SCA/2416/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2416 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= UNION OF INDIA & 3 - Petitioner(s) Versus S P GAWADE ASST. COMMISSIONER - Respondent(s) ========================================================= Appearance : MR ANSHIN H DESAI for Petitioner(s) : 1 - 4. DS AFF.NOT FILED (R) for Respondent(s) : 1, MR MS RAO for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 02/12/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates on interim relief. Both the learned advocates agree that the matter be SCA/2416/2008 2/8 JUDGMENT decided finally. In the present petition, the petitioners, Union of India & others, challenge the judgment and order dated 20th July, 2007 passed by the Central Administrative Tribunal, Ahmedabad [hereinafter referred to as “the tribunal”] in Original Application No.475 of 2006. For the act of misconduct proved against the respondent, an appraiser, employed under the respondent No.4, the Commissioner of Central Excise & Customs, the respondent was visited with punishment of reduction in pay by one stage coupled with withholding of one increment without future effect. Feeling aggrieved, the respondent preferred appeal before the appellate authority, the President of India. In consonance with the settled procedure the appeal was referred to the Government of India. Pending the said appeal, the respondent filed the Original Application No.475 of 2006 before the Tribunal. Pending the said application before the SCA/2416/2008 3/8 JUDGMENT Tribunal, by order dated 6th July, 2007, made by the appellate authority, the finding of guilt recorded against the respondent was upheld. The punishment imposed by the disciplinary authority was modified to that of “reduction to lower stage in the time scale of pay by one stage for a period of 3 years, without cumulative effect and not adversely affecting his pension.” Unaware of the aforesaid order dated 6th July, 2007, the Tribunal by impugned judgment and order dated 20th July, 2007 allowed the Original Application No.475 of 2006. The Tribunal relied upon its earlier judgment in Original Application No.165 of 2002 and Section 19(4) of the Central Administrative Tribunals Act, 1985 [hereinafter referred to as “the Act”] to hold that the entire disciplinary proceeding held against the respondent had abated. The Tribunal also held that the reference to the charge sheet dated 4th September, 2000 in the order of punishment vitiated the said order as the said charge sheet dated 4th September, 2000 had been withdrawn and a fresh charge sheet for identical charges was issued on 16th August, SCA/2416/2008 4/8 JUDGMENT 2002. In view of the said finding, the Tribunal has issued direction to the appellants to open the sealed cover and grant the benefit of promotion to the respondent. In absence of sealed cover procedure, the case of the respondent for promotion be considered by Departmental Promotion Committee within two months from the date of the order. Therefore, the present writ petition. To us, it appears that the Tribunal has committed two fold error. First in holding that the disciplinary proceeding had abated and second in holding that the order of punishment made pursuant to the charge sheet dated 4th September, 2000 after its withdrawal was vitiated. On perusal of the material on record, we find that after issuance of charge sheet on 4th September, 2000, a fresh charge sheet for the identical charges was issued on 16th August, 2002. The said charge sheet dated 16th August, 2002 was later on withdrawn by order dated 29th December, 2003. So what remained operative was the charge sheet dated 4th September, SCA/2416/2008 5/8 JUDGMENT 2000 and was rightly referred to in the order made by the disciplinary authority. Nevertheless, the Tribunal was misled to believe that it was the charge sheet dated 4th September, 2000 which was withdrawn on 29th December, 2003 and it was the charge sheet dated 16th August, 2002 which ought to have been prosecuted by the disciplinary authority. Even if the charge sheet dated 4th September, 2000 were withdrawn, a mere reference to the said charge sheet would not vitiate the inquiry or the order of punishment made by the disciplinary authority. We are also of the opinion that the Tribunal has failed to read and construe Section 19 of the Act correctly. Section 19 of the Act is a procedural enactment. It provides for applications to tribunals. Sub-section (1) thereof empowers a person aggrieved by any order pertaining to any matter within the jurisdiction of a tribunal to make application to the tribunal for the redressal of his grievance. Sub- section (2) thereof provides, inter alia, for the form in which such application should be presented. Sub-section (3) thereof empowers the tribunal to SCA/2416/2008 6/8 JUDGMENT reject such application summarily. Sub-section (4) thereof, provides that, “Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.” It is this sub-section which has been pressed into service to hold that on making the application to the Tribunal by the respondent, the whole inquiry had abated. It is evident that sub-section (4) of Section 19 of the Act has been enacted with a view to avoiding duplicity of the proceeding i.e., any proceeding taken out by an aggrieved person for redressal of his grievance under the relevant service rules, shall not proceed simultaneously with the application made before the tribunal in the same subject matter. In other words, if an aggrieved person has taken out any proceeding under the relevant service rules and thereafter he approaches SCA/2416/2008 7/8 JUDGMENT the tribunal in the same subject matter, the earlier proceeding shall stand abated. It may be noted here that it is the pending proceeding which shall stand abated and not the cause of action itself. In the present case, against the order of punishment made by the disciplinary authority, the respondent had preferred departmental appeal to the President of India under the relevant service rules. Pending the said appeal, he approached the Tribunal in above referred Original Application No.475 of 2006 to challenge the very order of punishment made by the disciplinary authority. In our opinion, the consequence of the admission of Original Application No.475 of 2006 was abatement of the appeal pending before the Government of India and not the disciplinary proceeding or the order made by the disciplinary authority which was the cause of action. For the aforesaid reasons, we allow this petition. The impugned judgment and order dated 20th July, 2007 passed by the Central Administrative Tribunal, Ahmedabad in Original Application No.475 of SCA/2416/2008 8/8 JUDGMENT 2006 is quashed and set aside. The Original Application No.475 of 2006 is remanded to the Central Administrative Tribunal, Ahmedabad for hearing and decision afresh on merits. Rule is made absolute with cost throughout. [Ms. R.M.Doshit, J.] [K.M.Thaker, J.] kdc