D.K.SETH, J. - (1.) THE petitioner was subjected to disciplinary proceedings in which the petitioner and submitted his reply, which is Annexure7 to the writ peti ­tion. In the enquiry the petitioner was found guilty of all the charges levelled against him in the chargesheets dated 2nd of April, 1983 and 23rd of June, 1983, which is apparent from the enquiry report dated 21st of September, 1983. On the basis thereof a notice 31st of December 1983 was issued to the petitioner asking him to show cause against the proposed punishment. The petitioner had shown cause. After considering the same, by an order dated 27th of February 1984 dis ­missal from service was inflicted as punishment. The petitioner before the State Public Ser ­vices TribunalI, Lucknow in Claim Peti ­tion No. 118/1/1985, challenged this order. By a decision dated 5th of May, 1993 the claim petition was dismissed. In the enquiry report the petitioner was found partially guilty of the charges levelled in the first chargesheet; whereas he was found guilty of the charges levelled in the second chargesheet. The disciplinary authority concurred with the report of the Inquiry Officer and inflicted the punishment; whereas the learned Tribunal had discarded the findings of guilt in respect of the charges levelled through the first chargesheet on the ground that partially proved charges can ­not be sustained. However, the learned Tribunal had concurred with the findings of the disciplinary authority and the In ­quiry Officer in respect of the charges levelled through the second charge sheet. The copy of the order of the learned Tribunal is Annexure12 to the writ peti ­tion. By means of this writ petition the order dated 5th of May, 1993 passed by the learned Tribunal in Claim Petition No. 113/1/1985, enquiry report as well as the findings and inflictment of punishment dated 27th of February, 1994 have been challenged.
(2.) MRS . Archana Srivastava, learned Counsel for the petitioner assails the said order on the ground that the findings of the Inquiry Officer are perverse and based on no material. The Inquiry Officer has not considered the reply and the explana ­tion given by the delinquent. He has also not considered the evidence on record. A plain reading of the report shows that the Inquiry Officer had not applied his mind. Alternatively, she argued that he was so biased lhat he had deliberately omitted to consider the materials on record par ­ticularly the explanation given by the petitioner, which is solely based on record for which no oral evidence was necessary. The disciplinary authority while concur ­ring with the findings of the Inquiry Of ­ficer had also not given reply nor it had discussed the evidence available on the record. The learned Tribunal had also omitted to consider the materials on record and had concurred with the find ­ings without adverting to the reply on the ground that the copy of the reply was not filed before the learned Tribunal. Accord ­ing to her the disciplinary proceedings having been challenged before the learned Tribunal, it was for the employer to produce before learned Tribunal to show that the enquiry was conducted in accord ­ance with law and there was sufficient material to arrive at the conclusion that had been arrived at. As soon the discipli ­nary proceedings had been challenged, the entire record of the proceedings was before the learned Tribunal. The original reply, that was submitted by the delin ­quent, was on the record of the discipli ­nary proceedings. The delinquent could file the copy of the reply, but the same would be inadmissible. When the record was in the custody of the employer, it was incumbent for the employer to produce the same. On these grounds, according to Mrs. Srivastava, the findings of the Inquiry Officer, the order passed by the discipli ­nary authority and the findings of the learned Tribunal are wholly perverse and liable to be set aside. She further con ­tended that on the basis of the materials there was nothing on which the charges could have at all been proved. On the basis of such materials, no reasonable person would have arrived at the finding of guilt. She further contends that so far as the explanation of the petitioner with regard to the first charge of the second chargesheet is concerned, it is alleged that he had handed over the charge on 10th of January, 1983 and the report mentioned in the said charge, was not prepared by him. The same was prepared by his successor to whom he had handed over the charge. There was no discussion on this question as to whether the report was prepared by the delinquent or by his successor. She then contends that so far as the second charge of the second chargesheet is con ­cerned, it has not been shown that the changes had affected any person or it had altered the right, title or interest of any person in respect of any property. At the same time the changes having been made on the basis of note given by his superiors or the order passed by his superiors, he cannot be held guilty for such alteration particularly when the alteration effected was not prohibited within the meaning of para A155 of the Land Records Manual PartI ChapterA VIII. The said alteration has not been provided by any of the entries mentioned in clauses (1) to (14). The second charge of the chargesheet cannot be construed to be a misconduct inviting the punishment of dismissal. There being no iota of evidence against the petitioner to prove any of the charges, the findings and the punishment, as above, were wholly perverse. On these grounds she prayed that this writ petition should be allowed and the impugned order should be quashed. Mr. K. R. Singh, learned Standing Counsel, on the other hand, vehemently argued that once the delinquent has ad ­mitted in his explanation with regard to the second charge of the second chargesheet that he had himself effected the changes, it was open to the disciplinary authority to find him guilty on admission and no evidence should be necessary. He further points out that two witnesses were examined and both Inquiry Officer and the disciplinary authority had relied on the said evidence. The learned Tribunal had also concurred with the said findings on the basis of those evidence. Thus, the find ­ings have assumed the character of con ­current finding of fact the same cannot be interfered in writ jurisdiction. Even if this Court is of different view, then according to Mr. K.R. Singh, this Court cannot sub ­stitute its own view unless the findings are perverse. Since the findings are based on the evidence mentioned in the enquiry report as well as in the findings of the learned Tribunal, it cannot be said that there is any perversity. It is a question of belief or disbelief. This Court while exer ­cising writ jurisdiction does not sit on appeal and, therefore, it cannot interfere with the question of belief or disbelief. However, there were some materials to arrive at such conclusion. He has also pointed out that the delinquent had not proposed to examine any witness nor he had asked for opportunity to crossex ­amine any witness. Therefore, the delin ­quent had not produced the evidence to support his reply or explanation and the case made out by him in the reply. Thus he had not discharged the initial burden of proof. Therefore, the onus had never shifted on the employer. Therefore, there was no question for adducing evidence to disprove the reply given by the petitioner. Therefore, according to him the conten ­tion of Mrs. Srivastava, though appears to be very attractive, but lacks force and sub ­stance. He had pointed out in detail that there are materials, which may not have been discussed in detail, but in fact those were within the mind of the Inquiry Of ­ficer and the disciplinary authority and, therefore, it cannot be said that the authorities did not apply its mind. She further contends that the delinquent never alleged bias against the Inquiry Officer or the disciplinary authority before the learned Tribunal. Therefore, in these proceedings the question of bias cannot be raised for the first time, which is a question of fact and the same can be raised only it was so raised earlier. On these grounds Mr. Singh contends that this writ petition should be dismissed.
(3.) I have heard both the learned Counsel at length. So far as the question of discharging initial burden of proof by the delinquent is concerned, as contended by Mr. K.R. Singh, appears to be unfounded on the basis of the materials that have been placed before this Court. The employer leveled Inasmuch as the charges against the delin ­quent. Therefore, the ini ­tial burden of proving the charges was on the employer. It might have been dis ­charged at the time of the proceedings and the onus might have been shifted on the delinquent, but that onus is confined to the discharge of initial burden through adducing evidence. From the evidence it does not transpire that there was anything by which the explanation and reply of the petitioner were ever met. Unless the reply and explanation are met, the onus is never shifted on the delinquent and the delin ­quent is never called upon to prove such reply or explanation. As contended by Mrs. Srivastava, it appears that the reply of the delinquent was based purely on the record. So far as the first and second char ­ges are concerned, the delinquent was suspended with effect from 5th of January, 1983, after which he had no occasion to visit the concerned village and had handed over the charge on 10th of January, 1983. He had contended that the report was not prepared by him and the same was prepared by his successor Suresh Chandra to whom he had handed over the charge on 10th of January, 1983. The fact remains that Suresh Chandra was one of the wit ­nesses in the proceedings. Both the dis ­ciplinary authority and the Tribunal had relied on the evidence of the said Suresh Chandra. In the reply the finger was pointed out towards Suresh Chandra, who had succeeded the delinquent and might have prepared the report as contended in the reply. Therefore, it would be wholly unsafe to reply on the said Suresh Chandra who tried to disown the mistake. Admit ­tedly when the delinquent had handed over the charge on 10th of January, 1983, he contended that he had not prepared the report, in that even it was incumbent to the employer to prove that the delinquent had prepared the report, but that question had not at all been considered. This amounts to a material omission, which goes to the route of the findings itself. Such omission or reliance on the evidence of an inter ­ested witness is wholly irregular and any findings arrived at on the basis of such evidence tantamount to perversity. No where either in the enquiry report or in the findings of the learned Tribunal, the reply of the petitioner had ever been gone into. Though the learned Tribunal records that the copy of the reply was not before it, but from the enquiry report it appears that the reply of the delinquent was quoted in detail in the report itself. Then again the learned Tribunal and stressed on the ques ­tion of opportunity but not on the ques ­tion of merits of the fact findings. A perusal of the report of the Inquiry Officer clearly indicates that it had arrived at the conclusion summarily without indicating any reason on which the findings were based. The learned Tribunal had also com ­mitted the same mistake and did not dis ­cuss anything in detail. On the other hand, it had come to a finding that the charges were proved without discussing as to how it could be proved on the face of the reply of the delinquent mentioned in the en ­quiry report. At the same time the learned Tribunal had stress the question of law to draw an adverse inference on account of nonavailability of the reply of the delin ­quent on the face of the fact that the dis ­ciplinary proceedings having been chal ­lenged, it was incumbent for the employer to record in the enquiry proceedings as a whole in order to show that there was no infirmity in the whole proceedings. The record of the proceedings as admittedly in the custody of the employer. The delin ­quent could have filed only the copy of the reply, but the copy of the reply is not ad ­missible in evidence. It could be filed only when the original is not available. As soon the disciplinary proceedings are chal ­lenged, the onus is shifted on the employer to prove that the disciplinary proceedings were validly conducted and that there was no infirmity in the proceedings the there ­fore, it was for then to produce adequate evidence namely, in the form of produc ­tion of disciplinary proceedings itself. In case they fail to do so, the question of adverse inference appears to be attracted as against them. Thus, the learned Tribunal had misappreciated this question in the facts and circumstances of the present case.;