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2020 DIGILAW 37 (GAU)

Bimalendu Gupta v. Union Of India

2020-01-08

AJAI LAMBA, SOUMITRA SAIKIA

body2020
JUDGMENT Ajai Lamba, C.J. - The review application dated 01.08.2019 has been filed against judgment & order dated 04.02.2012 rendered in WP(C) No.2166/2011. It is, therefore, evident that the review petition has been filed after a delay of more than 7 years and 5 months. 2. Learned arguing counsel for the review petitioner has not appeared. Mr. T.A. Choudhury, proxy counsel is present in Court and has stated that the earlier counsel has been changed by the review petitioner. The new counsel is required to appear. 3. We have referred to the order-sheet. Order dated 27.11.2019 reads as under:- 'Learned counsel for the petitioner states that new counsel has been engaged to address arguments. List on 8 th January, 2020 .' It is evident that despite opportunity having been given, even today the arguing counsel has not appeared. 4. We find that even on 20.09.2019, prayer for adjournment was made, which was granted. We find no justification in adjourning this Review Petition, hence we hereby dispose of the same. 5. We find that against the order rendered by the Writ Court dated 04.02.2012, petitioner approached the Honble Supreme Court of India by way of filing Special Leave to Appeal (Civil) No.26085/2012. The said case was dismissed by the Honble Supreme Court of India, finding no merit. The order is available on record. 6. On going through the bulky review application, we find that the same issue as raised before the Writ Court in regard to the competence of the disciplinary authority to proceed against the petitioner, has been raised. Other than that, it has been pleaded that number of other issues were raised by virtue of the writ petition, however, have not been dealt with by the Writ Court. 7. The Court ordinarily is required to deal with the issues raised and pressed in the course of arguments. Each and every plea in a petition, without contention in the course of hearing, is not required to be dealt with. So far as the competence of the authority is concerned, we extract herein below the relevant portion from the judgment under review:- '11. We have duly extended our cautious consideration to the rival pleadings as well as the arguments advanced. So far as the competence of the authority is concerned, we extract herein below the relevant portion from the judgment under review:- '11. We have duly extended our cautious consideration to the rival pleadings as well as the arguments advanced. That the post of the Senior Accountant in the office of the Accountant General (A&E), Assam, Guwahati, is a Group-C post of the General Central Service governed by the Rules is a matter of record. Rule 12 (2) (b) ordains that any of the penalties specified in Rule 11 may be imposed on a person appointed to a Central Civil Post included in the General Central Service by the authorities specified in that behalf by a general or special order of the President or where no such order has been made, by the Appointing Authority or the authority specified. In the Schedule referred to hereinabove vis-a-vis Group-C posts in non Secretariat Office other than the one in respect of which specific provision has been made, by a general or special order of the President, the Appointing Authority and the Disciplinary Authority of the incumbents thereof are the Head of the Office and in case such Head of Office is subordinate to a Head of Department under the Ministry or Department of Government, such Head of Department. If the Head of the Office is himself, the head of Department, or is not subordinate to any Head of Department, the Secretary in the Ministry or Department of Government would be the appellate authority. 12. In Clause 1.12 of the said Standing Orders (Vol-I), reference to a list of all the field offices has been enumerated in Annexure-I to the Chapter. This list discloses the Office of the Accountant General (A&E), Assam, Guwahati and Branch Office at Shillong to be one of the Civil Audit of Accounts Offices. 13. As adverted to hereinabove in the Schedule to the Rules, vis-a-vis Group-C post in General Central Service, the appointing authority and the disciplinary authority has been identified to be the Head of the Office, who is authorized to award of penalties with the rider that if such Head of Office is subordinate to a Head of Department under the Ministry or Department of Government, than the Appellate Authority would be the latter i.e. the Head of Department. Further, if the Head of Office is himself the Head of Department, the Appellate Authority in such an eventuality would be Secretary in the Ministry or Department of Government. 14. S.O. NO.2815, dated 13.09.1988 published in the Gazette dated 24.09.1988 of the Gazette of India in the exercise of the powers under the provisions of the Rules as referred to therein discloses that His Excellency, the President of India, in consultation with the Comptroller and Auditor General of India had specified the Appointing/Disciplinary/Appellate Authorities vis-a-vis the Group-B, Group-C and Group-D posts in the General Central Service. In terms of this notification, for all Group-C posts, the Appointing/Disciplinary Authority is the Senior Deputy Accountant General/Deputy Accountant General/ Officers of equivalent rank are empowered to award all penalties, the Appellate Authority being the Head of the Department in the rank of Principal Accountant General/Accountant General. These entries, as would appear from a comparative study have been replicated in Section E of the Standing Orders (Vol-II), dealing with General Central Service relating to the Indian Audit and Accounts Department. In this view of the matter, in absence of any overwhelming material to the contrary, we are inclined to hold that vis-a-vis the petitioner, who at the relevant time was holding a Group-C post under the General Central Service, the Appointing/Disciplinary Authority could be the Senior Deputy Accountant General/Deputy Accountant General/Officers. 15. Additionally, his appointment letter, available on records also discloses the Senior Deputy Accountant General (Admn) to be his appointing authority. In that view of the matter, in the above backdrop of the relevant provisions of the Rules and the Standing Orders, we are of the unhesitant opinion that this authority could have and did validly initiate the departmental proceeding against him and finally award the penalty of removal under the Rules. As a corollary, the Accountant General did legally act as the Appellate Authority. The plea of want of authority of the aforementioned authorities as perceived by the petitioner is thus untenable in law and on facts. We respectfully, concur with the conclusion recorded by the learned Tribunal in this regard. No other plea having been raised as indicated hereinabove, we find no substance in the challenge. The petition lacks in merit and is dismissed. No costs.' (Emphasised by us) 8. Considering the above extracted portion, we find that the plea raised by the petitioner has been duly dealt with, and rejected. No other plea having been raised as indicated hereinabove, we find no substance in the challenge. The petition lacks in merit and is dismissed. No costs.' (Emphasised by us) 8. Considering the above extracted portion, we find that the plea raised by the petitioner has been duly dealt with, and rejected. 9. We find no ground to review the judgment. The review petition is frivolous, other than the fact that it is highly belated. Every lis must have a terminus. 10. With the above observation, the review petition is dismissed.