UNION OF INDIA AND ORS.versusHASMUKHBHAI HIRABHAI RANA

A                           UNION OF INDIA AND ORS.
                                           v.
                         HASMUKHBHAI HIRABHAI RANA

                                NOVEMBER 23, 2006

B           [ARIJITPASAYAT ANDLOKESHWARSINGH PANTA,JJ.]


          Service Law:

          Departmental proceeding can be initiated by a person lower in rank
C   than appointing authority-But final order can only be passed by appointing
    authority or authority higher to him.

          On 1.1.1990, a letter was issued to the respondent informing him that
    on successful completion of the course, he may be offered an appointment in
D   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 ('DCM'). A charge sheet was issued on 1.6.1993
    making allegations of misappropriation. After enquiry, the DCM passed an
    order of removal from service. Respondent filed an appeal before the Appellate
    Authority which was dismissed. The Revisional Authority i.e. ADRM also
E   dismissed the revision. Respondent filed petition before the CAT praying for
    quashing of the order of removal whereby it was held that the DCM and Senior
    DCM who had acted as disciplinary authority as well as the Appellate
    Authority were lower in rank than the appointing authority. Accordingly the
    order was set aside. Aggrieved appellant filed the writ petition before the High
    Court which was dismissed.
F
          In appeal to this Court, appellant contended that the order dated 1.1.1990
    was the selection order and in fact the appointment order is dated 13.6.1990.
    Selection order was passed by the DRM while the appointment order was
    passed by the DCM who had acted as the disciplinary authority.

G         Partly allowing the appeal, the Court

          HELD: I. 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. 1350-Hl

H                                         348
          U.O.l. v. HASMUKHBHAI HIRABHAI RANA [PASAYAT, J.]               349
      State of Madhya Pradesh and Ors. v. Shardul Singh, 119701 1 SCC 108        A
and State of UP. and Anr. v. Chandrapal Singh and Anr., 12003) 4 SCC 670,
relied on.

      2. 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.   B
The distinction now sought to be made between the orders dated 1.1.1990 and
13.6.1990 does not appear to have been highlighted either before CAT or the
High Court. It is only before this Court that such a plea has been raised.
                                                                    1351-B-C)
     3. In the aforesaid background the orders of the CAT and the High Court     C
are modified to the extent that DRM can consider all relevant aspects after
granting opportunity to the respondent on the basis of the enquiry report
submitted. (351-C-DJ

       CIVIL APPELLATE JURISDICTION : Civil Appeal No.5 I 68 of2006.
                                                                                 D
     From the Judgment and Order dated i'9-3-2004 of the High Court of
Gujarat at Ahmedabad in S.C.A. No. 14944/2003.

     T.S. Doabia, Sunita Sharma, D.S. Mahra and Shreekant N. Terdal for the
Appellants.
                                                                                 E
      R. Venkataramani, Kiran Shah, Ashok Panigrahi and Satya Mitra Garg
for the Respondent.

      The Judgment of the Court was delivered by

      ARIJIT PASAYA T, J. Leave granted.                                         F
      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. I 70of1997 and Review Application No.32 of2003      G
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:
                                                                                 H
    350                      SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A          On I. I .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
B   13.6.1990 a letter was issued by the Divisional Commercial Manager (in short
    the 'DCM') Vadodara. A charge sheet was issued on l.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
C   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
D   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 dismissed.

E          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.

F         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
G   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 competen_t
H   to pass final order has been the subject matter of adjudication in many cases.
               U.O.I. v. HASMUKHBHAI HIRABHAI RANA [PASAYAT, J.]                 351
     (See State of Madhya Pradesh and Ors. v. Shardul Singh, [ 1970] I SCC 108          A
     and in State of U.P. and Anr. v. Chandrapal Singh and Anr., [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   B
     departmental proceeding. The distinction now sought to be made between the
     orders dated l.l.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         C
     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.
                                                                                        D
            Appeal is allowed to the aforesaid extent with no order as to costs.

     D.G.                                                   Appeal partly allowed .




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