- (1.) THE present appeal is directed against the judgment and order dated June 30, 1986 passed by a learned Single Judge of this Court in S. B. Civil Writ Petition No. 161/85, in a writ petition under Article 226 of the Constitution of India. The writ petitioner appellant filed a writ application impugning the order of removal from service, being Order No. 1306 dated May 5, 1984, passed by the Works Manager, Central Workshop (Leyland) of the Rajasthan State Road Transport Corporation (in short 'the Corporation'), in course of a disciplinary proceeding, and the appellate order dated October 19, 1984 passed by the General Manager (Production) of the Corporation, rejecting his appeal. It was prayed inter alia by the writ petitioner appellant that he be declared to be on duty for all purposes with all consequential benefits, pay, allowances etc. , and he be allowed interest @ 12% per annum on the arrears of salary and a direction be given so as to reinstate him in service.
(2.) THE writ petitioner appellant was employed as a Mechanic Grade-I in the Corporation at Jaipur under the Works Manager, Central Workshop (Leyland ). While serving under the Corporation, he was served with a charge-sheet bearing No. 2187 dated August 2, 1983 by the respondent No. 2 the Works Manager, Central Workshop (Leyland ). It was alleged in the charge sheet that one Mool Chand Sharma, Head Time Keeper had reported that the writ petitioner appellant was a habitual absentee and he remained absent from duty without permission and without sanction of leave from March 7, 1983 to March 12, 1983, March 13, 1983 to March 19, 1983, March 20, 1983 to March 26, 1983, March 27, 1983 to March 31, 1983 and April 1, 1983 to April 11, 1983. The writ petitioner appellant denied the allegations and contended inter alia that leave from March 5, 1983 to March 12, 1983 was sanctioned to him vide order No. 738 dated March 18, 1983 and that he had sent an information in right time but because of the delay in the postal service, the letter reached late and as such, he could not be held guilty and since he had been continuously on leave since March 5, 1983 he did not absent himself from duty without permission. It was also alleged on his behalf that the allegation of not coming on duty and not falling sick was contrary to facts since he had sent a medical certificate. It was contended on his behalf that he had gone on leave after sanction from March 5, 1983 to March 12, 1983. March 13, 1983 was a Sunday and a holiday. On March 13, 1983, he had fallen ill and suffered from dysentery and fever, with bleeding. He was under treatment of a Government Doctor on March 13, 1983 and he attached a medical prescription slip. Since March 13, 1983 was a holiday, he could not send the information to the Department and hence, he sent a letter under Certificate of Posting on March 14, 1983 as per receipt dated March 14, 1983. When he did not get relief from bleeding and dysentery which was accompanied by fever, he consulted a Government Ayurvedic practitioner who treated him since March 14, 1983. A certificate of Vaidya of the Government Ayurvedic Dispensary was also sent to the respondents. Even when on March 19, 1983, he did not fully recover, he applied for extension of leave vide his application dated March 21, 1983 which was also sent under Certificate of Posting, of which he had receipt dt March 21, 1983. He being in need of more medical treatment, further applied for extension of his leave by an inland letter sent under Certificate of Posting, dated March 30, 1983 and then he further applied for extension of leave on April 6, 1983 by another inland letter. He then reported for duty on April 11, 1983 with a medical certificate for the period from March 14, 1983 to April 9, 1983 and a fitness certificate granted by the doctor. Since April 10, 1983 was a Sunday, he could join duty only on April 11, 1983. It would thus be seen that the leave applications were sent by the petitioner in time and none of them had been rejected by the competent authority as would be evident from the letter dated April 2, 1983 which he received on April 8, 1983. The Works Manager, Central Workshop (Leyland) did not give any intimation to the writ petitioner appellant about the appointment of an Enquiry Officer and about holding an enquiry against him. However, for the first time, he read in the newspaper that some enquiry was going to be held on April 21, 1984. He reached there on April 21, 1984 and on that day, some statement was recorded without due notice to him and enquiry was thus concluded. He was neither given a copy of the statements of the witnesses or even a copy of the enquiry report nor even the names of the witnesses who would be examined on behalf of the administration. That apart, no opportunity of defending himself was given to him. He was not even asked to appoint a defence counsel or a defence helper to conduct the enquiry. It was just a fake enquiry without due opportunity of proper defence. Ultimately, the respondent No. 2 passed an order of removal from service, vide Order No. 1306 dated May 5, 1984. The writ petitioner appellant then filed an appeal before the General Manager (Production) of the Corporation but the same was rejected by him vide order dated October 19, 1984.
(3.) CONTENTION of the writ petitioner appellant inter-alia had been that the impugned orders were perverse and based on no evidence and that the enquiry was vitiated on the ground inter alia that the respondent No. 2 did not supply to him the names of the witnesses to be examined on behalf of the administration either at the time of giving the charge-sheet or before examination of the witnesses itself in the departmental enquiry. He thus, could not collect necessary material to cross-examine such witnesses effectively and he has thus been deprived of an efficacious opportunity to have a proper defence in the enquiry. That apart, neither the Enquiry Officer nor the Departmental Authority had given him the list and contents of the documents relied upon by the Department and he could not know as to what was the actual case of the management or the administration against him, which had prejudicially affected him in his defence. That apart, the Standing Orders of the Corporation did not authorise the respondent No. 2 to part with the enquiry and entrust it to the Enquiry Officer and the enquiry was thus vitiated having been held by an unauthorised person. Even name of the Enquiry Officer was not intimated to him. The date of enquiry was also not intimated to him, as a result whereof he could not prepare his defence case so as to make out an efficacious defence. He was thus deprived of a reasonable opportunity of defence. He was not even given an opportunity to be represented by a defence counsel or by a defence helper. He was also not granted proper opportunity to adduce evidence in defence. A copy of the complaint sent by Shri Mool Chand Sharma, Head Time Keeper was also not sent to him. He could not even know the contents of the complaint and thus, he was punished in a manner which offended the very principles of natural justice and fair play. The Disciplinary Authority did not give him copies of the statements of the witnesses which were recorded during the purported enquiry. He was not given to understand what testimony of those witnesses were, which were relied upon by the Disciplinary Authority in holding him guilty of the charges. Non-supply of the statements of the witnesses has rendered the enquiry a mockery and the impugned orders were vitiated on account of these lapses on the part of the management, to hold a proper enquiry in accordance with law. The Disciplinary Authority relied upon the report of the Enquiry Officer Shri G. B, Saxena while holding charges against him to be proved but the enquiry report was not furnished to him. That apart, the punishment awarded vide orders dt. May 5, 1984 and October 19, 1984 are arbitrary, illegal and liable to be quashed, inas-muchas he was deprived of a right of proper defence; because of non supply of a copy of the enquiry report he could not even comment upon and explain the adverse findings in the enquiry report so as to have an effective opportunity to file a departmental appeal. It was further alleged that the disciplinary authority, respondent No. 3 has not considered the contents of his appeal and the Appellate order was a cryptic one devoid of any reasons. The Appellate Authority did not indicate as to on what evidence, he agreed with the findings of the respondent No. 2. He could not be held guilty for charge No. 1 in the charge sheet dated August 2, 1983 as it did not amount to misconduct. As regards Charge No. 2, it was admittedly given out in the same that the application for extension of leave was sent on March 14, 1983 but was received on March 17, 1983, which delay was occasioned on account of postal department for which he could not be punished. He further submits that he had been granted leave upto March 12, 1983 and since March 13, 1983 was a Sunday i. e. a Holiday, he could not send information about his illness and he could send information about his illness only on March 14, 1983 as the Post Office remained closed on Sunday at Bandikui. If there was delay of four days in the receipt of his application for leave, the delay could not be attributed to him as a wilful absence on account of which he could be punished. Application for extension of leave was by him, for the period March 20, 1983 to March 26, 1983, on March 21, 1983 as March 20, 1983 was a Sunday, on which date the Post Office was closed and the application having been sent on March 21, 1983 even though it was received in the office on March 23, 1983 after some delay which was on account of the delay caused by Post Office, the writ petitioner appellant could not be held guilty on account of the said charge, No. 3. Charge No. 4 also could not be sustained against him for the simple reason that he sent application for leave on March 30, 1983 and this application was received on April 1, 1983 and delay was occasioned due to the postal authorities. He sent extension application of leave for the period April 1, 1983 to April 10, 1983 on April 6, 1983 under Certificate of Posting. Hence, he never remained absent without information, as regards Charge No. 5. As re-gards Charge No. 6, it was purely hypothetical charge. He had received the notice dt. April 2, 1983 on April 8, 1983 and had applied for leave upto April 10, 1983 and his physician took him to be fit for assuming duties and accordingly, he joined his duties on April 11, 1983 as directed by the notice dated April 2, 1983. In the notice dated April 2, 1983, it was ultimately mentioned that the writ petitioner appellant was to attend the duties within three days of the receipt of notice, failing which he would not be granted any leave and he should be subjected to a departmental enquiry. Since he had received the notice on April 8, 1983 he joined on April 11, 1983, April 10, 1983 being a Sunday and a holiday. After he could thus join the duties in compliance of the notice dated April 2, 1983, of the respondent No. 1 no presumption could be taken against him, to the effect that he was not ill. There was nothing contrary on record to show that he was not ill and as such, he contended that Charge No. 6 also could not be said to have been proved against him. There was no such provision in the Standing Orders for employees to send medical certificate on the very day of their having fallen ill and as such, it could not amount to a misconduct. Under the Rajasthan State Road Transport Corporation Workers and Workshop Employees' Standing Order, 1965 (in short 'the Standing Orders') habitual absence without leave or absence without leave for more than ten days could be taken to be a misconduct. The writ petitioner appellant contended that since none of the charges and allegations did make out a case of his "habitual absence" without leave or abesence without leave for more than ten days, no enquiry could at all be made against him since it was not an absence without application for leave. The continued absence of the writ petitioner appellant was split into seven segments so as to constitute seven charges against him. Even the Head Time Keeper Mool Chand was not examined. It was contended on behalf of the writ petitioner that the enquiry was conducted with a closed mind since no prima facie case of "misconduct" could have arisen in the facts arid circumstances of the case. According to the letter received by him, the writ petitioner appellant had to attend office within three days of the recepit of the letter failing which there was a threat to proceed against him in a disciplinary enquiry. He having already complied with the said order and having joined his duties, there could not have been a departmental enquiry against him. As such, it showed clearly a malafide attitude on the part of the management against him. That apart, the competent authority did not cancel the leave which was already granted in his favour nor rejected the leave application with due application of mind and hence, there ought to have been a presumption about the regularisation of his absence and he ought to have been deemed to be on valid leave and as such, no punishment was warranted in law. He further contended that the charge could not be said to have been proved against him for the simple reason that there was no evidence on record to prove that he had been remaining absent habitually.;