Union Of India And Ors vs Hardam Singh
2012 Latest Caselaw 2213 Del

            *        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Judgment reserved on: 15.03.2012
                                          Judgment pronounced on: 30.03.2012
+       W.P.(C) 6428/2011

        UNION OF INDIA AND ORS                                 ...       Petitioner

                                          versus

        HARDAM SINGH                                             ...     Respondent

Advocates who appeared in this case:
For the Petitioner          : Mr Ruchir Mishra
For Respondent              : Mr S.C. Luthra

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the orders dated 23.12.2010 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi, whereby OA No.

1670/2010 filed by the respondent was allowed. The brief facts of the are

summarized as under:-

The respondent was working as a Heavy Vehicle Driver with Delhi Milk Scheme

(DMS). A charge-sheet was served upon him alleging therein that he had

attempted to pilfer 35 milk poly packs while on the duty of distribution of milk. A

penalty of compulsory retirement was inflicted upon the respondent by the General

Manager, DMS. The appeal preferred by the respondent was dismissed by

Secretary, Department of Animal Husbandry, Dairying & Fisheries. The penalty of

compulsory retirement was challenged by the respondent by filing OA No.

193/1992 which was decided on 15.10.1997. It was contended before the Tribunal

that the Disciplinary Authority in the case of the respondent was Deputy General

Manager and not the General Manager and Appellate Authority was General

Manager and not the Secretary to the Government. It was further submitted that on

account of the General Manager functioning as the Disciplinary Authority and the

Secretary as the Appellate Authority, the respondent had been deprived of an

opportunity to submit representation before the Secretary, Department of Animal

Husbandry, Dairying & Fisheries which had caused serious prejudice to him. The

Tribunal, therefore, quashed the order of the Disciplinary Authority as well as the

Appellate Authority and remanded the matter to the competent Disciplinary

Authority "to pass appropriate order in accordance with law in the departmental

proceedings" within three months. In the meanwhile, the respondent had

superannuated on 30.06.1993. The matter was carried by the petitioners to this

Court by way of WP(C) No. 1628/1998. The writ petition was disposed of in terms

of the following order:-

"It has been brought to our notice that in the normal course the respondent would have superannuated on 30.06.1993. Today, it is not possible to give effect to the order of the Tribunal because of the intervening superannuation of the respondent. The only authority that appears to be competent to pass an order today in respect of the respondent's alleged misconduct is the President.

Under the circumstances, the direction given by the Tribunal has become infructuous by efflux of time. Therefore, without commencing one way or the other on the merits of the case, we remit the matter to the Deputy General Manager (Administration) for taking a decision in respect of the disciplinary enquiry held against the respondent in accordance with law.

(emphasis supplied)

2. A representation dated 10.08.2009 was submitted by the respondent to

Deputy General Manager (DMS) stating therein that the order of General Manager

and Secretary (Appellate Authority) already stood quashed and, therefore, he was

requested to issue formal orders. He also claimed that he shall be deemed to have

retired on the date of his superannuation in the normal course and was entitled to

back wages from 03.08.1990. Since Deputy General Manager (DMS) did not pass

any such order, the respondent filed OA No. 1670/2010 on 17.05.2010. On

03.07.2010, an order was passed by Deputy General Manager (Administration) of

DMS compulsory retiring the respondent from service w.e.f. 03.08.1990. The OA

was amended by the respondent so as to challenge the aforesaid order.

3. The Tribunal, vide impugned order dated 23.12.2010 observed that the order

of punishment as well as the order of appeal had ceased to exist having been

quashed by the Tribunal and respondent having superannuated in the end of June,

1993, any action thereafter had to be taken only in accordance with CCS Pension

Rules and the order under those rules could have been passed only by the President.

The Tribunal, therefore, set aside the order dated 03.07.2010 and directed the

petitioners to treat him as retired on superannuation on 30.06.1993 and pay him full

retiral benefits which would have accrued to him if the order of compulsory

retirement had not been passed.

4. The learned counsel for the petitioners has contended before us that the

matter having been remanded back by this Court to the Deputy General Manager,

vide order dated 28.07.2009 passed in WP(C) No. 1628/1998, he was competent to

pass an appropriate order imposing penalty of compulsory retirement from service

upon the respondent. The learned counsel for the respondent, however, maintained

that the order of the Disciplinary Authority as well as the Appellate Authority

having been quashed by the Tribunal, the only option available to the petitioners

was to proceed against the respondent under CCS (Pension Rules), since he had in

the meanwhile superannuated on 30.06.1993. The learned counsel for the

respondent also relied upon the observations "the only authority that appears to be

competent to pass order today in respect of the respondent's alleged misconduct is

the President" made in the order dated 28.07.2009. The learned counsel for the

petitioner, however, contended that the aforesaid observation was only the

contention of the respondent which the Court had noted in the order dated

28.07.2009.

5. In our view, the order passed by this Court on 28.07.2009 cannot be

interpreted in the manner suggested by the learned counsel for the respondent. Had

this Court held that on the date of its order, the President was the only person

competent to pass an order in respect of the alleged misconduct of the respondent,

it would not have remanded the matter to the Deputy General Manager

(Administration), directing him to take decision within six months. We also take

note that the matter was remitted to the Deputy General Manager (Administration)

who according to the respondent was his Disciplinary Authority "for taking a

decision in respect of the inquiry held against the respondent" which would mean

that the decision was to be taken on the basis of the inquiry which had already been

held against the respondent and no fresh inquiry was required to be instituted by

the petitioners against the respondents.

6. In State of Punjab v. Harbhajan Singh Greasy 1996 SCC (L&S) 1248, the

report of the inquiry officer leading to removal of the respondent from service was

passed on an admission alleged to have been made by him. The High Court set

aside the order of dismissal on the ground that the alleged admission was not

supported by any written statement of the respondent. The High Court while setting

aside the order directed reinstatement of the respondent in service. Setting aside

the order of the High Court, Supreme Court, inter alia, held as under:-

"Under those circumstances, High Court may be justified in setting aside the order of dismissal. It is

now well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High Court had committed illegality in omitting to give the said direction."

7. In Union of India v. Y.S. Sadhu-Ex.-Inspector 2009 (1) SCC (L&S) 126,

the departmental inquiry against the respondent was found to be defective

inasmuch as the witnesses who had been examined earlier were not produced for

cross-examination. Based upon the findings returned in the inquiry, the respondent

was dismissed from service. The order of dismissal of the respondent from service

was set aside by the High Court which also directed his reinstatement without back

wages. The Supreme Court, however, held that the proper course which the High

Court should have adopted was to allow the proceedings to continue from the stage

where it stood before the alleged vulnerability surfaced.

8. In Chairman-cum-M.D., Coal India Ltd. & Ors. v. Ananta Saha & Ors

Civil Appeal No. 2958/2011, decided by the Supreme Court on 06.04.2011, the

delinquent was dismissed from service vide order dated 17.06.1993 passed by the

CMD of ECL, a subsidiary of CIL. The order of dismissal was set aside in a writ

petition filed by the delinquent on the ground that it had not been passed by CMD

of CIL, who was the Competent Authority under the Disciplinary Rules. The

appeal filed by CIL against that order was dismissed. While dismissing the appeal,

it was held by the High Court that the delinquent would be treated in the light of

judgment of Supreme Court in Managing Director ECL, Hyderabad etc.etc. v.

B.Karunakar etc.: AIR 1994 SC 1074. However, the direction for holding the

disciplinary proceedings de-novo was not altered. In view of the decision of the

Division Bench, the delinquent was reinstated. The disciplinary proceedings were

initiated and a fresh suspension order was passed. Vide an order dated 24.2.2004

passed by CMD of CIL, the delinquent was dismissed from service. An appeal was

filed by the delinquent challenging the order of dismissal. However, without

waiting for the outcome of the appeal, he filed a Writ Petition challenging the order

of dismissal. The Writ Petition was allowed on the ground that the Disciplinary

Authority did not ensure compliance with the order of the High Court and the fresh

inquiry was initiated by the Officer on Special Duty who was not the Disciplinary

Authority. The learned Single Judge was of the view that the proceedings could

have been initiated only by the CMD of CIL. The order of dismissal dated

24.2.2010 was therefore quashed. CIL was however, given liberty to hold a fresh

inquiry. The appeal filed by CIL was dismissed holding that the disciplinary

proceedings had not been initiated by a competent person since no one other than

CMD of CIL could have initiated the same. It was also held that the CMD of ECL

was not the Competent Authority for the purpose. The Supreme Court, after

examining the rules applicable to the delinquent, held that the disciplinary

proceedings could be initiated either by the CMD of Coal India Limited or CMD of

its subsidiary ECL, and therefore the High Court had erred in holding that CMD of

ECL was not competent to initiate the proceedings. The Supreme Court also held

that since the High Court had given liberty to the appellants to hold a de-novo

inquiry it was not permissible for them to proceed on the charge-sheet which they

had issued earlier and therefore the question of initiating a fresh inquiry without

giving a fresh charge-sheet could not arise. It was also found by the Supreme

Court that CMD of ECL had merely signed the proposal mooted by the OSD for

appointment of an Inquiry Officer to hold a fresh inquiry into the earlier charge-

sheet and there was nothing on record to indicate that he had applied his mind

before putting his signature on the proposals, though the law required him to pass

some positive order taking into consideration the material on record. On this count

Supreme Court found no fault with the order of the High Court. The appeal filed by

CIL was partly allowed by reversing the finding of the High Court that the CMD of

ECL was not competent to initiate the disciplinary proceedings. The Supreme

Court directed that it was open to the appellants to initiate a fresh disciplinary

proceeding by issuing a fresh charge-sheet. The delinquent sought directions from

the Supreme Court for his reinstatement and payment of arrears of salary till the

date of the order. This was opposed by the appellants who informed the Court that

the delinquent had been practicing privately and question of back wages shall be

determined by the Disciplinary Authority on conclusion of the fresh inquiry. It was

also submitted that the result of the fresh inquiry in such a case relates back to the

date of termination. Supreme Court was of the view that the submissions of the

appellants that the result of the inquiry in such a fact-situation relates back to the

date of imposition of punishment, stands fortified by a number of decisions

including R.Thiruvirkolam v. Presiding Officer & Anr: AIR 1997 SC 637,

Punjab Dairy Development Corporation Ltd & Anr. v. Kala Singh etc. AIR 1997

SC 2661 and Graphit India Ltd. & Ors. v. Durgapur Project Ltd. & Ors. (1999) 7

SCC 645. The Court also noted that in Managing Director, ECL (supra) it had

been held that where the punishment awarded by the disciplinary authority is

quashed on some technical ground, the authority must be given an opportunity to

conduct the inquiry afresh from the stage where it stood before the alleged

vulnerability surfaced. It was also observed that for the purpose of holding the

fresh inquiry, the delinquent need not be reinstated and may be put under

suspension and the question of back wages etc. is to be determined by Disciplinary

Authority after the fresh inquiry was concluded. Supreme Court also noted that

even if the delinquent was reinstated it would not automatically make him entitled

to back wages as entitlement to back wages was independent of reinstatement. The

Court therefore declined to direct payment of back wages.

9. In R.Thiruvirkolam (supra), the appellant was employed as a technician

with Madras Fertilizers Ltd. He was dismissed from service after a domestic

inquiry on 18.11.1981. The dismissal was challenged by him before the Labour

Court. The Labour Court found the inquiry to be defective and permitted the

management to prove the misconduct before it. On the basis of the evidence

adduced before the Labour Court, it was held that the punishment was justified.

The writ petition as well as the writ appeal filed by the appellant having been

dismissed, the matter was taken to the Supreme Court by way of Special Leave.

The question which came up for consideration before the Court was as to whether

the dismissal will take effect from the date of the order of the Labour Court or it

would relate to the date of the order of dismissal passed by the employer. It was

held that the issue was covered by the Constitution Bench decision in Kalyani v.

M/s Air France Calcutta 1964 (2) SCR 104, where the Court had made a

distinction between a case where no domestic inquiry had been held and a case in

which the inquiry was defective for any reason and the Labour Court on its own

appraisal of evidence adduced before it, reached the conclusion that the dismissal

was justified. The Court noted that the view taken by the Constitution Bench that

where the inquiry was found to be defective by the Labour Court and it then came

to the conclusion on its own appraisal of evidence adduced before it, that the

dismissal was justified, the order of dismissal made by the employer in a defective

inquiry would still relate to the date when that order was made and, therefore, the

Labour Court's approval of the order of dismissal made by the employer in a

defective inquiry would still relate back to the date when the order was made.

10. In Punjab Dairy Development Corporation Ltd & Anr. (supra), the

employee was dismissed from service after conducting a domestic inquiry. The

Supreme Court found the inquiry to be defective, but allowed the management to

adduce evidence afresh to justify the order of dismissal and thereafter upheld the

charge as well as the punishment. The High Court, however, confirmed the

dismissal only from the date of judgment of the Labour Court and not from an

earlier date. Relying upon its decision in R.Thiruvirkolam (supra), Supreme

Court held that since the Labour Court had recorded a finding that the domestic

inquiry was defective and after recording evidence had found the dismissal to be

valid, it would relate back to the date of original dismissal and not from the date of

judgment of the Labour Court.

11. In the case before this Court, the order of dismissal was not passed by an

authority which lacked competence to pass that order. The order passed by

General Manager of DMS, imposing penalty of compulsory retirement from

service upon the respondent, therefore, cannot be an order which is void or non est

in the eyes of the law. The order passed by the General Manager was quashed on

the ground that he being the Appellate Authority the order passed by him had

resulted in the respondent being denied opportunity to file a representation before

the Secretary, Department of Animal Husbandry, Dairying & Fisheries. The sole

ground on which the order imposing penalty of compulsory retirement from service

was quashed by the Tribunal on 15.10.1997 was that the order was passed by an

authority higher in rank to the Disciplinary Authority which had resulted in a

situation where the respondent had to file appeal before the Secretary, Department

of Animal Husbandry, Dairying & Fisheries and did not have an opportunity to file

a representation against that order. We would like to note here that there is no legal

bar on an authority superior to the Disciplinary Authority imposing a major penalty

upon an employee since such an order does not violate the mandate of Article 311

of the Constitution which inter alia stipulates that no employee of the State shall be

dismissed or removed by an authority subordinate to that by which he was

appointed. The remedy of filing a representation, after the dismissal of appeal is

not a constitutional remedy. This remedy, we presume, was provided in the Rules

applicable to the respondent. Had the remedy of representation not been available

to the respondent, under the rules applicable to him, he would have no grievance on

account of the penalty being imposed by General Manager of DMS since the

appeal of remedy could be availed by him by submitting the same to the Secretary,

Department of Animal Husbandry, Dairying & Fisheries. The order passed by the

General Manager and the Secretary, Department of Animal Husbandry, Dairying &

Fisheries, were therefore, quashed on account of a procedural irregularity and not

because the General Manager lacked inherent competence to pass the initial order

imposing penalty of compulsory retirement from service.

12. In view of the proposition of law laid down by Supreme Court in the cases

mentioned hereinabove, we are of the view that Deputy General Manager of DMS,

while passing order in terms of the direction of this Court dated 28.07.2009 in

WP(C) No. 1628/1998, could have compulsory retired the respondent from service

w.e.f. the date similar order was passed by General Manager of DMS. The order of

Tribunal, therefore, cannot be sustained. The Writ petition is accordingly allowed

and the impugned order dated 23.02.2010 passed by the Central Administrative

Tribunal is hereby set aside. In the facts and circumstances of the case, there shall

be no order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

MARCH 30, 2012 BG