Is the judgment treated as final when the review upon it is pending?
Dr Sangh Mittra
(Querist) 02 August 2012
This query is : Resolved
Sir,
A judgment was delivered by the Hon’ble High Court of Delhi on 20 December 2006 in a Writ Petition filed by me praying for the quashing of the Order of my suspension dated 30 May 2003 and for the quashing of the Memo of charges dated 28 August 2003.
In the said Judgment the High Court quashed the Order of suspension and the Memo of charges on the grounds of mala fides but in the penultimate and final paragraph of the Judgment observed:
"Nonetheless, it cannot be overlooked that the petitioner did commit certain misconducts which could attract disciplinary action. It would not be proper to let the petitioner go scot free because the action taken has to be quashed for reasons of mala fides as detailed above..."
I , promptly filed a Review Application, on the opening of the Courts on 01 January 2007 that the Court had in earlier paragraphs used alleged misconducts but erred in this para and informed that the unintended observation of the Court was influencing the Disciplinary proceedings which my employer had re-initiated as the Court had given them the liberty to do so.
The employing Organization also filed a Review Application on 21 January 2007 praying for review of certain portions of the Judgment in which the Court had given findings against them.
The employing organization under the control of one of my Deputy Directors who had been officiating in my place during my suspension, issued to me Charge sheet signed by the said Deputy Director and wrote the undersigned with the approval of the competent authority proposes to hold an Inquiry under Rule 14 of the CCS (CCA) Rules 1965.
I kept contesting that the said Deputy Director had no authority A retired High Court was appointed as Inquiry Officer and was paid almost Rs 5,00000/- ( Five Lakhs for the Departmental Inquiry which he conducted ex Parte on the day of my sanctioned Leave on medical Grounds about which I had informed the Presenting Officer-an Assistant Director and Junior to me. I had informed the Inquiry Officer as well by post and Fax one day prior to the date he commenced ex parte.
In the ex Parte conducted on 08 July 2008- the Witnesses filed Affidavits dated 15 May 2008 by way of evidence. The intimation of the ex Parte was given to me after about 15 days. I knew it is over. Later the postage was controlled to reach me only when the date fixed at the Law Office of the retired High Court Judge was over. So I could not know anything nor could file any Defence, even if I wished to.
The Inquiry Officer appointed 27 August 2007 had sent to me the first Notice only on 26 September 2007- and for one month he kept meeting the Presenting Officer and the Witnesses- examining records etc.
I appeared before the Inquiry Officer only once to lodge my protest that the Charge sheet was signed by my Deputy Director in stead of Disciplinary Authority and that the Inquiry may please be conducted only in the office premises. While all others like the Presenting Officer and Witnesses got the Office car but I was expected to reach the Law office of the Inquiry Offier and that too in the evening at 6.00 Pm so after lodging my protest I stopped going to him and requested my employer to hold Inquiry in the Office premises.
The Inquiry Officer appointed on 27 August 2007 submitted his Report on 26 September 2008. I was not informed nor came to know.
Since the Review Application filed by me and my employer on the Judgment dated 29 December 2006 requesting the Court was pending I was awaiting the same.
In January 2009 I was handed over the Inquiry Report in which 8 out of 12 charges had been upheld by the Inquiry Officer in the ex Parte.
I wrote to the CVC and the Central Government. The CVC stated the First Stage Advice had not been obtained from them. They wrote to my employer to know why it was not taken and requested that the Second State Advice be taken.
The Department sent some papers on 20 September 2009 and after a protracted correspondence the Second State Advice of the CVC received in March 2010 recommended that I be served a Caution Memo and observed on their file ( known by me under RTI) that the element of retaliation against me for exposing financial irregularities is discernible and can not be ruled out.
My Organization served to me a Memo in August 2010 asking me to make a representation as to why the Major penalty of removal from service be not imposed upon me.
I approached a Lawyer of High Court on 21 August 2010, who I learnt later on was deeply in Collusion with the Officials of my Organization. I prepared and handed over the Writ to him but he insisted I must file the reply to the Memo dated 20 August 2010 which was filed by me on 07 September 2010.
I was issued another Memo dated 15 September 2010 that my demand for the provision of documents 9 which had been kept locked and sealed in a room in my Organization since 2003 cannot be met and these are either nonexistent, or irrelevant. I was informed final decision would be taken on my representation dated 07 September 2010.
My Advocate would not file the Petition. On 24 September 2010 he filed, finally the Writ Petition and said it was for objections. On 25 September 2010 he removed the Objections and refilled. The case came up for hearing on 2010 and the Advocate of my employing organization submitted that they had filed the final Order of my Compulsory retirement on 25 September 2010.
In the Order which they handed over to the Court on 27 September 2010 it was mentioned in hand Issue Today signed as 27;09.2010 it was mentioned that since the Judgment dated 20.12.2006 had become final as no adverse Order had been received by the Discilinary Authority till date the Disciplinary Authority, after consideration of my representation in which I had mentioned that the Review was pending, the Order of Compulsory Retirement with effect from 25 September 2010 with disqualification for any future employment in the organization was passed. It was stated that it is issued with the Approval of the Disciplinary Authority( the signatures of the DA were not there on this Order).
The Judgment dated 20 December 2006 was reviewed , the Judgment was reserved on 16 November 2009. The Judgment was delivered on 28 February 2011 . The Judgment read :
"there are good reasons to exercise that inherent power in this Court by giving some clarification in respect of the judgment"
"that this Court never intended to give any final view"
"The observations made by the learned predecessor Judge ..., however, can be understood by anyone to be the final findings of the Court"
"I am therefore of the view that this is a case where this Court should use its inherent power to do justice between the parties by giving the aforesaid clarification now"
"that none of the observations made in the judgment dated 20th December, 2006 was a final expression of opinion of the Court on the merits of any of the allegations levelled against the writ petitioner in the charge-sheet given to him"
I am in the Court- the Respondents have been served Notices and some of them have filed Counter Affidavits and I have filed rejoinder. Some of them , impleaded in person especially my Deputy Director have informed the serving clerk as I read in an inspection of the file that he has retired and go to the Office. The Union of India is yet to file Counter Affidavit.
After this long submission my humble query is as as written in the Order of my Compulsory retirement dated 25 September 2010
Could my Disciplinary Authority have treated the Judgment dated 20 December 2006 as final (as written in the Order of my Compulsory retirement dated 25 September 2010 issued on 27 September 2010, when the Review was pending?
The Judgment search reveals the final Order of disposal of the said Writ Petition as 28 February 2011.
I have been contesting the case myself after having been literally cheated by the Advocate.
Please advise in whatever way and answer my query in the penultimate para of this query.
Thanks,
Nu.Delhi.Law.Fora.
(Expert) 03 August 2012
Dear Querist,
The Judgment dated 20 December 2006 was reviewed , the Judgment was reserved on 16 November 2009. The Judgment was delivered on 28 February 2011.
"that none of the observations made in the judgment dated 20th December, 2006 was a final expression of opinion of the Court on the merits of any of the allegations levelled against the writ petitioner in the charge-sheet given to him"
Order of my Compulsory retirement dated 25 September 2010.
As regards your query as to whether DA was right in having treated the Judgment dated 20.12.2006 as final particularly when your Review of the said Order was pending, I am of the view that since there was no bar in taking one view of Order dated 2012.2006 particularly the taking advantage of observation made in the said Judgment:
"Nonetheless, it cannot be overlooked that the petitioner did commit certain misconducts which could attract disciplinary action. It would not be proper to let the petitioner go scot free because the action taken has to be quashed for reasons of mala fides as detailed above...", and secondly, in a situation where the section of decision makers in your employer organisation has been hostile against you. Hence, what they have done is not illegal but certainly you may term it incorrect and improper particularly that your status is/was respectable and also since said the Judgment was reserved on 16.11.2009, the employer should have waited for the outcome of cross-review.
You may point out all these subject what you appreciate.
Rabin Majumder
Advocate-on-Record
Supreme Court of India
New Delhi
Guest
(Expert) 05 August 2012
Dear Dr. Sangh Mittra,
On the face of the information provided by you I also agree with the observation of Shri Majumdar. However, as you stated, "you appeared before the Inquiry Officer only once to lodge your protest that the Charge sheet was signed by my Deputy Director instead of Disciplinary Authority," I would like to add that while you got the opportunity to defend your position in a proper manner, you by yourself turned the inquiry against you to get the ex-parte decision of the inquiring authority by not participating in the inquiry after lodging your protest.
Merely lodging a protest for anything before the inquiring authority would not have absolved you from attending the inquiry. By doing so, you have done more harm to yourself than any benefit.
You have not mentioned anything about your employment status whether you were a Government servant or an automonous employee and on what ground you raised such an objection before the inquiring authority and did not make any presence theereafter before the inquiry. You have also not stated about the status of your appeal to the appellate authority, of submitted, before filing your case in the court.
For your information, if you were a Government servant, your case being under the CCS (CCA) Rules, your defence assistant or you would have been aware of the fact that the Disciplinary Authority for a Group-A rank Officer happens to be the President of India and an officer even of the rank of an under secretary or equivalent status is authorised to sign the Charge Sheet on behalf of the President of india. So in that case there was nothing wrong if the Dy. Director would have signed your charge sheet. Of course, in that case the Charge sheet should have contained a mention "By order and in the name of the President" above the signature and designation of the authority signing the charge sheet.
If you were employed in an autonomous body, of course the disciplinary authority would have signed your charge sheet before issue. But still, the inquiry officer was not competent to decide on the validity of the charge sheet and to return the case to the DA. Of course, he was bound to take on record your protest/objection to bring that to light through his inquiry report only, but would not have discontinued the inquiry process.
The inquiring authority was also not bound to work as per your request that "the inquiry may be conducted only in the office premises." The inquiry officer is at liberty to conduct the inquiry at his own office or at some other convenient place.
However, what I feel is that even your writ would not have been founded to go in to right direction, if you were correct on your objection about non-signing of the charge sheet by the competent authority, the said plea was quite valid to treat the charge sheet as invalid. You have not mentioned what else was the part of the judgment, besides the part you brought forward, as "nonetheless, it cannot be overlooked that the petitioner did commit certain misconducts which could attract disciplinary action. It would not be proper to let the petitioner go scot free because the action taken has to be quashed for reasons of mala fides as detailed above..."
It seems as if you mixed up several tivial things, while the main one seemed to be the issue of "suspension" and your objection, as the part of the writ. Now, even if the revision also is also founded with such types of lacunae, I very much doubt about the success of the case.
