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Union Of India v/s Lal Babu Gupta

    Civil Writ Jurisdiction Case No.1598 Of 2000

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.K.KATRIAR & THE HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL

    For the Appearing Parties: Sarvadeo Singh, Advocate.



Judgment Text

KISHORE K. MANDAL, J

(1.) The present writ application is directed against the order dated 10th August, 1999, passed by Central Administrative Tribunal, Patna Bench (for short the Tribunal), in O.A. no. 322 of 1994, whereby the said application preferred by sole respondent herein has been allowed, and the authorities have been directed to give the original applicant (sole respondent), all the benefits of promotion to the cadre of Senior Accounts Officer in the scale of Rs. 2000-4000, w.e.f. 18.5.1990.

(2.) A brief statement of facts essential for the disposal of the present writ application may be indicated. The respondent herein was serving as the Accounts Officer in the Defence Accounts Department, Ministry of Defence (finance), in the pay-scale of Rs. 2375-3500, on being promoted to the said post and scale by an office order no. 172, dated 3.6.1987. The Government of India, Ministry of Financ

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e, Department of Expenditure, issued an office memorandum dated 22.9.1992 (Annexure-2), by which the Accounts Officer, who were posted in the pay scale of Rs. 2375-3500, and had completed at least 03 years of service on the said post, were made eligible to be considered and promoted to the next higher post of Senior Accounts Officer in the pay scale of Rs. 2200-4000 w.e.f. 1.4.1987, or on completion of 03 years of service in the said grade, which ever was later. Such promotion was to be granted subject to availability of post(s) in the promotional grade. The sole respondent claimed to be entitled for such promotion w.e.f. 18.5.1990, when he completed 03 years of service as Accounts Officer. Juniors to him were considered and promoted but his case was ignored. A departmental proceeding seems to have been initiated against him, and the memo of charges issued by the Comptroller General of Defence Accounts, New Delhi, served on him on 29.11.1991. The articles of charge(s) indicates lack of devotion to the department and thereby violating the provisions of Rule 3(I)(II) of the C.C.S. Conduct Rules, 1964. He was found involved in clearing bills which did not contain any endorsement or verification of specimen signature of the Auditors S.O.A.. It is the respondents case that a departmental inquiry was made and a report was submitted to the disciplinary authority who instead of acting upon the inquiry report submitted in the proceeding remitted the case back to the Inquiry Officer for further inquiry after having noticed certain gross infirmities in the conduct of inquiry resulting in denial of opportunity to the applicant. The disciplinary authority by an order dated 19th August 1993, appointed another Inquiry Officer as the previous Inquiry Officer to whom the matter was remitted for conducting the inquiry afresh in the light of the direction made by the disciplinary authority had, by the time, been transferred (Annexure-7). At this stage, it may be noted that the respondent had already filed aforesaid O.A. no. 322 of 1994. During the pendency of the said original application, the departmental proceeding culminated into an order dated 19.3.1996, whereby he was held guilty and inflicted with punishment in the shape of withholding of one increment without cumulative effect for six months. It further appears from the record that the petitioner, aggrieved by the aforesaid order, passed by the disciplinary authority, preferred appeal which was also considered, and rejected by a reasoned order dated 30th January, 1997 (Annexure-4). The order of punishment passed by the disciplinary authority was to take effect from 1.4.1996 and elapsed on 1.10.1996. Thereafter the respondent was granted his due promotion w.e.f. 1.10.1996. The respondent retired from service w.e.f. 31.12.1997.

(3.) The Tribunal, on a consideration of materials placed before it, set aside the order(s) passed by the disciplinary authority as well as appellate authority during the pendency of the original application, and has directed to give the applicant all the benefits of promotion to the cadre of Senior Accounts Officer in the scale of Rs. 2200-4000 w.e.f. 18.5.1990.

(4.) While assailing the impugned order, learned counsel for the petitioner contends that the learned Tribunal has erred in holding that the disciplinary authority had absolutely no jurisdiction to direct fresh or de-novo inquiry. It is submitted that Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules) amply empowers the disciplinary authority to remit the case back to the inquiry authority/officer for further inquiry, and report for the reasons to be recorded by him in writing. It is contended that the materials were on record to justify the disciplinary authority to take the said view, and to remit the matter back to the Inquiry Officer for re-inquiry. It is further submitted that as the Inquiry Officer of the departmental proceeding had already left the place on transfer, and the authority had to appoint a fresh inquiry officer in his place the matter, therefore, has to be dealt with afresh. No fault thus can be found in the said order passed by the disciplinary authority. It is further submitted that the delinquent respondent participated throughout in the inquiry on remand inasmuch as he filed his written statement before the newly appointed Inquiry Officer on 24.8.1993, and waited for the decision of the inquiry, and as such he cannot be allowed to question the validity of the order passed by the disciplinary authority remitting the matter back to the Inquiry Officer for adequate reasons. It further appears from the record that the respondent, aggrieved by the order passed by the disciplinary authority inflicting punishment, preferred appeal on merits, which was considered, and rejected by a well reasoned order dated 30th January, 1997 (Annexure-4), passed by the learned appellate authority. Only thereafter, an application in the pending original application was filed seeking amendment in the prayer, and thereby sought to challenge the order(s) passed by the disciplinary authority as well as learned appellate authority in the departmental action. It further appears from the record that the allegations on which the delinquent respondent was proceeded again pertained to the period during which he was officiating as Accounts Officer. It further appears that the DPC met in November, 1992 for considering promotion to the post of Senior Accounts Officer wherein the case of promotion of the respondent was considered. Having noticed that the respondent was facing a departmental proceeding, the authorities adopted sealed-cover procedure. The respondent having unsuccessfully assailed the order of punishment in appeal, made a prayer before the Tribunal that the procedure of sealed-cover adopted by the DPC was unfair and unjustified. Learned Tribunal has interfered with the orders passed by the disciplinary authority, and approved in appeal by the learned appellate authority on the ground that the Rules do not permit further inquiry/de novo inquiry by the disciplinary authority. It has, however, recorded that such power vests with the appellate authority under rule 27(2)(ii) of the Rules.

(5.) We have considered the submissions advanced on behalf of the petitioner, and perused the materials on record. In a situation where the disciplinary authority felt for the reasons recorded in the order that there were gross infirmities in the procedure adopted by the Inquiry Officer, coupled with the fact that the previous Inquiry Officer had already left the place on transfer, the matter being remitted back to the Inquiry Officer for holding inquiry afresh cannot strictly be said to be an order for inquiry de-novo. Adequate power rests with the disciplinary authority in view of the provisions contained in rule 15(1) of the Rules. On this score, we are unable to uphold the view taken by the learned Tribunal that the order remitting the matter back to the Inquiry Officer for further inquiry/de novo inquiry vitiated the entire proceeding. It appears to us that this ground weighed heavily with the Tribunal in order to interfere with and set aside the order(s) passed by the disciplinary authority in the departmental proceeding and the order passed by the learned appellate authority on the appeal preferred by the petitioner. Learned Tribunal also failed to take into account that the delinquent respondent had continuously participated in the proceeding in so much so he filed his written statement afresh before the newly appointed Inquiry Officer, and thereafter participated whole-heartedly until the final order was passed by the learned disciplinary authority. We also take notice of the fact that the delinquent respondent, aggrieved by the order passed by the disciplinary authority, had also filed a statutory appeal which was considered and rejected on merit by the learned appellate authority.

(6.) Regard being had to these peculiar facts of the case, the writ application is allowed. Order dated 10th August, 1999, passed in O.A. no. 322 of 1994, is set aside. Consequently the order dated 19.3.1996, is hereby restored. In the facts and circumstances of the case, there shall be no order as to costs
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