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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11804/2016
Date of decision: 23rd December, 2016
UDBHASH MUKHERJEE ..... Petitioner
Through Mr. Subhash Gosai, Advocate.
versus
KENDRIYA VIDHALAYA SANGATHAN ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
The petitioner-Udbhash Mukherjee is facing departmental proceedings under Rules 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 vide charge sheet dated 28 th June, 2006. The aforesaid Rules are applicable mutatis mutandis to Kendriya Vidhayalaya Sangathan.
2. During the pendency of the disciplinary proceedings, the petitioner retired from service as a Trained Graduate Teacher in Drawing on 31st W.P. (C) 11804/2016 Page 1 of 5 August, 2011.
3. On or about 30th April, 2014, the petitioner filed OA No. 1690/2014, primarily on the ground that disciplinary proceedings could not have continued post retirement as there was no valid sanction/approval under Rule 9 (2) (a) of the Central Civil Services (Pension) Rules, 1972, which are also mutatis mutandis applicable to Kendriya Vidhayalaya Sangathan. Reliance was placed upon the decision dated 23rd October, 2007 of the Principal Bench of the Central Administrative Tribunal in OA No. 886/2007, K.S. Malik Vs. Union of India & Ors. (KVS).
4. The impugned order dated 27th January, 2016 dismisses the OA, inter alia, relying upon the minutes of the 77th meeting of the Board of Governors of Kendriya Vidhayalaya Sangathan held on 20th June, 2007, wherein it had been resolved that power under Rule 9 of the Central Civil Services (Pension) Rules, 1972, shall be exercised by the Chairman, Kendriya Vidhayalaya Sangathan. The resolution reads as under:-
"ITEM NO.2 POWERS EXERCISE BY PRESIDENT UNDER RULE 9 OF THE CCS (PENSION) RULES, 1972 TO BE EXERCISED BY CHAIRMAN, KVS.
The Board approved the following proposals:
a) The powers conferred upon the President of India under Rules 9 of the CCS (Pension) Rules, 1972 fall W.P. (C) 11804/2016 Page 2 of 5 within the domain of the Chairman, K.V.S. as he is the appropriate authority to exercise those powers as has been done in the past and in the present as the same is in accordance with THE GOVERNMENT OF INDIA (ALLOCATION OF BUSINESS) RULES.
b) In exercise of powers conferred upon the Chairman, K.V.S. under Article 12 of the Education Code, all decision taken and orders passed in the past under Rule 9 of the CCS (Pension) Rules, disciplinary cases/other cases in respect of retired employees of K.V.S. are approved as the same have been taken in proper exercise of powers vested in the Chairman, K.V.S."
5. The Tribunal in the impugned order has rightly held that the decision in the case of K.S. Malik (supra) would not be applicable because after the said decision, the Board of Governors of the Kendriya Vidhayalaya Sangathan on 20th June, 2007, have passed the aforesaid resolution.
6. Counsel for the petitioner does not dispute the aforesaid resolution passed by the Board of Governors, but submits that the Board of Governors could not have empowered the Chairman to exercise the power of President under Rule 9 of the Central Civil Services (Pension) Rules, 1972.
7. We are not impressed with the said argument for the Kendriya Vidhayalaya Sangathan is a society registered under the Societies Registration Act. Central Civil Services (Pension) Rules, 1972 have been made applicable to the employees of the said society. The Board of W.P. (C) 11804/2016 Page 3 of 5 Governors by the aforesaid resolution had empowered the Chairman of the said society to exercise the power conferred on the President under Rule 9 of the Central Civil Services (Pension) Rules, 1972. It is not the case of the petitioner that the Board of Governors of the society could not have passed the said resolution. Competence and authority of the Board of Governors is not questioned. As a sequitur, it follows that Board of Governors could confer power under Rule 9 of the Central Civil Services (Pension) Rules, 1972 to a particular authority. The said exercise has been undertaken and the authority and power has been conferred on the Chairman.
8. The petitioner in the writ petition has raised additional and new grounds, which were not raised in the OA before the Tribunal. We would not like to go into and refer the said grounds, for the said grounds are extraneous and we are not the Court of first instance.
9. Counsel for the petitioner has submitted that gratuity has not been paid to the petitioner, though he accepts that provisional pension has been paid. We clarify, in case the petitioner has any specific grievance that retirement benefits payable while the petitioner is facing departmental proceedings, have not been paid, he would be entitled to raise the said grievance before the authority and before a legal forum in W.P. (C) 11804/2016 Page 4 of 5 accordance with law.
10. With the aforesaid observations, the writ petition is dismissed.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
DECEMBER 23, 2016 NA W.P. (C) 11804/2016 Page 5 of 5