Question: The department has initiated an inquiry against me for being on leave without permission. I have submitted medical reports of my wife and all the relevant documents. But the disciplinary authority has found me guilty and terminated my service. Can the High Court re-appreciate all the evidence of departmental inquiry? Can the High Court quash the order of termination of my service? My wife was seriously ill so I went on leave to provide her good medical treatment. I was on leave for nine years without sanction of my leave application. Now my wife is fit and fine. I can join my service. During the leave the department has ceased my salary.
Can I join the service with all consequential benefits? My juniors have promoted to the post of senior section officer. So I think that the department should also promote me on that post. The departmental inquiry has not shown any mercy on the medical health of my wife. I did not take any salary for the period of leave. Due to the ill health of my wife I did not appear in the disciplinary authority but I sent all the medical records of my wife. The health of my wife was the first priority so I went on leave. I knew that the department would not sanction my leave hence I did not take permission.
Question from: Maharashtra
I think there is a very bleak chance to get relief from the High Court. You went on leave for nine years without taking permission from the appropriate authority. More importantly, you did not appear before the disciplinary authority even after receiving information about the commencement of departmental inquiry.
Disciplinary authority did not consider your wife’s heath
Medical condition of your wife is the main reason for your absenteeism. That absenteeism lasted for nine years. Nine years is a very long time. Refraining from duty for such a long period proves that you are not sincere to discharge your liability as a public servant. Therefore, the order of termination seems proper.
Health of your wife is not a matter of concern in the departmental inquiry. Leave without permission is an act of misconduct. That misconduct is the reason for initiation of departmental inquiry. You cannot justify your leave without permission on the sole ground that your wife was ill. This could be a reason for leave but you should have taken proper permission from the competent authority.
Hence you should have adduced evidence before the departmental inquiry which could prove that it was impossible for you to take permission for leave. Which, I think, is impossible for you to prove. You have no evidence to prove that during nine years you had no time to apply for leave.
Can the High Court re-appreciate evidence adduced in departmental inquiry?
No, the High Court is not a court of appeal in respect of writ petitions filed against the departmental inquiry. Article 226 of the Constitution of India confers on the High Court to issue writ for the enforcement of fundamental rights. The High Court cannot act like a court of appeal in the mandamus or certiorari writ.
You want from the High Court to re-evaluate the evidence pertaining to your wife’s health. Re-evaluation or reappreciation of evidence is not possible in writ petition. The High Court can examine the sanctity of departmental inquiry, beach of any statutory rules or mala fide act of inquiry officer to protect the fundamental right i.e. free and fair procedure.
In State of Andhra Pradesh vs S. Sree Rama Rao AIR 1963 SC 1723 the Supreme Court has held that the High Court under Article 226 of Constitution, is not a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant.
In CMWSSB vs T. T. Murli AIR 2014 SC 1141 the Supreme Court has reiterated its view that the High Court can not re-appreciate the evidence adduced in the departmental inquiry. The disciplinary authority can examine the fact of misconduct of the public servant better than the High Court.
Grounds for challenging the order of disciplinary authority
You can approach the High Court if the disciplinary authority has wrongly admitted any fact or ignored any relevant fact. If the finding of departmental inquiry is baseless, it is also a good ground to challenge. These are the examples of possible grounds to challenge the order of departmental inquiry.
- Incompetency in the disciplinary authority.
- Violation of the principles of natural justice in conducting the departmental inquiry.
- Inquiry was not held in accordance with the prescribed procedure.
- Prima facie defect in conclusion of the departmental inquiry.
- Authority is influenced by irrelevant or extraneous consideration.
- Conclusion is wholly arbitrary, capricious that no reasonable person could ever have arrived at such a conclusion.
- Erroneously admitted the relevant or admissible facts.
- There is no grounds, facts or materials in support of finding of the departmental inquiry.
Above ground are, in general, form the basis of attack on the finding of the disciplinary authority. Re-apppriciation of evidence is not possible in writ court. This is beyond the jurisdiction of the High Court.
You think that the inquiry officer has not considered the medical documents of your wife. If it were considered then the result of the inquiry could be different. Therefore, you think that the High Court can reverse the order after re-appreciation the evidence. It is settled law that High Court can not re-appreciate the evidence adduced in departmental inquiry.