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2009 DIGILAW 279 (JK)

Vijay Kumar Atri v. State Of J. &K.

2009-06-02

NIRMAL SINGH

body2009
1. Petitioner through the medium of present petition has impugned order of his removal from service bearing No. 1343-LD(A) of 2000 dt. 29th of Aug2000. 2. Petitioner came to be appointed as Munsiff in the year 1980. He was promoted as Sub Judge in the year 1988. While the petitioners posting as Chief Judicial Magistrate, Leh, some complaints were received against him. An inquiry came to be conducted by the Vigilance Commissioner (Judicial), without the association of the petitioner. A report in this regard came to be submitted by the aforesaid Commissioner to the High Court. On the basis of the report, a departmental enquiry was contemplated against the petitioner. Pending said departmental enquiry, the petitioner was placed under suspension vide order No.359 dt. 28th of July94. A charge sheet was framed and served upon the petitioner on 29th of Oct94. Along with the articles of charge, the statement of articles of allegations and the evidence proposed to be relied upon in support of the charges was also communicated to the petitioner. Reply to the charges was filed by the petitioner on 22nd of Dec94, which was considered by the Full Court in its meeting held on 24th of April95. After considering the said reply, the Full Court took the following decision:- "After considering the written statement submitted by the Judicial Officer in reply to the charges, it is resolved to appoint an Inquiry Officer to hold an inquiry against the officer. Mr Justice V.K. Gupta, is appointed as Inquiry Officer who shall submit his report to the Court." 3. The Inquiry Officer recorded the evidence of the parties. But thereafter on transfer of Mr Justice V.K. Gupta, who was the Inquiry Officer, the matter was again placed before the Full Court for appointing a new Inquiry Officer. Accordingly in its meeting dt. 20th and 21st of May96, the Full Court appointed Honble Mr Justice Bilal Nazki, as the Inquiry Officer. On completion of the enquiry, a report was submitted to the High Court which was again placed before the Full Court. The Full Court, after considering the report of the Inquiry Officer, was of the view that the petitioner is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. Accordingly, a show cause notice in this regard bearing No. 222/GS dt. The Full Court, after considering the report of the Inquiry Officer, was of the view that the petitioner is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. Accordingly, a show cause notice in this regard bearing No. 222/GS dt. 10th of April98, was served upon the petitioner vide which he was given an opportunity to make a representation on the penalty proposed above. The petitioner responded to the said show cause notice by way of reply/representation dt. 8th of May98. After considering the said reply, the Full Court made a recommendation to the State for imposing the penalty of removal from service on the petitioner under Rule 30(vii) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Having accepted the said recommendations, the order impugned, referred to above, came to be passed against the petitioner removing him from services with immediate effect. It is this order, which as indicated above, is the subject matter of challenge in the present petition. 4. On notice, respondents have filed counter stating therein that the respondent-High Court has not committed any error in considering the report of the Inquiry Officer and reaching to a conclusion of imposing major penalty upon the petitioner who has been found guilty of charges 1, 8 and 11. It is stated that after the High Court was of the view that a major penalty of removal from service is to be imposed, a show cause notice was issued to the petitioner to which he replied, and therefore, the petitioner cannot now take a stand that no opportunity of being heard was afforded to him. It has been pleaded that the disciplinary authority of the petitioner for all purposes is the High Court, and therefore, the power has been rightly exercised so far as placing the petitioner under suspension, holding of enquiry and serving of charge sheet upon him is concerned. It is stated that findings recorded by the Inquiry Officer on charges 8 and 11 which stood proved against the petitioner are based on cogent evidence and are not perverse as alleged by the petitioner. It is stated that findings recorded by the Inquiry Officer on charges 8 and 11 which stood proved against the petitioner are based on cogent evidence and are not perverse as alleged by the petitioner. It is stated that while recording his finding on charge No.1, which though has been said to be not proved against the petitioner, the Inquiry Officer has observed that the petitioner had no control over his subordinate staff. It has been further observed by the Inquiry Officer that the receipts produced before him did not bear the signature of the Nazir concerned or of the Presiding Officer. This shows the lack of control of the Presiding Officer. It is stated that on the basis of the above observations recorded by the Inquiry Officer, the disciplinary authority differed with the view of the Inquiry Officer so far as charge No.1 is concerned, which was held to be proved by the disciplinary authority. It is stated that this court in writ jurisdiction cannot re-appreciate the evidence which has been considered by the Inquiry Officer, based on the report of which, the penalty was proposed against the petitioner by the disciplinary authority. It is stated that this court can only see as to whether any illegality has been committed during the enquiry proceedings. It is further stated that it is none of the function of this court to see whether there is sufficient evidence or not in coming to the conclusion as arrived at by the disciplinary authority. 5. Learned counsel for the petitioner have raised several contentions in order to show that the order impugned has not been passed in accordance with the law. It is stated that the petitioner being a member of Subordinate Judicial Service, was appointed by the Governor on the recommendation of the High Court in terms of Rule 42 of the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967. It is contended that so far as the matter regarding inquiry, suspension or imposing a punishment is concerned, there are no separate rules and the general rules i.e. The Jammu & Kashmir Civil Services(Classification, Control & Appeal) Rules, 1956, are followed. It is contended that so far as the matter regarding inquiry, suspension or imposing a punishment is concerned, there are no separate rules and the general rules i.e. The Jammu & Kashmir Civil Services(Classification, Control & Appeal) Rules, 1956, are followed. It is stated that in absence of any specific provisions, rules or regulations governing the filed regarding taking of disciplinary action, the competent authority in this case is the Governor or the State Government and the High Court has no authority to either suspend, issue charge sheet, hold inquiry or to propose the major penalty upon the petitioner. It is on this count, the order impugned is said to be illegal and without jurisdiction. It is further contended that the report of the Inquiry Officer was partially accepted so far as this related to findings on charge No.8 and 11. It is stated that with respect to finding on charge No.1, which stood not proved by the Inquiry Officer, the same was not accepted by the High Court, but while differing with the views of the Inquiry Officer, no reasons have been mentioned, and as a result, this has prejudiced the rights of the petitioner as he was not afforded an opportunity of hearing in this regard. It is stated that even though, the petitioner was issued a show cause notice on the proposed penalty, the same cannot be treated an opportunity of being heard to the petitioner as the High Court had already taken a view that the charge No.1 is also proved along with charges 8 and 11, and therefore, a major penalty is proposed. The order impugned is, thus, said to be violative of principles of natural justice. It is further stated that the petitioner remained suspended w.e.f. 28th of July94 to 29th of Aug2000, for a period of about six years and had a suffered a lot, and therefore, the imposition of a major punishment of removal of service is violative of the fundamental rights as enshrined in Article 21 of the Constitution of India. 6. Learned counsel for the petitioner further contended that the order impugned is also liable to be quashed on the ground that there was no evidence in support of the charges 1, 8 and 11. It is stated that so far as charge No.1 is concerned, this related to alleged misappropriation of an amount of Rs. 1200/-. 6. Learned counsel for the petitioner further contended that the order impugned is also liable to be quashed on the ground that there was no evidence in support of the charges 1, 8 and 11. It is stated that so far as charge No.1 is concerned, this related to alleged misappropriation of an amount of Rs. 1200/-. It is stated that the Enquiry Officer, after appreciating the evidence, had rightly concluded that the charge No.1 is not proved but the punishing authority without appreciating the evidence, reversed the said finding of the Enquiry Officer that too without affording an opportunity of hearing to the petitioner. This act of the punishing authority is said to be in violative of principles of natural justice. In support of the said submission, learned counsel for the petitioner have relied upon AIR 1998 SC 2713, Punjab National Bank and ors v. Kunj Behari Misra, AIR 1999 SC 3734, Yoginath D.Bagde v. State of Maharashtra and another and AIR 2001 SC 2398, State Bank of India and ors v. Arvind K.Shukla. 7. So far as charges 8 is concerned, it is stated that this charge is inter-related to charge No.9. When the petitioner has not been found guilty of charge No.9, therefore, he cannot be held guilty of charge No.8. It is stated that charge No.9 was with regard to imposition of fine of Rs. 1500/- on Gopal Singh and subsequent charging and remittance of only Rs. 350/- as fine in the treasury. It is stated that with regard to the same act charge No.8 has been framed against the petitioner that he imposed a fine of Rs.350 on Gopal Singh and later went to his shop, directed Gopal Singh to take the scooter to the police station, where the scooter was directed to be seized and Gopal Singh was directed to be kept in police station. It is contended that the authority concerned is not certain as to how much fine was imposed upon Gopal Singh. It is contended that the immediate controlling officer of the petitioner the then District & Sessions Judge, Leh, Sh A.K. Shan, became inimical to the petitioner and with a malafide intention, concocted a false story and procured a complaint from Gopal Singh and Surinder Singh against the petitioner. It is contended that the immediate controlling officer of the petitioner the then District & Sessions Judge, Leh, Sh A.K. Shan, became inimical to the petitioner and with a malafide intention, concocted a false story and procured a complaint from Gopal Singh and Surinder Singh against the petitioner. It is contended that the statement of Gopal Singh and Surinder Singh which has been relied upon by the Enquiry Officer, is not consistent with regard to the imposition of fine. It is stated that whatever has been deposed by them has been so deposed at the instance of Sh A.K. Shan, the then District & Sessions Judge, Leh. 8. In regard to charge No.11, it is contended that the Inquiry Officer has not rightly appreciated the evidence on record. It is stated that there was no charge against the petitioner that he remained absent from Nov93 to March94, as has been held by the Enquiry Officer. 9. The learned counsel for the petitioner have specifically pleaded that it was due to the ill-conduct of the then concerned District & Sessions Judge, Sh A.K. Shan,who was the immediate controlling officer of the petitioner, that the whole story of misappropriation or unauthorised absence on the part of the petitioner was manipulated. With regard to the unauthorised absence attributed to the petitioner, it is stated that the petitioner left the station with prior permission from his immediate controlling officer in the first week of Jan94, with the beginning of the winter vacations. It is stated that the charge against the petitioner as per charge No.11 was with regard to failure on the part of the petitioner in submitting the leave application for the period w.e.f. 2nd of Feb94 to 17th of Feb94 and from 18th of Feb94 to 3rd of March94, but the Inquiry Officer wrongly concluded that the petitioner was absent from Nov93 to March94, without specifically dealing with the above period of alleged absence which, in fact, was not the subject matter of charge thereby exceeding the scope of charge attributed to the petitioner. It is stated that Mr AK Shan deposed that the petitioner was absent from duty for the period 2nd of Feb94 to 17th of Feb94, whereas, the leave for the said period was sanctioned by the competent authority. It is stated that Mr AK Shan deposed that the petitioner was absent from duty for the period 2nd of Feb94 to 17th of Feb94, whereas, the leave for the said period was sanctioned by the competent authority. It is thus submitted that the Inquiry Officer has given his finding without any evidence on record and also exceeded his jurisdiction which action on his part is not in accordance with the law. It is thus contended that the competent authority without taking into consideration the said aspect of the matter, passed the order impugned which is against the principles of natural justice. 10. Learned counsel for the respondent-High Court, on the other hand submitted that this court in writ jurisdiction cannot interfere and review the evidence and findings recorded by the Enquiry Officer. It is stated that the said findings recorded by the Enquiry officer can only be interfered with if the same are perverse. It is further stated that interference can also be made when the rules governing the field are violated or if the principles of natural justice are not followed. It is stated that the Enquiry Officer after appreciating the evidence has rightly held the petitioner guilty of charges No.8 and 11, and therefore, the findings recorded in this regard should not be interfered with. Reliance in this regard has been placed on the judgments of the Apex Court reported as AIR 1975 SC 2151, State of Andhra Pradesh and ors v. Chitra Venkata Rao, (1997) 5 SCC 129, High Court of Judicature at Bombay v. Uday Singh and ors and AIR 1997 SC 3387, Union of India and anr v. G. Ganayutham. Reliance has also been place on a judgment of Calcutta High Court reported as AIR 1966 Cal 31, Parrys (Calcutta) Employees Union v. M/s Parry and Co. Ltd and ors. 11. Before appreciating the rival contentions, it would be apt to notice the articles of charges framed against the petitioner. These read as under:- "1. That a challan covering Mini Bus with Registration Mark and No. JK01 6507, a fine of Rs.2,500/- has been imposed and Receipt No.051083 dated 2.11.1993 issued for the amount to the Driver. Whereas, the counter foil of the receipt min the receipt book reveals that only fine of Rs.1300/- has been shown to have been imposed and remitted in Treasury. The amount of Rs. Whereas, the counter foil of the receipt min the receipt book reveals that only fine of Rs.1300/- has been shown to have been imposed and remitted in Treasury. The amount of Rs. 1200/- has been either misappropriated or the amount has been received as illegal gratification; 2. That the Receipts No.051082 and 051083 have been prepared by a Peon namely one Ab.Sattar and not by the Nazir of the Court, in violation of Rules and cannons of financial propriety. The receipts do not bear the initials of the Presiding Officers or Nazir of the Court. 3. That the said receipts were not delivered to the Driver and his brother on the day the fine was recovered but after elapse of few days, the practice is in violation of Financial Rules and Judicial precedents; 4. That you held a parallel enquiry and recovered the amount of Rs.1500 from Ab.Sattar Peon and then paid it to Ali Asger and his brother, despite the knowledge and the fact that District & Sessions Judge, Leh/Kargil was seized of the matter and was holding the enquiry thereto. Further you refused to part with and submit record thereto to the Distt. & Sessions Judge, Leh, despite due knowledge of the requisition of the record. The holding of the parallel enquiry, misuse of the powers as C.J.M. and breach of the Judicial discipline, is misconduct on your part. Your conduct in the complaint matter of Abdul Sattar Peon is thoroughly unbecoming of a Judicial Officer, breach of Judicial discipline and misuse of your powers as C.J.M. Leh. 5. That in the month of November, 1993, after dragging the female peon of your court Smt. Tsering Tsomo to your bed, you molested her at your Leh residence; 6. That you treated the Members o the Bar with contempt and misbehaved and insulted the Bar Members from time to time during your tenure as C.J.M, Leh; 7. That on one occasion , during your visits to Army Cantonment and Loungers after releasing the property pertaining to the Ordinance Depot, you obtained a Coat Parka and bukhari from the Ordinance Depot; 8. That after convicting and punishing one Gopal Singh with a fine of Rs. That on one occasion , during your visits to Army Cantonment and Loungers after releasing the property pertaining to the Ordinance Depot, you obtained a Coat Parka and bukhari from the Ordinance Depot; 8. That after convicting and punishing one Gopal Singh with a fine of Rs. 350/- on 7.6.1994, for driving the Scooter No. 3508 without RC, IC and DC, you assisted by your PSO, appeared at the shop of Gopal Singh seized the scooter for non payment of the fine and carried the scooter and Gopal Singh to the Police Station with instructions to concerned Police Officer to keep the shop keeper said Gopal Singh in Police Station till he comes back or rings them up. Your acts of visiting the shop of Gopal Singh to receive the fine, seized the scooter, arrest Gopal Singh and then to keep the scooter and Gopal Singh at the Police Station, amounts to violation of provisions of Law with regard to recovery of fine and wrongful confinement, besides display of conduct unbecoming of a Judge; 9. In the above case of Gopal Singh once punishment of fine of Rs.1500/- was announced on spot, your subsequent act of charging and remitting only Rs. 350/- as fine in Treasury is in violation of law, procedures and rules besides amounts to misconduct and impropriety in conducting the proceedings and acting as C.J.M. Leh; 10. The non payments and irregular remittance of the recovered fines and Judicial deposits in treasury from time to time and unauthorised retention of cash in hand is violation of codal provisions and breach of financial discipline. As many as 20(twenty) instances have been noted by the enquiry officer, (Vigilance Commissioner, District Judge, Vigilance) spreading over a period from 4.9.1993 to 23.6.94 to reveal non remittance, and irregular remittance in Treasury and various acts of omission and commissions in the maintenance of cash book. Your lack of control, negligence, and unbecoming conduct as Judicial Officer is manifested by these entries on record; 11. That after availing leave for 15 days ending Ist Feb.1994, you failed to apply for extension of leave in time (from 2.2.1994 to 17.2.1994) and no leave whatsoever was applied for from 18.2.1994 to 3.3.1994 and again failed to apply for further leave from time and through proper channel. That after availing leave for 15 days ending Ist Feb.1994, you failed to apply for extension of leave in time (from 2.2.1994 to 17.2.1994) and no leave whatsoever was applied for from 18.2.1994 to 3.3.1994 and again failed to apply for further leave from time and through proper channel. You left the station Leh without seeking permission from the competent authority and your un-authorised absence is in violation of leave rules and breach of judicial discipline." The Enquiry Officer after taking the evidence on record and hearing learned counsel for the petitioner and the department, observed as under:- "Charges No.1,2,3,4,5,6,7,9 and 10 have not been proved against the delinquent officer, but while dealing with Charge No.1, I have found that Shri Atri had no control over the Court. Charges 8 and 11 have been proved. I am of the view that a Judicial Officer should have a reputation which is un-assailable. How could a Judicial Officer give a chance to lady peon of his court to raise a finger against him? Because a Judicial Officer must be a step higher than others as far as their reputation and integrity is concerned, because unless Judicial Officers have credibility amongst the people at large, the whole institution suffers and it is only on the reputation of the Judges that Judiciary is taken in high esteem. Although the charges have not been proved strictly, except two charges, yet I believe that a strict action is needed." 12. Let me first consider the issue regarding the jurisdiction of the High Court to take action against the petitioner regarding placing him under suspension, holding departmental enquiry, serving of show cause notice and proposing the punishment of removal from service to the State Government. 13. In terms of Section 109 (corresponding to Article 233 of the Constitution of India) of the State Constitution, the appointment of district judges, initial posting and promotion of district judges in the State is made by the Governor in consultation with the High Court. 14. Section 110 (corresponding to Article 234 of Constitution of India) of the State Constitution deals with the recruitment of persons other than the district judges to the judicial service. 14. Section 110 (corresponding to Article 234 of Constitution of India) of the State Constitution deals with the recruitment of persons other than the district judges to the judicial service. The said Section is relevant and is being reproduced below:- "110.Recruitment of persons other than district judges to the judicial service: Appointments of persons other than district judges to the judicial service of the State shall be made by the Governor in accordance with rules made by him in that behalf after consultation with the Public Service Commission and with the High Court." Section 111 of the Constitution of J&K(corresponding to Article 235 of the Constitution of India), provides as under:- "111.Control over subordinate courts: The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of district judge shall be vested in the High Court; but nothing in this section shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law." 15. In view of the above, the word "control" used in Section 111 of the State Constitution (corresponding to Article 235 of the Constitution of India), has to be viewed in a wider aspect and this control of the High Court over the subordinate courts would relate to service of the judicial officers regarding their probation period, transfers and posting and will also include the disciplinary matters and power to recommend the imposition of major punishments. This control of the High Court over the subordinate courts would be a complete control subject to the power of the Governor in the matter of appointment, initial posting and promotion to the post of District Judge as mentioned in Section 109 of the State Constitution, noticed above. Therefore, the High Court in exercise of powers under Section 111 of the State Constitution, can initiate disciplinary proceedings against a delinquent official and recommend imposition of major punishment as has been done in the present case. Therefore, the High Court in exercise of powers under Section 111 of the State Constitution, can initiate disciplinary proceedings against a delinquent official and recommend imposition of major punishment as has been done in the present case. In T.R. Parihar v. State of J&K, SLJ 1987 (J&K) 57, a Division Bench of this Court considered the above aspect of the matter and after taking note of the various judgments passed by the Apex Court observed as under:- "Thus from what has been noted above, it can now be safely concluded to be the settled law that the High Court has the exclusive and absolute control over the subordinate judiciary in the matter of disciplinary proceedings and it is the High Court alone, to the exclusion of all other authorities, which can initiate disciplinary proceedings against members of the subordinate judiciary including District and Sessions Judges, suspend them pending the enquiries (AIR 1957 SC 246) and impose punishment on them, other than the punishment of dismissal, removal or reduction in rank, subject to the conditions of service and the right of appeal, if any, granted by the conditions of service. This exclusive, absolute and comprehensive control of the High Court over the subordinate judiciary is designed to protect and ensure the independence of the judiciary and no inroad, which may have any effect of eroding the independence of the judiciary, can be permitted. The control of the High Court over the subordinate judiciary is absolute in character and comprehensive in nature.." 16. The Apex Court in number of cases while interpreting word "control" as occurring in Article 235 of the Constitution of India (corresponding to Section 111 of the J&K State Constitution) has held that in terms of Article 235, the control of subordinate judiciary is vested in the High Court. In (1997) 6 SCC 339, High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil and another, it has been observed as under:- "It would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court" 17. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court" 17. In AIR 1999 SC 3734, Yoginath D.Bagde v. State of Maharashtra and another, a three Judges Bench of the Apex Court while dealing with the above aspect has observed as under:- "Read with Articles 233 and 234, the word "control" used in Article 235 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words "control over district Courts and Courts subordinate thereto", which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation completion of the period of probation, their posting, transfers and disciplinary matters including power to recommend major punishments. Thus, the "control" vested in the High Court is complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges. For imposing major punishment, including the punishment of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers under Article 235 of the Constitution, hold disciplinary proceedings and recommend the punishment to be imposed on the delinquent to the Governor who alone would be competent to impose such punishment having regard to the provisions of Articles 233 and 234." 18. Similar view has been taken in the case reported as (1999) 7 SCC 725, High Court of Orissa v. Sisir Kanta Satapathy. 19. In view of the above legal position, it can safely be concluded that under the Constitution, the High Court has the overall control over the subordinate judiciary and this is a complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges and the High Court in exercise of its powers under Article 235 (corresponding to Sec.111 of State Constitution) can hold disciplinary proceedings and recommend the punishment, if any, to be imposed on the delinquent official to the Governor. The plea of the petitioner that the High Court had no power to initiate disciplinary proceedings against him and propose imposition of major punishment of removal from service to the Governor, is thus, without any basis in view of the law laid down by the Apex Court. 20. The next contention of the learned counsel for the petitioner, as noticed above, is that charge No.1 was held to be not proved against the petitioner by the Inquiry Officer but the High Court while disagreeing with the findings of the Inquiry Officer in this regard has not given any reasons. It is stated that the High Court has acted in violation of the principles of natural justice in as much as, it did not give any opportunity of being heard while arriving at a conclusion that the findings recorded by the Inquiry Officer are not acceptable and liable to be reversed. It is stated that no notice in this regard was given to the petitioner as to on re-appraisal of which evidence, the said conclusion has been arrived at. It was also contended that the High Court had already taken a view that the punishment is to be imposed and it was only in respect of the said proposed punishment of removal of service that the notice dt. 10th of April98, was given to him, which cannot be treated as an opportunity of hearing. 21. Before considering the above submission of the learned counsel for the petitioner, it would be apt to notice that action against the petitioner was taken in terms of the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, (hereinafter referred to as the `Rules of 1956). The penalty imposed in the present case in terms of Rule 30(vii) of the Rules of 1956, is a major penalty. 22. In the case in hand, the charge No.1 was held to be not proved against the petitioner by the Inquiring authority. But the disciplinary authority disagreed with the findings of the Inquiry officer and was of the view that the said charge stands established. However, while arriving to such a conclusion, no reasons were recorded. 22. In the case in hand, the charge No.1 was held to be not proved against the petitioner by the Inquiring authority. But the disciplinary authority disagreed with the findings of the Inquiry officer and was of the view that the said charge stands established. However, while arriving to such a conclusion, no reasons were recorded. I am of the opinion that if the punishing authority is to differ with the findings recorded by the Enquiry officer, then it is incumbent upon the said authority to record its reasons and a show cause notice has to be issued to the delinquent official along with the reasons recorded for differing with the findings of the enquiry officer, so that he may reply to the same. In case, the said course is not adopted by the punishing authority, then, the action taken by the punishing authority in proceeding against the delinquent official on the basis of disagreement with the finding of the enquiry officer without giving reasons, would be not in accordance with the law and also violative of principles of natural justice. The disciplinary authority, in this case, on the other hand, issued show cause notice to the petitioner dated 10th of April98, which included in it the proposed penalty of removal from service. The petitioner through the present notice was directed to make a representation against the penalty proposed. The said authority did not record its reasons for differing with the findings recorded by the Enquiry Officer and did not provide the petitioner any opportunity of hearing by providing the said report to him so that he could make an effective representation before the said authority. The show cause notice issued to the petitioner dt. 10th of April98, in which the penalty of removal from service was proposed to be imposed, which did not contain any reasons for differing with the findings of Enquiry Officer cannot be said to be a notice, which was required to be issued in accordance with the law and also cannot be said that a proper opportunity of hearing was provided to the petitioner by the disciplinary authority. The said action is thus, held to be contrary to the principles of natural justice also, as the petitioner who was already held not guilty of charge No.1 by the Inquiry Officer, was found guilty of the said charge by the disciplinary authority without being afforded an opportunity of hearing on the basis of the evidence on which finding of `not guilty was recorded by the Inquiry Officer. 23. In AIR 1963 SC 1612, The State of Assam and another v. Bimal Kumar Pandit, the Apex Court has observed as under:- "..We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. 24. In AIR 1998 SC 2713, Punjab National Bank and others v. Kunj Behari Misra, the petitioner was found to be not guilty by the Inquiring Authority but the disciplinary authority took a different view and did not agree with the findings of the Inquiring authority and penalty was proposed against the petitioner. Even though, in the above case, the Regulations governing the field did not specifically state that when the disciplinary authority disagrees with the findings of the inquiring authority, it is required to record its own reason for such disagreement and required to give a hearing to the delinquent officer, the Apex Court placing reliance on an earlier decisions in the cases of Institute of Chartered Accountants of India v. LK Ratna, AIR 1987 SC 71, and Ram Kishan v. Union of India, 1995 AIR SCW 4027, observed as under:- "..If the inquiry officer had given an adverse finding, as per Karunakars case (1994 AIR SCW 1050) (supra) the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority." 25. In para 19 of the judgment in the aforementioned case, it was further observed as under:- "As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer." 26. In Yoginath D.Bagde v. State of Maharashtra and another, AIR 1999 SC 3734, the Apex Court relying on Kunj Bihari Misras case (supra), has observed that a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer but also at the stage when the said findings recorded by the Enquiry Officer are considered by the Disciplinary authority and the said authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. In para 33, it has further been observed as under:- "If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinions should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution." 28. Similar view has been reiterated in the case of State Bank of India and others v. K.P. Narayanan Kutty, (2003) 2 SCC 449 and SBI and others v. Arvind K.Shukla, (2004)13 SCC 797, and it has further been held that opportunity should be afforded to the delinquent employee irrespective of whether or not some prejudice is shown to have been caused by denial of such opportunity. 29. 29. Again in National Fertilizers Ltd and another v. P.K. Khanna, (2005) 7 SCC 597, the Apex Court has held that when the disciplinary authority concurs with the finding recorded by the Inquiry Officer, then, no reasons are required but when the disciplinary authority differs with the findings recorded by the Inquiring authority, it has to give reasons, which in the present case has not been done by the disciplinary authority. 30. In the present case, as noticed above, charge No.1 was not proved against the petitioner by the Enquiry officer. The disciplinary authority disagreed with the said finding. However, the disciplinary authority did not record any reasons in this regard and, in fact, issued a show cause notice dt. 10th of April98, to the petitioner which included in it the proposed penalty. The said notice did not contain any reasons recorded by the disciplinary authority as to on the basis of what evidence, the said authority is disagreeing with the findings recorded by the Enquiry Officer. Therefore, in view of the above legal position, the conclusion arrived at by the disciplinary authority regarding disagreement with the Enquiry officer on charge No.1 without giving any reasons and ultimate imposition of penalty of removal from service on the basis of said charge, when no opportunity of being heard afresh has been given to the petitioner by the said authority, is said to be not in accordance with the law and is also held violative of principles of natural justice. The penalty on the basis of said charge, thus, cannot be imposed. 31. So far as charges No.8 and 11 are concerned, which stand noticed above, the petitioner has been found guilty of the same. 32. Submission made by the learned counsel for the petitioner so far as charge No.8 is concerned, as noticed above is that the Enquiry Officer has not appreciated the evidence in its right perspective and has wrongly concluded that charge No.8 stands proved. It is stated that both the charges i.e. charge No.8 and 9 are inter-linked and when the petitioner stands absolved of the charge No.9, then charge No.8 cannot stand against the petitioner. The petitioner has further alleged malafide against his immediate controlling officer i.e. the then District & Sessions Judge, Leh (Sh AK Shan), by stating that it was Mr Shan who manipulated the evidence against the petitioner. The petitioner has further alleged malafide against his immediate controlling officer i.e. the then District & Sessions Judge, Leh (Sh AK Shan), by stating that it was Mr Shan who manipulated the evidence against the petitioner. It has been specifically pleaded that Mr Shan had send some one with a complaint to the petitioner and wanted that the same should be entertained in a back date, which was not done by the petitioner. It has been further pleaded that Mr Shan also asked the petitioner to give him a Camera which was lying in the Malkhana, but the petitioner did not agree to the same. It was due to the said reason, it is stated that Mr Shan who was immediate controlling officer of the petitioner became inimical to him. So far as charge No. 11 is concerned, it is stated that the petitioner had left the station with prior permission from the concerned authority, and therefore, the unauthorised absence cannot be attributed to the petitioner. 33. It is settled proposition of law that this court while exercising the power of judicial review cannot act as a court of appeal, appreciate the evidence and substitute the conclusion so arrived at by the Inquiring authority but at the same time, it be seen that in a case of disciplinary enquiry, the technical rules of evidence have no application. More so, when the Enquiry Officer records its findings without any evidence or against evidence, then, this court in writ jurisdiction under Article 226 of the Constitution of India, has the power to re-appreciate the evidence to see as to whether there is evidence on record to reach a conclusion that the delinquent has committed the misconduct. Judicial review is meant to ensure that the conclusion arrived at by the Inquiring authority is based on some evidence. In the case in hand, in terms of charge 11, noticed above, there was a specific allegation against the petitioner that he did not apply for leave through proper channel for the period 2nd of Feb to 17th of Feb94 and then from 18th of Feb94 to 3rd of March94. In the case in hand, in terms of charge 11, noticed above, there was a specific allegation against the petitioner that he did not apply for leave through proper channel for the period 2nd of Feb to 17th of Feb94 and then from 18th of Feb94 to 3rd of March94. The finding recorded by the Enquiry Officer in this regard shows that he has not taken into consideration that the charge against the petitioner is that he had not applied for extension of leave through proper channel for the above said period and instead recorded a finding that the petitioner remained absent for a long time w.e.f. Nov93 to March94, which was not the subject matter of charge No.11. Therefore, under these circumstances, when the findings are recorded contrary to the charge without any evidence and a doubt is raised regarding the presence of evidence on the basis of which such a finding is recorded, then, this court, as indicated above, can interfere in the matter. It is only keeping in view the said fact, I deem it proper to re-appraise the evidence on the basis of which finding of guilt has been recorded by the Enquiry Officer against the petitioner so far as aforementioned charges 8 and 11 are concerned. 34. The charge No.8, as noticed above, relates to convicting and punishing one Gopal Singh with a fine of Rs. 350/- for driving the scooter without RC, IC and DC, and thereafter visiting the shop of Gopal Singh by the petitioner along with his PSO; carrying the scooter along with Gopal Singh to the police station concerned and instructing the Incharge Police officer to keep Gopal Singh in police lock up till the petitioner comes back or rings him up. 35. In this regard, it be seen that the Enquiry Officer has examined one Surinder Singh who is the brother of Gopal Singh. He deposed before the Enquiry Officer that his brother Gopal Singh had been fined Rs. 1000/-, out of which Rs. 300/- were paid and remaining amount could not be paid. He further stated that he was under an impression that the fine has been imposed by Mr Shan as he was always treating Mr Atri as Mr Shan. He deposed before the Enquiry Officer that his brother Gopal Singh had been fined Rs. 1000/-, out of which Rs. 300/- were paid and remaining amount could not be paid. He further stated that he was under an impression that the fine has been imposed by Mr Shan as he was always treating Mr Atri as Mr Shan. He has further stated that when the scooter was seized by the police on the instructions of Mr Atri, he went to the residence of Mr Shan and moved an application for release of the scooter and it was on the next day that the scooter was released. 36. In his cross-examination, Surinder Singh stated as under:- "He stated that during this episode he has always thought that the Judge in question was Mr. Shan as he was always treating Mr Atri as Mr. Shan, therefore, he went to the residence of Mr Shan, thinking that it was he who had fined his brother. He stated that on reaching there, he saw a different person and he narrated the whole story to Mr Shan, then, when he realized the difference, he came up with an application to the Sessions Judge for release of the scooter and also of his brother. He submitted that he wrote the application himself and he does not remember whether he has affixed any stamp on it or not. He does not remember whether Mr Shan had called any report from the police. He submitted that his brother was released immediately when Mr Shan telephoned the police station. The scooter was released on the next day. There was a written Docket from the court of Sessions Judge for the release of the scooter. He further stated that Sessions Judge has told him that no fine was needed to be paid as the case has been closed." 37. Gopal Singh was also examined. He deposed that on 7th of June94, when he was driving the scooter, he was stopped by the traffic police. But as he was not having the papers, he was fined Rs.1000 by the Magistrate. He has deposed that he did not know Mr Atri and was of the impression that he was fined by Mr Shan. He deposed that on 7th of June94, when he was driving the scooter, he was stopped by the traffic police. But as he was not having the papers, he was fined Rs.1000 by the Magistrate. He has deposed that he did not know Mr Atri and was of the impression that he was fined by Mr Shan. He has further stated as he was not able to pay the whole fine, Mr Atri, accompanied by a policeman came to his shop after one or two days and directed him to drive the scooter to police station, where he was kept under lock up and was released after an hour when someone had telephoned in the police station. 38. Another witness examined by the Enquiry Officer is H.C. Krishan Kumar, a police official, posted at that time at police station, Leh. He deposed that on the asking by another Constable, he came out of the police station and met Mr Atri, C.J.M, Leh, who told him that a scooter has been seized by him regarding which an entry was directed to be made in the register concerned. He further deposed that he did not see the owner of the scooter nor the person who had brought the scooter. It was after some time that a person came to the police station and claimed himself to be the owner of the scooter. He further deposed that Sessions Judge telephoned him and asked him why somebody was kept in lock-up. He, however, denied that someone was kept in custody. The scooter as per him was released on the orders of Sessions Judge. 39. At this stage, it would be apt to notice the statement made by one Vijay Kumar Bhan, who was serving as Nazir in the court of CJM, Leh at the relevant time. He has deposed that on 7th of June94, pursuant to challan EXPW-NA and conviction recorded overleaf imposing fine of Rs.350/- I had taken Rs. 300 from accused Gopal Singh. I had not issued any receipt of this amount because the accused had told me that the would pay the balance Rs.50 next day. He deposed that he did not even reflect this in any accounts book nor even deposited the said amount of Rs. 300 in Govt. 300 from accused Gopal Singh. I had not issued any receipt of this amount because the accused had told me that the would pay the balance Rs.50 next day. He deposed that he did not even reflect this in any accounts book nor even deposited the said amount of Rs. 300 in Govt. treasury till date i.e. 13th of Sept95, even though he had made a mention of the same in the report sent to the Sessions Judge. He further deposed that the Sessions Judge had also made an inspection in May94 and not in Nov93. 40. A perusal of the deposition given by the aforementioned witnesses shows that contradictory statements were made by them before the Enquiry Officer. Both Surinder Singh and his brother Gopal Singh were not aware of the fact that a fine of Rs. 350/- only has been imposed. Both of them have stated that a fine of Rs.1000/- was imposed out of which Rs.300/- were paid, whereas it has come on record that, in fact, fine of Rs.350/- only was imposed. It is also apparent from the statement made by the Nazir concerned that he received an amount of Rs. 300 from the accused who agreed to pay the remaining amount of Rs.50/ next day. As per the statement of Nazir, he did not deposit the amount with the treasury uptil 13th of Sept95, i.e. the date when he made the statement. He has further deposed that inspection was also done by the Sessions Judge in May94, but it is not apparent from the record as to whether any action was taken against him for not depositing the amount of fine with the treasury. Therefore, it can safely be said that both Surinder Singh and Gopal Singh made false statements that a fine of Rs.1000 was imposed. A perusal of the statement made by Surinder Singh, noticed above further shows that he approached Mr Shan at his residence and also filed an application for release of scooter and his brother. He, however, is not sure as to whether any report was called by Mr Shan, the then District and Sessions Judge, Leh. Even from the record it is not forthcoming as to whether any application was moved by Surinder Singh or his brother Gopal Singh and whether any order for release of scooter was passed by Mr Shan. He, however, is not sure as to whether any report was called by Mr Shan, the then District and Sessions Judge, Leh. Even from the record it is not forthcoming as to whether any application was moved by Surinder Singh or his brother Gopal Singh and whether any order for release of scooter was passed by Mr Shan. Therefore, in case, the scooter was directed to be kept in the police station by the petitioner, the same could have been released only if a revision was filed by the owner of the scooter against the order passed by the authority who had seized the scooter i.e. the petitioner, which, as indicated above, is not apparent from the record as to whether any remedy was availed in this regard by Gopal Singh, owner of the scooter or his brother Surinder Singh and whether any order was passed by the District & Sessions Judge in revision, if any or whether the District & Sessions Judge had passed the order suo-moto. But even when such an order is to be passed, this should have been in writing which, as indicated above is not apparent from the record. Even if it is presumed that Gopal Singh was kept in illegal custody and his scooter was seized, even then, there must have been release warrants in this regard, but no such record was available before the Enquiry Officer. In the absence of any such material on record, the evidence given by Gopal Singh or his brother Surinder Singh should not have been relied upon by the Enquiry Officer. Even it has come in the evidence of Head Constable Krishan Kumar, who at the relevant time was posted in the police station concerned that he did not see the owner of the scooter nor the person who had brought the scooter in the police station. The said witness had further deposed that Gopal Singh and his brother came to the police station after some time and wanted that their scooter should be released which shows that Surinder Singh and Gopal Singh have made a false statement that Gopal Singh was kept under lock up on the directions of the petitioner. The said witness had further deposed that Gopal Singh and his brother came to the police station after some time and wanted that their scooter should be released which shows that Surinder Singh and Gopal Singh have made a false statement that Gopal Singh was kept under lock up on the directions of the petitioner. The evidence given by Gopal Singh, Surinder Singh and Head Constable Krishan Kumar, rather casts a doubt regarding involvement of Sh AK Shan, then District & Sessions Judge, into the whole matter and also speaks of malafide intention on his part to instigate Gopal Singh and Surinder Singh to make a false statement against the petitioner. This whole approach on the part of Mr AK Shan, leads to nothing but to only conclusion that the petitioner has rightly attributed malafide on the part of his immediate controlling officer Mr AK Shan, which malafide stands proved on the basis of the record. In this regard, it would be relevant to mention that Mr A.K. Shan, the then District & Sessions Judge, wrote a letter to the petitioner when the petitioner was at Jammu. Through the medium of said letter, Mr AK Shan, requested the petitioner to entertain a complaint of some one in a back date. The relevant extract of this letter is as under:- "Dear brother Atri Sahib. Adab. ..... .... The bearer is coming to you. He has a complaint with him. It is to be entertained by you. The same be marked a day or two earlier to date. When you left for Jammu. Please do it necessarily." 41. It has been pleaded by the petitioner that as the said complaint was not entertained by the petitioner as he was already on leave, this led to creating the whole problem and Mr A.K. Shan, being his controlling officer got annoyed with the non-entertainment of complaint which was sent by him to the petitioner. It has further come on record that Mr A.K. Shan also demanded a Camera which was lying in the Malkhana but the petitioner did not oblige him. 42. In this regard, it would be apt to notice that the petitioner has specifically pleaded that he had requested the High Court to transfer Mr AK Shan from Leh, before starting of any enquiry proceedings against the petitioner but the said request was not accepted. 43. 42. In this regard, it would be apt to notice that the petitioner has specifically pleaded that he had requested the High Court to transfer Mr AK Shan from Leh, before starting of any enquiry proceedings against the petitioner but the said request was not accepted. 43. The malafide on the part of Mr AK Shan, the then District & Sessions Judge, Leh, is also apparent from the perusal of the finding of the Enquiry Officer. The relevant para in this regard may be noticed as under:- "Before parting with this enquiry, I would also suggest that an enquiry be initiated against Mr. Shan, who was the District & Sessions Judge, Leh, at the relevant time. He has written a letter to Mr Atri, when Mr Atri was at Jammu and asked him to take congnizance in a complaint at Jammu and he has also asked him to show that the complaint is entertained on a date when Mr Atri was at Leh. If this is the conduct of a senior Judicial Officer, who is the Principal Judge of District, then God alone can save this institution. Since Mr Shan has admitted having written letter to Shri Atri, I think he is worse than Mr Atri, therefore, it is recommended to the Full Court to order an enquiry into the conduct of Mr Shan" 44. It would also be apt to notice that the petitioner had not impleaded Sh AK Shan, the then District & Sessions Judge, Leh, against whom he alleged malafide, as party respondent to the writ petition. Therefore, in view of the serious allegations levelled against him by the petitioner and he being not a party respondent, it was difficult for this court to adjudicate upon this matter, and therefore, keeping the said fact into consideration, this court on its own motion impleaded Sh AK Shan, as party respondent to the writ petition. He was duly served but has not chosen to file any response to the allegations levelled against him. Therefore, once these allegations have remained unchallenged and unrebutted, then these would be deemed to have been admitted. 45. Mr AK Shan, in his statement before the Enquiry Officer, has also admitted that he is the author of the aforementioned letter. He was duly served but has not chosen to file any response to the allegations levelled against him. Therefore, once these allegations have remained unchallenged and unrebutted, then these would be deemed to have been admitted. 45. Mr AK Shan, in his statement before the Enquiry Officer, has also admitted that he is the author of the aforementioned letter. Therefore, as indicated above, the stand taken by the petitioner that it was Mr A.K. Shan, his immediate controlling officer, who manipulated the whole evidence against the petitioner with a malafide intention has to be accepted. 46. At this stage, it would be apt to notice the statement made by one Ghulam Mohammad Khan, who at the relevant point of time was serving as Steno Typist and attached with CJM,Leh. What has been stated by him reads as under:- "I was already working as Steno-typist in the court of C.J.M. Leh. Shri Ashok Shan has been posted as Sessions Judge, Leh for about three years now. In the month of November-December 1993 I was called by Shri Ashok Shan, Sessions Judge, Leh, in his chambers and told by him that I should not work with Shri Atri. I replied that I was attached with him and that I have to work with him. Shri Shan told me that if I did not agree with his suggestion, he can put me to problems whereas Mr Atri cannot do anything to me. Some time in September 1993, Mr Atri, on conviction in a criminal case, sentenced an accused whose name I do not know, to one years imprisonment and fine. The lawyers at Leh, more particularly the Public Prosecutor Shri Sangay Dorjay, protested against this sentence, which ultimately became a cause for the lawyers of Leh passing a resolution against Shri Atri. This resolution was passed in Chamber of Shri Ashok Shan. The accused above mentioned was a relative of Shri Sangay Dorjay, PP. When the resolution was passed by the Bar Members at Leh in the chamber of Sessions Judge, Shri Ashok Shan was present there. .. .. A departmental enquiry has been going on against me with regard to a complaint about my having taken Rs.1000/-. Shri Ashok Shan is the Enquiry Officer in that case. I have made a statement before him in that enquiry on 19.2.1996 at Leh. .. .. A departmental enquiry has been going on against me with regard to a complaint about my having taken Rs.1000/-. Shri Ashok Shan is the Enquiry Officer in that case. I have made a statement before him in that enquiry on 19.2.1996 at Leh. During the course of enquiry, Shri Ashok Shan enquired from me as to why I had written to High Court that I was suspended because of the fight between Shri Ashok Shan and Shri Atri." 47. A perusal of the above statement made by Ghulam Mohd Khan, serving as Steno Typist at that time, clearly establishes that the then District & Sessions Judge, Leh, (Sh Ashok Shan) was acting as malafide against the petitioner which as per the petitioner was due to non entertaining of the complaint referred by Mr Shan and also due to non providing of the Camera from Malkhana to him by the petitioner. Under such circumstances, there is every possibility that Sh Ashok Kumar Shan, the then District & Sessions Judge and immediate controlling officer of the petitioner may have instigated aforementioned Gopal Singh and his brother Surinder Singh, who had approached Mr Shan at his residence, to make a false statement against the petitioner regarding visiting of the petitioner to the shop of Gopal Singh for recovery of remaining amount of fine imposed on him, taking of scooter to the police station and then directing the police officials concerned for keeping Gopal Singh in the lock up. 48. Therefore taking into consideration the finding recorded by the Enquiry Officer as also the statements made by Surinder Singh, Gopal Singh, Head Constable Krishan Kumar, Vijay Kumar Bhan, the then Nazir and Ghulam Mohd Khan,Steno Typist, noticed above, I am of the opinion that Sh A.K. Shan, the then District & Sessions Judge, Leh, who was the immediate controlling officer of the petitioner, was instrumental in instigating S/Sh Surinder Singh and Gopal Singh to make false statements against the petitioner, on the basis of which, the Enquiry Officer has wrongly concluded that charge No.8 stands proved against the petitioner. The Enquiry Officer has also not taken into consideration that there was no fine to the extent of Rs.1000/- as stated by Surinder Singh and Gopal Singh and that Gopal Singh was also not kept in lock up as per the statement made by Head Constable Krishan Kumar. The Enquiry Officer has also not taken into consideration that there was no fine to the extent of Rs.1000/- as stated by Surinder Singh and Gopal Singh and that Gopal Singh was also not kept in lock up as per the statement made by Head Constable Krishan Kumar. The conclusion, thus, so arrived at by the Enquiry Officer is based on surmises and conjectures and there was no evidence on record in this regard. The statements made by Surinder Singh, Gopal Singh and Head Constable Krishan Kumar are contradictory in nature, which should not have been relied upon by the Enquiry Officer. In terms of charge No.8 levelled against the petitioner, he had gone to the shop of Gopal Singh for recovery of remaining amount of fine imposed by the petitioner. Thereafter Gopal Singh was directed to take the scooter to the police station and a direction was given by the petitioner to concerned police officials to take into custody the scooter as also Gopal Singh and not to release the same until he rings them. Gopal Singh, in his statement has stated that he was directed to drive the scooter to police station and a policeman sat on the pillion of the scooter. He as noticed above, further deposed that he was kept in lock up and was released only after some one had ranged in the police station. Thereafter, he stated that it was Mr Shan who had telephoned in the police station and after that he was released. Whereas, Head Constable Krishan Kumar has stated that Gopal Singh and his brother Surinder Kumar had come to the police station later on and wanted that the scooter be released. He has denied that Gopal Singh was kept in lock up. The statement made by Surinder Singh and Gopal Singh further reveals that they were not aware as to how much fine has been imposed and as to who has imposed the fine. They have categorically stated that they were under the impression that fine has been imposed by Mr Shan. Therefore, as indicated above, the findings recorded by the Enquiry Officer so far as charge No.8 is concerned are not based on any evidence and can be said to be perverse. They have categorically stated that they were under the impression that fine has been imposed by Mr Shan. Therefore, as indicated above, the findings recorded by the Enquiry Officer so far as charge No.8 is concerned are not based on any evidence and can be said to be perverse. The proposition put forth by the learned counsel for the respondent-High Court that this court cannot reappraise the evidence, when taken into consideration in broader terms, thus, cannot be accepted. It is well settled that when the findings are perverse and are not supported by the evidence on record, then this court in exercise of its jurisdiction under Article 226 of the Constitution of India, as indicated above, can re-appraise the evidence and interfere in the matter in the interest of justice. In this regard, it would be apt to notice the observations made by the Apex Court in the case reported as State of Andhra Pradesh and others v. S.Sree Rama Rao, 1963 Supreme Court Service Rulings 641 (Vol.6). What has been said in this regard in para 7 of the judgment be noticed:- "Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds." In the present case also when the evidence which has come on record as noticed above, is taken into consideration, then it is difficult to observe that the findings as recorded by the Enquiry Officer with regard to charge No.8, could have been so recorded. So far as charge No.11 is concerned, the same relates to alleged unauthorised absence of the petitioner w.e.f. 2nd of Feb94 to 17th of Feb94 and then from 18th of Feb94 to 3rd of March94. The further allegation as per this charge against the petitioner is that he left the station without seeking prior permission from the competent authority. In this regard, it would be apt to notice the statement made by Mr A.K. Shan, who was the then immediate controlling officer of the petitioner. He has stated that in November93, the petitioner had left Leh and no leave was got sanctioned by the petitioner either from him or from the High Court. He, however, also admits that the petitioner had informed him that he is leaving the station. He further admits that later on, a sanction order of 15 days leave in favour of the petitioner was received by him which related to a period for the month of Jan94. He has further stated that petitioner remained absent from Leh from Nov93 to beginning of March94. The enquiry officer while returning his finding with respect to the above charge has observed that it is proved that "Sh Atri remained absent from duty for a long time, i.e. from November, 1993 till March94." 49. However, as indicated above, it may be noticed that there was no charge against the petitioner that he remained absent from Nov93. The enquiry officer while returning his finding with respect to the above charge has observed that it is proved that "Sh Atri remained absent from duty for a long time, i.e. from November, 1993 till March94." 49. However, as indicated above, it may be noticed that there was no charge against the petitioner that he remained absent from Nov93. The specific charge in this regard was that petitioner had not applied for extension of leave w.e.f. 2nd of Feb94 to 17th of Feb94 and thereafter for the period 18th of Feb94 to 3rd of March94. The Enquiry Officer, without taking into consideration the above aspect of the matter that a specific period of absence has been attributed to the petitioner by alleging that he had not applied for extension of leave, exceeded its jurisdiction and arrived at a conclusion that "Sh Atri was absent from Nov93". It may be mentioned here that so far as period from 2nd of Feb94 to 17th of Feb94 is concerned, leave has been sanctioned in favour of the petitioner which is apparent from the record but despite that Mr AK Shan and other witnesses examined by the Enquiry Officer have deposed that the petitioner was absent for this period also. The Enquiry Officer has also not looked into this piece of evidence that leave for the above period has been sanctioned in favour of the petitioner and on the other hand, recorded a finding that the petitioner is absent from Nov93 to March94. 50. So far as the period of absence attributed to the petitioner w.e.f. 2nd of Feb94 to 17th of Feb94 is concerned, the charge against him is that he failed to apply for extension of leave in time for the said period. A perusal of the record, however, as indicated above, shows that the petitioner earlier applied for earned leave w.e.f. 18th of Jan94 to Ist of Feb94. The said leave even as per the stand taken by respondents was sanctioned by the competent authority. Along with the record, there is another application moved by the petitioner seeking extension of leave w.e.f. 2.2.94 to 17.2.94 i.e. the period referred to above for which petitioner is said to have not applied for extension of leave. In view of the said application on record, it cannot be said that the petitioner had not applied for extension of leave for the above period. In view of the said application on record, it cannot be said that the petitioner had not applied for extension of leave for the above period. Even, a perusal of leave record file of the petitioner shows that petitioners leave for the above period stands sanctioned. This is apparent from the note of the concerned Section of the registry dealing with the leave record of Judicial officers. The said note indicates that the petitioner was only asked to route his application for the above period through proper channel, which was done by him. Therefore, to that extent the finding recorded by the Enquiry Officer relating to the above period i.e. 2nd of Feb94 to 17th of Feb94, can be said to be a finding without any evidence and cannot be accepted. The charge No.11 so far as it relates to the alleged period of absence w.e.f. 2.2.94 to 17.2.94, thus, cannot stand against the petitioner. 51. As per charge 11, the petitioner is also said to have left the station without permission from the competent authority. In this regard, it would be apt to notice the statement made by Mr Ashok Kumar Shan, who was the immediate controlling officer of the petitioner. The relevant extract of his statement reads as under:- "Perhaps it was in November 1993 that Sh Atri left Leh for Jammu for a long absence. He had not obtained or was sanctioned any leave in his favour in writing either from me or from High Court. He had, however, orally informed me that he was leaving and that he would send the leave sanctioned later on and send the sanction order to me." 52. A perusal of the above statement shows that the petitioner had, in fact, informed his controlling officer that he is leaving the station. The said aspect of the matter, however, has also not been taken into consideration by the Enquiry Officer. 53. So far as period relating to 18th of Feb94 to 3rd of March94 is concerned regarding which the charge against the petitioner is that he did not apply for the leave, the specific stand taken by the petitioner is that after availing leave upto 17th of Feb94, he joined his duties on 18th of Feb94, and attended the court work also. It is, however, not borne out from the record that the petitioner after availing the earned leave w.e.f. 18th of Jan94 to 17th of Feb94, joined his duties on 18th of Feb94. Therefore, under such circumstances, it is difficult to accept the pleading of the petitioner that he actually joined his services on the above said date. The said aspect of the matter, however, has to be viewed differently. There is no dispute that leave was granted in favour of the petitioner w.e.f. 18th of Jan94 to 17th of Feb94. This, as indicated above, is apparent from the note made by the concerned officers of the Registry in the personal leave file of the petitioner. In the said file, there is a note to the effect that there is no leave application for the period 18.2.94 to 3rd of March94. It is not the case that the District & Sessions Judge concerned, allowed oral permission in favour of the petitioner to leave the station for a particular period. Even the immediate controlling officer of the petitioner has not issued any notice to the petitioner to resume his duties or informed the High Court that the petitioner is absent from duty w.e.f. 18th of Feb94, but at the same time, there is also nothing on record to show that the petitioner, in fact, had joined his duties on 18th of Feb94, after availing the leave from 18th of Jan94 to 17th of Feb94, for which period leave was sanctioned by the High Court, which fact, as indicated above, is clear from the note made in the leave file of the petitioner. 54. The period of absence from 18th of Feb94 to 3rd of March94, has been attributed to the petitioner as a period of unauthorised absence. At this stage, it would be apt to notice the dictionary meaning of word `unauthorised. In New Oxford Advanced Learners Dictionary of Current English (Seventh Edition) by A.S. Hornby, the word "unauthorised" has been defined as under:- "without official permission". Therefore, in view of the above dictionary meaning of word "unauthorised", it cannot be said that the petitioner remained on unauthorised absence. He, in fact, has left the station with the permission from the immediate controlling authority which is clear from his statement noticed above. The said permission can be in writing or verbal but this permission should be from the controlling authority. He, in fact, has left the station with the permission from the immediate controlling authority which is clear from his statement noticed above. The said permission can be in writing or verbal but this permission should be from the controlling authority. Had it not come on record that the petitioner left the station with oral permission, then the position might have been different and he could have been declared absent from duty unauthorisedly but as indicated above, since the petitioner informed his immediate controlling officer before leaving the station, the period w.e.f. 18th Feb94 to 3rd of March94, for which petitioner is said to be absent from duty cannot be attributed as an unauthorised absence. The same, therefore, would be a case of overstaying the leave, for which the record can be examined and if the petitioner had not joined his duties on 18th of Feb94 after availing the sanctioned leave, then, the same period can be treated as leave of whatever kind due in favour of the petitioner. Even otherwise, if it is presumed that the petitioner has overstayed his leave and had not given any application for extension of his leave for the above mentioned period, then the controlling authority could have issued a notice to him to apply for extension of leave as the petitioner had already taken permission to leave the station from the immediate controlling authority. Therefore, taking into consideration the above circumstances, I am of the opinion that the punishment of removal from service due to non submitting of application for extension of leave for the above period would be a punishment not commensurate with the said act on the part of the petitioner. There is another aspect of the matter which also needs consideration. As already noticed above, the Enquiry Officer has observed in his finding that the act and conduct of the immediate controlling officer of the petitioner i.e. Shri A.K. Shan, the then District & Sessions Judge, Leh, has been found worse than the act of the petitioner. The Enquiry Officer recommended an enquiry to be initiated against Sh A.K. Shan also, which enquiry was conducted by the High Court and punishment of with-holding of promotion for a period of five years was imposed. The Enquiry Officer recommended an enquiry to be initiated against Sh A.K. Shan also, which enquiry was conducted by the High Court and punishment of with-holding of promotion for a period of five years was imposed. For facility of reference, the order passed in this regard, in so far as relevant is being reproduced below:- "Now, it is hereby ordered that in terms of the Honble Court Resolution dated 22.12.2001 penalty of with-holding of promotion for a period of next five (5) years is imposed on Shri Ashok Kumar Shan, Distt.& Sessions Judge, Bhaderwah for the said charges against him." 55. In view of the above, I am of the opinion that the competent authority while passing the order impugned in the case of the petitioner should have taken into consideration the finding of the Enquiry Officer whereby he has observed that the act of Sh A.K. Shan, the then District & Sessions Judge, Leh, is worse than that of the petitioner and should have imposed a punishment commensurate with the act committed by the petitioner regarding overstaying of leave. 56. For the reasons mentioned above, this petition is allowed. Order impugned No. 1343-LD(A) of 2000 dt. 29th of Aug2000, is quashed. The petitioner is held entitled to reinstatement with all consequential benefits minus monetary benefits after the period of his overstay of leave w.e.f. 18th of Feb94 to 3rd of March94, is settled by the competent authority. 57. A copy of this order is directed to be communicated to the Registrar General, for placing the same on the personal file of Sh A.K. Shan, the then District & Sessions Judge, Leh. 58. Disposed of accordingly along with connected CMPs, if any.