Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE  JURISDICTION

CIVIL  APPEAL NO.        6144     OF 2009   (Arising out of S.L.P. (C) No. 3555/2009

State of Punjab & Ors.        .. Appellants

Versus

Smt.Lalita                ..Respondent

J U D G E M E N T

R.M. Lodha, J.

Leave granted.

2. The State of  Punjab and its functionaries have preferred  

this  appeal  by special  leave  being aggrieved by  the  order  dated  

November  30,  2007  passed  by  the   High  Court  of  Punjab  and  

Haryana whereby it  allowed  the writ  petition filed by the  present  

respondent and set aside the order  dated February 07,  2007 passed  

by the appellate authority and imposed  cost of Rs. 25,000/- upon the  

present appellants.  

3. Smt.  Lalita – respondent was engaged as  a Telephone  

Operator   for  89  days  in  the  office  of   Head  Officer,  Excise  and

Taxation Department on March 07, 1996.    On May 22, 2003,  she  

applied for medical  leave for a period of one month i.e. upto June 21,  

2003.  The said  application for medical leave was granted without  

pay.  She did not  join her duties on expiry  of  leave  but continued to  

apply for  further leave including the maternity leave from September  

16, 2003 to March 16, 2004.   Having remained  absent  for  almost  

nine  months,  initially,  she  was  given  a  show cause  notice  dated  

March 16, 2004 and  later on she was served with  a charge sheet  

on  June  04,  2004  under  Rule  8  of    Punjab     Civil  Services  

(Punishment and Appeal) Rules, 1970 (for short “Rules, 1970”)  for  

imposition of  major penalty.  An inquiry officer was  appointed to  

inquire into the misconduct of delinquent viz;  unauthorized absence;  

negligence of duty and highly irresponsible and careless behaviour.  

The respondent  denied  the allegations  made in the charge sheet.  

The  inquiry  officer after recording  the evidence  and on the basis of  

the material   submitted  before him  concluded that the delinquent  

remained on willful absence unauthorisedly.  The enquiry report was  

furnished  to  the  respondent  and    a  second  show  cause  notice  

issued  on December  23, 2004 by the disciplinary authority as  to  

why she  be not removed from service.  The respondent  submitted a  

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reply to the show cause notice on December 31, 2004.  After taking  

into consideration her reply, on February 03, 2005, an  order  came to  

be passed by Excise and Taxation Commissioner, Punjab removing  

the respondent from service.

5. The respondent challenged the order of removal  in the  

writ petition before the Punjab and Haryana High Court.  The High  

Court declined to entertain the writ petition and dismissed the same  

on February 25, 2005 observing that the respondent  may pursue  

departmental remedy of appeal.

6. On March  09, 2005, the respondent  filed  a departmental  

appeal.    It  appears   that   the  departmental  appeal  could  not  be  

disposed of  for about a  year or  so and aggrieved thereby  the  

respondent  preferred  a  petition before the High Court of Punjab and  

Haryana,   wherein on May 30,  2006, the High Court  directed the  

appellate authority to take a final decision on the appeal preferred  by  

the present respondent within two months from the  date of receipt of  

certified copy of the order.

7. On  February  07,  2007,  the  appeal  preferred  by  the  

present respondent came to be dismissed.

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8. The respondent challenged the order  dated February 07,  

2007 by filing another writ petition  which has been allowed by the  

impugned order.   Hence, this  appeal by special  leave.  

9. Having heard the  learned  counsel for the parties and  

upon   careful  consideration  of  the  matter,  in  our  judgment,  the  

impugned order cannot be sustained and matter has to  go back to  

the High Court for fresh consideration.  In the first place, the High  

Court  did  not  examine  the   correctness  of  the  order   dated  

February 07, 2007 on its merit at all and yet held that the impugned  

order was passed  by the appellate  authority without any application  

of mind.  It may be that the order passed by the appellate authority on  

February 07, 2007 is not happily worded but to conclude, based on  

the use of the word “worthy” in the order,  that  the order was not  

passed by the appellate authority does not appear to us  to be proper.  

In the absence of any material having been placed by the respondent  

before the High Court  that the order dated February 07, 2007 was  

not passed by the appellate authority  and that it  was  passed  by  

some subordinate officer  in  his office, we are afraid, the conclusion  

of the High Court  cannot be sustained.  

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10. Secondly,  the  High  Court  fell  into  grave  error  in  not  

considering  at all whether  the order of removal suffered from any  

legal infirmity.  Even if we assume that the order of appellate authority  

is  not  proper  as  observed  by  the  High  Court,  it  ought  to  have  

considered the  legality of the order of removal.  Since the matter  

needs to be remanded to the High Court, we refrain from dealing with  

the matter further.

11. The  appeal  is,  accordingly,  allowed  to  the  aforesaid  

extent.   The order  dated November 30,  2007 passed by the High  

Court is set aside and writ petition (CWP NO.7855/2007) is restored  

to the file of  the High Court for fresh decision in accordance with law.  

We request the High Court  to hear and decide the writ petition as  

expeditiously as may be possible.  No order as to costs.

…………………………..J (Tarun Chatterjee)  

…………………………..J (R.M. Lodha)

New Delhi, September 9 , 2009  

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