CHHEL SINGHversusM.G.B. GRAMIN BANK PALI & ORS.

                    [2014] 8 S.C.R. 217


                       CHHEL SINGH                                A
                              v.
           M.G.B. GRAMIN BANK PALI & ORS.
             (Civil Appeal No.6018 of 2014)
                       JULY 07, 2014
                                                                  8
       [SUDHANSU JYOTI MUKHOPADHAYA AND
              V. GOPALA GOWDA, JJ.]

    Service Law:
                                                                  c
      Dismissal - Charge of absence from duty without prior
permission - The delinquent took the plea that he was sick
during the period - Also produced medical certificate to
support his case - In inquiry found guilty and punishment of
dismissal from service - Single Judge of High Court held the      0
inquiry vitiated and directed his reinstatement - Division
Bench of High Court upheld the finding that inquiry stood
vitiated but setting aside order of reinstatement remitted the
matter for fresh inquiry - On appeal, held: In the facts of the
case, the absence from duty cannot be held to be willful and      E
deliberate - Therefore, the delinquent was wrongly dismissed
- There was also no occasion for the Division Bench to direct
further inquiry without reinstating the delinquent.

     The appellant-employee of the respondent-Bank was
charged for absence from duty, without prior permission,          F
for a.period of about 10 and% months. The appellant took
the plea that during that period, he was seriously ill, which
was beyond his control and he did not intend to
contravene provisions of service regulations. He also
submitted medical certificate· in support of his case.            G
During inquiry, the appellant submitted a list of seven
defence witnesses, but the Inquiry Officer refused to call
five witnesses out of the seven. Appellant was found
guilty by the Inquiry Officer.
                             217                                  H
    218       SUPREME COURT REPORTS           [2014] 8 S.C.R.


A       Disciplinary authority dismissed the appellant from
    service. The order was confirmed by the appellate
    authority.

       The appellant challenged the dismissal order in writ
  petition. Single Judge of High Court held that the entire
8
  inquiry stood vitiated having been conducted in violation
  of principles of natural justice and directed reinstatement
  of the appellant. In writ appeal, Division Bench of High
  Court though upheld the finding of the Single Judge that:
  the inquiry stood vitiated, but set aside the order of
C reinstatement and remitted the matter for fresh inquiry.
  Hence, the present appeal.

          Allowing the appeal, the Court

o     HELD: 1. The order of termination being quashed by:
  the High Court, in absence of any observation and
  grounds to refuse the reinstatement, the appellant
  automatically stood reinstated. Without reinstatement in
  service, the question of further inquiry does not arise.
E There was no occasion for the Division Bench of the
  High Court to direct further inquiry, without reinstatement
  of appellant. [Para 13] [224-B-C]

       2. There was no allegation that the appellant's
  unauthorized absence from duty was willful and
F deliberate. The Inquiry Officer has also not held that
  appellant's absence from duty was willful and deliberate.
  It is neither case of the Disciplinary Authority nor the
  Inquiry Officer that the medical reports submitted by the
  appellant were forged or fabricated or obtained for any
G consideration though he was not ill during the said
  period. In absence of such evidence and finding, it was
  not open to the Inquiry Officer or the Disciplinary Authority
  to disbelieve the medical certificates issued by the
  Doctors without any valid reason and on the ground of
H
CHHEL SINGH v. M.G.B. GRAMIN BANK PALI & ORS. 219


24 days delay. Therefore, the order passed by the                 A
Division Bench of the High Court cannot be upheld.
[Paras 15 and 16] (226-F-H; 227-A]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6018 of 2014.
                                                                  B
    From the Judgment and Order dated 10.05.2012 in
SBCWP No. 1702/1995, DBCSA No. 850/2009 of the High
Court of Rajasthan at Jodhpur.

      Aishwarya Bhati, Capt. Karan Singh Bhati, Ayushi Mittal     c
for the Appellant.

     Anil Kumar Sangal, Siddharth Sangal for the Respondents.

     The Judgment of the Court was delivered by
                                                                  D
    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted.

      2. This appeal is directed against the judgment and order
 dated 10th May, 2012 passed by the Division Bench of the
 High Court of Judicature for Rajasthan at Jodhpur whereby the    E
 Division Bench allowed the appeal preferred by the respondent-
-M. G. B. Gramin Bank, Pali (hereinafter referred to as the
 "Bank") and set aside the order passed by the learned Single
 Judge.
                                                                  F
     3. The factual matrix of the case is as follows:

     The appellant was working with the respondent-Bank since
17th February, 1984 as Clerk-cum-Cashier. While in service
he remained absent from duty from 11th December, 1989 to          G
24th October, 1990 (approximately 10 and 1/2 months) without
obtaining prior permission of the competent authority. For the
said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the
Marwar Gramin Bank (Staff) Service Regulations, 1980, for the     H
    220           SUPREME COURT REPORTS             [2014] 8 S.C.R.


A following charges:

          (i)      He remained absent from duty from 11th December,
                   1989 to 24th October, 1990 without obtaining prior
                   permission from the competent authority;
B         (ii)     He failed to comply with the orders and directions
                   given to him which were the letters issued asking
                   him to join duty;

          (iii)    He remained absent from duty without any reason.
c         (iv)     On the day of joining he failed to submit medical
                   certificate and submitted the same after much
                   delay.

       4. The appellant by his reply dated 23rd November, 1991
D disputed the allegations and informed that he was seriously ill
  between 11th December, 1989 and 24th October, 1990,
  therefore, the absence was beyond his control; he never
  intended to contravene any of the provisions of the service
  regulations. The explanation submitted by the appellant was not
E accepted by the Disciplinary Authority, who decided to inquire
  into the charges and appointed one Shri P.R. Agarwal as the
  Inquiry Officer.

       5. During the inquiry the appellant submitted list of seven
  defence witnesses. However, Inquiry Officer called only two
F witnesses and refused to call rest of the five witnesses on the
  ground that the presenting officer of the Bank was ready to
  answer the questions on behalf of them as may be raised by
  the appellant. After inquiry the Inquiry Officer submitted report
  dated 3rd January, 1994, rejecting the testimony of two
G witnesses as "untrustworthy" and held the appellant guilty for
  the charges.

        6. The Disciplinary Authority, having gone through the
    report, issued a show cause notice enclosing the copy of the
H
CHHEL SINGH v. M.G.B. GRAMIN BANK PALI & ORS. 221
    [SUDHANSU JYOTI MUKHOPADHAYA, J.)

inquiry report as to why the appellant should not be punished        A
for the charges mentioned therein. Finally, after hearing the
appellant, the Disciplinary Authority held the charges to be
proved and removed the appellant from service by order dated
17th October, 1994. The appeal preferred against the order of
the removal was dismissed by the Appellate Authority vide            B
order dated 26th December, 1994.

     7. The said orders of the Disciplinary Authority and
Appellate Authority were challenged by the appellant before the
High Court in Writ Petition No.1702/1995. One of the grounds
taken was that the entire inquiry stood vitiated having conducted    C
in violation of principles of natural justice. The Inquiry Officer
without having any justifiable reason disallowed the prayer of
the appellant to summon five important witnesses. The other
ground was that the penalty imposed was disproportionate to
the gravity of charges.                                              D

      8. The learned Single Judge by judgment dated 31st
March, 2009 allowed the writ petition, quashed the order of
removal and directed the respondent to reinstate the appellant
in service with all consequential benefits with following            E
olilservation:
  ,,

      "In the instant case the reason given for not calling the
     witnesses named by the delinquent employee is absolutely
     vague and irrelevant. It does not and cannot appeal to the
                                                                     F
     measures and standards of a quasi judicial inquiry that
     ultimately resulted into removal of the delinquent employee
     from service. The refusal to call defence witnesses in the
     manner existing in present case is apparent denial of
     reasonable opportunity to the charged employee for
     defending himself. A definite prejudice, therefore, is          G
     caused by not calling the witnesses named by the petitioner
     without examining their relevance and ultimately holding
     him guilty for the charges in defence of which he indicated
     his desire to examine those witnesses."
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    222        SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A         The Court also observed:

          "In the instant matter the inquiry officer simply mentioned
          that the defence witnesses Kalyan Singh and Ganpat Singh
          are not trustworthy. No reason is given by the Inquiry Officer
          to disbelieve those persons. Pertinent to note here that
B
          Ganpat Singh as well as Kalyan Singh extensively narrated
          facts about serious ailment of the petitioner. The Inquiry
          Officer while disbelieving those persons should have given
          definite reasons to justify his conclusion. Merely saying that
          the persons are not found trustworthy, is not at all sufficient.
c         The basic principle is that every person coming forward
          as a witness in evidence states trust except proved
          otherwise, therefore, onus was upon the Inquiry Officer to
          establish by adequate discussion relating to conduct and
          character of Kalyan Singh and Ganpat Singh to disbelieve
D         them or to say that they were not trustworthy."

       9. The aforesaid judgment passed by the learned Single
  Judge was challenged by the Bank in a writ appeal. The
  Division Bench though accepted that the Inquiry stood vitiated
E but set aside the order of reinstatement with following
  observation:

          ''Therefore, we are of the consigned opinion that even while
          the order as passed by the learned Single Judge quashing
          the orders of the Disciplinary Authority and the Appellate
F         Authority need not be interfered with, the other part of the
          order calls for interference and it appears in the interest
          of justice that the matter be restored for reconsideration
          of, and re-reporting by, the Inquiry Officer after concluding
          the inquiry proceedings in conformity with the requirements
G         of principles of natural justice.

          In view of the above, this appeal succeeds and is allowed
          in the manner that the order passed by the learned Single
          Judge insofar quashing of the impugned orders dated
H         17.08.94 and 26.12.1994 is concerned, the same is
    CHHEL SINGH v. M.G.B. GRAMIN BANK PALI &                 223
    ORS. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     affirmed, but the other part of the order of the learned        A
     Single Judge, declaring the petitioner entitled to be
     reinstated in service with all consequential benefits, is set
     aside. Instead, we consider it proper and hence order that
     the report as made by the Inquiry Officer dated 03.01.1994
     shall stand annulled and the matter shall stand restored for    B
     reconsideration of, and re-reporting by, the Inquiry Officer.

     It goes without saying that if the Inquiry Officer who had
     earlier conducted the inquiry is not available, or for any
     other sufficient reason, it shall always be permissible for     C
     the Disciplinary Authority to appoint any other officer to
     inquire into the matter. For looking further instructions in
     the matter, the parties shall stand at noted to appear before
     the Disciplinary Authority on 18.06.2012."

       10. The learned counsel for the appellant while placing       D
 reliance on the Inquiry Report and finding of the learned Single
 Judge submitted that the inquiry was conducted in violation of
 principle of natural justice and hence the learned Single Judge
 rightly directed the reinstatement of the appellant. Whereas
 according to learned counsel for the respondent-Bank, the           E
 Division Bench rightly set aside the order of reinstatement and
·remitted the matter for fresh enquiry.

     11. After giving our careful consideration to the facts and
circumstances of the case and the submission made by the . F
learned counsel for the parties, we are of the view that the
Division Bench was wrong in setting aside the order of
reinstatement.

      12. The Division Bench has accepted that the inquiry stood
vitiated by disallowing the request of the appellant to summon G
the rest of the five witnesses. For the said reason, the Division
Bench has not interfered with such part of the finding and order
passed by the learned Single Judge whereby the impugned
order of termination dated 17th October, 1994 and the .
                                                                     H
    224       SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A Appellate Authority order dated 26th December, 1994 were
  quashed.

       13. The order of termination being quashed by the High
  Court, in absence of any observation and grounds to refuse the
B reinstatement, the appellant automatically stood reinstated.
  Without reinstatement in service, the question of further inquiry
  does not arise. There was no occasion for the Division Bench
  of the High Court to direct further inquiry, without reinstatement
  of appellant.

C       14. The following charges were leveled against the
    appellant, as mentioned in the inquiry report:

          "Charge No.1:

          According to Rule 22(1) of Marwar Gramin Bank
D         Employee Association Rules, 1980 no officer or employee
          would absent himself without the prior permission from
          competent authority and in case of disease and accident
          no one would absent himself without providing medical
          certificate, but you flouted the instructions of competent
E         authority and without permission you remained absent
          from 11.12.89 to 24.10.90 and you got the medical
          certificate issued in connection with your illness you
          submitted the medical certificate on 20.10.90 with so much .
          of delay.
F
          Charge No.2:

          According to Rule 22(2) of Marwar Gramin Bank
          Employee Association Rules, 1980 if any officer or
          employee remains absent without leave or remains absent
G         after the expiry of leave, (leaving th~ circumstances which
          is beyond their control and for that he has to give
          satisfactory clarification), then he would not be entitled for
          payment of such absence or the period after the absence
          and would be liable for such action which would be charged
H
CHHEL SINGH v. M.G.B. GRAMIN BANK PALI & ORS. 225
    [SUDHANSU JYOTI MUKHOPADHAYA, J.]
   by competent authority. But you violated these instructions:     A

   (D) You remained on medical leave from 11.12.89 to
   24.10.90 and you did not submit leave application as per
   rule.

   (E) You had been instructed by the head office by its letter     B
   no.K/7901 dated 23.08.90 to present yourself on duty
   within 7 days and also to give clarification for being absent
   without leave but you did not submit any reply. Thereafter
   also, you were again given instruction by head .quarter letter
   no.K/10076 dated 22.9.90 you were instructe;«j to present        C
   on duty by 05.10.90 and also to submit the clarification.
   The said letter was received by you on 4.10.9Q. Then also
   you did not send any information to bank about your
   absence.
                                                                    D
    (F) In your clarification you have stated thatyou could not
    give information since you were.suffering from incurable
    disease but in medical certificate submitted by you there
    is no mention of any incurable disease, where it was not
    possible for you to send the leave information. Thus.. you      E
    gave wrong information to bank.

    Charge No.3:

   You not being seriously ill, produced the evidence of illness·
   from various doctors whereas:                                    F

    (A) You travelled during your alleged serious illness.
    According to medical certificate issued by Dr. S.S.
    Purohit, Navdeep Hospital Palanpur issued on 25.10.90,
    you got treatment from him from 13.8.90 to 24.10.90 and
    rest has been prescribed whereas during that period you         G
    were on your permanent residence at Chitalwana. You
    yourself received the registered letter no.K/1-0078 dated
    22.9.90 and K/11211 dated 11.10.90 at Chitalwana.

                                                                    H
    226        SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A         (B) In the letter K/11211 dated 11.10.90 the instruction
          given was very clear that join the duty by 27 .10.90 and it
          was stated in that letter that if you do not join the duty then
          it would be presumed that you are not interested to work
          in the bank. Then you had shown yourself to be healthy and
B         you joined duty on 25.10.90

          Charge No.4:

          In Circular no.21/78 dated 22.6.78 it has been instructed
          that the employees on leave ori health reason would submit
C         medical certificate while joining on duty. You violated these
          instructions and did not present the medical certificate
          while joining duty. You submitted the said certificate on
          20.10.90 with delay."

D      15. From the plain reading of the charges we find that the
  main allegation is absence from duty from 11.12.89 to 24.10.90
  (:approximately 10 and Yi months), for which no prior
  permission was obtained from the competent authority. In his
  reply, the appellant has taken the plea that he was seriously ill
E between 11.12.89 and 24.10.90, which was beyond his control;
  he never intended to contravene any of the provisions of the
  service regulations. He submitted the copies of medical
  certificates issued by Doctors in support of his claim after
  rejoining the post. The medical reports were submitted after
  about 24 days. There was no allegation that the appellant's
F unauthorized absence from duty was willful and deli~erate. The
  Inquiry Officer has also not held that appellant's-absence from
  duty was willful and deliberate. It is neither case of the
  Disciplinary Authority nor the Inquiry Officer that the medical
  reports submitted by the appellant were forged or fabricated
G or obtained for any consideration though he was not ill during
  the said period. In absence of such evidence and finding, it was
  not open to the Inquiry Officer or the Disciplinary Authority to
  disbelieve the medical certificates issued by the Doctors
  without any valid reason and on the ground of 24 days delay.
H
CHHEL SINGH v. M.G.B. GRAMIN BANK PALI & ORS. 227
    [SUDHANSU JYOTI MUKHOPADHAYA, J.]
      16. In view of the observation made above, the order         A
passed by the Division Bench of the High Court cannot be
upheld. We, accordingly, set aside the impugned judgment and
order dated 10th May, 2012 passed by the Division Bench of
the High Court in D.B. Civil Special Appeal (Writ) No. 850 of
200!il and upheld the order passed by the learned Single Judge     B
dated 31st March, 2009 in S.B. Civil Appeal Writ Petition No.
1702 of 1995. The respondents are directed to implement the
direction and order dated 31st March, 2009 issued by the
learned Single Judge within four weeks from the date of receipt
of copy of this judgment.                                          c
     17. The appeal is allowed with aforesaid observations and
directions. No costs.

Kalpna K. Tripathy                               Appeal allowed.