Naresh Kumar Son Of Shri Prithvi ... vs Union Of India (Uoi), Through ...
2004 Latest Caselaw 720 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner, in the amended writ petition filed by him, has challenged an order dated 24th July, 1993 passed by the Colonel Commander, 14 Border Roads Task Force dismissing the Petitioner from service with immediate effect.

2. The Petitioner was initially served with a charge-sheet along with a memorandum dated 15th September, 1989. The allegation against the Petitioner was that he had misbehaved and attempted to molest a female laborer. It was said that the Petitioner was reported to be in the habit of teasing and using filthy intolerable language to female laborers and, therefore, had exhibited conduct unbecoming of a Government servant.

3. On the basis of the above charge-sheet, a regular departmental inquiry was initiated against the Petitioner and after a consideration of the inquiry report, by an order dated 26th April, 1990, the Petitioner was found guilty of the charges leveled against him and was, therefore, ordered to be dismissed from service by his Commander.

4. Feeling aggrieved by the dismissal order, the Petitioner filed an appeal which was taken up for consideration by his appellate authority, namely, the Chief Engineer and by a speaking order dated 23/25th March, 1991, his appeal was dismissed and the dismissal confirmed.

5. The Petitioner then sent a lawyer's notice dated 3rd August, 1991 disputing the correctness of his dismissal from service. One of the grounds urged was that the Petitioner had not been given a copy of the inquiry report before adverse action was taken against him.

6. The representation made on behalf of the Petitioner resulted in an order dated 27th April, 1992 being passed by the Director General of the Respondent organisation. In terms of this order, it was held that the dismissal of the Petitioner was vitiated since the relevant service rules regarding supply of the inquiry report had not been properly applied. Accordingly, the order of dismissal was set aside and the intervening period from 26th April, 1990 till his reporting for duty was ordered to be regularised as per the leave admissible in his credit. The order dated 27th April, 1992 is of some significance and is reproduced below:-

'' O R D E R

1. WHEREAS Shri Naresh Kumar, G/168796 K Overseer of 397 RM PI(GREF) under 70 RRCC (GREF), was dismissed from service wef 26 Apr 90 Vide HQ 38BRTF Letter No.1212/70/NK/98.EIC dated 26 Apr 90 before furnishing a enquiry report to him before his submission.

2. AND WHEREAS the undersigned on a consideration of representation of Shri Naresh Kumar, G/168796 K Overseer and circumstances of case, find that the charges leveled against him for the involvement in a case of misconduct under rule 3 of CCS (CONDUCT) rules 1964, which led to his dismissal from service, has vitiated for the reasons of improper application of relevent service rules, as regards non furnishing a copy of enquiry report before concluding departmental enquiry proceedings.

3. NOW THEREFORE in exercise of the powers conferred by rule 27(2)(1) of CCS (CCandA) Rules 1965, the undersigned hereby set aside the order of dismissal from service Shri Naresh Kumar, G/168796 K Overseer, issued vide HQ 38 BRTF letter No.1212/70/ NK/98/EIC of 26 Apr 90.

4. Intervening period from 26 Apr 90 till date of reporting for duty will be regularised as per leave admissible in his credit.

Sd xxxxxxxx

(MAHARAJ SINGH)

Lt Gen

Dir Gen Border Roads''

7. Consequent upon the order dated 27th April, 1992, the Petitioner rejoined duties with his organisation.

8. Almost a year later, the Petitioner was served with a memorandum dated 15th April, 1993 enclosing a copy of the inquiry report with the tentative conclusion of his Colonel Commander that on the basis of the inquiry report, it appeared that the Petitioner is not a fit person to be retained in service. The Petitioner was, therefore, asked to show cause why he should not be dismissed from service.

9. The Petitioner sent his reply to the show cause notice but that was rejected by the impugned order dated 24th July, 1993 imposing a penalty of dismissal from service.

10. The only contention urged by learned counsel for the Petitioner is that there was no occasion for the Respondents to issue a show cause notice and thereafter dismiss the Petitioner from service for a second time, the initial order of dismissal dated 26th April, 1990 having been set aside by the Director General, Border Roads Organisation by an order dated 27th April, 1992. Since this order had attained finality, the issue could not have been reopened by the Respondents.

11. It appears from a perusal of Rule 27 of the CCS (CCA) Rules, which are admittedly the rules applicable to this case, consideration of an appeal against a penalty of dismissal is provided for in Rule 27(2) thereof. This Rule reads as follows:-

''(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 has been complied with and if not, whether such non-compliance has resulted in the violation of any 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 these cases: provided that xxx xxx xxx''

12. A perusal of the aforesaid rule shows that the authority may either confirm, enhance, reduce or set aside the penalty. It also has an option to remit the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. Consequently, when the order dated 27th April, 1992 was passed by the Director General, Border Roads Organisation, he could have remitted the matter to the concerned authority for taking a fresh decision in the matter but he did not do so. He merely set aside the order of dismissal without giving liberty to reopen the issue. This being the position, there was no occasion for the disciplinary authority of the Petitioner to issue a fresh show cause notie and thereafter terminate the services of the Petitioner. The issuance of the fresh show cause notice was not authorised by law or even by the order passed by the Director General, Border Roads Organisation. As such, it was without jurisdiction. The consequent action of dismissing the Petitioner from service, quite naturally, was also without jurisdiction.

13. Incidentally, the leading case on the interpretation of Rule 27(2) of the above Rules pertains to the Respondent organisation. In R.P. Bhatt v. Union of India and others the Supreme Court said in paragraph 4 of the Report as follows:

''The word `consider' in Rule 27(2) implies `due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.

14. It must, therefore, be assumed on the basis of the above decision that the Director General, Border Roads Organisation had duly applied his mind while exercising power under Rule 27(2) of the Rules. After due application of the mind he chose not to premit the matter back to the concerned authority for reconsideration. Consequently, there was no occasion for the concerned authority to reopen the case of the Petitioner.

15. In view of the above and in view of the clear language of the order dated 27th April, 1992 as well as Rule 27(2) of the CCS (CCA) Rules, the order setting aside the dismissal of the Petitioner had attained finality and the issues raised in the charge-sheet could not have been reopened by the Respondents.

16. Under the circumstances, the writ petition is allowed with all consequential benefits. However, there will be no order as to costs.