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CASE NO.: Appeal (civil)  5168 of 2006

PETITIONER: Union of India & Ors

RESPONDENT: Hasmukhbhai Hirabhai Rana

DATE OF JUDGMENT: 23/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 21885 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

        Appellants call in question legality of the judgment  rendered by a Division Bench of the Gujarat High Court  dismissing the writ petition filed by the appellants-Union of  India and its functionaries. The orders passed by the Central  Administrative Tribunal, Ahmedabad Bench (in short the  ’CAT’) in the Original Application No.170 of 1997 and Review  Application No.32 of 2003 were upheld. The only issue which  was raised by the Union of India was that CAT was not  justified in holding that the order of dismissal was passed by  an authority lower in rank than the appointing authority.

       The factual position in a nutshell is as follows:

       On 1.1.1990 a letter was issued to the respondent  informing him that on successful completion of the course  which included successful completion of practical training on  division and on the respondent passing the prescribed Hindi  test he may be offered an appointment in the temporary cadre  on the regular scales of pay. Subsequently after the  completion of training, on 13.6.1990 a letter was issued by the  Divisional Commercial Manager (in short the ’DCM’) Vadodara.   A charge sheet was issued on 1.6.1993 making allegations like  misappropriation. Liberty was granted to the respondent to  make submissions in respect of the charges and after an  enquiry the DCM passed an order of penalty of removal from  service. Respondent filed an appeal before the Appellate  Authority. The Senior Divisional Commercial Manager,  Vadodara, the Appellate Authority dismissed the appeal.  A  revision petition was filed.  The Revisional Authority i.e. ADRM  also dismissed the revision. A petition was filed before CAT  praying to set aside and for quashing the order of removal.  A  reply was submitted by present appellants.  It was stated that  the respondent has been rightly removed from service. The  Tribunal held that an authority lower than the appointing  authority passed the order for removal from service. The DCM  and Senior DCM who had acted as disciplinary authority as  well as the Appellant Authority were lower in rank than the  appointing authority. Accordingly the order was quashed. As  noted above the writ petition filed before the High Court was

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dismissed.

       In support of the appeal, learned counsel for the  appellants submitted that the order dated 1.1.1990 was the  selection order and in fact the appointment order is dated  13.6.1990 which was passed by the DCM.  Selection order was  passed by the DRM while the appointment order was passed  by the DCM who had acted as the disciplinary authority.   

       Learned counsel for the respondent supported the orders  of the CAT and the High Court.

It appears that before CAT and High Court the  controversy was whether the DCM was the appointing  authority.  There was no plea taken regarding the distinction  now projected i.e. 1.1.1990 is the selection order and  13.6.1990 was the appointment order.   

There is no dispute that the departmental proceeding can  be initiated by a person lower in rank than appointing  authority.  But the final order can be passed only by the  appointing authority or an authority higher to him. The law  relating to initiation by a person lower in rank than the  authority competent to pass final order has been the subject  matter of adjudication in many cases. (See State of Madhya  Pradesh and Others v. Shardul Singh [1970 (1) SCC 108] and  in State of U.P. and Another v. Chandrapal Singh and Another  [2003 (4) SCC 670].   

It is not in dispute that the respondent has been  reinstated in the mean time but what appears not to have  been done is to grant an opportunity to the appellants so that  the appropriate authority can pass the final order in the  departmental proceeding. The distinction now sought to be  made between the orders dated 1.1.1990 and 13.6.1990  cannot appears to have been highlighted either before CAT or  the High Court. It is only before this Court that such a plea  has been raised.  

In the aforesaid background we modify orders of the CAT  and the High Court to the extent that DRM can consider all  relevant aspects after granting opportunity to the respondent  on the basis of the enquiry report submitted. The  departmental enquiry shall be concluded as early as  practicable.  Needless to say that the respondent has to co- operate in the departmental proceedings.  Appeal is allowed to the aforesaid extent with no order as  to costs.