Delhi High Court
Ram Avtar Singh vs The Chairman And Managing ... on 8 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.642/1994
% March 08, 2013
RAM AVTAR SINGH ..... Petitioner
Through: Mr. Manoj Swarup, Advocate with
Ms. Latika Kohli, Advocate and Mr.
Abhishek Swarup, Advocate.
versus
THE CHAIRMAN AND MANAGING DIRECTOR, THE CWC AND
ANR. ..... Respondents
Through: Mr. K.K. Tyagi, Advocate with Mr.
Iftekhar Ahmed, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner challenges the impugned
orders of the disciplinary authority and the appellate authority dated
3.6.1982 and 8.2.1985 respectively whereby the petitioner has been visited
the penalty of termination from services.
2. Learned counsel for the petitioner argues for setting aside of
orders of the disciplinary authority and the appellate authority on the ground
that at the stage of passing of the order by the disciplinary authority, the
petitioner was not given any personal hearing and nor was given any show
cause notice by the disciplinary authority before passing of the order dated
3.6.1982.
3. Though counsel for the respondents had sought to place
reliance upon the Constitution Bench judgment of the Supreme Court in the
case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar
and Ors. (1993) 4 SCC 727 to argue that the copy of the enquiry report need
not be furnished to the petitioner, in this case, however, though that
undoubtedly is the legal position that the enquiry report need not be given to
the petitioner as the order of the disciplinary authority has been passed on
3.6.1982 i.e before the judgment of the Constitution Bench in the case of B.
Karunakar (supra) was passed, however, the issue is not that copy of the
enquiry officer's report was not given to the petitioner leading to violation of
principles of natural justice, but violation of principles of natural justice is
alleged on the basis of the admitted position on record that the petitioner was
not issued any show cause notice for him to personally appear before the
disciplinary authority nor was any personal hearing given to the petitioner by
the disciplinary authority before the impugned order dated 3.6.1982 was
passed. Giving of personal hearing is a sine qua non and a necessary facet
of the principle of audi alteram partem. The fact that the report of the
enquiry officer need not be given is an aspect totally different from the
petitioner being denied the personal hearing and an opportunity to show as
to how no punishment can be imposed upon the petitioner on the basis of the
enquiry officer's proceedings. The Supreme Court in the case of State Bank
of Patiala and Ors. Vs. S.K. Sharma (1996) 3 SCC 364 has held that with
respect to the principles of natural justice there are two aspects, one being
total non-compliance thereof and the other being non-compliance of a facet
thereof. It has been held by the Supreme Court in the case of State Bank of
Patiala (supra), that once it is a question of not following the principles of
natural justice, then, that itself is good enough for setting aside of the
impugned order. In the present case, since no hearing whatsoever was
granted by the disciplinary authority to the petitioner before passing of the
impugned order dated 3.6.1982, the impugned order cannot stand in view of
the ratio of the judgment in the case of State Bank of Patiala (supra).
4. It is however agreed by the petitioner that since the impugned
orders are set aside on a technical ground of not following the principles of
natural justice, though the orders of the disciplinary authority and appellate
authority dated 3.6.1982 and 8.2.1985 respectively be set aside, however, the
same will not mean that the petitioner is automatically reinstated in services
and what has to follow will depend upon the orders which now will be
passed by the disciplinary authority and the appellate authority. Of course, I
may further clarify that if the petitioner is exonerated or given a lesser
penalty, then, that consequence will follow, and in case the petitioner is
however ordered to be terminated from services, appropriate consequences
will follow. Whatever is the consequence which will now flow will be in
terms of the orders which will now be passed by the disciplinary authority
and the appellate authority. I may also take on record that counsel for the
petitioner states that question of reinstatement does not arise because the
petitioner has superannuated and therefore the issue will be of monetary
benefits in terms of fresh orders to be passed by the disciplinary authority
and the appellate authority. Ordered accordingly.
5. In view of the above, though the writ petition is allowed by
setting aside the impugned orders, and directions are given to the
disciplinary authority to pass orders in accordance with law after giving
personal hearing to the petitioner, however the effect of the impugned orders
will remain till passing of fresh orders by the disciplinary authority and
appellate authority and which new orders will substitute the existing orders.
6. Counsel for the petitioner also rightly urges that in view of the
delay taken with the advanced age of the petitioner the respondent No.2 be
given time bound directions to complete the personal hearing and pass a
speaking order. Accordingly, it is directed that within a period of four
months from today the appropriate disciplinary authority will give personal
hearing and pass a speaking order thereafter in accordance with law. I may
note that speaking order is required in view of Constitution Bench judgment
of the Supreme Court in the case of S. N. Mukherjee Vs. Union of India
AIR 1990 SC 1984. The appellate authority, if the situation so arises, is
directed to expeditiously dispose of the appeal in the spirit of the present
order.
7. Writ petition is partly allowed and disposed of subject to the
aforesaid observations.
VALMIKI J. MEHTA, J
MARCH 08, 2013
Ne
