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                                               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.

No.

Appointing

Authority

Authority  competent  to  impose  all  penalties  specified  in  Rule 11.

Appellate  Authority

Office/

officers  relating  to  which  the  powers are to  be exercised.

1 2 3 4 5

xxx xxxxx xxxxxx xxxxx xxxxx

JUDICIAL DEPARTMENT

Special  Officer,  Judicial  Department

Special  Officer,  Judicial  Department

Chief Judge,

Pondicherry

District  Court,  including the  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.