Central Administrative Tribunal - Delhi
Vinod Kumar vs Comm. Of Police on 4 September, 2023
1 O.A.No.138/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.138 of 2021
Orders reserved on : 29.08.2023
Orders pronounced on : 04.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Constable (Exe.) Vinod Kumar,
(PIS No.2891897)
S/o Sh. Kidar Singh,
R/o H.No.297 near Boys Primary School,
Kanjhawala, Delhi
Last Posting At :-
5th Bn. DAP.
Group 'C'
Aged around 51 years
...Applicant
(By Advocate: Shri Sourabh Ahuja)
VERSUS
1. GNCT of Delhi
Through Commissioner of Police
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
2. Joint Commissioner of Police,
Armed Police, Delhi Police,
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Deputy Commissioner of Police,
5th Bn. DAP, Delhi Police,
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
...Respondents
(By Advocate: Shri Girish C. Jha)
2 OA No.138/2021
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(a) Quash and set aside impugned orders dated 01.02.2018, 15.06.2018, 26.06.2018, 19.06.2019 and 21.10.2020 (mentioned in Para 1 of the OA), whereby the respondents inflicted the penalty of dismissal on the Application and his absence period was treated as not spent on duty for all intents and purposes. And
(b) Direct the respondents to reinstate the Applicant back in service and further direct the respondents to treat the absence period of the applicant spent on duty for all intents and purposes with all consequential benefits viz. back wages, seniority etc.
(c) Award cost in favor of the Applicant and against the respondents. And/or
(d) Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. Pursuant to notice from this Tribunal, the respondents have filed their counter reply and the applicant has filed rejoinder. We have heard the learned counsels for the parties and with their assistance, perused the pleadings on record.
3 OA No.138/2021
3. The brief facts of the present case as stated in the pleadings are that applicant was appointed to the post of Constable (Exe.) in Delhi Police on 7.8.1991. According to the applicant, he was under the disciplinary control of DCP 1st Bn. DAP in September 2017. Although he was transferred to 5th Bn. DAP in December, 2017 but he was not relieved by the 1st Bn. DAP till March, 2018 and the applicant did not join 5th Bn. DAP because of mitigating circumstances yet the DCP 5th Bn. DAP not only issued absentee notice to him but also initiated the disciplinary proceedings against him for absence from duty vide order dated 1.2.2018 (Annexure A/1). The respondents served summary of allegations, list if witnesses and list of documents on the applicant. The allegations levelled against the applicant vide charge dated 15.6.2018 (Annexure A/2) are that he was running absent w.e.f. 4.10.2017 wilfully, unauthorizedly and without any intimation/permission from the competent authority, three absentee notices were also served upon him, and has violated CCS (Leave) Rules, 1972 and instructions contained in S.O. No.111. Therefore, the above act on the part of the applicant amounts to gross misconduct, carelessness, negligence and an act unbecoming of a 4 OA No.138/2021 Police Officer, which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. The applicant denied all the allegations levelled against him and the inquiry officer thereafter proceeded with the enquiry against the applicant. It is further stated that applicant was implicated in a case FIR No.96/2009 registered under Sections 498(A)/406 of IPC at PS Jahangir Puri, Delhi, which was registered against him on the complaint of applicant's wife Ms. Sunita and this fact was very much within the knowledge of the respondents. Yet they chose to proceed ex-parte in the departmental enquiry against the applicant vide order dated 11.5.2018 and the order pertaining to initiation of ex-parte proceedings was not served on the applicant which amounts to violation of principles of natural justice. However, the inquiry officer submitted his findings on 26.6.2018 (Annexure A/3) vide which he proved the charge against the applicant. Thereafter on 17.7.2018, the applicant was taken into judicial custody on the complaint of his wife and the applicant remained in judicial custody till 5.4.2020. As such the applicant was not able to submit his reply against the alleged illegal findings of the inquiry officer as 5 OA No.138/2021 he was not able to seek the help and guidance of defence assistant for submitting his reply/representation against the findings of the inquiry officer.
3.1 The disciplinary authority although aware of the fact that the applicant was in judicial custody yet chose to dismiss the applicant from service vide impugned order dated 19.6.2019 (Annexure A/4), the relevant portion of the order dated 19.6.2019 reads as under:-
"Tentatively, agreeing with the findings of the E.O., a copy of the findings was served upon the defaulter Constable vide this office U.0. No. 2731/HAP/P-I/5th Bn. DAP dated 29.06.2018 with the direction to submit his written representation/reply against the findings of the E.O. within a period of 15 days from the date of its receipt, if any. The findings of the EO was sent to the residence of the delinquent Constable through special messenger as he was running absent from duly. He received the copy of the findings on 08,07.2018 under his proper receipt, but he did not submit his written representation till date.
For the sake of natural justice, he was called in
0.R. several times to appear before the undersigned through special messengers as he was running absent but the delinquent constable did not turn up. Despite this, he neither resumed his duty nor submitted any written representation/reply. Later on, a discrete enquiry has been conducted through Sh. Subhash Chander, the then ACP/HQ/5th Bn. DAP at his residential address to know his whereabouts who submit his enquiry report concluding therein that the delinquent constable is running in Judicial Custody in case No. Ex. 56122/16, Sunita V/s Vinod, u/s 125 Cr.P.C, PS 6 OA No.138/2021 Jahangir Puri, Delhi and lodged in Tihar Jail No. 7, Delhi. In this regard, Superintendent of Prisons, Central Jail No. 7, Tihar, New Delhi has also intimated vide his letter No. SCJ-7/AS (UT)/2019/928 dated 14.05.2019 that the delinquent constable Vinod S/o Kedar Singh is running Judicial Custody w.e.f. 17.07.2018 in case Ex. No.56122/16 u/s 125 Cr.P.C. titled Sunita & Ors. V/s Vinod. He has also intimated that the said prisoner is lodged in his Jail and also facing trial in below mentioned cases:-
S.No. Ex. No. U/s P.S. or Court
V/s
1. 56122/16 125 Cr.P.C Sunita & Ms. Barkha Gupta,
Ors. Judge Family Court,
Rohini, New Delhi.
2. 193/10 325/34 IPC Prashart Ms. Kadambari
Vihar Avasthi, MM, Rohini
Court, New Delhi.
3. 96/09 498A/406 Jahangir Ms. Aakansha Vyas,
IPC Puri MM, Rohini Court,
Delhi.
4. MT 81/19 Vinod Vs. Sunita & Ors. Ms. Pinki, Judge,
Family Court, New
Delhi.
I have carefully gone through the statement of PWs, findings of the E.O. and other relevant material placed on DE file. During the period of absence three absentee notices were issued to him vide which he was directed to resume his duty at once otherwise strict disciplinary action will be taken against him.
He was also directed tỏ report CMO/Aruna Asif Ali Hospital, Rajpur Road, Delhi for medical examination in case he is ill. The absentee notices dated 05.12.2017 was received by his younger brother Pradeep Dabas, while absentee notices dated 22.11.2017 & 18.12.2017 were duly served upon him under his proper receipt but he did not comply with the directions. Further, it was his prime duty to inform the department about his arrest/custody/inability to join duty by any means of 7 OA No.138/2021 communication but he did not do 'so and still running absent since 04.10.2017 vide DD No. 30.
Absenteeism in a disciplined force is a serious matter as it cripples the entire administration of the Police Department. Each and every police personnel is deployed for duty with specific tasks. It is like a chain and if one link of chain is missed, it jeopardizes the entire system, which is quite serious. Hence, I am of the considered view that the E.0. has rightly held the delinquent guilty of the charge. As per material evidence available on record. it is crystal clear that the delinquent is habitual record of absentee and previously, he was also dealt with departmentally and accordingly he was awarded major punishment at six times on the basis of his absenteeism. Thus, it is crystal clear that he is not interested in his job despite being given ample opportunities to join his duty before he was arrested in case No. Ex.56122/16, Sunita Vs Vinod, u.s 125 Cr.P.C. It appears that he is an incorrigible type of person and his conduct is unbecoming of a police officer in a disciplined force. Wilful and unauthorized absence, if taken leniently, will not only encourage others to follow suit in the disciplined force but also destroy the whole fabric of discipline. Apart from it, an authorized absence from duty manifests as lack of devotion and dereliction to duty. Continued absence from duty is a serious misconduct and unbecoming of a member of disciplined force and is a liability on the department. This is a blatant violation of CCS (Leave) Rules-1972 and SO No.111 of Delhi Police. Absence from duty for such a long period affects the moral and discipline of other police personnel working in force. His continuation in the force will spread indiscipline. His further retention in the force is totally unsuitable and adds burden to the state exchequer also. He is also not intimate the department about his pending cases No. Ex.56122/16 u/s 125 Cr.P.C., Sunita vs. Vinod, No.193/10 u/s 498A/406 IPC, PS Jahangir Puri, Delhi & MT No.81/19, Vinod Vs. Sunita & others. Therefore, keeping in view of the above facts and circumstances of the case, I, Satyavir Katara, 8 OA No.138/2021 Deputy Commissioner of Police/5th Bn. DAP, Delhi do not find any other punishment except to DISMISS Const. Vinod Kumar, No, 4832/DAP (PIS No. 28911897) from service/Delhi Police with immediate effect as his continued absence from duty hampers the service delivery as well as discipline in a uniformed force His absence period from 04.10.2017 to l6.07.2018 is decided as "period not spent on duty" for all intents and purposes on the principle of 'No Work No Pay' and the same will not be regularized in any manner."
3.2 Aggrieved by the aforesaid order of the disciplinary authority, the applicant preferred his appeal, which was rejected by the Appellate Authority vide order dated 21.10.2020 (Annexure A/5). Hence, the present OA.
4. During the course of hearing, Shri Sourabh Ahuja, learned counsel for the applicant, has argued that due to mitigating circumstances, although the applicant had been transferred from 1st Bn. DAP to 5th Bn. DAP, but he did not join 5th Bn. DAP yet the 5th Bn. DAP not only issued absentee notices to him but also initiated the disciplinary proceedings against the applicant for absence from duty. The fact remains that the applicant was under
the discipline control of 1st Bn. DAP, therefore, in terms of the provisions of Rule 14 (4) of the Rules ibid, only DCP 1st Bn. DAP could have initiated the disciplinary proceedings against the applicant. As such the impugned orders 9 OA No.138/2021 passed by the respondents are issued in violation of provisions of Rule 14 (4) of the Rules ibid as well as the order/judgment of the Full Bench of this Tribunal in the case of Ex. Constable Nagraj Vs. Union of India and ors., (OA No.125/2005), decided on 19.01.2011, wherein it has been held that in accordance with rule 14 (4) of the aforesaid Rules, disciplinary action would be initiated by the competent authority under whose disciplinary control the concerned officer is working at the time it is decided to initiate disciplinary action.
4.1 The learned counsel for the applicant has further emphasised that in the present case the competent authority is the DCP 1st Bn. DAP and not the DCP 5th Bn.
DAP, as the applicant was not relieved by the 1st Bn. DAP till March 2018, and as such order for initiating the disciplinary proceedings against the applicant vide order dated 1.2.2018 is passed by an incompetent authority and the same is liable to be quashed on the ground alone. 4.2 Shri Ahuja, learned counsel for the applicant has drawn our attention of the impugned order dated 19.6.2019 (page 38 of the paperbook) and contended that the impugned order passed by the disciplinary authority is 10 OA No.138/2021 based on extraneous material, as in the said order, the disciplinary authority has recorded that 'he was awarded major punishment at six times on the basis of his absenteeism', which is not forming a part of the charges levelled against the applicant and, therefore, the impugned order passed by the disciplinary authority is violative of the provisions of Rule 16 (xi) of the Rules ibid, which provides that if it is considered necessary to award a service punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him. and he shall be given opportunity to defend himself as required by rules. In support of such contention, learned counsel has placed reliance of the order/judgment of the Hon'ble Apex Court in the case of Mohd. Yunus Khan Vs. State of U.P., reported in 2010 (10) SCC 539 and of this Tribunal in the case of Nanak Chand vs. GNCT of Delhi (OA No.3224/2014) decided on 21.11.2019.
4.3 Learned counsel for the applicant has further argued that in the appeal preferred against the impugned order passed by the disciplinary authority, the applicant has 11 OA No.138/2021 taken various grounds but the same have not been considered in true letter and spirit by the appellate authority while rejecting the same.
5. Per contra, Shri Jha, learned counsel for the respondents with the assistance of the counter reply, has submitted that during separation of 5th Bn. from 1st Bn. DAP, the applicant was transfer to 5th Bn. vide order dated 27.10.2014 and he joined his duty in 5th Bn. vide DD No.08 dated 22.11.2014. In 2018, the applicant was again transferred from 5th Bn. to 5th Bn. DAP vie order dated 24.5.2018 and therefore, there is no violation of Rule 14 (4) of the Rules ibid.
5.1 Learned counsel for the respondents has further submitted that inquiry officer has conducted the departmental enquiry in terms of the provisions of Rule 18 of the Rules ibid, as a copy of the summary of allegations, list of witnesses and the list of relied upon documents were served upon the applicant on 6.3.2018 though HC Hari Prakash, No.4180/DAP at his residence VPO Kanjhawala, Delhi against his proper receipt. However, a copy of the ex-parte order was also served to the applicant 12 OA No.138/2021 vide respondents' office order dated 11.5.2018 through Ct. Shiv Kumar, 4544/DAP against his proper receipt. 5.2 Learned counsel for the respondents has also submitted that while posted in 5th Bn. DAP, the applicant had absented himself w.e.f. 4.10.2017, and he was sent to judicial custody w.e.f. 17.7.2018. During this period (approx. 9 ½ months), record is evident that during absent period, he had received three absentee notices in which it has clearly mentioned either to join duty or to report to CMO Aruna Asaf Ali Hospital for medical examination in case, if he was ill but the applicant had neither joined his duty nor reported for medical examination which shows that he had absented himself willfully and unauthorizedly. During DE proceedings, he was given ample opportunity at all stages by the E.O. i.e. the applicant had received the summary of allegation, list of witnesses and the list of relied upon documents on 6.3.2018 through the concerned deputed official at his residence VPO Kanjhawala, Delhi against his proper receipt. However, a copy of the ex-parte order was also served to the applicant vide office order dated 11.5.2018 through the concerned official against his proper receipt. He had received the 13 OA No.138/2021 absentee notices, to defend his case properly but he himself failed to avail the same. The disciplinary authority has awarded the punishment fully commensurate with the gravity of his misconduct, after considering all facts of the case and after giving more opportunity by the E.O. 5.3 Learned counsel for the respondents has argued that applicant is reiterating the irrelevant and unreasonable things, which is liable to be discarded as he was sent to judicial custody w.e.f. 17.7.2018 and before sending him to judicial custody, during the disciplinary proceedings, the applicant was given ample opportunities at all stages by the E.O. to defend himself but he failed to avail the same. Even, he did not inform the department about his case that he was in judicial custody, which came to notice while D.E. proceedings.
6. In rebuttal/rejoinder, the learned counsel for the applicant has dropped the first ground taken in his arguments, i.e., the decision to initiation of the disciplinary authority against the applicant has been taken by the competent authority, which is violative of provisions of Rule 14(4) of the Rules ibid. He has submitted that in view of clarifications on behalf of the 14 OA No.138/2021 respondents, he does not press the argument that the impugned proceedings/order(s) have not been initiated and ordered by the competent authorities. Now, he does not dispute the competence of the authorities. 6.1 Shri Ahuja, learned counsel for the applicant has also argued that the applicant was taken into judicial custody on 17.7.2018 and remained there till 5.4.2020 and the disciplinary authority though was aware that the applicant was in judicial custody yet inflicted the penalty of dismissal upon the applicant vide impugned order dated 19.6.2019, which is contrary to the law laid down by the Hon'ble Apex Court in the case of S.B.I. vs. Ranjit Singh Chakraborty, reported in 2009 (7) SLR 347, wherein the Hon'ble Apex Court held that it is mandatory to afford personal hearing to the delinquent officer before imposing major penalty even if it is not provided under the extant rules/provisions. Learned counsel has submitted that the applicant was not afforded personal hearing before inflicting the punishment of dismissal from service. 6.2 Learned counsel for the applicant again reiterated that the penalty inflicted upon the applicant by the disciplinary authority for the charge which was not even 15 OA No.138/2021 alleged against the applicant and therefore, the order of the disciplinary authority is contrary to the provisions of Rule 16 (xi) of the Rules ibid. Learned counsel for the applicant has further submitted that the case of the applicant is also squarely covered by the order/judgment dated 13.2.2013 of this Tribunal in the case of Sushila Devi vs. Commissioner of Police in OA No.3115/2012.
7. We have also gone through the orders/judgments relied upon by the learned counsel for the parties.
8. Having regard to the factual matrix of the case and the submissions of the learned counsels for the parties, as noted above, the following issues are required to be adjudicated in the instant case:-
(i) Whether the orders passed by the respondents are in violation of the Rule 16 (xi) of the Delhi Police (Punishment & Appeal) Rules, 1980? and
(ii) Whether the applicant, who was admittedly in the judicial custody, was rightly removed from service by the disciplinary authority without affording personal hearing?
9. So far as issue (i) as at para 8 above is concerned, Rule 16 (xi) of the Rules ibid provides that if it is 16 OA No.138/2021 considered necessary to award a service punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules. On perusal of the impugned order passed by the disciplinary authority, it is evident that extraneous material has been considered, i.e., 'he was awarded major punishment at six times on the basis of his absenteeism', which is not made a part of the charge levelled against the applicant vide charge dated 15.6.2018 (Annexure A/2).
10. The Hon'ble Apex Court in the case of Mohd. Yunus Khan Vs. State of U.P., reported in 2010 (10) SCC 539, has held as under:-
"34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show- cause notice, before imposing the punishment."
11. This Tribunal had an occasion to consider the issue of applicability of provisions of Rule 16 (ix) of the 17 OA No.138/2021 Rules ibid while deciding the case of Sushila Devi (supra), the relevant portion of which reads as under:-
"7. The applicant challenged the aforesaid impugned findings of the inquiry officer, order of the disciplinary authority dated 10.03.2011 and the order of appellate authority dated 17.07.2011 on various grounds. The main contention of learned counsel for the applicant is that the findings of the inquiry officer were vitiated because the alleged previous bad record was mentioned in the summary of allegations but their details were not given to him or even proved during departmental inquiry. However, without any evidence being available on record, the disciplinary authority simply held that the previous bad record was also proved by the inquiry officer in his findings. In this regard, he has relied upon a judgment of a co-ordinate Bench of this Tribunal in the case of Shri Jagdish Prasad v. Govt. of NCT of Delhi & others (O.A.No. 961/1999) decided on 16.02.2001. The applicant therein was an ex-Constable and he was proceeded against in a departmental inquiry on the allegation that on two occasions he willfully and unauthorizedly absented himself from duty for a period of 5 months and 108 days. The disciplinary authority imposed the punishment of removal from service upon him. Thereafter, he preferred an appeal which was rejected by the appellate authority. The revision petition filed by him was also rejected. This Tribunal allowed the said OA with its relevant part is as under:-
"4. While perusing the departmental enquiry record, we have perused the testimony of PW2, Constable Manoj Kumar where he had proved the absentee notices issued to the applicant and exhibited the same as Ex. P.W.-2/A and Ex. P.W.2/B. We find a definite and 18 OA No.138/2021 glaring interpolation in the statement of Constable Manoj Kumar whereby it has been added It is stated that I had exhibited the previous absent record to Constable Jagdish Prasad from Sl. No.1 to 12 as exhibited PW2/c. The said insertion of this statement of fact in the evidence of PW2 is firstly of small letters and is added with a different ink. Apart from it, the signature of the witness had already been appended in the statement and thereafter while adjusting the signatures the line adding the previous bad record had been latter on inserted in the testimony of PW2. The aforesaid insertion to our mind is absolutely fabricated/forged and interpolated later on to justify their action by the respondents. In this view of ours, we are satisfied on two grounds. Firstly, in the enquiry report, PW2s testimony had not referred to exhibit-PW2/C and this exhibit had not at all been mentioned by the enquiry officer anywhere in his findings. Secondly, the applicant in his appeal against the order of removal had taken a specific ground mentioned at Sl. No. (iii) stating that there is a violation of Rule 16 (11) of Delhi Police (Punishment & Appeal) Rules as the previous extract of record though mentioned in the list of documents had never been served upon him and also the same had also not been exhibited during the course of departmental enquiry. The appellate authority while rejecting the appeal of the applicant had not at all mentioned about this specific legal plea of the applicant in the contentions of the applicant mentioned therein and the same was neither adjudicated/considered nor rejected. In our considered view when the applicant had taken this specific objection in his appeal, the respondents with a view to counter the same, 19 OA No.138/2021 fabricated and later on inserted the fact of previous bad record and exhibited it as PW2/C. In our view had this evidence come earlier in the testimony of PW2 as defended by the respondents the same would have figured in the testimony of PW2 as well as in the finding. The enquiry officer could have relied upon it while coming to the conclusion that the applicant was a habitual absentee. In our view, the aforesaid interpolation is a serious lapse on the part of the respondents and is deprecated and we take a serious note of this.
5. We are fortified by the view taken by the Tribunal in OA No. 1364/99 supra. Rule 16 (xi) ibid which is a substantive provision is to be meticulously complied with while taking into consideration the previous bad record of a police officer. Not only the previous record should be made a specific part of the charge but against which a police officer should be afforded a reasonable opportunity to defend himself. Unless the previous bad record is put to a police officer in the form of evidence brought on record in the departmental enquiry, the applicant should not be punished by taking this previous bad record. This is precisely what happened in the present case. In absence of the evidence of previous bad record proved or brought on record by any witness and also in absence of being exhibited the applicant had not been afforded a proper notice of the same and accordingly he could not effectively defend this piece of evidence against him in the departmental enquiry..."
12. Further while deciding the case of Nanak Chand vs. GNCT of Delhi (OA No.3224/2014) vide order/judgment 20 OA No.138/2021 dated 21.11.2019, this Tribunal had placed reliance of the observation of this Tribunal in OA No.139/1998, titled Constable Satish Kumar Vs. Union of India, decided on 16.11.2000, the relevant portion of which reads as under:-
"2. Aforesaid rule, it is clear, is a rule which enunciates a principle of natural justice. The aforesaid provision is of a mandatory nature. The same provides that the previous bad record shall from the basis of a definite charge. (emphasis provided)"
Para 11 of the order/judgment in Constable Satish Kumar (supra) reads as under:
"11. It is clarified that it will be open to the disciplinary authority, if so advised, to consider imposing a penalty afresh either without taking into consideration the aforesaid adverse record or after framing an additional charge and after affording the applicant an opportunity of showing cause, and in either case, the applicant will be given an opportunity of being heard."
13. In view of the Rules and judgments, referred to in paras 9 to 12 above, we are of the considered view that the issue (i) at para 8 above deserves to be answered in favour of the applicant and is answered accordingly.
14. So far as issue (ii) at para 8 above is concerned, the Hon'ble Apex Court in the case of Ranjit Kumar Chakroborty (supra) held as under:-
21 OA No.138/2021
"3. In this case, the respondent, who was punished with a major penalty, was not heard. Therefore, the order of removal was set aside. We have been taken through Rule 68(3)(iii) and we are in full agreement with the view taken by the High Court. When the disciplinary authority is not competent to pass a major penalty, that is, of the removal or other major penalty prescribed in the Rule, the papers are required to be placed by the disciplinary authority to the appointing authority who is competent to pass a major penalty. In the present case, the disciplinary authority was not competent to pass major penalty, therefore, the matter was placed before the appointing authority and the appointing authority passed major penalty of dismissal without hearing the delinquent. Such order which is on the face of it is against the principles of natural justice, cannot be countenanced as it is void ab initio. The proviso certainly says that the appointing authority, on the recommendation given by the disciplinary authority, shall be competent to pass the major penalty. Simply by recommending the matter and sending the papers to the appointing authority, does not mean that the incumbent who is going to be served with the major penalty is not required to be heard in the matter. It is now settled principle that wherever the Rule is silent, the principles of natural justice shall be read in it. A hearing should be given to a person who is being punished with a major penalty. Therefore, the principle of natural justice has to be read in this Rule. A notice ought to have been issued to the delinquent by the authority to whom papers were sent to show cause why the major penalty may not be imposed on him. It is true that the competent authority could pass the order of major penalty but not without hearing the incumbent. Therefore, in this context of the matter, we are of the opinion that the view taken by the Division Bench [Ranjit Kumar Chakrabarty v. SBI, APOT No. 316 of 2001, order dated 20-8-2004 (Cal)] of the 22 OA No.138/2021 Calcutta High Court is correct and there is no ground for interference in this appeal."
Keeping in view the above observations of the Hon'ble Apex Court, we are of the considered view that issue (ii) also deserves to be answered in favour of the applicant and the same is answered accordingly.
15. In view of the above facts, discussion and law, the present OA is partly allowed with the following order:-
(i) The impugned orders dated 19.6.2019 (Annexure A/4) and 21010.2020 (Annexure A/5) are set aside; and
(ii) The respondents shall be at liberty to proceed, if they so decide in the matter afresh in the mater from the stage of submission of report by the inquiry officer and take a decision in accordance with the provisions of rules and law on the subject within a period of two months from the date of receipt of a copy of this Order.
16. In the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/