IMPORTANT POINT
Authority higher than the appointing authority would also be the designated authority for purpose of Art. 311 of the Constitution of India and if right of appeal is not embellished, an authority higher than appointing authority may also act as a disciplinary authority.

Headnote:(i) SERVICE LAW—Constitution of India—Art. 311 Clause (2)—Appellant working as a Sub-Post Master was found guilty in departmental inquiry—Punishment of compulsory retirement from service—Central Administrative set aside the punishment holding that Superintendent of Post Offices being the designated disciplinary authority, imposition of a major penalty by Director of Postal Services was illegal—High Court reversed the judgment—Appeal—No embargo in terms of Art. 311(2) of the Constitution that a higher authority would not act as a disciplinary authority—Appellant was not deprived of opportunity of preferring appeal—Appellant was in no manner prejudiced and impugned judgment could not be faulted with.
       Held : The Tribunal, in arriving at a finding that the Superintendent of Post Offices being the designated authority the order of punishment could not be imposed upon the Appellant by the Director of Postal Services, relied upon a decision of the Central Administrative Tribunal in K.P. Varghese v. DPS Calicut and others, [(1992) 19 ATC, CAT Ernakulam]. However, in that case, by reason of the action on the part of the said higher authority as a disciplinary authority, the delinquent officer was deprived of the forum of appeal. Such is not the position here. Clause (2) of Article 311 of the Constitution of India puts an embargo upon passing of an order of dismissal, removal or reduction of rank in services by an authority below the rank of the appointing authority. There does not appear to be an embargo in terms of the said provision that a higher authority would not act as a disciplinary authority. In the instant case, the Appellant has not been deprived of an opportunity of preferring an appeal against the order of the Director of Postal Services. He admittedly preferred an appeal before the Post Master General which was duly considered. In a matter of this nature, it would be obligatory on the part of the delinquent officer to show prejudice.(Para 12)
       We, in this case, are not concerned, as regard the concept of the designated authority. If an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do the same but in a case of this nature where clause (2) of Article 311 of the Constitution of India envisages that a delinquent officer should not be imposed with major penalties save and except an order passed by the appointing authority, the latter becomes the designated authority. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution of India. Even the appellate authority can impose a punishment subject, of course, to the condition that by reason thereof the delinquent officer should not be deprived of a right of appeal in view of the fact that the right of appeal is a statutory right. However, if such right of appeal is not embellished, an authority higher than the appointing authority may also act as a disciplinary authority.(Paras 17 and 18)
       (ii) SERVICE LAW—Punishment of compulsory retirement—Compliance of principles of natural justice—If there was substantial compliance of procedure contained in Article 311(2) of the Constitution of India, Court might not interfere.
       Held : It is, therefore, evident that the Appellant merely asked for a copy of the original document. He had made no grievance that no copy of the said document has been supplied to him as a result whereof he was prejudiced. There could not have been any confusion about the identity of the lady as the same was a matter of record in view of the fact that a lady who had paid him a sum of Rs. 5000/- for issuance of Kisan Vikas Patra, the name of buyer whereof was borne out from the records. Only because the SDI (Posts) in his report had made a mistake in spelling the name of the complainant, the same by itself would not mean that the identity of the complainant was in dispute. Even if the same was in dispute it was open to the Appellant to cross-examine the witnesses in that behalf. It is not the case of the Appellant that such cross-examination was effected. In terms of Article 311(2) of the Constitution of India, the procedural requirements which were required to be followed were as under :
       (i)opportunity to the concerned officer to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such charges are based;
       (ii)he must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf; and
       (iii)he must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him.
       It is well-settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311(2) of the Constitution of India in view of the decision of this Court in Khem Chand v. Union of India [(1958) SCR 1081] are held to be as a part of the principle of natural justice. The courts in the aforementioned situation are required to see as to whether non-observance of any of the said principles in a given case has resulted in denial of justice. If there had been substantial compliance of the procedure, the court may not interfere.(Paras 24 to 26)
       (iii) SERVICE LAW—Quantum of punishment—Punishment of compulsory retirement—Temporary defalcation of Rs. 5000/- of a customer by appellant, a Deputy Post Master—Punishment called for no interference. (Paras 27 & 28)

JUDGMENT

S.B. Sinha, J.—The Appellant was working as a Sub-Post Master Marrimandal. A departmental proceeding was initiated against him by the Superintendent of Post Offices, Hanamkonda wherefor a chargesheet was issued on 13.8.1992. An Enquiry Officer was appointed. He was found guilty of commission of the first charge and a part of third charge but he was exonerated in respect of the second charge.

2. Although the chargesheet was issued by the Superintendent of Post Offices although he was otherwise the disciplinary authority in respect of the Appellant, but as he was appointed to the Lower Selection Grade by the Director of Postal Services in the year 1983 prior to divisionalisation of Lower Selection Grade Cadre which took place from July, 1989, upon completion of the enquiry, the records were forwarded to the Director of Postal Services being the appointing authority. As the Director of Postal Services was both appointing and disciplinary authority in respect of the Appellant herein, he took into consideration the aforementioned report of the Enquiry Officer and by an order dated 7.3.1994 imposed a punishment of compulsory retirement of the Appellant from services. He preferred an appeal thereagainst before the Post Master General which was dismissed by an order dated 8.4.1994. An Original Application thereafter was filed by the Appellant before the Central Administrative Tribunal, which was allowed.

3. The contentions of the Appellant before the said Tribunal were :

(i)The Superintendent of Post Offices being the designated disciplinary authority, the imposition of a major penalty by the Director of Postal Services was illegal.

(ii)The enquiry report was vitiated in law as the Enquiry Officer acted in a post-haste manner in proceeding to hold the enquiry without giving proper opportunities to the Appellant to appoint an officer to assist him in the departmental enquiry as a result whereof he was gravely prejudiced.

(iii)An additional document, a copy whereof had not been annexed with the chargesheet was taken into consideration while examining a witness.

(iv)So far as third charge is concerned, only purported negligence on his part, having been proved, the quantum of punishment was disproportionate to the gravity of misconduct.

4. The Central Administrative Tribunal by an order dated 13.8.1997 allowed the said original application holding :

(i)The disciplinary authority who passed the order of compulsory retirement had no jurisdiction and the order passed was improper without following the procedure.

(ii)Certain documents were supplied to the Appellant during the time when one of the witnesses was being examined on behalf of the department, which was impermissible in law.

(iii)The documents on which reliance was placed contained certain anomalies as regard the names of the signatory.

5. The Respondent herein aggrieved by and dissatisfied therewith filed a writ petition which by reason of the impugned judgment dated 31.3.2003 has been allowed.

6. Dr. Kailashnath Pillai, learned counsel appearing on behalf of the Appellant would submit that the High Court committed a serious error in setting aside the well-reasoned judgment of the Tribunal. It was further submitted that as the Appellant was entitled to have the assistance of the government servant, although 10 days’ time had been initially granted therefore, when the Appellant prayed for 15 days’ further time, the same was refused as a result whereof the Appellant was gravely prejudiced. A copy of the additional document which was not supplied to him was taken in evidence when the main witness was being examined during the course of enquiry which was contrary to Rules 14(11) and 14(15) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (‘the Rules’). As the identity of the lady on whose complaint the proceeding was initiated had not been conclusively determined in view the fact that the Sub-Divisional Inspector (SDI) (Posts) during a preliminary enquiry reco

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2006 Supreme(SC) 270

IMPORTANT POINT Authority higher than the appointing authority would also be the designated authority for purpose of Art. 311 of the Constitution of India and if right of appeal is not embellished, an authority higher than appointing authority may also act as a disciplinary authority.

Cases Referred (11)

IMPORTANT POINT
Authority higher than the appointing authority would also be the designated authority for purpose of Art. 311 of the Constitution of India and if right of appeal is not embellished, an authority higher than appointing authority may also act as a disciplinary authority.