S.LOGANATHAN Vs UNION OF INDIA .
Bench: R.M. LODHA,H.L. GOKHALE
Case number: C.A. No.-009829-009829 / 2011
Diary number: 28607 / 2007
Advocates: S. THANANJAYAN Vs
V. G. PRAGASAM
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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.