Rajbir Singh vs State of Haryana and another

In the instant writ petition, the petitioner has questioned the

validity of order dated 12.08.2014 vide Annexure P8 by which appellate

authority has confirmed the order of punishment dated 27.02.2012 vide

Annexure P6 to the extent of imposing the punishment of stoppage of 3

increments with cumulative effect.

The petitioner was subjected to disciplinary proceedings on the

allegations that he was entering office under intoxication and the

disciplinary proceedings were concluded in imposing penalty of reduction

to the lowest pay in the time scale of pay/pay band to the petitioner.

Thereafter, the petitioner preferred an appeal before the appellate authority.

Appellate authority modified the penalty of imposing lesser punishment of

stoppage of 3 increment with cumulative effect. Still aggrieved by the

order of appellate authority, petitioner preferred a writ petition before this

court. On 14.08.2013 CWP No. 7235 of 2012 was disposed of while

quashing the order of appellate authority as well as order appealed against

disciplinary authority''s order and further directed for reconsideration with

the following observation:-

"To this end the punishing authority may also consider issuing a warning to the petitioner to be careful in future. However, the impugned order to the extent it inflicts, for the period the petitioner remained out of service, a further onerous condition for that period to be treated as leave of the kind due is not legally sustainable and that part of the order would stand quashed with all consequential benefits attaching thereto. Resultantly, the period of five years and one month would be considered as duty period for all intents and purposes including preservation of accrued prior seniority etc. However, the arrears of salary would become due and payable from only from 9.12.2010, the date of judgment of the learned Single Judge, as the best serviceable cause of action for payment of arrears of salary since the removal order was quashed and a new right declared but the petitioner was not exonerated by court on the remaining charge. Accordingly, the impugned appellate order and the order appealed against stand quashed and it is directed that the reconsideration exercise as ordered above be now completed within three months from the date of receipt of a certified copy of this order. The monetary benefits which would become available be

calculated and made over to the petitioner within one month after final order on remand is passed and communicated to the petitioner. The writ petition is partly allowed in the above terms with no order as to costs."

Thereafter, the appellate authority passed an order while holding

that earlier punishment passed by the disciplinary authority is in order. It

was further stated that " I am of the view that such punishments should be

imposed on the employees as offers them an opportunity to improve in

future and may not act as a constant sore point affecting his morale"

Learned counsel for the petitioner submitted that this court observed that

punishing authority may also consider to issue a warning to be careful in

future, has not been taken into consideration and not discussed in the order

dated 12.08.2014. It was further contended that there is a protection in

respect of seniority and insofar as monetary benefits also there is a

direction. Merely, there is an observation that the petitioner was not

exonerated by court. Why remaining charge cannot be taken into

consideration for imposing of penalty of stoppage of 3 increments, when

this court has specifically directed the punishing authority to consider issue

a warning to the petitioner to be careful in future. It was also contended

that direction is for punishing authority and not for appellate authority. On

the other hand, appellate authority exercised power and passed an impugned

order dated 12.08.2014.

On the other hand, learned counsel for the respondents submitted

that when the appellate authority''s order is set aside, the matter is required

to be considered by the appellate authority and in the disciplinary authority.

Heard learned counsel for the parties.

Having regard to the directions issued in CWP No. 7235 of 2012,

and also observation made "to this end the punishing authority may also

consider issuing warning to the petitioner to be careful in future" read with

quashing of the appellate order and the order appealed against mean to say

that order of the disciplinary authority are set aside. Consequently,

disciplinary authority is required to pass a fresh order with reference to

observation made in CWP No. 7235 of 2012 and not the appellate authority.

Thus, the appellate authority exceeded his jurisdiction. In other words, he

has stepped up into the shoe of disciplinary authority which is not

permissible. Hence, Annexure P8 dated 12.08.2014 is set aside and the

matter is remanded to the disciplinary authority to take fresh decision

having regard to the observation made in CWP No. 7235 of 2012 and pass a

suitable order after giving due opportunity to the petitioner. Such exercise

shall be completed by the disciplinary authority within a period of 3 months

from today.