Delhi High Court
Union Of India And Ors vs Mahender Singh on 17 April, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.04.2012
+ W.P.(C) 2163/2012
UNION OF INDIA AND ORS ... Petitioners
versus
MAHENDER SINGH ... Respondent
Advocates who appeared in this case:
For the Petitioners : Mr Rajinder Nischal
For the Respondent : None
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM 4665/2012 (exemption)
Allowed subject to all just exceptions.
WP(C) 2163/2012 & CM 4664/2012
1. This writ petition is directed against the order dated 05.08.2011 passed by
the Central Administrative Tribunal, Principal Bench, New Delhi in OA
951/2010, whereby the respondent's said Original Application has been allowed.
2. The respondent was aggrieved by the order passed by the disciplinary
authority on 08.04.2008, whereby he was awarded the punishment of dismissal
from service. The appellate authority had also confirmed this by its order dated
30.06.2009. The respondent's revision petition was also rejected by the
revisional authority on 20.10.2009.
3. The articles of charge against the respondent were - first of all, that
he abstained from duty with effect from 19.04.2007 till the date of filing of
the charge-sheet and secondly, that, in any event, he was a habitual
absentee. Consequently, inquiry proceedings were initiated under Rule 14
of the CCS (CCA) Rules, 1965. The respondent, after having received the
charge-sheet, did not file any written defence. He, also, did not join duty
despite repeated requests on the part of the petitioner. Faced with this
situation, the disciplinary authority passed the order dated 08.04.2008,
whereby he directed that the respondent be dismissed from service.
4. The grievance of the respondent before the Tribunal was that in the
event a delinquent employee does not appear or does not file his written
defence, the ex parte procedure prescribed under Rule 14 (20) of the CCS
(CCA) Rules, 1965 (hereinafter referred to as 'the said rules') ought to have
been followed. The said sub-rule reads as under:-
"If the Government servant to whom a copy of the articles of
charge has been delivered, does not submit the written
statement of defence on or before the date specified for the
purpose or does not appear in person before the Inquiring
Authority or otherwise fails or refuses to comply with the
provisions of this rule, the Inquiring Authority may hold the
inquiry ex parte."
The Government of India also issued certain instructions with regard to
holding of ex parte inquiries in such circumstances and the said instructions
were also referred to by the Tribunal. After considering the said sub-rule
(20) and the government instructions, the Tribunal arrived at the conclusion
that the dismissal order dated 08.04.2008 and the subsequent orders of the
appellate authority and the revisional authority were contrary to law
inasmuch as the specific procedure for proceeding ex parte against a
delinquent employee, as prescribed under sub-rule (20), had not been
followed.
5. Before the Tribunal, as also before us, the learned counsel for the
petitioner sought to take refuge under Rule 19 of the said Rules and in
particular clause (ii) thereof. The same reads as under:-
"19. Special procedure in certain cases
Nothwithstanding anything contained in Rule 14 to Rule 18 -
(i) xxxx xxxx xxxx xxxx
(ii) where the Disciplinary Authority is satisfied for
reasons to be recorded by it in writing that it is not
reasonably practicable to hold an inquiry in the manner
provided in these rules, or
(iii) xxxx xxxx xxxx xxxx
the disciplinary authority may consider the circumstances
of the case and make such orders thereon as it deems fit:
Provided that the Government servant may be given an
opportunity of making representation on the penalty
proposed to be imposed before any order is made in a case
under clause (i):
Provided further that the Commission shall be consulted,
where such consultation is necessary, before any orders are
made in any case under this rule."
6. However, we feel that the Tribunal had rightly concluded that Rule
19(ii) of the said Rules was not at all applicable. This is so because of two
reasons. First of all, Rule 19 (ii) would apply to a situation prior to the
holding of an inquiry. In the present case, the inquiry had already been
initiated and was dropped by the disciplinary authority midway, when the
respondent did not submit his defence. Secondly, before Rule 19 (ii) can be
said to be applicable, the disciplinary authority must be satisfied for reasons
to be recorded in writing that it is not reasonably practicable to hold an
inquiry in the manner provided in the said rules. It is an admitted position
that no such satisfaction has been recorded by the disciplinary authority in
writing and, therefore, Rule 19(ii) cannot be pressed into service by the
petitioner.
7. Consequently, we are in complete agreement with the conclusion
arrived at by the Tribunal in quashing and setting aside the impugned
orders dated 08.04.2008, 30.06.2009 and 20.10.2009. The Tribunal has
appropriately directed that the respondent shall be permitted to rejoin duty,
if he so desires, but without any back wages. Liberty was also given to the
disciplinary authority to hold a fresh inquiry against the respondent strictly
in accordance with the relevant provisions of the said Rules. It has also
been indicated that since the respondent was already in possession of the
memorandum dated 04.10.2007 proposing to hold the inquiry under Rule
14 of the said Rules, the inquiry may proceed from that stage and the
respondent was also directed to cooperate with the inquiry fully so that the
proceedings can be completed without further delay. No interference in
these directions is called for. The writ petition is dismissed. There shall be
no order as to costs.
BADAR DURREZ AHMED, J
V.K. JAIN, J
APRIL 17, 2012
SR
