IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 10494 of 2007(S) ------------------------------------- OA.631/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. AIR MARSHAL S Y SAMS, AVSM, AIR OFFICER COMMANDING IN CHIEF, HQ SAC IAF, AKKULAM, THIRUVANANTHAPURAM. 3. T.F.P.PREMKUMAR, GROUP CAPTIAN, COMMANDING OFFICER, HQ SAC IAF, AKKULAM, THIRUVANANTHAPURAM. 4. U. K. SHARMA, SQUADRON LEADER COMMANDING OFFICER, SOUTHERN AIR COMMAND UNIT, AKKULAM, THIRUVANANTHAPURAM. 5. V.K. TIWARI, INQUIRING OFFICER, WING COMMANDER, HQ SAC IAF, AKKULAM, THIRUVANANTHAPURAM. BY ADV. MR.JOHN VARGHESE, ASSISTANT SG MR.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR G RESPONDENT(S): ------------------------ K.K. BALAKRISHNAN, HOUSE NO.A.50, SREE RANGAM LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. R1 BY ADV. MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.PIRAPPANCODE V.S.SUDHIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010 , ALONG WITH WPC NO. 18915 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10494/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE OA. NO.631/2005 OF THE C.A.T. ERNAKULAM DTD. 1.8.05. P2:- COPY OF THE REPLY STATEMENT FILED BY THE PETITINERS HEREIN IN OA. 631/2005 DTD. 12.1.06. P3:- COPY OF THE ORDER OF THE C.A.T., ERNAKULAM IN OA. 631/2005 DTD. 7.3.07. TRUE COPY P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = WP.(C).No.10494 of 2007-S & WP.(C).No.18915 of 2007-S = = = = = = = = = = = = = = Dated this the 19th day of February, 2010. J U D G M E N T Thottathil B.Radhakrishnan, J. These matters arise out of OA.No.631 of 2005 of the Central Administrative Tribunal, Ernakulam Bench. That application was filed by one K.K.Balakrishnan, who was serving the Unit Run Canteen attached to the Southern Air Command Unit, Thiruvananthapuram. He stood dismissed following certain disciplinary proceedings. His departmental appeal stood rejected by a one line order. The Tribunal found that the appellate order is critic and that has to go. The appellate order was accordingly set aside. However, the Tribunal proceeded further and WP.(C).Nos.10494 & 18915/07. -: 2 :- entered certain findings on the merits/demerits of the three charges levelled against the employee and also answered some of his contentions regarding the charges and the propriety of the proceedings adopted by the disciplinary and enquiry authorities. Yet, in its order, the Tribunal directed the department appeal to be re-considered. The Tribunal being a super adjudicating authority, the departmental appellate authority who was directed to consider the appeal, would obviously be obliged, even in terms of propriety, to follow the views of the Tribunal. That would essentially hurt the entire proceedings in the appeal. The direction to consider the appeal was essentially a direction with the dice loaded against the employee. The department filed WP(C).No.10494/2007 and obtained an interim order of stay from this Court. With that order in hand, the appellate authority decided the appeal. That also went against the employee. WP.(C).Nos.10494 & 18915/07. -: 3 :- 2. The employee filed WP(C).No.18915 of 2007 challenging the order of the Tribunal. He has also produced the revised appellate decision saying that though his immediate remedy would have been to the Tribunal, no meaningful purpose would be served by that in view of the earlier directions issued by the Tribunal. 3. The employee has an institutional appeal in terms of the conditions of service. The Tribunal held that his appeal was decided as per a cryptic order. Therefore, having found that the appeal has to be decided again, the Tribunal should have excused itself from deciding any point on merits. The order of remit essentially contradicts the exercise carried out by the Tribunal to enter certain findings on merit. It pinches off the employee's right to complete and fair hearing at the hands of the appellate authority. We are, therefore, of the view that the finding of the Tribunal touching the merits/demerits of the case have WP.(C).Nos.10494 & 18915/07. -: 4 :- necessarily to be vacated to enable consideration of the appeal by the establishment. 4. However, in the interregnum, the establishment having reconsidered the appeal on the basis of the final order of the Tribunal, that subsequent order of the appellate authority which is Ext.P4 in WP(C). No.18915/2007, also deserves to be vacated under Article 226 of the Constitution of India. 5. In the result, the order of the Tribunal in OA.No.631/2005, which is challenging in both these writ petitions, are set aside. Annexure-A14 in that OA and Ext.P4 in WP(C).No.18915/2007 are set aside. The appellate authority shall decide the appeal de novo after adverting to all the contentions of the employee untrammeled by anything stated in the order of the Tribunal. The employee will also have opportunity to place materials, if any, in accordance with law. Being a matter WP.(C).Nos.10494 & 18915/07. -: 5 :- where the employee stands dismissed, let the final verdict on the appeal be issued within an outer limit of three months from the date of receipt of a copy of this Judgment. Writ petitions are, therefore, ordered as above. THOTTATHIL B.RADHAKRISHNAN (JUDGE) P.S.GOPINATHAN (JUDGE) Kvs/-