vw NN§\G\ mu nm EEa ungq «Ema E. ws” "nlnlllullrl 'l:ll.I''|I|I aqwma m.m4. wmwm a: gg mq Ema mamwag.m, mmo qmqmo. n2? ma. %. mm. m 3..«ma uo‘qc ;om;n mmaqmqm4 n .. wimEa é,wmgdma wmn‘r «Emmm .umo N. mwammEQa. .@wama. w. « ~ «Ema uM w “P. “3. $ mwmmq 3..m wae” am'am mag 2. $ aga HEaEQE 3mm : 'nvllu .II I'Il‘llul"l|Iu'ln|nl.l.l .ll' g g Eqs ns iaqa ad «a a ll I.’-II-lll m i wag w wwav maq gi «3 $ E ww w in mow am ad“ 3% 33 wEo . m x 4 mnax Eag ? g Em i £ mm l'lll I I"lilI.l .l v HIGH COURT OF CHHATH$GARH : BELASPUR Single Bench: Hon’bié Shri Manirn'dfa Mohan $i‘urivasiava, J. WRaT PETiTiON is‘, No.23ssi2305 PETiTiONER U.C.Dewangan Versas Deputy Director, Veterinary and 2 others RESPGNDENTS Present: ‘ Shri R.$.Patei, courisel far the petit§onen 8hr! Bhawar PayaSi, Pane! Lawyer fer the Statelresgondents. ”mun GRDER (Passeti on ...i{£EJune, 2016) This petition iias béen fiied by ine petitioner aggrieved by order dated 13/12i97 (Annexure A-i) by wiii'ch eariier order dated 12i031’96 has been aiiegediy corrected and ciarir‘ied by epecifyi'ng that the petitioner shaii be treated as retired w.e.f. the date of hie continuance absence i.e. 20/6592. 2. Facts reievant for adjudication of controversy invoived are that the petitioner white working as Upper Division Cierk under Deputy Director, Veterinary services, Rajnandgaons remained absent from 261'05/92. This ted to initiation of departmentai inquiry which cuiininated in order dated‘12i‘03f96 (Anne‘Xure A—2) by which he was cornpuisoriiy retired from service by the Joint Director. Petitioner did not dispute nor preferred anv' departmentai statutory remedy but on the other hand, as the aver'ments in the petition are, sought impiementation of that order and payment of aii retirai dues as refiected from Te‘rments made in para 3 of the petition and memo dated 24111197 (Annexure f3), notice dated 17H “97 (Annexure A-4), memo dated 19i09i97 (Annexure A- i i . de, 5), noiice (iated O2I09l57 (Annexure A—6) and representation ciateo‘ 27/051’97 (Annexure A—‘u 0). 3. A memo dateci 12/03/97 (Ani’iexure R-4) was is3ued by Deputy Eirectar to the Joint Director stating that in order dated 12 W.e.f. which retiremen therefore be ciarit‘red so that pension case of the petitioner may be prepared and sent for sanction. Thereupon, the Joint Director passed impugneoi order on 131’”! 2i97 (Annexure A—t) by which the eariier order dated t2i03i96 was canoeiied and petitioner was treated as retired from the date of Le. 20i05i§2. {03:96 (Annexure A-2)! the date t has to take effect has ‘not been ciarifred arid the same his continuanoe absence 4. Submission of iearned counsei for the petitioner, assaiiing the iegaiity and vatidity of order dated 13;“. 2l§7 is that once the order of penaity was passed on 12i03id6, the competent disoiptinary authority, being Joint Director had no statutory authority to revtew its eartier order in the garb of correction. it is further submitted tt‘rt the Joint Director had no authority to impose the penaity of m H oornpuisonj retirement from retrospective effect and penaity couid take effect oniy from the date of passing of the order. it is aiso submitted that petitioner had submitted various ieave appiications and his absence from 20/05i§2 was not unauthorised and the entire period from 20i05i§2 tiii treated as period of duty by reguiarising period under ieave ruies as aiso payment of saiary for the intervening period. it is aiso submitted that the pensionary benefits fiowing as consequence of order dated 12/0396 are iiabie to t2i0‘3i97 is iiabie to be \x be paid to the petitioner with interest. 5. On the other hand submission of iearned counsei for respondenis is that fram 20/05i9'2 peiiiioner remained unauthorisediy Lamen‘t from aiuty and on account of this coniinuous unauthorised absence, departrnen’tai inquiry was insrirureo agarns; the petitioner Petiiioner seni iwo ie‘riers dated O4/i‘ui‘92 rAmexure R-i) and 08/07/94 (Annexure R 2) showm different reasons uor ms absence. As the petitioner ciaimed that he was meorcaiiy unfit and therefore , unabie to attend duty, vide ietter dated 03/04f95 (Annexure R-3), petitioner was required to present himseif r‘or medicai examinations before the medicai board but the petitioner never presented himself for examination. After oompietion of depaitmentai inquiry, order of punishment‘of compuisory retirement was imposed vide order dated 12l0'3i96 (IA-2), The pension case of the petitioner was aiso processed. in View of memo dated 12i03i97 \Anne'xure R-4) of the Deputy Director, vide impugned order oni‘y ciariiication was issued by which the petitioner was to be treated as ‘compuisory retired w.e.f 20/05/92. Submission of iearned counsei for respondents is that the order of punishment has not been reviewed but only ciarinoation has been issued Vide impugned order. it is further submrt‘ed that as the petitioiiei was comouisoriiy retired w.e.f. 2w05t92, in View of the provisions contained in Ruie 16 of M PICG Leave Runes 1377 the petitioner was not entitied to any ieave in respect of the reievant period. 6. From the pieadings made by the petitioner in his petition as weii as in the rejoinder, it is ciear that the petitioner did not dispute nor chaiienge the order of imposition of penaity passed on 12/03/96 thus accepted and acquiesced in the same. Petitioner rather insisted for reiease of retirai dues consequent upon imposition of penaity of oompuisory' retirement. However, iater on when vide \ impuqned order dated 13ft 9‘7 (Annexure A—i), the date of retirement ' as \ z specified as 20/0592. peiiiianer approached the- TribunaiS by fi§ing th§s petiiim. From the uncontroverieu‘ pieadmga it is clear that order dated 12IG3I96 iS in substance, order of penai’ry of compuisory‘ retirement passed by the Joint Director in exercise of statutory power as a discipiinary authority under the provisions of M.P,IC.G. Civii Services Ciassification Controi and Appeai Ruies, 1966 (henceforth “rules of 1966“). The said order prociaimed that the petitioner is compuisoriiy retired from services. in the absence of any other stipulation, the I petitioner retired compuisoriiy from the date of passing of the order. The Deputy Director however, Vide his ietter dated 12/033? (Annexure R-4) required the district authority namely Joint Director to clarify the date from which the order of punishment would take effect. This was ciearly erroneous as in the absence of any other date specified in the order, the order of punishment of compuisory retirement took effect from the date of passing of the order of punishment i.e. t2i03i96. The impugned order dated t3i1 2:97 (Annexure A—t) canceiied earlier order of punishment and specified 20i05i92 as the date of compuisory retirement by way of penalty. in the opinion of thisCourt, the impugned order in the effect and substance is the result of exercise of review of eariier order dated t2/03i§6. '7. in the matter of discipiinary inquiry against Government servant, the discipiinary authority, statutoriiy prescribed under the ruies of 1966, derives its ‘ power and authority under the Iaw‘ The nature of power exercised in the capacity as discipiinary authority is cieariy and undeniably a quasi judiciaf exercise. A quasi judiciai statutory power conferred upon discipiinary authority therefore is required to be exercised oniy in accordance with the provisions contained in the ruies of 1666 and not dehors the same. Under the statutow scheme of the ruies of 'i 966, though the discipiinary authority is invested with the pawer to impose any of the penai‘ties as specified in Ruie 10 thefeof, afier passing the finai order the discipiinaiy authority becomes; functous officio. Once an order i$ passeCi by the discipiinary authority in the departmehiai inquiry, ihe ortier passeci in 6eparimehtai inquiry can be eubjecied to appeai as proVided in Ruie 23 or review as provided uhu‘er Ruie 2g. in the present case! the remeriy of ap’peai was not avaiied by the petitioner obviousiy for the reason that petitioner accepteci the punishment of compuisory‘ retirement tiatee‘ 12iG3/Q6. The authority of reviewing the oreer passed in oiiscipiinary' inquiry couio‘ be invoked oniy in the manner as prescribed under Ruie 29 and can be exercised oniy by the authority specitied therein. The discipiinary authority i.e. the Joint Director who passed the order of punishment on 12i03i96 did not have any power to undertake an exercise in the nature of review of its eariier order dated 12i03i96 in the apsenoe of any generai or speciai order of the Governor, as envisaged under Ruie 29(1) (iv). Though an attempt has been made by the respondents to wriggie out by arguing that'impugned order dated 13ft 2i§7 oniy sought to ciarify‘ the date from which penaity of compuisory retirement was to take effect; in view of clarifications sought by the Deputy Director, it is diffiouit for this Court to accept such submission because a bare reading of impugned order dated 13i’i2/97 - i shows that eariier order of penaity has been canceiied and penaity of compuisory retirement has been imposed from retrospective effect i.e. 20i05i§2 on the finding that the petitioner was unauthorisediy absent from that date. This Court has no hesitation to hoid that in effect and substance, this was nothing but review of eariier order of penaity dated 1303/98 for which the Joint Director had no statutory sanction. Obviousiy, the Joint Director is not an authority as prescribed under Ruie 29 (i), ni) or (iii). That being so, in order to estabiish that the Joint Director was empowered to review its order, it was the burden of the respondents i t0 place on record that the Joint Director was investéci wiih the power of review by virtUé of any genera‘ or speciai order of the Governor as contempiateo under Ruie 29(1) W) of the ruies of $66. No such rnaieriar has neen pieced on record _ much iess any pieading in that regaro‘. 8. it is weil settied iaw thai in the absence of express authority or necessary iinpiication under the iaw. a quasi judicio authority oouid not review its own order. in the case of i-i.C. Surnan and another Vs. Rehabiiitation Ministry Ernpioyees‘ Cooperative House Buiio‘ing Sooiety Ltd, New Deihi and others, (1 991) 4 Supreme Court Cases. 435, it was hero — "33 ....... it is settied iaw that a quasi-judiciai order once passed and having become frnai cannot be reviewed by the authority passing that order uniess power of review has been specitioaiiy conferred. The quasi-judiciai'orde'r dated August 19, 1985, as seen above, had been passed by the Lt. Governor under Section 76 0r me Act. .No power to review such an order has been conferred by the Act. in Godde Venkateshwara Rao v.. Government of AF. an order had been passed by the government under 6ection 62 of the Andhra Pradesh Panchayat Samithies and Ziia Parishads Act, 1959, it was subsequentiy reviewed. ' The vaiidity of this order of review was in question in that case. No power of review had been conferred for review of an order passed under Section 62. What was, however, argued was that the government was competent to review that order in exercise of power conferred by Section 13 of the Madras Generai Ciauses Act, 1391. Repeiiing this argument, it was heid: :u “The iearned counsel for the State then contended that the order dated Aprii 18, 1963, couid itseif be sustained under Section 62 of the Act. Reiiance is piaced upon Section 13 'of tne Madras Generai Ciauses Act, 1891, whereunder if any power is conferred on the Government, that power may be exercised from time to time as occasion reouires. But that section cannot appiy to an order made in exercise of a quasi-judicial poWei‘. 3ection 62 of the Act confefs a power on the Government i0 caiicei or suspend ihe resoiution of a Panchayai 3amithi, in the circumS’tances mentiorued therein, afier giving an oppor‘iunity for expianation to the Panchayat Samiihi. if the Government in exercise of tiiat power canceis or confirms a resoiufion V of the Panchayat Samit'ni, qua ihat order it becomes functus omcio. Section 62, uniike Section 72, of ihe Act does not confer a power on the Government to review its orders. Therefore, there are no merits in thiS contention.“ Applying the aforesaid weii Settieo position of iaw to the uncontroverteci circumstances of the present case, i am of the opinion that the impugned order ciated 13ii2i'97 (Annexure A—i) by which the authority imposing the penaity, revieweoi its own eariier order dated 121'03/96, was in absence of their being any authority vesteci in him uno‘er ruies of 1%6 or under any generai and speciai order of the Governor as required under Ruie 29(t )(iv) of the ruies of 1966. The originai order of penalty oi 121‘03/96 had the effect of compuisorii‘y‘ retiring the petitioner from the date of order where as by subsequent impugned order dated 13ft 2i 7, the order of penaity' was modified oy providingthat the compuisory retirement shaii take effect from 20/0392. I am not going into question as to whether the said order was justihed or permissibie or whether the said order was justihed in the given facts of the case on account of continuance a’osence from 20/05/92, as it is heid by me that order dated 13ft 2/97 iac‘s jurisdiction and competence, the same is deciared nuii and void. 9. Consequenti‘y', petitioner shaii be entitied to retirai benefits on the basis of order dated 12/03/a6. in so far as petitioners ciaim for reguiarisation of the periodivof presence is concerned-it has been stated by the respondents that in View 0f the provisicns mantaiiied iii Ruie 16 of the MP1 CG. Leave R‘uies 1977, as the pefioci from 20/Galh2 ,- a is treaieé aS pericci of compuisary reiiremeni covered under penaity, the same is not aagihe l I a$ ave. Inowever, l as I have mns ne heid thai order dateo' 13/72/97 itseif was megai ano‘ wEihoui auihorily of §aw, ree‘pomients shaii consio‘er atomic-aims if arry', submiiied bv petitioner seeking reguiarisation of the intervehing perioo‘ from 20iGSiQ2 to 12/03/96, in aecordance with ihe provisions containea‘ in Leave Ruies o. r i9! —,-, I. 10. As payment of saiary for the period of absence wouid depend upon deoison by the competent authority under Leave Ruies of 1W7, i ieave it to the i authorities to decide the same white deciding petition appiication, if any, for er s rant f ieave for e period appiied for. Petition is acooro'ingiy, pamy arroweo to g o th te extent as above. There shaii be no order as to costs. . h Sd/.— Manindra Mohan Shrivastava dge Ju