Union Of India & Others vs Mukesh Garg
2009 Latest Caselaw 2543 Del

*           HIGH COURT OF DELHI: NEW DELHI

+    Writ Petition (Civil) No. 1314/2008

                          Judgment reserved on: July 06,2009
%                         Judgment delivered on: July 09,2009

     Union of India & Others                      ..... Petitioners

                          Through: Mr.J.K.Singh, Advocate

                   Versus

     Mukesh Garg                                  ..... Respondent

                          Through: Ms.Meenu Mainee, Advocate
     Coram:

     HON'BLE MR. JUSTICE MADAN B. LOKUR
     HON'BLE MR. JUSTICE A.K. PATHAK

     1. Whether the Reporters of local papers may Yes
        be allowed to see the judgment?

     2. To be referred to Reporter or not?             Yes

     3. Whether the judgment should be reported
        in the Digest?                                 Yes



    A.K. PATHAK, J.

1. By this writ petition, the Petitioners have prayed that

the order dated 25th April, 2007 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi (herein

after referred to as 'Tribunal') in O.A. No. 1144/2006 be set

aside. By the impugned order, Tribunal has set aside the

order dated 27th October, 2004 passed by Disciplinary

Authority whereby pay of the Respondent was reduced from

Rs.3880/- to Rs.3540/- in the pay scale of Rs.3200-4900/-

for a period of four years with cumulative effect; as also the

order dated 18th May, 2005 passed by the Appellate Authority

dismissing the appeal of the Respondent.

2. Brief background of the case is that the Respondent

was working with the Petitioner as a Parcel Clerk at Delhi on

21.10.1998 when in a surprise check, a sum of Rs.150/- was

found in his possession as excess as private cash and it was

also revealed that he had created an artificial shortage of

Rs.145/- in the Government cash. A departmental enquiry

was initiated against the Respondent. The Enquiry Officer

gave his report on 24 th May, 2000 thereby holding that

charge no. 1 was proved fully; whereas charge no. 2 was

proved partially since alterations were proved only on LT No.

199613. Enquiry report was served on the Respondent, who

made a representation before the Disciplinary Authority.

Thereafter, vide order dated 10th May, 2001 the Disciplinary

Authority held Respondent guilty of charges levelled against

him and imposed punishment of reduction of pay to

Rs.3200/- from Rs. 3710/- for a period of four years with

cumulative effect in the grade of Rs. 3200-4900/-.

Respondent preferred an appeal before the Appellate

Authority against this order, which was also dismissed vide

order dated 5th July, 2001.

3. The Respondent challenged the aforesaid orders

passed by the Disciplinary Authority as well as the Appellate

Authority before the Tribunal by filing an application being

OA No. 1929/2002 which was allowed vide order dated 30 th

May, 2003. The Tribunal quashed the order dated 10th May,

2001 passed by the Disciplinary Authority and order dated

5th July, 2001 passed by the Appellate Authority as well as

Enquiry Officer's report dated 24th May, 2000 and remanded

the matter back to the Enquiry Officer with the direction to

start the enquiry from the stage of calling the defence witness

Sh. A. Rehman. It was further directed that the competent

authorities shall pass appropriate speaking orders in

accordance with law, rules and instructions within a period

of six months.

4. Pursuant to above referred order the Enquiry Officer

summoned and recorded the statement of defence witness

Sh. A. Rehman and submitted enquiry report before the

Disciplinary Authority. The Enquiry Officer concluded that

on the basis of evidence both oral and written that both the

charges were proved. Copy of the enquiry report was given to

the Respondent and he filed a detailed representation before

the Disciplinary Authority. Thereafter, Disciplinary Authority

vide order dated 27th October, 2004 held that the Respondent

was guilty of charges levelled against him and imposed

punishment of reduction of his pay to Rs.3540/- from Rs.

3880/- for a period of four years with cumulative effect, in

the grade of Rs.3200-4900/-. Respondent preferred an

appeal before the Appellate Authority who dismissed the

appeal vide order dated 18th May, 2005.

5. Respondent challenged the order dated 27th October,

2004 passed by the Disciplinary Authority and the order

dated 18th May, 2005 passed by the Appellate Authority

before the Tribunal by filing an original application being

O.A. No. 1144/2006 which was allowed by the impugned

order dated 25th April, 2007 and the orders dated 27th

October, 2004 and 18th May, 2005 have been set aside. The

Tribunal has held that the Respondent was entitled to all the

consequential benefits. The Tribunal has categorically

observed in the impugned order that after remand of the

matter, Enquiry Officer has not passed a fresh enquiry

report. His enquiry report was in continuation of the earlier

report which had already been set aside by the Tribunal.

After the remand, Enquiry Officer had examined the DW but

had not taken into account the defence statement and the

contentions raised before him. The enquiry report was

vague, indefinite and contrary to the statutory rules.

Disciplinary Authority had also not passed a speaking order.

The Tribunal has further held that the appellate order had

also not raised or discussed any of the pleas of the

Respondent and its order was a non speaking order. The

orders passed both by Disciplinary Authority as well as

Appellate Authority were non-speaking and perpetuated the

illegality earlier committed which had been set aside by the

Tribunal.

6. We have carefully perused the report of the Enquiry

Officer as well as the orders passed by the Disciplinary

Authority and Appellate Authority. We are of the view that

the same are non-speaking orders. Perusal of enquiry report

shows that the same was given in continuation of the earlier

report which was quashed by the Tribunal vide order dated

30th May, 2003. After the matter was remanded back by the

Tribunal with the direction to the Enquiry Officer to afford

opportunity to the Respondent for calling the defence witness

Sh. A. Rehman and thereafter to pass appropriate speaking

order, it was obligatory on the part of Enquiry Officer to

consider the matter afresh and to give a reasoned and

speaking report after considering the statement of defence

witness and also the contentions raised by the Respondent.

No reason whatsoever has been given in the enquiry report

on the basis of which Enquiry Officer had concluded that the

charges against the Respondent stood proved. After the

enquiry report was served on the Respondent, he made a

detailed representation before the Disciplinary Authority.

However, impugned order dated 27th October, 2004 of the

Disciplinary Authority is also a non-speaking order. The

Disciplinary Authority has also not given any reason for

arriving at conclusion that charges against the Respondent

were duly proved. Similarly the order of the Appellate

Authority is also a non-speaking order. Directions of the

Tribunal that the competent authorities shall pass

appropriate speaking order in accordance with law, rules and

instructions were also not adhered to. Non speaking and

cryptic enquiry report as well as order passed by the

Disciplinary Authority and Appellate Authority are in

violation of principles of natural justice and unsustainable.

7. Alleged incident dates back to 21.10.1998; thus,

remanding the case back for giving reasoned enquiry report,

would be inequitable in the peculiar facts and circumstances

of this case.

8. In view of the above discussion, we do not find any

jurisdictional error in the impugned order dated 25 th April,

2007 passed by the Tribunal, consequently, writ petition is

dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 09, 2009 rb