ORDER
WRIT APPEALS UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006
The following order of the Court was passed by Abhay Manohar Sapre, J.
(1) Heard.
(2) The decision rendered in W.A. No.342 of 2011 shall also govern the disposal of other appeals being W.A. Nos. 343 of 2011, 344 of 2011, 345 of 2011 and 358 of 2011, because, all these appeals involve identical issues and secondly arise out of common order passed by the writ Court ( Single Judge ).
(3) This is an appeal filed by the respondents of W.P.(S) No. 974 of 2005 under Section 2 (1) f the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 against the common order dated 04.04.2011 passed by the Single Judge in the aforementioned writ petition and other connected writ petitions.
(4) By the impugned order, the writ Court (Single Judge) allowed the writ petitions filed by the respondents herein (employees) and in consequence, set aside the dismissal order of the writ petitioners (respondents) from the services and directed their reinstatement without any payment of any arrears towards back wages with a further directions that the period from the date of dismissal till the date of reinstatement would be counted for giving them all service benefits flowing from quashing of the dismissal order.
(5) So the question which arises for consideration in this appeal is whether writ Court (Single Judge) was justified in allowing the writ petition filed by the writ petitioner - (respondent No.1 herein) and thereby justified in quashing their dismissal order?
(6) In order to appreciate the issue involved in the cases, it is necessary to set out the facts infra.
(7) The respondent (writ petitioner) and other 4 respondents of connected appeals were the employees of State Police department; two were working as constables, two as Head Constables and one as Town Inspector. All were posted at police Station Manpur in District Rajnandgaon.
(8) These five were served with common charge sheets for committing three major misconducts in discharge of their official duties. In fact, as would be clear, the charges levelled against the respondents (writ petitioners) were serious in nature and hence, it was considered appropriate to probe them by holding regular domestic inquiry as per the CCCA Rules. The charges read as under:-
"Other Language”
(9) This was followed by appointment of inquiry officer. The respondents (delinquent employees) contested the charges by filing reply and participated in the inquiry proceedings. Evidence was adduced by the parties. The respondents cross examined the witnesses. The inquiry officer then by his report held the charges levelled against the respondents as proved. The appointing authority then agreeing with the reasoning and conclusion of the inquiry officer, and further looking to the gravity and seriousness of the charges dismissed the respondents from the services by order dated 30.9.1993.
(10) The respondents then filed appeal before the appellate departmental authorities as provided in the Rules. The appeals were also dismissed. The respondents then filed original applications before the State Administrative Tribunal (for short called SAT) being O.A.2065 of 1994 and other connected O.As. and challenged the dismissal orders. The SAT by reasoned order dated 22.3.1997 dismissed all the five original applications and upheld the dismissal orders. The respondents then filed review petition before the SAT being MA No 92 of 97 and other connected M.As. and sought review of the main order dated 22.3.1997 passed in his O.A. No 2065/94 and other connected O.As., which had resulted in upholding of their dismissal orders.
(11) The SAT this time allowed all the review petitions by their order dated 29.06.1999 and recalled their main orders dated 22.3.1997 passed in O.A. No.2065/1994. As a consequence thereof, the original applications i.e. O.A. No.2065/1994 and other connected O.As. were again revived for final disposal on merits. During pendency of these original applications, and before they could be heard finally on merits, the SAT was abolished and hence, all the five original applications (O.As.) were transferred to the High Court of M.P. at Jabalpur for their disposal according to law. These original applications were then registered as writ petitions under Article 226/227 of the Constitution of India. Since in the mean time, new State of Chattisgarh was formed on 01.11.2000 and hence, pursuant to the provisions of M.P.State Reorganisation Act, these writ petitions were transferred to Chattisgarh High Court for their disposal according to law.
(12) This is how these writ petitions out of which these appeals arise were placed for hearing before the writ Court (Single Judge). The writ Court (Single Judge) by impugned order allowed the writ petitions and while quashing the dismissal orders of the respondents (writ petitioners/employees) did not consider it proper to award them any arrears of back wages but awarded all other consequential service benefits flowing from such quashment. It is against these orders passed by the writ court in favour of all the five respondents (employees), the State felt aggrieved and filed these five appeals.
(13) Learned Additional Advocate General for the State Mr. Bhaduri while assailing the impugned order in the first place contended that SAT erred in allowing the Review Petition of the respondents. According to him, the SAT having rightly dismissed the main original application by their order 22.03.1997 had no jurisdiction to entertain the review petition of the respondent much less to allow it. He urged that SAT heard the review petitions like an appellate court or as an original court as if they were deciding the legality of dismissal order for the first time and then proceeded to allow the review completely ignoring their limited jurisdiction under order 47 Rule 1 of C.P.Code. He urged that the SAT did not even record any finding which was sin qua non for allowing the review petition as to whether there existed any apparent error within the meaning of Order 47 Rule 1 ibid in the main order and if so, whether it was such so as to enable the SAT to recall the main order. In the second place, he contended that this ground was available to the State in this appeal because had the writ petition been dismissed there was no need to challenge the review order. He urged that since the writ petitions were allowed resulting in quashing of the dismissal orders and hence, in an appeal arising out of such order, the State wa s entitled to lay challenge to all the adverse orders including all adverse findings in the orders at the appellate stage that being the only higher forum available to them to raise after final determination of the issues by the SAT/ writ Court. Thirdly, he contended that writ Court (Single Judge) committed factual errors while narrating the facts of the case when he only referred to one charge in place of other two serious charges and further committed a legal error when he did not appreciate the scope of the review order while deciding the writ petition on merits. Learned counsel pointed out from para 4 of the impugned order that learned Single Judge observed that the review order being in the nature of the remand of the case by the SAT, the writ Court is only confine to decide one point on which review was allowed. Fourthly and in alternative, he contended that assuming that SAT was right in allowing the review, yet the writ Court was not right in quashing the impugned dismissal order thistime by finding fault in inquiry proceedings and in particular the role of inquiry officer in the inquiry and further in non appointment of presenting officer as provided in Rule 14 of the Rules. According to him, looking to the nature of charges, and the manner in which, they were proved, if read in totality, would go to show that they were proved in accordance with law and did not cause any procedural irregularities and prejudice to any one. Fifthly, he urged that since the delinquent employees were given adequate opportunity in the inquiry proceedings which they also availed of, there was no case for any interference in the impugned dismissal orders which should have been upheld looking to the nature of charges which were very serious in nature and committed in discharge of their official duties.
(14) Learned Counsel for the respondents (employees) reiterated the same submissions which were urged before the writ Court and prayed that the impugned order is based on sound reasoning, and hence, deserves to be upheld.
(15) Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellants both on facts and in law and hence, are inclined to allow the appeals and set- aside the impugned orders by upholding the dismissal order.
(16) At the outset, we may consider it apposite to state that the writ Court (Single judge) was not right in narrating the factual matrix of the case properly and hence, it is necessary to correct the factual narration of facts in the order ( see para 2 of impugned order ).
(17) By reading the impugned order, one is likely to form an opinion as if respondents (employees) were facing only one charge of misconduct in departmental inquiry which led to their dismissal and that was in relation to their remaining "unauthorisedly absent from duty on one day (22.9.1992)" whereas as per record, the respondents were facing three major serious charges set out above. The writ Court was therefore not right in proceeding that the respondents were facing only one charge in the charge sheet. There were in fact three.
(18) The second legal error was that he construed the order of Review dated 29.06.1999 to be in the nature of remand of the original application to the SAT for deciding the original applications afresh only on one ground on which the Review was allowed. It becomes clear by reading para 4 quoted herein below.
4. All the above petitions have been transferred to this Court on dissolution of the State Administrative Tribunal and re-numbered as W.P.(S) Nos.974, 975, 976, 977 and 978 of 2005. Thus, the grievances of the petitioners in respect of perversity and irregularity in conduct of enquiry, have been considered and stand closed as the Tribunal has dismissed all the petitions on other grounds except the ground raised and accepted on review applications i.e. whether the order passed in an enquiry is vitiated on the ground that the Presenting Officer was not appointed by the Disciplinary Authority, and whether, the enquiry officer acted as a Judge as well as prosecutor."
(emphasis supplied)
(19) With respect, these observations of the writ Court in our opinion cannot be said to be in conformity with the legal consequences flowing from any review order which has recalled their order of which the review was sought. We may make it clear that by these observations, we do not wish to set- aside the impugned order but since the observations of the writ Court are not in conformity and hence, we consider it proper to correct it as a proposition of law.
(20) In our opinion, once the review is allowed, it results in restoration of the main case (original application) for its hearing again on merits as if no final order had been passed in the main case at any point of time. The main order then disappears with all its reasoning and conclusion and becomes non est in the eye of law as if not passed. The Court then assumes full jurisdiction to decide the original application on merits on all grounds irrespective of their earlier decision. If the original application had been dismissed - let us say on two grounds, A and B, then the Court would be at liberty to take another view on the same grounds and would not be bound itself with their earlier view taken on the such grounds which no longer holds the field due to its recalling by the orders of Review Court. In addition, the Court would also be at liberty to allow the parties to raise any other grounds which were not taken earlier by amending the pleadings in accordance with law in case if they wish to do so. Similarly while examining the legal consequence of review once allowed is that Court is not required to keep in mind as to on what ground the review was allowed i.e. whether on A ground or B ground. Such questions have to be examined only by the higher forum if the review order is challenged by the aggrieved party against whom it is passed with a view to find out as to whether Review Court was justified in recalling the main order on such grounds and if so, whether such grounds satisfies the requirements of Order 47 Rule 1?
(21) The order granting review never results in remand of the case. It is for the simple reason that remand can never be by the same Court to itself. In other words, the review is ordered by the same Court which passed the earlier order in the main case out of which review arises, whereas, the power to remand any case whether limited or de novo vest only with the superior court/ higher court (reversionary or appellate court) hearing the appeal/revision arising out of any case decided by the Court subordinate to it. The power of remand is always considered in the nature of direction or/and writ issued by a higher Court in hierarchy to a Court subordinate to such Court in exercise of their appellate or reversionary powers or in exercise of its extra ordinary powers in writ cases. In other words, it is only the appellate or reversionary Court while hearing an appeal or revision against the order passed by a Court subordinate to it in hierarchy of jurisdiction can remand the case to the Subordinate Court whose order is under challenge in appeal/revision and not by the Court to itself while hearing the review against its own order.
(22) This subtle distinction was not noticed by the Learned Single Judge while deciding the writ petition and he appears to have swayed away with this assumption that the writ Court is only required to decide one ground on which the review was allowed because all other grounds earlier taken by the writ petitioner in the first round have already stood finally decided and thus attained finality so far as writ Court is concerned. He perhaps considered that they still continuously hold the field inter se parties notwithstanding the review having been allowed and hence, only one issue is now required to be dealt with by the writ Court after the review is allowed for examining the legality of dismissal order. This assumption in our humble opinion was wrong in the light of what we have observed supra.
(23) After explaining the legal position on this issue, all that we can say now is that after the review was allowed and the writ petition was decided by the writ Court on merits confining its examination to only one ground, it has to be taken that the writ petitioner gave up their challenge to all other grounds which they had taken in their writ petition and confined their challenge to the dismissal order only on one ground to challenge the dismissal order. In other words, one has to now presume that the writ petitioner did not pursue any other grounds of the challenge to dismissal order after their review was allowed and confined their challenge only on one solitary ground which found favour to the writ Court resulting in quashing of the dismissal order in their favour.
(24) We are, therefore, only required to consider as to whether ground which found favour to the writ Court for quashing the dismissal order is legally sustainable and that too if occasion arises to decide in the light of our reasoning given infra on other issues.
(25) The first question that arise for consideration in these appeals is whether SAT was justified in entertaining the Review Petitions and in consequence, was justified in allowing it by recalling their main order dated 22.03.1997 passed in O.A. No.2065 of 1994? In our view, it was not.
(26) Mere perusals of the main order dated 22.03.1997 passed in O.A. No. 2065 of 1994 and review order dated 29.06.1999 passed in M.A. No. 92/97 would justify our conclusion in appellant's favour.
(27) The main order dated 22.03.1997 would clearly go to show that it was a reasoned order passed by SAT dealing with all issues urged in relation to every charge, evidence adduced in support of the same including legal grounds arising in the case. It was only then the SAT dismissed the original application and upheld the dismissal order as being just, legal and proper.
(28) Similarly, while deciding the review petition almost after two years of passing the main order, the SAT virtually passed another parallel order virtually in the main case rather than in the review petition. In other words, while hearing the review petition, the SAT did not make any distinction as to whether they were hearing appeal arising out of the main order or whether they were hearing the main case itself or whether they were hearing review arising out of main order ?
(29) One thing which is clear on perusal of the review order is that it does appear to us that SAT heard the matter either as an appellate Court as if they were hearing appeal arising out of the main order or heard it as if they were hearing the original case (regardless of decision which was already holding the field) but certainly not as review petition under order 47 rule 1 ibid arising out of the main order.
(30) True it is that remedy of review was one of the remedy available to seek quashing of the main order before the same Court but then, in such case, the grounds of attack were extremely limited as specified in order 47 Rule 1 ibid. It was, therefore, necessary for the SAT to have confined themselves to the grounds falling under Order 47 Rule 1 with a view to find out as to whether there existed any apparent error on the face of the main order or not and if so, whether error which was sought to be made basis for seeking review could be made basis for recalling the main order?
(31) Though the SAT reminding themselves about their jurisdiction while hearing the review but at the same time, they simply went on reminding but failed to record any finding as required under Order 47 Rule 1 of C.P. Code in support of their conclusion and proceeded to appreciate the controversy on merits like the original Court.
(32) In our view, therefore we can not uphold such order of SAT which appears to have been passed by the learned members while deciding the review matter in their limited review jurisdiction by ignoring their well defined review jurisdiction and then trying to usurp their jurisdiction which they did not have.
(33) In our view, this was a case which ought to have been pursued by the writ petitioner (respondents herein) by filing the writ petition against the main order. If any issue was not decided while deciding the main case then that by itself did not amount to an error apparent on the face of the record for entertaining the review petition. It could be then as well a case where the issue might have been given up at the time of hearing of main case or it was not raised at all . This also does not seems to have happened in this case because we have noticed on perusal of the main order that the issue which was sought to be made the basis for filing the review was also dealt with by SAT in para 14 of their main order. In this view of the matter, once the issue was dealt then the same can be attacked only in higher forum but not in review. A finding once rendered whether on A ground or B ground can not be set-aside by the same Court on C ground in review jurisdiction. It can only be set- aside by the higher Court and in this case higher Court would mean writ Court (High Court).
(34) In all fairness, therefore, looking to the controversy involved, and the manner in which it was originally decided by passing a reasoned order giving finding on each ground of attack by the SAT including on the issue sought to be made basis in review petition, we are of the considered view that no case whatsoever was made out on fact by the writ petitioners for entertaining the review petition much less for recalling the main order.
(34) In our opinion, this Court being an appellate court is empowered to go into all issues including this issue at the instance of State being an aggrieved party and secondly, all the adverse orders passed against the State having merged in the final order are now amenable to challenge in higher forum. We do not consider it proper to rely upon any kind of technicality while examining the jurisdictional error crept while deciding the rights of the parties once brought to our notice at the appellate stage.
(35) In the light of foregoing discussion, we respectfully differ with the reasoning and the conclusion of the SAT and accordingly quash the order dated 29.06.1999 passed by SAT in MA No.92/97 and in consequence, dismiss the review petition (MA No.92/97) filed by the respondent against the order dated 22.03.1997 passed in O.A. 2065/1994.
(36) Once we quash the order dated 29.06.1999 passed by SAT in review petition (MA No.92/97) and dismiss the review petition as not making out any ground within the meaning of Order 47 Rule 1 ibid then its effect is to revive the main order dated 22.03.1997 passed in O.A. 2065 of 1994 which has upheld the dismissal order of the respondents.
(37) Since this writ petition does not arise out of main order dismissing the original applications of the respondents and hence, we cannot examine the legality and correctness of the main order dated 22.03.1997 passed in O.A. No.2065/1994 in this writ petition. In other words, the main order could be challenged by the respondents herein only whose original application was dismissed by such order. It was not done either in past or here by not filing any cross objection and hence, it has attained the finality as against the respondents.
(38) Even then with a view to find out as to whether the writ Court (single judge) was right in allowing the writ petition on the solitary ground raised by the respondent that inquiry officer was biased in the absence of presenting officer (para 30 of impugned order ) and that it was obligatory to appoint the Presenting Officer under Rule 14 in the inquiry proceedings as being mandatory, we are of the view that in the facts of the case this finding is not factually sustainable. Reading the entire inquiry report, we do not find that any case of bias or malice was either attributable or was proved against the inquiry officer while conducting the inquiry proceedings so as to vitiate the whole inquiry proceedings. The issue of bias and malice in our opinion are issues based on facts and requires strong undisputed documentary evidence to make out against any particular person. We have not been able to see that any such evidence in this case was filed before the departmental proceedings or before the SAT in original application. If inquiry officer asked some questions to the witnesses during inquiry proceedings then it can not be said that he was either biased against any one or had some malice against any one. One has to see the issue in its totality and not isolation.
(39) Coming to the interpretation made by the writ Court of the word "may" occurring in Rule 14 of CCCA Rules as saying that it should be read as " shall", suffice it to say, we express no opinion on this issue at this stage while deciding the appeal. In our view, the same may not arise for its decision in the light of what we have held supra. We thus leave this legal issue open for being decided in some other case.
(40) Though learned counsel for the respondents (writ petitioners) argued at length on the merits of the case on several grounds though not taken in the writ petition while assailing the dismissal order, apart from the legal hurdle being against the respondents in attacking the dismissal order, we are not impressed by his any submission. We thus do not deal with them in detail.
(41) Needless to say, since the charges leveled against the respondents were very serious and they having been proved, in domestic inquiry, the dismissal was the most appropriate punishment to them as per Rules. It did not require any leniency in awarding. It was rightly upheld by the SAT by their order dated 22.03.1997 passed in O.A. No.2065/1994
(42) In the light of foregoing discussion, and the view that we have taken, we are of the view that dismissal order of the respondent from the services deserves to be upheld and is accordingly upheld.
(43) As a consequence, the appeal succeeds and is allowed. The order dated 29.06.1999 passed in M.A. No.92/97 and the impugned common order passed in all the writ petitions out of which these appeal arises are set-aside and as a consequence, the review petitions so also the respondents' writ petitions out of which these appeals arise stand dismissed.
(44) No cost.