An employee challenged removal for failing to join duty after transfer. The Court rejected objections concerning subsistence allowance, resumed inquiry proceedings and removal without a fresh inquiry. It upheld the removal and dismissed the petition, leaving parties to bear their own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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CWP No.5086-CAT of 2001
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on:15.01.2014 CWP No.5086-CAT of 2001 Date of Decision: 20.03.2014
K.S. Saini, S.D.O. III
... Petitioner
Versus
Union of India and others
... Respondents
CORAM:HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN PALLI
Present:Mr. Rajiv Atma Ram, Senior Advocate with Mr. Ranjit Singh, Advocate, for the petitioner.
Mr. Rupinder Khosla, Assistant Solicitor General, for respondents No.1 and 2.
ARUN PALLI, J.
The matter in hand takes us back by 30 years, when the petitioner was posted as S.D.O. III in the office of Assistant Defence Estate Officer (ADEO), Amritsar in the Department of Defence Estates Service under the Ministry of Defence.
A brief narration of facts, which have led the parties to the present stage, would be essential and expedient.
Vide an order dated 28.12.1984, the Director General, Defence Lands & Cantonments, ordered transfer of the petitioner from the office of ADEO, Amritsar to Defence Estates office, Tezpur. Concededly, the petitioner never reported for duty at
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Tezpur, nor submitted any application for leave and, thus, as is the case of the respondent department, remained unauthorizedly absent from duty.
The petitioner was charge-sheeted by the Director, Defence Lands & Cantonments (Eastern Command) on 30.04.1986 for showing lack of devotion to duty and demonstrating a conduct unbecoming of a Government servant and also for deliberately avoiding to collect the amount of TA/DA advance for proceeding to Tezpur. The precise and specific charges framed against the petitioner read as thus:
“That Shri K.S. Saini on his permanent transfer from the office of ADEO Amritsar to DEO Tezpur vide DG DL&C letter No.138/388/ADM/L&C/81 dated 28.12.1984 was relieved by the ADEO Amritsar vide his D.O. Part-II order No.30/85 dated 28.02.1985 but Shri Saini deliberately avoided collect the amount of TA/DA advance for proceedings to Tezpur, showing lack of devotion to duty and demonstrating a conduct unbecoming of a Government servant, thereby violating Rule 3(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.”
“Shri K.S. Saini, SDO-III was posted to DEO
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Tezpur vide DG DL&C letter No. 138/388/ADM/L&C/81 dated 28.12.1984 and relieved by ADEO Amritsar vide his D.O. PartII Order No.30/85 dated 28.02.1985. He neither reported for duty nor submitted any leave application. The ADEO Amritsar vide his letter No.ADEO-1/2/319 dated 10.12.1985, and letter No.ADEO-1/2/338 dated 13.1.1986 that Shri Saini showed no interest to collect the amount of TA/DA advance.”
On a consideration of the matter, the Director, Defence
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Estates (Eastern Command) in exercise of power under Sub-rule (2) of Rule 14 of the Central Civil Services (Classification Control and Appeal) Rules, 1965, vide an order dated 24.06.1986, appointed Shri Tasnaluaia, Joint Director, Defence Estates, Shillong as an Inquiry Officer to probe the charges against the petitioner. Twice i.e. on 18.03.1987 and 27.05.1988 , the inquiry was fixed in the office of Joint Director, Defence Estates, Shillong. However, the petitioner failed to appear on both the occasions on one pretext or the other. Whereafter, the inquiry was fixed in the office of Defence Estate Officer, Pathankot [ hometown of the petitioner ] to enable the petitioner to appear and participate in the inquiry.
The petitioner appeared before the Inquiry Officer and, vide an application dated 24.01.1989, prayed for the assistance of Shri B.K. Kaul, Steno Grade-II as his Defence Assisant. He also demanded certain documents and indicated the witnesses to be examined. A right to submit another list of witnesses including Defence Minister of India, Prime Minister of India and Defence Secretary, Ministry of Defence, was reserved. The Inquiry Officer, vide a written communication dated 06.03.1989, expressed his inability to summon the said witnesses, as the purpose for which they were sought to be examined had no correlation with the charges bring probed. However, it appears that the petitioner was provided the assistance of the Defence
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Assistant. In the normal parlance, we would have avoided a reference to certain specific proceedings during the course of inquiry. However, only to an extent we find it to be expedient and necessary, in the context of the issues arising for consideration, a reference would be made thereto.
On 15.03.1989 , the date fixed in the inquiry, the petitioner appeared with his Defence Assistant, however, he raised an objection vis-a-vis the very competence and jurisdiction of the disciplinary authority to initiate the disciplinary proceedings against the petitioner. The objections raised by the petitioner read as thus:
“Shri K.S. Saini, SDO-III (CO) represented taht since he was relieved of duties/S.O.S. from the office of the Assistant Defence Estates Officer, Amritsar and he was not taken on strength by the Defence Estates Officer Tejpur his disciplinary authority is the Director, Defence Estates, Western Command and not Director, Defence Estates Eastern Command and holding the enquiry on the Chargesheet issued by the Director, DE Eastern Command is not legally tenable.
On examination of the representation it is certain that it is not for the Inquiry officer to say that Director, DE Eastern Command is not the
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disciplinary authority in this case. As I have been appointed Inquiry officer by the Director, DE Eastern Command (as disciplinary authority) the inquiry will continue.
The inquiry adjourned to 16th March, 1989 at 1100 hrs. If the parties do not appear, ex -parte inquiry will be held.”
On 16.03.1989, neither the petitioner nor his Defence Assistant appeared before the Inquiry Officer. Though the Defence Assistant of the petitioner intimated that on account of some urgent official work, he was instructed to return to his Headquarter and be present in the office on 16.03.1989. Therefore, a prayer was made to adjourn the inquiry either for the next day or any other date. The Inquiry Officer chose to proceed ex parte, as he was of the view that the date for the inquiry on 15/16.03.1989 was fixed well in advance with a due intimation to the petitioner and his Defence Assistant. So much so, the Director, Defence Estates (Northern Command) was also requested to permit Shri B.K. Kaul to be present on the said two dates fixed for inquiry. The Defence Assistant, never informed as to who instructed him to report and be present in the Headquarter, nor any authority was produced to show that he was required in the Headquarter on 16.03.1989.
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This being so, the Inquiry Officer was of the view that despite full opportunity having been afforded to the petitioner, he was not inclined to get the matter finalized. Resultantly, ex parte inquiry was held on 16.03.1989. The Inquiry Officer on a consideration of the matter and the records, found the petitioner guilty of the charges framed against him and submitted a detailed report dated 30.05.1989 (Annexure A-23) to the Director, Defence Estates (Eastern Command). The conclusion recorded by the Inquiry Officer reads as thus:
“ Findings : 20. His representation to the DG, DE, dated 30th March, 1985 the note-sheet prepared by ADEO, Amritsar that he was being relieved on 28th February, 1985 and signed by him on 25th Feb., 1985 and his physical presence in his home town without reporting to the office of the DEO, Tezpur till today and without collecting advance TA/DA and submitting leave application proved the charge.”
The disciplinary authority, on a consideration of the inquiry report, was provisionally of the view that the charges proved against the petitioner warrant the imposition of a major penalty and, accordingly, proposed the penalty of compulsory retirement from service. An opportunity to show cause was, accordingly, was afforded to the petitioner vide a show cause
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notice dated 22.09.1989 (Annexure A-24).
The petitioner, vide a reply dated 05.10.1989 to the show cause notice, expressed his grievance vis-à-vis lack of due and proper opportunity afforded to him by the Inquiry Officer. It was stated that the petitioner was not allowed to examine defence witnesses. He was also not allowed to cross-examine R.S. Saini (PW-1). Further, the Inquiry Officer proceeded ex parte on 16.03.1989, despite a prayer made by him and his Defence Assistant to postpone the hearing by a day.
The disciplinary authority, on a consideration of the response/reply made by the petitioner, was of the view that the ex parte proceedings held on 16.03.1989, required to be held de novo after affording full opportunity to the petitioner to crossexamine PW-1. The petitioner was, accordingly, informed by the Inquiry Officer that the ex parte inquiry held on 16.03.1989 against the petitioner would be held de novo. It was specifically clarified, vide letter dated 20.11.1989 (Annexure A-26) that the inquiry would be held in the office of Defence Estate Officer, Pathankot from 19.12.1989 at 1000 hours everyday till completion of the inquiry.
Once again, the petitioner in response to the said intimation, vide a letter dated 01.12.1989, sought confirmation of certain issues, which read as thus:
“a) that earlier enquiry conducted by you has
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been struck down as against legal provisions by the Disciplinary Authority.
b) that the final order has been issued by the Disciplinary Authority on petition submitted by me on show cause notice issued by the Disciplinary Authority (My representation dated 5 Oct., 1989).
c) that fresh charge sheet has been framed against Sh. K.S. Saini. d) that you have been duly appointed as Inquiry Officer to hold an enquiry into the charge sheet framed against me as per (c) above.
e) that the punishment proposed to be imposed by the Disciplinary Authority on the basis of Inquiry Report has been finally withdrawn.”
In sequence to above, the Inquiry Officer, vide letter dated 08.12.1989, addressed the concern of the petitioner and his response reads as thus:
“Reference your letter dated 1.12.1989.
2. Your queries and answered as follows:a&b) Your representation dated 5th October, 1989 that you are not allowed to cross-examine PW-I Shri K.S. Saini and the Inquiry officer, held ex-parte proceedings on 16.3.1989 behind your back, despite written request by you and your Defence Assistant to postpone the hearing by one day and allow you to
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cross-examine the PW on 17.3.1989 was considered by the Disciplinary Authority. The Disciplinary Authority advised that the ex-parte inquiry conducted on 16.3.1989 should be held denovo giving you full opportunity to cross-examine the PW-I.
c&d) No fresh charge sheet has been framed and inquiry will be conducted on the charges issued to you earlier.
e) It is obvious that the proposed punishment to be imposed by the Disciplinary Authority on the basis of the previous inquiry report has been withdrawn in view of the position, explained above.”
As a consequence of the afore-indicated development,
the proceedings in the inquiry were resumed from the stage it had reached on 16.03.1989. On 06.03.1990, the date fixed in the inquiry, the proceedings read as thus:
“ THE PROCEEDING OF INQUIRY AGAINST SHRI K.S. SAINI SDO-III DATED 6.3.1990
Present: -
1. Shri C.K. Mora - Presenting Office 2. Shri R.S. Saini, ADEO - Witness 3. Shri K.S. Saini, SDO-III - C.O. Absent: - 1. Shri B.K. Kaul - Defence Assistant
Shri B.K. Kaul, Defence Assistant has written
to the Inquiry Officer that his son has been
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admitted in the Hospital and operated upuon for Appendicities and he was unable to attend the enquiry. He has also asked for excuse of his personal appearance. He has not asked for adjournment of the enquiry and his request for personal appearance has been considered. The enquiry started as fixed.
Inquiry was held on 16.3.89, and inquiry report was submitted to the Discipline Authority. The representation of Shri K.S. Saini, SDO-III (CO) that he has requested for postponement of enquiry to 17.3.1989 was not accepted by the Inquiry Officer and ex-parte enquiry was held and was considered by the Discipline Authority and the Discipline Authority advised that the enquiry held on 16.3.1989 be held afresh giving another opportunity to the Official. Hence this inquiry…… Shri K.S. Saini, SDO-III (C.O.) submitted that de novo enquiry proposed to be held is not legally maintainable and the Inquiry Officer has not jurisdiction to held enquiry him. He also submitted that he has been denied basis substanance by his Employer, Government (Director, DE LC) and till his Pay and Allowances are released he would not be able to put his mind
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to any case. He also stated that his representation against discrimination to him in holding the enquiry by Director, DE EC is yet pending with the Director General, Defence Estates, New Delhi. He has requested the Enquiry Officer not to proceed ahead against him. Since, I have been advised to hold an enquiry held on 16.3.89, afresh by the Disciplinary Authority. I have decided to continue the enquiry.”
Thus, the Inquiry Officer proceeded with the inquiry. Put the material and relevant questions arising for consideration to the Presenting Officer. The petitioner was duly apprised that the documents produced by the Presenting Officer in support of his degree were duly verified by him on 24.01.1989 and, accordingly, he was afforded an opportunity to cross-examine R.S. Saini (PW-1) and the Presenting Officer. The petitioner in response clarified his position that since he has submitted an application to the Inquiry officer, he did not want to say anything more than what he had stated in the said application dated 06.03.1990.
The Inquiry Officer, once again, on a thorough analysis and consideration of the matter, by reference to the documents produced by the Presenting Officer in particular, found the petitioner guilty of the charges framed against him, vide a
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detailed report dated 02.04.1990 (Annexure A-30). The conclusion arrived at by the Inquiry Officer reads as thus:
“His representing to the Director General, Defence Estates dated 22 Jan. 1985 for cancellation of his transfer order acknowledging his release from the office of A.D.E.O. Amritsar on 28.2.85 vide his letter to
Director General, DE on 30.3.1985, Note Sheet prepared by the ADEO Amritsar that Shri K.S. Saini was being relieved on 28.2.1985 which was signed by him on 25.2.1985, his presence physically in his home town without reporting to the office of DEO Tezpur till today, non collection of his TA/DA advance and non submitting leave application by his proved the charges.”
In the wake of the position narrated above, the disciplinary authority, vide order dated 05.09.1990 (Annexure A- 1/B), on a consideration of the matter in its entirety, was of the view that the petitioner could be afforded yet another chance to improve before the extreme penalty of removal from service could be imposed. Thus, it was ordered that the petitioner shall be reduced to the lowest stage in the time-scale with an effect of postponing all future increments. The question vis-a-vis
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regularizing the past period of absence from duty was deferred to be considered on merits on receipt of application from the petitioner on his joining the duty. It would be apposite to point out at this juncture that the disciplinary authority further observed that in case the petitioner refuses to join duties within three months of the order, the disciplinary authority will have no option except to remove the petitioner from service without any further notice and inquiry.
Though not expected, the petitioner still not chose to join the duty. Instead, an appeal was preferred before the appellate authority i.e. The Director General, Defence Estates, New Delhi. However, on an analysis of the matter, the appellate authority affirmed the punishment awarded to the petitioner and, consequently, dismissed the appeal. Since, the petitioner had failed to join the duty, as stipulated in the order passed by the disciplinary authority dated 05.09.1990, the appellate authority having taken cognizance of this fact, observed that the disciplinary authority was free to enforce the option of removing the charged official from service.
As a consequence of the fact that, despite having been afforded an opportunity to join the duty, since the petitioner has still not chosen to join, the disciplinary authority in sequence to its order dated 05.09.1990, ordered removal of the petitioner from service. It was further observed that the period of absence
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from the date the petitioner was relieved from the previous station to the date of his removal would be treated as unauthorized absence. It was in this background, the petitioner then approached the Central Administrative Tribunal [for short, ‘the Tribunal’] vide OA No.147/PB/1992. The matter was considered at length and records were perused and on an analysis thereof, the Tribunal arrived at a conclusion that the procedure followed by the respondent-department during the inquiry was fair. It was further observed that the petitioner was not interested in moving out of the area that falls in Punjab i.e. Amritsar and Pathankot and he did not want to serve the Government at place like Tezpur. He shied away from his responsibilities. Resultantly, the OA was dismissed by an order dated 06.01.2001.
Thus, this petition and this is how we are ceased of the matter.
We have heard the learned counsel for the parties and perused the records.
Learned Senior counsel for the petitioner assails the proceedings of inquiry, conclusion arrived at by the Inquiry Officer and the punishment imposed by the disciplinary authority, being palpably erroneous and in serious breach of the principles of natural justice,he contends that:
(i) The petitioner was never relieved from the
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office of Assistant Defence Estate Officer, Amritsar. Therefore, how he could be expected to proceed and join at Tezpur;
(ii) He was not paid any TA/DA advance to enable him to join at Tezpur and report for duty;
(iii) Throughout the disciplinary proceedings, the petitioner was not afforded any subsistence allowance, thus, non-payment would vitiate the proceedings in its entirety;
(vi) Since post-transfer of the petitioner on 28.12.1984, the petitioner was again allowed to join at Amritsar, pursuant to the orders of the Director General, Defence Estates, thus, the whole issue of his failing to join the duty at Tezpur pailed into insignificance;
(v) Once the disciplinary authority had ordered de novo inquiry, the department was obligated to reinitiate the entire process from the preliminary stage; and
(vi) The disciplinary authority, vide its order dated 05.09.1990, imposed a punishment of reducing the petitioner to the lowest stage in the time-scale with an effect of postponing all future increments. If subsequently, vide an order dated
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07.08.1991, the petitioner was removed from service, it had to be in law, preceded by a regular departmental inquiry. Thus, the order stood vitiated on account of serious breach of principles of natural justice.
EX FACIE the petitioner was fully conscious of his transfer to Tezpur. He represented to the Director General, Defence Estates against his transfer but the same was rejected. Before we proceed further, we are reminded to point out here that the twin ground on which the petitioner sought to defend himself or the only justification put forth for not joining the duties at the place of his new posting (Tezpur) were:
(i) He was never relieved from duty by the office of ADEO, Amritsar.
(ii) he was never afforded any TA/DA advance.
The record shows that the petitioner, vide his letter dated 30.03.1985, addressed to the Director General, Defence Estates, not only acknowledged the rejection of his representation against his transfer but also that he was being relieved from Amritsar on 28.02.1985. Not just this, the office notings, duly signed by the petitioner, irresitably show that the petitioner was not only present in the office of ADEO, Amritsar on 25.02.1985 but he was also conscious and acknowledged the fact of his being relieved on 28.02.1985. Copy of this order part-II No.30/85
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dated 28.02.1985 relieving the petitioner of his duties was produced before the Inquiry Officer. Still further, his case has been that post-transfer to Tezpur on 28.12.1984, he was allowed to re-join at Amritsar and he, accordingly, submitted his joining report. This completely unravels the falsity and anomaly in the stand of the petitioner, inasmuch as if he was never relieved from Amritsar, there could be no occasion to submit a joining report and praying to be taken on strength in the office of Assistant Defence Estates at Amritsar.
At this juncture, we deem it appropriate to refer to the conclusion recorded by the Inquiry Officer on a thorough analysis of the records, in this particular context, and the same reads as thus:
“ In the inquiry the Presenting Officer produced the following relevant documents:-
1) Copy of the D.G. DL&AC letter No.138/388/ADM/DL & C 81 dt: 28.12.1984 in which Shri K.S. Saini was transferred from the office of A.D.E.O. Amritsar to the D.E.O. Tezpur.
2) Copy of the office order part-II No.30/85 dated 28.2.1985 of A.D.E.O. Amritsar relieving Shri K.S. Saini SDO III of his duties.
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3) Copy of the Director, DE, EC letter No.360009/LC-I XXIV dated 30.12.1985 informing Shri K.S. Saini SDO III to report for duty at Tezpur immediately failing which appropriate action would be taken against him under the provisions of law.
4) Copy of ADEO Amritsar letter No.ADEO1/2/319 dated 10.12.1985 informing the DEO (ACqn) Jullundur that Shri K.S. Saini, SDO-III was relieved on 28.2.1985 and his advance of TA/DA was refunded to CDA as the same was not collected by him etc.
5) Copy of ADEO Amritsar letter No.ADEO1/2/338 dated 13.1.1986 informing the DEO (Acqn.) Jullundur, that advance of TA/DA amounting to Rs.4200/- sent to Shri K.S. Saini by bank draft was received back.
All these documents have been inspected by Shri K.S. Saini, the charged officer, on 24.1.1989.”
“Shri K.S. Saini has been aware of his transfer to Tezpur by Govt. of India, Min. of Def. (DG DL&C) letter No.138/388/ADM/L&C/81
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dated 28.12.1984 and represented on 22.1.1985 to DG DE for cancellation of the transfer order and the DG DE informed the Director, DE, Western Command that the representation has been rejected on administrative grounds and Shri K.S. Saini should be relieved of duties with instructions to report to DEO Tezpur. Shri K.S. Saini, charged officer, was relieved of his duty on 28.2.1985 vide ADEO Amritsar Office order Part-II No.30/85 dated 28.2.1985 and directed him to report to his new station after availing usual joining time. Shri K.S. Saini who was present in the office on 25.2.1985 as he signed on the office noting that he is being relieved on 28.2.1985 Shri K.S. Saini has also acknowledged rejection of his representation for cancellation of his transfer and his release from Amritsar on 28.2.1985 when he wrote to DG DE on 30.3.1985. All these indicated clearly that Shri K.S. Saini is well aware of his transfer to Tezpur and release from the office of ADEO Amritsar.
He had neither physically reported till
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today in the office of DEO Tezpur now had he submitted any lease application. No copy of leave application was received in the office of D.E.O. Tezpur and the Director DE, EC. After 28.2.1985, he has been unauthorizedly absent from duties. ”
An analysis of the position referred to above in general and the findings recorded by the Inquiry Officer in particular leads us to an irresistable and inescapable conclusion that the petitioner was indeed relieved from duty by the office of ADEO, Amritsar as a consequence of his transfer to Tezpur.
Likewise, the conclusion recorded by the Inquiry Officer vis-a-vis the submission of advance TA/DA bill by the petitioner on 26.2.1985, read as thus:
“ Shri K.S. Saini SDO-III submitted
advance of TA/DA bill on 26.2.1985 to the office of ADEO Amritsar and the same was passed by the concerned CDA. Since amount was not collected the A.D.E.O. Amritsar intimated vide his Letter No.ADEO/1/2/319 dated 10 Dec., 1985 that the amount was refunded to CDA on 28.3.1985. Shri K.S. Saini submitted another advance of TA/DA bill. Meanwhile, the Director General, instructed
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the ADEO Amritsar to pay TA/DA advance from cash assignment to Shri K.S. Saini. The advance of TA/DA was sent by bank draft to Shri S.K. Saini vide ADEO Amritsar letter No.ADEO-1/2/279 dated 17 Sept. 1985 but the same was returned undelivered as reported by ADEO Amritsar in his letter mentioned above. Shri K.S. Saini has also been requested telegraphically by the ADEO Amritsar to collect advance TA/DA and proceed to Tezpur immediately vide telegram dated 24.8.1985. Though there was no document to prove that the amount of TA/DA reached the hands of Shri K.S. Saini, it is certain that he would have enquired about the avaialability of the amount if he is really interested to proceed to Tezpur his new station of posting. The charge that Shri K.S. Saini has shown no interest to collect amount of TA/DA advance is supported by his non reporting to his new station and not enquiring about availability of the amount. ”
Thus, we are constrained to record that it was not a case
where the authority failed or faultered to perform its obligations. Rather, a brazen instance of the petitioner deliberately not
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choosing to collect and avail the same. Needless to assert any further, if there was an honest mind and sincere intent to collect the necessary amounts and proceed to serve, the effort would have been loud and visible on record.
The grievance being made, that the petitioner was never afforded any subsistence allowance, throughout the proceedings and non-payment was sufficient in law to vitiate the disciplinary proceedings in its entirety, is apparantely misconceived and lacks conviction. We are cognizant of the fact that the petitioner was never suspended at any stage of the proceedings. The payment of subsistence allowance pre-supposes or has to be preceded by suspension, which was never ordered. The petitioner was not entitled to any subsistence allowance after he was relieved from the office of ADEO, Amritsar as he was never placed under suspension. The claim to pay and allowances from March, 1985 could arise only if the petitioner had attended the duty or if he had been on leave duly sanctioned by the competent authority incidently, even that is not the case here.
We also do not find any substance in the submission that post transfer to Tezpur on 28.12.1984, pursuant to the orders of the Director General, Defence Estates, the petitioner was allowed to join at Amritsar and, thus, the whole issue of his failing to report for duty at Tezpur was hardly of any consequence. We may notice that the petitioner did submit a
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joining report, purportedly, pursuant to the orders of the Director General, Defence Estate. However, no such order ever saw light of the day. The authorities at Amritsar, vide order dated 20.10.1986, refused to take the petitioner on strength of the said office in the absence of any such order. Not just this, if there was any such order ever, least what was expected of the petitioner was to seek its enforcement or at least revert back to the same authority for further directions/orders.
We may now examine as to whether the disciplinary authority actually ordered a de novo inquiry? If yes, then, certainly the entire process had to be re-initiated. But that is not the case, as is being demonstrated, hereinafter. What needs to be noticed here is that on 16.03.1989, the petitioner was proceeded against ex parte. The inquiry was concluded and the report was, accordingly, submitted to the disciplinary authority. In the wake of the grievance of the petitioner that the Inquiry Officer held ex parte proceedings on 16.03.1989 behind his back, he was deprived of an opportunity to cross-examine PWs, the disciplinary authority still considered it appropriate to hold the proceedings de novo from 16.03.1989. The position becomes evidently clear when the Inquiry Officer, intimated the petitioner vide his letter dated 20.11.1989 the decision of the disciplinary authority. Still further even in response to certain concerns raised by the petitioner vide his letter dated 01.12.1989, it was
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clarified that the disciplinary authority had advised the Inquiry Officer that the ex parte inquiry conducted on 16.03.1989 should be held de novo . This position was amply clear to the petitioner as he duly participated in the resumed proceedings, held de novo from the stage it had reached on 16.03.1989. The reliance placed by learned Senior counsel upon a decision of the Hon'ble Supreme in Chairman-Cum-Managing Director, Coal India Ltd. and others v. Ananta Saha and others , 2011(5) SCC 142, is wholly misplaced and hardly advance the case of the petitioner. In the said case, the petitioner was dismissed from service preceded by a departmental inquiry. The learned Single Judge allowed the petition filed by the delinquent officer on the ground that the order of dismissal was passed in contravention of the statutory rules. The employer was given liberty to initiate the proceedings de novo , giving adequate opportunity to the delinquent to defend himself. It was in this context, the Hon'ble Court had observed that since there could be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a chargehseet issued to the delinquent employee, however, as despite liberty having been granted to hold de novo inquiry, it was not permissible for the authorities to proceed on the basis of chargesheet issued earlier. Thus, the expression ' de novo inquiry' was interpreted and explained by the Hon'ble Court to say that the entire earlier proceedings including
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the chargesheet issued earlier stood quahsed. Therefore, the question of initiating a fresh inquiry without giving a fresh chargesheet could not arise. Surprisingly, the matter in hand is founded on a different premise altogether. In the present case, no final order of punishment was passed before the disciplinary authority ordered that the ex parte inquiry conducted on 16.03.1989 be held de novo . Thus, the proceedings were only to be resumed from the stage they had reached on 16.03.1989, the date when the Inquiry Officer proceeded ex parte against the petitioner. Therefore, no de novo inquiry as such was ordered. But the proceedings w.e.f. 16.03.1989 were ordered to be held de novo.
What remains to be examined by us is whether the disciplinary authority having imposed a punishment i.e. reducing the petitioner to the lowest stage in the time-scale, could also subsequently order his removal, particularly when the order of removal dated 07.08.1991 was not preceeded by any regular departmental inquiry.
Before we proceed to answer the aforesaid question, we deem it necessary and expedient to refer to the order dated 05.09.1990 passed by the disciplinary authority. The operative part of the order reads as thus:
compulsory retirement has been proposed
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earlier I have still taken a lenient view of the matter with the hope that the individual; could be given a chance to improve before the extreme penalty of removal from service could be imposed.
In exercise of the powers vested in me under rule 15 of CCS (CCA) Rules, 1965, I, therefore, order that Shri Saini shall be reduced to the lowest stage in the time scale. This order of reduction will have the effect of postponing all future increments. The question of regularizing the past period of absence from duty will be considered on merits on receipt of an application from Shri Saini after he joins duty.
If, however, Shri Saini refuses to join duties within three months of their order despite the lenient view taken, the Disciplinary Authority will have no option except to remove him from service without further notice to him and without holding a fresh inquiry as the charges have already been proved. ”
What needs to be re-emphasized here is that the charges
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against the petitioner were duly established. In the considered view of the disciplinary authority, the misconduct warranted an order of removal from service. A bare reading of the aforereproduced order, irresistibly shows that the punishment of removal from service was actually imposed but was kept in abeyance for a period of three months from the date of the order with a sole purpose and hope that in case the petitioner still had a will to serve, he be afforded yet another chance to join the duty. And if he does, though the misconduct warranted removal from service, a punishment of reducing the petitioner to the lowest stage in the time-scale would suffice. However, if the petitioner still fails to join, he would suffer a punishment of removal from service.
The argument being advanced by the learned Senior counsel for the petitioner cannot be countenanced as the same is founded on a complete misconstruction and misconception of the afore-reproduced order passed by the disciplinary authority. In fact, the petitioner never suffered the punishment of reducing him to the lowest stage in the time-scale. It was only in the eventuality of the petitioner joining at Tezpur, the said punishment would have come into being. Concededly, the petitioner never joined the duty and, thus, the said punishment never came in operation least suffered by him. On the contrary, the punishment of removal from service which was kept in
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abeyance, with a sole purpose to provide another opportunity to the petitioner, if he still had the will to serve, was to operate in the event of the petitioner not joining the duty. Concededly, the petitioner never joined and, thus, attracted the punishment of removal from service. The disciplinary authority had clarified that in the said eventuality, no further notice or a fresh inquiry would be held as the charges already stood proved. Thus, the order of his removal from service, dated 07.09.1991, was consequencial, being rooted in the order dated 05.09.1990, passed by the Disciplinary Authority, and the same was preceded by due and regular inquiry.
If we have to sum up the whole situation, suffice it would be to say, the reasons assigned by the petitioner for not joining the duty, were two fold: (i) he was never relieved from Amritsar so he could not join; and (ii) he was never afforded TA/DA in advance and, thus, he could not proceed. As has been noticed above, both the excuses put-forth by the petitioner were found to be wholly misconceived and unfounded. He was indeed relieved from the office of ADEO, Amritsar. The department having duly sanctioned the requisite amount of TA/DA made every conceivable effort to ensure the same were received by the petitioner. Again, the finding recorded by the Inquiry Officer is that the petitioner chose not to collect the same. That being the position, there was no reason, least plausible in law, to still not
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join the duty. Hence, it was a case of complete disinclination and disinterest to serve. The unwillingness of the petitioner to serve, be that at any cost, permeates the proceedings in its entirety. It was in this context we had referred to certain specific proceedings in the inquiry, which show that the endeavour of the petitioner was not to participate but to prolong and procastinate the proceedings. Possibly for the reasons, that he was defending the indefensible. The delinquency of the delinquent was thus writ large. If we may add, what the Tribunal recorded in this context, reads as thus:
“We have considered the matter carefully.
As the applicant has already been removed from service by the respondents by following the correct procedure by conducting of an enquiry and establishing that the applicant was not at all interested in moving out of the area which falls in Punjab i.e. Amritsar and Pathankot and he does not want to serve the Govt. in a place like Tezpur where persons who claim to be efficient, capable and aggressive were needed, but he shyed away from his responsibility and set the matter straight right and to set an example for the other employees of the Defence Estates Deptt., no fault can be found with the respondents by not obliging the applicant.”
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In the wake of the above, we find no reason, least plausible, to interefere in the matter, more particularly, being conscious, as to what exactly lies within the domain of this Court in exercise of power of judicial review under Article 226 of the Constitution of India. Thus, the petition is dismissed, being devoid of merit. Parties are left to bear their own costs.
(SANJAY KISHAN KAUL) CHIEF JUSTICE
(ARUN PALLI) JUDGE
March 20, 2014 Rajan
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3 issues framed by the court
Did non-payment of subsistence allowance vitiate disciplinary proceedings when the employee had never been suspended?
Did the direction to redo ex parte proceedings require a fresh chargesheet and an entirely new inquiry?
Did removal following failure to join duty within the stipulated period require a fresh departmental inquiry?
Colour shows how this judgement treated each authority
Chairman-Cum-Managing Director, Coal India Ltd. and others v. Ananta Saha and othersDistinguished¶184
2011(5) SCC 142 · Who else cites this
1 provisions across 1 enactments
K.S. Saini
Union of India
Sanjay Kishan Kaul
Arun Palli
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
