Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6144 OF 2009
(Arising out of S.L.P. (C) No. 3555/2009
State of Punjab & Ors. .. Appellants
Versus
Smt.Lalita ..Respondent
JUDGEMENT
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
November 30, 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 February 07, 2007 passed
by the appellate authority and imposed cost of Rs. 25,000/- upon the
present appellants.
3. Smt. Lalita – respondent was engaged as a Telephone
Operator for 89 days in the office of Head Officer, Excise and
Taxation Department on March 07, 1996. On May 22, 2003, she
applied for medical leave for a period of one month i.e. upto June 21,
2003. The said application for medical leave was granted without
pay. She did not join her duties on expiry of leave but continued to
apply for further leave including the maternity leave from September
16, 2003 to March 16, 2004. Having remained absent for almost
nine months, initially, she was given a show cause notice dated
March 16, 2004 and later on she was served with a charge sheet
on June 04, 2004 under Rule 8 of Punjab Civil Services
(Punishment and Appeal) Rules, 1970 (for short “Rules, 1970”) for
imposition of major penalty. An inquiry officer was appointed to
inquire into the misconduct of delinquent viz; unauthorized 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 willful absence unauthorisedly. The enquiry report was
furnished to the respondent and a second show cause notice
issued on December 23, 2004 by the disciplinary authority as to
why she be not removed from service. The respondent submitted a
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reply to the show cause notice on December 31, 2004. After taking
into consideration her reply, on February 03, 2005, an order came to
be passed by 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 February 25, 2005 observing that the respondent may pursue
departmental remedy of appeal.
6. On March 09, 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 May 30, 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
certified copy of the order.
7. On February 07, 2007, the appeal preferred by the
present respondent came to be dismissed.
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8. The respondent challenged the order dated February 07,
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 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
February 07, 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
February 07, 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 February 07, 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.
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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 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 November 30, 2007 passed by the High
Court is set aside and writ petition (CWP NO.7855/2007) 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.
…………………………..J
(Tarun Chatterjee)
…………………………..J
(R.M. Lodha)
New Delhi,
September 9 , 2009
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