Union of India & Ors Vs. Hasmukhbhai Hirabhai Rana  Insc 845 (23 November 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) No. 21885 of 2004) ARIJIT PASAYAT, J.
call in question legality of the judgment rendered by a Division Bench of the
Gujarat High Court dismissing the writ petition filed by the appellants-Union
of India and its functionaries. The orders
passed by the Central Administrative Tribunal, Ahmedabad Bench (in short the
'CAT') in the Original Application No.170 of 1997 and Review Application No.32
of 2003 were upheld. The only issue which was raised by the Union of India was
that CAT was not justified in holding that the order of dismissal was passed by
an authority lower in rank than the appointing authority.
factual position in a nutshell is as follows:
1.1.1990 a letter was issued to the respondent informing him that on successful
completion of the course which included successful completion of practical
training on division and on the respondent passing the prescribed Hindi test he
may be offered an appointment in the temporary cadre on the regular scales of
pay. Subsequently after the completion of training, on 13.6.1990 a letter was
issued by the Divisional Commercial Manager (in short the 'DCM') Vadodara.
charge sheet was issued on 1.6.1993 making allegations like misappropriation. Liberty was granted to the respondent to
make submissions in respect of the charges and after an enquiry the DCM passed
an order of penalty of removal from service. Respondent filed an appeal before
the Appellate Authority. The Senior Divisional Commercial Manager, Vadodara,
the Appellate Authority dismissed the appeal. A revision petition was filed.
The Revisional Authority i.e. ADRM also dismissed the revision. A petition was
filed before CAT praying to set aside and for quashing the order of removal. A
reply was submitted by present appellants. It was stated that the respondent
has been rightly removed from service. The Tribunal held that an authority
lower than the appointing authority passed the order for removal from service.
The DCM and Senior DCM who had acted as disciplinary authority as well as the
Appellant Authority were lower in rank than the appointing authority.
Accordingly the order was quashed. As noted above the writ petition filed
before the High Court was dismissed.
support of the appeal, learned counsel for the appellants submitted that the
order dated 1.1.1990 was the selection order and in fact the appointment order
is dated 13.6.1990 which was passed by the DCM. Selection order was passed by
the DRM while the appointment order was passed by the DCM who had acted as the
counsel for the respondent supported the orders of the CAT and the High Court.
appears that before CAT and High Court the controversy was whether the DCM was
the appointing authority. There was no plea taken regarding the distinction now
projected i.e. 1.1.1990 is the selection order and 13.6.1990 was the
is no dispute that the departmental proceeding can be initiated by a person
lower in rank than appointing authority. But the final order can be passed only
by the appointing authority or an authority higher to him. The law relating to
initiation by a person lower in rank than the authority competent to pass final
order has been the subject matter of adjudication in many cases. (See State of Madhya Pradesh and Others v. Shardul Singh [1970
(1) SCC 108] and in State of U.P. and
Another v. Chandrapal Singh and Another [2003 (4) SCC 670].
not in dispute that the respondent has been reinstated in the mean time but
what appears not to have been done is to grant an opportunity to the appellants
so that the appropriate authority can pass the final order in the departmental
proceeding. The distinction now sought to be made between the orders dated
1.1.1990 and 13.6.1990 cannot appears to have been highlighted either before
CAT or the High Court. It is only before this Court that such a plea has been
aforesaid background we modify orders of the CAT and the High Court to the
extent that DRM can consider all relevant aspects after granting opportunity to
the respondent on the basis of the enquiry report submitted. The departmental
enquiry shall be concluded as early as practicable. Needless to say that the
respondent has to co- operate in the departmental proceedings.
is allowed to the aforesaid extent with no order as to costs.