Shri N.Ramanjaneyulu Reddy v. United India Insurance Company Ltd.

the petitioner was working, was located at Kadiri, which is 80 k.ms. away from Dharmavaram Branch Office and hence postal delay of minimum four to five days will take place and the enquiry officer also accepted the explanation of the petitioner, but found that there was abnormal delay of 8 days, 12 days etc., and held that the charge is partly proved. He contended that the enquiry officer has not stated specific instances where there was delay in remittances and the finding is vague and hence cannot be stated to be proved. He submitted that the other charge against the petitioner is that he has misplaced 217 cover notes. The contention of the counsel for the petitioner is that the charge is not specific. As per the case of the presenting officer, the cover notes that are misplaced are the 5th copy and even according to the petitioner and the enquiry officer, the misplaced cover notes are 5th copy of the cover note. In the charge it is not stated in definite terms, which copy of the cover note is misplaced. As per Rule 25(3) of General Insurance (Conduct, Discipline and Appeal) Rules, 1975, the competent authority shall have to frame definite charge on the basis of the allegations against the employee. In the present case, the charge is vague and on this count alone, the finding of the enquiry officer shall have to be set aside, since the petitioner is not made known in specific terms, the imputations on him. He stated that the copy that is found misplaced in 217 cover notes, is the 5th copy and the presenting officer on behalf of the company also pleaded to this effect. He contended that the General Insurance Corporation of India has issued guidelines under circular dated 26.4.1999, for issuance of cover notes and the as per the said guidelines, only four copies are contemplated and maintenance of 5th copy is not at all contemplated. The petitioner, for the development of business of the company, used to maintain 5th copy, and misplacement of 5th copy, which is not at all contemplated under the circular dated 26.4.1999, cannot be of any consequence and no charge can be framed for the misplacement of 5th copy of cover note. The enquiry officer without appreciating the contentions raised by the petitioner in this regard, and without there being definite charge, enquired into and based on surmises and conjectures and by rejecting the relevant evidence, found the petitioner guilty and the same cannot be sustained. In support of this contention, he relied on the judgment of the Apex Court reported in M.V.BIJLANI v. UNION OF INDIA [(AIR 2006 SC 3475]. He alternatively contended that the petitioner has put in about two decades of unblemished service and the charges even assuming that they are proved, are only technical in nature and hence having regard to the long unblemished record and nature of charges, the punishment of removal from service, is shockingly disproportionate and hence the same needs to be set aside.

5. On the other hand, the learned counsel for the respondents vehemently contended that this court cannot sit as an appellate authority over the findings of the disciplinary authority and come to a different conclusion. She contended in departmental proceedings, preponderance of probabilities have to be considered and no strict rules of evidence are applicable and if there is some evidence, to prove the guilt of the delinquent, the findings of the enquiry officer cannot be interfered with by this court and the sufficiency or otherwise of the evidence, cannot also be gone into by this court. In the present case, the enquiry officer based on the evidence, has categorically found that the petitioner guilty of the charges and the same cannot be interfered with by this court. She contended that the petitioner has not pointed out any violation of specific rule or violation of the principles of natural justice. The learned counsel further has taken this court through the material on record and the report of the enquiry officer. She further contended that this court cannot interfere with the finding of the enquiry officer and the punishment imposed thereof, as they are in the domain of the disciplinary authority. In support of these contentions, she relied on the judgments reported in STATE OF AND. PRA. V. SREE RAMA RAO (AIR 1963 SC 1723), STATE OF ORISSA v. BIDYABHUSHAN (AIR 1963 SC 779), B.C.CHATURVEDI v. UNION OF INDIA [(1995)6 SCC 750], N.RAJARATHINAM v. STATE OF T.N. [(1996)10 SCC 371], STATE BANK OF PATIALA v. S.K. SHARMA [AIR 1996 SC 1669], TARA CHAND VYAS v. chairman & DISCIPLINARY AUTHORITY [(1997)4 SCC 565], SBI v. K.P.NARAYANAN KUTTY [(2003)2 SCC 449], STATE OF U.P. v. RAMESH CHANDRA MANGALIK [(2002)3 SCC 443], REGIONAL MANAGER, U.P.SRTC v. HOTILAL [(2003)3 SCC 605], SURESH PATHRELLA v. ORIENTAL BANK OF COMMERCE [(2006)10 SCC 572], U.P. SRTC v. VINOD KUMAR [(2008)1 SCC 115], STATE OF MEGHALAYA v. MECKEN SINGH N. MARAK [(2008)7 SCC 580] and UT OF DADRA & NAGAR HAVELI v. GULABHIA M.LAD [(2010)5 SCC 775].

6. Before appreciating the rival contentions, it is to be noticed that the scope of this court under Article 226 of the Constitution of India, is very limited and it is settled that this court has to examine the decision making process and if the findings are recorded based on no evidence or that no prudent person would arrive at such findings based on available evidence or if the findings are perverse, this court under the jurisdiction of judicial review, would interfere with such findings.

7. The main grievance of the petitioner in this writ petition is that the disciplinary authority imposed punishment without there being any evidence on record. In this regard it is necessary to look into the decision of the Constitutional Bench of the Apex Court in UNION OF INDIA v. H.C.GOEL (AIR 1964 SC 364), wherein it was held thus: this case, the conclusion of “20. . . . It still remains to be considered whether the respondent is not right when he contends that in the circumstances of Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311(2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney- General, we ought to add that he did not seriously dispute this position in law.” the Government

8. The Apex Court in STATE OF ASSAM v. MOHAN CHANDRA [AIR 1972 SC 2535], held that in departmental enquiry, charge cannot be sustained on mere conjectures in the absence of evidence. The Apex Court in the decision reported in KULDEEP SINGH v. THE COMMISSIONER OF POLICE & ORS. (JT 1999(8) SCC 603) held that if the findings of the enquiry officer or the disciplinary authority in the departmental enquiry are based on no evidence and are perverse, the same can be interfered with under Articles 32 or 226 by the Supreme Court or the High Court, as the case may be. In the said judgment the Apex Court considering the entire evidence on record, found that absolutely there was no evidence in support of the charge framed against the appellant therein and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse. The relevant portion is extracted as under: “6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by any ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.

7. In Nand Kishore v. State of Bihar, AIR 1978 SC 1277 = (1978)3 SCC 366 = 1978(3)SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and, that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence the charges delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse. framed against to sustain

8. The findings, recorded in a domestic enquiry, can be characterized as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this court in State of Andhra Pradesh v. Sree Rama Rao, 1964 2 LLJU 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India v. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors., 1976 Labour & Industrial Cases 4 ( SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805 = 1985(1) SCR 866 = (1984)4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of “guilt” is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.”

9. A learned single Judge of this court in K.SITARAM v. VICE- CHANCELLOR, S.V. UNIVERSITY, TIRUPATI [(1999(6) ALD 596)], considering the scope of judicial review on the departmental proceedings in the light of various judgments of the Apex Court, held that if the findings of the enquiry officer are not based on evidence, can be interfered with. The learned Judge has framed certain guidelines for exercise of judicial review under Article 226 of the Constitution in the departmental proceedings. They are extracted as under for better appreciation: “10. The parameters of judicial review of disciplinary proceedings are too well recognized and settled to merit an exhaustive and detailed analysis of the governing concepts as has evolved over a period of time. The concepts, however, to the extent relevant to the facts on hand may be summarized as under: a. In an application under Article 226 of the Constitution, High Court is not constituted as a Court of appeal against the decision in a disciplinary proceedings. It is merely concerned with determining whether the enquiry is held in accordance with the procedure prescribed, in conformity with the principles of natural justice and whether there is some evidence, which the authority entrusted with the duty to hold enquiry has accepted and which evidence may reasonably support the conclusions that the delinquent officer is guilty of the charges alleged. b. It is extraneous to the judicial review function to either review or re-appreciate the evidence so as to arrive at an independent finding on the evidence. High Court would however be within its ordained function to consider whether the authority has disabled itself from reaching a fair decision by considerations extraneous influenced by irrelevant consideration or whether to the evidence and the merits of the case or by allowing itself to conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could have arrived at that conclusion on similar grounds vide State of A.P. v. Sreeram Rao, AIR 1963 SC 1723. c. Disciplinary proceedings by a public authority constitute a species of administrative action amenable to the broad principles and concepts operative on every administrative action. The validity of an administrative order which includes the appreciation of evidence by disciplinary authority is susceptible to be tested as every other administrative action on the touchstone of the tests enunciated by a catena of authority including in the celebrated case Associated Provincial Picture House Ltd. V. Wednesbury Corporation, 148(1)KB 23. A conclusion even of the disciplinary authority as to the evidence considered would be vitiated if it is one which would be arrived at by no reasonable person or on no evidence, is irrational or based on conjectures, surmises or suspicions vide Union of India v. G.Ganayutham, AIR 1997 SC 3387; R.S.Saini v. State of Punjab and others, 1999(5) Scale 427. d. Even in case of circumstantial evidence considered as a foundation to arrive at a finding of guilt in a departmental proceedings it is necessary that the circumstances on which the conclusion is to be drawn should be fully established. Facts established should reasonably support the conclusions of the enquiring authority and the chain of circumstantial evidence must be adequate enough as to avoid any scope for surmises, conjectures and suspicions needed to fill up the potential gaps in the chain of circumstances. In the absence of any direct authority on the quality of circumstantial evidence warranted in a disciplinary proceedings this Court has fine tuned the decision of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, (which is a decision rendered in a criminal case) to the conceptual requirement of a disciplinary case.”

10. The quintessence of the above decisions is that though the High Court under Article 226 of the Constitution of India is not an appellate authority over the order passed by the disciplinary authority, yet it is within the jurisdiction under Article 226 of the Constitution of India, to consider whether the principles of natural justice have been followed; whether the charged employee is able to prove that the findings of the disciplinary authority are based on no legal evidence and are perverse findings; whether is some evidence, which reasonably supports conclusions of the enquiry officer; whether the enquiry officer is carried away by irrelevant considerations extraneous to the evidence and the merits of the case and mere surmises and conjectures and recorded findings which no ordinary prudent person could have arrived at on such grounds and; in circumstantial evidence, whether the circumstances are fully established and that mere suspicion cannot take the place of proof. In the judgments relied on by the counsel for the respondent - company, the above legal position is laid down.

11. In the light of the above position now it is necessary to look whether there is any legal evidence to support the conclusion arrived at by the enquiry officer or the disciplinary authority, as the case may be.

12. Though the charge against the petitioner is one, but contains allegations, which can be divided into three, as did by the enquiry officer:

1. Whether there was wrong utilization of cover notes nos.225060, 225161, 166904 and 91725, by issuing original of the cover note to one party and copy to another party with mala fide intention of misappropriating the cash premium.

2. Whether the premium was submitted belatedly in 89 instances of cover notes issued.

3. Whether the copies of 217 cover notes relating to 20 cover note books utilized by him were not returned and if so what were the implications.

13. As noted above, the contention of the counsel for the petitioner is that the alleged cover notes, in which original is said to have been issued to one party and copy to other party, were not produced in original and only the Photostat copies were marked and hence cannot be considered as legal evidence.

14. It is well settled that photo copies can never be relied upon. From a perusal of the enquiry report, it could be seen that the petitioner has resisted the marking of the Photostat copies of the cover notes and contended that they are fictitious documents. The enquiry officer has considered the allegations based on the Photostat copies of the cover notes and recorded the guilt of the petitioner. At one stage, he noted that unless an original of the said document existed, photocopy of the same cannot be in the hands of an unconnected person. He further noted that the contention of the defence that the photocopy of the original C.N. produced was fictitious, is not acceptable, as it has been marked with office seal of the B.O., the B.O. found the photocopy as that of the company’s document. These circumstances, as noted above, would show that the enquiry officer has consider the allegations, based on the photocopies of the cover notes. Whether the allegations leveled against the petitioner are true or not, cannot be gone into unless there is legal evidence on record. In the present case, only the photo copies have been relied and the enquiry officer had gone into the merits and recorded his findings. The Apex Court in Makhan Singh v. Narainpura Coop. Agricultural Service Society Ltd., (1987) 3 SCC 571, at page 574,held as under: led by in support of two grounds, namely, “3. . . . Before the Labour Court the management tried to justify the order of termination of appellant's services the appellant had embezzled certain amounts of the Society and that he had absented himself from duty without obtaining leave. The evidence the management embezzlement alleged by it is very scrappy indeed. It relied upon the evidence of Ram Sarup, who was working as the Secretary of the Society that the appellant had received a sum of Rs 125 from one shareholder Bhaga Ram but he had made an entry in the account books stating that only a sum of Rs 100 had been received and that the appellant had received a sum of Rs 1125 and Rs 150 from Sat Pal and Jagir Singh shareholders of the Society respectively and had made entries in the account books showing that he had received Rs 920 and Rs 125 respectively from them. The management produced three photostat copies of the entries in the pass books which were marked as Exts. M/1 to M/3. The originals were not produced. The appellant denied having misappropriated the amount of Rs 25 in the first case, Rs 205 in the second case and Rs 25 in the third case. He stated that the photostat copies were fabricated documents. The Labour Court however accepted evidence placed before it by the management. It did not go into the question whether the photostat copies, Exts. M/1 to M/3, could be accepted as evidence in the absence of the originals. The award shows that no explanation had been given by the management for not producing the originals. We are not satisfied with the finding recorded by the Labour Court that the appellant had embezzled amounts belonging to the Society. The said finding is without any basis and is, therefore, liable to be set aside.”

15. As per the allegations, the lapse with regard to mis-utilization of cover notes came to light when two of the parties concerned complained to the office. The said persons were not examined and only the officers, with whom the said complainants interacted, gave evidence. However, those persons have given notarized affidavits stating that they never complained or have any grievance. But they were not appreciated by the enquiry report, except noting them at the threshold while referring to the witnesses examined and documents marked.

16. Therefore, having regard to the judgment of the Apex Court and facts and circumstances, as the findings of guilt of the petitioner were recorded by the enquiry officer based on the Photostat copies of cover notes, it has to be held that the said findings are recorded based on no legal evidence and hence cannot be sustained.

17. The second part of the allegation is that the petitioner submitted premium belatedly in 89 instances of cover notes issued. The admitted fact on record is that the premium in all the 89 instances was collected by way of demand drafts in favour of the company. The further admitted fact is that the petitioner was working at Kadiri, which is 80 k.ms. from the branch office at Dharmavaram and some reasonable time would take for postal delivery. The consideration of the enquiry officer on the second issue and the conclusion, for better appreciation, is extracted as under: “The P.O. has relied on appendix-B attached to the Memorandum of charges and no other document has been produced. The defence had argued that the CSE is posted in moffussil and has to invariably take a D.D. and send the money by post. The allegations is not proper as intervening Saturday, Sunday and other holidays under N.I. Act has not been kept in mind. They cannot be considered as misappropriation by the CSE. I observe I concur with the argument of the Defence. However, there have been delayed remittances even in the months, which normally do not have holidays under N.I. Act. While majority of the remittances show 5/6 days, there have been instances where the delay is abnormal – 8 days, 12 days etc . ( 8 instances). These indicate non-compliance of office rules and tantamount to temporary misappropriation. I hold this part of allegation as only partly proved.” (emphasis added)

18. From the above finding of the enquiry officer, it is clear that he concurred with the explanation offered by the charge sheeted employee/petitioner, but held there have been delayed remittances even in the months, which normally do not have holidays under N.I. Act and eventually found that there is abnormal delay of 8 days, 12 days etc., in eight instances. The enquiry officer does not specifically state in which months there are no holidays under Negotiable Insurances Act and in which cases there are delays of 8 or 12 days. His finding is not specific. Therefore, on the one hand, when he is accepting the explanation offered by the petitioner with regard to delayed remittances, which are collected by way of D.D., again holding him partly guilty, without mentioning the specific instances or the months, when the delayed remittances have taken place, cannot be sustained. Further, the enquiry officer has categorically agreed that the petitioner has taken the D.Ds. for the money (premium) collected and hence question of misappropriation of money for a short period, does not arise. As per the evidence, the delay, if any, is due to the delay in delivery by the postal authorities only. The delay in reaching the D.Ds. to Dharmavaram Branch Office, cannot be attributable to the petitioner.

19. It is well settled that though strict rules of criminal trial proving beyond reasonable doubt are not applicable the departmental proceedings, but nevertheless, sufficient care shall be taken to see that innocent are not punished. The Apex Court in the decision reported in H.C. Goel’s case (AIR 1964 SC 364) held as under: “ 26. . . It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules.”

20. In view of the above facts and circumstances, it is held that this part of the charge is not proved.

21. The last part of the charge against the petitioner is with regard to misplacement of 217 cover notes. In this regard it is necessary to note the relevant portion of the guideline nos. 4 and 5 issued by the General Insurance Corporation of India in Ref:TECH/304/A-3 dated 26th April, 1999, as under:

4. Validity of cover notes should not be for more than 15 days and the practice of revalidating cover notes for longer periods should be strongly discouraged.

5. While the existing practice of centralizing the printing of Cover Note Books at the ROs may continue, certain procedural changes are called for. Only the original copy of each Cover Note set should contain the necessary printed texts/wordings, the remaining 3 copies which are in different colours [original (white), first copy (pink), second copy (green) and last copy (blue)] should be blank of any printed wordings. The issuing person while filling in the necessary information on the original copy will create, with the help of carbon paper, impressions of those information on the copies as well as for the benefit of the office people. Thus the copies in the absence of printed wording cannot either be mistaken or misused, as the original cover note. The original copy will be issued to the insured, the two subsequent copies are for the department’s use and the last copy will remain in the cover note book. The first 3 copies including the original copy should be perforated for easy detachment, while the last copy should be fixed.

22. A reading of the above guideline no.4 would indicate that the validity of the cover note will be only for fifteen days and guideline no.5 contemplates four copies and only the original first copy of the cover note will contain printed texts/wordings and the remaining 3 copies which will be in different colours, shall be blank of any printed wordings. In other words, the guidelines issued by the General Insurance Corporation of India dated

26.4.1999 only contemplates four copies of cover notes.

23. The charge against the petitioner is that he has misplaced 217 cover notes. The above circular dated 26.4.1999 would show that cover notes shall consist of four copies, including the original. In the charge it is stated that the cover notes are misplaced. It is not stated in specific terms, which copy of the cover note is misplaced. As per Rule 25 (3), the competent authority shall frame definite charges on the basis of the allegations, against the employee. The contention of the counsel for the petitioner is that the present part of the charge, is vague and on this count alone, the finding of the enquiry officer shall have to be set aside, since the petitioner is not made known in specific terms, the imputations on him. It is well settled proposition of law that if the charge is not specific, the charged employee will not be able to know the actual imputation on him and will not in a position to defend his case and this amounts to violation of the principles of natural justice. The Apex Court in the decision reported in STATE OF H.P. V. NAZAR SINGH [(2009)12 SCC 78], held as under:

34. In Sawai Singh v. State of Rajasthan (1986)3 SCC 454 this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.

35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.

24. The facts on record further reveal that the case of the presenting officer, on behalf of the management is that 217 cover note copies (5th copies) were said to have been missing. The case of the petitioner before the enquiry officer is that what has been misplaced is only the 5th copy of the cover note and that he need not maintain the 5th copy. The finding of the enquiry officer, before appreciating the respective contentions, is necessary to be noticed as under: “The Defence’s stand on the ‘no need to maintain the 5th copy of the cover notes as a permanent record’ and ‘the B.M. has no authority to call for them’ and such act was against established procedure’ is basically flawed on the premises of “checks and balances” and “control” element in any managerial function. One should understand that the design of procedures in cover note use and cover note document incorporate the above aspects. The last copy of the cover note is also an office document and requires safe keeping for stated periods; it should be available for verification when needed; if it cannot be thrown just like that, whey at all a 5th copy is needed. The keeper may be the office or the development officer. Such preservation is for the purpose of verification when need arises. It is naïve to argue that there is no obligation to maintain record of the 5th copy of the cover note and the office has not provided a record clerk for such filing.. . ”

25. A reading of the above finding would disclose that the enquiry officer has found the petitioner guilty of the above part of the charge on the ground that maintaining 5th copy of the cover note is mandatory. But before recording such finding, no rule or any provision has been quoted to support his view. As extracted above, the guideline nos.4 and 5 stipulates that the life of the cover note is only fifteen days and only four copies of cover notes are required to be maintained, in which only the original copy will be in wording and the remaining in different colors, would be blank. Therefore, in the light of the above circular, charging the petitioner for misplacing 5th copy, which is not required as per the circular, cannot be sustained and the finding of the enquiry officer in this regard, oblivious of the circular, is liable to be set aside. Accordingly, the finding of the enquiry officer in this regard, is set aside.

26. In the present case, the enquiry officer relied on the photocopies of the cover notes while holding the petitioner guilty of the charge of mis- utilization of cover notes and the same cannot be sustained and further, though he concurred with the explanation of the petitioner with regard to delayed remittances of the amount, which are collected by way of D.Ds., still found him partly guilty, by stating that there are eight instances of abnormal delay of 8 and 12 days, and such instances have not been stated in specific terms and vague finding while accepting the explanation of the petitioner, cannot be sustained and with regard to misplacement of 217 copies of cover notes, no definite charge has been framed and it is only stated the 217 copies of cover note have been misplaced and it is not stated in specific terms, which copy of the cover note is misplaced, while it is being sought to be argued on behalf of the presenting officer that it is the 5th copy that is misplaced, the charge ought to have been specific as per Rule 25(3), moreover, as per the circular dated 26.4.1999 there is no contemplation of 5th copy and misplacement of such copy, cannot be of any consequence and the enquiry officer recorded his own findings, without quoting any relevant provision in this record and recorded findings, irrelevant to charge, and hence they are perverse and cannot be sustained and are accordingly set aside.

27. The petitioner was appointed in the year 1985 and terminated in the year 2003 and on appreciation of the material on record, this court has found that there is no legal or any evidence to support the charges and hence set aside the findings of the enquiry officer, as being perverse. Therefore, in my considered view, he is entitled for back wages, as the charges against him are not proved. In similar circumstances, this court in B.RAMULU v. PRESIDING OFFICER, LABOUR COURT II, HYDERABAD (2008 LAB.I.C. 155), when the charges against the workman are held to be not proved, held that he is entitled for back wages. The facts of the said case disclose that when a driver of the Corporation was terminated from service for causing accident, he challenged the same before the Tribunal. On appreciation of material evidence on record, the Tribunal fully exonerated the charges framed against him, but denied back wages by invoking the doctrine of proportionality. In these circumstances, this court held that denial of back wages by invoking doctrine of proportionality, is not proper and accordingly held that the petitioner therein is entitled to back wages from the date of termination till the date of reinstatement. The relevant portion of the judgment is extracted as under better appreciation: “9. Having given categorical finding that capsizing of bus was not on account of the fault of the petitioner, respondent No.1 very strongly invoked the doctrine of proportionality in the immediately following paragraph of the award. In my considered view the question of application of the doctrine of proportionality does not arise in a case where an employee is fully exonerated of the charges. It is only in cases where the employee is found guilty of one or more of the charges and the Court/Tribunal find that the penalty imposed on the employee is shockingly disproportionate to the gravity of misconduct proved that the doctrine of proportionality could be invoked. Therefore, the whole approach of the Labour Court the doctrine of proportionality and disallowing back-wages of the petitioner cannot be sustained at all. When once an employee is held not guilty of the charges framed against him and he is directed to be reinstated, ordinarily it should follow that he is entitled to all the attendant benefits including back-wages. It should be deemed that the punishment which is set aside on the finding of his not being found guilty was never suffered by him. On this premise, denial of back-wages in the instance is wholly unjust.” invoking

28. For the foregoing reasons, the impugned order of removal, confirmed by the appellate authority and also the consequential order on the memorial filed by the petitioner, are set aside and the respondents are directed to reinstate the petitioner into service forthwith with all consequential benefits, including back wages.

29. The writ petition is accordingly allowed. No costs. AVS ---------------------------------- -- 20—01—2012