Delhi High Court
Govt. Of Nct Of Delhi & Ors. vs Smt.Mamta Rani on 30 September, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.418/2007
% Date of Decision: 30.09.2011
Govt. of NCT of Delhi & Ors. .... Petitioners
Through Mr. Vinod Wadhwa and Mr. Sahil
Kapoor, Advocates
Versus
Smt. Mamta Rani .... Respondent
Through Mr. Manish Chauhan and Mr. Sandeep
Singh Duggal, Advocates
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioners, Govt. of NCT of Delhi through the Lt. Governor
and Ors. have challenged the order dated 4th October, 2006 passed by
the Central Administrative Tribunal, Principal Bench in OA No.
1105/2005 titled as „Smt. Mamta Rani Vs. Govt. of NCT of Delhi and
Ors.‟ setting aside the orders of the Disciplinary Authority as well as the
Appellate Authority dated 10th January, 2003 and 18th August, 2004
respectively and remanding the matter to the Disciplinary Authority to
pass appropriate orders without being influenced by the observations
made in the impugned orders. The Tribunal further directed that if the
Disciplinary Authority is of the opinion that some penalty is to be
imposed upon the respondent, then it be done within the period given
by the Tribunal.
2. Relevant facts to comprehend the disputes are that the
respondent was appointed as Sub-Inspector, Food & Supplies
Department in Circle No. 22 on 26th February, 1998. The FSO of the
said Circle had entrusted the respondent, with the job of Inspector (HQ)
on 14th May, 1999 in addition to some other assignments of the area.
3. A complaint dated 30th July, 1999 regarding non-supply of sugar
to the consumers by FPS-8772 was received, which was entrusted to
the respondent. The respondent, therefore, directed the owner of FPS-
8772, Smt. Roshni Devi to deposit the sugar cards in the Circle office
immediately. The owner of the FPS-8772 did not deposit the sugar
cards and instead colluded with Sh. Rajesh Kumar Dabas, who is her
cousin and an employee at Sh. Ram Manohar Lohia Hospital, Delhi to
trap the respondent. In furtherance of their conspiracy, on 2nd August,
1999 Sh. Rajesh Kumar Dabas during rush time approached the
respondent with six application forms and six persons namely, Kishan,
Jitender, Anthony, Devender, Prem and Sudhir for issuance of food
cards to them. The forms were accepted for inquiry by the respondent
as per the prevalent procedure prescribed for entertaining fresh
application forms in the department and she also endorsed the letters
"AFE" on each application form as per the prevalent procedure. The
application forms received by the respondent were diarized at Sl. No.
991 to 996 in a register known as FDR(A) and the diary number and
date on each of the application forms was mentioned by Sh. Nand Lal,
Sweeper-cum-Chowkidar, who was also working as clerk under the
instructions of FSO, Sh. S.C. Sharma in the Order Book dated 28th
June, 1999.
4. As per the respondent Sh. Rajesh Kumar Dabas came to the
Circle office on 9th August, 1999 and created a „ruckus‟. The respondent
along with Sh. Nand Lal, SCC visited the premises of these above stated
persons. The neighbours of these persons disclosed that the applicants
of the application forms were residing at the addresses mentioned in the
application form and their statements which were recorded as well,
were encircled on the back of the application forms and a report was
submitted by the respondent to the FSO on 9th August, 1999. The
report was approved by the FSO on 10th August, 1999. As the report
was approved by the FSO, the respondent, being the designated
Inspector, she was bound to sign the food cards and, therefore, she
signed the food cards which were prepared by Sh. Nand Lal, SSC, who
had been working as clerk as per the order of FSO which order was
categorically incorporated in the order book dated 28th June, 1999 and
consequently, the cards were issued to the respective applicants.
5. Thereafter, one Sh. Pawan Kumar had filed a complaint dated
13th August, 1999 which was entrusted to the respondent on 20th
August, 1999 to enquire into and submit a report. A report was
submitted by the respondent to the FSO on 23rd August, 1999, which
was accepted and the supply of the alleged food cards were stopped as
per the directions of the FSO and a notice dated 24th August, 1999, for
cancellation of food card was issued under the provisions of the Delhi
Specified Food Articles Order, 1981. On 24th August, 1999, a memo was
also issued to the respondent to explain the reasons for issuance of the
alleged food cards.
6. Thereafter, the respondent was placed under suspension on 2nd
September, 1999, and a charge sheet dated 10th April, 2000 was issued
to the respondent, stipulating that while functioning as a Sub Inspector
(Group IV of DASS) during the period of August, 1999 in Circle No. 22,
she committed gross misconduct in accepting the application forms for
permanent Ration Card for verification, altogether ignoring the contents
of the application forms and she also recommended the issuance of
PRCs (permanent ration cards) against the application forms without
actually verifying the correctness of the facts. The other charge against
the respondent was that she accepted the application forms for the
issuance of PRCs from persons other than applicants/authorised
representatives, which were subsequently diarised in FDR-A register at
diary No. 991 to 996 dated 2nd August, 1999.
7. The respondent submitted her reply dated 30th April, 2000 and
the Inquiry Officer and Presenting Officer were appointed on 8th August,
2000 to enquire into the charges leveled against the respondent as well
as the co-accused Sh. S.C. Sharma. On 11th October, 2000, the Inquiry
Officer issued notice to the respondent for her presence and also
supplied some of the documents. The statements of PW-1 Sh. Charan
Singh, FSO C-22, PW-2 Sh. Nand Lal SCC; PW-3 Sh. T.N. Meena; were
recorded on behalf of the Department and statement of Sh. Pawan
Kumar, DW-1 was recorded on behalf of the respondent. The statement
of the respondent was also recorded on 8th August, 2001.
8. In the meantime, the suspension of the respondent was revoked
on 7th March, 2001. Report of the Inquiry Officer was given to the
respondent on 7th October, 2002 and the respondent filed a
representation against the Inquiry Report on 24th October, 2002.
However, the Disciplinary Authority, by order dated 10th January, 2003,
imposed the penalty for stoppage of three increments of the respondent
for a period of three years w.e.f. 1st February, 2003.
9. Against the punishment order dated 10th January, 2003 of the
Disciplinary Authority, the respondent/charged officer filed an appeal
on 28th February, 2003. However, on 5th May, 2004 after almost 14
months a show cause notice was issued to the respondent for
enhancement of the penalty by the Lt. Governor, petitioner no.1. The
respondent filed a reply to the show cause notice on 7th June, 2004,
however, the petitioner no. 1 by order dated 18th August, 2004
enhanced the penalty imposed upon the respondent by reduction of pay
by four stages with cumulative effect for a period of five years.
10. The respondent challenged the order of the Disciplinary Authority
dated 10th January, 2003 and the Appellate Authority dated 18th
August, 2004, inter alia, on the grounds that the issuance of charge
sheet and inquiry conducted against her was in violation of Clause
24(2) of the Delhi Specified Food Articles Order, 1981. It was contended
that rescinding of the alleged food cards by FSO C-22 was within the
jurisdiction of the FSO and thus issuance of charge sheet on the
rescinded food cards and inquiry was in violation of Clause 24(2) of the
Delhi Specified Food Articles Order, 1981. It was also contended that
her statement was recorded without obtaining her consent during the
inquiry which is in violation of Sub Rule 16 of Rule 14 of the CCS(CCA)
Rules, 1965; that no order for common proceedings was made by the
petitioners nor was consent for the same sought from the respondent
while conducting simultaneous proceedings against the respondent and
the co-accused Sh. H.C. Sharma; that the Appointing Authority of the
respondent is the Commissioner, Food and Supplies, however, all the
steps for conducting the inquiry had been taken by the Chief Secretary
and the entire inquiry proceedings without any specific order for change
of the Disciplinary Authority was bad in law; that the Chief Secretary,
who is a higher authority acting as the Disciplinary Authority in place of
the Commissioner, Food and Supplies being the competent Disciplinary
Authority ,was in violation of notice dated 3rd August, 1976 and thereby
deprived the respondent of a statutory right to prefer an appeal and also
the right of review and thus, the penalty order passed by the Chief
Secretary and the appellate order passed by the Lt. Governor were
vitiated; that the report of the CVC relied on by the Chief Secretary
acting as the Disciplinary Authority was not supplied to the respondent;
that the relevant evidence was ignored by the Inquiry Officer and that
the Lt. Governor was not justified in enhancing the punishment by
order dated 18th August, 2004 and also that the review by the Appellate
Authority should have been commenced before the expiry of six months
from the date of the order sought to be reviewed as in case of the
respondent, show cause notice for enhancement was issued only after
about 14 moths.
11. The original application filed by the respondent was contested by
the petitioners contending, inter alia, that the respondent, as a part of
her duty, was supposed to personally visit the addresses of the
applicants and verify the factum of residence in addition to the
members of the family residing there. As per the petitioners, the
respondent ignored the contents of the application forms for issuing the
permanent ration cards and recommended for issuance of PRCs without
verifying the facts and thus, committed gross misconduct. It was also
contended that the charges framed against the respondent were
categorical and specific and had been proved after an inquiry, in
accordance with rules and regulation, and on the basis of the material
and evidence brought on record. It was asserted that common
proceedings were not held in case of the respondent and Sh. H.C.
Sharma and there had been no violation of Rule 18 of the relevant
rules. It was contended that in case of Sh. H.C. Sharma, FSO, co-
accused the Disciplinary Authority was Chief Secretary and, therefore,
the respondent was also charge sheeted by the higher authority so that
the proceedings could be held simultaneously though separately. The
petitioners categorically asserted that since the proceedings were
instituted by the Chief Secretary, he being the higher authority, he was
competent to act as a Disciplinary Authority and impose punishment in
accordance with Rules and that the respondent was given reasonable
and fair opportunity to represent her case at all times during the course
of the inquiry and otherwise.
12. The Tribunal carefully considered the pleas and contentions
raised by both the parties and decided the matter on primarily two legal
issues; whether the Chief Secretary, Govt. of NCT, Delhi was the
competent Disciplinary Authority for the respondent and rightly issued
the penalty order dated 10th January, 2003 and secondly whether the
Lieutenant Governor, Delhi, petitioner no. 1 was justified in imposing
the enhanced punishment vide order dated 18th August, 2004.
13. With regard to the first issue whether the Chief Secretary,
petitioner no. 2 was the competent authority to impose the penalty
order dated 10th January, 2003, the Tribunal observed that it is not
disputed that petitioner no. 2 was the higher authority and that he was
appointed in order to facilitate simultaneous proceedings as against the
respondent and co-accused Sh. S. C. Sharma. It was also not disputed
by the petitioners that the Commissioner, Food & Supplies was the
appointing authority of the respondent. The Tribunal also relied on the
judgments of V.K. Ranade v. Food Corporation of India, 1998 RLR 365
and Surjit Gosh vs. Chairman & Managing Director, United Commercial
Bank and Ors, 1995 (2) SLR 11 (SC) wherein it is held that when the
order of punishment is passed by a higher authority and an appeal is
made to the next higher authority, order of punishment does not suffer
from any illegality, but at the same time an employee cannot be
deprived of his substantive right when there is a provision of appeal
against the order of the Disciplinary Authority and when the appellate
or the higher authority against whose order there is no appeal,
exercises the powers of the Disciplinary Authority in a given case, it
results in discrimination against the employee concerned. Therefore,
the Tribunal held that in the present case even though the respondent
had made an appeal before the Lieutenant Governor, Delhi but her right
of review, as available under the provisions of the CCS(CCA) Rules, had
been negated and she had been deprived of that right. The relevant
portion of the Tribunal‟s order is as under:
"6. As far as the first & foremost contention raised about
competence of Chief Secretary, Govt. of NCT, Delhi is
concerned, it has been fairly stated in reply that impugned
departmental proceedings were initiated by the higher
authority so that proceedings could be held simultaneously
though separately. It is admitted fact that Mr. S.C.
Sharma, FSO was co-accused and has been proceeded
simultaneously. During the course of arguments, it was
not denied by respondents that it is the Commissioner of
Food & Supplies who is the appointing authority of
applicant. In such circumstances applicant‟s contention is
that she being a Group-C employee and Head of the
Department being Commissioner of Food & Supplies,
respondent no.3 was the disciplinary authority and not the
respondent no.2. As per rules it is ordinarily the
disciplinary authority, which is competent and has
jurisdiction to impose penalty upon delinquent. In V.K.
Ranade vs. Food Corporation of India [1998 RLR 365], the
Hon‟ble Delhi High Court set aside the penalty when the
higher authority exercised power of disciplinary authority
holding that it results in discrimination against the
employee concerned and also deprive the petitioner the
right of first appeal. Similarly, the Hon‟ble Supreme Court
in 1995 (2) SLR 11 (SC) [Surjit Ghosh vs. Chairman &
Managing Director, United Commercial Bank & Ors.] has
held that when order of punishment is passed by higher
authority and an appeal is made to next higher authority,
order of punishment does not suffer from any illegality. But
at the same time an employee cannot be deprived of his
substantive right when there is a provision of appeal
against the order of disciplinary authority and when the
appellate or the higher authority against whose order there
is no appeal, exercises the powers of the disciplinary
authority in a given case, it results in discrimination
against the employee concerned. Right of employee
depends upon the choice of the higher / appellate authority
which patently resulted in discrimination between an
employee and employee. Such a situation cannot savour of
legality. In present case, applicant contended that it is no
doubt true that she made an appeal to the Lieutenant
Governor, Delhi but her right of review as available under
the provisions of CCS (CCA) Rules has been negated and
deprived. We may note that no submissions were made on
this aspect by the respondents. In other words, the right to
file review available under the provisions of CCS (CCA)
Rules has been clearly infringed. Only justification in
taking impugned action by respondents is that since
proceedings were initiated against applicant simultaneously
with Mr. S.C. Sharma, an another official involved in the
incident concerned, the Chief Secretary being the higher
disciplinary authority was competent, in our considered
view is not justified and tenable in law. The Chief Secretary
was the disciplinary authority in respect of Mr. S.C. Sharma
who had been FSO and senior officer and not otherwise."
14. With regard to the contention that petitioner no.1 was empowered
to issue the show cause notice dated 5th May, 2004 and thereafter,
impose the enhanced penalty by order dated 18th August, 2004, it was
observed by the Tribunal that under Rule 27 of the CCS (CCA) Rules
1965 which deals with consideration of appeal it is prescribed under
Sub- Rule (1) that the Appellate Authority either on its own motion or
otherwise can take action within next six months from the date of the
order proposed to be revised. It was also not disputed that the show
cause notice was not issued within the period of six months, nor was
any such action for enhancement of penalty been taken within the
prescribed period. Therefore, the Tribunal categorically held that there
had been a breach of the legal provision as the show cause notice for
enhancing the penalty had not been issued before the expiry of six
months.
15. The Tribunal also considered the contention of the respondent in
relation to violation of Rule 18 of the CCS (CCA) Rules in as much as no
order for holding any common enquiry had been issued by the
Competent Authority while simultaneously proceeding against the
respondent and the co-accused Sh. S.C. Sharma. The Tribunal carefully
examined the original records and observed that the order sheets dated
28th September, 2000 to 8th August, 2001 evidently showed that
common proceedings were held on the said dates and that it was only
after Sh. S.C. Sharma had made an application on 23rd May, 2001
requesting the Enquiry Officer that his case may be taken separately,
that subsequently two separate proceedings were conducted. However
on careful consideration of the facts and circumstances of the case the
Tribunal was of the view that the said proceedings did not cause any
prejudice to the respondent since till the 8th August, 2001 not much
progress had been made in the enquiry and also since the Enquiry
Officer had submitted two different and separate enquiry reports. The
relevant portion of the Tribunal‟s order as under:
"8. Applicant has also raised another plea that
proceedings were held against her and Mr. S.C. Sharma,
which violated rule 18 of CCS (CCA) Rules in as much as no
such order for holding any common enquiry had been issued
by the Competent Authority. On examination of original
records produced before us, we do find substance in said
contention, as perusal of order-sheets dated 28.9.2000,
16.10.2000, 20.10.2000, 3.11.2000, 20.11.2000, 4.12.2000,
3.1.01, 15.1.01, 22.1.01, 8.2.01, 14.2.01, 7.3.01, 15.3.01,
22.3.01, 29.3.01, 25.4.01, 23.5.01, 1.6.01, 6.6.01, 7.6.01,
4.7.01, 23.7.01, 8.8.01 indeed go to show that common
proceedings were held on aforesaid dates and it is only when
Sh. S.C. Sharma made an application on 23.5.2001 and
requested the enquiry officer that this being the separate but
simultaneous proceedings, his case be taken up separately,
two different proceedings were held from that day onwards.
Order-sheets produced before us from pages 1-5 including
said date support applicant s contention that virtually
common proceedings were held despite no orders passed on
this aspect. On bestowing our careful consideration to the
above aspects and analyzing the subsequent events, we are
of the view that the said proceedings did not cause any
prejudice to her as by that date not much progress had been
made in the enquiry. Moreover, the enquiry officer
submitted two different & separate enquiry reports in respect
of applicant and Mr. S.C. Sharma. Though initial penalty
imposed upon both of them by the disciplinary authority
were common, but in case of applicant it had been
enhanced, as noticed hereinabove. In view of above, we do
not find any justification in this aspect of the contention.
Upon perusal of enquiry findings and bestowing our thought
and consideration to the rival contentions made by the
parties and also on perusal of original records produced
before us, we do not find justification in applicant s
contention that it is a case of no evidence."
16. Therefore, in view of the facts and circumstances and the
evidence on record the Tribunal held that the orders of the Disciplinary
Authority as well as the Appellate Authority could not be sustained in
law and thus, the Tribunal remitted the matter back to the Disciplinary
Authority to pass appropriate orders without being influenced by the
observations made by the Tribunal within a period of three months.
17. It is against this order of the Tribunal that the petitioners have
preferred the present writ petition. The petitioners have challenged the
order of the Tribunal on many grounds contending, inter alia, that the
Tribunal erred in quashing the orders of the Disciplinary Authority as
well as the Appellate Authority. It is contended that the Tribunal erred
in holding that the respondent‟s right to review had been infringed,
since there is no such right to review available under the provisions of
the CCS (CCA) Rules 1965, and instead the power to review its own
order is conferred only on the President under Rule 29(A) of the
CCS(CCA) Rules.
18. It is also urged that petitioner no.2 was appointed as the
Disciplinary Authority since he was the higher authority competent to
adjudicate the matter as against the respondent and the co-accused in
order to facilitate proceedings that could be held simultaneously though
separately. In any case the respondent had been allowed to appeal to
the next authority, i.e. petitioner no. 1 and hence the right to appeal as
provided under the provisions of the CCS (CCA) Rules 1965 had been
adhered to and there is no violation of any rights of the respondent.
Therefore, when the order of penalty is passed by a higher authority as
in the case of the respondent and an appeal is made before the next
higher authority then the order of punishment in such cases does not
suffer from any illegality. In support of their submissions, the
petitioners have relied on A.Sudhakar Vs. Post Master General,
Hyderabad and Anr. (2006) 4 SCC 348.
19. Learned counsel for the petitioners has also contended that the
Tribunal failed to appreciate that the show cause notice dated 5th May,
2004 as issued by the petitioner No.1 was in terms of Rule 27(2) of the
CCS (CCA) Rules 1965 and that under the said provision there is no
time provided for enhancing the penalty. Thus, it is urged that the
Tribunal gravelly erred in concluding that the show cause notice had to
be instituted within six months of the order sought to be revised. It is
also submitted that the powers of enhancing the penalty under Rule 27
and Rule 29 of the CCS (CCA) Rules are completely different from each
other and that the time limit of six months is only prescribed under
Rule 29 and there is no such requirement under Rule 27 as has been
wrongly observed by the Tribunal.
20. The petitioners have also further contended that the Tribunal,
while remitting the matter, has not clarified in the impugned order as to
in what manner and under whose authority the proceedings are to be
initiated and also if it is to be initiated on the basis of the same enquiry
report or on the basis of the fresh one that the penalty upon the
respondent is to be imposed within the period of three months as
directed by the Tribunal.
21. Per contra the respondent has reiterated her pleas and
contentions raised before the Tribunal and contended, inter alia, that
inspite of filing a caveat bearing No. 4559 before this Court and serving
notices to all the petitioners on 29th November, 2006, still the
petitioners had not served a copy of the writ petition to the respondent
before filing the same before this Court. The respondent further
contended that on 23rd January, 2007 she found her name in the High
Court Website of Court no. 5 and thereafter appeared before the Court,
because of which by order dated 23rd January, 2007 Mr. Rabin
Majumder, Advocate, was appointed as Amicus Curiae to defend the
respondent.
22. Also, as per the respondent, since the petitioners themselves
admitted before the Tribunal that the Commissioner, Food & Supplies is
the appointing authority of the respondent, thus, the decision of the
Tribunal to quash the order passed by petitioner No. 2, who is not the
competent authority to be the Disciplinary Authority in the case of the
respondent, is justified and substantiated. Reliance was also placed on
the notification dated 3rd August, 1976 which was published in the
Delhi Gazette on 12th August, 1976 wherein item No.3 clearly stipulates
that petitioner No.2 is the Appellate Authority in the case of the
Respondent. Thus, according to the respondent, petitioner No. 2 was
not competent to charge sheet and impose penalty against the
respondent.
23. The respondent also emphasized that the order of enhancement
of the penalty by petitioner No. 1 was time barred as it had been issued
after a period of one year and ten months on 18th August, 2004 while
the penalty order sought to be reviewed was passed by petitioner No. 2
on 10th January, 2003. Reliance was also placed on Rule 29 of the CCS
(CCA) Rules, 1965 which clearly prescribes that show cause notice
incase of enhancement of penalty is to be issued by the Appellate
Authority before the expiry of 6 months from the date of the order
sought to be reviewed.
24. This Court has heard the learned counsel for the parties in detail
and also perused the entire record placed before the Tribunal. This is
not disputed that the appointing authority of the respondent is the
Commissioner, Food & Supplies which was even admitted by the
petitioners and categorically observed by the Tribunal in the impugned
order. Therefore, undoubtedly the competent authority to be appointed
as the Disciplinary Authority in the case of the respondent was
petitioner No.3. However, since the petitioners required that the
proceedings be initiated against the respondent and the co-accused
simultaneously, though separately, the higher authority i.e. petitioner
No. 2 was appointed as the Disciplinary Authority. The main point of
consideration is whether or not the penalty issued by the Higher
Authority is sustainable in law. The Tribunal has held that in the
present circumstances the respondent had lost her right to review and
by placing reliance on the case of Surjit Gosh (supra) it had held that
since the right of review had been lost, the respondent had been
prejudiced. Per contra the petitioners have relied on the judgment of A.
Sudhakar Vs. Post Master General, Hyderabad and Anr. (supra),
contending that since the right of appeal had been allowed to the
respondent, she has not been prejudiced and that the right to review is
not recognized under the provisions of CCS (CCA) Rules.
25. The Sudhakar case (supra) relied on by the petitioners is clearly
distinguishable as in the instant case although the charge sheet was
issued by the Superintendent of Post Offices and he was otherwise the
disciplinary authority in respect of the delinquent officer, but as he was
appointed to the Lower Selection Grade by the Director of Postal
Services in the year 1983 prior to divisionalization of Lower Selection
Grade Cadre which took place from July, 1989, upon completion of the
enquiry, the records were forwarded to the Director of Postal Services
who was the appointing authority, which fact was admitted by the
delinquent officer as well. As the Director of Postal Services was both
the appointing and disciplinary authority in respect of the delinquent
officer, he took into consideration the report of the Enquiry Officer and
by an order dated 7.3.1994 imposed a punishment of compulsory
retirement of the charged officer from the services. However in the
present matter, petitioner No.2 who issued the order of penalty is not
the appointing authority, which fact is admitted by both the parties.
Also, in the matter of Sudhakar (supra) the delinquent officer had not
specified as to how he was prejudiced while in the present matter the
respondent has specifically claimed that because penalty was issued by
a higher authority, she lost out on the opportunity of seeking review as
the reviewing authority exercised the power of appellate authority and
also exercised the power of enhancement of punishment beyond the
period of limitation provided.
26. In Surjit Ghosh (supra) the undisputed facts were that the
disciplinary action against the bank employee was taken by the Deputy
General Manager. In terms of the regulations, the disciplinary authority
of officers in Grade E, D, C and B was the Divisional Manager/Assistant
General Manager(Personnel) and the appeal against their order was to
the DGM or any other officer of the same rank. The Supreme Court took
the view that if the action was taken by the disciplinary authority, he
had an opportunity to appeal to the DGM or any other officer of the
same rank. However, since the action was taken by DGM although the
Divisional Manager and AGM (Personnel) were available for taking the
action, the employee was denied the right of an appeal and also the
right of review which lay only against the appellate order. The Apex
Court also took the view that the order passed by the bank suffered
from an inherent defect. It was held as under:
"6. However, when an appeal is provided to the higher
authority concerned against the order of the disciplinary
authority or of a lower authority and the higher authority
passes an order of punishment, the employee concerned is
deprived of the remedy of appeal which is a substantive
right given to him by the Rules/Regulations. An employee
cannot be deprived of his substantive right. What is
further, when there is a provision of appeal against the
order of the disciplinary authority and when the
appellate or the higher authority against whose order
there is no appeal, exercises the powers of the
disciplinary authority in a given case, it results in
discrimination against the employee concerned. This is
particularly so when there are no guidelines in the
Rules/Regulations as to when the higher authority or the
appellate authority should exercise the power of the
disciplinary authority. The higher or appellate authority
may choose to exercise the power of the disciplinary
authority in some cases while not doing so in other cases.
In such cases, the right of the employee depends upon the
choice of the higher/appellate authority which patently
results in discrimination between an employee and
employee. Surely, such a situation cannot savour of
legality."
27. The said decision was apparently where the power to impose the
punishment was not concurrently conferred upon both the disciplinary
authority, viz., the Divisional Manager/AGM (Personnel) and the Deputy
General Manager under the regulations. This view was also upheld by
the Apex Court in the case of Electronics Corporation of India vs. G.
Muralidhar MANU/SC/1161/2001.
28. Similarly in the present matter by notification dated 3rd August,
1976 which was published in the Delhi Gazette on 12th August, 1976,
item No.3 clearly stipulates that petitioner No. 2 is the Appellate
Authority in the case of the respondent. For the sake of clarity the said
notification is reproduced as under:
Sl. Description of Appointing Authority Appellate Authority
No posts Authority Competent to
impose
penalties and
penalties which
it may impose
(with reference
to item nos. in
Rule 11)
Authority
Penalties
1 2 3 4 5 6
3 (i) All Class III Head of (1) Head of Head of the
posts in the the office (i) to (iv) Department, Where
Delhi Depart- the order is that of
Administration ment the Head of
Subordinate concerned Department, the
Ministerial/Exe Administrative
cutive service Secretary concerned
other than the in the Secretariat,
Administration provided the latter
Secretariat and is senior to the
the Districts former. In case the
under the Administrative
Directorate of Secretary is junior
Education. to the Head of the
Department or if
there is no such
Secretary or if the
Head of Department
and administrative
Secretary is one and
the same person the
Chief Secretary.
(2) Head of the The Administrative
Department Secretary concerned
All in the Secretariat
provided he is
senior to the
concerned Head of
the Department. In
case the
Administrative
Secretary is junior
of the Head of the
Department or if the
Head of the
Department and
Administrative
Secretary is one and
the same person the
Chief Secretary.
Where the order is
that of the Chief
Secretary the Chief
Secretary and where
the order is that of
the Chief Secretary,
the Administrator.
29. Thus, petitioner No. 2 was clearly the appellate authority as per
the notification by the petitioner themselves. It is also not the case of
the petitioners that the competent authority was not available at the
time. The mere plea that the higher authority was appointed in order to
facilitate simultaneous proceedings as against the respondent and the
co-accused is not substantial, since as per the case of the petitioner‟s
themselves, it was not their intention to conduct common proceedings
but separate ones. Just for the sake of holding simultaneous
proceedings, the competent authority not being appointed as the
Disciplinary Authority, as in the case of the respondent, is devoid of any
rationale.
30. With regard to the contention that the order passed by petitioner
No. 1 on 18th August, 2004 imposing the enhancement of the penalty on
the respondent, the petitioners have contended that the show cause
notice issued on 5th May, 2004 and the consequent order of enhanced
penalty dated 18th August, 2004 was passed under the provisions of
Rule 27 of the CCS (CCA) Rules, 1965 and therefore since no time limit
is prescribed under the said provision, the same in sustainable in law.
Per contra the respondent has contended that Rule 29 of the CCS (CCA)
Rules clearly prescribes that enhancement of penalty has to be initiated
within 6 months of the order sought to be reviewed and since the show
cause notice was issued only after the expiry of 14 months, the
subsequent enhanced penalty order is liable to be quashed and that the
Tribunal has rightly directed the same.
31. Rule 27 and Rule 29 of the CCS (CCA) Rules are as under:
27. Consideration of appeal
(1) In the case of an appeal against an order of
suspension, the appellate authority shall consider
whether in the light of the provisions of rule 10 and
having regard to the circumstances of the case, the
order of suspension is justified or not and confirm or
revoke the order accordingly.
(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 have
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 the case :
provided that-
(i) The Commission shall be consulted in all cases where
such consultation is necessary;
(ii) If such enhanced penalty which the appellate
authority proposes to impose is one of the penalties
specified in clauses (v) to (ix) of rule 11 and in inquiry
under rule 14 has not already been held in the case,
the appellate authority shall, subject to the
provisions of rule 19, itself hold such inquiry or direct
that such inquiry be held in accordance with the
provisions of rule 14 and thereafter, on a
consideration of the proceedings of such inquiry and
make such orders as it may deem fit:
(i) if the enhanced penalty which the appellate authority
proposes to impose is one of the penalties specified in
clauses (v) to (ix) of rule 11 and an enquiry under
rule 14 has been held in the case, the appellate
authority shall make such orders as it may deem fit
after the appellant has been given a reasonable
opportunity of making a representation against the
proposed penalty; and
(ii) no order imposing an enhanced penalty shall be
made in any other case unless the appellant has been
given a reasonable opportunity, as far as may be, in
accordance with the provisions of rule 16, of making
a representation against such enhanced penalty.
(3) In an appeal against any other order specified in rule
23, the appellate authority shall consider all the
circumstances of the case and make such orders as it
may deem just and equitable.
29. Revision
(1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a
Government servant serving in the Indian Audit and
Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the
case of a Government servant serving in or under the
Postal Services Board and Adviser (Human Resources
Development), Department of Telecommunications in
the case of a Government servant serving in or under
the Telecommunications Board; or
(iv) the Head of a Department directly under the Central
Government, in the case of a Government servant
serving in a department or office (not being the
Secretariat or the Posts and Telegraphs Board), under
the control of such Head of a Department; or
(v) the appellate authority, within six months of the
date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the
President by a general or special order, and within
such time as may be prescribed in such general or
special order;
may at any time, either on his or its own motion or
otherwise call for the records of any inquiry and
revise any order made under these rules or under the
rules repealed by rule 34 from which an appeal is
allowed, but from which no appeal has been preferred
or from which no appeal is allowed, after consultation
with the Commission where such consultation is
necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty
imposed by the order, or impose any penalty where
no penalty has been imposed; or
(c) remit the case to the authority which made the
order to or any other authority directing such
authority to make such further enquiry as it may
consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any
penalty shall be made by any revising authority
unless the Government servant concerned has been
given a reasonable opportunity of making a
representation against the penalty proposed and
where it is proposed to impose any of the penalties
specified in clauses (v) to (ix) of rule 11 or to enhance
the penalty imposed by the order sought to be revised
to any of the penalties specified in those clauses, and
if an inquiry under rule 14 has not already been held
in the case no such penalty shall be imposed except
after an inquiry in the manner laid down in rule 14
subject to the provisions of rule 19, and except after
consultation with the Commission where such
consultation is necessary :
Provided further that no power of revision shall be
exercised by the Comptroller and Auditor-General,
Member (Personnel), Postal Services Board, Adviser
(Human Resources Department), Department of
Telecommunications or the Head of Department, as
the case may be, unless-
(i) the authority which made the order in appeal,
or
(ii) the authority to which an appeal would lie,
where no appeal has been preferred, is
subordinate to him.
(2) No proceeding for revision shall be commenced
until after-
(i) the expiry of the period of limitation for an
appeal, or
(ii) the disposal of the appeal, where any such appeal
has been preferred.
(3) An application for revision shall be dealt with in the
same manner as if it were an appeal under these
rules.
32. A perusal of both the provisions show that the power to enhance
the punishment by the Appellate Authority has been provided for in
both the above mentioned provisions. While Rule 27 prescribes the
application of the power during appeal, Rule 29 operates when the
matter is being reviewed by the Appellate Authority. Thus, in essence
though both the provisions are the same their operation is limited to
separate stages. As Rule 29 clearly prescribes that no proceeding for
revision shall be commenced until after (i) the expiry of the period of
limitation for an appeal, or (ii) the disposal of the appeal, where any
such appeal has been preferred. Rule 29 (1) (v) also stipulates that the
Appellate Authority, within six months of the date of the order proposed
to be revised may at any time, either on its own motion or otherwise call
for the records of any inquiry and revise any order made under the
rules. While on the other hand Rule 27 also allows the enhancement of
the penalty when considering appeal under Sub rule 2, however no
specific time limit for the same is prescribed.
33. The facts of the present matter are such that on 28th February,
2003 appeal was preferred by the respondent against the order of the
Disciplinary Authority, petitioner No.2. While the matter was still
pending in appeal, petitioner no.1 who was the Appellate Authority
issued a show cause notice on 5th May, 2004 after a lapse of 14 months
and proposed the enhancement of the penalty of the reduction of pay by
three stages for three years with cumulative effect to that of the
reduction of pay by four stages for five years with cumulative effect
upon the respondent. Subsequently, after receiving the representation
of the respondent on 7th June, 2004 the Appellate Authority passed the
order of enhanced penalty on 18th August, 2004. Therefore, it is clear
that the said order was passed while considering the matter in appeal
under Rule 27 and not while reviewing the same under Rule 29 of the
CCS(CCA) Rules, 1965. Therefore, the time limit of six months as
observed by the Tribunal is misplaced and hence the Tribunal has erred
in observing the same. However, the contention of the petitioners that
there is no time limit while considering an appeal is also not acceptable.
Ideally, the appeals in service matter are to be disposed of by the
Appellate Authority within a period of one month, however if for some
reason the same is not possible it is incumbent on the Appellate
Authority to give the reasons for the delay. However, perusal of the
show cause notice dated 5th May, 2004 does not apparently deal with
the issue. The delay of 14 months of issuing the said show cause notice
has not been explained and the matter is not dealt with in the order
dated 18th August, 2004 as well, inspite of being specifically contended
by the respondent in her representation. Also, the show cause notice
merely states that considering the facts of the case, enhancement of the
existing penalty is proposed. However, other than this vague statement
not a single such fact has been mentioned specifically. Also order dated
18th August, 2004 merely states that it is clear that while preparing and
issuing the food cards the respondent did not even notice the names of
renowned authorities of the Government like the Chief Secretary of the
Government of India in the alleged food cards and made them a
resident of Village Bawana for issuing the food cards to fictitious
persons in assumed names and therefore, the proposed enhancement of
the punishment ought to be imposed. This in itself does not seem to be
a plausible enough cause for imposing a higher penalty. Therefore, in
view of the inordinate and unexplained delay in issuing the show cause
notice, and the vague contents of the same, thereby clearly prejudicing
the respondent from effectively defending herself, this Court is of the
considered view that the said show cause notice and the subsequent
enhanced penalty order is not sustainable in law and is liable to be set
aside.
34. In the totality of facts and circumstances, there are no such
cogent grounds to interfere with the decision of the Tribunal remitting
the matter back to the petitioners. The writ petition is, therefore,
dismissed and the matter is remitted back to be heard by the competent
disciplinary authority, after which a reasoned order be passed within
the period of 6 months from the receipt of the copy of this order. Copies
of this order be sent to the petitioners. Parties are, however, left to bear
their own cost.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
SEPTEMBER 30, 2011.
„rs‟
