2025:CGHC:16566 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S) No. 3020 of 2015 1. Raj Kumar Yadav S/o Late Shri Gangaram Aged About 28 Years R/o Village- Kothari, P. O.- Kathoutiya, P. S. Manendragarh, District Koria, Chhattisgarh, 2. Smt. Galbaliya Bai W/o Late Shri Gangaram Aged About 54 Years R/o Village- Kothari, P. O. Kathoutiya, P. S. Manendragarh, District Koria, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh ---- Petitioners Versus 1. South Eastern Coalfields Limited Through Chairman-Cum Managing Director C M D, Seepat Road, District Bilaspur, Chhattisgarh, 2. Chief General Manager, South Eastern Coalfields Limited, Hasdeo Area, P O South Jhagrakhand Colliery, District Korea, Chhattisgarh, 3. Sub- Area Manager, Bijuri Sub- Area, Hasdeo Area, P O- South Jhagrakhand Colliery, District Korea, Chhattisgarh, 4. Director Personnel Appellate Authority, South Eastern Coalfields Limited, Bijuri Sub- Area, Hasdeo Area, P O- South Jhagrakhand Colliery, District Korea, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh Respondents For Petitioner : Shri Vijay Kumar Pandey, Advocate. For Respondents : Dr. N.K. Shukla, Senior Advocate assisted by Shri Shailendra Shukla, Shri Dinesh Kumar Bole, and Shri Nitikesh Gupta, Advocates. Hon'ble Shri Justice Sachin Singh Rajput Order on Board 19/09/2025 1. This writ petition has been filed seeking for the following relief :- It is therefore, prayed that this Hon'ble Court be pleased to :- a) Calls for the entire records pertaining to the present case. b) Quash and set-aside the impugned order dated 19/22.11.2007 (Annexure P/9) whereby the punishment ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.10.09 17:14:10 +0530 -2- of 'removal from service has been imposed upon Gangaram. c) Quash and set-aside the impugned order dated 18.06.2013 (Annexure P/1), rejecting the appeal preferred. d) Grantany other relief as deem fit and proper in the facts and circumstances of the case. 2. Case of the petitioner in nutshell is that father of the petitioner No.1 and husband of the petitioner No.2 namely Gangaram was working on the post of Loader since 28/07/1983 at Somna Colliery, Hasdeo Area of South Eastern Coalfields Limited (S.E.C.L. for Brevity) i.e. respondent. According to the further pleadings, he lost mental balance and became insane. The deceased/employee was under the treatment of Dr. S.N. Gupta, Senior Medical Specialist, Manendragarh and documents with regard to his treatment are also appended with the writ petition. On 20/06/2022, the deceased -Gangaram left home for work and thereafter never came back. The petitioners made all attempts to search, however he could not be found. A report was lodged by the petitioners before the Police Station - Bijuri, District – Annuppur (M.P.) on 22/06/2005 (Annexure P/3). Prior to that, on 15/07/2005 representation was also made to the Police Station - Manendragarh dated 15/07/2005 (Annexure P/4). It appears that deceased / employee remained absent from duty without prior approval of the respondent. A departmental Inquiry was initiated against him. A show-cause notice dated 9/11.03.2006 was issued indicating the date of departmental inquiry as 24/03/2016. The show-cause notice was replied by the petitioner No.2 on 24/03/2006 informing the respondent that the deceased - Gangaram was not mentally fit and she was in search of him. Report has also been lodged at the Police Station in this regard. On 12/14.04.2006 another notice was issued by the respondent which was duly replied by the wife of deceased / employee herein on 26/04/2006 indicating the same fact. It appears that after departmental inquiry was proceeded ahead and order of termination dated 19/22.11.2007 was passed on the ground that deceased/petitioner was found guilty of being on unauthorized absence. Late Gangaram could be traced only by the end of year-2009 -3- and ultimately he died on 29/12/2009. An application was made by petitioner No.1 to appoint him in place of Late Gangaram on compassionate ground. However, he came to know that the services of late Gangaram were already terminated vide letter dtd. 8/09.04.2010 issued by the respondent and therefore appointment on compassionate ground cannot be given to petitioner No.1. Thereafter, a writ petition was filed challenging the said order of termination before this Court registered as WPS No.5254/2010 which was disposed of by this Court vide its order dated 15/09/2010 granting liberty to the petitioners to prefer a departmental appeal assailing the order dated 19/22.11.2007. Thereafter, a departmental appeal was preferred by the petitioner on 27/09/2010. However, the appeal was not decided by the respondent for a considerable period of time. The petitioners were constrained to approach this Court again by filing Writ Petition (S) No.39/2013 where this Court vide order dated 18/03/2013 gave a direction to the respondent to decide the appeal preferred by the petitioner in accordance with law within a period of three months from the date of receipt of copy of that order. Thereafter, the respondents vide it's order dated 18/06/2013 rejected the appeal preferred by the petitioners and the order of termination of service of late Gangaram was affirmed. In the above backdrop of the fact, this writ petition was filed for the above stated reliefs. 3. Learned counsel for the petitioners submits that the deceased / employee was admittedly working with the respondents and was a permanent employee. He submits that sometime in the year 2005, the father of the petitioner No.1 and husband of the petitioner No.2 lost his mental balance and was missing for long period of time. Though show-cause notices were issued in the name of Late Gangaram which were duly replied but departmental inquiry in his absence proceeded by the respondents ultimately resulting into the order of termination. He further submits that even if the deceased / employee was proceeded ex-parte in departmental inquiry, the respondents were duty bound to examine the witnesses to prove the charge against him but no such witnesses have been examined, and only on the basis of documents in respect of absence from duty, the impugned order was passed. To buttress his submission he placed reliance upon the judgment of -4- Supreme Court in the case of State of U.P. & Ors. Vs. Saroj Kumar Sinha (2010) 2 SCC 772. Apart from this, he submits that as Late Gangaram could not appear in the inquiry, the inquiry itself is vitiated. He submits that even the show-cause notice or the charge-sheet was never served upon him, therefore, the impugned order may be set-aside. 4. Controverting the submissions made on behalf of the petitioners, learned Senior Advocate for the respondents supported the impugned termination order and the appellate order. He submits that the initially when the show-cause notice was issued, it was served upon the employee/late Gangaram and he also made his appearance in the departmental inquiry, however later on he failed to appear and thereafter, the departmental inquiry proceeded ahead but he remained unauthorizedly absent for long period of time which led to passing of the impugned order of termination. He further submits that in the departmental appeal, the learned appellate authority has duly considered all the aspects of the matter and a detailed order has been passed which does not require interference by this Court. 5. Heard learned counsel for the parties and perused the record. 6. On the earlier dates of hearing the respondents were directed to produce the record of departmental inquiry conducted against the petitioner. From perusal of the same, it appears that on 07/07/2005 a charge-sheet was issued to Late Gangaram to the effect that from 28/05/2005 he unauthorisedly remained absent from duty without sanctioned leave/sick leave or without any satisfactory reason. Late Gangaram was also directed to present his case within three days or else ex-parte proceeding would be drawn against him. It does not appear from the proceedings of the departmental inquiry that the petitioner was present. It also does not appear whether any witness to prove the charge was examined. Though the proceedings of the departmental inquire indicate that a written evidence in the form of Duty Register was presented which form the basis for coming to a conclusion that charge against the petitioner was found to be proved. -5- 7. Hon’ble Supreme Court in case of State of U.P. & Ors. Vs. Saroj Kumar Sinha (2010) 2 SCC 772 has held as under :- “26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 27. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee. 28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe -6- substantive laws can be endured if they are fairly and impartially applied. 29. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows: "If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked. 30. In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case." 8. Apart from this, the charge against the petitioner was with regard to unauthorized absence. The defence which the petitioners have been able to place before this Court is that deceased / employee was not in sane condition of mind and missing for long period of time. He was traced only in the year 2009 and ultimately died on 29/12/2009. It is true that the High Court cannot sit as an appellate authority to re- appreciate evidence but it can interfere only with regard to procedural irregularity if any, during the course of departmental inquiry or where the finding recorded in the departmental inquiry is absolutely perverse and cannot be passed by a prudent person. This position has been propounded by the Supreme Court in the matter of BC Chaturvedi and Union of India & Ors, (1995) 6 SCC 749 and Deputy General Manager & Ors Vs. Ajai Kumar Shrivastava (2021) 2 SCC 612. 9. In the case in hand the question to be decided as to whether the finding recorded in the departmental inquiry and the appellate authority is just and proper. In case of Krushna Kant B. Parmar Vs. Union of India & Anr. (2012) 3 SCC 178 the Hon'ble Supreme court of India in paragraph 17 and 18 :- -7- “17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.” 10. In the case of Chhel Singh Vs. NGD Gramin Bank, Pali & Ors. (2014) 3 SCC 166 the Hon'ble Supreme Court reiterated the above legal position and held as under:- “12. The Division Bench has accepted that the inquiry stood vitiated by disallowing the request of the appellant to summon the rest of the five witnesses. For the said reason, the Division Bench has not interfered with such part of the finding and order passed by the learned Single Judge whereby the impugned order of termination dated 17th October, 1994 and the Appellate Authority order dated 26th December, 1994 were quashed.” 11. As regards the question relating to the jurisdiction of the Court and judicial review in departmental proceedings it has been held in the matter of M.V. Bijlani Vs. Union of India (2006) 5 SCC 88 held as under:- “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot -8- enquire into the allegations with which the delinquent officer had not been charged with.” 12. In the case in hand, the petitioners herein tried to justify the unauthorised absence of deceased / employee that he was mentally ill and was under treatment for few days. Petitioners have also stated that he then went missing and could not be traced for which the report was lodged before the Police Station which is part of the record. This fact appears to be bonafide for the reason that had deceased / employee been in a fit state of mind and could have been traced, as if Late Gangaram traced he would have participated in the departmental inquiry proceedings. Apart from this, in order to prove the charge against the employee in a departmental inquiry with respect to unauthorized absence, the inquiry officer is required to give a categorical finding that the unauthorized absent on part of delinquent was willful. Perusal of the inquiry report does not indicate that any such finding has been recorded by the inquiry officer which is mandatory in light of judgment Krushna Kant B. Parmar (supra) and M.V. Bijlani (supra). 13. Therefore, in light of the above discussion and considering the above judgments, the impugned orders are hereby set-aside and as the petitioner has died, it is held that termination of the Late Gangaram is bad in law and he deserves to be treated as in continuation of service. For the purpose of back wages, liberty is reserved in favor of the present petitioners to represent before the competent authority. The respondent are also directed to treat the period of Late Gangaram as if he was in service and then if the petitioners are found entitled to any monetary benefit in terms of retrial dues, the same shall be paid to them within a period of 60 days from the date of receipt of copy of this order. 14. Petition thus allowed as indicated above. Sd/- (Sachin Singh Rajput) Judge J./Ashish