JUDGMENT
Pradeep Nandrajog, J.
1. Vide letter of appointment dated 2.6.1986 issued under the signatures of Sh. S.K. Kashyap, Director (Personnel), petitioner was appointed as Fire Operator under the respondent.
The appointment letter records that Sh. S.K. Kashyap has signed the same on behalf of the General Manager of the respondent. Petitioner was posted at Indira Gandhi International Airport, New Delhi.
2. Respondent alleged that on 6.7.1991 at 16.15 Hrs., petitioner accompanied by about 15 persons stormed into the office of Sh. R.K. Kapoor, E.E(E), IGI Airport. They asked Shri Karnail Singh, J.E(E) to move out and thereafter ransacked the office of Shri R.K. Kapoor. The group manhandled Shri R.K. Kapoor. Petitioner inflicted blows on Shri R.K. Kapoor. Shri Parashar, A.E(E) who had gone to the office of Shri R.K. Kapoor to meet him was prevented by the petitioner from entering the office of Shri R.K. Kapoor. Petitioner was alleged to have pushed Sh. Parashar and even attempted to slap him in his face. So alleging, a charge sheet was served upon the petitioner vide memo dated 12.7.1991. Charge sheet was issued under the signatures of Shri K.P.S. Srivasatava, Executive Director (Personnel). By an order of even date issued by Shri K.P.S. Srivastava, petitioner was placed under suspension.
3. Petitioner denied the charges. Enquiry officer was appointed. Proceedings were held. Petitioner participated.
4. Enquiry officer submitted his report which indicted the petitioner. Agreeing with the enquiry report, Airport Director inflicted punishment of removal from service vide order dated 18.8.1992. Along with the order of removal, enquiry report was furnished to the petitioner.
5. On 1.9.1992, petitioner preferred an appeal against the order dated 18.8.1992. Following points were urged in the appeal:
(i) Airport Director was not the disciplinary authority of the petitioner since petitioner was a staff member of IAAI Headquarters. It was pointed out that the enquiry was initiated by the Executive Director (Personnel) for the reason that petitioner was treated to be a staff member of IAAI Headquarter.
(ii) There was no evidence against the petitioner.
(iii) That out of 3 witnesses, 2 did not corroborate the prosecution story. In any case, they did not implicate the petitioner by name.
(iv) Testimony of Sh. R.K. Kapoor did not inspire confidence.
(v) On a general appraisal of the evidence, no case was made out.
6. On 8.2.1993, petitioner submitted additional ground of appeal. Petitioner dealt with the evidence to show how the enquiry report was not sustainable. An additional legal ground was urged. It was submitted that as per decision of the Hon’ble Supreme Court , U.O.I v. Mohd. Ramzan, petitioner ought to have been supplied with a copy of the enquiry report and given an opportunity to represent against the same before the disciplinary authority passed the order.
7. Petitioner filed the present writ petition challenging the order dated 18.8.1992. It has been stated in the writ petition that the appellate authority was just not deciding the appeal.
8. Vide order dated 28.4.1994, the appellate authority rejected the appeal. Petitioner amended the petition and challenged the order dated 28.4.1994. Grounds on which the order in appeal was challenged are as under:-
“Because the decision dated 28.4.1994 confirming the penalty imposed by the respondents is illegal arbitrary and violative of Articles 14,16 and 19 of the Constitution of India and same is passed without considering the submissions and points raised by the petitioner in his appeal. The respondents took more than one year to decide the appeal.”
” The rejection of the appeal is without application of mind and without considering the relevant factors and therefore is arbitrary and unfair.”
9. Counter affidavit filed by the respondent, dealing with the legal issue as to who is the disciplinary authority of the petitioner states as under:-
“3. It is respectfully submitted that the petitioner was appointed as Fire Operator in I.G.I Airport vide letter dt. 02.06.86 of the Airport Director, I.G.I Airport w.e.f. 05.06.86. Petitioner vide letter dt. 05.06.90 requested the respondent for his posting to Fire Training Centre in place of Shri Virender Singh, Fire Operator. Accordingly petitioner was relieved by IGI Airport on 15.06.90 for resuming his duties at Fire Training Centre which comes under Head-quarters.
4. That the petitioner was involved in the incident happened at Electrical Maintenance Division at I.G.I. Airport on 06.07.91. The petitioner was working under Head-quarters when the incident took place. The disciplinary action was taken by the Executive Director (Personnel) who is in the same rank of Airport Director and the petitioner was suspended vide order dt. 12.07.91 issued by the Executive Director (Personnel). A charge sheet vide memorandum dt. 12.07.91 was issued by Executive Director (Personnel) for the following acts of misconduct.
(i) Assaulting an officer of the Authority.
(ii) Threatening-Intimidating an Officer of the Authority.
(iii) Disorderly behavior in the premises of the Authority.
(iv) Acted in a manner prejudicial to the interest of I.A.A.I.
(v) Commission of an act of subversive of discipline or of good behavior.
(vi) Conduct unbecoming an official of I.A.A.I.
5. That the Executive Director (Personnel) vide its Order dated 20.08.91 appointed an Enquiry Officer to enquire into the above charges against the petitioner. The petitioner participated in the said enquiry. The Enquiry Officer submitted the Enquiry Report, inter alia with the finding that all the above charges against the petitioner stood established. Keeping in view gross misconduct, involving criminal assault by an officer and because of the fact that all charges against the petitioner had been established, the Airport Director imposed the penalty of removal from service. It is respectfully submitted that the post of Airport Director is the same rank and cadre with the post of Executive Director (Headquarters) and as such the Airport Director is competent and empowered to impose major punishment under Regulation 18 of IAAI Employees (Conduct, Discipline and Appeal) Regulation 1987. It is further submitted that the order of penalty was imposed by the Airport Director (IGI Airport) in view of the fact that the incident had happened in IGI Airport.”
10. On merits, it is stated that there was evidence on record to justify the order of removal.
11. By way of an affidavit, respondent placed on record copy of Establishment Order No. 30/87 dated 4.11.1987 as per which, post of General Manager (Airport) was re-designated as Airport Director. It was further stated in said affidavit that posts of General Manager, IGI Airport, Airport Director and Executive Director (Personnel) were of Executive Director rank and were in same pay scale.
12. Writ petition was allowed vide order dated 7.1.2003. It was held that the enquiry report did not record a specific conclusion that the petitioner manhandled Sh. R.K. Kapoor. It was held that disciplinary authority ignored said fact. Said order dated 7.1.2003 was set aside vide order dated 18.7.2003 in L.P.A. No. 203/03. Order in appeal noted as under:-
“We have heard counsel for the parties for some time and perused the records. In view of the specific answer to question No. 14 given by Sh. R.K. Kapoor and the findings of the enquiry officer at page 3 of the enquiry report, counsel for the Caveator says that he has no objection if the impugned order is set aside and the case is remanded back to the learned Single Judge, as he had other issues to urge in the writ petition. So far as the issue pertaining to the conclusion and findings recorded by the enquiry officer holding the Caveator responsible for manhandling is concerned, the impugned judgment is set aside. Matter is remanded back to the learned Single Judge for deciding the other issues raised in the writ petition.”
13. Ms. Avinash Ahlawat urged 4 points during hearing. First point urged was that petitioner was employed in the Fire Training Centre which was under the administrative control of the headquarter. It was for this reason that disciplinary proceedings were initiated by Executive Director (Personnel). Airport Director could not have passed the order of removal from service as he was not the disciplinary authority. Second point urged was that as per decision dated 20.11.1990 in Mohd. Ramzan’s case, it was incumbent on the respondent to supply to the petitioner the enquiry report and grant opportunity to represent against the same. Third point urged was that appellate authority gave no reason to dismiss the appeal which shows non application of mind. Fourth point urged was that no FIR was registered. Mr. R.K. Kapoor admitted that 10-15 persons entered his room. He admitted that during his service he had not seen the petitioner. Mr. Kapoor stated that he could only name 1 or 2 persons who were a part of the group but refused to identify them. Petitioner has been singled out for punishment.
14. Admitted position between the parties was that as per service regulations of the respondent, for all group C and D posts at headquarters, appointing and disciplinary authority was Executive Director (Personnel) and for all group C and D posts at Airport, the appointing and disciplinary authority was Airport Director.
15. Though respondent has stated in the counter affidavit that petitioner was appointed as Fire Operator vide letter dated 2.6.1986 issued by the Airport Director, letter of appointment shows that it has been issued by Sh. S.K. Kashyap, Director (Personnel) for General Manager. Be that as it may, in the counter affidavit it has been stated that w.e.f. 15.6.1990, petitioner was posted at Fire Training Centre which comes under Head Quarters. It is further stated in the counter affidavit that petitioner was involved in an incident at IGI Airport on 6.7.1991. It is categorically stated that petitioner was working under headquarters when the incident took place. It is further categorically stated that the disciplinary action was initiated by the Executive Director (Personnel). defense is that Airport Director and Executive Director (Headquarters) are of the same rank and therefore punishment order passed by Airport Director is valid.
16. In disciplinary proceedings, competence of the person who acts as the disciplinary authority has to be determined as per service rules. The schedule to the service regulations of the respondent shows the appointing, disciplinary and appellate authorities. As noted in para 14 above, for all group C and D posts in the headquarters, disciplinary authority is the Executive Director (Personnel). For all group C and D posts at the Airport, disciplinary authority is the Airport Director.
17. That post of Airport Director is equivalent to post of Executive Director (Personnel) is neither here nor there. Service regulations of the respondent clearly specify that for posts at headquarter, Executive Director (Personnel) is the disciplinary authority and for posts at Airport it is the Airport Director who is to act as the disciplinary authority. The service regulations themselves create two different disciplinary authorities for two category of employees.
18. Respondent having admitted that petitioner was an employee of the headquarter, the consequences must flow. Order of removal from service passed by the Airport Director cannot be sustained being passed by an authority without jurisdiction. In passing, I may note that charge sheet was issued by the Executive Director (Personnel). Even suspension order was passed by said authority.
19. Mr. Raj Birbal, learned senior counsel urged that petitioner was appointed by the General Manager (Airport), which post was re-designated as Airport Director vide establishment order No. 30/87 dated 4.11.1987. Accordingly, on the principle that the person who appoints can remove from service, it was urged that impugned order of removal from service had to be sustained.
20. Order of appointment dated 2.6.1986, as noted above, shows that it was issued under signatures of Sh. S.K. Kashyap, Director (Personnel). Underneath, following is written:
‘For General Manager’.
21. It does not record that letter of appointment has been issued on behalf of General Manager Airport. Issue therefore has to be decided on basis of service regulations.
22. Since the very basic order is held to be inoperative being passed by an incompetent authority, I need no deal with the other submissions, in view of the directions being issued by me.
23. Impugned order dated 18.8.1992 is set aside. Order in appeal, dated 28.4.1994 is also set aside. It would be open for the Executive Director (Personnel) to pass a fresh order in his capacity as the disciplinary authority. Since petitioner has with him the report of the enquiry officer, should the respondent wish to proceed further, petitioner would be granted an opportunity to represent against the report of the enquiry officer. It would be open to the disciplinary authority to pass appropriate orders for continued suspension of the petitioner or to treat the period post 18.8.1992 till date, of whatever kind, but as per service regulations. Should the respondent chose not to proceed further, petitioner would be reinstated in service with 50% back wages but continuity of service for all other benefits. Needful decision be taken within 6 weeks from today.
24. No costs.