JUDGMENT
M.Y. Eqbal, J.
1. This appeal under Clause 10 of the Letters Patent has been filed against the judgment dated 15.10.1996 passed in CWJC No. 3193/94 (R), whereby the learned Single Judge allowed the writ application and quashed the order dated 13.9.1994 passed by Under Secretary, Government of India, Ministry of Coal, New Delhi by which petitioner was terminated from service and order dated 4.10.1994 by which petitioner was directed to handover charge of all the records, materials etc.
2. The facts of the case lies in a narrow compass.
3. Petitioner respondent was appointed as Assistant Store Keeper under the Coal Mines Labour Welfare Organisation, Department of Coal, Ministry of Energy. He was working at Central Hospital, Dhanbad. A departmental proceeding was initiated against him under Rule 14 of the Central Civil Services (CCA) Rules, 1965 in the year 1983. In the departmental proceeding he was dismissed from service, vide order dated 13.1.1987. Petitioner then filed appeal before the competent authority which was dismissed on 4.1.1988. He thereafter challenged the order of dismissal before the Central Administrative Tribunal. The Tribunal after hearing the parties, by a reasoned order quashed the order of dismissal on the ground that the copy of the inquiry report was not furnished to the petitioner. The Tribunal accordingly directed the appellant to reinstate the petitioner. However, it was left open to the disciplinary authority to proceed against the petitioner on the basis of memorandum of charges and inquiry report, after furnishing copy of the inquiry report and after affording opportunity of hearing. It appears that the competent authority again proceeded with the disciplinary proceeding which ended by order dated 3.3.1990 whereby petitioner was held guilty and his annual increment of pay was stopped for two years. Petitioner was allowed subsistence allowance for the period of suspension but not at the enhanced rate. Petitioner accordingly joined the service under respondent No. 1 and opted the service condition of BCCL, a subsidiary of Coal India. Ltd. Petitioner thereafter, filed representation before the higher authority for allowing subsistence allowance as per the corresponding rules. On receipt of the representation, the concerned appellant instead of allowing subsistence allowance issued notices to the petitioner, vide order dated 13.9.1993 asking him show cause as to why punishment should not be enhanced from stoppage of increment to dismissal from service under Rule 29 of CCS (CCA) Rules, 1965. Petitioner filed show cause raising several questions including the question of jurisdiction of appellant Dy. Secretary, Government of India, Ministry of Coal. On receipt of show cause, the appellant passed order of dismissal of the petitioner from service, vide order dated 13.4.1994. On the basis of the said order of dismissal the appellant namely, Manager of BCCL directed the petitioner to handover charge of records/ materials etc. The said order of dismissal was challenged by the petitioner respondent in CWJC No. 3193/1994 (R).
4. Respondent Nos. 4 and 5 namely, Government of India, Ministry of Coal contested the writ petition by filing counter affidavit. Their case in the counter affidavit was that petitioner was initially employee of the Central Government. The Staff and Institution of Ex-Coal Mines Labour Welfare Organisation were transferred to different subsidiary of Coal India Ltd. in different phases. The Central Hospital, Dhanbad, where that petitioner was posted was transferred to Bharat Coking Coal Ltd., a subsidiary of Coal India Ltd. with effect from 1.8.1985. The remaining institution and Staff of Ex-Coal Mines Labour Organisation were transferred to subsidiary of Coal India Ltd. after passing of the Coal Mines Labour Welfare Fund (Repealed) Act, 1986 with effect from 1.10.1986. It appears that while the petitioner was an employee under Coal Mines Labour Welfare Organisation, a departmental proceeding was initiated against him and hence he was not allowed to exercise option for absorption of his service in the subsidiary of Coal India Ltd. In the departmental proceeding he was dismissed from service but the order of dismissal was set aside by the Central Administrative Tribunal. The disciplinary authority accordingly, proceeded against the petitioner and by order dated 3.3.1990 petitioner was held guilty of charges and his annual increment was stopped for two years and he was allowed subsistence allowance during the period of suspension but not at the enhanced rate. Petitioner thereafter, joined his service under respondent No. 1, BCCL. a subsidiary of Coal India Ltd. He was thereafter allowed to opt service condition and he opted the service condition of subsidiary of Coal India Ltd. It was further stated in the counter affidavit that in 1990, petitioner requested the disciplinary authority for payment of full pay for the period of his suspension. The matter was considered with D.O.P.T. and Chief Vigilance Officer and it was decided to invoke the revisionary power of the President under Rule 29 of CCS (CCA) Rules. A show cause notice was issued to the petitioner and after considering his show cause, the order of dismissal was passed vide order dated 13.9.1994. The respondent lastly stated that since the departmental proceeding was initiated against the petitioner while he was in service Coal Mines Labour Welfare Organisation, the order of dismissal passed by the President of India even after transfer of the service to Coal India Ltd. is not bad in law.
5. Learned Single Judge after considering the entire documents brought on record and after hearing learned counsel for the parties, came to the conclusion that since departmental proceeding against the petitioner respondent was initiated while he was in service under Coal Mines Labour Welfare Organisation, that authority has no jurisdiction to pass order of punishment, after transfer of service of the petitioner to BCCL. Learned Single Judge further held that Rule 29 of CCS (CCA) Rules was not applicable to the petitioner as it was applicable to the employees of Union of India and not the employees of BCCL. Learned Single Judge accordingly quashed the order of termination of the petitioner from service.
6. Mr. A.K. Sinha, learned senior counsel appearing for the appellant assailed the impugned judgment of the learned Single Judge as being contrary to the settled principle of law laid down by the Supreme Court and different High Courts. Learned counsel submitted that the learned Single Judge has erred in law in interferring with the decision taken by the President of India, who is competent enough to pass order under revisionary power and under CCS (CCA) Rules. We are unable to appreciate the submission of the learned counsel. Admittedly, while the petitioner was under the Service of Coal Mines Labour Welfare Organisation, departmental proceeding was initiated and he was dismissed from service. The said order of dismissal was challenged by the petitioner before the Central Administrative Tribunal and finally the tribunal quashed the order of dismissal of the petitioner from service. Petitioner was then reinstated in service and his option for joining in the BCCL was accepted and he was allowed to join. Since the Tribunal while quashing the order of dismissal gave liberty to the appellant to proceed with the disciplinary authority, the petitioner was again proceeded and finally the order of punishment by way of stoppage of two increments with cumulative effect was passed in 1990. Petitioner was paid his subsistence allowance. The only fault of the petitioner was that he made representation to the disciplinary authority for payment of salary for period of suspension which resulted in the issuance of show cause notice and passing of order of termination. For better appreciation of the reason of passing of the impugned order of termination will appear from the relevant portion of para 5 of the counter affidavit filed by the respondent- Government of India, Ministry of Coal :
“After taking all the aspects of the case for consideration and after issuance of show cause notice and hearing the petitioner in person, the disciplinary authority reinstated him in service and imposed penalty of stopping two increments with cumulative effect. It was further order that he would be paid only subsistence allowance for the period of his suspension. Shri. Chaurasia requested the disciplinary authority, vide application dated 19.6.1990 for payment of his full pay for the period of suspension. However, the request of Sri Chourasia was not considered by the competent authority. He served a notice under Section 80. CPC for non-payment of his full pay for the period of suspension. The matter was considered in the Ministry in consultation with D.O.P.T. and Chief Vigilance Officer and it was decided to invoke the revisionary powers of the President of India under Rule 29 of CCS (CCA) Rules, the petitioner was dismissed vide order dated 30.9.1994. The order of dismissal from service of Sri Chourasia was communicated to this office, vide Ministry’s Letter No. 1(22)/79-MW. Vig. dated 30.9.1994.” 7. The appellant reiterated the aforesaid facts in the memo of appeal by stating that it was only when the petitioner respondent made representation and served notice under Section 80 of CPC for payment of salary during the period of suspension, the appellant took a decision to exercise revisionary power under Rule 29 of the Rules and in exercise of that power the impugned order of termination was passed. It is, therefore, evident that although in 1990 final order of punishment in the departmental proceeding was passed by stopping increments with cumulative effect and after the said order of punishment petitioner joined service in BCCL after his option was accepted by the appellant. It was only after four years from the date of his joining in BCCL. the impugned order was passed by the appellant Government of India. Ministry of Coal and that too when petitioner by representation and notice claimed the salary for the period of suspension. Admittedly, against the final order of punishment imposed upon the petitioner by way of stoppage of increments in the year 1990 the appellants were satisfied and against the said order, the Government of India, Ministry of Coal did not take any decision to raise the matter before the revisionary authority. It was only after four years instead of allowing or rejecting the representation of the petitioner after consideration, the appellant invoked the revisionary jurisdiction under Rules 29 of CCS (CCA) Rules, We therefore of the opinion that such action of the appellant exercising revisionary power was wholly without jurisdiction and was mala fide. Learned Single Judge therefore rightly held
that the action of the appellant-Government of India in invoking power under Rule 29 of the CCS (CCA) Rules was wholly without jurisdiction.
8. For the aforesaid reasons, we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge. This appeal is accordingly dismissed but without any costs.
H.S. Prasad, J.
9. I agree.
