Sham Lal vs The Union Of India
1983 Latest Caselaw 393 Del

JUDGMENT

N.N. Goswamy, J.

(1) This second appeal by the plaintiff is directed against the judgment and decree dated 4-1-1971 passed by the learned Senior Sub Judge, Delhi with enhanced appellate powers whereby his first appeal against the dismissal of his suit, was also dismissed.

(2) The plaintiff filed a suit for declaration to the effect that the order of dismissal passed against the plaintiff and communicated to him by memo dated 31-1-1966, was illegal, biased, ultra vires, capricious, wanton, without jurisdiction, mala fide, incompetent and against the principles of plural justice, It is alleged in the plaint that the plaintiff was promoted as permanent Supervisor in the year 1958 in the Department of Military Farms, Ministry of defense, Government of India and was working as such in the Military Dairy Farm, Devlali when he was given charge-sheet on 18-4-1964 and was dismissed from service vide order referred to above. The challenge was on the basis that the inquiry was not conducted by the competent authority and also by the person who could not be considered impartial. The Enquiry Officer is far below to the rank of important prosecution witness namely Major S. S. Passi who was a raiding officer who wanted -to see the success his raid. It is further alleged that the venue of enquiry was the hospital where Major Passi was being treated for illness and this was not warranted and had been done under the pressure of Major Passi. It is further alleged that the enquiry suffered from the violation of principles of natural justice inasmuch as the plaintiff was not allowed to .produce Shri S. N. Joshi as a witness and the plaintiff was also not allowed to argue his case at the initial: stage as also in the appeal. It was further alleged that the charge-sheet suffered from misjoinder of charges which has been resulted in the miscarriage of justice. It is also alleged that the show cause notice issued to the plaintiff was incompetent, vague and indefinite and it had been issued by an authority which had no jurisdiction. The grievance has also been made to the orders being cryptic in nature.

(3) The suit was contested by the respondents. It was pleaded in the written statement that the plaintiff was properly dismissed from service after a proper enquiry which was held in accordance with rules applicable. It was further pleaded that the Court had no jurisdiction to entertain the suit and that the suit against defendants 2 and 3 was not maintainable.

(4) On the pleadings of the parties, the following issues were framed :- whether the suit against defendants 2 and 3 as such is maintainable ? 2. Whether this Court has jurisdiction to try this suit ? 3. Whether the dismissal of the plaintiff is illegal as alleged ? 4. Relief.

(5) Issue No.1 was given up by the plaintiff inasmuch as defendants 2 and 3 were deleted. Issue No. 2 was decided in the affirmative i. e. in favor of the plaintiff and against the defendant. The crucial issue is issue- No. 3 which was decided against the plaintiff and as a result his suit was dismissed with costs.

(6) Dissatisfied with the judgment and decree passed by the learned trial Judge, the plaintiff filed a first appeal before the Senior Sub Judge. The only question urged in. the"; first appeal was that the charge-sheet Ex. P. 5 dated 16-4'64 was not issued by the competent authority in accordance with rules and as such then enquiry was vitiated. The learned Senior Sub Judge held that the charge-sheet was served when the plaintiff was governed by Civil and defense Service (Classification, Control and Appeal) Rules 1952. The charge- sheet was in accordance with rule 15 of the said Rules. The contention of the plaintiff in the first appeal that the charge-sheet could not be served by the Deputy Director of Military as the Disciplinary Authority was the Director military Farms, was negatived. Even in this second appeal, the learned counsel for the appellant was unable to show as to who was his appointing authority and disciplinary authority because no such documents have been ' paced on record the rules which were in force at the relevant time when the. charge sheet was issued, fully justified the issue of charge-sheet by the Deputy director Military Farms. The said rules were repealed and by the Saving clause the actions taken under the repealed rules were saved. The first appellate court also went to the extent of considering the provisions of Central Civil Service (Classification, Control and Appeal) Rules 1965 and on consideration of rule 13 came to the conclusion that even under those rules, the charge-sheet could be issued by the Deputy Director, Military Farms. The learned counsel for the appellant in view of the rules was unable to take any exception to the findings recorded by the first appellate court.

(7) Faced with this situation, the learned counsel for the appellant sought to raise a point to the effect that the impugned orders of Disciplinary Authorities as also of the appellate authority are invalid because the said-orders are non-speaking orders and suffered from the vice of non-application of mind. This submission has to be reacted on the short ground that no such point was raised in any of the courts below and it was not raised even in the pleadings. In any case I have been taken through the entire record of the case. The record disclosed that the charge-sheet dated 18-4-1964 was duly served on the plaintiff-appellant. The charge-sheet also contained the statement of charges and the statement of allegations. The appellant filed his reply to the said charge-sheet. The reply was found to be unsatisfactory and as a consequence an enquiry was ordered against the appellant. The entire proceedings before the Enquiry Officer along with his report have also been placed on record. The Enquiry Officer, after considering the entire material on record, came to the conclusion that both the charges against the appellant stood proved. The Enquiry Report was considered by the Director of Military Farms and he was tentatively of the opinion that the punishment of dismissal was called for. Accordingly a second notice was served on the appellant. The appellant also sent his reply to the second notice. On consideration of the entire material including the reply to the notice, the impugned order dated 31-1-1966 was passed by the Director of Military Farms and the punishment of dismissal from service was awarded to the appellant. A perusal of the order shows that the entire material including the enquiry report, the show cause notice and the reply were carefully considered and the Disciplinary Authority agreed with the report of the Enquiry Officer on both the charges and passed the impugned order. The appellant filed an appeal against the order of dismissal. Since no grievance was made in the plaint and no issue to that effect was framed regarding the violation of principles of natural justice and the order being of the nature of non-speaking one, full material has not been placed on record. Though certain parts of the file had found place on record, but have not been exhibited. I had also summoned the file and the Government counsel was fair enough to produce the entire file in this Court. The file discloses that the appellant had Sought personal hearing by the Director, Military Farms which was afforded to him. The file further disclosed that all possible grievance of the appellant regarding the enquiry were duly considered and a copy of the order is also available on this record which records the following conclusions :--

(I)The oral enquiry in his disciplinary case was conducted strictly in accordance with the departmental enquiry rules;

(II)Major S. S. Passi was one of the essential prosecution witnesses in the case and was open to cross-examination at all times during the progress of the inquiry. In fact Shri Sham Lal did examine and cross-examine him without expressing his lack of faith in the Oral Enquiry Officer Or raising any objection to his presence;

(III)He had furnished a certificate at the end of oral enquiry that he was present throughout the oral enquiry, that he was given full opportunity to examine and cross-examine all the witnesses and that he had no complaint against the manner in which the oral enquiry was conducted."

(8) From this document, it is clear that if such points had been raised in the pleadings and were put into an issue, the respondent could have shown to the Court that all possible conditions as required, were complied with and the order did not suffer from non-application of mind. After considering various judgments of the Supreme Court, the Full Bench of this Court in Director of Postal Services and another v. Day a Nand 1972, S.L R. 320 held that the law is well-established that failure to use a prescribed form in passing an order by itself does not nullify the order. It is open to the authority to show all under that the conditions necessary for the validity of the order were complied with In view of this decision, which has considered various judgments of the Supreme Court, it is not necessary to refer to the cases cited by the learned counsel for the appellant. Therefore, this contention of the learned counsel has also to be rejected on this ground also. No ether contention was raised before me. The appeal, therefore, fails and is dismissed. In the circumstances. I leave the parties to bear their own costs.