinary proceedings as well. In our opinion, the test in such cases should be one of prejudice, as would be later explained in this judgment. But this statement is subject to a rider. The regulations may contain substantive provisions, e.g., who is the authority competent to impose a particular punishment on a particular employee/officer. Such provisions must be strictly complied with. But there may be any number of procedural provisions which stand on a different footing. We must hasten to add that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance may not be applicable. For example, take a case where a rule expressly provides that the delinquent officer/employee shall be given an opportunity to produce evidence/material in support of his

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case after the close of evidence of the other side. If no such opportunity is given at all in spite of a request therefor, it will be difficult to say that the enquiry is not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. The position can be stated in the following words: (1) Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available. (2) Even among procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available. (3) In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available. In such cases, complaint/ objection on this score have to be judged on the touch stone of prejudice, as explained later in this judgment. In other words, the test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. We may clarify that which provision falls in which of the aforesaid categories is a matter to be decided in each case having regard to the nature and character of the relevant provision."

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39. After considering the above decision,

learned Single Judge has come to the

following conclusion:

"44 So far as the charge No.1 is concerned, two witnesses were examined : (i) Shri Bakul J. Mehta and (ii) Shri P.B. Jadeja, Vigilance Inspector. The witness No.1 has not deposed that the experience certificate issued by M/s. Triveni Electronics Limited in favour of the writ applicant for the period th between 5 August 1978 and 18th February 1991 is concocted. All that he has deposed is that he had not received the said certificate on the establishment table in the Kandla Dock Labour Board Secretariat.

45 So far as the Vigilance Inspector is concerned, he has not said a word that the experience certificate issued by the M/s. Triveni Electronics is false. He has deposed that during his visit to Delhi, he met one Shri Kumar at the shop running in the name of the Vikas Electronics. Shri Kumar is said to have informed orally that M/ s. Triveni Electronics came into existence in 1987 and the writ applicant had never worked with the said office. The evidence of Shri P.B. Jadeja deserves to be ignored for the following reasons;

(i) Shri Kumar was not examined in the inquiry.

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(ii) The Vigilance Inspector did not record the statement of Shri Kumar in writing.

(iii) Shri Kumar had some disputes with the person who had issued the certificate.

(iv) The said statement could not be said to have been legally proved by the Presenting Officer.

46 So far as the charge No.2 is concerned, it appears that the writ applicant had joined the Ahmedabad Electricity Company on 5th January 1983. She got married in 1985 and was on 'leave without pay'. She, thereafter, joined the Mount Carmel High School. She, thereafter, resigned from the Ahmedabad th Electricity Company on 25 November 1985. She has also explained that the resignation was tendered at a belated stage, because the same was conditional. She has also explained that after her marriage, her brother decided to join the Ahmedabad Electricity Company, and therefore, she remained on 'leave without pay' for the disputed period and tendered her resignation only after her brother joined the Ahmedabad Electricity Company. The statement of facts that the writ applicant resigned on 25th November 1985. The Ahmedabad Electricity Company has issued a certificate which is on record for the period between 5th January 1983 and 25th November 1985. The writ applicant was on leave for the disputed period, as confirmed by

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the certificate issued by the Ahmedabad Electricity Company Exhibit: 18 and the certificate issued by the Mount Carmel High School Exhibit: 11. The Inquiry Officer has very conveniently ignored the same stating that everything produced by the writ applicant is false."

40. Reliance was also placed on the decision

in case of State of Madhya Pradesh v.

Chintaman reported in AIR 1961 SC 1623 to

highlight that inquiry officer was supposed

to apply the rule of natural justice and in

absence thereof, entertain the writ petition

under Article 226 of the Constitution of

India by the High Court to consider whether

the Constitutional requirement of Article

311(2) have been satisfied or not.

41. In view of above analysis done by

learned Single Judge of the evidence on