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Monday, January 19, 2015

CIVIL APPEAL NO.518 OF 2015 (ARISING OUT OF SLP(C) NO.36433 OF 2013) SEC. TO GOV. INFORMATION PUB. REL. DEP. & ORS. ...APPELLANTS VERSUS JOHN MARIA JESUDOSS ...RESPONDENT

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.518  OF  2015
                  (ARISING OUT OF SLP(C) NO.36433 OF 2013)



SEC. TO GOV. INFORMATION PUB. REL. DEP. & ORS.        ...APPELLANTS

VERSUS

JOHN MARIA JESUDOSS                                       ...RESPONDENT


J U D G M E N T

ADARSH KUMAR GOEL, J.

1.    Leave granted.
2.    This appeal has been preferred against the judgment  and  Order  dated
15th June, 2012 passed by the High Court of Madras in  Writ  Appeal  No.1099
of 2012.
3.    The respondent was  employed  as  a  Junior  Assistant  in  Government
Central  Press  since  1988.   On  15th  February,  1995,  the  disciplinary
proceedings were initiated against him alleging that he  was  not  attending
his official duties regularly, he failed to submit the personal register  to
the Superintendent and that  he  frequently  applied  for  leave,  adversely
affecting the discipline of other co-workers.
A second charge sheet dated 28th January, 1997, was served on  him  alleging
interpolation in  the  attendance  register  falsely  showing  that  he  had
attended the office on 10th January,  1997  and  that  he  left  the  office
before time unauthorisedly.  After enquiry, the charge in the  first  charge
sheet having been proved, Order dated 17th April, 1997 was  passed  removing
him from service.  It was observed in the order that  the  appellant  failed
to submit any written explanation; enquiry report  dated  19th  March,  1996
was submitted against him; a copy whereof was sent to  him  on  24th  April,
1996 to which  he  did  not  give  any  reply.   On  appeal,  the  appellate
authority vide Order dated  1st  September,  1997,  modified  the  order  of
punishment of removal from service to  reduction  of  pay  by  five  stages.
Thereafter, vide Order dated
1st December,  1997,  the  disciplinary  authority  passed  fresh  order  of
removal from service on the basis  of  second  charge  sheet  based  on  the
alleged misconduct on 10th  January,  1997  which  charge  was  held  proved
during disciplinary enquiry.  It was observed that the order of removal  was
passed on 25th June, 1997 but the same was held in abeyance  on  account  of
pendency of appeal against Order dated
17th April, 1997.  Since Order dated 17th April, 1997 had been set aside  in
appeal and the order of removal based on the second charge sheet, which  had
been kept in abeyance, was considered necessary  to  be  issued.   The  said
order was affirmed by the appellate authority on
24th February, 1998.  Against the said order, the respondent preferred  O.A.
No.4377 of 2001 before the Tamil  Nadu  Administrative  Tribunal  which  was
transferred to the High Court on abolition of the Tamil Nadu  Administrative
Tribunal in 2007 and was  registered  as  Writ  Petition  No.4446  of  2007.
Learned single Judge of the High Court allowed the  said  writ  petition  on
21st December, 2011 with back wages and all other benefits.   The  order  of
single Judge has been affirmed by the Division Bench.
4.    We have heard learned counsel for the parties.
5.    Learned counsel for the appellant  submitted  that  interference  with
the order of removal dated 1st December,  1997  was  not  justified  on  the
assumption that the order dated 1st September, 1997 was a  bar  to  pass  an
order of removal.  The said order dated 1st September,  1997  arose  out  of
the first charge sheet  dated  15th  February,  1995  relating  to  distinct
misconduct of habitually leaving  the  office  without  any  intimation  and
frequently applying for leave.  The impugned order dated 1st December,  1997
arose out of the second charge sheet dated 28th January,  1997  relating  to
misconduct on 10th January, 1997 by leaving the  office  without  permission
and tempering of official record.
6.    Learned counsel for the respondent supported the  impugned  order  and
also submitted that even if misconduct alleged in the  second  charge  sheet
was  taken  to  be   distinct,   order   of   removal   was   shocking   and
disproportionate to the charge  and  thus,  the  order  of  the  High  Court
reinstating the respondent with back wages was fully justified.
7.    We have given anxious consideration to the rival submissions.
8.    The question for consideration is whether order dated
21st December, 2011 passed by the learned Single Judge as  affirmed  by  the
Division Bench vide impugned order dated 15th  June,  2012  reinstating  the
respondent with back wages and other benefits
is justified.
9.    It will be appropriate to reproduce the misconduct alleged in the  two
charge sheets.  The alleged misconduct in the first charge sheet dated  15th
February, 1995 is as follows :
"1. The individual is not sincere in attending the official duty  and  after
signing the attendance register habitually  leave  the  office  without  any
intimation.

2. Failure to submit the personal register to the superintendent.

3.  Frequently  applying  leave.   His  sincerity   adversely   affect   the
discipline of other co-workers."

The alleged misconduct in the second charge sheet dated 28th  January,  1997
is as follows :
"1. Indulging in correction of official records to his personal advantage.

2. On coming late to  the  office  on  10.1.1997  and  without  getting  the
permission of his superior signed the running not file  for  the  attendance
register that he has attended the office.

3. After signing the register that he has attended the office  he  went  out
of the office and never returned for the whole day."

10.   It is clear from the record that the misconduct alleged  in  both  the
charge sheets is the subject matter of separate enquiries, and was  held  to
be proved.  The first order of the  disciplinary  authority  is  dated  17th
April, 1997 while the second order of the disciplinary  authority  is  dated
1st December, 1997.  The appellate order dated 1st  September,  1997  is  in
appeal against the order dated 17th April, 1997. Thus,  there  is  error  in
assuming that order dated 1st September, 1997 became final  and  conclusive,
as  regards  the  misconduct  alleged  in  the  second  charge  sheet.   The
observations in the impugned order of learned single Judge are as follows :
"In view of the disciplinary  proceedings  attained  finality  by  an  order
dated 01.09.1997 of  the  second  respondent  modifying  the  punishment  of
dismissal into one by reinstating the petitioner  in  service  and  reducing
the pay by five stages and postponement of increment  for  five  years,  the
respondents 2 and 3 have no jurisdiction to pass the impugned orders on  the
same disciplinary proceedings.  Hence, the impugned orders are liable to  be
set aside  and  accordingly,  the  same  are  quashed.   The  petitioner  is
entitled to backwages and other benefits since he was  illegally  terminated
from service.  The respondents are  directed  to  reinstate  the  petitioner
with backwages and other benefits within a period of six (6) weeks from  the
date of receipt of a copy of this order."

The above order is clearly based on erroneous assumption  that  order  dated
1st December, 1997 was in respect of the same misconduct as was  covered  by
the order dated 1st  September,  1997.   The  fact  remains  that  both  the
orders are in respect of different misconducts.  The  finding  of  proof  of
misconduct is not  under  challenge.   Faced  with  the  situation,  learned
counsel for the respondent submitted that even if a  separate  and  distinct
misconduct is proved, the order of removal could  not  be  justified  having
regard to the nature of alleged misconduct.
11.   We are of the view that while the High Court erroneously assumed  that
the order dated 1st December, 1997 was vitiated on account  of  disciplinary
proceedings having attained finality on  the  passing  of  order  dated  1st
September, 1997, what attained  finality  was  the  disciplinary  proceeding
initiated by first charge sheet and not those  initiated  by  second  charge
sheet.  Thus, distinct  punishment  in  respect  of  misconduct  covered  by
second  charge  sheet  could  be  validly  imposed.    Thus,  the  order  of
reinstatement with back  wages  and  other  benefits  cannot  be  sustained.
However, we  do  find  merit  in  the  submission  made  on  behalf  of  the
respondent that even if distinct punishment was to be imposed, it could  not
be the order of removal.  Undoubtedly, misconduct of unauthorisedly  leaving
the office has been subject matter  of  two  independent  charge  sheets  on
different  occasions  and  on  both  occasions   the   charges   have   been
established.  There is also an allegation of tempering with the  record  but
that charge also relates to covering up of the  unauthorized  absence.   The
order of punishment of  removal  from  service  was  passed  17  years  ago.
Having regard to all the facts and circumstances of the case, we are of  the
view that  the  impugned  order  of  removal  ought  to  be  set  aside  and
substituted by order of  compulsory  retirement.   We  would  have  directed
compulsory retirement from the date of removal i.e. 1st December,  1997  but
since this may be few days earlier to  completion  of  ten  years  from  and
deprive the respondent of  proportionate  terminal  benefits,  the  date  of
compulsory retirement will be  the  date  on  completion  of  ten  years  of
service.
12.   Accordingly, this appeal  is  partly  allowed  to  the  above  extent,
substituting the order of removal by order of compulsory retirement.


                    ......................................................J.
                                  (T.S. THAKUR)



                    ......................................................J.
                                  (ADARSH KUMAR GOEL)


NEW DELHI
JANUARY 16, 2015

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