S. Loganathan Vs.
Union of India and Others.
O R D E R
appellant, who was working as a Junior Clerk in the Subordinate Court at Yanam
(Pondicherry), was dismissed from the service on conclusion of disciplinary proceedings
by the Chief Judge, Pondicherry (for short "Chief Judge") vide order
dated November 8, 2000. The appellant challenged that order before the High
Court of judicature at Madras by filing a Writ Petition. His Writ Petition came
to be dismissed on June 11, 2007. It is from this order that the present
appeal, by special leave, arises.
April 28, 1999, the appellant was issued a Charge Memo setting out therein that
he was liable to be proceeded with the disciplinary action under Rule 14 of the
Central Civil Services (Classification, Control and Appeal) Rules, 21965 (for
short "CCS Rules"). Along with the Charge-Memo, Article of Charges
was sent to the appellant. The Article of Charges contained ten articles. An
Inquiry Officer was appointed and inquiry proceeded against the appellant.
The appellant filed his
response by way of defence to the Charge Memo and Article of Charges and denied
the allegations levelled against him. The appellant, after some time, did not
participate in the departmental inquiry. As a result of which, the departmental
inquiry continued ex-parte. Subsequently, on his objection that he had not been
provided adequate opportunity, ex-parte departmental inquiry was re-called and
the inquiry started de novo.
participation by the appellant thereafter in the departmental inquiry, some of
the charges were found fully proved while some were held partially proved by
the Inquiry Officer. The Disciplinary Authority (Chief Judge), on consideration
of the report submitted by the Inquiry Officer, agreed with the findings recorded
in the inquiry report and awarded to the appellant penalty of dismissal from
dismissal order dated November 8, 2000, as noted above, was challenged by the
appellant before the High Court of Madras by way of filing a Writ Petition but
without any success.
V. Kanagaraj, learned senior counsel for the appellant raised two-fold
contention before us. Firstly, he contended that the Chief Judge was an
appellate authority and, therefore, he could not have imposed the order of
punishment as that has resulted in depriving the appellant of his valuable right
of departmental appeal against the order of punishment. In support of this contention,
Mr. Kangaraj placed reliance on the two decisions of this court;
Ghose vs. Chairman & Managing Director, United Commercial Bank and others1
Corporation of India vs. G. Muralidhar.
second contention of Mr. Kangaraj is that the findings of the Inquiry Officer are
vitiated inasmuch as the Inquiry Officer had taken into consideration the
evidence that was recorded in the ex-parte proceedings.
as the second contention is concerned, it may be stated immediately that the
said contention is mis-placed. The Inquiry Officer has not based his findings
on the evidence that was recorded ex-parte but has referred to that only for
the purposes of appreciation of the evidence of the witnesses examined by the department
in de novo inquiry wherein the appellant fully participated.
The findings are based
on the evidence that was recorded subsequently in the presence of the appellant.
It is true that the witnesses PW2 to PW11 examined by the department 1(1995)2
SCC 474 2.(2001)10 SCC 43 did not support the department fully but besides the evidence
of PW2 to PW11, there is a evidence of PW1. The Inquiry Officer considered his
evidence and relied upon the same.
our considered view, the consideration of the evidence recorded in the course of
the inquiry by the Inquiry Officer in the presence of the appellant and the
findings recorded by him do not suffer from any legal infirmity justifying any
interference by us.
to the first contention raised by Mr. Kanagaraj, suffice it to say that ordinarily
in a case of infliction of punishment by the higher authority acting as a
disciplinary authority, if delinquent is denied his right of departmental appeal
or right of review, such order of punishment may be rendered bad in law but
much would depend on the relevant rules. In the case of Surjit Singh1, while
considering the provisions of United Commercial Bank Officers (Discipline and Appeals)
Regulations, 1976, this Court held thus:
"It is true that
when an authority higher than the disciplinary authority itself imposes the punishment,
the order of punishment suffers from no illegality when no appeal is provided to
such authority. However, when an appeal is provided to the higher authority
concerned against the order of the disciplinary authority or of a lower authority
and the higher authority passes an order of punishment, the employee concerned is
deprived of the remedy of appeal which is a substantive right given to him by the
Rules/Regulations. An employee cannot be deprived of his substantive right.
What is further, when
there is a provision of appeal against the order of the disciplinary authority
and when the appellate or the higher authority against whose order there is no
appeal, exercises the powers of the disciplinary authority in a given case, it results
in discrimination against the employee concerned.
This is particularly
so when there are no guidelines in the Rules/Regulations as to when the higher authority
or the appellate authority should exercise the powers of the disciplinary authority.
The higher or appellate authority may choose to exercise the power of the
disciplinary authority in some cases while not doing so in other cases.
In such cases, the
right of the employee depends upon the choice of the higher/appellate authority
which patently results in discrimination between an employee and employee. Surely,
such a situation cannot savour of legality."
above legal position has been reiterated by this Court in Electronics Corporation
of India2. However, the present case is little different. Vide Notification
dated November 17, 1982 issued by the Government of Pondicherry, a provision has
been made that the appointing authority is competent to impose all the
penalties in Rule 11 of the CCS Rules and the appellate authority has to
exercise the powers and perform the functions of other authorities in respect
of Group 'C' and Group 'D' posts in the offices mentioned against each other in
column (5) of the Table appended thereto.
Second proviso that
follows the first proviso and the main body of the Notification provides that where
the appointment of a delinquent has been made by an authority higher than that specified
in Column (2), then that authority will constitute the disciplinary authority under
Column (3) of the Table in respect of major penalties and any appeal against
the orders of such authority will lie to 6the next higher authority not below
the rank of a Secretary to Government and where the appeal is against the
orders of the Lieutenant Governor as the disciplinary authority, the appeal
shall lie to the President.
The relevant portion
of the Table is as follows:
competent impose all penalties specified in Rule 11.
officers relating to which the powers are to be exercised.
Officer, Judicial Department
Officer, Judicial Department
Court, including the Labour Court, Sales Tax Appellate Tribunal and Office of
the Special Officer.
Chief Judge has recorded in his order dated November 8, 2000 that in the case
of the appellant, he was the appointing authority. This fact has not been
disputed 7by showing any material otherwise. We, therefore, have to accept the position
that the Chief Judge was the appointing authority of the appellant. In that
event, the argument advanced on behalf of the appellant that the appellate authority
has inflicted punishment on him is devoid of any substance.
a matter of fact, the second proviso in the Notification dated November 17, 1992
takes care of such situation. It provides that in cases where the appointment has
been made by an authority higher than that specified in Column (2), then that authority
will constitute the disciplinary authority under Column (3) of the said Table
in respect of major penalties.
challenge to the competence of the Chief Judge in passing the order of punishment
is not meritorious and has, rightly been rejected by the High Court. By virtue
of the second proviso in the Notification dated November 17, 1982, the
appellant's right of departmental appeal was not taken away and he could have
challenged that order in the departmental appeal to the higher authority. The
appellant did not avail of that opportunity and instead challenged the order in
a Writ Petition before the High Court.
that as it may, the appellant's right of appeal has not been affected by the Chief
Judge in passing the order dated November 8, 2000.
appeal has no merit and is dismissed accordingly with no order as to costs.
(R.M. LODHA ]
(H.L. GOKHALE ]