Union of India and Ors. vs Sharvan Kumar

HELD: 1.1 Neither the approach of the High Court nor its conclusion could be endorsed. The propositions of the High Court, treating the proceedings in question as having abated or having been rendered nullity cannot be approved from any standpoint. It appears that the High Court has taken the period of two months for completion of the proceedings, as stated in the order of the Tribunal dated 03.09.2010, to be an inflexible mandate as also of fatal consequence in the manner that after its expiry, the department could not have taken the disciplinary proceedings to their logical conclusion. This approach of the High Court cannot be supported even from a technical standpoint and obviously stands at conflict with the substance of the matter. After the respondent was awarded the penalty of removal from service by the order dated 23.02.2006 in conclusion of the disciplinary proceedings, he challenged the same and the Appellate Authority, by its order dated 23.08.2006, altered the penalty to that of downgrading his pay. The Revisional Authority by its order dated 14.03.2007 held that the negligence on the part of the respondent was established and found no reason to interfere. However, the Tribunal, in the earlier round of litigation, while dealing with OA No. 373 of 2007, chose not to examine the other material questions involved in the matter but, disapproved the imposition of penalty on the respondent for the reason that the person acting as the Disciplinary Authority had been one of the members who had earlier submitted the joint enquiry report. In this view of the matter, the Tribunal quashed the orders passed against the respondent but, being conscious of the fact that the disciplinary proceedings were otherwise required to be taken to the logical conclusion, issued directions to ensure that the matter be dealt with by the Disciplinary Authority other than the person who had been a member of the joint enquiry team and the proceedings be taken up from the stage of consideration of representation of the respondent against the report of the Enquiry Officer. While concluding on the matter, the Tribunal also expected that such afresh exercise be completed within two months of the receipt of the order, after leaving all other contentions open. As noticed, the appellants attempted to seek enlargement of time in view of the fact that the exercise could not be completed within the said period of two months but, this prayer for enlargement was declined by the Tribunal not on its merits but, for a different reason that the particulars like the time-frame laid down by the Railway Board for taking the decision on the enquiry report was not stated before it. The said order expecting conclusion of the proceedings within two months from the date of receipt of copy of the order was passed on 03.09.2010; the application seeking enlargement was dismissed on 03.01.2011; and the Disciplinary Authority passed its order on 17.02.2011. Thus, the question was about the status of such order so passed by the Disciplinary Authority beyond the period fixed by the Tribunal which had not been enlarged. The Tribunal in its order dated 21.06.2013 held that the proceedings pursuant to the order dated 03.09.2010 would have abated only if it was so directed in specific terms and not otherwise. The Tribunal had been correct in this approach and the High Court has unjustifiably interfered with the just and proper order passed by the Tribunal. [Paras 7-9][457-F-H; 458-A-H; 459-A]

1.2 Fixing of the period of two months by the Tribunal in this case had only been to ensure expeditious proceedings because the matter was being restored for reconsideration in the year 2010, though the disciplinary proceedings related with the incident dated 09.01.2005. However, the said period of two months did not acquire any status akin to that of a statutory mandate that the disciplinary proceedings would have automatically come to an end with its expiry. It remains trite that if an Adjudicating Authority in exercise of its jurisdiction could grant or fix a time period to do a particular thing, in the absence of a specific statutory provision to the contrary, the jurisdiction to fix such a time period inhers the jurisdiction to extend the time initially fixed. Such conditional orders have regularly been construed by this Court to be in terrorem so as to put a check on the dilatory tactics by any litigant or to guard against any laxity on the part of the Adjucating Authority but, the Court is not powerless to enlarge the time even though it had peremptorily fixed the period at any earlier stage. When a conditional order is passed by the Court/Tribunal to do a particular act or thing within a particular period but the order does not provide anything as to the consequence of default, the Court/Tribunal fixing the time for doing a particular thing obviously retains the power to enlarge such time. As a corollary, even the Appellate Court/Tribunal or any higher forum would also be having the power to enlarge such time, if so required. In any case, it cannot be said that the proceedings would come to an end immediately after the expiry of the time fixed. In the present case, even the order dismissing the application for enlargement of time on a technical ground of not placing before the Tribunal instructions of the Railway Board, had again been not of giving any such status of mandatory and rigid character to the period originally fixed that the proceedings would have abated. [Paras 9.1-9.3][459-B-D, F-H; 460-A-B] Mahanth Ram Das v. Ganga Das [1961] 3 SCR 763 – relied on.

1.3 While treating the proceedings as having abated and as nullity, the High Court has ignored the fundamental principles that fixing of such time period was only a matter of procedure with an expectation of conclusion of the proceedings in an expeditious manner. This period of two months had not acquired any such mandatory statutory character so as to nullify the entire of the disciplinary proceedings with its expiry. Moreover, when no consequence of default was stated in the order dated 03.09.2010, the period as stated therein was only of expectations and not of mandate. Very many times, such fixing of time period causes more complications and harm rather than serving the cause of justice. Fixing of such period could only be justified if there are strong and compelling reasons for the same; and if at all such period is proposed to be fixed, not only the reasons for the same but, even the consequences of default are also required to be stated if such period is, for any valid reason, expected to operate with adverse consequences on the defaulter. The proceedings in question neither abated nor could have been considered nullity only because of passage of the expected time period stated in the order of the Tribunal dated 03.09.2010. There was no reason or justification for the High Court to interfere with the just and proper order passed by the Tribunal on 21.06.2013, which deserves to be restored with necessary consequential directions. [Paras 10-11][460-B-F]

1.4 The impugned order dated 30.08.2013 is set aside and the order dated 21.06.2013 passed by the Tribunal is restored. Resultantly, it would be permissible for the respondent to prefer an appeal against the order dated 17.02.2011 before the Appellate Authority. Before concluding, one more aspect is required to be dealt with; it relates to the payment of 50% back wages to the respondent and furnishing of security of immoveable property by him in terms of the order passed by this Court on 14.08.2015. It is informed that such payment has been made and the respondent has received the same while furnishing the requisite security. Having regard to the totality of circumstances, the said order dated 14.08.2015 is made absolute. However, the security furnished by the respondent stands discharged. [Paras 13, 14][461-B-C, E-F]