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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.518  OF  2015 (ARISING OUT OF SLP(C) NO.36433 OF 2013)

SEC. TO GOV. INFORMATION PUB. REL. DEP. & ORS.        …APPELLANTS

VERSUS

JOHN MARIA JESUDOSS                         …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave granted.

2. This  appeal  has  been  preferred  against  the  judgment  and  

Order dated 15th June, 2012 passed by the High Court of Madras in  

Writ Appeal No.1099 of 2012.

3. The  respondent  was  employed  as  a  Junior  Assistant  in  

Government Central Press since 1988.  On 15th February, 1995, the  

disciplinary proceedings were initiated against him alleging that he  

was not attending his official duties regularly, he failed to submit the  

personal  register  to  the  Superintendent  and  that  he  frequently  

applied  for  leave,  adversely  affecting  the  discipline  of  other  co-

workers.   

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A second charge sheet dated 28th January, 1997, was served on him  

alleging interpolation in the attendance register falsely showing that  

he had attended the office on 10th January, 1997 and that he left the  

office before time unauthorisedly.  After enquiry, the charge in the  

first charge sheet having been proved, Order dated 17th April, 1997  

was passed removing him from service.  It was observed in the order  

that the appellant failed to submit any written explanation; enquiry  

report dated 19th March, 1996 was submitted against him; a copy  

whereof was sent to him on 24th April, 1996 to which he did not give  

any reply.  On appeal, the appellate authority vide Order dated 1st  

September, 1997, modified the order of punishment of removal from  

service to reduction of pay by five stages.  Thereafter, vide Order  

dated   

1st December, 1997, the disciplinary authority passed fresh order of  

removal from service on the basis of second charge sheet based on  

the alleged misconduct on 10th January, 1997 which charge was held  

proved during disciplinary enquiry.  It was observed that the order of  

removal was passed on 25th June, 1997 but the same was held in  

abeyance on account of pendency of appeal against Order dated   

17th April, 1997.  Since Order dated 17th April, 1997 had been set  

aside  in  appeal  and  the  order  of  removal  based  on  the  second  

charge sheet,  which had been kept  in  abeyance,  was  considered  

necessary  to  be  issued.   The  said  order  was  affirmed  by  the  

appellate  authority  on  

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24th  February,  1998.   Against  the  said  order,  the  respondent  

preferred O.A. No.4377 of 2001 before the Tamil Nadu Administrative  

Tribunal which was transferred to the High Court on abolition of the  

Tamil Nadu Administrative Tribunal in 2007 and was registered as  

Writ  Petition No.4446 of  2007.   Learned single Judge of  the High  

Court allowed the said writ  petition on 21st December,  2011 with  

back wages and all other benefits.  The order of single Judge has  

been affirmed by the Division Bench.

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4. We have heard learned counsel for the parties.

5. Learned counsel for the appellant submitted that interference  

with the order of removal dated 1st December, 1997 was not justified  

on the assumption that the order dated 1st September, 1997 was a  

bar  to  pass  an  order  of  removal.   The  said  order  dated  1st  

September,  1997  arose  out  of  the  first  charge  sheet  dated  15th  

February, 1995 relating to distinct misconduct of habitually leaving  

the office without any intimation and frequently applying for leave.  

The  impugned  order  dated  1st December,  1997 arose  out  of  the  

second charge sheet dated 28th January, 1997 relating to misconduct  

on 10th January, 1997 by leaving the office without permission and  

tempering of official record.

6. Learned counsel for the respondent supported the impugned  

order  and  also  submitted that  even if  misconduct  alleged  in  the  

second charge sheet was taken to be distinct, order of removal was  

shocking and disproportionate to the charge and thus, the order of  

the High Court reinstating the respondent with back wages was fully  

justified.

7. We have given anxious consideration to the rival submissions.   

8. The  question  for  consideration  is  whether  order  dated   

21st December, 2011 passed by the learned Single Judge as affirmed  

by the Division Bench vide impugned order dated 15th June, 2012  

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reinstating  the  respondent  with  back  wages  and  other  benefits   

is justified.

9. It will be appropriate to reproduce the misconduct alleged in  

the two charge sheets.  The alleged misconduct in the first charge  

sheet dated 15th February, 1995 is as follows :

“1.  The  individual  is  not  sincere  in   attending  the  official  duty  and  after  signing  the  attendance  register  habitually  leave  the  office  without  any   intimation.

2. Failure to submit the personal register   to the superintendent.

3.  Frequently  applying  leave.   His   sincerity  adversely  affect  the  discipline   of other co-workers.”

The  alleged  misconduct  in  the  second  charge  sheet  dated  28th  

January, 1997 is as follows :

“1.  Indulging  in  correction  of  official   records to his personal advantage.

2.  On  coming  late  to  the  office  on   10.1.1997  and  without  getting  the  permission  of  his  superior  signed  the  running  not  file  for  the  attendance  register that he has attended the office.

3. After signing the register that he has  attended the office he went out  of  the  office and never returned for the whole   day.”

10. It is clear from the record that the misconduct alleged in both  

the charge sheets is the subject matter of separate enquiries, and  

was held to be proved.  The first order of the disciplinary authority is  

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dated  17th April,  1997  while  the  second  order  of  the  disciplinary  

authority is dated 1st December, 1997.  The appellate order dated 1st  

September,  1997 is  in  appeal  against  the  order  dated  17th April,  

1997.  Thus,  there  is  error  in  assuming  that  order  dated  1st  

September,  1997  became  final  and  conclusive,  as  regards  the  

misconduct alleged in the second charge sheet. The observations in  

the impugned order of learned single Judge are as follows :

“In view of the disciplinary proceedings   attained  finality  by  an  order  dated  01.09.1997  of  the  second  respondent  modifying  the  punishment  of  dismissal   into one by reinstating the petitioner in  service  and  reducing  the  pay  by  five  stages  and  postponement  of  increment  for five years, the respondents 2 and 3  have  no  jurisdiction  to  pass  the   impugned  orders  on  the  same  disciplinary  proceedings.   Hence,  the  impugned  orders  are  liable  to  be  set   aside  and  accordingly,  the  same  are   quashed.   The  petitioner  is  entitled  to  backwages and other  benefits  since he  was  illegally  terminated  from  service.   The  respondents  are  directed  to  reinstate the petitioner with backwages  and other benefits within a period of six  (6) weeks from the date of receipt of a   copy of this order.”

The above order is clearly based on erroneous assumption that order  

dated 1st December, 1997 was in respect of the same misconduct as  

was covered by the order dated 1st  September,  1997.   The fact  

remains that both the orders are in respect of different misconducts.  

The finding of proof of misconduct is not under challenge.  Faced  

with the situation, learned counsel for the respondent submitted that  

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even if a separate and distinct misconduct is proved, the order of  

removal could not be justified having regard to the nature of alleged  

misconduct.

11. We  are  of  the  view  that  while  the  High  Court  erroneously  

assumed that the order dated 1st December, 1997 was vitiated on  

account of disciplinary proceedings having attained finality on the  

passing of order dated 1st September, 1997, what attained finality  

was the disciplinary proceeding initiated by first charge sheet and  

not  those  initiated  by  second  charge  sheet.   Thus,  distinct  

punishment  in  respect  of  misconduct  covered  by  second  charge  

sheet could be validly imposed.   Thus, the order of reinstatement  

with back wages and other benefits cannot be sustained.  However,  

we do find merit in the submission made on behalf of the respondent  

that even if distinct punishment was to be imposed, it could not be  

the order of removal.  Undoubtedly, misconduct of unauthorisedly  

leaving  the  office  has  been  subject  matter  of  two  independent  

charge  sheets  on  different  occasions  and  on  both  occasions  the  

charges  have  been  established.   There  is  also  an  allegation  of  

tempering with the record but that charge also relates to covering  

up  of  the  unauthorized  absence.   The  order  of  punishment  of  

removal from service was passed 17 years ago.  Having regard to all  

the facts and circumstances of the case, we are of the view that the  

impugned order of removal ought to be set aside and substituted by  

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order  of  compulsory  retirement.   We  would  have  directed  

compulsory retirement from the date of removal i.e. 1st December,  

1997 but since this may be few days earlier to completion of ten  

years  from and deprive  the  respondent  of  proportionate  terminal  

benefits,  the  date  of  compulsory  retirement  will  be  the  date  on  

completion of ten years of service.

12. Accordingly, this appeal is partly allowed to the above extent,  

substituting the order of removal by order of compulsory retirement.

………………………………………………J. (T.S. THAKUR)

………………………………………………J. (ADARSH KUMAR GOEL)

NEW DELHI JANUARY 16, 2015

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