* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.418/2007
% Date of Decision: 30.09.2011
Govt. of NCT of Delhi & Ors. .... Petitioners
Through Mr. Vinod Wadhwa and Mr. Sahil
Kapoor, Advocates
Versus
Smt. Mamta Rani .... Respondent
Through Mr. Manish Chauhan and Mr. Sandeep
Singh Duggal, Advocates
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioners, Govt. of NCT of Delhi through the Lt. Governor and Ors. have challenged the order dated 4th October, 2006 passed by the Central Administrative Tribunal, Principal Bench in OA No. 1105/2005 titled as „Smt. Mamta Rani Vs. Govt. of NCT of Delhi and Ors.‟ setting aside the orders of the Disciplinary Authority as well as the Appellate Authority dated 10th January, 2003 and 18th August, 2004 WP (C) No.418 of 2007 Page 1 of 29 respectively and remanding the matter to the Disciplinary Authority to pass appropriate orders without being influenced by the observations made in the impugned orders. The Tribunal further directed that if the Disciplinary Authority is of the opinion that some penalty is to be imposed upon the respondent, then it be done within the period given by the Tribunal.
2. Relevant facts to comprehend the disputes are that the respondent was appointed as Sub-Inspector, Food & Supplies Department in Circle No. 22 on 26th February, 1998. The FSO of the said Circle had entrusted the respondent, with the job of Inspector (HQ) on 14th May, 1999 in addition to some other assignments of the area.
3. A complaint dated 30th July, 1999 regarding non-supply of sugar to the consumers by FPS-8772 was received, which was entrusted to the respondent. The respondent, therefore, directed the owner of FPS- 8772, Smt. Roshni Devi to deposit the sugar cards in the Circle office immediately. The owner of the FPS-8772 did not deposit the sugar cards and instead colluded with Sh. Rajesh Kumar Dabas, who is her cousin and an employee at Sh. Ram Manohar Lohia Hospital, Delhi to trap the respondent. In furtherance of their conspiracy, on 2nd August, 1999 Sh. Rajesh Kumar Dabas during rush time approached the respondent with six application forms and six persons namely, Kishan, Jitender, Anthony, Devender, Prem and Sudhir for issuance of food WP (C) No.418 of 2007 Page 2 of 29 cards to them. The forms were accepted for inquiry by the respondent as per the prevalent procedure prescribed for entertaining fresh application forms in the department and she also endorsed the letters "AFE" on each application form as per the prevalent procedure. The application forms received by the respondent were diarized at Sl. No. 991 to 996 in a register known as FDR(A) and the diary number and date on each of the application forms was mentioned by Sh. Nand Lal, Sweeper-cum-Chowkidar, who was also working as clerk under the instructions of FSO, Sh. S.C. Sharma in the Order Book dated 28th June, 1999.
4. As per the respondent Sh. Rajesh Kumar Dabas came to the Circle office on 9th August, 1999 and created a „ruckus‟. The respondent along with Sh. Nand Lal, SCC visited the premises of these above stated persons. The neighbours of these persons disclosed that the applicants of the application forms were residing at the addresses mentioned in the application form and their statements which were recorded as well, were encircled on the back of the application forms and a report was submitted by the respondent to the FSO on 9th August, 1999. The report was approved by the FSO on 10th August, 1999. As the report was approved by the FSO, the respondent, being the designated Inspector, she was bound to sign the food cards and, therefore, she signed the food cards which were prepared by Sh. Nand Lal, SSC, who had been working as clerk as per the order of FSO which order was WP (C) No.418 of 2007 Page 3 of 29 categorically incorporated in the order book dated 28th June, 1999 and consequently, the cards were issued to the respective applicants.
5. Thereafter, one Sh. Pawan Kumar had filed a complaint dated 13th August, 1999 which was entrusted to the respondent on 20th August, 1999 to enquire into and submit a report. A report was submitted by the respondent to the FSO on 23rd August, 1999, which was accepted and the supply of the alleged food cards were stopped as per the directions of the FSO and a notice dated 24th August, 1999, for cancellation of food card was issued under the provisions of the Delhi Specified Food Articles Order, 1981. On 24th August, 1999, a memo was also issued to the respondent to explain the reasons for issuance of the alleged food cards.
6. Thereafter, the respondent was placed under suspension on 2nd September, 1999, and a charge sheet dated 10th April, 2000 was issued to the respondent, stipulating that while functioning as a Sub Inspector (Group IV of DASS) during the period of August, 1999 in Circle No. 22, she committed gross misconduct in accepting the application forms for permanent Ration Card for verification, altogether ignoring the contents of the application forms and she also recommended the issuance of PRCs (permanent ration cards) against the application forms without actually verifying the correctness of the facts. The other charge against the respondent was that she accepted the application forms for the WP (C) No.418 of 2007 Page 4 of 29 issuance of PRCs from persons other than applicants/authorised representatives, which were subsequently diarised in FDR-A register at diary No. 991 to 996 dated 2nd August, 1999.
7. The respondent submitted her reply dated 30th April, 2000 and the Inquiry Officer and Presenting Officer were appointed on 8th August, 2000 to enquire into the charges leveled against the respondent as well as the co-accused Sh. S.C. Sharma. On 11th October, 2000, the Inquiry Officer issued notice to the respondent for her presence and also supplied some of the documents. The statements of PW-1 Sh. Charan Singh, FSO C-22, PW-2 Sh. Nand Lal SCC; PW-3 Sh. T.N. Meena; were recorded on behalf of the Department and statement of Sh. Pawan Kumar, DW-1 was recorded on behalf of the respondent. The statement of the respondent was also recorded on 8th August, 2001.
8. In the meantime, the suspension of the respondent was revoked on 7th March, 2001. Report of the Inquiry Officer was given to the respondent on 7th October, 2002 and the respondent filed a representation against the Inquiry Report on 24th October, 2002. However, the Disciplinary Authority, by order dated 10th January, 2003, imposed the penalty for stoppage of three increments of the respondent for a period of three years w.e.f. 1st February, 2003. WP (C) No.418 of 2007 Page 5 of 29
9. Against the punishment order dated 10th January, 2003 of the Disciplinary Authority, the respondent/charged officer filed an appeal on 28th February, 2003. However, on 5th May, 2004 after almost 14 months a show cause notice was issued to the respondent for enhancement of the penalty by the Lt. Governor, petitioner no.1. The respondent filed a reply to the show cause notice on 7th June, 2004, however, the petitioner no. 1 by order dated 18th August, 2004 enhanced the penalty imposed upon the respondent by reduction of pay by four stages with cumulative effect for a period of five years.
10. The respondent challenged the order of the Disciplinary Authority dated 10th January, 2003 and the Appellate Authority dated 18th August, 2004, inter alia, on the grounds that the issuance of charge sheet and inquiry conducted against her was in violation of Clause 24(2) of the Delhi Specified Food Articles Order, 1981. It was contended that rescinding of the alleged food cards by FSO C-22 was within the jurisdiction of the FSO and thus issuance of charge sheet on the rescinded food cards and inquiry was in violation of Clause 24(2) of the Delhi Specified Food Articles Order, 1981. It was also contended that her statement was recorded without obtaining her consent during the inquiry which is in violation of Sub Rule 16 of Rule 14 of the CCS(CCA) Rules, 1965; that no order for common proceedings was made by the petitioners nor was consent for the same sought from the respondent while conducting simultaneous proceedings against the respondent and WP (C) No.418 of 2007 Page 6 of 29 the co-accused Sh. H.C. Sharma; that the Appointing Authority of the respondent is the Commissioner, Food and Supplies, however, all the steps for conducting the inquiry had been taken by the Chief Secretary and the entire inquiry proceedings without any specific order for change of the Disciplinary Authority was bad in law; that the Chief Secretary, who is a higher authority acting as the Disciplinary Authority in place of the Commissioner, Food and Supplies being the competent Disciplinary Authority ,was in violation of notice dated 3rd August, 1976 and thereby deprived the respondent of a statutory right to prefer an appeal and also the right of review and thus, the penalty order passed by the Chief Secretary and the appellate order passed by the Lt. Governor were vitiated; that the report of the CVC relied on by the Chief Secretary acting as the Disciplinary Authority was not supplied to the respondent; that the relevant evidence was ignored by the Inquiry Officer and that the Lt. Governor was not justified in enhancing the punishment by order dated 18th August, 2004 and also that the review by the Appellate Authority should have been commenced before the expiry of six months from the date of the order sought to be reviewed as in case of the respondent, show cause notice for enhancement was issued only after about 14 moths.
11. The original application filed by the respondent was contested by the petitioners contending, inter alia, that the respondent, as a part of her duty, was supposed to personally visit the addresses of the WP (C) No.418 of 2007 Page 7 of 29 applicants and verify the factum of residence in addition to the members of the family residing there. As per the petitioners, the respondent ignored the contents of the application forms for issuing the permanent ration cards and recommended for issuance of PRCs without verifying the facts and thus, committed gross misconduct. It was also contended that the charges framed against the respondent were categorical and specific and had been proved after an inquiry, in accordance with rules and regulation, and on the basis of the material and evidence brought on record. It was asserted that common proceedings were not held in case of the respondent and Sh. H.C. Sharma and there had been no violation of Rule 18 of the relevant rules. It was contended that in case of Sh. H.C. Sharma, FSO, co- accused the Disciplinary Authority was Chief Secretary and, therefore, the respondent was also charge sheeted by the higher authority so that the proceedings could be held simultaneously though separately. The petitioners categorically asserted that since the proceedings were instituted by the Chief Secretary, he being the higher authority, he was competent to act as a Disciplinary Authority and impose punishment in accordance with Rules and that the respondent was given reasonable and fair opportunity to represent her case at all times during the course of the inquiry and otherwise.
12. The Tribunal carefully considered the pleas and contentions raised by both the parties and decided the matter on primarily two legal WP (C) No.418 of 2007 Page 8 of 29 issues; whether the Chief Secretary, Govt. of NCT, Delhi was the competent Disciplinary Authority for the respondent and rightly issued the penalty order dated 10th January, 2003 and secondly whether the Lieutenant Governor, Delhi, petitioner no. 1 was justified in imposing the enhanced punishment vide order dated 18th August, 2004.
13. With regard to the first issue whether the Chief Secretary, petitioner no. 2 was the competent authority to impose the penalty order dated 10th January, 2003, the Tribunal observed that it is not disputed that petitioner no. 2 was the higher authority and that he was appointed in order to facilitate simultaneous proceedings as against the respondent and co-accused Sh. S. C. Sharma. It was also not disputed by the petitioners that the Commissioner, Food & Supplies was the appointing authority of the respondent. The Tribunal also relied on the judgments of V.K. Ranade v. Food Corporation of India, 1998 RLR 365 and Surjit Gosh vs. Chairman & Managing Director, United Commercial Bank and Ors, 1995 (2) SLR 11 (SC) wherein it is held that when the order of punishment is passed by a higher authority and an appeal is made to the next higher authority, order of punishment does not suffer from any illegality, but at the same time an employee cannot be deprived of his substantive right when there is a provision of appeal against the order of the Disciplinary Authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the Disciplinary Authority in a given case, it WP (C) No.418 of 2007 Page 9 of 29 results in discrimination against the employee concerned. Therefore, the Tribunal held that in the present case even though the respondent had made an appeal before the Lieutenant Governor, Delhi but her right of review, as available under the provisions of the CCS(CCA) Rules, had been negated and she had been deprived of that right. The relevant portion of the Tribunal‟s order is as under:
"6. As far as the first & foremost contention raised about competence of Chief Secretary, Govt. of NCT, Delhi is concerned, it has been fairly stated in reply that impugned departmental proceedings were initiated by the higher authority so that proceedings could be held simultaneously though separately. It is admitted fact that Mr. S.C. Sharma, FSO was co-accused and has been proceeded simultaneously. During the course of arguments, it was not denied by respondents that it is the Commissioner of Food & Supplies who is the appointing authority of applicant. In such circumstances applicant‟s contention is that she being a Group-C employee and Head of the Department being Commissioner of Food & Supplies, respondent no.3 was the disciplinary authority and not the respondent no.2. As per rules it is ordinarily the disciplinary authority, which is competent and has jurisdiction to impose penalty upon delinquent. In V.K. Ranade vs. Food Corporation of India [1998 RLR 365], the Hon‟ble Delhi High Court set aside the penalty when the higher authority exercised power of disciplinary authority holding that it results in discrimination against the employee concerned and also deprive the petitioner the right of first appeal. Similarly, the Hon‟ble Supreme Court in 1995 (2) SLR 11 (SC) [Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank & Ors.] has held that when order of punishment is passed by higher authority and an appeal is made to next higher authority, order of punishment does not suffer from any illegality. But at the same time an employee cannot be deprived of his substantive right when there is a provision of appeal against the order of disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination WP (C) No.418 of 2007 Page 10 of 29 against the employee concerned. Right of employee depends upon the choice of the higher / appellate authority which patently resulted in discrimination between an employee and employee. Such a situation cannot savour of legality. In present case, applicant contended that it is no doubt true that she made an appeal to the Lieutenant Governor, Delhi but her right of review as available under the provisions of CCS (CCA) Rules has been negated and deprived. We may note that no submissions were made on this aspect by the respondents. In other words, the right to file review available under the provisions of CCS (CCA) Rules has been clearly infringed. Only justification in taking impugned action by respondents is that since proceedings were initiated against applicant simultaneously with Mr. S.C. Sharma, an another official involved in the incident concerned, the Chief Secretary being the higher disciplinary authority was competent, in our considered view is not justified and tenable in law. The Chief Secretary was the disciplinary authority in respect of Mr. S.C. Sharma who had been FSO and senior officer and not otherwise."
14. With regard to the contention that petitioner no.1 was empowered to issue the show cause notice dated 5th May, 2004 and thereafter, impose the enhanced penalty by order dated 18th August, 2004, it was observed by the Tribunal that under Rule 27 of the CCS (CCA) Rules 1965 which deals with consideration of appeal it is prescribed under Sub- Rule (1) that the Appellate Authority either on its own motion or otherwise can take action within next six months from the date of the order proposed to be revised. It was also not disputed that the show cause notice was not issued within the period of six months, nor was any such action for enhancement of penalty been taken within the prescribed period. Therefore, the Tribunal categorically held that there had been a breach of the legal provision as the show cause notice for WP (C) No.418 of 2007 Page 11 of 29 enhancing the penalty had not been issued before the expiry of six months.
15. The Tribunal also considered the contention of the respondent in relation to violation of Rule 18 of the CCS (CCA) Rules in as much as no order for holding any common enquiry had been issued by the Competent Authority while simultaneously proceeding against the respondent and the co-accused Sh. S.C. Sharma. The Tribunal carefully examined the original records and observed that the order sheets dated 28th September, 2000 to 8th August, 2001 evidently showed that common proceedings were held on the said dates and that it was only after Sh. S.C. Sharma had made an application on 23rd May, 2001 requesting the Enquiry Officer that his case may be taken separately, that subsequently two separate proceedings were conducted. However on careful consideration of the facts and circumstances of the case the Tribunal was of the view that the said proceedings did not cause any prejudice to the respondent since till the 8th August, 2001 not much progress had been made in the enquiry and also since the Enquiry Officer had submitted two different and separate enquiry reports. The relevant portion of the Tribunal‟s order as under:
"8. Applicant has also raised another plea that proceedings were held against her and Mr. S.C. Sharma, which violated rule 18 of CCS (CCA) Rules in as much as no such order for holding any common enquiry had been issued by the Competent Authority. On examination of original records produced before us, we do find substance in said WP (C) No.418 of 2007 Page 12 of 29 contention, as perusal of order-sheets dated 28.9.2000, 16.10.2000, 20.10.2000, 3.11.2000, 20.11.2000, 4.12.2000, 3.1.01, 15.1.01, 22.1.01, 8.2.01, 14.2.01, 7.3.01, 15.3.01, 22.3.01, 29.3.01, 25.4.01, 23.5.01, 1.6.01, 6.6.01, 7.6.01, 4.7.01, 23.7.01, 8.8.01 indeed go to show that common proceedings were held on aforesaid dates and it is only when Sh. S.C. Sharma made an application on 23.5.2001 and requested the enquiry officer that this being the separate but simultaneous proceedings, his case be taken up separately, two different proceedings were held from that day onwards. Order-sheets produced before us from pages 1-5 including said date support applicant s contention that virtually common proceedings were held despite no orders passed on this aspect. On bestowing our careful consideration to the above aspects and analyzing the subsequent events, we are of the view that the said proceedings did not cause any prejudice to her as by that date not much progress had been made in the enquiry. Moreover, the enquiry officer submitted two different & separate enquiry reports in respect of applicant and Mr. S.C. Sharma. Though initial penalty imposed upon both of them by the disciplinary authority were common, but in case of applicant it had been enhanced, as noticed hereinabove. In view of above, we do not find any justification in this aspect of the contention. Upon perusal of enquiry findings and bestowing our thought and consideration to the rival contentions made by the parties and also on perusal of original records produced before us, we do not find justification in applicant s contention that it is a case of no evidence."
16. Therefore, in view of the facts and circumstances and the evidence on record the Tribunal held that the orders of the Disciplinary Authority as well as the Appellate Authority could not be sustained in law and thus, the Tribunal remitted the matter back to the Disciplinary Authority to pass appropriate orders without being influenced by the observations made by the Tribunal within a period of three months. WP (C) No.418 of 2007 Page 13 of 29
17. It is against this order of the Tribunal that the petitioners have preferred the present writ petition. The petitioners have challenged the order of the Tribunal on many grounds contending, inter alia, that the Tribunal erred in quashing the orders of the Disciplinary Authority as well as the Appellate Authority. It is contended that the Tribunal erred in holding that the respondent‟s right to review had been infringed, since there is no such right to review available under the provisions of the CCS (CCA) Rules 1965, and instead the power to review its own order is conferred only on the President under Rule 29(A) of the CCS(CCA) Rules.
18. It is also urged that petitioner no.2 was appointed as the Disciplinary Authority since he was the higher authority competent to adjudicate the matter as against the respondent and the co-accused in order to facilitate proceedings that could be held simultaneously though separately. In any case the respondent had been allowed to appeal to the next authority, i.e. petitioner no. 1 and hence the right to appeal as provided under the provisions of the CCS (CCA) Rules 1965 had been adhered to and there is no violation of any rights of the respondent. Therefore, when the order of penalty is passed by a higher authority as in the case of the respondent and an appeal is made before the next higher authority then the order of punishment in such cases does not suffer from any illegality. In support of their submissions, the WP (C) No.418 of 2007 Page 14 of 29 petitioners have relied on A.Sudhakar Vs. Post Master General, Hyderabad and Anr. (2006) 4 SCC 348.
19. Learned counsel for the petitioners has also contended that the Tribunal failed to appreciate that the show cause notice dated 5th May, 2004 as issued by the petitioner No.1 was in terms of Rule 27(2) of the CCS (CCA) Rules 1965 and that under the said provision there is no time provided for enhancing the penalty. Thus, it is urged that the Tribunal gravelly erred in concluding that the show cause notice had to be instituted within six months of the order sought to be revised. It is also submitted that the powers of enhancing the penalty under Rule 27 and Rule 29 of the CCS (CCA) Rules are completely different from each other and that the time limit of six months is only prescribed under Rule 29 and there is no such requirement under Rule 27 as has been wrongly observed by the Tribunal.
20. The petitioners have also further contended that the Tribunal, while remitting the matter, has not clarified in the impugned order as to in what manner and under whose authority the proceedings are to be initiated and also if it is to be initiated on the basis of the same enquiry report or on the basis of the fresh one that the penalty upon the respondent is to be imposed within the period of three months as directed by the Tribunal.
WP (C) No.418 of 2007 Page 15 of 29
21. Per contra the respondent has reiterated her pleas and contentions raised before the Tribunal and contended, inter alia, that inspite of filing a caveat bearing No. 4559 before this Court and serving notices to all the petitioners on 29th November, 2006, still the petitioners had not served a copy of the writ petition to the respondent before filing the same before this Court. The respondent further contended that on 23rd January, 2007 she found her name in the High Court Website of Court no. 5 and thereafter appeared before the Court, because of which by order dated 23rd January, 2007 Mr. Rabin Majumder, Advocate, was appointed as Amicus Curiae to defend the respondent.
22. Also, as per the respondent, since the petitioners themselves admitted before the Tribunal that the Commissioner, Food & Supplies is the appointing authority of the respondent, thus, the decision of the Tribunal to quash the order passed by petitioner No. 2, who is not the competent authority to be the Disciplinary Authority in the case of the respondent, is justified and substantiated. Reliance was also placed on the notification dated 3rd August, 1976 which was published in the Delhi Gazette on 12th August, 1976 wherein item No.3 clearly stipulates that petitioner No.2 is the Appellate Authority in the case of the Respondent. Thus, according to the respondent, petitioner No. 2 was not competent to charge sheet and impose penalty against the respondent.
WP (C) No.418 of 2007 Page 16 of 29
23. The respondent also emphasized that the order of enhancement of the penalty by petitioner No. 1 was time barred as it had been issued after a period of one year and ten months on 18th August, 2004 while the penalty order sought to be reviewed was passed by petitioner No. 2 on 10th January, 2003. Reliance was also placed on Rule 29 of the CCS (CCA) Rules, 1965 which clearly prescribes that show cause notice incase of enhancement of penalty is to be issued by the Appellate Authority before the expiry of 6 months from the date of the order sought to be reviewed.
24. This Court has heard the learned counsel for the parties in detail and also perused the entire record placed before the Tribunal. This is not disputed that the appointing authority of the respondent is the Commissioner, Food & Supplies which was even admitted by the petitioners and categorically observed by the Tribunal in the impugned order. Therefore, undoubtedly the competent authority to be appointed as the Disciplinary Authority in the case of the respondent was petitioner No.3. However, since the petitioners required that the proceedings be initiated against the respondent and the co-accused simultaneously, though separately, the higher authority i.e. petitioner No. 2 was appointed as the Disciplinary Authority. The main point of consideration is whether or not the penalty issued by the Higher Authority is sustainable in law. The Tribunal has held that in the WP (C) No.418 of 2007 Page 17 of 29 present circumstances the respondent had lost her right to review and by placing reliance on the case of Surjit Gosh (supra) it had held that since the right of review had been lost, the respondent had been prejudiced. Per contra the petitioners have relied on the judgment of A. Sudhakar Vs. Post Master General, Hyderabad and Anr. (supra), contending that since the right of appeal had been allowed to the respondent, she has not been prejudiced and that the right to review is not recognized under the provisions of CCS (CCA) Rules.
25. The Sudhakar case (supra) relied on by the petitioners is clearly distinguishable as in the instant case although the charge sheet was issued by the Superintendent of Post Offices and he was otherwise the disciplinary authority in respect of the delinquent officer, but as he was appointed to the Lower Selection Grade by the Director of Postal Services in the year 1983 prior to divisionalization of Lower Selection Grade Cadre which took place from July, 1989, upon completion of the enquiry, the records were forwarded to the Director of Postal Services who was the appointing authority, which fact was admitted by the delinquent officer as well. As the Director of Postal Services was both the appointing and disciplinary authority in respect of the delinquent officer, he took into consideration the report of the Enquiry Officer and by an order dated 7.3.1994 imposed a punishment of compulsory retirement of the charged officer from the services. However in the present matter, petitioner No.2 who issued the order of penalty is not WP (C) No.418 of 2007 Page 18 of 29 the appointing authority, which fact is admitted by both the parties. Also, in the matter of Sudhakar (supra) the delinquent officer had not specified as to how he was prejudiced while in the present matter the respondent has specifically claimed that because penalty was issued by a higher authority, she lost out on the opportunity of seeking review as the reviewing authority exercised the power of appellate authority and also exercised the power of enhancement of punishment beyond the period of limitation provided.
26. In Surjit Ghosh (supra) the undisputed facts were that the disciplinary action against the bank employee was taken by the Deputy General Manager. In terms of the regulations, the disciplinary authority of officers in Grade E, D, C and B was the Divisional Manager/Assistant General Manager(Personnel) and the appeal against their order was to the DGM or any other officer of the same rank. The Supreme Court took the view that if the action was taken by the disciplinary authority, he had an opportunity to appeal to the DGM or any other officer of the same rank. However, since the action was taken by DGM although the Divisional Manager and AGM (Personnel) were available for taking the action, the employee was denied the right of an appeal and also the right of review which lay only against the appellate order. The Apex Court also took the view that the order passed by the bank suffered from an inherent defect. It was held as under:
WP (C) No.418 of 2007 Page 19 of 29
"6. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the power of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality."
27. The said decision was apparently where the power to impose the punishment was not concurrently conferred upon both the disciplinary authority, viz., the Divisional Manager/AGM (Personnel) and the Deputy General Manager under the regulations. This view was also upheld by the Apex Court in the case of Electronics Corporation of India vs. G. Muralidhar MANU/SC/1161/2001.
28. Similarly in the present matter by notification dated 3rd August, 1976 which was published in the Delhi Gazette on 12th August, 1976, item No.3 clearly stipulates that petitioner No. 2 is the Appellate WP (C) No.418 of 2007 Page 20 of 29 Authority in the case of the respondent. For the sake of clarity the said notification is reproduced as under:
Sl. Description of Appointing Authority Appellate Authority
No posts Authority Competent to
impose
penalties and
penalties which
it may impose
(with reference
to item nos. in
Rule 11)
Authority
Penalties
1 2 3 4 5 6
3 (i) All Class III Head of (1) Head of Head of the
posts in the the office (i) to (iv) Department, Where
Delhi Depart- the order is that of
Administration ment the Head of
Subordinate concerned Department, the
Ministerial/Exe Administrative
cutive service Secretary concerned
other than the in the Secretariat,
Administration provided the latter
Secretariat and is senior to the
the Districts former. In case the
under the Administrative
Directorate of Secretary is junior
Education. to the Head of the
Department or if
there is no such
Secretary or if the
Head of Department
and administrative
Secretary is one and
the same person the
Chief Secretary.
(2) Head of the The Administrative
Department Secretary concerned
All in the Secretariat
provided he is
senior to the
concerned Head of
WP (C) No.418 of 2007 Page 21 of 29
the Department. In
case the
Administrative
Secretary is junior
of the Head of the
Department or if the
Head of the
Department and
Administrative
Secretary is one and
the same person the
Chief Secretary.
Where the order is
that of the Chief
Secretary the Chief
Secretary and where
the order is that of
the Chief Secretary,
the Administrator.
29. Thus, petitioner No. 2 was clearly the appellate authority as per the notification by the petitioner themselves. It is also not the case of the petitioners that the competent authority was not available at the time. The mere plea that the higher authority was appointed in order to facilitate simultaneous proceedings as against the respondent and the co-accused is not substantial, since as per the case of the petitioner‟s themselves, it was not their intention to conduct common proceedings but separate ones. Just for the sake of holding simultaneous proceedings, the competent authority not being appointed as the Disciplinary Authority, as in the case of the respondent, is devoid of any rationale.
WP (C) No.418 of 2007 Page 22 of 29
30. With regard to the contention that the order passed by petitioner No. 1 on 18th August, 2004 imposing the enhancement of the penalty on the respondent, the petitioners have contended that the show cause notice issued on 5th May, 2004 and the consequent order of enhanced penalty dated 18th August, 2004 was passed under the provisions of Rule 27 of the CCS (CCA) Rules, 1965 and therefore since no time limit is prescribed under the said provision, the same in sustainable in law. Per contra the respondent has contended that Rule 29 of the CCS (CCA) Rules clearly prescribes that enhancement of penalty has to be initiated within 6 months of the order sought to be reviewed and since the show cause notice was issued only after the expiry of 14 months, the subsequent enhanced penalty order is liable to be quashed and that the Tribunal has rightly directed the same.
31. Rule 27 and Rule 29 of the CCS (CCA) Rules are as under:
27. Consideration of appeal (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider-
(a) whether the procedure laid down in these rules have been complied with and if not, whether such non- compliance has resulted in the violation of any WP (C) No.418 of 2007 Page 23 of 29 provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders-
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case :
provided that-
(i) The Commission shall be consulted in all cases where such consultation is necessary;
(ii) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of rule 11 and in inquiry under rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of rule 14 and thereafter, on a consideration of the proceedings of such inquiry and make such orders as it may deem fit:
(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of rule 11 and an enquiry under rule 14 has been held in the case, the appellate authority shall make such orders as it may deem fit after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and
(ii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of rule 16, of making a representation against such enhanced penalty.
(3) In an appeal against any other order specified in rule 23, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable.
29. Revision WP (C) No.418 of 2007 Page 24 of 29 (1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a
Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised WP (C) No.418 of 2007 Page 25 of 29 to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
32. A perusal of both the provisions show that the power to enhance the punishment by the Appellate Authority has been provided for in both the above mentioned provisions. While Rule 27 prescribes the application of the power during appeal, Rule 29 operates when the matter is being reviewed by the Appellate Authority. Thus, in essence though both the provisions are the same their operation is limited to separate stages. As Rule 29 clearly prescribes that no proceeding for revision shall be commenced until after (i) the expiry of the period of WP (C) No.418 of 2007 Page 26 of 29 limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred. Rule 29 (1) (v) also stipulates that the Appellate Authority, within six months of the date of the order proposed to be revised may at any time, either on its own motion or otherwise call for the records of any inquiry and revise any order made under the rules. While on the other hand Rule 27 also allows the enhancement of the penalty when considering appeal under Sub rule 2, however no specific time limit for the same is prescribed.
33. The facts of the present matter are such that on 28th February, 2003 appeal was preferred by the respondent against the order of the Disciplinary Authority, petitioner No.2. While the matter was still pending in appeal, petitioner no.1 who was the Appellate Authority issued a show cause notice on 5th May, 2004 after a lapse of 14 months and proposed the enhancement of the penalty of the reduction of pay by three stages for three years with cumulative effect to that of the reduction of pay by four stages for five years with cumulative effect upon the respondent. Subsequently, after receiving the representation of the respondent on 7th June, 2004 the Appellate Authority passed the order of enhanced penalty on 18th August, 2004. Therefore, it is clear that the said order was passed while considering the matter in appeal under Rule 27 and not while reviewing the same under Rule 29 of the CCS(CCA) Rules, 1965. Therefore, the time limit of six months as observed by the Tribunal is misplaced and hence the Tribunal has erred WP (C) No.418 of 2007 Page 27 of 29 in observing the same. However, the contention of the petitioners that there is no time limit while considering an appeal is also not acceptable. Ideally, the appeals in service matter are to be disposed of by the Appellate Authority within a period of one month, however if for some reason the same is not possible it is incumbent on the Appellate Authority to give the reasons for the delay. However, perusal of the show cause notice dated 5th May, 2004 does not apparently deal with the issue. The delay of 14 months of issuing the said show cause notice has not been explained and the matter is not dealt with in the order dated 18th August, 2004 as well, inspite of being specifically contended by the respondent in her representation. Also, the show cause notice merely states that considering the facts of the case, enhancement of the existing penalty is proposed. However, other than this vague statement not a single such fact has been mentioned specifically. Also order dated 18th August, 2004 merely states that it is clear that while preparing and issuing the food cards the respondent did not even notice the names of renowned authorities of the Government like the Chief Secretary of the Government of India in the alleged food cards and made them a resident of Village Bawana for issuing the food cards to fictitious persons in assumed names and therefore, the proposed enhancement of the punishment ought to be imposed. This in itself does not seem to be a plausible enough cause for imposing a higher penalty. Therefore, in view of the inordinate and unexplained delay in issuing the show cause notice, and the vague contents of the same, thereby clearly prejudicing WP (C) No.418 of 2007 Page 28 of 29 the respondent from effectively defending herself, this Court is of the considered view that the said show cause notice and the subsequent enhanced penalty order is not sustainable in law and is liable to be set aside.
34. In the totality of facts and circumstances, there are no such cogent grounds to interfere with the decision of the Tribunal remitting the matter back to the petitioners. The writ petition is, therefore, dismissed and the matter is remitted back to be heard by the competent disciplinary authority, after which a reasoned order be passed within the period of 6 months from the receipt of the copy of this order. Copies of this order be sent to the petitioners. Parties are, however, left to bear their own cost.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
SEPTEMBER 30, 2011.
„rs‟ WP (C) No.418 of 2007 Page 29 of 29