C R VENKITACHALAM Vs. UNION OF INDIA

JUDGEMENT

(1.) While the petitioner was working as Postal Assistant at Kilakkancherry Post Office, disciplinary proceedings were initiated against him under R.14 of the Central Civil Services (Classification, Control & Appeal) Rules. On completion of the disciplinary proceedings, the petitioner was dismissed from service by the 4th respondent Senior Superintendent of Post Offices, Palakkad Division. Against the order of dismissal the petitioner filed an appeal before the third respondent - Director of Postal Services, Northern Region, Calicut. The said appeal was disposed of by the third respondent as per Ext. P2 order dated 24-7-2000. In Ext. P2 order the third respondent held that the enquiry conducted against the petitioner suffered from non compliance with the provisions of the rules and the principles of natural justice and that the order of penalty flowing from such an enquiry could not be upheld. Without considering the other contentions raised in the I appeal, the third respondent remitted the case to the disciplinary authority with a direction to hold a de novo enquiry in the case. Against Ext. P2 order of the third respondent, the petitioner filed a revision petition before the second respondent Member (P), Postal Services Board, Office of the Director General of Posts, Dak Bhavan, New Delhi. The revision petition was dismissed by the second respondent as per Ext. P6 order dated 17-4-2001. Thereupon, the petitioner filed O.A.No.401/2001 before the Central Administrative Tribunal, Ernakulam Bench. However, the said original application was dismissed by the Tribunal as per Ext. P8 order. Challenging Ext. P8 order dated 8-2-2002 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.401/2001 the petitioner has filed this original petition.

(2.) Shri. R. Sreeraj, learned counsel for the petitioner contends that even though the Appellate Authority held that the enquiry was not conducted in accordance with the rules and the principles of natural justice, the Appellate Authority ought to have considered the other two aspects also, viz.; whether the findings of the Enquiry Officer are supported by evidence and whether the penalty imposed is unduly harsh. The learned counsel points out that as per R.27 of the CCs (CCA) Rules, the Appellate Authority has to consider: (i) whether the enquiry has been conducted complying with the procedure laid down in the rules 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; (ii) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and (iii) whether the penalty or the enhanced penalty awarded is adequate, inadequate or severe. It is contended that since the Appellate Authority considered only the first aspect and did not consider the other two aspects, the order of the Appellate Authority is illegal and unsustainable. After considering the above contention, the Tribunal has observed in the impugned order that in this case the Appellate Authority considered the question whether the enquiry was held in accordance with the rules and whether the violation of the rules resulted in prejudice to the applicant. After noting that the applicant was not given access to certain documents which the applicant required for his evidence, the Appellate Authority held that the said denial of access resulted in prejudice to the applicant. Therefore, exercising the powers under R.27 of the CCS (CCA) Rules, the Appellate Authority remitted the matter back to the Disciplinary Authority for a de novo enquiry from the stage of appointment of the Enquiry Officer. The Tribunal held that the Appellate Authority did the right thing. According to the Tribunal, having found that the enquiry was vitiated for non observance of natural justice, there was no point in considering the remaining aspects, because, any finding in a vitiated proceedings would not have legal validity. Hence the Tribunal held that the non consideration of the questions whether the findings of the Appellate Authority was supported by evidence on the record and whether the penalty was adequate, inadequate or severe did not vitiate the order of the Appellate Authority. We agree with the above view of the Tribunal. Since the enquiry itself was vitiated by procedural irregularity and violation of the principles of natural justice, consideration of the other aspects would be only a futile exercise and hence unnecessary. Hence, we uphold the view taken by the Tribunal that non consideration of the two aspects mentioned above did not vitiate the order of the Appellate Authority.

(3.) The next contention of the learned counsel for the petitioner is that the Appellate Authority has no power to direct a de novo enquiry. This contention was not raised before the Tribunal. However, being a question of law we are inclined to consider this contention also. According to the learned counsel, under R.27 of the CCS (CCA) Rules, the Appellate Authority has power only to confirm, enhance, reduce or set aside the penalty or to remit 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. R.27(2) of the CCS (CCA) Rules reads thus: