Andhra Pradesh High Court - Amravati
Union Of India vs Corporation Bank 1 That Even If The Time ... on 10 September, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ WRIT PETITION NO: 14309/2004
% 10.09.2024
# Union of India.
......Petitioners
And:
$1. Sri D.R.K.Reddy
....Respondent.
!Counsel for the petitioners : Sri J.U.M.V.Prasad
^Counsel for the respondent : Sri V.R.Machavaram
<Gist:
>Head Note:
? Cases referred:
1. 2002 (6) SCC 33
2. (1991) 1 SCC 605
3. (1997) 4 SCC 430
4. 1999 (17) LCD 24
5. (2021) 12 SCC 460
6. 2022 SCC OnLine SC 2032
7. 2013 SCC Online All 14267
2
HIGH COURT OF ANDHRA PRADESH
****
WRIT PETITION NO: 14309/2004
DATE OF JUDGMENT PRONOUNCED: 10.09.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
___________________
RAVI NATH TILHARI, J
________________
NYAPATHY VIJAY,J
3
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO.14309 of 2004
ORDER:
(per Ravi Nath Tilhari, J)
Heard Sri J.U.M.V.Prasad, learned Central Government Counsel
for the petitioners and Sri V.R.Machavaram, learned counsel for the
respondent.
2. This Writ Petition was filed by the Union of India and others
under Article 226 of Constitution of India challenging the judgment and
order dated 02.04.2004 passed by the Central Administrative Tribunal,
Hyderabad Bench, Hyderabad (in short 'the Tribunal') in O.A.NO.1163
of 2002.
3. The OA was filed by the applicant/respondent herein - Sri
D.R.K. Reddy challenging the order of removal dated 12.09.2002,
passed by the disciplinary authority the Divisional Commercial
Manager, South Central Railway, Vijayawada Division, Vijayawada,
removing respondent from service and declaring the order of removal
as void ab-initio and without jurisdiction.
4. The OA was allowed by the order dated 02.04.2004, the
operative portion of the order reads as under:
"In the result, this O.A. is allowed. The impugned order of removal
passed by the disciplinary authority is hereby set-aside declaring that the
said order passed is void ab-initio and without jurisdiction. Consequently, the
respondents are directed to reinstate the applicant to the post of TTE and to
grant him all consequential benefits such as arrears of pay from the date of
removal till reinstatement, promotion, continuity of service. There shall be
compliance with this order within a period of three months from the date of
receipt of a copy of this order. In the circumstances, we direct the parties to
bear their respective costs."
5. The respondent while working as TTE/BZA in the scale of pay of
Rs.1200-2040, was charge sheeted on the basis of the decoy check
conducted on his working on the train No.7016 Visakha and also 8689
Bokaro express trains for major penalty. The 2 nd petitioner imposed the
punishment of reduction to the lower grade from TTE to TC, from the
basic pay of Rs.4400/- in the pay scale of Rs.4000-6000 to Rs.3050/-
in scale Rs.3050-4590 for 5 years (recurring) with loss of seniority with
effect from 10.07.1998 vide order dated 30.06.1998. The 1st petitioner,
as the appellate authority, confirmed the punishment vide order dated
17.12.1998. The revising authority also confirmed the same by order
dated 09.09.1999. The respondent challenged the aforesaid orders in
O.A.No.1407 of 1999 before the Tribunal, which was allowed by order
dated 10.07.2001. The order of punishment was set aside and
direction was issued to hold fresh enquiry, appointing a different
Enquiry Officer, other than Mr.Gopal Das. It was also directed that the
Enquiry shall be completed within two (02) months from the date of
receipt of copy of that order and final order be also passed.
6. The operative portion of the order dated 10.07.2001 in
OA.No.1407 of 1999 is as under:
"The impugned orders are therefore quashed. The respondents are
directed to hold a fresh enquiry appointing Enquiry Officer other than
Mr.Gopal Das. The enquiry shall be completed within two (02) months from
the date of receipt of copy of this order and a final order be passed."
7. Thereafter, the disciplinary authority appointed
Mr.M.A.Veerabhadra Rao, as Enquiry Officer by order dated
30.01.2002 to conduct enquiry in regard to the charge memo dated
23.04.1997. The Enquiry Officer conducted the enquiry and submitted
his report with the findings that the Article of the charge was proved.
The Enquiry report was served to the respondent on 28.06.2002 to
submit his representation. However, he did not submit his
representation/explanation to the findings of the Enquiry Officer. The
disciplinary authority imposed the penalty of removal from service with
effect from 13.09.2002, by order dated 12.09.2002 and the same was
served on the respondent on 12.09.2002.
8. Challenging the order of removal dated 12.09.2002 the
respondent filed the O.A.No.1407 of 1999.
9. As per the order of the Tribunal impugned in the writ petition, the
main ground on which the order of removal was challenged was that
the enquiry had not commenced and was not completed within the two
months period fixed by the Tribunal in O.A.No.1407 of 1999 vide order
dated 10.07.2001. The contention raised was that the revival of the
Enquiry after the expiry of the time limit fixed by the Tribunal, was void,
ab-initio and without jurisdiction.
10. The petitioners (Respondents in OA) filed reply statement, inter-
alia supporting the order of removal and justifying its passing beyond
the time limit fixed by the Tribunal. It was submitted placing reliance in
Topline shoes vs. Corporation Bank 1 that even if the time frame
could not be adhered, the proceedings would not become non est or
without jurisdiction on the efflux of time.
11. The Tribunal observed that in terms of the order dated
10.07.2001 in O.A.No.1672 of 1999 the Enquiry should have been
commenced and completed within two months from 26.07.2001. But,
long after the expiry of the period, the Enquiry Officer was appointed
on 30.01.2002; the Enquiry was conducted on 24.05.2002 and was
completed on 10.06.2002. The Enquiry was completed nearly after
eight (08) months. The petitioners did not seek extension of time for
completion of Enquiry. The order of penalty of removal was thus to be
treated as non est. The order was passed without jurisdiction. The
Tribunal inter-alia referred the cases of M.L.Sachdeva v. Union of
India2, State of Bihar and others v. Subhash Singh3 &
P.N.Srivastava Vs. State of U.P4.
2002 (6) SCC 33
(1991) 1 SCC 605
12. Learned Central Government Counsel submitted that on the
ground that the Enquiry proceedings could not be concluded within a
period of two months as directed by the Tribunal, the proceedings as
also the order of punishment could not be held to be non est, void, ab-
initio or without jurisdiction. He submitted that there was explanation
for delay which was attributable to the respondent as well but the
Tribunal failed to consider the same.
13. Learned counsel for the respondent submitted that in
O.A.No.1672 of 1999 the Tribunal specifically directed to conclude the
Enquiry within a period two months and to pass final orders but the
same was not observed. Any extension of time was also not sought
for. Consequently, the order of removal and the entire proceedings
were vitiated. The Tribunal did not commit any illegality in passing the
impugned order.
14. We have considered the submissions advanced and perused the
material on record.
15. The point to be considered and decided is:
Whether the Tribunal is justified in setting aside the order
of penalty of removal and holding the same as void ab initio
and without jurisdiction on the ground that the enquiry was
not commenced and concluded within the period of two
(1997) 4 SCC 430
1999 (17) LCD 24
months, fixed by the Central Administrative Tribunal in
previous O.A.No.1672 of 1999 vide order dated 10.07.2001?
16. The facts are not in dispute.
17. We would discuss some precedents on the subject.
18. In State of Madhya Pradesh v. Akhilesh Jha5, the Hon'ble
Apex Court held that every delay in conducting a disciplinary enquiry
does not, ipso facto, lead to the enquiry being vitiated. Whether
prejudice is caused to the officer who is being enquired into is a matter
which has to be decided on the basis of the circumstances of each
case and cannot be a matter of surmise. Akhilesh Jha (5th supra) is a
case, where the disciplinary proceedings were set aside on the ground
of delay. Though it is not a case where the time was fixed by the Court
or the Tribunal to conclude the disciplinary proceedings, but, still the
principle of law that, mere delay would not ipso facto lead to the delay
and to quash the enquiry in its entirety on such ground is not
permissible, would equally apply to the facts of the present case.
19. Para 15 in the case of Akhilesh Jha (5th supra) is as under:
"15. The line of reasoning which weighed with the Tribunal is plainly
erroneous. The Tribunal would have been justified in directing the
expeditious conclusion of the enquiry, but instead, it proceeded to quash
the enquiry in its entirety. This, in our view, was clearly impermissible.
Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to
the enquiry being vitiated. Whether prejudice is caused to the officer who is
being enquired into is a matter which has to be decided on the basis of the
(2021) 12 SCC 460
circumstances of each case. Prejudice must be demonstrated to have been
caused and cannot be a matter of surmise. ......"
20. In Union of India vs. Sharvan Kumar6, the Disciplinary
proceedings could not be completed within two months fixed by the
Tribunal and the application seeking extension of time was also
dismissed. The High Court therein had taken the view that the
disciplinary authority had no jurisdiction or authority to complete the
proceedings beyond the period fixed by the Tribunal. Such
proceedings beyond the time prescribed were held to be nullity in the
eyes of law. The Hon'ble Apex Court observed and held that the
approach of the High Court was not correct. Fixing of the period of two
months by the Tribunal was only to ensure expeditious proceedings.
The said period of two months did not acquire any status akin to that of
a statutory mandate that, the disciplinary proceedings would
automatically come to an end with its expiry.
21. Para 31 to 34 in Sharvan Kumar (6th supra) reads as under:
"31. It needs hardly any elaboration to say that fixing of the period of
two months by the Tribunal in this case had only been to ensure
expeditious proceedings because the matter was being restored for
reconsideration in the year 2010, though the disciplinary proceedings
related with the incident dated 09.01.2005. However, the said period of
two months did not acquire any status akin to that of a statutory
mandate that the disciplinary proceedings would have automatically
come to an end with its expiry. It remains trite that if an Adjudicating
2022 SCC OnLine SC 2032
Authority in exercise of its jurisdiction could grant or fix a time period to do a
particular thing, in the absence of a specific statutory provision to the
contrary, the jurisdiction to fix such a time period inheres the
jurisdiction to extend the time initially fixed. Such conditional orders
have regularly been construed by this Court to be in terrorem so as to
put a check on the dilatory tactics by any litigant or to guard against
any laxity on the part of the Adjudicating Authority but, the Court is
not powerless to enlarge the time even though it had peremptorily
fixed the period at any earlier stage. In the case of Mahanth Ram Das v.
Ganga Das, (1961) 3 SCR 763, this Court examined the peremptory order
of the Court fixing the period of payment of deficit court fees in the
backdrop of the fact that the application for extension of time came up for
hearing only after the time fixed by the Court had expired and the
application was rejected. This Court put the things in perspective while
observing, inter alia, as under: -
"5...Such orders are not like the law of the Medes and the Persians.
Cases are known in which Courts have moulded their practice to meet
a situation such as this and to have restored a suit or proceeding, even
though a final order had been passed..."
32. We may elaborate a little. When a conditional order is passed by
the Court/Tribunal to do a particular act or thing within a particular
period but the order does not provide anything as to the consequence
of default, the Court/Tribunal fixing the time for doing a particular
thing obviously retains the power to enlarge such time. As a corollary,
even the Appellate Court/Tribunal or any higher forum would also be
having the power to enlarge such time, if so required. In any case, it
cannot be said that the proceedings would come to an end
immediately after the expiry of the time fixed.
33. In the present case, even the order dismissing the application for
enlargement of time on a technical ground of not placing before the
Tribunal instructions of the Railway Board, had again been not of giving any
such status of mandatory and rigid character to the period originally fixed
that the proceedings would have abated.
34. We are impelled to observe that while treating the proceedings as
having abated and as nullity, the High Court has ignored the
fundamental principles that fixing of such time period was only a
matter of procedure with an expectation of conclusion of the
proceedings in an expeditious manner. This period of two months had
not acquired any such mandatory statutory character so as to nullify
the entire of the disciplinary proceedings with its expiry."
22. The Tribunal has referred in M.L.Sachdeva (supra), which is on
the point of contempt for non compliance with the Court's directions
wherein it was observed that there was indifference to the Court's
Order and it was necessary to curb such tendency of litigating parties.
The said judgment is not attracted to the facts of the present case.
23. Subhash Singh (supra) referred by the Tribunal, is also on the
point of contempt. There was disobedience and delay in complying the
Court's order. This judgment is also not on the subject of delay in
departmental proceedings after the period fixed by the Court/Tribunal
and therefore is not applicable.
24. The Tribunal has placed reliance in P.N.Srivastava (4th supra),
observing that "launching of disciplinary proceedings after the time
fixed by the statuary rules or by the Supreme Court or by the High
Court was illegal". P.N.Srivastava (4th supra) came for consideration
by the full bench of the Allahabad High Court (Lucknow Bench) in
Abhishek Prabhakar Awasthi Vs. The New India Assurance
Company Limited & Ors7. The following questions were referred to
the full bench.
"2 (a) whether if an inquiry proceeding is not concluded within a time frame
fixed by a court and concluded thereafter, without seeking extension from
the Court then on the said ground the entire inquiry proceeding as well as
punishment order - passed, is vitiated in view of the judgment in the case of
P.N.Srivastava; and
(b) Whether the law as laid down by a Division Bench of this Court in the
case of P.N.Srivastava that if an inquiry proceeding is not concluded within a
time frame as fixed by a Court, it stands vitiated is still a good law in view of
the judgment rendered by the Supreme Court in the case of Suresh Chandra
as well as a judgment dated 27.07.2009 of Division Bench of this Court in
Writ Petition No.1056 (SB) of 2009 (Union of India v. Satendra Kumar
Sahai)"
25. The full bench on consideration of various judgments of the
Hon'ble Apex Court answered the reference as under:
"19. These judgments of the Supreme Court consequently recognize that the
delay in concluding a departmental enquiry would not ipso facto vitiate the
proceedings or render it invalid or non est. The Court has to take into
consideration and balance all the relevant factors. The Court must consider in that
balance the need for preserving the sanctity of the administration. On the other
hand, fairness towards the delinquent employee requires that disciplinary
proceedings should be concluded expeditiously. Hence, the nature of the charge,
its complexity and the reasons for that delay are all relevant considerations which
have to be borne in mind. Where the court has stipulated a period of time within
which an enquiry has to be concluded, the direction of the Court, particularly in the
form of a mandamus, has to be duly observed. It would not be open to the
employer to willfully disregard the fixation of a time limit as a matter of no
consequence. However, the fixation of a period within which a disciplinary enquiry
has to be concluded, in an order of the Court, does not deprive the court of its
jurisdiction to extend time in an appropriate case having due regard to all the facts
and circumstances which have been noted above. Whether the time should be
extended on a consideration of the relevant circumstances is for the court to
determine. In view of the above discussion, we now proceed to answer the
questions which have been referred to the Full Bench.
(A) Question No. (a): We hold that if an enquiry is not concluded within the time
which has been fixed by the Court, it is open to the employer to seek an extension
of time by making an appropriate application to the court setting out the reasons
for the delay in the conclusion of the enquiry. In such an event, it is for the court to
2013 SCC Online All 14267
consider whether time should be extended, based on the facts and circumstances
of the case. However, where there is a stipulation of time by the Court, it will not
be open to the employer to disregard that stipulation and an extension of time
must be sought;
(B) Question No. (b): The judgment of the Supreme Court in the case of Suresh
Chandra (supra) as well as the judgment of the Division Bench of this Court in the
case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the
part of the employer in concluding a disciplinary enquiry will not ipso facto nullify
the entire proceedings in every case. The court which has fixed a stipulation of
time has jurisdiction to extend the time and it is open to the court, while exercising
that jurisdiction, to consider whether the delay has been satisfactorily explained.
The court can suitably extend time for conclusion of the enquiry either in a
proceeding instituted by the employee challenging the enquiry on the ground that
it was not completed within the stipulated period or even upon an independent
application moved by the employer. The court has the inherent jurisdiction to grant
an extension of time, the original stipulation of time having been fixed by the court
itself. Such an extension of time has to be considered in the interests of justice
balancing both the need for expeditious conclusion of the enquiry in the interests
of fairness and an honest administration. In an appropriate case, it would be open
to the Court to extend time suo motu in order to ensure that a serious charge of
misconduct does not go unpunished leading to a serious detriment to the public
interest. The court has sufficient powers to grant an extension of time both before
and after the period stipulated by the court has come to an end."
26. It was held by the Full Bench that, the mere delay on the part of
the employer in concluding the disciplinary Enquiry will not ipso facto
nullify the entire proceedings in every case. It is open to the employer
to seek an extension of time by making an appropriate application to
the Court setting out the reasons for the delay in conclusion of the
Enquiry and it is for the Court to consider whether the time should be
extended based on facts and circumstances of the case. The full
bench also held that the Court can suitably extend time for conclusion
of the Enquiry either in a proceeding instituted by the employee
challenging the Enquiry on the ground that it was not completed within
the stipulate period or even upon the independent application moved
by the employer. It was further held that the Court has inherent
jurisdiction to grant extension of time, the original stipulation of time
having been fixed by the Court itself. Such an extension of time has to
be considered in the interest of justice, balancing both the need for
expeditious conclusion of the enquiry in the interest of fairness and an
honest administration. In an appropriate case, it would be open to the
Court to extend time suo moto, in order to ensure that a serious charge
of misconduct does not go unpunished - leading to a serious detriment
to the public interest and that the Court has sufficient power to grant an
extension of time both, before and after the period stipulated by the
Court has come to an end.
27. In view of the aforesaid judgments in Akhilesh Jha (5th supra),
Sharvan Kumar (6th supra) & Abhishek Prabhakar Awasthi (7th
supra) we are of the view that the power to extend the time remained
with the Tribunal and such power could also be exercised by the
Tribunal, suo motu, even in the absence of any application by the
petitioners, and even in OA.No.1163 of 2002 which challenged the
departmental proceedings and the penalty order. The Tribunal without
doing so, set aside the order of penalty on the ground that the order
was passed beyond the time fixed by the Tribunal and was void
ab-initio and non est. The approach of the Tribunal is clearly
impermissible in law. The order of the Tribunal therefore cannot legally
be sustained.
28. So far as delay in appointment of the new enquiry officer,
pursuant to the order of the Tribunal in previous OA.No. 1672 of 1999
is concerned, the petitioners in their reply before the Tribunal in
O.A.No.1163 of 2002 stated as under:
"5(a) ......On receipt of Hon'ble Tribunal orders, 2nd respondent's office
has referred the matter to its Law Branch situated at HQrs at Rail
Nilayam, Secunderabad for its opinion, and on receipt of its opinion, the
matter was referred to HQrs for appoint of an Enquiry Officer (belong to
Enquiry Organization of South Central Railway) other than Sri Gopal Das
in due obedience to the orders of this Hon'ble Tribunal. In due process of
appointing an Enquiry Officer other than Mr.Gopal Das and who is not
involved any check against the applicant, the said appointment of the
enquiry officer got delayed and the said delay is neither intentional
deliberate. On receipt of the names, the Disciplinary Authority appointed
Sri M.A.Veerabhadra Rao, Enquiry Inspector belongs to Enquiry
Organization of South Central Railway as an Enquiry Officer by order
dated 30.01.2002 to conduct enquiry proceedings in regard to the charge
enumerated under Memorandum bearing No.B/C Con/213/96 dated
23.04.1997.
5(1) ..............It is pertinent to submit that in the above circumstances,
the Hon'ble Tribunal has not made any further order about
consequences of non-completion of enquiry within 2 months and in the
instant case, there being no consequences stipulated in default, the
applicant cannot contended that the Disciplinary Proceedings cannot be
confirmed."
29. The Tribunal has not considered the above aspect of the matter.
30. We are further of the considered view that the reasons were
assigned in the order of removal itself for delay but the Tribunal
ignored this material aspect. The delay was also caused by the own
conduct of the respondent as would be reflected from the following part
of the order of the removal of the disciplinary authority:
"On a careful consideration of the inquiry report aforesaid, the
undersigned holds that the articles of charge are proved for the following
reasons:
Honourable Tribunal, Hyderabad in its Judgement dated 10/7/2001
delivered in OA No. 1672/1999 filed by Sri D.R.K. Reddy, TTE quashed the
impugned orders of Disciplinary Authority/Appellate Authority and directed the
administration to hold a fresh inquiry by appointing a different IO other than
Mr. Gopal Das. The Inquiry shall be completed within two months time from
the date of receipt of its order.
In compliance of these directions, DAR inquiry was ordered afresh
appointing another IO by name Sri M. Veerabhadra Rao, Enquiry Inspector,
Secunderabad vide Standard Form No.7 (B/C.Con/213/96) dated 30/01/02.
Following this, the IO held preliminary sitting of the inquiry on 10/02/02.
The charged employee attended this sitting and represented that the
question of appointing IO does not arise until he gets the restored
benefits and dues. Sri M.A.Veerabhadra Rao, IO made a reference to the
undersigned on 12/02/02 to examine and advise on the points raised by the
employee. The CE was restored to the post of Sr. TC in scale Rs.4000-6000
fixing his pay, in the form of tabulation, at Rs.4400/- as on 1.10.97 and at
Rs.4900/- as on 1.10.2001 vide Office Order No.Comml./19/2002
(B/P.676/1/2/5) dated 11/02/2002 and posted at Nellore, a copy of which was
endorsed to the employee. By releasing this order, administration made it
clear that the Tribunal directions are complied with. The IO was informed of
this order and advised to proceed ahead with the Inquiry vide letter No.B/C.
Con/213/96 dated 15/02/02.
The CE made another representation dated 21/02/02 on the issue of
ladder policy regulations and requested to restore him as TTE. He made
another representation dated 22/02/02 addressed to DCM & IO. Reviving
inquiry proceedings before implementing the judgement, expiry of time
frame set by the Honorable CAT and restoration of TTE post are the
issues represented by him in this representation.
As per Honorable Tribunal directions, the main issue of conducting DAR
inquiry afresh by nominating the IO other than Mr. Gopal Das was complied
and restoration of his grade and consequential benefits was sorted out
through OO No. Commt/19/2002. When the administration is exerting to
complete the inquiry within the time frame set by the Tribunal, the
employee had been exerting to thwart the inquiry process by sending
series of representations and forcing the administration to complete the
inquiry process without the active participation of the employee. I have
seen the inquiry proceedings. The employee chose to be a non-
participant deliberately without any valid and constructive reason
although the IO had given him sufficient reasonable opportunity to
participate. Inquiry process and restoration of benefits are two different
aspects and course of action thereon is simultaneous and both of them have
been initiated. The CE need not harp on one and delay the other. The
charged employee should have the conscious of time frame and fresh
opportunity given to him by Tribunal and utilised the same. Instead of using
this salutary and remedial facility, he maintained silence in the inquiry
sittings held on 27/03/2002, 3.5.2002 & 27/05/02. He was only interested
in delaying the inquiry proceedings beyond the time frame by raising
unqualified objections and showing negative tendencies. It is totally
against the code of conduct. This kind of attitude is certainly unwarranted.
As the charged employee was endlessly delaying the inquiry process and his
participation seemed to be remote, the IO had to conclude the inquiry
proceedings duly examining all the three listed witnesses and submit his
report. The CE did not submit his defence statement to the IO but sent a
letter on 30/05/2002 requesting him to supply of the letter issued by DA to the
IO.
Copy of the IO's report was sent to the employee on 27/06/02 under
covering letter No.B/C.Con/213/96 dated 27/06/2002, the receipt of which
was acknowledged by him on 28/06/2002. He was asked to submit his
representation, if any on the lO's findings and proceedings. The CE sent a
letter dated 30/06/2002 addressed to me wherein he requested to supply him
a copy of the reference purported to have been made by Sri M.A.
Veerabhadra Rao (inquiry Officer) and directions thereof given to the IO.
Another letter dated 17/07/02 followed this wherein he made it clear that his
representation against the IO's findings can be filed only on receipt of these
documents. This is not a tenable representation for many reasons.
First of all, he made his submission to IO only and wanted clarification
and IO in turn transmitted his grievance to the undersigned and wanted
action thereon. Accordingly, the IO was intimated and the same informed to
the employee by IO duly recording in the inquiry proceeding on 27/03/2002.
When his grievance was well attended, he need not be evasive of the inquiry
process.
Secondly, he had not expressed any thing deficient concerning the
allegations. The IO had arranged the attendance of all the listed witnesses.
Then, at least, he was to utilise the opportunity of cross-examining them. This
he has not done.
Thirdly, when the inquiry report was furnished to him, he insists for
references, which are irrelevant to the case. To know what has been
transacted between IO and DA is not important, inasmuch as the IO through
his ruling in the enquiry held on 27/03/02 gave the following position in clear
terms:
"The issues raised by the charged employee has been referred to the
DA and it is informed by the DA that the charged employee is restored
to his original position and the punishments imposed were cancelled.
The DA also advised to the IO to proceed with the inquiry in the light of
the cancellation of punishment orders imposed on the CE as per the
Court's directions."
The IO therefore requested the CE to participate and co-operate in
completing the inquiry process early. I strongly feel once IO gives the position
on the matters raised by the CE, the option left for the CE is to co-operate
and complete the inquiry process. I can not appreciate the stand taken by the
CE to be silent in the inquiry and now requesting for copies of IO/DA's letters.
These letters were not transacted on the contents of charge sheet and in
what way they will be helpful to represent on the IO's findings. I strongly feel
that these documents need not be made available to him.
In view of these reasons, I am of the considered opinion that the
employee has no material to defend his case and prove his innocence. His
only interest is to delay the inquiry process beyond the time frame by
adopting illegitimate and negative tactics with a pre-conceived notion of
deriving the benefit of denial of opportunities."
31. A perusal of the quoted part of the order of removal shows that
the respondent was trying to delay the proceedings on one pretext or
the other. But, the Tribunal has failed to advert to the reasons of delay.
32. The Tribunal ought to have exercised the power to extend the
time, in consideration of the factors such as the gravity of the charge
and the interest of administration, to see that the serious charge of
misconduct did not go unpunished.
33. The OA was filed in the year 2002. The order of removal is of the
year 2001. After such efflux of time, we do not consider it fit to remit
the matter to the Tribunal on the aspect of consideration for extension
of time. After going through the record, we are satisfied that there was
sufficient reason for the petitioners to justify in not being able to
commence and conclude the departmental proceedings within a period
of two months as directed by the Tribunal in OA.No.1672 of 1999. We
are of the further view that in such matters where the Tribunal after
quashing the proceedings of punishment, direct the enquiry to be
conducted from the stage of appointment of another enquiry officer, the
period of two months granted was not reasonable or adequate.
34. The delay in considering the departmental proceedings beyond
the period specified by the Tribunal, would not make the proceedings
or the order of penalty as void or without jurisdiction.
35. On consideration, we find that the order of removal has been
passed inconsonance with the principles of natural justice. The enquiry
officer was changed pursuant to the order of the Tribunal in
OA.No.1672 of 1999. In the enquiry, the finding has been recorded that
the charge was proved. The respondent was granted opportunity to
represent on the finding of the enquiry officer, which he did not avail.
Any procedural irregularity or violation of principles of natural justice or
of any rule has not been argued before us by the learned counsel for
the respondent.
36. We are of the considered view that the order of the Tribunal
cannot be legally sustained.
37. We allow the writ petition, setting aside the order of the Tribunal.
The order of the punishment on the respondent is maintained.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand dismissed.
_____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: 10.09.2024
Note: L.R. copy be marked
B/o.
AG
