JUDGMENT 1. - The petitioner initially appointed with the M/s. HMT Ltd. as a Technical Buyer on 11.11.1971, was promoted as Supervisor in 1975 and as Purchase Officer in 1981 which post was later on re-designated as Junior Design Engineer. This post of Junior Design Engineer was again re-designated as Foreman (Production) in the department in 1983. He earned another promotion of Purchase Officer in the purchase department in the year 1986. He was transferred to Assembly department and designated as Foreman (Assembly). He was again transferred to Plant Maintenance Department as Deputy Engineer (Electrical). 2. In the month of February 1992, he was directed to report to the officer of the same status and cadre as that of the petitioner to which he represented. He had been asking for allocation of the duties since 1990, but his representations in this regard were not considered even though made time and again. 3. Above were the certain instances given by the petitioner when he was charge-sheeted on 6/8th April 1992 for availing un-authorised leave on different dates from March 1990 to February 1992. Copy of the charge-sheet has been attached as Annexure 12 to the writ petition. The charge-sheet reads that the petitioner has absented from duty during the aforesaid on the days mentioned therein. Details of the absence had been enumerated in the charge-sheet wherein it is stated that the petitioner had been taking leave some time of full one day and most of the times for 1/4th of the day or 1/2of the day. For the period from March 1990 to February 1991 he is said to have availed the un-authorised leaves for 52.75 days and for the remaining period right upto February 1992 he has availed 117.75 days and total about 170 days. The charge-sheet states that the past record also reveals that he was in the habit of remaining on unauthorised absence and had failed to show any improvement on this count of absentism. He was asked to explain his conduct. 4. The petitioner vide Annexure 13 had categorically stated that his short absentisms were duly authorised and were duly sanctioned. Along with the reply to the charge-sheet he had attached the photo-stat copies of some of the documents about 75 copies showing that each and every leave for part of the day, may be for one hour or two hours, was duly sanctioned by the authorities. Along with the reply to the charge-sheet he had attached the photo-stat copies of some of the documents about 75 copies showing that each and every leave for part of the day, may be for one hour or two hours, was duly sanctioned by the authorities. He had given reasons of his absence to be the sufferings of his son who had a sudden attack of Epilepsy. He had attached the certificates of the doctors in this regard. He had also mentioned that because of the major operation of his wife he had to attend her. Her wife was operated in J.L.N. Medical College, Ajmer and he had to attend her till her recovery from illness. The medical certificates in this regard were duly attached. He had also mentioned that because of the tension and stress his own health had gone bad. Apart from above, he had categorically stated that the department had not allotted any duties to him as no work was made available for him despite his repeated representations. He had alleged malafides stating that he had been mentally tortured by the management. He was not put on any duty, he alleged right from 1990 onwards. He referred to certain representations addressed to GTM about this matter (certain representations have been attached with this writ petition about his grievance of not allotting him duties since 1990). He had seriously challenged the allegations about his being in the habit of absentism. He has also stated that some earlier charge-sheet issued on 5.4.1990 was neither issued by the competent authority nor any punishment was awarded by the competent authority, therefore, reference of any other previous correspondance in this regard was illegal. In the last pare of the representation Annexure-13, he had clearly submitted that work was not made available to him when he reported on duty befitting to his experience and status. Along with the writ petition the petitioner has also attached photo-stat copies of his leave sanction documents which were also part of the inquiry proceedings. In the documents attached from Annexure-14 to Annexure-91 his leave related to the period in question of the year 1990-91 and 1991-92, the AGM as had sanctioned the leave i.e. at the time of application, his leave was sanctioned by the then AGM, Annexure-92 to Annexures 131 & 137 relate to medical certificates, medical prescriptions and medical cash memos etc. etc. etc. Annexure-141 and other annexures have been attached by the petitioner to show that he had been complaining about not assigning him the duties. 5. Annexure-12 is charge-sheet dated 6/8th April 1992. He had been issued another charge-sheet Annexure-143 on 18.4.1992 to the effect that he was absent and missing from 9.30 a.m. to 10.30 a.m. on 6.3.1992 without permission and he had refused to receive the advise memo dated 8.4.1992 in this regard. This charge-sheet stands replied vide Annexure-144 stating therein that he was very much on duty on 6.3.1992 at the hours mentioned in the charge-sheet and entry in this regard was available in the officers gate entry register for going to Accounts Department and in coming entry in the register was also therein the register, therefore, the charge was denied. Malafides were alleged by the petitioner. 6. Initially Mr. Haq was appointed as Enquiry Officer who was junior to the petitioner. The petitioner took the objection of appointing the Enquiry lo Officer who was junior to him. Later on the Enquiry Officer was changed and Mr. Haq was appointed as the Presenting Officer instead. 7. On 30.6.1992 it is stated that the petitioner was on leave which was duly sanctioned by the Enquiry Officer himself as well, but still the exparte Enquiry was held against the petitioner and exparte enquiry report has been 15 submitted. Enquiry report has been attached as Annexure R- 18 in regard to charge-sheet Annexure-12. There were certain objections taken before the Enquiry Officer which had been dealt with by the Enquiry Officer, but in the present case these objections may not be referred to. The Enquiry Officer had observed that on 20.5.1992 at 10.30 a.m. both the parties had appeared before him and request was made by the petitioner for extension of time. However, the case was adjourned to 13.6.1992. It is stated by the Enquiry Officer that on 13.6.1992 the petitioner did not appear and the case was adjourned to 15.7.1992 and 1.9.1992. The Enquiry Report was submitted but the Enquiry report does not bear any date as per Annexure R-18. The Enquiry Officer in the exparte proceedings had observed that what-ever duly sanctioned leave applications have been attached along with the reply to the charge-sheet. those leaves were sanctioned in a deceitful manner knowingly well that he had actually no leave at his credit. The Enquiry Officer in the exparte proceedings had observed that what-ever duly sanctioned leave applications have been attached along with the reply to the charge-sheet. those leaves were sanctioned in a deceitful manner knowingly well that he had actually no leave at his credit. It was further observed by the Enquiry Officer that the delinquent officer is a habitual absentee and had shown no 30 improvement and, therefore, the charge-sheet stands proved. The relevant part of the Enquiry report of the Enquiry Officer are reproduced as under "The delinquent officer in his defence has submitted certain sanctioned leave applications wherein he has applied either SL/CL/CL or has written only date in a blank column, but has not specifically applied LWP. Now he was come to prove whether the leave applied by him were actually at his credit or not. The Management's witness Shri H.M. Sen in his statement Ex/M2A has told that he is maintaining the records of leave of the delinquent officer. He has also corroborated the statement of Shri Gyan Singh and has told that for the days involved in the charge-sheet the salary of the delinquent officer was deducted from the monthly Pay Bills. He has also established that his past record also reveals that he is a habitual absentee. The original records of Time Office pertaining to leave record and deduction of wages of the delinquent officer were shown to me in the course of enquiry proceedings. On the face of records and evidences produced before me, I have come to the conclusion the whatever leave applications duly sanctioned have been submitted by the delinquent officer along with his reply Ex-M16 in response to the Charge-sheet, he got those leave sanctioned in a deceitful manner knowing it well that he has actually no leave at his credit. There remains a question to ponder that in case he had any leave balance in his credit then why Time Officer has deducted his salary from his monthly salary towards LWP. It clearly indicates that the delinquent officer was actually not having any leave at his credit but deliberately he applied the leaves and get them sanctioned by giving a hint to the sanctioning authority that he is having the applied leave at his credit. This was obviously done by him with a view to escape himself from the aftermaths of such action on his part. This was obviously done by him with a view to escape himself from the aftermaths of such action on his part. (Emphasis by this Court) From the records and evidences produced before me it is also crystal clear that the delinquent officer is habitual absentee. Even after persistent efforts taken up by the HODs he showed no improvement in his propensity of remaining on LWP. He was warned and his increment was also deducted/withheld as a measure of punishment on this account only. In view of above, I am inclined to believe that the charges as levelled in the Charge-sheet Ex-M15 are fully established and proved against the delinquent officer and he is found guilty of committing the misconducts as contained in the Charge sheet Ex-15." 8. In regard to other charge-sheet which was also exparte, the report is attached as Annexure R-19. This report is also un-dated. It is stated that the delinquent official had not appeared in the enquiry and, therefore, on the basis of the related documents and statement of witnesses, the misconduct stands proved. However, it is mentioned at page 5 of the Enquiry Report that the delinquent official had given his explanation and tried to defend himself with the concocted version that he went to the Accounts Department after making entry in the register at the main gate but the Enquiry Officer had rejected the defence on the ground that no documentary proof had been produced. 9. Vide Annexure-150 the petitioner was dismissed from service vide order dated 23.12.1992 wherein it is stated that the management after going through the enquiry reports and the gravity of the misconducts, the company had decided to dismiss the petitioner. The dismissal order is signed by D.R. Trehan, Deputy General Manager. The petitioner filed a detailed appeal Annexure-154 stating therein all the facts which appeal was dismissed vide Annexure 157 dated 23.2.1993. The order of dismissal was upheld. The appeal was dismissed by a very short and cryptic order. 10. Being aggrieved against the aforesaid orders, the petitioner has filed the writ petition challenging and praying for quashing the order dated 23.12.1992 (Annexure-150), appellate order dated 23.2.1993 (Annexure-157) to be declared as illegal. 11. Written statement has been filed by the respondent Nos. 1 to 4. The appeal was dismissed by a very short and cryptic order. 10. Being aggrieved against the aforesaid orders, the petitioner has filed the writ petition challenging and praying for quashing the order dated 23.12.1992 (Annexure-150), appellate order dated 23.2.1993 (Annexure-157) to be declared as illegal. 11. Written statement has been filed by the respondent Nos. 1 to 4. It was stated in the written statement that serious misconduct proves that the petitioner was irresponsible and negligent officer arid his behaviour was unbecoming of an officer. To the allegation that no enquiry report was given to the petitioner it is stated that actually the petitioner had refused to accept the enquiry report. It is further stated that the petitioner had on the date when the order of dismissal was passed asked for voluntary retirement on 23.12.1992. His request was rejected. A defence had been taken by the respondents that even though the leave had been sanctioned by the AGM, but as a matter of fact it should have been sanctioned by the GM respondent No. 2 in view of the instructions Annexures R-3 and R-4. It is stated that as a matter of fact the petitioner was not inclined to work and, therefore, he was transferred from one department to another and even the reports were made against him vide Annexures R-13 to Annexure R-15. It is stated in the written statement that the petitioner never worked as responsible officer and as a matter of fact the petitioner was unduly tolerated in service by the management and because of the financial crises of the company, the company could not continue with such irresponsible officer. It is further submitted that in view of nature of allegations which related to un-authorised absence from duties and not taking interest in the duties and, therefore, the allegations of not allowing the helper outside the factory could not have changed the situations as the allegations were related to the documents, no represented through a legally trained person for which the petitioner had made a request. In the written statement it is stated that the letter issued by Shri D.R. Trehan was the proposed action of dismissal which was approved by the General Manager and, therefore, the order though had been signed by the Deputy General Manager, is deemed to have been passed by the General Manager. To support this contention the respondent relied on Annexure R-1. To support this contention the respondent relied on Annexure R-1. Alternatively, a defence has also been taken in regard to non-supply of the enquiry report to the effect that even if the petitioner had received the domestic enquiry report, he could not have explained his conduct in view of the documentary evidence of his absence. 12. It is true that it is not he function of the High Court to re-appraise the evidence or to function as an appellate court. However, in the present case the following contentions have been raised which need consideration.. 1. Whether the petitioner had proceeded un-authorisedly/unsancationed leave. 2. If the leave was sanctioned prior to proceeding on leave or even after that, does it still means to be a absence without authority. 3. As to what is the procedure for sanctioning the leave, if so, be whom and how. 4. Is there no legal evidence on record. 5. Has the impugned orders have been passed by the competent authority. 6. Does the orders have been passed with malice. 7. Was there any reasonable excuse for the petitioner for applying for the short term leaves of one day or two days or 1/2day of 1/4th days in the circumstance and has the matter been discussed by the Enquiry Officer of the competent authority in this regard or not an whether the order passed by the competent authority is speaking order or not. 8. Has the Enquiry Officer in the inquiry report travelled beyond its jurisdiction in discussing the allegations material if which was not part of charge-sheet after hearing the parties, the answer to the above submission is as under : 1. The Enquiry officer himself had observed in the enquiry report Annexure-18 to the effect that the petitioner in the reply had attached copies of the applications wherein the leaves had been sanctioned at the time oo applying by the AGM. All the leave applications were with the department and in case the leave stood sanctioned by the AGM, can it be said that the petitioner was guilty of proceeding on short term leaves for the days mentioned in the charge-sheet un-authorisedly. All the leave applications were with the department and in case the leave stood sanctioned by the AGM, can it be said that the petitioner was guilty of proceeding on short term leaves for the days mentioned in the charge-sheet un-authorisedly. The Enquiry Officer has definitely travelled beyond the scope of the allegations by saying that even though the leaves stood sanctioned,but the petitioner is guilty of getting those leaves sanctioned in a deceitful manner knowingly it well that he had no leave at his credit. It is mot the allegation in the charge-sheet that the petitioners leave were sanctioned in deceitful manner. There is no evidence on record nor it has been discussed as to hat was the deceitful means by which the leaves were got sanctioned. The Enquiry Officer is not supposed to travel beyond the charges. The charge as per Anneuxre-12 was that the petitioner had proceeded on leave un-authorisedly, meaning thereby that he had proceeded on leave without sanction. It is not he charge that the petitioner's leave was sanctioned by a person who was not entitled to sanction the same, nor the Enquiry Officer has discussed that any other person other than the AGM could have sanctioned the leave. The Enquiry Officer had also mentioned that the very fact that the salary was deducted from the pay of the petitioner of the sanctioned leave for the reason that no leave was sue itself shows that the petitioner was not having any leave to his credit and he had deliberately applied leave knowingly well that he had no leave. It is not the charge in the charge-sheet. in the present case when the petitioner is faced with a serious illness of his son who had epilepsy attack, his wife who had undergone a major operation in the Government Hospital, it seemed natural that the petitioner must be requiring short terms leaves. The leave stood sanctioned. Whether any leave is due or not, is to be seen by the department and if any leave is due, the leave is to be adjusted and if not due it is to be sanctioned without pay or any other order can be passed as permitted under the rules. By no means it can be said that it amounted to nay misconduct. 2. For the4 reasons mentioned above, it cannot be said that the petitioner had absented without any authority. By no means it can be said that it amounted to nay misconduct. 2. For the4 reasons mentioned above, it cannot be said that the petitioner had absented without any authority. His leave was properly sanctioned. If his leave salary has been deducted because of the reason that no leave was due even though sanctioned, it cannot be said that he had proceeded on leave without any authority. 3. As per the leave application produced on record, the leave is to be applied by the officer which may ne recommended by his immediate officer and sanctioned by the authority. In the present case the leave stands sanctioned. However, the counsel for the respondents states that in view of Annexure R-3 and R-4 the leave could only have been sanctioned by the GM. Annexure R-3 is the office order dated 28.1.1989 relating to lease and leave encashment rules. Rule 2.2 shows that the employees are entitled to C.L for about 10 days., two and half C.L. can be allowed to the employees on valid reasons. The leave sanctioning authority has been mentioned to be AGM in regard to employees in PS-4 and below. It has been shown in Annexure R-13 of the year 1992, Annexure R-14 of the year 1991, Annexure R-15 of the year 1990, the rank of the petitioner has been shown as PS-3, meaning thereby the leave of the petitioner could have been sanctioned by the Manager, but in the present case what ever the record has been produced on the file, the leave was sanctioned by the AGM who was a higher authority than the Manager. Rule 5 says that the leave could be sanctioned by the AGM of the rank of PS-4 and below. The petitioner was admittedly Ps-3 which is below Ps-4 and AGM was entitled to sanction the leave of PS-3 well.It cannot be authority or that it was got sanctioned by deceitful manner. The respondents relies on Annexure R-4. the instructions issued on 22.10.1990 to the effect that the leave without pay shall be sanctioned only by the General Manager. It is stated in Annexure R-4 that un-authorised absentism is liable for disciplinary action, but in genuine cases supported by the documents leave without pay can be regularised and in such cases it will not amount to un-authorised absence. It was decided that such leave shall be sanctioned only by the GM. It is stated in Annexure R-4 that un-authorised absentism is liable for disciplinary action, but in genuine cases supported by the documents leave without pay can be regularised and in such cases it will not amount to un-authorised absence. It was decided that such leave shall be sanctioned only by the GM. However, Annexure R-4 is only the instructions which goes to contrary to the rules. But still some of the period involved in the charge-sheet does not fall under the instructions Annexure R-4. Another point which is to be determined is that if an employee applies for short term leave of two or three hours or one day is recommended or sanctioned by the AGM, it is upto the immediate higher officer to send the application to the GM and in case the AGM or DGM by mistake sanctions the leave, which he was entitled to sanction under Annexure R-3, it cannot be said that the fault should lie on the delinquent official. The leave of the employee if it is to be sanctioned or regularised is to be passed through the hierarchy of the officers i.e. the immediate officer of the employee who is recommendatory authority as per the proforma. In the present case, not only the recommendations have been made, but the leave itself was sanctioned. I will not go into the matter whether Annexure RI could have been amended by the Instructions issued by the GM in view of the above said observations. 4. For the discussions above, it can be held that there was hardly any legal evidence before the enquiry officer to come to a finding that the petitioner had proceeded un-authorisedly and thus there being no legal evidence before the enquiry officer the finding of the enquiry officer positively is perverse finding and are not binding on the petitioner. The High Court can go into the matter to find whether the findings are perverse or not or are based on any legal evidence as has been held by the Hon'ble Supreme Court in the case of Raj Kumar v. UOI, AIR 1964 SC 364 . 5. An objection has been taken that the GM was the competent authority and not the DGM to pass the impugned order. The impugned orders have been passed by the DGM or communicated as alleged in the written statement. 5. An objection has been taken that the GM was the competent authority and not the DGM to pass the impugned order. The impugned orders have been passed by the DGM or communicated as alleged in the written statement. Reliance has been placed by the respondents on Annexure R- 1. Annexure R-1 is note written by Shri D.R. Trehan DGM, discussing in the noting in regard to both the charge-sheets that he had perused two enquiry reports. He had carefully examined the proceedings and findings of the enquiry officer and he was in agreement with it. The charges were fully proved. He had also perused the past record of the petitioner to enabled him to become a good officer, some general efforts were put. He says that the petitioner was warned. It is further stated that he was also advised not to behave in disorderly manner with his senior officer and he recommended that the petitioner be dismissed from service. The note was sent to the GM and the GM only counter signed it. Can it be said that the GM had applied its mind. Can it be said that the enquiry report in the proceedings of the enquiry or finding of the enquiry was ever examined by the GM. Can it be said that it was the GM who had seen the enquiry report, definitely the answer is no. Before the GM there was a note of Shri D.R. Trehan, DGM. It shall be relevant to reproduce the same as under "I have perused the above referred two enquiry reports. I have also carefully examined the proceedings/findings of the Enquiry Officer and I am in agreement with it. The charges levelled vide the above referred charge-sheets are fully established and proved against Shri D.R Agrawal. I have also perused his past service record which is evident that in order to enable him to become a good officer, some of the genuine efforts were put in i.e. he has been warned for unauthorised absence, his annual increment has not been paid for a reasonable time, he was apprised for the adverse/poor assessment in ACRs, he was also advised not to behave in a disorderly manner with his colleagues and senior officers. In view of the seriousness of the acts of misconducts enumerated in the charge-sheet dated 6.4.1992 & 18.4.92 and conduct of Shri Agarwal being of general affront to the Management and Rules of the Company applicable to him, it is recommended that Shri D.P Agrawal may be dismissed from the services of the Company." From the above note of DGM, it is very clear that note is based on a so called behaviour of the petitioner with his colleagues and senior officers which was not the allegation in the charge-sheet. It was sent to the GM for approval who only counter signed it on the same day. It was the duty of the GM to have gone through the enquiry report and enquiry proceedings himself and to have reached to the conclusion by applying his mind. The note of the DGM who has passed the impugned order clearly shows that it is the DGM who has applied his mind to the facts of the case and not the GM and the GM only counter signed the note of the DGM. It is not the requirement of law. It is the disciplinary authority himself who has to pass speaking order which has not been done in the present case, therefore, the order was not passed by the competent authority, i.e. G.M. 6. Even though the rules and the instructions do provide that if there is a reasonable cause, the competent authority can regularise the absence, however, in the present case the leave itself was sanctioned at the relevant time and it was upto the office whether any leave was to be put up before the competent authority for sanctioning it as leave without pay. The petitioner in his reply to the charge-sheet and also in appeal had attached the medical certificates in regard to his pitiable condition in regard to the health of his son who had sufferings of attack of epilepsy and his wife who had under gone for major operation and had also brought out the circumstances before the competent authority. It was the duty of the competent authority to go into the matter, but none of the authority below had discussed the defence of the petitioner in this regard. It was the duty of the competent authority to go into the matter, but none of the authority below had discussed the defence of the petitioner in this regard. For the reasons that the rules do provide that in general cases, even the un- authorised absence can be authorised by way of leave without pay, it was the duty of the respondents to have considered this aspect while deciding the case of the petitioner, which has not been done in the present case and thus, it can be said that no speaking order have been passed touching the defence of the petitioner or giving any finding on it. 13. In regard to the 2nd charge-sheet Annexure-18, it had been submitted by petitioner that he was present in the factory at 9.30 a.m. to 10.30 a.m. on 6.3.1992 and there was entry in this regard in the register of the factory. For the reasons that the enquiry had been dealt exparte, the factory record was not available with the enquiry officer and in such circumstances instead of relying on the oral statement, it was the duty of the enquiry officer to have found out the truth by calling the record of the factory. The petitioner had specifically mentioned this fact in the reply filed by him. The observations of the enquiry officer in this regard that the petitioner should have produced documentary evidence even though enquiry is exparte is not understandable. He should have called the documents himself to see whether there was any truth in the assertion of the petitioner or not. Admittedly, the enquiry officer failed in the duty to enquire into the matter in accordance with law and the finding in this regard cannot be held to be based on legal evidence and are perverse and are set-aside. 14. For the reasons mentioned above, the other points raised by the petitioner need not be answered. The impugned orders Annexures 150, the order of dismissal passed on 23.12.1992 and the appellate order Annexure 157 passed on 23.2.1993 cannot be sustained in the eyes of law and, therefore, are set-aside to be illegal, perverse. void and not based on any legal evidence and also against the principles of natural justice. The impugned orders Annexures 150, the order of dismissal passed on 23.12.1992 and the appellate order Annexure 157 passed on 23.2.1993 cannot be sustained in the eyes of law and, therefore, are set-aside to be illegal, perverse. void and not based on any legal evidence and also against the principles of natural justice. The petitioner shall be entitled to all the consequential reliefs which shall be awarded to the petitioner, within a period of three months from the receipt of the certified copy of this order. 15. The writ petition is allowed with the observations made above. Costs are quantified as Rs. 2,000/-.Writ Petition Allowed. *******