SCA/9486/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9486 of 2008 With SPECIAL CIVIL APPLICATION No. 10003 of 2007 For Approval and Signature: HON'BLE MR.JUSTICE A.L.DAVE HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 the civil judge ? ========================================================= UNION OF INDIA THR' DEFENCE SECRETARY & 1 - Petitioner(s) Versus SATISHCHANDRA LAXMISHANKER DAVE & 1 - Respondent(s) ========================================================= Appearance : (In Special Civil Application No.9486/2008) MR HARIN P.RAVAL, Assistant Solicitor General with MR RM CHHAYA Central Government Counsel for Petitioners MR KL DAVE for Respondent: 1 (In Special Civil Application No.10003/2007) MR KL DAVE for Petitioner MR HARIN P.RAVAL, Assistant Solicitor General with MR RM CHHAYA Central Government Counsel for Respondent:1 ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HON'BLE SMT. JUSTICE ABHILASHA KUMARI SCA/9486/2008 2/9 JUDGMENT Date : 21/07/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. On the joint request of learned advocates for the parties, “The Secretary, Union Public Service Commission” is ordered to be deleted from the cause- title of both the petitions. Rule. Learned advocate Mr.K.L.Dave waives service of Rule on behalf of respondent No.1 in Special Civil Application No.9486 of 2008. Learned Central Government Counsel Mr.R.M.Chhaya waives service of Rule on behalf of respondent No.1 in Special Civil Application No.10003 of 2007. At the request of learned advocates for the parties, the petitions are taken up for final hearing today. 2. Special Civil Application No.9486 of 2008 is preferred by the Union of India and another challenging the legality, validity and propriety of orders passed by the Central Administrative Tribunal, Ahmedabad, in Original Application No.524 of 1999 on November 27, 2003, and also the order passed in SCA/9486/2008 3/9 JUDGMENT Miscellaneous Application No.159 of 2003 dated March 20, 2006, on the ground that both the orders run contrary to the provisions of Rules applicable and the UPSC (Exemption from Consultation) Regulations, 1958, and CCS (Pension) Rules, 1972, in particular. 3. The facts of the case, emerging from Special Civil Application No.9486 of 2008, in brief, are that respondent No.1 joined the petitioners' services as Group-”B” Officer (AMEO) on May 25, 1965. He became Group-”A” Officer in May 1977 and attained the age of superannuation on August 31, 1996. 3.1 While respondent No.1 was working as Cantonment Executive Officer at MHOW Cantonment, he was transferred within five months of his posting. He, therefore, challenged the said order before a Civil Court and obtained stay against his transfer, which was challenged before the higher forum and the order of Civil Court was upheld right upto the High Court. Departmental proceedings were initiated against respondent No.1 for charges of improper working as Cantonment Estate Officer with four other SCA/9486/2008 4/9 JUDGMENT charges and he came to be suspended. After full fledged enquiry, the Enquiry Officer came to a conclusion that three of the Charges were proved against respondent No.1 and Charge No.II was not proved. It appears that ultimately the papers were placed before His Excellency the President of India and penalty of dismissal was imposed on respondent No.1. 3.2 The said action was challenged by respondent No.1 by way of filing Original Application No.195 of 1987 before the Central Administrative Tribunal, Jabalpur Bench, which, in turn, set aside the order of dismissal by order dated September 26, 1989, directing reinstatement of respondent No.1 in service while permitting de-novo enquiry in respect of charge No.IV. The said order of the Tribunal was challenged before the Apex Court in Civil Appeal No.3030 of 1990 and the Apex Court, vide order dated April 25, 1990, held that the respondent No.1 be reinstated in service within a period of one month from the date of the order, and permitted the petitioners-authorities to pass a fresh order of suspension and kept it open SCA/9486/2008 5/9 JUDGMENT to hold a de-novo inquiry under Article II and IV. 3.3 A de-novo enquiry was held by the authorities and the Enquiry Officer found that Charges No.II and IV were not proved. However, the disciplinary authority disagreed with the findings of the Enquiry Officer and came to a conclusion that respondent No.1 was guilty of Charge No.II. The disciplinary authority, by order dated January 6, 1998, imposed a penalty of 20% cut in the pension of respondent No.1 for a period of two years, since by then the respondent No.1 had reached the age of superannuation. That order was challenged by preferring Original Application No.524 of 1999 before the Central Administrative Tribunal, Ahmedabad Bench, and the Tribunal quashed and set aside the order passed in the enquiry on the ground that UPSC was not consulted and the requirements of Rule 9(i) of CCS (Pension) Rules, 1972, were not fulfilled. The Tribunal, therefore, remanded the matter requiring the petitioners to consult the UPSC before passing the orders. SCA/9486/2008 6/9 JUDGMENT 3.4 The said order was sought to be reviewed by respondent No.1 by preferring a Miscellaneous Application for a direction to the UPSC which also came to be rejected on the ground that UPSC was not a party. 3.5 Ultimately, the petitioners-authorities have approached this Court with this petition i.e. Special Civil Application No.9486 of 2008, mainly challenging the order dated November 27, 2003, passed by the Tribunal in Original Application No.524 of 1999. 4. It is also worth a note that respondent No.1 has preferred Special Civil Application No.10003 of 2007, to challenge the order dated March 20, 2006, passed by the Tribunal in Miscellaneous Application No.159 of 2005. Said petition was disposed of by an order dated April 16, 2007, whereby, a direction was given to respondents therein, i.e. the present petitioners, to take into consideration the Tribunal's judgment dated November 27, 2003, in Original Application No.524 of 1999 and to take appropriate decision, as expeditiously as possible, SCA/9486/2008 7/9 JUDGMENT and in any case, within three months from the date of receipt of the Writ of the Court. After the said order, Miscellaneous Civil Application No.2007 of 2008 was preferred by the authorities which was disposed of by order dated July 11, 2008, whereby the order dated April 16, 2007, passed in Special Civil Application No.10003 of 2007 was recalled with a direction to place both these petitions together for hearing. 5. We have heard learned Assistant Solicitor General Mr.Harin P.Raval, appearing with learned Central Government Counsel Mr.R.M.Chhaya on behalf of the Union of India and learned advocate Mr.K.L.Dave for the delinquent employee. 6. It appears that the Tribunal, while disposing of Original Application No.524 of 1999, laid emphasis mainly on the first proviso to Rule 9(i) of CCS (Pension) Rules and Extracts from OM No.38/31/86 and P & PN dated January 1, 1987, from the Department of Pension and Pension Welfare. It also appears that the Tribunal did not take into SCA/9486/2008 8/9 JUDGMENT consideration the provisions contained in Rule 5 of UPSC (Exemption from Consultation) Regulations, 1958, particularly sub-rule (2) thereof. 7. On the above factual aspect, there is no dispute. Learned advocate Mr.Dave contended that the authorities are coming up with this defence at a very belated stage. However, the plea raised by the petitioners-authorities is purely a legal plea and ought to have been considered by the Tribunal. We are, therefore, of the view that the order of the Tribunal on merits cannot be upheld and deserves to be set aside. The matter requires re-consideration in the light of the provisions contained in Rule 5(2) of the UPSC (Exemption from Consultation) Regulations, 1958. 8. We, therefore, set aside the order passed by the Central Administrative Tribunal, Ahmedabad, in Original Application No.524 of 1999, on November 27, 2003, and remand the matter to the Tribunal with a direction to consider the whole issue afresh in the light of Rule 5 of the UPSC (Exemption from SCA/9486/2008 9/9 JUDGMENT Consultation) Regulations, 1958, in accordance with law, without being influenced by this order. The Tribunal shall decide the matter as expeditiously as possible, preferably within a period of six months from the date of receipt of the Writ of this Court. Rule is made absolute accordingly. No costs. 9. Special Civil Application No.10003 of 2007 also would stand disposed of in the light of the above order. Rule is discharged. No costs. (A.L.Dave, J.) (Smt.Abhilasha Kumari, J.) (sunil)