Jharkhand High Court
Chandra Shekhar Prasad Singh vs The Jharkhand State Electricity Board on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 103 of 2016
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Chandra Shekhar Prasad Singh, son of Late Ram Ashirvad Singh, resident of
P.P. Compound, Post Office and Police Station-Hindpiri, District Ranchi
(Jharkhand).
... ... Petitioner
Versus
1. The Jharkhand State Electricity Board, Ranchi having its Chairman-cum-
Managing Director, Urja Vikash Nigam Ltd., Engineering Bhawan,
Dhurwa, P.O. and P.S. Dhurwa, Ranchi (Jharkhand), Pin Code-834004.
2. The Managing Director, Urja Bitran Nigam Ltd., Engineering Bhawan,
Dhurwa, P.O. & P.S. Dhurwa, Ranchi (Jharkhand).
3. The Director Personal Jharkhand State Electricity Board, Ranchi.
(At present the General Manager Personal Urja Bitram Nigam Ltd.,
Engineering Bhawan, Dhurwa, P.O. and P.S. Dhurwa, Ranchi
(Jharkhand).
4. The Deputy Director Personal Jharkhand State Electricity Board, Ranchi
(At present the Deputy General Manager Personal Urja Bitran Nigam
Ltd., Engineering Bhawan, Dhurwa, P.O. and P.S. Dhurwa, Ranchi
(Jharkhand).
....... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Sunil Kumar, Advocate
Mr. Ram Prawesh Prajapati, Advocate
For the Respondents : Mr. Om Prakash Tiwari, Advocate
-----------
th
12/Dated: 17 February, 2024
1. The instant writ petition has been filed under Article 226 of the
Constitution of India, whereby and whereunder, the order of
punishment dated 31.07.2009 has been assailed with a direction to
disburse the arrears which has been withheld in pursuance of the
punishment of withholding of one annual increment.
2. The brief facts of the case as per the pleading made in the writ petition
which requires to be enumerated, read as under:
The petitioner retired as Meter Reader on 31.05.2014 at the
relevant time he was working at Electric Supply Ranchi.
Against the petitioner, departmental proceeding was started
vide officer order no.694 dated 19.04.2008 as per which altogether 3
charges had been leveled against the petitioner. One enquiry officer was
appointed and the petitioner after getting information in that context
had appeared and filed his reply along all relevant documents.
That the said Enquiring Officer after scrutinizing all relevant
points as well as documents brought in his notice by the petitioner
exonerated the petitioner from all three charges as apparent from
enquiring report submitted by him on 22.07.2008
Thereafter, the Disciplinary Authority differing from finding
given by Enquiring officer had passed three punishments against him
First for stopping one annual increment with accumulative effect.
Second giving warning to be cautious in future and third he will be
entitled to get only substantial allowances during suspension period as
would be apparent from order no.1312 dated 31.07.2009.
The petitioner has filed his second show cause in compliance of
the order of the said authority.
That in the light of the show cause filed by the petitioner
delinquent the said disciplinary authority as passed final order
confirming the said punishment as aforementioned apparent from the
order no. 1312 dated 31.07.2009 wherein also the disciplinary authority
passed order without discussing and analyzing reason from differing the
finding given by enquiring officer as apparent from the said order.
The petitioner being aggrieved by the said order dated
31.07.2009 preferred Appeal before the Chairman cum Appellate
Authority JSEВ., Ranchi on 28.08.2009 but till date no order has been
passed as yet though time to time he had approached the competent
authority and he had also submitted representation.
3. It is evident from the factual aspect that the petitioner while working as
Meter Reader in the Electricity Supply Ranchi was proceeded
departmentally for commission of some irregularity. The memorandum
of charge was served followed by the appointment of enquiry officer
with the direction upon the petitioner to appear before the enquiry
proceeding.
The petitioner had appeared in the enquiry proceeding and
defendend the charge. The enquiry officer has found none of the
charges proved. The disciplinary authority although inflicted the
punishment vide order dated 31.07.2009 by acting as an enquiry officer
by proving the charge on its own and showing difference with the
finding/conclusion of the charge being found not to be proved by the
enquiry officer.
The disciplinary authority passed the following punishments:
1. श्री स िंह की एक वासषिक वेतन वृद्धि अ िंचयात्मक प्रभाव े रोकी जाती है।
2. श्री स िंह को भसवष्य में चेष्ठ रहने की चेतावनी दी जाती है।
3. श्री स िंह को सनलिंबन अवसि में जीवन यापन भत्ता के असतररक्त कुछ भी दे य नहीिं
होगा, परन्तु सनलिंबन अवसि की गणना स र्ि ेवोत्तर लाभोिं के सलए की जाएगी।
4. The punishment nos. (1) and (3) are to be considered since the same
pertains to monetary relief but so far as the punishment no.(2) is
concerned, the same has lost its force since the petitioner has retired
from service on attaining the age of superannuation.
5. The ground has been agitated by Mr. Sunil Kumar, learned counsel for
the petitioner that once the enquiry officer has found none of the
charges proved then it is no business of the disciplinary authority to
substitute its views without taking recourse of providing opportunity of
hearing the delinquent employee. Exactly the same thing has been done
by the disciplinary authority, therefore, the impugned order is not
sustainable in the eyes of law.
6. While on the other hand, Mr. Om Prakash Tiwari, learned counsel for
the respondents has defended the order impugned by taking the ground
that the disciplinary authority has not accepted the finding of the
disciplinary authority taking into consideration the nature of allegation,
hence, finding the charge to be proved, the order of punishment has
been passed.
7. This Court has heard the leaned counsel for the parties, gone across the
pleading made in the writ petition as also the counter affidavit.
8. The legality and propriety of the order of punishment dated 31.07.2009
is under challenge on the ground that the procedure, in a case where the
enquiry officer has found the charge not proved, has not been followed.
9. This Court is proceeding to examine the aforesaid contention of the
learned counsel for the petitioner based upon the finding recorded by
the enquiry officer and the order passed by the disciplinary authority.
10. It would be evident from the enquiry report that altogether three
charges have been leveled but none of the charges have been found to
be proved, as such, the enquiry report was forwarded before the
disciplinary authority. The disciplinary authority at the time of passing
the final order of punishment has not agreed with the conclusion arrived
at by the enquiry officer of the charges not being proved, the
consequential decision was taken by inflicting the punishments vide
order dated 31.07.2009.
11. The settled position so far as the disciplinary proceeding is concerned is
within two parameters, i.e., in a situation where the charge has been
found to be proved then what recourse is to be taken by the disciplinary
authority. In such circumstances, the disciplinary authority being not an
enquiry officer rather he is to inflict punishment then on acceptance of
the enquiry report the requirement is to provide opportunity of hearing
by issuing second show cause notice along with the copy of the enquiry
report.
But, if the enquiry officer and the disciplinary authority are the
same entity then there is no need to issue second show cause notice
reason being that the purpose of issuance of second show cause notice
is that before applying its mind based upon the enquiry report prepared
by another person in the capacity of enquiry officer then the
disciplinary authority who is to apply its mind is required to provide an
opportunity of hearing to the delinquent employee so as to come to the
conclusion regarding the nature of punishment which is to be imposed
as also to follow the principles of natural justice at its level.
In a different situation where the enquiry officer has not found
the charge proved even then the enquiry report is not binding upon the
disciplinary authority rather the disciplinary authority is competent
enough to impose punishment but the requirement will be that the
difference of opinion with the finding is to be arrived at by serving
copy of the same along with difference of opinion to the delinquent
employee to submit reply.
12. Further, the scope of judicial review under Article 226 of the
Constitution of India is also required to be referred herein, as has been
settled by the Hon'ble Apex Court in Union of India Vs. P.
Gunasekaran, AIR 2015 SC 545, in particular to paragraph 13, laying
down following guidelines which are self explanatory:
"13. Despite the well-settled position, it is painfully disturbing to note
that the High Court has acted as an appellate authority in the
disciplinary proceedings, re-appreciating even the evidence before the
enquiry officer. The finding on Charge No. 1 was accepted by the
disciplinary authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the High Court is
not and cannot act as a second court of first appeal. The High Court, in
exercise of its powers under Article 226/227 of the Constitution of India,
shall not venture into reappreciation of the evidence. The High Court can
only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that
behalf;
c. there is violation of the principles of natural justice in conducting the
proceedings;
d. the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and
merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant
or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at such
conclusion;
g. the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall
not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience."
The Hon'ble Apex Court in Management of State Bank of
India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has
laid down that it is equally settled position of law that the High Court
sitting under Article 226 of the Constitution of India can certainly
interfere with the quantum of punishment, if it is found disproportionate
to the gravity of offence.
The Hon'ble Apex Court in Central Industrial Security Force
and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following
guidelines at paragraph 8 for interference by the High Court in the
matter of punishment imposed on conclusion of the departmental
proceeding, which is quoted herein below:
"8. Contrary to findings of the Disciplinary Authority, the High Court
accepted the version of the Respondent that he fell ill and was being
treated by a local doctor without assigning any reasons. It was held by
the Disciplinary Authority that the Unit had better medical facilities
which could have been availed by the Respondent if he was really
suffering from illness. It was further held that the delinquent did not
produce any evidence of treatment by a local doctor. The High Court
should not have entered into the arena of facts which tantamounts to
reappreciation of evidence. It is settled law that re-appreciation of
evidence is not permissible in the exercise of jurisdiction under Article
226 of the Constitution of India.
In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya,
reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court
held as follows:
"7. It is now well settled that the courts will not act as an appellate
court and reassess the evidence led in the domestic inquiry, nor
interfere on the ground that another view is possible on the material
on record. If the inquiry has been fairly and properly held and the
findings are based on evidence, the question of adequacy of the
evidence or the reliable nature of the evidence will not be grounds for
interfering with the findings in departmental enquiries. Therefore,
courts will not interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no evidence or
where they are clearly perverse. The test to find out perversity is to see
whether a tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The courts will
however interfere with the findings in disciplinary matters, if
principles of natural justice or statutory regulations have been
violated or if the order is found to be arbitrary, capricious, mala fide
or based on extraneous considerations.
In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC
610 this Court held as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that
the High Court has acted as an appellate authority in the disciplinary
proceedings, reappreciating even the evidence before the inquiry officer.
The finding on Charge I was accepted by the disciplinary authority and was
also endorsed by the Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under Article 226/227 of
the Constitution of India, shall not venture into re-appreciation of the
evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the
proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion
by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or
extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious
that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible
and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence
which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall
not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
13. It is evident from the judgments referred hereinabove that the law has
well been settled giving the guidelines to exercise the power of judicial
review to the High Court.
14. This Court is dealing herein on the fact of the case where in course of
enquiry, the charge has not been found to be proved. The disciplinary
authority has deferred with the same but without providing any
opportunity showing the reason of difference of opinion. The law in
this regard is settled in the case of Punjab National Bank and Ors. vs.
Kunj Behari Misra, (1998) 7 SCC 84 wherein at paragraph-18 it has
been held which reads as under:
"18. Under Regulation 6, the enquiry proceedings can be conducted
either by an enquiry officer or by the disciplinary authority itself.
When the enquiry is conducted by the enquiry officer, his report is not
final or conclusive and the disciplinary proceedings do not stand
concluded. The disciplinary proceedings stand concluded with the
decision of the disciplinary authority. It is the disciplinary authority
which can impose the penalty and not the enquiry officer. Where the
disciplinary authority itself holds an enquiry, an opportunity of
hearing has to be granted by him. When the disciplinary authority
differs with the view of the enquiry officer and proposes to come to a
different conclusion, there is no reason as to why an opportunity of
hearing should not be granted. It will be most unfair and iniquitous
that where the charged officers succeed before the enquiry officer,
they are deprived of representing to the disciplinary authority before
that authority differs with the enquiry officer's report and, while
recording a finding of guilt, imposes punishment on the officer. In our
opinion, in any such situation, the charged officer must have an
opportunity to represent before the disciplinary authority before final
findings on the charges are recorded and punishment imposed. This is
required to be done as a part of the first stage of enquiry as explained
in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] ."
15. This Court is now proceeding to examine the contention raised on
behalf of the parties and for that purpose, final order of punishment has
been scrutinized along with the enquiry report. Since the enquiry officer
has not found the charge proved but the disciplinary authority although
has not accepted the aforesaid finding but the recourse available to him
so as to provide an opportunity of hearing to the delinquent employee
for the purpose of providing opportunity to the delinquent employee in
the background of the fact that the enquiry officer has not found the
charge proved but the aforesaid recourse has not been acted upon,
hence, decision making process in inflicting punishment upon the
petitioner is contrary to the settled position of law.
16. So far as the punishment no.(iii) is concerned by which the monetary
entitlement has been denied, save and except the subsistence allowance
for the period of suspension as would be apparent from the order
no.1312 dated 31.07.2009.
17. The said punishment is not available in the list of punishment as under
Civil Services Classification Appeal and Control Rules, 1930 as would
be evident from Rule 49 of the same as per the list of punishment
contained therein.
18. The law is well settled that if any punishment is imposed contrary to the
list of punishment, the same will be said to be without jurisdiction.
Reference in this regard be made to the judgment rendered by the
Hon'ble Apex Court in Vijay Singh Vs. State of Uttar Pradesh and
Others reported in (2012) 5 SCC 242 wherein in a case leading to
imposing punishment was not found to be under the statutory rules so
prescribed and as such held to be without jurisdiction, as would appear
from paragraph 11 to 15 and 23, which reads hereunder as :-
"11. Admittedly, the punishment imposed upon the appellant is not
provided for under Rule 4 of Rules 1991. Integrity of a person can be
withheld for sufficient reasons at the time of filling up the Annual
Confidential Report. However, if the statutory rules so prescribe it can
also be withheld as a punishment. The order passed by the
Disciplinary Authority withholding the integrity certificate as a
punishment for delinquency is without jurisdiction, not being provided
under the Rules 1991, since the same could not be termed as
punishment under the Rules. The Rules do not empower the
Disciplinary Authority to impose "any other" major or minor
punishment. It is a settled proposition of law that punishment not
prescribed under the rules, as a result of disciplinary proceedings
cannot be awarded.
12. This Court in State of U.P. & Ors. v. Madhav Prasad Sharma,
[(2011) 2 SCC 212], dealt with the aforesaid 1991 Rules and after
quoting Rule 4 thereof held as under:
"16. We are not concerned about other rule. The perusal of major
and minor penalties prescribed in the above Rule makes it clear
that sanctioning leave without pay is not one of the punishments
prescribed, though, and under what circumstances leave has been
sanctioned without pay is a different aspect with which we are not
concerned for the present. However, Rule 4 makes it clear that
sanction of leave without pay is not one of the punishments
prescribed. Disciplinary authority is competent to impose
appropriate penalty from those provided in Rule 4 of the Rules
which deals with the major penalties and minor penalties. Denial
of salary on the ground of "no work no pay" cannot be treated as
a penalty in view of statutory provisions contained in Rule 4
defining the penalties in clear terms." (Emphasis added)
13. The Authority has to act or purport to act in pursuance or
execution or intended execution of the Statute or Statutory Rules.
14. The issue involved herein is required to be examined from another
angle also. Holding departmental proceedings and recording a
finding of guilt against any delinquent and imposing the punishment
for the same is a quasi-judicial function and not administrative one.
15. Imposing the punishment for a proved delinquency is regulated
and controlled by the statutory rules. Therefore, while performing the
quasi-judicial functions, the authority is not permitted to ignore the
statutory rules under which punishment is to be imposed. The
disciplinary authority is bound to give strict adherence to the said
rules. Thus, the order of punishment being outside the purview of the
statutory rules is a nullity and cannot be enforced against the
appellant.
23. Thus, in view of the above, the punishment order is not
maintainable in the eyes of law. In the result, appeal succeeds and is
allowed. The impugned order dated 8.7.2010 withholding integrity
certificate for the year 2010 and all subsequent orders in this regard
are quashed. Respondents are directed to consider the case of the
appellant for all consequential benefits including promotion etc., if
any, afresh taking into consideration the service record of the
appellant in accordance with law."
19. The aforesaid order also cannot be said to be approved on the ground
that the specific provision has been made under Rule 97 of the Service
Code to deal with a situation of the suspended employee who on
exoneration is reinstated in service. Requirement under the aforesaid
provision is that before snatching away the right of salary of the period
of suspension the necessary requirement to issue show cause notice is
there. The aforesaid aspect of the matter has also been dealt with by the
Hon'ble Apex Court in the judgment rendered in Shri Mahabir Prasad
vs. The State of Bihar and Ors, 1988 PLJR 82 wherein at paragraph-3
it has been held which reads as under:
"3. Mr. Tarkeshwar Dayal, learned Counsel appearing for the
petitioner did not challenge the validity of the order of censure. Learned
counsel however, submitted that the order of the State Government that
the period of suspension would be treated as on duty for the purposes of
pension and gratuity but the petitioner would not get anything more
than the subsistence allowance already received by him during the
period of suspension is invalid, because the petitioner was not given an
opportunity to be heard before the said order was passed. In support of
this contention, learned counsel relied upon a decision of the Supreme
Court in M. Gopalkrishna Naida v. The State of Madhya Pradesh (AIR
1968 Supreme Court 240). There is substance in the contention of
learned counsel. The facts of the Supreme Court case were, more or
less, similar in the sense that the delinquent officer had been suspended
pending the Departmental enquiry. The enquiring officer found the
officer not guilty, but the Government disagreed with that finding and
served a notice to show cause why he should not be dismissed.
Subsequently, the Government held that the charges against the officer
were not proved beyond reasonable doubt. It also held that the
suspension and the Departmental enquiry "were not wholly
unjustified". The order further directed, inter alia, that the entire period
of absence from duty should be treated as period spent on duty under
Fundamental Rule 54(5) for purposes of pension only, but that he
should not be allowed any pay beyond what he had actually received or
what was allowed to him by way of subsistence allowance during the
period of his suspension. The Supreme Court held that Fundamental
Rule 54 contemplates a duty to act in accordance with the basic concept
of justice and fair play. The authority has to afford a reasonable
opportunity to the officer concerned to show cause why clauses (3) and
(5) should not be applied. In that case the order was held to be invalid
as no reasonable opportunity to the officer to show cause was given.
Rule 97 of the Bihar Service Code, 1952, is in pari materia with rule 54
of the Fundamental Rules. The petitioner, therefore, ought to have been
given an opportunity to show cause why clauses (3) and (5) of Rule 97
should not be applied in his case. As that had not been done, the
application is allowed and the impugned portion of the order contained
in Annexure 1 which reads "The period of suspension be treated as on
duty for the purposes of pension and gratuity but he will not get
anything more beyond the subsistence grant already received by him
during the period of suspension" is struck down as invalid. It would be
open to the competent authority to consider the question de novo, after
giving the petitioner a reasonable opportunity to show cause against the
action proposed against him. There will be no order as to costs."
Subsequently, the Hon'ble Apex Court has also considered the
same very issue in the case of State of Jharkhand and Anr. vs. Amresh
Narayan Singh, (2020) 14 SCC 411 wherein at paragraph-7, it has
been held which reads as under:
"7. Sub-rule (1) of Rule 97 indicates that where a government servant is
suspended, the authority competent to order the reinstatement has to
consider and make a specific order regarding the pay and allowances
for the period of absence from duty and on whether the period shall be
treated as a period spent on duty. Sub-rule (2) indicates that where the
authority concludes that the suspension was "wholly unjustified", the
government servant shall be given full pay and allowances as if the
order of suspension had not been passed. The High Court misconstrued
the provisions of Rule 97 in coming to the conclusion that full pay and
allowances must necessarily follow as a consequence of the suspension
being revoked. This construction is contrary to the plain terms of Rule
97 as extracted above. The disciplinary proceedings have been held in
abeyance pending the conclusion of the criminal trial. It is only after the
conclusion of the departmental inquiry that the competent authority will
have to decide, in terms of Rule 97, how the period of suspension should
be treated and whether it is liable to be treated as a period spent on
duty. A decision will be taken on the pay and allowances which should
be allowed. The directions which were issued by the High Court at this
stage were hence contrary to Rule 97."
20. This Court, therefore, is of the view that the punishment no.(iii) of the
aforesaid ground is not sustainable in the eyes of law.
21. One issue will be that whether on technicality, a public servant can be
held entitled for any benefit.
22. The law is well settled that on technicality no one can be allowed to
take advantage but that principle is also to be based depending upon the
facts and circumstances of the case.
23. Herein, the admitted fact is that the petitioner has retired on 31.08.2014
and since then, about seven and a half years have already been passed
in a proceeding which was initiated on 19.04.2008.
24. It is evident that the petitioner had faced the rigour of departmental
proceeding from 19.04.2008 and the final order of punishment was
passed on 31.07.2009, as such, it would not be just and proper to remit
the matter before the authority for initiating a proceeding afresh but
exactly on the same basis as per paragraph-21 of the judgment rendered
by the Hon'ble Apex Court in Punjab National Bank and Ors. vs. Kunj
Behari Misra (supra) wherein also on issue of remand the Hon'ble
Apex Court has taken care that if an employee has already retired then
why such employee be forced to face the rigour of departmental
proceeding if any lapses has been committed on the part of the
disciplinary authority. Paragraph-21 of the said judgment reads as
under:
"21. Both the respondents superannuated on 31-12- 1983. During the
pendency of these appeals, Misra died on 6-1-1995 and his legal
representatives were brought on record. More than 14 years have
elapsed since the delinquent officers had superannuated. It will,
therefore, not be in the interest of justice that at this stage the cases
should be remanded to the disciplinary authority for the start of
another innings. We, therefore, do not issue any such directions and
while dismissing these appeals, we affirm the decisions of the High
Court which had set aside the orders imposing penalty and had
directed the appellants to release the retirement benefits to the
respondents. There will, however, be no order as to costs."
25. This Court, therefore, is of the view applying the principle herein also
that when the law is already there then it was the bounden duty of the
disciplinary authority to act in pursuance of the statutory provision or
the settled position and if they have flouted the same then for fault
committed by them the delinquent employee cannot be forced to face
the rigour of departmental proceeding by remitting the matter for
initiation of proceeding afresh.
26. Therefore, this Court of the view that it is not a case where the matter is
to be remitted for initiating a proceeding afresh.
27. This Court, taking into consideration the factual aspect available in the
present case and applying the principle laid down by the Hon'ble Apex
Court in Union of India Vs. P. Gunasekaran (supra); Management of
State Bank of India vs. Smita Sharad Deshmukh and Anr. (supra)
and; Central Industrial Security Force and Ors. vs. Abrar Ali (supra),
is of the view that the power of judicial review in the administrative
decision of the disciplinary authority is required to be applied.
28. Accordingly, this Court is of the view that the impugned order, for the
reasons as referred hereinabove, need to be interfered with.
29. In the entirety of facts and circumstances of the case, the impugned
order dated 31.07.2009 is hereby quashed and set aside.
30. In consequence thereof, the arrears of difference of salary is directed to
be paid within a period of three months from the date of receipt of copy
of this order.
31. Accordingly, the instant writ petition stands disposed of.
32. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
Saurabh/-
A.F.R.
