Col. Rama Kant (Retd.) (Deceased) ... vs Union Of India (Uoi) And Ors.
1999 Latest Caselaw 39 Del

JUDGMENT

K. Ramamoorthy, J.

1. The short facts which are necessary for the disposal of the present writ petition may be stated thus. On 14.12.1995, the petitioner in the writ petition was discharged from service by the Government of India, Department of Electronics, 6, C.G.O. Complex, New Delhi. Challenging the order dated 23.06.1993, the petitioner in the writ petition filed C.W.P. No. 1862 of 1996 at the time when the petitioner filed the writ petition, his appeal against the order of discharge was pending before the President of India, Appointing Authority. This Court disposed of that writ petition directing the competent authority to dispose of the appeal and the order reads as under:

C.W. No. 1862/96

Rule.

Heard finally with the consent of the learned Counsel for the parties.

The petitioner joined the Indian Army as a Commissioned Officer on 2.6.1963. In the year 1985, he was promoted as Colonel in the Army and thereafter joined Semi Conductor Complex Ltd. (hereinafter referred to as SCL), a Government of India Undertaking on deputation. In the year 1991, the petitioner was appointed as Chairman-cum-Managing Director in SCL. However, on 23.06.1993, the petitioner was placed under suspension on certain charges and a charge sheet was served on him under Rules 1 of SCL Conduct, Discipline and Appeal Rules, 1993 on 14.7.1993. Inquiry was conducted against the petitioner and after the conclusion of the inquiry, the petitioner was discharged from service vide order dated 14th December, 1995 (Annexure-R-8 at pages 102-107 of the paper book).

Feeling aggrieved, the petitioner has filed an appeal to the President of India, the Appointing Authority, on 2.1.1996 (Annexure R-9 at pages 110-114 of the paper book). The above mentioned appeal till date has not been disposed of by the Appellate Authority. Since the appeal filed by the petitioner is still pending before the concerned Competent Authority and no decision has been taken by the concerned Competent Authority so far in the matter of appeal filed by the petitioner, the present petition is disposed of with the directions that the appeal filed by the petitioner with the directions that the appeal filed by the petitioner be disposed of in accordance with law within a period of three months from today. If after the decision of the appeal any of the grievances of the petitioner survives, the petitioner is given the liberty to approach this Court.

With the above observations, the petition stands disposed of. No order as to costs.

2. On 24.12.1996, the Government of India passed an order directing the disciplinary authority to dispose of the case after giving opportunity to the petitioner. Order dated 24.12.1996, reads as under:

GOVERNMENT OF INDIA

DEPARTMENT OF ELECTRONICS

ELECTRONICS NIKETAN

6, C.G.O COMPLEX

NEW DELHI-110003.

No. 9(1)/96-Vig. dated 24.12.1996.

Whereas disciplinary proceedings were initiated against Col. (Retd.) Ramakant, (hereinafter called the Charged Officer) Ex-Chairman-cum-Managing Director, Semi Conductor Complex Limited (SCL), Mohali under Rule 31 of the SCL Conduct, Discipline & Appeal Rules (hereinafter called Rules) vide Memorandum No. 2(8)/93-Vig. dated 14.7.93.

Whereas the Inquiry Authority gave its findings which were considered by the CVC who advised on the proposed course of action in the case.

Whereas the Disciplinary Authority, after considering the Report of the Inquiry Authority, the advice of the Commission and the reply of the Charged Officer contending that the inquiry report had not established the charges formed its conclusions, holding that five charges out of seven had been proved which was in variance with the report of the Inquiry Authority.

And whereas the Disciplinary Authority imposed the punishment of discharge from service, which was not to be a disqualification for fixture employment vide Order No. 8(2)/93 Vig. dated 14.12.95;

Whereas Col. (Retd.) Ramakant, challenged the order of discharge from the service of SCL in the Hon'ble High Court of Delhi on 6.5.96, under Rule 37 of the Rules relying upon the following main grounds in his Writ Petition:

(1) That the Disciplinary Authority had not communicated its disagreement with the findings of Inquiry Authority and thereby he had been denied adequate opportunity for defending himself. In support of this argument the Charged Officer relied upon O.M. No. 11012/22/94-EST(A) dated 27.11.95 issued by the Department of Personnel & Training.

(2) That the Disciplinary Authority had not considered his appeal and therefore he had no remedy but to approach the High Court under Article 226 of the Constitution.

Whereas the Hon'ble High Court, after considering the case ordered on 29.8.1996 directing that "the Appeal filed by the Petitioner be disposed off in accordance with law within a period of 3 months from 29.8.96."

Now, the Appellate Authority, considering the plea of the Charged Officer that he had been denied an opportunity to defend; himself is inclined to accept the same and therefore, in exercise of the power conferred under Rule 37 the Rules hereby set aside; the order dated 14.12.95 with a direction that the process may commence from the stage at which the infirmity occurred. The Disciplinary Authority shall dispose off the case after giving an opportunity to the Charged Officer, specifically indicating the difference with the findings of the Inquiry Authority.

3. The present writ petition was filed challenging this order. On 13.07.1998, an application to bring on record the L.Rs. of the deceased petitioner was filed and that was ordered.

4. On 30.04.1997, the Government of India, issued proceedings giving the reasons for differing from the view taken by the Inquiry Officer. The petitioner in the writ petition did not give any explanation to the disciplinary authority.

5. The learned Senior Counsel for the petitioner submitted that the disciplinary authority had no jurisdiction to pass any order after the cessation of jural relationship of master and servant between the Government of India and the petitioner and in view of the setting aside the original order of the disciplinary authority the petitioner would be entitled to pay and allowance relating to the period of suspension. The learned Senior Counsel submitted that in view of the subsequent developments the disciplinary authority had to proceed on the basis that there was no proceedings pending against the petitioner and therefore, he would be entitled to all the benefits. The learned Senior Counsel relied upon the judgment of the Privy Council reported in R.T. Rangachari v. Secretary of State, , and relied upon the observations at page 29 that "it seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained. It follows that in their Lordships' view the appellant had, and has, every right to complain of the stoppage of the pension as a breach of the rules relating to pensions. Both Courts below so held and their Lordships are in entire agreement with their decision on this point".

6. The facts in that case are, that prior to and in the month of July, 1927 the appellant was a Sub-Inspector of Police in the Presidency of Madras. Charges were framed against him for irregular and improper conduct in the exercise of his duties as a Police Officer. The officer concerned who had conducted the inquiry concluded the same on 7.9.1929. At that time the appellant made a representation and this was transmitted to the Acting Superintendent of Police and that was being considered. Ultimately, the appellant was granted invalid pension and the disciplinary proceedings was not pursued. Subsequently an order was passed on 28.2.1928 purporting to remove the appellant from service from the date on which he was invalided. Challenging this the appellant brought the action this only in that context the Privy Council made the observations. The Privy Council upheld the decisions of the Courts below. Therefore, there is no proposition of law laid down by the Privy Council which could be called in aid by the petitioner in this writ petition.

7. The learned Senior Counsel referred to the judgment of the Supreme Court reported in State of Assam and Ors. v. Padma Ram Borah, , wherein, according to the learned Counsel for the petitioner, the Supreme Court had followed the dictum laid down in 1937 PC and the Supreme Court noticed the facts as under:

"This is an appeal by special leave of this Court. On August 25, 1929, Padma Ram Borah, respondent before us, was appointed Lower Division Assistant in the Office of the Registrar, Joint Stock Companies, Assam. The officer was situated at Shillong and the respondent was appointed first as a probationer. After the expiry of the probationary period, he was confirmed in service. Later he was promoted to the post of an Upper Division Assistant and ultimately on May 1, 1953 he was appointed Superintendent in the Office of the Excise Commissioner, Shillong. He was born on January 1, 1906 and was due to superannuate on attaining the age of 55 from January 1, 1961. It appears that the respondent applied for leave preparatory to retirement for four months from September 1, 1960. He did not however actually go on leave till December 22, 1960 on which date an order of suspension was passed against him as per Notification No. 4/60/42 which was in the following terms:

"Shri P.R. Borah, Superintendent of the Office of the Commissioner of Excise, Assam is placed under suspension with effect from the date of this order till departmental proceedings to be drawn up against him are finalised."

A copy of the notification was sent to the respondent with a memo which stated that as the respondent was due to retire with effect from January 1, 1961 his services would have to be extended beyond that date till the completion of the departmental proceedings and necessary orders in this respect would be issued in due course. The case of the State of Assam-appellant before us, is that on December 22, 1960 the respondent left the office without obtaining any orders. On January 6, 1961, a second Notification No. 229/59/16 was issued by the appellant. This notification said:

"The term of the services of Shri P.R. Borah, Superintendent (under suspension) of the Office of the Commissioner of Excise, Assam is extended for a period of 3 (three) months with effect from the 1st January, 1961 or till the disposal of the departmental proceedings, whichever is earlier."

A copy of this notification was also sent to the respondent. Apparently, the departmental proceeding against the respondent was not disposed of within the period of three months mentioned in the notification, and that period came to end on March 31, 1961. On May 9, 1961 a third Notification bearing No. 229/59/60 was issued and this notification said :

"The term of the services of Shri P.R. Borah, Superintendent (under suspension) of the Office of the Commissioner of Excise, Assam, Shillong is extended for a further period of 3 (three) months with effect from the 1st April, 1961 or till the disposal of the departmental proceedings whichever is earlier".

8. The respondent before the Supreme Court moved the High Court of Assam. The case of the respondent before the High Court was that he ceases to be an employee of the appellant w.e.f. 1.1.19961 and was not amenable to any departmental proceedings. The High Court of Assam allowed the writ petition and directed the State of Assam not to give the effect to the order dated 9.5.1961. The Supreme Court took the view that "on 31.3.1961 the respondent before the Supreme Court ceased to be in service and therefore, the order of retention in service passed more than a month thereafter nullity and cannot be sustained. I am unable to agree with the submissions advanced on behalf of the petitioner that this case would help to the petitioner.

9. When the original order was passed on 14.12.1985, it is not the case of the petitioner that he ceased to be in service. He filed the writ petition in this Court had directed that the appeal to be disposed of. Thereupon the order was passed in the appeal that was again challenged. On 30.4.1997 the Disciplinary Authority had issued notice to him. The final orders are to be passed by the disciplinary authority on the basis of the notice dated 30.4.1997. It is only at this stage the unfortunate death of the petitioner occurred. In my view, the entitlement of the L.Rs. of the deceased petitioner would depend upon the ultimate view that may be taken by the disciplinary authority pursuant to the notice issued on 30.4.1997.

10. The petitioner is not alive to give any reply to the notice dated 30.04.1997. The petitioner had given no explanation for a period of more than 10 months and nothing is mentioned what prevented the petitioner from giving any reply in 1997 or in the beginning of the year 1998. In the circumstances, this Court can only direct the disciplinary authority to pass final orders on the basis of the material available on record and having regard to unfortunate event of the death of the petitioner and the position of the Legal Representatives of the petitioner. The disciplinary authority shall pass the appropriate orders on or before 31.3.1999.

11. Accordingly, the writ petition stands disposed of in the above terms.