Mallappa C. Rangana Gouda vs Union Of India And Others

Biswanath Rath, J

This writ petition involves a challenge to the order of the Appellate Authority under Annexure-7 as well as final order being passed by the Appellate

Authority after the response to the show-cause being considered by the Appellate Authority under Annexure-10.

Short background involving the case is that petitioner being charge-sheeted on suppression of fact of his detention in criminal case under Sections

307/506 of I.P.C and Section 25 of the Arms Act, while he was on authorized leave. Petitioner faced the enquiry proceeding. On conclusion of the

enquiry proceeding in participation of the petitioner, enquiry report was submitted holding the petitioner guilty. It is based on the enquiry report, the

Disciplinary Authority passed the final order vide Annexure-

6 thereby imposing penalty of reduction of pay to the minimum stage, i.e. from Rs.3,125/- to 3,050/- in the time scale of pay for a period of two years

with immediate effect. It was also further ordered that during this period of reduction of pay, the delinquent earned increment of pay and on expiry of

period of reduction of pay will not have the effect of postponing his future increment. It was also directed therein that order of his suspension from

duty will be passed later on.

Petitioner preferred appeal but in the meantime petitioner received a show-cause notice from the higher authority also functioning as Appellate

Authority, vide Annexure-7 on his disagreement with the punishment imposed by the Disciplinary Authority and on taking a decision as to why

petitioner shall not be dismissed from service, asking the petitioner to submit his response within a period of fifteen days. Following the response from

the petitioner vide Annexure-8, the Higher Authorities enhanced the punishment imposed by the Disciplinary Authority to that of dismissal from

service. This order was again reiterated while passing the order in appeal being communicated by the Appellate Authority in disposal of appeal of the

petitioner, vide Annexure-10 impugned herein.

Taking this Court to the limited challenge involved herein in the writ petition, learned counsel for the petitioner contended that for the appeal of the

petitioner involving order passed by the Disciplinary Authority, the Appellate Authority had the only scope for taking a decision involving the appeal

and he had no scope at all to enter into increasing in the punishment already imposed by the Disciplinary Authority. Learned counsel for the petitioner

also contended that for offering a scope for objection to post decisional hearing, the objection of the petitioner had no meaning. It is also alleged that

the Appellate Authority also went wrong in sitting on appeal after taking decision to enhance the punishment vide Annexure-7 and thereby confirming

his own decision already taken while giving a response opportunity to the delinquent. Referring to a decision of the Hon’ble apex Court in the case

of ORYX Fisheries Private Limited Vrs. Union of India and others, reported in 2010 AIR (SCW) 7105 sought for application of the judgment of the

Hon’ble apex Court to the case of the petitioner.

Sri Mohanty, learned Central Government Counsel on the other hand while opposing the contentions raised by the counsel for the petitioner

submitted that the Appellate Authority being the Higher Authority than the Disciplinary Authority had the scope of entering into the punishment

already imposed by the Disciplinary Authority. For the scope of objection provided to the delinquent before passing the final order enhancing the

punishment by the Higher Authority, who is also the Appellate Authority, as such, there is no infirmity in conducting the appeal nor in passing of the

impugned order. Sri Mohanty, learned counsel thus contended that there is no scope to interfere in such order by this Court. Mr. Mohanty, learned

CGC also opposes the entertainability of the writ petition on the premises that petitioner’s having scope of statutory revision.

Taking into account the last objection of the opposite parties ahead of other issues and keeping in view the objection to the entertainability of the writ

petition as raised by Sri Mohanty, learned Central Government Counsel, this Court observes that the writ petition was entertained in the year 2002 and

in the meantime 18 years have passed, it will thus be improper to ask the petitioner to go back to the revisional authority and thus this Court entering

into the merit involving the case decide the matter on merit.

Considering the rival contentions of the parties, this Court finds admittedly petitioner faced the disciplinary proceeding involving the charge of

suppression of fact of his detention in police custody involving a criminal case while he was on authorised leave. Parties have no dispute that the said

criminal case involving a private dispute has been concluded in the meantime with an order of acquittal in favour of the delinquent. Be that as it may, it

is at this stage, at Annexure-6, this Court finds that the Disciplinary Authority after considering the report of the Enquiry Officer has chosen to impose

particular punishment on the petitioner by award of penalty by reduction of pay to the minimum stage, i.e. from Rs.3,125/- to 3,050/- for the time scale

of pay for a period of two years with immediate effect to No.932330385, Const. Mallappa C. Rangana Gouda along with other conditions stated

therein. Further facts disclosed in the meantime petitioner being aggrieved by the order passed by the Disciplinary Authority preferred appeal. In the

meantime, it appears the Deputy Inspector General, Central Industrial Security Force acting as Higher Authority issued a show-cause vide Annexure-

7 asking the petitioner to have a response on his own decision for enhancing the punishment imposed by the Disciplinary Authority to that of dismissal

from service. This Court finds once the Disciplinary Authority has taken a final decision of punishment, no other authority than the Disciplinary

Authority having the power to vary the order of punishment. The Deputy Inspector General, CISF being the Appellate Authority had no scope of

issuing such notice. This Court therefore observes Annexure-7 is without jurisdiction. It is at this stage, considering the submission advanced by the

petitioner as to the communication by the Higher Authority vide Annexure-7 is not sustainable also in the premises that offer to response on post-

decisional hearing has no legal force. This Court finds law is already settled observing post-decisional hearing is meaningless and such notices are not

sustainable in the eye of law. As a consequence of the above order at Annexure-9 is also not sustainable. It is next considering the further submission

of learned counsel for the petitioner involving the order passed by the Appellate Authority, this Court hear observes that the Appellate Authority since

was in seisin of the proceeding involving appropriateness in the order of punishment imposed by the Disciplinary Authority, the Appellate Authority

had the only scope to see the validity of the order imposed by the Disciplinary Authority and it has no scope of enhancement of punishment. It is

clarified here that in the event the Appellate Authority has the power to enhance the punishment than it has to give notice for enhancement of

punishment to the party likely to be aggrieved, which is not the case here. This Court again also finding another infirmity in the case at hand, i.e. once

the Deputy Inspector General, CISF took a decision for enhancement of punishment, he should not have again acted as an Appellate Authority. Be

that as it may, for this Court already holding the communication vide Annexure-7 is a post-decisional opportunity and as such the same is bad as a

consequence, Annexure-9 is also declared to be bad, the order of Appellate Authority should also go. As a consequence, this Court sets aside all the

orders under Annexures-7, 9 as well as 10.

Writ petition accordingly succeeds. There shall be no order as to cost.