J. S. Sehrawat vs Delhi Urban Shelter Improvement ...
2017 Latest Caselaw 1583 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                             Judgment reserved on: March 17, 2017
                             Judgment delivered on: March 24, 2017
+       LPA 190/2017 & CM No. 10676/2017

        J. S. SEHRAWAT
                                                     ..... Appellant

                             Through:     Mr. Apurb Lal, Adv. with Ms.
                                          Meenu Pandey, Adv.

                    versus

        DELHI URBAN SHELTER IMPROVEMENT BOARD AND
        ORS
                                      ..... Respondents

                             Through:     Mr. Ankur Chhibber, Adv.

CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE V. KAMESWAR RAO

                              JUDGMENT

V. KAMESWAR RAO, J

CM No. 10676/2017 Exemption allowed subject to all just exceptions. Application stands disposed of.

LPA 190/2017

1. This Intra-Court appeal has been filed by the appellant challenging the

order dated February 27, 2017 of the learned Single Judge in W.P.(C) No.

1714/2017 whereby the learned Judge has dismissed the writ petition filed by

the petitioner challenging the order of the Disciplinary Authority dated

January 12, 2017, dismissing him from service, which shall ordinarily be

disqualification for future employment under the Government.

2. Suffice to state, that the dismissal was on account of the appellant's

conviction in a criminal case registered by the Central Bureau of

Investigation. Before issuing order dated January 12, 2017, a show cause

notice September 21, 2016 was issued to the appellant. He was also granted

personal hearing on December 26, 2016.

3. The only submission advanced on behalf of the appellant before the

learned Single Judge and even before this Court is the order of dismissal was

passed by Member (Administration), who is not the Appointing Authority.

The learned Single Judge has rejected the said plea on the ground that the

appellant had earlier challenged the issuance of show cause notice dated

September 21, 2016 by filing a W.P.(C) No. 12174/2016 on the same ground,

inasmuch as the same was issued by Member (Administration), who was not

competent to do so because he was an Authority lower than CEO of the

respondent. The said writ petition was dismissed vide judgment dated

December 23, 2016 by holding; (i) the appellant had not made the requisite

pleadings as to the service Rules applicable of which is the Competent

Authority of the respondent, who can take disciplinary action against the

petitioner; (ii) there is no law that a person can only be proceeded against

departmentally by the Authority, which is higher than the Appointing

Authority of the employee.

4. In the impugned order, which is in the second writ petition, the learned

Single Judge has held that the writ petition is barred by principles of res-

judicata. He also observed that there are no service Rules of the respondent

or any statutory provision that an employee can only be proceeded with by the

Disciplinary Authority of the employer, which is higher than the Appointing

Authority of an employee.

5. During the course of his submission, the learned counsel for the

appellant has drawn our attention to page 29, which is a letter dated January

24, 2017 addressed to the appellant in response to his application under the

RTI Act, wherein the following has been stated:-

"Point No.1. Appointing Authority in r/o Jr. Engineer (Civil) in DUSIB is CEO (DUSIB), (Certified copy of office order in this regard enclosed) Point No.2. Certified copy of office order dated 28.07.2011 issued by Director (Admn) DUSIB is enclosed."

6. He has also drawn our attention to page 30, which is an office order

dated July 28, 2011. Suffice to state, in terms of the office order dated July

28, 2011, the Disciplinary Authority to impose penalty on a holder of Group

C post is Member (Administration), (insofar as major penalties are concerned)

and the CEO is the Appellate Authority. The Rule position being clear that is

the Disciplinary Authority is the Member (Administration), he was competent

to impose penalty on the appellant. We also concur with the conclusion of the

learned Single Judge that the appellant, having challenged the show cause

notice dated September 21, 2016 in W.P.(C) No. 12174/2016, on the same

ground on which writ petition was dismissed on December 23, 2016, and the

issue having attained finality, the plea now being urged pursuant to a final

order dated January 12, 2017, on the same show cause notice i.e. September

21, 2016 shall be hit by the principles of res-judicata. We may also state that

the reliance placed by Mr. Apurb Lal on page 29 to contend that the

Appointing Authority of Junior Engineer (Civil) is CEO is incorrect and

contrary to the Rule position in terms of office order dated July 28, 2011,

which we have referred to and dealt with, above.

7. The attempt on the part of Mr. Apurb Lal, to draw a distinction between

the Appointing Authority and Disciplinary Authority is also liable to be

rejected, inasmuch as Rule 19 of the CCS (CCA) Rules contemplates in a case

where penalty has been imposed on the Government Servant on the ground of

conduct, which has led to his conviction on a criminal charge, the

Disciplinary Authority may consider the circumstances of the case and make

such orders thereon as it deems fit surely, suggest that the Disciplinary

Authority was empowered to pass an order of dismissal, which in this case

was Member (Administration) in terms of office order dated July 28, 2011.

8. We do not see any merit in the appeal. The same is dismissed. No

costs.

V. KAMESWAR RAO, J

CHIEF JUSTICE

MARCH 24/2017/ak