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Judgment
We have heard learned counsel for the parties.
This special appeal arises out of the judgment and order dated 23.5.2003 by which learned Single Judge has allowed the writ petition and quashed the order dated 4.5.2002 passed by the Vice-Chanceller as Appellate Authority; the Memorandum (Annx. 6), and Charge-Sheet (Annex. 7) as well as Statement of Allegations (Annx. 8), and the order dated 8.1.1996 passed by the Disciplinary Authority.
The Disciplinary Authority in a departmental enquiry imposed the penalty of withholding of five increments with cumulative effect against the respondent, who was serving as Technical Assistant with directions that she will be reinstated with immediate effect. The respondent has since retired on attaining the age of superannuation in the year 2010.
Brief facts giving rise to the case are that the respondent was serving as Technical Assistant in the Home Science College in Udaipur. She was served with a charge-sheet in the year 1992, with imputation of charges namely that she refused to accept the official letters and also did not follow the instructions, both verbal and written of the Head of the Food and Nutrition Department for taking charge of Nutrition Laboratory. The statement of allegations against her, imputed her with allegations of failing to take complete charge of the stocks and store of Nutrition Laboratory despite an order dated 25.7.1992.
The respondent demanded copies of the letters, which were referred to in the statement of allegations against her supporting the charges. The enquiry officer submitted a report. In reply to the charges, vide letter dated 15.6.1995, she replied that she was not supplied the documents demanded by her to give reply to the charges; that the enquiry officer had summoned her but did not meet her on the first date on 18.11.1993, and thereafter, on the second date on 10.1.1994. She did not receive letters/official orders to give a reply to the allegations. She could not understand as to from where enquiry officer has verified about the supply of letters/office orders which were relied upon in support of the charges. In the same letter, she replied to the charges as follows:-
"I was asked to take over the charge of Nutrition Laboratory whereas in the same order Dr. (Mrs.) M. Goyal (teacher) was made incharge for Nutri. Lab. It was not clear from this order that from whom the charge has to be taken and who has to take over the charge since, Dr. Goyal was made incharge. Hence, no one could comply the order. Again a letter No. H.Sc./FN/364-369 dt. 11.8.1992 was served to me by the Head in which she asked to follow the office order No. 326-332 dt. 29.7.92 but again the said order was never served to me. After that a letter No. H.Sc./92/234-37 dt. 19.8.92 received from the Dean according to which I was asked about taking of charge as per the order of FN Head No. 326332 dt. 23.7.92 but the same was also never served to me. Again from the Dean I was served a letter No. H.Sc./Estt/927086 dt. 28.11.92 in which I was to take over the charge of the deptt. As ''No dues'' to be given to Dr. (Mrs.) S. Mathew but no such order served to me. Due to above contradictory subsequent order no one could comply on it. Hence, it cannot interpreted as disobedience of orders. For the compliance of orders I have been demanding the connected letters/orders from the very beginning but not supplied so far. Hence, the questions of disobedience and insubordination does not arise.
Enquiry officer summoned me for enquiry in very short period, intimation of which was received either nick of time or after a lapse of time. First time she refer to my letter dt. 18.11.93 second time she summoned for 18.11.92 but she was not available, kindly refer to my letter dt. 18.11.93 second time she summoned me telegraphically for enquiry on 10.1.94 but again she was not available. Kindly refer to my letters dated 10.1.94 and also dt. 7.1.94 for required papers. In fact I have not understand from where enquiry officer has verified about the supply of these letters/office orders whereas according to Dean letter No. H.Sc./Enquiry/Estt/7746 dt. 20.12.93" There are no such letters" while those have been referred in their own letters. Kindly refer to my letter dt. 27.12.93. Hence, the contention of enquiry officer that all the relevant papers demanded by me were already supplied, is incorrect.
Since I have not been given the opportunity to submit my defence reply in response to charge sheet due to lack of above mentioned letters/office orders which I have been demanding since beginning. Hence, her contention that the charges have been verified is incorrect. Therefore, her contention that not obeyed the orders is baseless, kindly refer to my letter dt. 23.1.93. Regarding "No dues" to Dr. (Mrs.) S. Mathews, I have no concern with that since I was not incharge of deptt. or stores.
I never refused to accept any official letter served to me. It is true from this fact that I am in receipt of number of letters, whatsoever served to me. Here, I would like to bring again in your kind notice that office of Dean is constantly refusing to accept my letters. Therefore, I have to send by post which cause inconvenience and wastage of my money in this hardship. So far concern to the laboratory work, in my 18 years service. I have never been pointed out. In fact the Head (Dr. Maya Chauthary) sustain revengeful attitude since 1981, kindly refer to my letter dt. 23.1.93. It is also true from this fact that the day she took over the charge of Deptt. She started harassing and submitted false report to the higher authorities. Actually, she (Head) wanted to get rid from the responsibility of charge from Dr. (Mrs.) S. Mathews as per her previous practice, she tried to divert her responsibility to others.
In view of the above paras it is evident that the charges framed under the charge sheet are incorrect. Hence, I cannot be treated as fault.
Enquiry Officer herself has accepted the fact that there was miscommunication and misunderstanding between the two. In view of this I cannot be treated as defaulter.
Enquiry Officer has accepted that she has submitted the report on the basis of official records presented before her, meaning thereby, not gone through the complete official records. Her contention for not attending enquiry is also incorrect which has been clarified in above paras.
In view of the above, I humbly request your honour to look into the matter and take suitable action."
The Disciplinary Authority, without taking into consideration the reply, passed order on 8.1.1996, recording the findings that since the enquiry officer had found her to be guilty of insubordination, indiscipline, disobeying the orders violating the conduct and service Rules, the charges were established and inflicted punishment of withholding of five increments with cumulative effect.
The respondent filed an appeal which was dismissed by the Appellate Authority vide order dated 4.5.2002 with the findings that she had made wrong assertion in her memorandum of appeal/letter. The letter dated 25.7.1992 by which she was required to take charge of the Nutrition Laboratory was in fact received by her with her endorsement. The Appellate Authority came to the same conclusion as was recorded by the Disciplinary Authority, that the respondent had committed gross insubordination by disobeying the orders of taking over the charge of the laboratory.
Learned Single Judge found that the principles of natural justice were violated in the departmental enquiry. He found that the order of the Disciplinary Authority was a non-speaking order. The charge of insubordination on the material on record, cannot be held to be proved against her. The order of the Appellate Authority also suffers from the same vice of a non-speaking order and is not based on any evidence. Relying upon S.N. Mukherjee Vs. Union of India, , he held that the order of the Disciplinary Authority cannot be sustained as has not given reasons finding that the charges were proved and in imposing the penalty.
On an argument raised by learned counsel appearing for the appellant that on the findings recorded the matter should be remanded, learned Single Judge held that the findings given by the enquiry officer were not sufficient to hold the petitioner (respondent before us) guilty of any charge and as observed by the enquiry officer with regard to miscommunication, it was apparent that the reply was not filed by the petitioner, meaning thereby that the whole enquiry conducted suffers from the vice of non-compliance of the principles of natural justice.
We have gone through the charge-sheet served upon the respondent; the reply filed by the respondent to the enquiry officer; the orders passed by the Disciplinary Authority as well as the Appellate Authority. We do not find that the disciplinary enquiry was conducted serving the principles of natural justice. The documents demanded by the respondent, relevant to the imputations which were the basis of the charge were not supplied to her. The enquiry officer did not even take care to record in his report that the respondent had not submitted reply to the charges. He also failed to take note of the letters issued by the respondent regarding supply of documents which were made basis of the charges nor he discuss the evidence. The detailed reply of the respondent to the enquiry officer was not considered by the Disciplinary Authority. No reasons were recorded by the Disciplinary Authority in holding that the charges were proved. He did not discuss the reply given by the respondent in his order at all. The Appellate Authority has also not considered the reply of the respondent. No good or sufficient reasons have been recorded in agreeing with the findings of the Disciplinary Authority.
The submission that the matter should have been remanded to the Disciplinary Authority does not merit consideration as the respondent had retired after attaining the age of superannuation in the year 2010. We also find that the reply given by the respondent was considered after a lapse of two years and that the Appellate Authority decided the appeal against the order dated 8.1.1996 after a period of six year on 4.5.2002. The delay caused by the authorities and the superannuation of the respondent will not justify the matter to be remanded.
There is no merit in this appeal. Accordingly, it is dismissed.