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Allahabad High Court · body

1985 DIGILAW 267 (ALL)

Shankar Dutt Joshi v. State of U. P.

1985-03-01

K.N.GOYAL

body1985
JUDGMENT K. N. Goyal, J. - I have heard learned counsel for the parties. 2. As agreed by the parties I proceed to dispose of the petition finally. 3. Admit. 4. The petitioner was punished after a departmental inquiry by the Assistant Regional Manager of the State Road Transport Corporation. The punishment imposed was that of removal from service. Under the Service Rules an appeal lies to the Regional Manager. The Regional Manager Sri V. P. Misra upheld the charges which were found proved against the petitioner but took a sympathetic view so far as the punishment was concerned. The petitioner had earlier put in nineteen years of service. Having regard to his long service, and the service record in its entirety, he decided to give him a fresh chance on condition that his past service would not be counted and that the reinstatement would be deemed to be a sort of fresh appointment. Sri Misra, it appears, retired one day later, even before the order could be communicated to the petitioner. His successor was not happy with the order passed by Sri Misra and referred the matter to the Managing Director of the Corporation. It appears that Sri Misra had passed orders in several other appeals as well. The Managing Director directed the cancellation of all the orders passed by Sri Misra. Thus the petitioner, when he tried to rejoin duties in pursuance of the order passed by Sri Misra, was told that the said order had already been cancelled. Aggrieved by the removal order and by the subsequent order of the Managing Director cancelling the order passed by the Regional Manager, the petitioner approached the Public Services Tribunal. Before the Tribunal he asked for stay of the order of the Managing Director cancelling the favourable order passed by the Regional Manager. The Tribunal declined to stay the same and thereupon the petitioner has come to this court under Article 226 of the Constitution. 5. It is not disputed that the Regional Manager was the appellate authority. An appellate authority can, even while upholding the guilt of the delinquent servant, reduce the punishment. By reinstating the petitioner, while depriving him of the benefit of his past services, the appellate authority in fact reduced the punishment awarded to the petitioner. 5. It is not disputed that the Regional Manager was the appellate authority. An appellate authority can, even while upholding the guilt of the delinquent servant, reduce the punishment. By reinstating the petitioner, while depriving him of the benefit of his past services, the appellate authority in fact reduced the punishment awarded to the petitioner. It is true that the order was not communicated to the petitioner but it does not follow that the successor in office of the said appellate authority had any power to review that order. This is not a case like Bachhittar Singh v. State of Punjab (AIR 1963 SC J95) in which a Minister had passed a favourable order on the file and the decision before being communicated to the official concerned was recalled by another Minister who succeeded him. In these circumstances it was held that a Minister merely advises the Governor. Before the advice was translated into an official order of the Governor and before any order authenticated under Article 166 of the Constitution could be communicated, the other Minister was competent to review the advice which was still to be accepted and was, therefore, to be treated "as provisional". In the instant case the Regional Manager was himself the deciding authority and was not merely an advising authority. Hence, the order of the Regional Manager was not provisional but final even though it may not have been communicated to the petitioner. Unless there be some provision in the rules permitting review of such an order the successor could not review it. Of course, in this case the successor has not passed an order of review on his own but has referred the matter to the Managing Director. The Managing Director is, no doubt, the chief executive of the Corporation, but it has not been suggested that he has got any powers under the rules to review the order of the appellate authority. A higher authority can revise an order passed by an appellate authority if any power of revision or review is conferred on it, as we do find in several other service rules. In the instant case, however, it has not been suggested that the Managing Director has been conferred such power of review or revision against the appellate authority's orders. In this view of the matter the order passed by the Managing Director cannot be sustained. 6. In the instant case, however, it has not been suggested that the Managing Director has been conferred such power of review or revision against the appellate authority's orders. In this view of the matter the order passed by the Managing Director cannot be sustained. 6. On an earlier date the petitioner's counsel has already stated that the petitioner did not press the challenge against the removal order. He has already made an application before the Public Service Tribunal for amendment of his petition to that extent. Thus the removal order has become final subject to the modification therein by the appellate authority. The appellate authority's decision should therefore be given effect to. 7. In the result the writ petition is allowed in part to the extent indicated above, and the order of the Managing Director, No. 4744 CHQ, 180, dated 9884 referred to in annexure3 is hereby quashed in so far as the petitioner is concerned. The claim petition preferred by the petitioner before the Tribunal thus stands finally allowed to that extent and dismissed as to the remainder. The petitioner shall be allowed to rejoin his duties. The appointing authority shall pass a fresh appointment order forthwith in terms of the order dated 29684 and it shall be effective from the date the petitioner thereafter reports for duty. No order is made as to costs. (Petition allowed partly)