Not necessary for removal to be by the same authority who made the appointment, expounds HC, Read Judgement

14 Oct 2023

The Delhi High Court expounded that as per Article 311 of the Constitution of India, a person should not be removed by an authority subordinate to the one by whom he was appointed. The provision does not imply that the removal must be by the same authority, who made the appointment or by his direct superior but the removing authority is to be of the same rank or higher. Also there is nothing in the Constitution of India debarring the government from conferring the powers of an officer other than the Appointing Authority to dismiss the government servant provided that he is not subordinate in rank to the Appointing Officer or the Authority.

In the present case, it was observed that the dismissal order has been correctly passed by the Appointing Authority i.e. Secretary-cum-Commissioner (Development) since the transfer of the Petitioner was only as per the functional requirement and the Secretary-cum-Commissioner (Development) was not denuded to exercise the powers of Disciplinary/Appointing Authority in respect of Group C Non Gazetted staff of Development Department merely on account of transfer of Petitioner.

Brief Facts:

The Petitioner was appointed as Village Level Worker by the office of the Development Commissioner, Delhi Administration in 1991. The services were later regularized after which the Petitioner was transferred to the office of Divisional Commissioner, Department of Revenue, Govt. of NCT of Delhi under the Panchayat Unit.

In 2008, allegations of bribery were levelled against the Petitioner, however, the Petitioner was discharged due to invalid sanction for prosecution.

A fresh chargesheet was filed and charges were framed under Sections 7 & 13 (i)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The Petitioner was convicted and sentenced. The Petitioner filed an appeal and therefore, the sentence was suspended pending the outcome of the Appeal.

Thereafter, a memorandum was issued to the Petitioner proposing to award penalty of dismissal from service under Rule 19 of the CCS (CCA) Rules, 1965. Later, an order for dismissal was communicated to the Petitioner.

The Petitioner preferred an OA which was dismissed. Hence, the present matter.

Contentions of the Petitioner:

It was argued that the order of dismissal was not issued by the Competent Authority as the Competent Authority was only the Divisional Commissioner/Principal Secretary (Revenue) and not the Secretary-cum-Commissioner (Development).

Further, the conviction and sentence were stayed by the Hon’ble Delhi High Court, hence, the order of dismissal from service was bad in law.

Contentions of the Respondent:

It was contended that the Secretary-cum-Commissioner (Development) was the Appointing Authority as well as Cadre Controlling Authority qua the petitioner even after transfer of officials to the Panchayat Unit under the Divisional Commissioner.

Further, it was argued that only the sentence was suspended in the appeal and there was no stay on the conviction.

Observations of the Court:

It was opined that as per Article 311 of the Constitution of India, a person should not be removed by an authority subordinate to the one by whom he was appointed. The provision does not imply that the removal must be by the same authority, who made the appointment or by his direct superior but the removing authority is to be of the same rank or higher. Also there is nothing in the Constitution of India debarring the government from conferring the powers of an officer other than the Appointing Authority to dismiss the government servant provided that he is not subordinate in rank to the Appointing Officer or the Authority.

The Bench further held that if the relationship of employer and employee is in existence, then an authority is empowered to suspend a government servant or initiate disciplinary proceedings against him.

It was noted that in the present case, the Petitioner neither stood ‘permanently’ transferred nor the same is a case of permanent absorption or appointment under the Divisional Commissioner.

The decision of the Court:

Based on the aforementioned reasons, the Hon’ble Delhi High Court held that there was no jurisdictional error in exercising of the power and hence, accordingly the writ petition was dismissed.

Case Title: Sh. Lal Chand Ram V. Government Of NCT Of Delhi And Ors

Case No.: W.P.(C) 11010/2017

Coram: Hon'ble Mr. Justice V. Kameswar Rao, Hon'ble Mr. Justice Anoop Kumar Mendiratta

Advocate for Petitioner: Adv. Ms.Deepali Gupta

Advocates for Respondents: Advs. Ms.Avnish Ahlawat, Mr.Nitesh Kumar Singh, Ms.Laavanya Kaushik, Ms.Aliza Alam and Mr.Mohnish Sehrawa