Judgment

ORDER: - The short point involved in this appeal by special leave from a judgment and order of the Delhi High Court dated November 20, 1980 dismissing in limine the writ petition filed by the appellant, is whether the Appellate Order passed by the Director-General, Border Roads Organisation dated October 14, 1980, is in conformity with the requirements of R. 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (Rules for short) which have been made applicable to the personnel of the Border Roads Organisation.

2. The facts are that the appellant was appointed as Supervisor (Barracks and Stores) Grade I attached to 60 Road Construction Company, General Reserve Engineering Force on probation for a period of two years by an order dated July 7, 1976. Before the expiry of, the probationary period, the Chief Engineer (Project) Dantak by an order dated June 24, 1978 terminated the services of the appellant. The order of termination however could not be served on the appellant as he absented himself without leave. Thereupon, the Officer Commanding by a movement order dated June 27, 1978 transferred the appellant to 19 Border Roads Task Force. On July 1, 1978 the Officer Commanding forwarded the order of termination issued by the Chief Engineer, but on representation by the appellant, the Director-General, Border Roads Organisation by order dated November 17, 1978 cancelled the order of termination presumably on a misapprehension that the period of probation having expired, no order of termination could be made. He however directed the taking of disciplinary action against the appellant as a deserter since he had absconded from service to evade the service of the order of termination. After a regular departmental inquiry, the appellant was served with a show cause notice under Art. 311(2) of the Constitution and after considering the representation made by him, the Chief Engineer (Project), Dantak imposed on the appellant the punishment of removal from service in exercise of the powers conferred by R. 12 read with R. 11 (viii) of the Rules with effect from June 10, 1980. Against the order of removal, the appellant preferred an appeal under R. 23 of the Rules before the Director-General, Border Roads Organisation. The Director-General by the impugned order dismissed the appeal observing:

"After thorough examination of the facts brought out in the appeal, the DGBR is of the opinion that the punishment imposed by the CE (P) Dantak vide his Order No. 10527/ 762/,EIB dated 24 June 78 was just and in accordance to the Rules applicable. He has accordingly rejected the appeal."

3. Having heard the parties, we are satisfied that in disposing of the appeal the Director-General has not applied his mind to the requirements of R. 27(2) of the Rules, the relevant provisions of which read as follows :

"27(2). In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider :

(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;

and pass orders-

(i) confirming, enhancing, reducing, or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case."

4. The word consider in R. 27(2) implies due application of mind. It is clear upon the terms of R. 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-comp