Punjab & Ors. Vs. Lalita  INSC 1557 (9 September 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6144 OF
2009 (Arising out of S.L.P. (C) No. 3555/2009 State of Punjab & Ors. ..
Appellants Versus Smt.Lalita ..Respondent
The State of Punjab and its functionaries have preferred this
appeal by special leave being aggrieved by the order dated November 30, 2007
passed by the High Court of Punjab and Haryana whereby it allowed the writ
petition filed by the present respondent and set aside the order dated February
07, 2007 passed by the appellate authority and imposed cost of Rs. 25,000/-
upon the present appellants.
Smt. Lalita - respondent was engaged as a Telephone Operator for
89 days in the office of Head Officer, Excise and Taxation Department on March
07, 1996. On May 22, 2003, she applied for medical leave for a period of one
month i.e. upto June 21, 2003. The said application for medical leave was granted
without pay. She did not join her duties on expiry of leave but continued to
apply for further leave including the maternity leave from September 16, 2003
to March 16, 2004. Having remained absent for almost nine months, initially,
she was given a show cause notice dated March 16, 2004 and later on she was
served with a charge sheet on June 04, 2004 under Rule 8 of Punjab Civil
Services (Punishment and Appeal) Rules, 1970 (for short "Rules,
1970") for imposition of major penalty. An inquiry officer was appointed
to inquire into the misconduct of delinquent viz; unauthorized absence;
of duty and highly irresponsible and careless behaviour.
respondent denied the allegations made in the charge sheet.
The inquiry officer after recording the evidence and on the basis
of the material submitted before him concluded that the delinquent remained on
willful absence unauthorisedly. The enquiry report was furnished to the
respondent and a second show cause notice issued on December 23, 2004 by the
disciplinary authority as to why she be not removed from service. The
respondent submitted a 2 reply to the show cause notice on December 31, 2004.
After taking into consideration her reply, on February 03, 2005, an order came
to be passed by Excise and Taxation Commissioner, Punjab removing the
respondent from service.
The respondent challenged the order of removal in the writ
petition before the Punjab and Haryana High Court. The High Court declined to
entertain the writ petition and dismissed the same on February 25, 2005
observing that the respondent may pursue departmental remedy of appeal.
On March 09, 2005, the respondent filed a departmental appeal. It
appears that the departmental appeal could not be disposed of for about a year
or so and aggrieved thereby the respondent preferred a petition before the High
Court of Punjab and Haryana, wherein on May 30, 2006, the High Court directed
the appellate authority to take a final decision on the appeal preferred by the
present respondent within two months from the date of receipt of certified copy
of the order.
On February 07, 2007, the appeal preferred by the present
respondent came to be dismissed.
The respondent challenged the order dated February 07, 2007 by
filing another writ petition which has been allowed by the impugned order.
Hence, this appeal by special leave.
Having heard the learned counsel for the parties and upon careful
consideration of the matter, in our judgment, the impugned order cannot be
sustained and matter has to go back to the High Court for fresh consideration.
In the first place, the High Court did not examine the correctness of the order
dated February 07, 2007 on its merit at all and yet held that the impugned
order was passed by the appellate authority without any application of mind. It
may be that the order passed by the appellate authority on February 07, 2007 is
not happily worded but to conclude, based on the use of the word
"worthy" in the order, that the order was not passed by the appellate
authority does not appear to us to be proper.
absence of any material having been placed by the respondent before the High
Court that the order dated February 07, 2007 was not passed by the appellate
authority and that it was passed by some subordinate officer in his office, we
are afraid, the conclusion of the High Court cannot be sustained.
Secondly, the High Court fell into grave error in not considering
at all whether the order of removal suffered from any legal infirmity. Even if
we assume that the order of appellate authority is not proper as observed by
the High Court, it ought to have considered the legality of the order of
removal. Since the matter needs to be remanded to the High Court, we refrain
from dealing with the matter further.
The appeal is, accordingly, allowed to the aforesaid extent. The
order dated November 30, 2007 passed by the High Court is set aside and writ
petition (CWP NO.7855/2007) is restored to the file of the High Court for fresh
decision in accordance with law.
request the High Court to hear and decide the writ petition as expeditiously as
may be possible. No order as to costs.