( 14.08.2012)
WRIT APPEALS UNDER SECTION 2(1) OF THE CHHATTISGARH
HIGH COURT (APPEAL TO Division Bench) Act, 2006
The following order of the Court was
passed by Abhay Manohar Sapre, J.
Heard.
(2) The decision rendered in W.A. No.342 of 2011
shall also govern the disposal of other appeals
being W.A. Nos. 343 of 2011, 344 of 2011, 345 of
2011 and 358 of 2011, because, all these appeals
involve identical issues and secondly arise out of
common order passed by the writ Court ( Single Judge
).
(3) This is an appeal filed by the respondents of
W.P.(S) No. 974 of 2005 under Section 2 (1) f the
Chhattisgarh High Court (Appeal to Division Bench)
Act, 2006 against the common order dated 04.04.2011
passed by the Single Judge in the aforementioned
writ petition and other connected writ petitions.
(4) By the impugned order, the writ Court (Single
Judge) allowed the writ petitions filed by the
respondents herein (employees) and in consequence,
set aside the dismissal order of the writ
petitioners (respondents) from the services and
directed their reinstatement without any payment of
any arrears towards back wages with a further
directions that the period from the date of
dismissal till the date of reinstatement would be
counted for giving them all service benefits flowing
from quashing of the dismissal order.
(5) So the question which arises for consideration
in this appeal is whether writ Court (Single Judge)
was justified in allowing the writ petition filed by
the writ petitioner - (respondent
No.1 herein) and thereby justified in quashing their
dismissal order?
(6) In order to appreciate the issue involved in
the cases, it is necessary to set out the facts
infra.
(7) The respondent (writ petitioner) and other 4
respondents of connected appeals were the employees
of State Police department; two were working as
constables, two as Head Constables and one as Town
Inspector. All were posted at police Station Manpur
in District Rajnandgaon.
(8) These five were served with common charge
sheets for committing three major misconducts in
discharge of their official duties. In fact, as
would be clear, the charges levelled against the
respondents (writ petitioners) were serious in
nature and hence, it was considered appropriate to
probe them by holding regular domestic inquiry as
per the CCCA Rules. The charges read as under:-
दिनांक 20-09-1992 को
थाना प्रभारी राजनांदगांव के स्पष्ट
आदेश के बावजूद 17.00 बजे थाने पर
उपस्थित न होना एवं संध्यगणना से
अनुपस्थित रहना तथा पुनः
आरोपीगणों को 22.00 बजे चैक करने
पर आरोपी आरक्षक मोतुराम
क्रमांक-270 को छोड़ शेष
आरोपीयों को अनुपस्थित पाना ।
दिनांक 11-09-1992 को
आरोपीगणों को मोतीपुर निवासी
पुतुराम सिन्हा की बाड़ी में व्यक्तियों
द्वारा गुलपाशे से पैसों की हारजीत का
दाव लगाकर जुआं खेलने की सूचना
मिलने पर अस्तक्षेप करते हये उसकी
जानकारी थाने के वरिष्ठ अधिकारी को
न देकर कर्तव्यहीनता का परिचय देना ।
ंदिनांक 11-12-1992 की दरम्यानी
रात डूयूटी के दौरान रात्रि एक बजे से
दो बजे के बीच मोतीपुरी के पुसुराम
सिन्हा की बाड़ी में सात व्यक्तियों को
गुलपाशे से जुआं खेलते हुये पाकर
उनके पास से लगभग चालीस हजार रूपये की
राशि को अवैध रूप से अपने पास रखकर
आपस में बांटकर भृष्ट आचरण का
प्रदर्शन करते हुये व्यवधानिक कार्यवाही
न करना ।
(9) This was followed by appointment of inquiry
officer. The respondents (delinquent employees)
contested the charges by filing reply and
participated in the inquiry proceedings. Evidence
was adduced by the parties. The respondents cross
examined the witnesses. The inquiry officer then
by his report held the charges levelled against the
respondents as proved. The appointing authority then
agreeing with the reasoning and conclusion of the
inquiry officer, and further looking to the gravity
and seriousness of the charges dismissed the
respondents from the services by order dated
30.9.1993.
(10) The respondents then filed appeal before the
appellate departmental authorities as provided in
the Rules. The appeals were also dismissed. The
respondents then filed original applications before
the State Administrative Tribunal (for short called
SAT) being O.A.2065 of 1994 and other connected
O.As. and challenged the dismissal orders. The SAT
by reasoned order dated 22.3.1997 dismissed all the
five original applications and upheld the dismissal
orders. The respondents then filed review petition
before the SAT being MA No 92 of 97 and other
connected M.As. and sought review of the main order
dated 22.3.1997 passed in his O.A. No 2065/94 and
other connected O.As., which had resulted in
upholding of their dismissal orders.
(11) The SAT this time allowed all the review
petitions by their order dated 29.06.1999 and
recalled their main orders dated 22.3.1997 passed in
O.A. No.2065/1994. As a consequence thereof, the
original applications i.e. O.A. No.2065/1994 and
other connected O.As. were again revived for final
disposal on merits. During pendency of these
original applications, and before they could be
heard finally on merits, the SAT was abolished and
hence, all the five original applications (O.As.)
were transferred to the High Court of M.P. at
Jabalpur for their disposal according to law. These
original applications were then registered as writ
petitions under Article 226/227 of the Constitution
of India. Since in the mean time, new State of
Chattisgarh was formed on 01.11.2000 and hence,
pursuant to the provisions of M.P.State
Reorganisation Act, these writ petitions were
transferred to Chattisgarh High Court for their
disposal according to law.
(12) This is how these writ petitions out of which
these appeals arise were placed for hearing before
the writ Court (Single Judge). The writ Court
(Single Judge) by impugned order allowed the writ
petitions and while quashing the dismissal
orders of the respondents (writ
petitioners/employees) did not consider it proper to
award them any arrears of back wages but awarded
all other consequential service benefits flowing
from such quashment. It is against these orders
passed by the writ court in favour of all the five
respondents (employees), the State felt aggrieved
and filed these five appeals.
(13) Learned Additional Advocate General for the
State Mr. Bhaduri while assailing the impugned order
in the first place contended that SAT erred in
allowing the Review Petition of the respondents.
According to him, the SAT having rightly dismissed
the main original application by their order
22.03.1997 had no jurisdiction to entertain the
review petition of the respondent much less to allow
it. He urged that SAT heard the review petitions
like an appellate court or as an original court as
if they were deciding the legality of dismissal
order for the first time and then proceeded to allow
the review completely ignoring their limited
jurisdiction under order 47 Rule 1 of C.P.Code. He
urged that the SAT did not even record any finding
which was sin qua non for allowing the review
petition as to whether there existed any apparent
error within the meaning of Order 47 Rule 1 ibid in
the main order and if so, whether it was such so as
to enable the SAT to recall the main order. In the
second place, he contended that this ground was
available to the State in this appeal because had
the writ petition been dismissed there was no need
to challenge the review order. He urged that since
the writ petitions were allowed resulting in
quashing of the dismissal orders and hence, in an
appeal arising out of such order, the State was
entitled to lay challenge to all the adverse orders
including all adverse findings in the orders at the
appellate stage that being the only higher forum
available to them to raise after final determination
of the issues by the SAT/ writ Court. Thirdly, he
contended that writ Court (Single Judge) committed
factual errors while narrating the facts of the case
when he only referred to one charge in place of
other two serious charges and further committed a
legal error when he did not appreciate the scope of
the review order while deciding the writ petition on
merits. Learned counsel pointed out from para 4 of
the impugned order that learned Single Judge
observed that the review order being in the nature
of the remand of the case by the SAT, the writ Court
is only confine to decide one point on which review
was allowed. Fourthly and in alternative, he
contended that assuming that SAT was right in
allowing the review, yet the writ Court was not
right in quashing the impugned dismissal order this
time by finding fault in inquiry proceedings and in
particular the role of inquiry officer in the
inquiry and further in non appointment of
presenting officer as provided in Rule 14 of the
Rules. According to him, looking to the nature of
charges, and the manner in which, they were proved,
if read in totality, would go to show that they were
proved in accordance with law and did not cause any
procedural irregularities and prejudice to any one.
Fifthly, he urged that since the delinquent
employees were given adequate opportunity in the
inquiry proceedings which they also availed of,
there was no case for any interference in the
impugned dismissal orders which should have been
upheld looking to the nature of charges which were
very serious in nature and committed in discharge of
their official duties.
(14) Learned Counsel for the respondents (employees)
reiterated the same submissions which were urged
before the writ Court and prayed that the impugned
order is based on sound reasoning, and hence,
deserves to be upheld.
(15) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find force in the submission of the learned counsel
for the appellants both on facts and in law and
hence, are inclined to allow the appeals and set-
aside the impugned orders by upholding the dismissal
order.
(16) At the outset, we may consider it apposite to
state that the writ Court (Single judge) was not
right in narrating the factual matrix of the case
properly and hence, it is necessary to correct the
factual narration of facts in the order ( see para
2 of impugned order ).
(17) By reading the impugned order, one is likely to
form an opinion as if respondents (employees) were
facing only one charge of misconduct in departmental
inquiry which led to their dismissal and that was in
relation to their remaining "unauthorisedly absent
from duty on one day (22.9.1992)" whereas as per
record, the respondents were facing three major
serious charges set out above. The writ Court was
therefore not right in proceeding that the
respondents were facing only one charge in the
charge sheet. There were in fact three.
(18) The second legal error was that he construed
the order of Review dated 29.06.1999 to be in the
nature of remand of the original application to the
SAT for deciding the original applications afresh
only on one ground on which the Review was allowed.
It becomes clear by reading para 4 quoted herein
below.
4. All the above
petitions have been transferred
to this Court on dissolution of
the State Administrative
Tribunal and re-numbered as
and 978 of 2005. Thus, the
grievances of the petitioners
in respect of perversity and
irregularity in conduct of
enquiry, have been considered
and stand closed as the
Tribunal has dismissed all the
petitions on other grounds
except the ground raised and
accepted on review applications
i.e. whether the order passed
in an enquiry is vitiated on
the ground that the Presenting
Officer was not appointed by
the Disciplinary Authority, and
whether, the enquiry officer
acted as a Judge as well as
prosecutor."
(emphasis
supplied)
(19) With respect, these observations of the writ
Court in our opinion cannot be said to be in
conformity with the legal consequences flowing from
any review order which has recalled their order of
which the review was sought. We may make it clear
that by these observations, we do not wish to set-
aside the impugned order but since the observations
of the writ Court are not in conformity and hence,
we consider it proper to correct it as a proposition
of law.
(20) In our opinion, once the review is allowed, it
results in restoration of the main case (original
application) for its hearing again on merits as if
no final order had been passed in the main case at
any point of time. The main order then disappears
with all its reasoning and conclusion and becomes
non est in the eye of law as if not passed. The
Court then assumes full jurisdiction to decide the
original application on merits on all grounds
irrespective of their earlier decision. If the
original application had been dismissed - let us
say on two grounds, A and B, then the Court would
be at liberty to take another view on the same
grounds and would not be bound itself with their
earlier view taken on the such grounds which no
longer holds the field due to its recalling by the
orders of Review Court. In addition, the Court
would also be at liberty to allow the parties to
raise any other grounds which were not taken earlier
by amending the pleadings in accordance with law in
case if they wish to do so. Similarly while
examining the legal consequence of review once
allowed is that Court is not required to keep in
mind as to on what ground the review was allowed
i.e. whether on A ground or B ground. Such questions
have to be examined only by the higher forum if the
review order is challenged by the aggrieved party
against whom it is passed with a view to find out as
to whether Review Court was justified in recalling
the main order on such grounds and if so, whether
such grounds satisfies the requirements of Order 47
Rule 1?
(21) The order granting review never results in
remand of the case. It is for the simple reason that
remand can never be by the same Court to itself. In
other words, the review is ordered by the same Court
which passed the earlier order in the main case out
of which review arises, whereas, the power to remand
any case whether limited or de novo vest only with
the superior court/ higher court (reversionary or
appellate court) hearing the appeal/revision
arising out of any case decided by the Court
subordinate to it. The power of remand is always
considered in the nature of direction or/and writ
issued by a higher Court in hierarchy to a Court
subordinate to such Court in exercise of their
appellate or reversionary powers or in exercise of
its extra ordinary powers in writ cases. In other
words, it is only the appellate or reversionary
Court while hearing an appeal or revision against
the order passed by a Court subordinate to it in
hierarchy of jurisdiction can remand the case to the
Subordinate Court whose order is under challenge in
appeal/revision and not by the Court to itself while
hearing the review against its own order.
(22) This subtle distinction was not noticed by the
Learned Single Judge while deciding the writ
petition and he appears to have swayed away with
this assumption that the writ Court is only required
to decide one ground on which the review was allowed
because all other grounds earlier taken by the writ
petitioner in the first round have already stood
finally decided and thus attained finality so far as
writ Court is concerned. He perhaps considered that
they still continuously hold the field inter se
parties notwithstanding the review having been
allowed and hence, only one issue is now required to
be dealt with by the writ Court after the review is
allowed for examining the legality of dismissal
order. This assumption in our humble opinion was
wrong in the light of what we have observed supra.
(23) After explaining the legal position on this
issue, all that we can say now is that after the
review was allowed and the writ petition was decided
by the writ Court on merits confining its
examination to only one ground, it has to be taken
that the writ petitioner gave up their challenge to
all other grounds which they had taken in their writ
petition and confined their challenge to the
dismissal order only on one ground to challenge the
dismissal order. In other words, one has to now
presume that the writ petitioner did not pursue any
other grounds of the challenge to dismissal order
after their review was allowed and confined their
challenge only on one solitary ground which found
favour to the writ Court resulting in quashing of
the dismissal order in their favour.
(24) We are, therefore, only required to consider as
to whether ground which found favour to the writ
Court for quashing the dismissal order is legally
sustainable and that too if occasion arises to
decide in the light of our reasoning given infra on
other issues.
(25) The first question that arise for consideration
in these appeals is whether SAT was justified in
entertaining the Review Petitions and in
consequence, was justified in allowing it by
recalling their main order dated 22.03.1997 passed
in O.A. No.2065 of 1994? In our view, it was not.
(26) Mere perusals of the main order dated
22.03.1997 passed in O.A. No. 2065 of 1994 and
review order dated 29.06.1999 passed in M.A. No.
92/97 would justify our conclusion in appellant's
favour.
(27) The main order dated 22.03.1997 would clearly
go to show that it was a reasoned order passed by
SAT dealing with all issues urged in relation to
every charge, evidence adduced in support of the
same including legal grounds arising in the case. It
was only then the SAT dismissed the original
application and upheld the dismissal order as being
just, legal and proper.
(28) Similarly, while deciding the review petition
almost after two years of passing the main order,
the SAT virtually passed another parallel order
virtually in the main case rather than in the review
petition. In other words, while hearing the review
petition, the SAT did not make any distinction as to
whether they were hearing appeal arising out of the
main order or whether they were hearing the main
case itself or whether they were hearing review
arising out of main order ?
(29) One thing which is clear on perusal of the
review order is that it does appear to us that SAT
heard the matter either as an appellate Court as if
they were hearing appeal arising out of the main
order or heard it as if they were hearing the
original case (regardless of decision which was
already holding the field) but certainly not as
review petition under Order 47 Rule 1 ibid arising
out of the main order.
(30) True it is that remedy of review was one of
the remedy available to seek quashing of the main
order before the same Court but then, in such case,
the grounds of attack were extremely limited as
specified in Order 47 Rule 1 ibid. It was,
therefore, necessary for the SAT to have confined
themselves to the grounds falling under Order 47
Rule 1 with a view to find out as to whether there
existed any apparent error on the face of the main
order or not and if so, whether error which was
sought to be made basis for seeking review could be
made basis for recalling the main order?
(31) Though the SAT reminding themselves about their
jurisdiction while hearing the review but at the
same time, they simply went on reminding but failed
to record any finding as required under Order 47
Rule 1 of C.P. Code in support of their conclusion
and proceeded to appreciate the controversy on
merits like the original Court.
(32) In our view, therefore we can not uphold such
order of SAT which appears to have been passed by
the learned members while deciding the review matter
in their limited review jurisdiction by ignoring
their well defined review jurisdiction and then
trying to usurp their jurisdiction which they did
not have.
(33) In our view, this was a case which ought to
have been pursued by the writ petitioner
(respondents herein) by filing the writ petition
against the main order. If any issue was not decided
while deciding the main case then that by itself did
not amount to an error apparent on the face of the
record for entertaining the review petition. It
could be then as well a case where the issue might
have been given up at the time of hearing of main
case or it was not raised at all . This also does
not seems to have happened in this case because we
have noticed on perusal of the main order that the
issue which was sought to be made the basis for
filing the review was also dealt with by SAT in para
14 of their main order. In this view of the matter,
once the issue was dealt then the same can be
attacked only in higher forum but not in review. A
finding once rendered whether on A ground or B
ground can not be set-aside by the same Court on C
ground in review jurisdiction. It can only be set-
aside by the higher Court and in this case higher
Court would mean writ Court (High Court).
(34) In all fairness, therefore, looking to the
controversy involved, and the manner in which it was
originally decided by passing a reasoned order
giving finding on each ground of attack by the SAT
including on the issue sought to be made basis in
review petition, we are of the considered view that
no case whatsoever was made out on fact by the writ
petitioners for entertaining the review petition
much less for recalling the main order.
(34) In our opinion, this Court being an appellate
court is empowered to go into all issues including
this issue at the instance of State being an
aggrieved party and secondly, all the adverse orders
passed against the State having merged in the final
order are now amenable to challenge in higher forum.
We do not consider it proper to rely upon any kind
of technicality while examining the jurisdictional
error crept while deciding the rights of the parties
once brought to our notice at the appellate stage.
(35) In the light of foregoing discussion, we
respectfully differ with the reasoning and the
conclusion of the SAT and accordingly quash the
order dated 29.06.1999 passed by SAT in MA No.92/97
and in consequence, dismiss the review petition (MA
No.92/97) filed by the respondent against the order
dated 22.03.1997 passed in O.A. 2065/1994.
(36) Once we quash the order dated 29.06.1999 passed
by SAT in review petition (MA No.92/97) and dismiss
the review petition as not making out any ground
within the meaning of Order 47 Rule 1 ibid then its
effect is to revive the main order dated
22.03.1997 passed in O.A. 2065 of 1994 which has
upheld the dismissal order of the respondents.
(37) Since this writ petition does not arise out of
main order dismissing the original applications of
the respondents and hence, we cannot examine the
legality and correctness of the main order dated
22.03.1997 passed in O.A. No.2065/1994 in this writ
petition. In other words, the main order could be
challenged by the respondents herein only whose
original application was dismissed by such order. It
was not done either in past or here by not filing
any cross objection and hence, it has attained the
finality as against the respondents.
(38) Even then with a view to find out as to whether
the writ Court (single judge) was right in allowing
the writ petition on the solitary ground raised by
the respondent that inquiry officer was biased in
the absence of presenting officer (para 30 of
impugned order ) and that it was obligatory to
appoint the Presenting Officer under Rule 14 in the
inquiry proceedings as being mandatory, we are of
the view that in the facts of the case this finding
is not factually sustainable. Reading the entire
inquiry report, we do not find that any case of bias
or malice was either attributable or was proved
against the inquiry officer while conducting the
inquiry proceedings so as to vitiate the whole
inquiry proceedings. The issue of bias and malice in
our opinion are issues based on facts and requires
strong undisputed documentary evidence to make out
against any particular person. We have not been able
to see that any such evidence in this case was filed
before the departmental proceedings or before the
SAT in original application. If inquiry officer
asked some questions to the witnesses during inquiry
proceedings then it can not be said that he was
either biased against any one or had some malice
against any one. One has to see the issue in its
totality and not isolation.
(39) Coming to the interpretation made by the writ
Court of the word "may" occurring in Rule 14 of CCCA
Rules as saying that it should be read as " shall",
suffice it to say, we express no opinion on this
issue at this stage while deciding the appeal. In
our view, the same may not arise for its decision
in the light of what we have held supra. We thus
leave this legal issue open for being decided in
some other case.
(40) Though learned counsel for the respondents
(writ petitioners) argued at length on the merits of
the case on several grounds though not taken in the
writ petition while assailing the dismissal order,
apart from the legal hurdle being against the
respondents in attacking the dismissal order, we are
not impressed by his any submission. We thus do not
deal with them in detail.
(41) Needless to say, since the charges levelled
against the respondents were very serious and they
having been proved, in domestic inquiry, the
dismissal was the most appropriate punishment to
them as per Rules. It did not require any leniency
in awarding. It was rightly upheld by the SAT by
their order dated 22.03.1997 passed in O.A.
No.2065/1994
(42) In the light of foregoing discussion, and the
view that we have taken, we are of the view that
dismissal order of the respondent from the services
deserves to be upheld and is accordingly upheld.
(43) As a consequence, the appeal succeeds and is
allowed. The order dated 29.06.1999 passed in M.A.
No.92/97 and the impugned common order passed in all
the writ petitions out of which these appeal arises
are set-aside and as a consequence, the review
petitions so also the respondents' writ petitions
out of which these appeals arise stand dismissed.
(44) No cost.
JUDGE
Order 47 Rule 1