1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5074 OF 2004 B. Ram ...... Petitioner. V/s Union of India & Ors. ...... Respondents. ----- Mr. S.V. Marne for the Petitioner. Mr. S.S. Pakale with Mr. D.A. Dubey for the respondents. ----- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 25th March, 2008 P.C.: 1. By this Petition, the petitioner challenges the order dated 10th October 2003 passed by the Central Administrative Tribunal in Original Application Nos. 845 of 2000 and 123 of 2001. 2. The facts which are material and relevant are that the petitioner was in the service of the Government of India as a Superintendent of Customs. A departmental inquiry was held against the petitioner on the allegation that he is guilty of misconduct. After holding inquiry, the Inquiry Officer submitted a report, reporting that he does not find the petitioner guilty of any of the charges. The Disciplinary Authority did not agree with the conclusion of the Inquiry 2 Officer. The Disciplinary Authority, therefore, remanded the matter back to the Inquiry Officer and asked him to examine two more witnesses. Again, a report was submitted by the Inquiry Officer, holding that none of the charges have been proved against the petitioner. The Disciplinary Authority, without issuing show cause notice, as required by law, to the delinquent to show cause why the Disciplinary Authority should not disagree with the finding of the Inquiry Officer, made an order dated 11/04/1985 dismissing the petitioner from service. That order was challenged by the petitioner before the appellate authority. Appeal was rejected on 14/02/1989. Against that order, Original Application was filed before Central Administrative Tribunal, challenging the dismissal order. That Original Application was decided by order dated 17/03/1999. The operative part of the order is relevant. It reads as under:- "8. In the result, the application is allowed. The Impugned orders of the Appellate Authority dated 14/2/89 and the order of Disciplinary Authority dated 11/4/85 are hereby quashed and set aside. The matter is remanded to Disciplinary Authority to pass a fresh order after giving show cause notice to the applicant, etc as per observations made in paras-7 & 8 above. In the circumstances, we direct the 3 Disciplinary Authority to pass a fresh order in the light of the observations made in this order expeditiously preferably within six months from the date of receipt of this order. All the contentions on merits are left open. No costs." By the said order, the Central Administrative Tribunal set aside the order of the Disciplinary Authority dated 11/04/1985 dismissing the petitioner from service as also the order of the appellate authority confirming that order. The matter was remanded back to the Disciplinary Authority for fresh order after giving show cause notice to the petitioner. This order, as observed above, is dated 17/03/1999. A show cause notice was issued to the petitioner on 25/5/1999, asking him to show cause why Disciplinary Authority should not disagree with the conclusion reached by the Inquiry Officer. On receiving the show cause notice, the petitioner addressed a representation to the Disciplinary Authority dated 21/06/1999, pointing out therein that by the order of the Central Administrative Tribunal dated 17/03/1999, the order dismissing him from service has been set aside and, therefore, he has become entitled to subsistence allowance from the date of his dismissal i.e. 11/04/1985 and he has also become entitled to provisional pension from the date of his retirement i.e. 31/07/1988 and that neither he has been 4 paid any subsistence allowance nor any pension and, therefore, he should be paid his subsistence allowance and provisional pension and then he would submit his explanation to the show cause notice. This representation was received by the Disciplinary Authority. The Disciplinary Authority neither made payment nor gave any reply rejecting the representation submitted by the Petitioner and the Disciplinary Authority made its order pursuant to the show cause notice on 15/03/2000. The Disciplinary Authority, surprisingly, treated the representation submitted by the petitioner dated 21/06/1999 as his reply to the show cause notice and disagreed with the recommendation of the Inquiry Officer and imposed punishment of withholding of entire pension of the petitioner. Feeling aggrieved by the order imposing punishment of withholding the entire pension, the petitioner filed two Original Applications; one was Original Application challenging the punishment of withholding of entire pension and the other Original Application was for payment to the petitioner of the subsistence allowance till the date of retirement as also the provisional pension from the date of retirement till the date on which the Disciplinary Authority made the order imposing penalty. Both these Original Applications have been decided by a common order dated 10/10/2003. The Original Application of the petitioner against the penalty order has been dismissed and it was held that the petitioner has become entitled to provisional pension from the date of the remand order till the date on which the order withholding the 5 entire pension was passed. It is this common order which is challenged in this Petition. 3. The learned Counsel appearing on behalf of the petitioner submits that the petitioner was dismissed from service on 11/04/1985. During the pendency of his appeal before the appellate authority, he retired from service on 31/07/1988. The moment Central Administrative Tribunal by order dated 17/03/1999 sets aside the order imposing punishment, the consequence in law is that the petitioner would stand reinstated in service from the date of dismissal i.e. 11/04/1985 and, therefore, by virtue of provision 54-A of the Fundamental Rules, even if the petitioner is deemed to be under suspension, he would be entitled to get subsistence allowance for the period from 11/04/1985 till the date of his retirement on 31/07/1988 and for the period from 31/07/1988 till the fresh order imposing punishment is made on him, he would be entitled to provisional pension. According to the learned Counsel, therefore, the petitioner was justified in making representation, demanding payment before he submits his explanation. On the petitioner submitting his representation dated 21/06/1999, two courses were open to the Disciplinary Authority i.e. either to make payment and direct the petitioner to submit his explanation or to reject the representation and direct the petitioner to submit his explanation. The Disciplinary Authority did neither. Instead, it treated the representation of the petitioner as a reply to the show cause notice and imposed 6 punishment. According to the learned Counsel, therefore, the course adopted by the Disciplinary Authority is violative of the principles of natural justice. So far as the order of the Central Administrative Tribunal is concerned, the CAT totally misdirected itself in considering this question. The Central Administrative Tribunal in para 8 of its order has observed that the petitioner chose not to give any reply to the show cause notice. According to the learned Counsel, therefore, the order imposing penalty against the petitioner is totally violative of principles of natural justice and, therefore, it is liable to be set aside. 4. The learned Counsel appearing on behalf of the respondents, on the other hand, does not dispute that as a consequence of the order dated 17/03/1999, the petitioner would be deemed to be under suspension from 11/04/1985 but, according to him, as the petitioner stood retired on 31/07/1988, it cannot be said that he was entitled to any benefit. We have also heard the learned Counsel on the other aspects submitted by the learned Counsel for the petitioner. 5. Now, in the light of these rival submissions if the record of the case is perused, it becomes clear from the operative part of the order of the Central Administrative Tribunal dated 17/03/1999 quoted above that the Central Administrative Tribunal set aside the order dated 11/04/1985 whereby the petitioner was dismissed from service. The consequence of 7 that order would be that the petitioner would stand reinstated in service on 11/04/1985 and he would be deemed to be in service from 11/04/1985 till 31/07/1988 when he retired. Because of the provision of the above mentioned Fundamental Rule, even if the petitioner is deemed to be under suspension, he would definitely be entitled to subsistence allowance till he reached the age of superannuation and he would also be entitled to the provisional pension from the date of retirement and, therefore, the petitioner was justified in claiming payment before he submits his reply to the show cause notice. The situation of the petitioner in 1999 was that from 1985 despite the order imposing penalty on him being set aside, he was neither paid his salary nor subsistence allowance. He was also not paid any pension. If an employee, in such a situation, asks for payment before he submits his reply, in our opinion, it cannot be said that it is an unreasonable stand taken by him. In our opinion, minimum that was expected of the Disciplinary Authority was to consider the representation dated 21/06/1999 and either to make payment if according to the Disciplinary Authority he was entitled to the payment or to inform the petitioner that he was not entitled to payment and that if he wants to submit his reply he should submit his reply to the show cause notice. Under no circumstances, the representation submitted by the petitioner dated 21/06/1999 could be treated as his explanation to the show cause notice. Perusal of the order passed by the Disciplinary Authority, especially 8 para 3 of that order shows that the Disciplinary Authority treated the representation submitted by the petitioner dated 21/06/1999 as his reply and passed the order imposing penalty. When this was pointed out to the Central Administrative Tribunal, the CAT did not consider whether the petitioner was justified in not filing reply and observed that after receiving the show cause notice, the petitioner has chosen not to file his reply. In our opinion, the approach of the Central Administrative Tribunal was absolutely wrong. It was for the Central Administrative Tribunal to consider whether the petitioner was justified in withholding his reply. It is only if the Central Administrative Tribunal had found that the petitioner was not justified in withholding his reply then only the CAT could have dismissed the Original Application filed by the petitioner against the order imposing penalty, otherwise the only course open for the CAT was to set aside the order imposing the penalty. We find that the order imposing punishment on the petitioner is made in breach of the principles of natural justice and, therefore, is liable to be set aside. Though it is true that we propose to set aside the order imposing punishment as it has been made in breach of the principles of natural justice, considering the proceedings to which the petitioner has been subjected to right from 1971, in our opinion, it would be in the interest of justice to put a full stop to further proceedings. We find that it would be unjust to make the petitioner suffer further. In our opinion, therefore, the following order would meet the ends of justice:- 9 O R D E R The order of the Central Administrative Tribunal impugned in the Petition is set aside. The order of the disciplinary authority dated 15/03/2000 imposing punishment and withholding entire pension of the petitioner is set aside. Respondents are directed to make all consequential payments to which the petitioner becomes entitled as a consequence of this order as expeditiously as possible, in any case within a period of three months from today. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (V.M. KANADE, J.) 10