The Union Of India v. Munshi Yadav

ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 29-07-2013 Heard counsel the petitioners and respondent. The present application assails order dated

21.07.2011 passed by the Central Administrative Tribunal, Patna Bench in O.A. No. 672 of 2006. It sets aside the order for compulsory retirement of the respondent, directs opportunity for oral hearing before the disciplinary authority, and directs reinstatement in the meanwhile. Learned counsel for the petitioners submitted that Patna High Court CWJC No.22590 of 2012 (4) dt.29-07-2013 2 there is no mandatory requirement for a personal hearing before the disciplinary authority. No such provision has been incorporated in the relevant rules. The Tribunal therefore erred in directing personal hearing. In any event, an opportunity for personal hearing was given which the respondent did not avail. Without prejudice to the same, it is submitted that if there was any defect in the departmental proceedings before the Disciplinary Authority from the stage of submission of the enquiry report, while remanding the matter for proceeding afresh from that stage, reinstatement should not have been ordered in the mean time. Reliance is placed on (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad and Others Versus B. Karunakar and Others) at paragraph-30 (v). Counsel for the respondent submitted that in his reply to the second show cause notice he had taken a specific objection naming three prosecution witnesses whose evidence had been taken behind his back denying him an opportunity for cross examination also and the request for recalling them for cross examination was also rejected. The order of punishment does not consider this objection of the respondent. It is for this reason that he had requested for a personal hearing. If the order for compulsory retirement was found not to be sustainable and the matter has been remanded due to lapses on the part of the petitioner, there is no wrong in the Tribunal having ordered reinstatement as otherwise it shall be Patna High Court CWJC No.22590 of 2012 (4) dt.29-07-2013 3 giving an advantage to the petitioner for their own lapses. We have examined the reply dated 20.10.2004 submitted by the respondent before the disciplinary authority. It specifically states that the evidence of prosecution witnesses Sri Sreenivas, Sri A.K.Singh and Sri Shankar was recorded in his absence. The request to recall them for cross examination was not allowed. The order of the disciplinary authority dated

20.09.2005 does not consider this objection on his behalf, but simply states that he had failed to avail the opportunity for personal hearing despite opportunity granted. It is not the case of the petitioner that the enquiry officer while indicting the respondent has not relied on the evidence of the aforesaid three prosecution witnesses. There can be no difficulty in upholding the submission made on behalf of the petitioners that in absence of any provision in the Rules, personal hearing by the disciplinary authority was not mandatory. But, if a substantive objection has been taken, alleging violation of natural justice, in the given facts of the case, a personal hearing may be mandated also to ensure fairness and justness in the decision making process. Had the disciplinary authority considered this objection of the respondent and dealt with it by opining that no prejudice has been caused to the respondent on that score it may have been possible for us to decline interference with the order of the Tribunal. Patna High Court CWJC No.22590 of 2012 (4) dt.29-07-2013 4 The departmental proceedings were procedurally flawed from the stage of submission of the reply to the second show cause notice and consideration by the disciplinary authority. We may appropriately refer to B. Karunakar (supra) relied on behalf of the petitioners with regard to the procedure to be followed. If the departmental proceeding was procedurally flawed the appropriate order to be passed was to remand the matter to the disciplinary authority for proceeding afresh from that stage, but it would not justify an order for reinstatement. We also find that the order for reinstatement by the Tribunal appears to be an after thought and not part of the original order since it has been added subsequently at a later stage in hand while the rest of the order is in a typed form. In (2008) 12 SCC 30 (Union of India Vrs. Y.S. Sadhu. Ex. Inspector), paragraph-7 of which reads as follows:- “7. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. There shall not be any reinstatement, but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced.” We set aside the order of the Tribunal only to the extent it directs reinstatement of the respondent pending fresh hearing by the disciplinary authority. It is expected that the disciplinary authority shall pass fresh appropriate orders after personal hearing within a Patna High Court CWJC No.22590 of 2012 (4) dt.29-07-2013 5 maximum period of 8 weeks the date receipt/production of a copy of this order. The writ application is allowed to the extent indicated. Chandran (Navin Sinha, J) (Vikash Jain, J)