Ram Niwas Gupta vs Municipal Corporation Of Delhi ...
1996 Latest Caselaw 195 Del

JUDGMENT

M.K. Sharma, J.

(1) This writ petition is directed against the order passed by the Disciplinary Authority imposing on the petitioner a penalty of reduction to the lower post of Upper Division Clerk in pursuance of a departmental proceeding and also against the order passed by the Appellate Authority on 1.4.1977 rejecting the appeal filed by the petitioner.

(2) A departmental proceeding was instituted against the petitioner with five charges levelled against him. After the petitioner showed cause and his defense was not found adequate, an Enquiry Officer was appointed to go into the charges, on completion of which the Enquiry Officer submitted his report on 19.9.1974 holding that the charges No. 1, 2,3 and 5 have been proved against the petitioner. As regards charge No. 4, the Enquiry Officer held that it had been proved to the extent that the petitioner raised a loan of Rs. 7,000.00 and Rs. 8,500.00, without any prior permission of the Competent Authority. The aforesaid report of the Enquiry Officer was placed before the Disciplinary Authority, who after going through the same agreed with the findings recorded by the Enquiry Officer and issued a show cause notice to the petitioner alongwith a copy of the enquiry report.

(3) On receipt of the same, the petitioner submitted a reply to the show cause notice. "The Disciplinary Authority on consideration of the show cause filed by the petitioner and on perusal of the materials on record felt that the penalty of dismissal from service would be rather too harsh and that imposing on the petitioner a lesser penalty would meet the ends of justice. Accordingly, the Disciplinary Authority reduced the penalty of dismissal from service to that of reduction to the lower post of Upper Division Clerk and imposed the said penalty on the petitioner.

(4) Being aggrieved by the aforesaid order imposing on him a punishment of reduction in rank, the petitioner preferred an appeal before the Appellate Authority on 11/01/1977 through the Commissioner, Municipal Corporation ofDelhi. A copy of the appeal petition is on record. The learned Counsel for the petitioner has taken me through the grounds of appeal raised in his appeal/ petition filed before the Appellate Authority.

(5) Subsequently by a letter dated 6.5.1977, the petitioner was informed that his appeal had been considered and examined by the Commissioner in accordance with the provisions of the Control and Appeal Regulations. Upon such consideration, the Commissioner passed an order stating, inter alia, that he had once again considered the Enquiry Report and examined the record of the Enquiry Officer and found that the appellant had failed to produce any fresh material point in his appeal as also during the course of personal hearing which could warrant any change in the previous order dated 6.5.1977 passed by him as Disciplinary Authority wherein he had already taken a lenient view and reduced the proposed penalty of dismissal from service to that of reduction to the lower post of Upper Division Clerk. Accordingly, the appeal filed by the petitioner came to be rejected by the Commissioner sitting as the Appellate Authority over the order passed by him imposing on the petitioner the penalty of reduction to the lower post of Upper Division Clerk.

(6) The learned Counsel appearing for the petitioner submits before me that apart from commission of procedural violation in conducting the departmental inquiry, the impugned action of imposing on the petitioner the penalty of reduction to the Grade of Upper Division Clerk was passed by an authority who was not the Competent Authority as the Commissioner could not have acted as the Disciplinary Authority in the case of the petitioner. The Counsel further submits that the order passed by the Appellate Authority is ex-fade illegal and was passed in violation of the principles of natural justice, inasmuch as, the Commissioner who acted as the Appellate Authority of the petitioner also functioned as the Disciplinary Authority and as such this said order is also liable to be set aside being illegal and in violation of the principles of natural justice.

(7) The learned Counsel appearing for the respondent admits that the order passed by the Appellate Authority could not be supported. She, however, states that the proper Appellate Authority would dispose of the appeal filed by the petitioner in accordance with law if the matter is remitted back to him for disposal in accordance with law. She also points out to me that so far the petitioner isconcerned, the order imposing on him the punishment was passed by the Commissioner, and therefore, the appropriate Appellate Authority would be the Administrator of the Corporation who is a higher authority than the Commissioner.

(8) On consideration of the submissions made by the Counsel and on going through the records of the case, I am satisfied that the Commissioner who functioned as the Disciplinary Authority in case of the petitioner also sat over the appeal filed by the petitioner against the aforesaid order and disposed of the said appeal preferred against his own order as the Appellate Authority. This action on the part of the Commissioner functioning both as the Disciplinary Authority as also the Appellate Authority ex-fade cannot be sustained in law inasmuch as the Commissioner could not have acted as the Appellate Authority against his ownorder. It is well settled that justice should not also be done, but also seem to be done.

(9) Since there is an error apparent on the face of the records and also violation of the principles of natural justice in disposing of the appeal filed by the petitioner,it is not necessary for me to examine the issues raised with regard to the legality of the order passed by the Disciplinary Authority. I am also not accordingly called upon at this stage to examine and answer the issue that is raised before me with regard to the competency of the Commissioner to act as the Disciplinary Authority of the petitioner which is also raised in the appeal petition filed before the AppellateAuthority.

(10) On the basis of the aforesaid findings, I am of the opinion, that the order passed by the Appellate Authority is liable to set aside and quashed, which I herebydo. The appeal filed by the petitioner before the Appellate Authority is remitted back to the Administrator of the Corporation who shall deal with the appeal filed by the petitioner and dispose of the same by a reasoned order in accordance with law at an early date and in no case later than three months from the date of receipt of a copy of this order.

(11) The learned Counsel for the petitioner seeks that the petitioner may be allowed to take up additional grounds to the grounds already taken in his appeal petition to which the learned Counsel for the respondents has, on instructions,submitted that she has no objection to the aforesaid prayer.

(12) In the light of the aforesaid statements I also order that the petitioner may take up additional grounds in addition to the grounds already taken in his appeal petition which shall be filed before the Appellate Authority within a period of three weeks from today. With the aforesaid observations and directions, the writ petition stands allowed to the extent indicated above. Parties to bear their own costs.