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Rajasthan High Court · body

1996 DIGILAW 1365 (RAJ)

Bhola Ram v. Union of India

1996-12-05

V.G.PALSHIKAR

body1996
Honble PALSHIKAR, J. – By this petition, the petitioner has challenged the order passed in revision by the Director General in purported of his powers under Rule 49 the Central Industrial Security Force Rules, 1968 (hereinafter referred to as `the Rules). (2). The petitioner was removed from service for proved misconduct and was penalised with stoppage of one increment. This penalty was confirmed in appeal. The petitioner, therefore, filed a revision before the Director General as per the provisions of the Rules. (3). While considering the revision, the Director General thought necessary to suo moto revise the order of punishment. He therefore, issued a notice asking the petitioner to show cause why the penalty should not be enhanced. This suo moto power can be exercised within a period of one year from the date of the order. (4). Assailing the order, it is submitted by the learned counsel for the petitioner that the suo moto power under Rule 49 cannot be invoked in a case where revision of an appellate order is sought by person aggrieved by the appellate order, it can be exercised only in cases where such original or appellate order comes to the notice of the Revisional Authority within a period of one year from the date of order. (5). This argument is opposed by the counsel appearing for the respondents by submitting that the manner in which an order may come to the notice of superior authority is irrelevant within a period of one year mentioned in Rule 49 commences from the date of notice and hence, the order is perfectly legal and valid. In order to appreciate the rival contention, it would necessary to consider the provisions of Rule 49, they read as under ; It will be noticed that by sub-rule (3) of Rule 49, the provisions of Rule 47 relating to appeals are applicable in revision. (6). It would therefore, be necessary to quote the provisions of Rule 47, they read as under : ``47. Consideration of appeals : (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether, in the light of the Rule 30 and having regard to the circums- tances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2). Consideration of appeals : (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether, in the light of the Rule 30 and having regard to the circums- tances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2). In the case of an appeal against an order imposing any of the penalties specified in rule 31, the Appellate Authority shall consider– (a) Whether the procedure prescribed in these Rules have been com- plied with, and if not, whether such non-compliance has resulted in violation of any provisions of the constitution or failure of justice; (b) Whether the findings are justified; and (c) Whether the penalty imposed is excessive, adequate or inadequate; and pass orders; (i) setting aside, reducing confirming or enhancing the penalty; (ii) remitted the case to the authority which imposed the penalty : or the any other authority with such direction as it may deem fit in the circumstances of the case: Provided (i) the appellate authority shall not impose any enhanced penalty which such authority is not competent to impose ; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (a) to (d) of rule 31 and an inquiry under rule 34 has not already been held in the case; the appellate authority shall subject to the provisions of the rule 34 itself hold such inquiry or direct that such enquiry be held and there after on consideration of the proceedings of such inquiry pass such orders as it may deem fit. A perusal of the Rule 47 will show that power to enhance sentence imposed as a penalty is given to the Appellate Authority and it is to be invoked only after the notice to show cause for that purpose. (7). A wholesome reading of Rule 47 and 49 disclose of a procedure of appeal and revision to be filed in the matter of punishment of an employee covered by these Rules. (7). A wholesome reading of Rule 47 and 49 disclose of a procedure of appeal and revision to be filed in the matter of punishment of an employee covered by these Rules. Rule 49 empowers a superior authority to the appellate authority to suo moto consider any order passed originally or in appellate jurisdiction by any authority subordinate to it and revising same, this can be done within a period of one year from the date of the order. In my opinion, the words ``which come to his notice appearing in Rule 49 contemplate the notice by means other than a revision application by a penalised employee because this power is to be exercised suo moto. The order sought to be revised in exercise of the powers under Rule 49, therefore, has to be an order which has come to the notice of the Revising Authority otherwise then by a representation by the person aggrieved himself and then he being Revising Authority consider it necessary to revise that order, then he may do so. Therefore, in my opinion, for proper application of the provisions of Rule 49, it is necessary that the order sought to be revised whether original or appellate, must come to the notice of the Revising Authority otherwise then by a representation or revision by the person aggrieved by the order itself, then only it can be called a suo moto revision under Rule 49 and not otherwise. In the instant case, the revision is sought by the delinquent employee and therefore, it cannot be said to be a case where suo moto power under Rule 49 to revise can be exercised. (8). Apart from that , the period of limitation prescribed for taking suo moto action is one year from the date of the order. The relevant provision reads as under: ``Which comes to his notice within a period of one year from the date of the order. (9). Therefore, for taking suo moto cognizance under Rule 49, the order sought to be revised must come to the notice of the Revising Authority within a period of one year from the date of the order. In this case, the revision application was filed on 15.12.83. against the order dated 30.3.83 which was confirmed by th Appellate Authority on 12.11.83. A show cause notice for exercise of powers under rule 49 was issued on 14.11.84. In this case, the revision application was filed on 15.12.83. against the order dated 30.3.83 which was confirmed by th Appellate Authority on 12.11.83. A show cause notice for exercise of powers under rule 49 was issued on 14.11.84. It is thus, obviously after a period of one year is over. The order came to his notice on 15.12.83 at the earliest when the revision application was submitted, the period of one year was therefore, over on 30.3.84 itself and no suo moto action could be taken under Rule 49. In the show cause notice itself, it is mentioned that the petitioner has submitted a revision petition on 15.12.83 against the order dt. 30.3.83 and the show cause notice is issued on 15.11.84. Issue of show cause notice is after the period of one year mentioned in Rule 49, is over and no order could therefore, be passed revising the earlier order of penalty. (10). In my opinion, the impugned order also cannot be sustained because it cannot be said to be an order passed suo moto, it is also unsustainable because it is passed after the period, prescribed by the Rule 49 is over. In either view of the matter, the order impugned is unsustainable. (11). In the result, the petition succeeds and is allowed. The order dt. 25.1.85 under Rule 49 by the Director General is set aside as illegal and unsustainable in law and the orders of punishment dt. 30.3.83 and 12.11.83 are restored. As a consequence of this order, the petitioner will be reinstated in service and the respondents would be at liberty to make appropriate orders regarding his fixation in service as if he was not terminated and after implementing the punishment order on 30.3.83. In so far as the grant of back wages is concerned, the petitioner should prove before the Appropriate Authority that he was not gainfully employed during that period and claim back wages if he deserves the same. There will be no order as to costs.