ORDER A.K. Sikri, J.
1. This petition was filed by the petitioner Mr. T.A. Laxmanan challeng- ing the punishment of removal inflicted upon him. However, during the pendency of the writ petition, petitioner died. His legal heirs moved CM. 5707 of 1998 under Order XXII Rule 3 of the Code of Civil Procedure to bring themselves on record in place of deceased petitioner and the same was allowed vide order dated 17th May, 1999 as no reply was filed to this application. Amended memo of parties bringing legal representatives on record was filed. When the matter was argued respondent took the preliminary objection to the effect that writ petition stood abated on the death of the petitioner and it cannot be pursued by the legal representative of the petitioner as cause of action did not survive after the death of the petitioner. Therefore before deciding the validity of the punishment imposed upon the deceased petitioner, this preliminary objection of the respondent has also to be decided. The dispute has the following factual backdrop.
2. Petitioner joined the respondent namely, International Airport Authority of India (hereinafter referred to as IAAI, for short) in the year 1973 as Manager (Airport Terminal). He was promoted twice and was made Assistant Director (Operations) in November, 1983. On 18th June, 1986 he was served with suspension order, suspending him with immediate effect as enquiry proceedings were contemplated against him. This was followed by memorandum of chargesheet dated 30th July, 1986 in which following acts of misconduct were alleged against him.
i. Gross Negligence and/or dereliction of duty.
ii. Passing undue financial benefits to employees by lack of supervision.
iii. Misuse of official position.
iv. Lack of integrity in discharge of official duties.
v. Acting in a manner prejudicial to the interest of the Authority.
vi. Conduct unbecoming of an officer of IAAI.
Alongwith the charge sheet was also given a statement of all relevant facts relating to the imputations of misconduct, a list of documents and a list of witnesses.
3. Enquiry was held against the petitioner into the aforesaid charges on the basis whereof Enquiry Officer submitted his report dated 4th May, 1987 wherein the charges against the petitioner stood proved. Regarding the first charge of "gross negligence and/or dereliction of duty", the enquiry officer stated that "fixing direct responsibility on Shri Lakshmanan of dead rat in the areas remotely located, at the time when terminal was in the preliminary stages of getting operational shall be unfair". However, the enquiry officer held the charge to be partially proved stating that the petitioner "should have been more business like in recording inspection either in the log book or through incident report and merely giving a verbal account of the inspection to G.M., is not adequate."
4. Regarding the second charge of "passing undue financial benefits to employees by lack of supervision", the enquiry report stated that "financial benefit really passed on to the employees on this count being so meagre (based on the period covered by imputation of charges), the charge is not substantially proved.
5. Holding the remaining three charges (i.e. iv. v & vi) of 'lack of integrity in discharge of official duties," "Acting in a manner prejudicial to the interest of the Authority" and "conduct unbecoming of an officer of IAAI" to be dependent on findings in 1st three charges, the enquiry officer held the ivth charge to be "not substantially proved" and v & vi charge as proved.
6. On the basis of aforesaid enquiry report the Chairman as disciplinary authority passed the penalty of removal from service of the petitioner. Petitioner submitted his appeal/review before the IAAI Board which was heard on 19th June, 1987 supplemented by additional appeal dated July 6, 1987. As no order was given thereon petitioner sent number of representa tions. He received communication on 5th July, 1998 to the effect that it was not possible for the Committee members to simultaneously consider the appeal. In these circumstances, petitioner filed instant writ petition in September 1988. During the pendency of this writ petition appeals filed by the petitioner was dismissed by Board vide order dated 28th December, 1988. Petitioner expired on 10th February, 1988 and his legal heir were brought on record in the manner already stated above.
7. Before touching the merits of the case let me first dispose of the preliminary submissions made by Mr. Aruneshwar Gupta, learned counsel appearing on behalf of the respondent. The learned counsel had initially argued that after the death of the petitioner cause of action did not survive and therefore the legal representatives of the petitioner could not have been brought on record to prosecute the matter. His submission was that the petitioner in the writ petition had challenged his removal from service by way of punishment which was a cause of action, personal to him, and on his death the said cause of action did not survive and the writ petition filed by him abated. He had submitted, in support of his argument the following judgments: U. Vridhachalam Vs. State of Madras ; P.V. Sharma Vs. S.C. Rly. Employees Coop Credit Society reported in AIR 1977 (AP) 319 (DB) and the case of U. Sadashiva Shetty Vs. CEO Talk Development Board reported in 1984 (3) SLR 649 (Kar.).
8. However, in all fairness the learned counsel had also stated that contrary view was taken by some other High Court including this Court in the following judgments: Ibrahibhai Kartubhai Vs. State of Gujarat ; Manmohan Anand Vs. State of Punjab reported in 1972 SLR 852 (Punjab) (DB) and the case of Shri Jang Bahadur Vs. Union of India reported in 1973 (I) SLR 366 (Delhi).
9. The Judgment in the case of Shri Jang Bahadur (supra) is a division bench judgment of this Court which binds me and this position was accepted by learned counsel for the respondents. Infact on the date when the arguments were concluded on merits, learned counsel for the respondent fairly conceded that in view of the recent judgment in the case of Punjab National Bank. The controversy now stands settled in favour of the petitioner. Therefore, the writ petition does not abate on the death of the petitioner.
10. Assailing the impugned orders the first submission of learned counsel for the petitioner was that the Regulations were framed only in the year 1987 and consequently no Regulations were in existence in 1986. Therefore there was no stipulation in 1986 as to what would constitute misconduct, and thus petitioner could not have been charged for alleged acts of irregularities treating the same to be misconduct in the year 1986. It was submitted that in the absence of stipulation as to what conduct would constitute misconduct, the petitioner could not be held to be guilty of any misconduct. Learned counsel relied upon the judgment of Supreme Court in the case of A.L. Kalra Vs. The Project and Equipment Corporation of India Ltd. and M/s. Glaxo Laboratories (I) Ltd. Vs. The Presiding Officer, Labour Court, Meerut and others reported in 1983 (4) FLR 508.
11. Refuting the arguments of the petitioner, Mr. Aruneshwar Gupta, learned counsel appearing on behalf of IAAI submitted that 1987 Regulations were framed by the respondent and approved by the Board of respondents on 31st March, 1980 and the same were notified and published in the Official Gazette on 7th January, 1987. The 1987 Regulations were uniformly applied to all the employees by the respondents after they were duly approved by the Board in March 1980. In that view of the matter the contention of the petitioner that since there were no regulations and hence no misconduct, the petitioner cannot be held guilty of the misconduct is not sustainable. It was contended that it was wrong to say that respondents had no rules and regulations to govern the employees which could stipulate as to what amounts to misconduct. It was submitted that IAAI Employees (Conduct, Discipline and Appeal) Regulations (hereinafter referred to as Regulations, for short) were framed by the respondents and approved by the Board of respondents as far back as on 31st March, 1980 (in its 41st meeting of the Board) and the same governed the service conditions of all the employees of the IAAI. The IAAI Employees (Conduct, Discipline and Appeal) Regulations were notified and published in the Official Gazette of India on 7th January, 1987. The delay in notifying the Regulations was due to the submission of the Ministry that these Regulation can be formally notified only after the judicial pronouncements of the applicability of Industrial Employment (Standing Orders) Act, 1946 is available. It was further submitted that once the Regulations have been approved by the Board, till such time they are notified in the Gazette the same governs and were applicable to all the employees of the respondent Authority uniformly. It was denied that in absence of statute creating an offence of misconduct a person cannot be held guilty of misconduct. It was contended that it is false that till the regulations were published there was no regulations regulating the service conditions of the employees of the IAAI.
12. In support of the above submission, the following two judgments of the Supreme Court were relied upon by the respondent: (i) Abraham Jacob and others Vs. Union of India and (ii) Vimla Kumari Vs. State of Haryana .
13. I find force in the submission made by learned counsel for the petitioner. It may be mentioned that respondent is a statutory authority created under the International Airport Authority Act, 1971. The Regulations are framed under Section 37 of the aforesaid Act which gives power to the IAAI. Subsection (1) of this Act reads as under:-
"The Authority may make regulations not inconsistent with this Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provision of this Act."
14. Section 38 of the Act deals with the manner in which such Regulations are to be enforced. Section 38 reads as under:-
Supplemental provisions respecting regulations:-
(1) Any regulation which may be made by the Authority under this Act may be made by the Central Government by notification in the Official Gazette within one year of the constitution of the Authority and any regulation so made may be altered or rescinded by the Authority by means of a regulation made by it under this Act.
(2) No regulation made by the Authority under this Act shall have effect until it has been approved by the Central Government and published in the Official Gazette.
15. Thus the Regulations which are to be made by the IAAI are to be notified in the official gazette by the Central Government. Subsection (2) of this Act is in negative terms and unambiguously stipulates that no Regulation made by the Authority under the Act shall have effect until it has been approved by the Central Government and published in the Official Gazette. Therefore before the Regulations made by the Authority are made effective two preconditions are to be satisfied, namely:- (a) these regulations have to be approved by the Central Government and; (b) they have to be published in the Official Gazette (ref. Rajeshwar Singh Vs. Union of India and others reported in 1989 (3) Delhi Lawyer 230 and Pyare Lal Sharma Vs. Managing Director and others reported in JT 1989 (3) SC 1330. In the instant case there is no dispute that although the Regulations were framed and approved by the Board on 31st March, 1980, they were notified and published in the Official Gazette on 7th January, 1987. Therefore, as per the provision of Section 38(2) the aforesaid Regulations could not come into effect before 7th January, 1987. It is these Regulations namely, IAAI Employees (Conduct, Discipline & Appeal) Regulations which enumerates the misconducts and the petitioner was charged with these misconducts as stated in these Regulations. However, the chargesheet is dated 30th July, 1986 and the charges levelled against the petitioner relate to the period 1985- 1986 which is prior to the date when these Regulations came into force. Obviously the petitioner could not be charged under these Regulations which had not come into force at that time.
16. The respondents admit that the petitioner was charged and the enquiry proceeded with under the aforesaid Regulations. I am not convinced with the arguments of the respondent that the petitioner could be charged under the Regulations, although not notified, but they had been applied uniformly. How the Regulations could be applied at all when they had not become effective for want of approval by the Central Government and when they were not notified/published in the Official Gazette. Once the manner of enforcing the Regulations is stated in Section 38 (2) of the Act itself, the aforesaid act of applying these Regulations uniformly to all employees would not come to the rescue of the respondents.
17. The judgment of Supreme Court in the case of Abraham Jacob and others Vs. Union of India as cited by the respondent is not applicable in this case. In that case Supreme Court held that approved recruitment rules can be followed to make promotions. That was a case where approved rules made provisions for the first time for 50% promotion quota since the Rules had not been finalised which were infact finalised later, administrative decision was taken to follow the same and promotions were made accordingly which was upheld by the apex Court in the aforesaid judgment. The case related to promotion and it is an established principle of law that as far as promotion is concerned even in the absence of any recruitment rules, administrative instructions can be issued stipulating the procedure for making promotion. Such Regulations could not have been be made effective unless there was a prior approval of the Central Government and they are notified in the Official Gazzette as stipulated in Section 38(2) of the Act. It is not the case of the respondents here that in the absence of Regulations, Code of Conduct was prescribed by administrative instructions. Rather it is projected that the Regulations were unformaly applied to the staff, even before the approval of the Central Government. For the same reasons, judgment of the Supreme Court in the case of Vimal Kumari Vs. State of Haryana and others cited by the respondents is also not applicable.
18. The second submission of learned counsel for the petitioner was that Chairman was not the disciplinary authority of the petitioner. Even as per the Regulations it is Member (Finance) who was authorized/competent to act as disciplinary authority and Chairman was the appellate authority. However, as Chairman acted as disciplinary authority in the case of the petitioner, this was not only impermissible but petitioner even lost a valuable right to file appeal before the appellate authority and he had to prefer a appeal/review before the Board only. In normal course, review was permissible after the exhaustion of remedy of appeal which the petitioner lost in the instant case. The respondents countered this argument by submitting that Member (Finance) Administration was the person authorised and competent to act as disciplinary authority under the Regulations. As the post of Member (Finance) Administration was vacant from 28th August, 1986 to 24th November, 1986, the Chairman was competent and entitled to act as a disciplinary authority of the petitioner because of doctrine of necessity. Once the Chairman was authorised and competent to act as disciplinary authority, any change during the pendency of the proceedings would have been illegal and, therefore, he continued to pass all orders as disciplinary authority. In support of this submission the following judgments of the Supreme Court were relied upon: Mohapatra and Company and another Vs. State of Orissa and another and the case of Mary Terese Dias Vs. The Hon'ble Acting Chief Justice and others . It was further submitted by Mr. Aruneshwar Gupta, learned counsel for the respondent that since the petitioner did not file any review against the order passed by the Board and as such the petitioner's submissions of having lost a right of review does not arise. Learned counsel for the respondent relied upon the judgments in the case of Director General of Police and others Vs. R. Janibasha and the case of Secretary to Government. Home Department and others, Srivaikundathan in support of his contention that High Court will not sit against an order of the disciplinary authority and appellate authority.
19. This argument of the respondent has force. I am inclined to accept the explanations given by the respondent that Member (Finance) who was to act as disciplinary authority under the Regulations, could not act as disciplinary authority as the post of Member (Finance) was vacant from 28th August, 1986 to 24th November, 1986 and therefore in these circumstances Chairman acted as the disciplinary authority. Once Chairman was authorised to act as disciplinary authority and he issued the chargesheet any change thereafter was not proper and rather it could have been challenged by the petitioner himself. The respondent even produced the original file showing that this aspect was duly considered and it was a condensed decision taken to allow the Chairman to continue as disciplinary authority as he had issued the charge-sheet. Therefore there is nothing wrong in this course of action being adopted by the respondent. Moreover, the petitioner did not file any review against the order passed by the Board and therefore he cannot be permitted to raise this contention.
20. The next contention of learned counsel for the petitioner was that although disciplinary authority differed with the findings of the Enquiry officer but before doing so, it did not give any opportunity to the petitioner to represent his case. It was his submission that while dealing with the findings of the Enquiry Officer on certain charges, disciplinary authority was bound to give opportunity to the petitioner to represent his case and he having not done so, it amounted to violation of principles of natural justice which renders the punishment as illegal in view of the judgment of Supreme Court in the case of Punjab National Bank Vs. Kunj Behari Misra .
21. In reply to learned counsel for the respondent submitted that since the disciplinary authority had agreed with the Enquiry Officer, there was no need to hear the petitioner inasmuch as regarding charge no. 1 wherein Enquiry Officer had held partially proved, the disciplinary authority held it to be gross negligence and dereliction of duty and as far as charges 2,3,5 and 6 were concerned the disciplinary authority had agreed with the Enquiry officer that the charges were proved. As regards charge No. 3, the same was inference of charges 2 and 3 hence no fresh show cause notice was required to be served upon the petitioner.
22. Admittedly the Disciplinary Authority while differing from the findings of the Enquiry Officer did not supply any note of disagreement to the petitioner nor called for his representations/comments against the same and thereby violated principles of natural justice. Among various charges levelled against the petitioner, charge No.1 was "gross negligence and/or dereliction of duty". This charge was based on three specific points against the petitioner namely (a) toilets in Terminal II were dirty; (b) a dead rat was found in the corridor of immigration office (c) garbage found lying in a room in an airline office. These allegations were based on the finding of a Committee. The Enquiry Officer in his report concluded that although findings of the Inspection Committee were not disputed, it could not be said that the petitioner was responsible for the same. The disciplinary authority in his impugned order dated May 26/June 15, 1987 while imposing the punishment of removal from service, observed as under in respect of the charge no.1:-
"As regards the first charge, I must say that the Inquiry Officer has taken a lenient view of the unclean airport and the responsibility of the officer in charge of the shift. I think, it must be clear to the AD(Ops) that he has to move around the airport for inspection and he owns the responsibility of the shift. I therefore, disagree with the findings of the Inquiry Officer. The charge is proved and I hold him guilty of gross negligence and dereliction of duty."
23. It is clear from the above that the disciplinary authority did not agree with the findings of the Enquiry Officer. However, as noted above, he did not give his note of disagreement, in the first instance, to the petitioner and did not provide him with an opportunity to make his representation against the same. Consequence of not providing such an opportunity stands settled by the judgment of Apex Court in the case of Punjab National Bank and others Vs. Kunj Behari Misra, . After scanning through the case law and dealing with the rival contention the Court held that principles of natural justice have to be read into the relevant Regulation and therefore whenever the disciplinary authority disagrees with the enquiry 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 enquiry officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice 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 a representation before the disciplinary authority recording its findings on the charges framed against the officer.
24. I am not persuaded by the contention of the respondents that there was no necessity to give this opportunity to the petitioner as the disciplinary authority had substantially agreed with the Enquiry Officer that the charges were proved. Admittedly, disciplinary authority has drawn the conclusion, on some charges, which is different from that of the Enquiry Officer. Therefore, he was bound to comply with the principles of natural justice in the manner stated in the judgment of Punjab National Bank (supra).
25. Lastly, it was contended that Order passed by the appellate authority i.e. Board was a non speaking order and as no reasons were given while dismissing the appeal/review of the petitioner, such an order was not valid and proper and therefore liable to be set aside on this ground. On the other hand, respondents contended that it was stated that the order cannot be said to be a non speaking order as it gives reasons for agreeing with the order of disciplinary authority. It was further submitted that representations dated 19th June, 1987 and 6th July, 1987 of the petitioner were looked into by the Board before rejecting the Appeal. It was submitted that the representation/appeal dated 6th July, 1987 in substance covered all issues included in the representation/appeal dated 19th June, 1987.
26. I am also inclined to agree with the submission of the learned counsel for the petitioner that the order of the appellate authority is unsustainable inasmuch as it is non-speaking in the sense it did not deal with the various submissions of the petitioner raised in his appeal against the order of the disciplinary authority. Against the impugned order of disciplinary authority petitioner had submitted his representation/appeal dated 19th June, 1987 followed by another representation/appeal dated 6th July, 1987. In the first appeal the petitioner had made legal submission and in the second appeal petitioner had challenged the findings based on factual submissions. A perusal of the order dated 28th December, 1988 passed by the appellate authority would show that most of these contentions are not referred to or dealt with by the impugned order. It would further show that impugned order refers to appeal dated 6th July, 1987 only and does not refer to appeal dated 19th June, 1987 at all and therefore it is obvious that the legal submissions made by the petitioner in his appeal dated 19th June, 1987 were neither considered nor dealt with in the impugned order of the appellate authority. Such an order which does not deal with the various contentions raised by the petitioner in his appeal dated 19th June, 1987 is liable to be set aside.
27. This petition is accordingly allowed. Rule is made absolute. The impugned order of removal dated 26th May, 1987/15th June, 1987 and order dated 28th December, 1988 dismissing the appeal/review are hereby set aside. Since the petitioner died on 10th February, 1998 and his legal heirs were brought on record, the legal heirs shall be entitled to the salary and allowances which petitioner would have drawn but for the impugned order of removal w.e.f. the date of order of removal till the date of his death i.e. 10th February, 1998. They shall also be entitled to full salary and allowances during the period of suspension of the petitioner i.e. w.e.f. 18th June, 1986 till the date of removal after adjusting the amount already paid to the petitioner as subsistence allowance during this period. The entitlement may be worked out and paid to the legal heirs of the petitioners within a period of three months from today. The respondent shall also pay cost of this petition, which is quantified at Rs.5000/-, to the legal representatives of the petitioner within the aforesaid period.