S.Loganathan vs Union Of India & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 9829 OF 2011 [ARISING OUT OF S.L.P. (C) NO. 24400 OF 2007 ]

S. LOGANATHAN ... Appellant(s)

Versus

UNION OF INDIA AND OTHERS ... Respondent(s)

O R D E R

Leave granted.

2. The 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.

3. On 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,

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1965 (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. After full

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 the service.

4. The 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.

5. Mr. V. Kanagaraj, learned senior counsel for the

appellant raised two-fold contention before us. Firstly, he

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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;

(i) Surjit Ghose vs. Chairman & Managing Director, United

Commercial Bank and others1 and (ii) Electronics Corporation

of India vs. G. Muralidhar2 .

6. The 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.

7. Insofar 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

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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.

8. In 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.

9. Coming 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

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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."

10. The 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

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the 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:

SL. Appointing Authority Appellate Office/ competent to Authority No. Authority officers impose all relating to penalties which the specified in powers are to Rule 11. be exercised.

1 2 3 4 5 xxx xxxxx xxxxxx xxxxx xxxxx

JUDICIAL DEPARTMENT

Special Special Chief Judge, District Officer, Officer, Court, Pondicherry Judicial Judicial including the Department Department Labour Court, Sales Tax Appellate Tribunal and Office of the Special Officer.

11. The 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

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by 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.

12. As 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.

13. The 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.

14. Be 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.

15. The appeal has no merit and is dismissed accordingly

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with no order as to costs.

...................J. (R.M. LODHA ]

....................J. (H.L. GOKHALE ]

New Delhi, November 16, 2011.