UNION OF INDIA Vs. YOGITA SWAROOP

JUDGEMENT

(1.) IN this writ petition, the order dated 14.11.2011 passed in O.A.No.504/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as ,,the Tribunal) is under challenge. The impugned order dated 14.11.2011 is itself a second round of litigation. IN the first round, the Tribunal itself had remitted the matter to the Disciplinary Authority for reviewing the case from the angle of proportionality of the penalty.

(2.) THE main plea before the Tribunal in the second round was that the respondent No.1 was prejudiced by non-supply of the UPSC advice dated 18.11.2009, which had been relied upon in the penalty order dated 26.11.2009. On behalf of the petitioner herein, reliance was placed on the decision of the Supreme Court in the case of Union of India v. T.V.Patel: 2007 (4) SCC 785. However, the Tribunal noted that there was a subsequent decision of the Supreme Court in the case of Union of India & Others v. S.K.Kapoor: 2011 (4) SCC 589 in which the decision of Union of India v. T.V.Patel (supra) had been held to be per incuriam. THE relevant portion of the decision in Union of India & Others v. S.K.Kapoor (supra), is as under:-

(3.) IT is apparent that the advice of the UPSC has specifically been considered and the conclusion has been arrived at that the advice of the UPSC, insofar as the respondent No.1 is concerned, ought to be accepted. IT is apparent that the advice of the UPSC has been relied upon entirely. The fact that the UPSC advice was not given to the respondent prior to the order dated 26.11.2009 being passed clearly indicates that she has been denied an opportunity to make a representation against the said advice and to submit her point of view. Consequently, insofar as the question of prejudice is concerned, it is writ large in the facts and circumstances of this case. The Tribunals order, therefore, cannot be faulted on this aspect of the matter. However, while setting aside the order dated 26.11.2009, the Tribunal went on further and directed that the applicant shall be reinstated in service and the respondents shall have the liberty to proceed with the disciplinary case from the stage where the illegality has crept in. The Tribunal also directed that the competent authority would decide the case afresh without being biased and influenced by the earlier orders and while deciding the disciplinary proceeding against the respondent No.1, the competent authority was directed to decide the interregnum period from the date of the applicants dismissal from service to the date she joins her service pursuant to the direction of the Tribunal.