SUPREME COURT OF INDIA
Union of India and Others
Vs
Hasmukhbhai Hirabhai Rana
Appeal (Civil) 5168 of 2006 (Arising Out of Slp (C) No. 21885 of 2004)
(Arijit Pasayat and L. S. Panta, JJ)
23.11.2006
ARIJIT PASAYAT, J.
Leave granted.
Appellants 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.
The factual position in a nutshell is as follows:
On 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. A 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.
In 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
disciplinary authority.
Learned counsel for the respondent supported the orders of the CAT and the High
Court.
It 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
appointment order.
There 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 hasbeen the subject matter of adjudication in
many cases. (See State of Madhya Pradesh and Others v. Shardul Singh and
in State of U.P. and Another v. Chandrapal Singh and Another .
It is 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 raised.
In the 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.
Appeal is allowed to the aforesaid extent with no order as to costs.