Union Of India And Others vs M.P. Arun

The impugned order of the Central Administrative Tribunal dated 12th June, 2019 can be supported for reasons other than those advanced in the said order.

The appellants-Union (hereinafter the appellants) started disciplinary proceedings against the respondent by dispensing with enquiry, by invoking Article 311(2)(b) of the Constitution.

In an earlier proceeding before this Court challenging the order of the disciplinary authority and of the said Tribunal (WPCT No.158 of 2008), this Court while setting aside the said orders remarked in its order dated 19th November, 2018 as follows:-

"7. We have no hesitation to hold that the authority misused the power so granted to him under Article 311 (2) (b) which was to be exercised sparingly and that too, in an extreme extraordinary circumstance. We are of the view that the Tribunal should have examined the case from this angle.

The petition succeeds. The order of the Tribunal is set aside. The order of dismissal dated April 12, 2007 appears at pages 140-143 so merged in the order of the appellate authority dated 15.10.2007 appearing at page 164 is set aside.

This order would, however, not preclude the administration to place him under suspension immediately after his reinstatement and proceed against him departmentally by affording him adequate opportunity to defend himself in the said proceeding.

We further make it clear that the question of back wages for the period till he is reinstated would be decided by the authority at the time of passing of the final order."

In terms of the order, a fresh disciplinary proceeding was started.

Mrs. Nag submits that after commencement of the disciplinary proceeding, the respondent was arrested on the accusation of a massive scam of leakage of CBSE question papers. On that basis, the appellant once again resorted to Article 311(2)(b) dispensing with the enquiry procedure. This resulted in the impugned departmental order which was set aside by the Tribunal on inter alia the ground that there was no cause for dispensing with enquiry.

Learned counsel for the appellant referred us to Sahadeo Singh and others vs. Union of India and others reported in (2003) 9 Supreme Court Cases 75 where the Supreme Court in the facts of that case, on examination of three internal reports had opined that the disciplinary authority had correctly derived satisfaction to dispense with the enquiry.

In this case, we are not called upon to address the issue whether there was sufficient cause to dispense with the enquiry invoking Article 311(2)(b) of the Constitution.

This is for the reason that the selfsame disciplinary proceeding was the subject matter of this Court's said order dated 19th November, 2008 where this Court had specifically said that the respondent can be placed under suspension and thereafter proceeded against departmentally, after making the observation that "the authority misused the power so granted to him under Article 311(2)(b) which was to be exercised sparingly and that too, in an extreme extraordinary circumstance."

When disciplinary proceedings were commenced further to this order the mandate of this order ought to have been strictly followed by the appellant. They had no power to dispense with the enquiry as long as this order was valid and binding. The disciplinary authority did not move this Court for review or modification of the order, citing extraordinary changed circumstances.

Neither any appeal was preferred from the said order.

In that view of the matter it could not have dispensed with the enquiry and pass the impugned order.

In our view, for this reason alone, the disciplinary proceeding was vitiated. We affirm the ultimate finding of the Tribunal in the impugned order dated 12th June, 2019 setting aside and quashing "the order under Book No.4778 dated 26.06.2014 and another order of the appellate authority under order No.965 dated 7th/21st March, 2016" and that  "respondent authorities are at liberty to continue departmental proceedings, complete and arrive at conclusion and issue a suitable order as considered appropriate. If the applicant was on suspension on the date of dismissal, he shall continue to remain deemed under suspension till further order passed by disciplinary authority."

The writ application is accordingly dismissed.