Cantonment Board vs Ashish Rawat

Tarun Agarwala, J.—Heard Sri B.S. Adhikari, the learned Counsel for the Appellant and Sri Dinesh Chauhan, the learned Counsel, holding the brief of Sri N.S. Negi, for the Respondent.

The present special appeal is directed against the judgment and order of the learned Single Judge dated 19.6.2006, whereby three writ petitions were disposed of with certain directions. It transpires that the Respondent-writ Petitioner Ashish Rawat filed writ petition No. 471 (SS) of 2003 questioning the order dated 19.6.2003, by which the subsistence allowance was decreased by 25 per cent. The Petitioner also filed writ petition No. 1343 (SS) of 2004, by which the Petitioner challenged the enquiry report as well as the suspension order. Both the writ petitions were disposed of by the impugned order, whereby the learned Single Judge directed the Appellant to hold a fresh enquiry and further directed that the suspension order would remain in abeyance till the pendency of the enquiry proceeding. The Cantonment Board, being aggrieved by the said order of the learned Single Judge, has filed the present special appeal.

At the time when the present special appeal was entertained, an interim order dated 23.8.2006 was passed, staying the effect and operation of the impugned order passed by the learned Single Judge. As a result of the interim order, the Cantonment Board treated the Petitioner to be under suspension. It is stated that during the pendency of the special appeal, the writ Petitioner was being paid full subsistence allowance till December, 2010. It has further been brought on the record that the Cantonment Board had taken a decision to dismiss the Petitioner by a resolution dated 23.11.2004, but could not communicate the said decision to the writ Petitioner inasmuch as an interim order dated 23.11.2004 had been issued by the writ court restraining the Respondent Cantonment Board from taking any final decision. But subsequently, as a result of the interim order dated 23.8.2006 passed in special appeal, the Cantonment Board took a decision and served the order of dismissal dated 23.11.2004 upon the writ Petitioner on 11.3.2011. It has also been stated that against the order dated 23.11.2004, dismissing the writ Petitioner from the services of the Cantonment Board, the writ Petitioner has preferred an appeal under Rule 14(1) of the relevant rules before the appellate authority, which is pending consideration.

Coming back to the merits of the case, the learned Single Judge held that the enquiry report cannot be sustained on account of the fact that the complainant was also the Enquiry Officer, who conducted the enquiry against the writ Petitioner and on this short ground, the writ was allowed and a direction was issued by the learned Single Judge to hold a fresh enquiry.

Having heard the learned Counsel for the parties and having perused the record of the writ petition, we find that the Petitioner had made a specific allegation in paragraph 15 of the writ petition to the effect that the complainant was also the Enquiry Officer, which fact has not been controverted by the Cantonment Board in their counter affidavit. In appeal, a specific ground has been taken in paragraph 6, namely, that the complainant was the Executive Officer and on his complaint, the Board had passed a resolution and had appointed an Enquiry Committee to look into the charges. This ground has been supported in paragraph 5 of the affidavit accompanying the stay application. The writ Petitioner in the counter affidavit has not denied this fact.

To support the aforesaid contention, the Appellant has also filed the agenda which was placed before the Cantonment Board, which indicates that the Board was required to consider the Cantonment Executive Officer''s report dated 18.1.2003 with regard to the alleged embezzlement made by the writ Petitioner of the Cantonment fund and on this agenda, the members of the Cantonment Board resolved to appoint Mohd. Ali and N.S. Rawat as the Enquiry Committee to look into the charges levelled against the writ Petitioner. The writ Petitioner in paragraph 15 of the writ petition has admitted that Mohd. Ali and N.S. Rawat, who were the members of the Enquiry Committee, were also the members of the Cantonment Board, which is the disciplinary authority. It is settled principle of law that the disciplinary authority can conduct the enquiry itself or can delegate it to another person. Consequently, the appointment of Mohd. Ali and N.S. Rawat as members of the Enquiry Committee was perfectly justified.

We, however, find from the record that Mohd. Ali and N.S. Rawat were not the complainant. The complainant, if any, was the Cantonment Executive Officer, who had conducted the preliminary enquiry and submitted a report and based on that report, the Enquiry Committee was constituted. Consequently, we are of the opinion that the learned Single Judge committed an error in holding that the complainant was also the Enquiry Officer. This is factually incorrect and against the record and, therefore, to that extent, the order of the learned Single Judge cannot be sustained.

In the light of the aforesaid, the special appeal is allowed. The judgment and order of the learned Single Judge dated 19.6.2006 is set aside. Since the dismissal order has been served upon the writ Petitioner and an appeal has already been filed, we, accordingly, direct that the writ Petitioner would be entitled to subsistence allowance till the date when the dismissal order was served upon the writ Petitioner.