State of Punjab v. Lalita (SC)
BS203252
SUPREME COURT OF INDIA
Before:- Tarun Chatterjee and R.M. Lodha, JJ.
Civil Appeal No. 6144 of 2009(Arising out of SLP (C) No. 3555 of 2009. From the Judgment and Order dated 30-11-2007 of the High Court of Punjab & Haryana at Chandigarh in CWP No. 7855 of 2007). D/d.
9.9.2009.
State of Punjab & Ors. - Appellants
Versus
Lalita - Respondent
For the Appellants :- Ajay Pal, S.K. Srivastava and Rajesh Singh, Advocates.
For the Respondent :- Mukund Gupta, Dhiraj, Reeta Dewan Puri, Abhishek Puri and P.N. Puri, Advocates.
Constitution of India, Article 226 - Removal from service - Appeal - Writ petition challenging order of departmental appellate authority whereby employee's appeal against order of removal from service was dismissed - High Court did not examine the correctness of the order on its merit at all and yet held that the impugned order was passed by the appellate authority without any application of mind - High Court not considering at all whether the order of removal suffered from any legal infirmity - Matter remanded to High Court for fresh decision in accordance with law.
[Paras 9 to 11]
JUDGMENT
R.M. Lodha, J. - Leave granted.
2. The State of Punjab and its functionaries have preferred this appeal by special leave being aggrieved by the order dated 30-11-2007 passed by the High Court of Punjab and Haryana whereby it allowed the writ petition filed by the present respondent and set aside the order dated 7-2-2007 passed by the appellate authority and imposed costs of Rs 25,000 upon the present appellants.
3. Smt Lalita, the respondent was engaged as a telephone operator for 89 days in the office of the Head Officer, Excise and Taxation Department on 7-3-1996. On 22-5-2003, she applied for medical leave for a period of one month i.e. up to 21-6-2003. The said application for medical leave was granted without pay. She did not join her duties on the expiry of leave but continued to apply for further leave including the maternity leave from 16-9-2003 to 16-3-2004. Having remained absent for almost nine months, initially she was given a show-cause notice dated 16-3-2004 and later on she was served with a charge-sheet on 4-6-2004 under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short "the 1970 Rules") for imposition of major penalty.
4. An inquiry officer was appointed to inquire into the misconduct of the delinquent viz. unauthorised absence; negligence of duty and highly irresponsible and careless behaviour. The respondent denied the allegations made in the charge-sheet. The inquiry officer after recording the evidence and on the basis of the material submitted before him concluded that the delinquent remained on wilful absence unauthorisedly. The enquiry report was furnished to the respondent and a second show-cause notice issued on 23-12-2004 by the disciplinary authority as to why she be not removed from service. The respondent submitted a reply to the show-cause notice on 31-12-2004. After taking into consideration her reply, on 3-2-2005 an order came to be passed by the Excise and Taxation Commissioner, Punjab removing the respondent from service.
5. The respondent challenged the order of removal in the writ petition before the Punjab and Haryana High Court. The High Court declined to entertain the writ petition and dismissed the same on 25-2-2005 observing that the respondent may pursue departmental remedy of appeal.
6. On 9-3-2005, the respondent filed a departmental appeal. It appears that the departmental appeal could not be disposed of for about a year or so and aggrieved thereby the respondent preferred a petition before the High Court of Punjab and Haryana, wherein on 30-5-2006, the High Court directed the appellate authority to take a final decision on the appeal preferred by the present respondent within two months from the date of receipt of the certified copy of the order.
7. On 7-2-2007, the appeal preferred by the present respondent came to be dismissed.
8. The respondent challenged the order dated 7-2-2007 by filing another writ petition which has been allowed by the impugned order. Hence, this appeal by special leave.
9. Having heard the learned counsel for the parties and upon careful consideration of the matter, in our judgment, the impugned order cannot be sustained and the matter has to go back to the High Court for fresh consideration. In the first place, the High Court did not examine the correctness of the order dated 7-2-2007 on its merit at all and yet held that the impugned order was passed by the appellate authority without any application of mind. It may be that the order passed by the appellate authority on 7-2-2007 is not happily worded but to conclude, based on the use of the word "worthy" in the order, that the order was not passed by the appellate authority does not appear to us to be proper. In the absence of any material having been placed by the respondent before the High Court that the order dated 7-2-2007 was not passed by the appellate authority and that it was passed by some subordinate officer in his office, we are afraid, the conclusion of the High Court cannot be sustained.
10. Secondly, the High Court fell into grave error in not considering at all whether the order of removal suffered from any legal infirmity. Even if we assume that the order of the appellate authority is not proper as observed by the High Court, it ought to have considered the legality of the order of removal. Since the matter needs to be remanded to the High Court, we refrain from dealing with the matter further.
11. The appeal is accordingly allowed to the aforesaid extent. The order dated 30-11-2007 passed by the High Court is set aside and the writ petition (CWP No. 7855 of 2007) is restored to the file of the High Court for fresh decision in accordance with law. We request the High Court, to hear and decide the writ petition as expeditiously as may be possible. No order as to costs.
Appeal partly allowed.