AMITAVA LALA,J. - (1.) IN this writ petition challenge has been thrown by the Union of India against the judgment and order passed by the Central Administrative Tribunal, Allahabad on 3.12.2008. Relevant portions for due consideration of the order are quoted hereunder: "8. Having given our thoughtful consideration to pleas advanced by the parties counsel we are satisfied that the ruling cited by the learned counsel for the applicant reported in the case of Mahavir Prasad Sharma v. State of U.P. and others (supra) is fully applicable to the facts of the present case. Relying on the decision of Hon'ble Supreme Court the Division Bench of Hon'ble High Court quashed the Charge-sheet in that case and held that if anything which is arbitrary is violative of Article 14 of Constitution of India as held by Hon'ble Supreme Court in Maneka Gandhi's case. Admittedly the Appellate Authority has modified the order dated 21.3.2005/15.4.2005 after a lapse of more than six months i.e. 16/22.11.2005 hence the said order became inoperative null and void. The applicant has already retired voluntarily on 30.9.2004, and this fact of voluntary retirement of the applicant could not be noticed by the Appellate Authority and the Appellate Authority set aside the penalty order dated 31.5.2002, and directed the disciplinary authority to initiate major penalty proceedings against the applicant under Rule 14 of CCS (CCA) Rules, 1965. In our considered view even the modified order passed by the Appellate Authority is not according to law on the ground that once in the circumstances of the case when the Appellate Authority has set aside the order of the disciplinary authority on any ground whatsoever there would hardly be any justification for re-enforcing the earlier order of punishment dated 31.5.2002. In our considered view the impugned order dated 16/22.11.2005 passed by Assistant Director contained in Annexure 6 is not sustainable in law and the same deserves to be quashed and set aside. The respondents are directed to pay the arrears of pay and allowances to the applicant for the period w.e.f. 1.6.2002 to 31.5.2004 with all consequential benefits within a period of three months from the date of receipt of a copy of this order. No costs."
(2.) FROM the order impugned, we find that three major issues have been considered by the Tribunal. Firstly, the appellate authority has modified the order after a lapse of six months' period which has been provided under Rule 29 of the CCS (CCA) Rules made applicable here. Secondly, that incumbent has retired voluntarily and, thirdly, the appellate authority has set aside the order and directed to initiate major penalty against the applicant. The controversy arose at first, whether its revisional power or power of review has been exercised by the appellate authority. We find that the power of review as under Rule 29 (a) is made only for the President but nobody else. Therefore, it can safely construe that the power which has been exercised by the appellate authority is additional power under Rule 29 and in such case, period of six months as under sub-rule (1) and thereafter (v) is applicable in this case.
(3.) SECONDLY , so far as voluntary retirement is concerned, it has been sanctioned by the same authority who has imposed punishment order but on inquiry we have come to know that no disciplinary proceeding has been initiated or taken as against such disciplinary authority. Therefore, how the employee opted for voluntary retirement and granted thereto, will be made victim of the circumstances, is unknown to this Court or any other nature of activity has to be established beyond doubt otherwise not. Moreover, in case of fraud, involvement of two parties are necessary. Therefore, in case of fraud, both, who has granted the voluntary retirement and who has obtained the voluntary retirement, could have been involved. But when no action has been taken against the disciplinary authority, who himself passed an order of voluntary retirement, the case of fraud, if any, cannot be said to be proved at all. It appears to us that only to protect the interest of somebody in the department, the Union of India is trying to make the incumbent as "escape goat."';