The Court held that an appellate authority cannot pass an order of punishment as it deprives the employee of an appellate remedy, rendering the order unenforceable. The writ was allowed and the matter remanded to the disciplinary authority.
The impugned order is set aside and the matter is remanded to the disciplinary authority to proceed afresh.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15587 of 2009
Versus
3/ 18/08/2011
Heard learned counsel for the petitioner and
learned counsel for the State.
The respondents in their counter affidavit at paragraph-26 have raised a preliminary objection with regard to the remedy of an appeal available to the petitioner against the impugned order of punishment dated 19.5.2009.
Learned counsel for the petitioner submits that if instead of disciplinary authority i.e. the District Magistrate, the impugned order has been passed by the appellate authority i.e. the Divisional Commissioner, before whom shall the appeal lie.
The deprivation of an appellate forum by reason of the appellate authority passing the original order has been noticed in (2010) 11 SCC 557 (Manohar Lal v. Ugrasen):-
2
question can be summarized to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that
it cannot e termed to be an order passed under the Act.”
The Court is satisfied that only on that
ground the impugned order is not sustainable.
The impugned order is accordingly set aside and the matter is remanded to the disciplinary authority to proceed afresh in accordance with law, if so
advised.
The writ application stands allowed.
KC
( Navin Sinha, J.)
2 issues framed by the court
Whether an appellate authority can pass an impugned order of punishment depriving the employee of an appellate forum.
Whether the impugned order passed by the appellate authority is sustainable as an order of discipline.
Colour shows how this judgement treated each authority
Manohar Lal v. UgrasenRelied on¶17
(2010) 11 SCC 557 · Who else cites this
Gautam Banarjee
The State Of Bihar Through Secretary General Of Government Of India
The Commissioner Of Purnea Division
Secretary Of Divisional Commissioner, Purnea
Administrative Officer of Office Of Divisional - Commissioner, Purnea
The District Magistrate, Purnea
Navin Sinha
As recorded by the court registry
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