Dharmendra Kumar Dwivedi vs South Eastern Coal Field Limited

The petitioner herein calls in question the legality, validity and the correctness of the order dated 19.01.2012 (AnnexureÂP/1) passed by the

respondent, whereby the Appellate Authority has affirmed the order of the Disciplinary Authority dated 18/20.09.2010 (AnnexureÂP/11) passed by

the respondent No.3, by which the major penalty of stoppage of two increments with cumulative effect and recovery of Rs.751/Â from salary has

been imposed upon the petitioner.

Mr. Pandey, learned counsel for the petitioner, would submit that though the major penalty of stoppage of two increments with cumulative effect

and recovery of Rs.751/Â has been inflicted upon the petitioner, but in the appeal preferred by the petitioner, the Appellate Authority did not consider

and decide the appeal on its own merits and merely held that recovery of Rs.751 is not a punishment and further held that the promotion order,

whereby the petitioner was promoted to the post of Senior Surveyor, has rightly been withdrawn and thereby dismissed the appeal summarily, which is

not the correct way of deciding the appeal by the Appellate Authority, as such the order of the Appellate Authority deserves to be setÂaside and the

matter be remitted to the Appellate Authority for considering and deciding the appeal of the petitioner afresh.

Mr. Shukla, learned counsel for the respondents, would support the impugned order.

I have heard learned counsel for the parties, considered their rival submissions made hereinÂabove and went through the records with utmost

circumspection.

Though the applicable standing order does not provide any manner of consideration of appeal but the Appellate Authority being the quasi judicial

authority ought to have dealt with the contention raised by the petitioner against the infliction of major penalty and could have passed the reasoned and

speaking order by holding that the finding recorded by the Disciplinary Authority is justified, punishment awarded is adequate and only thereafter could

have recorded its decision in the appeal, but a careful perusal of the impugned order (AnnexureÂP/1) would show that the Appellate Authority has

firstly condoned the delay and thereafter held that the charges have been proved against the petitioner and further held that the recovery of Rs.751/Â‐

is not a punishment and further held that the petitioner was erroneously promoted to the post of Senior Surveyor GradeÂI and the promotion order

dated 01.01.2010 has rightly been withdrawn and thereafter held that the action of the Competent Authority is correct and justified. The Appellate

Authority has not dealt with any of the contention raised by the petitioner and did not consider and decide the appeal on merits, thus it amounts to

failure on the part of the Appellate Authority to decide the appeal as a quasi judicial authority.

It is well settled position of law that the Appellate Authority in disciplinary proceeding acts in quasiÂjudicial capacity and order passed has to be

reasoned one and showing application of mind to the question raised by the appellant and if it is not done, the appellate order is vitiated. (See Divisional

Forest Officer, Kothagudem and others v. Madhusudhan Rao (2008) 3 SCC 469).

The Supreme Court reiterated this principle of law by observing that an Appellate Authority by deciding statutory appeal is not only required to give

hearing to the Government servant, but pass a reasoned order dealing with the contention raised in the appeal. (See Deokinandan Sharma v. Union of

India and others (2001) 5 SCC 340).

Even if the appellate order is in agreement with that of the Disciplinary Authority, it may not be speaking order, but the Authority passing the same

must show that there had been proper application of mind in compliance with the requirement of law while exercising its jurisdiction particularly when

the rules required application of mind on several factors and several contentions had been raised and it was bound to assign reasons so as to enable

the Court reviewing its decision to ascertain as to whether it had applied its mind to the relevant factors which the rule required to do. (See Narinder

Mohan Arya v. United India Insurance Co. Ltd. and others (2006) 4 SCC 713).

Reverting to the facts of the present case in light of the aforesaid legal position, it is quite vivid that the Appellate Authority has failed to consider

and decide the appeal in accordance with law and on its own merits and simply narrating the facts dismissed the appeal, which is not the correct way

of deciding the appeal by the Appellate Authority. Accordingly, the impugned order dated 19.01.2012 (AnnexureÂP/1) is hereby set aside and the

matter is remitted to the Appellate Authority to consider and decide the appeal afresh in accordance with law and on its own merits by a reasoned and

speaking order within 45 days from the date of receipt of copy of this order. The petitioner is at liberty to make additional submission before the

Appellate Authority within 15 days from today.

The writ petition is allowed to the extent indicated hereinÂ​above. No order as to cost(s).