Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 938 (MP)

Prakash Kumar v. Union of India

2006-08-01

N.K.MODY

body2006
Judgment ( 1. ) PRAYER in the petition is to quash the order dated 10-7-1995 (Annexure P-18), whereby the service of the petitioner was removed from service and also to quash the order dated 12-6-2000 (Annexure P-21) passed by the Appellate Authority. ( 2. ) SHORT facts of the case are that on 15-8-1986, the petitioner was appointed on the post of Dy. SP/company Commander in CRPF and was posted at Kapporthala. At the relevant point of time, he was posted in d Battalion and was attending to his duties as assigned to him. The Officer Commanding of b Battalion was on leave. Thus, the petitioner was directed to take charge from him till he returned from leave. On account of illness of his mother, the petitioner was also required to proceed on leave. While leaving the head quarter for looking after his mother, he handed over the charge to one Harbaslal, Inspector and proceeded on leave. ( 3. ) ON account of handing over of charge by petitioner to Harbaslal, he was issued a charge sheet for a misconduct and misbehaviour mainly on the ground that charge could not have been handed over to Harbaslal, without the approval of the Competent Authority. On such charge-sheet being received by him, he submitted his reply. Inquiry was conducted against him on the charges so levelled in the show-cause notice. In the enquiry, charges were held to be proved. Thus, the Disciplinary Authority passed an order of removal from service. Against this order, petitioner preferred an appeal before respondent No. 3. Respondent No. 3 has disposed of the appeal on 17-4-1996, without assigning any reasons. Thus, the petitioner has approached this Court for quashment of the said orders as mentioned above. ( 4. ) SHOW-CAUSE notice against admission was issued to the respondents. Respondents have submitted their reply. Their contention is that petitioner could not have handed over charge to Harbaslal, without prior approval of the Competent Authority. According to them this amounted to serious misconduct for which after holding an enquiry, appropriate punishment of removal from service has been awarded to the petitioner, which calls for no interference. It is also contended that even the Appellate Authority had considered the matter from all angles and had found that there were no irregularities or lapses in the departmental enquiry conducted against the petitioner. Thus, his appeal was also dismissed. ( 5. It is also contended that even the Appellate Authority had considered the matter from all angles and had found that there were no irregularities or lapses in the departmental enquiry conducted against the petitioner. Thus, his appeal was also dismissed. ( 5. ) THE order of remand dated 10-7-1995 and the order of dismissal of appeal was challenged in writ petition before this Court which was numbered as W. P. No. 947/96 and was disposed of on 16-2-2000 with a direction to reconsider the appeal in the light of Central Civil Services (Classification, Control and Appeal) Rules, 1965 and to pass a speaking order in accordance with law. After the remand the Appellate Authority disposed of the appeal vide order dated 12-6-2000, whereby the appeal filed by the petitioner was dismissed against which the present petition has been filed. ( 6. ) SHORT point which has been raised by the petitioner is that there was clear cut direction of this Court to dispose of the appeal in the light of the provisions of Rule 27 of Rules, 1965 and to pass a speaking and reasoned order. It is submitted that from perusal of the order it is evident that the Appellate Authority has not disposed of the appeal as per Rule 27 of the Rules. On the contrary, it is mentioned in the order that as per Rule 22 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, "no appeal shall lie against any order passed by the President". Hence, the case was considered by the Appellate Authority as a review and not as an appeal. learned Counsel for the petitioner submits that the order passed by this Court was a biparte order and the respondent was at liberty to point out that Rule 27 is not applicable in the present facts and circumstances of the case. It is further submitted that even if the Competent Authority, who has passed the order Annexure P-21 was of the view that the representation submitted by the petitioner cannot be disposed of as appeal then it was the duty of the concerned officer to approach this Court for further direction, clarification or modification. ( 7. It is further submitted that even if the Competent Authority, who has passed the order Annexure P-21 was of the view that the representation submitted by the petitioner cannot be disposed of as appeal then it was the duty of the concerned officer to approach this Court for further direction, clarification or modification. ( 7. ) SHRI Vinay Zelawat, learned Counsel for the respondents submit that since the jurisdiction could not be invoked under Rule 27, therefore, the matter was examined in the light of Rule 29 of the Rules and the order is a speaking order. Rule 22 of CCS (CCA), rules reads as under: Rule 22. Orders against which no appeal lies.- Notwithstanding anything contained in this part, no appeal shall lie against- (i) any order made by the President; (ii) any order of an interlocutory nature or of the nature of a (step-in-aid of) the final disposal of a disciplinary proceeding, other than an order of suspension; (iii) any order passed by an Inquiring Authority in the course of an inquiry under Rule 14. Rule 27 of the Rules provides the appeal, while Rule 29 of the Rules provides the revision. The scope of appeal and revision are all together different. ( 8. ) SINCE direction of this Court was to consider the appeal as per Rule 27 of the Rules, therefore, it cannot be said that since the order was in the name of the President, therefore, as per Rule 22 of the Rules, appeal was not maintainable. The direction of this Court was biparte order and in the circumstances, the case of the petitioner was required to be considered as per Rule 27 of the Rules. In view of this, petition stands allowed. The order Annexure P-21, dated 12-6-2000 is set aside with a direction to dispose of the case of the petitioner in accordance with the directions given by this Court, vide order dated 16-2-2000 in W. P. No. 947/1996, within a period of six months from today. C. C. as per rules.