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2015 DIGILAW 447 (JK)

Union of India v. Chain Lal

2015-08-28

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasanthakumar, CJ:- 1. This appeal is filed by Union of India against the order dated 23.05.2008 made in SWP No. 411/21995 wherein the respondent has challenged the order of dismissal dated 22.03.1995 and prayed for direction to reinstate him in service with all benefits. 2. The case focused before the learned Single Judge was that while the respondent was posted as Havaldar Clerk in Srinagar in the year 1989 some pilferage of milk powder was detected. On this the appellants ordered convening of Court of Inquiry at Leh as the supply was to be given to Depot at Leh. The allegation was that the milk powder was replaced with Atta. The Court of Inquiry was conducted and its opinion was also placed before the appellants. It was found that the respondent, with intend to defraud, included 0.500 tonnes of Atta in place of milk powder in a consignment of 5.060 Tonnes of milk powder dispatched to Field Supply Depot Leh. Summary General Court Martial was convened to try the respondent, however, the same was dissolved on 18.06.1993 as it was felt not expedient and impracticable due to non-availability of essential witnesses. The Commander thereafter directed that administrative action may be initiated under the Army Act read with Army Rules. 3. A show cause notice was issued to the respondent, mentioning the allegations in January, 1994 and the same was challenged by the respondent in SWP No. 275/1994 which was disposed of, holding that the writ petition was premature and the respondent was directed to explain the circumstances. The respondent submitted his reply to the show cause notice and thereafter the order of dismissal was passed on 22.03.1995. The said order was challenged on various grounds including the violation of Rule 17 of the Army Rules, 1954 and for not following the procedure by issuing charge memo and conducting enquiry if the charges are denied. The respondent had denied the charges, however, the order of dismissal was passed without considering the explanation submitted except by stating that the authority is not satisfied with the explanation submitted. The respondent had denied the charges, however, the order of dismissal was passed without considering the explanation submitted except by stating that the authority is not satisfied with the explanation submitted. In the dismissal order the charges mentioned in the show cause notice alone is extracted and merely by stating that the authority is not satisfied with the explanation, in exercise of powers under Section 23 of the Army Act, 1954 read with Rule 17 of the Army Rules 1954, the respondent was dismissed from service from 04.04.1995. 4. The learned Single Judge, taking note of the fact that no consideration was made in the explanation submitted by the respondent and the authority having passed the order as a quasi judicial authority, following the judgment of Hon’ble the Supreme Court reported in AIR 1990 SC 1984 (S. N. Mukherji v. Union of India), allowed the writ petition and set aside the order of dismissal. 5. The learned counsel appearing for the appellants argued that even if the procedure is not followed and on that basis the dismissal order is to be set aside, the learned Single Judge should have granted liberty to the appellants to consider the explanation already submitted and pass speaking order. 6. When such a request was made this Court requested the learned counsel for the appellants to get the service details of the respondent to ascertain as to whether the respondent is in service or has reached the age of superannuation. The appellants have furnished the following details of the respondent:- Date of Birth: 15.11.1956. Date of appointment: 11.10.1975. Numbers of years of service Rendered at the time of Dismissal: 19 yrs and 176 days. The total service available to the respondent was 24 years as he was in the rank of Havildar and the remaining service as on the date of dismissal was 4 years and 210 days, i.e. he could have served till 31.10.1999. 7. Numbers of years of service Rendered at the time of Dismissal: 19 yrs and 176 days. The total service available to the respondent was 24 years as he was in the rank of Havildar and the remaining service as on the date of dismissal was 4 years and 210 days, i.e. he could have served till 31.10.1999. 7. The learned counsel appearing for the respondent, based on the information furnished by the appellants, submitted that respondent has already reached the age of superannuation on 31.10.1999 and after the date of dismissal more than 20 years have passed, and, even if liberty is granted to the appellants to conduct the enquiry and proceed further, the respondent may not be in a position to recollect all the facts and the same would cause serious prejudice to him and, therefore, the request of the learned counsel for the appellants, seeking liberty at this juncture cannot be countenanced. 8. We have considered the rival submissions and perused the materials on record. 9. It is not in dispute that respondent served as Havaldar for 19 years and 176 days. The respondent was issued a show cause notice alleging two charges for which he has submitted detailed reply. While passing the order of dismissal his reply was not at all considered except by stating that the same is not acceptable. The dismissal order having been passed on the allegations and the same having been denied by the respondent, the Disciplinary authority is bound to consider each and every plea raised in the show cause notice and the reply submitted and if not satisfied is bound to conduct an enquiry before passing the order of dismissal. 10. The learned Single Judge has considered the said aspect and by relying on the judgment of Hon’ble the Supreme Court in AIR 1990 SC 1984 (supra) has set aside the order of dismissal. Hon’ble the Supreme Court in paragraph 35 of this judgment has held thus:- “35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re-cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” 11. Hon’ble the Supreme Court in the decision reported in (2010) 2 SCC 497 (G. Vallikumari v. Andhra Education Society and ors) held thus: “………The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.” 12. Even on 23.05.2008, when the writ petition was allowed, the respondent could not be in employment as his date of superannuation was 31.10.1999. Noticing the said fact only the learned Single Judge has not granted the liberty and the same was also not prayed for by the learned counsel appearing for the appellants before the learned Single Judge. Even on 23.05.2008, when the writ petition was allowed, the respondent could not be in employment as his date of superannuation was 31.10.1999. Noticing the said fact only the learned Single Judge has not granted the liberty and the same was also not prayed for by the learned counsel appearing for the appellants before the learned Single Judge. Hence the plea raised by the learned counsel for the appellants that liberty be granted to the appellants to conduct enquiry at this distance of time, cannot be granted on the facts and circumstances of this case. 13. Consequently the writ appeal is dismissed. No costs. 14. The appellants are directed to pay the benefits to which the respondent is entitled to within three months from the date of receipt of copy of this order.