R.C.Pathak vs C.A.T.Allahabad-Bench & Others
2017 Latest Caselaw 5236 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											            A.F.R.
 
								Judgment reserved on 19.09.2017
 
								Judgment delivered on 09.10.2017
 
Court No. - 37
 

 
Case :- WRIT - A No. - 965 of 2001
 

 
Petitioner :- R.C.Pathak
 
Respondent :- C.A.T.Allahabad-Bench & Others
 
Counsel for Petitioner :- V.K.Goel,Manoj Upadhyay,R.C.Pathak
 
Counsel for Respondent :- C.S.C.,Praveen Shukla,S.N. Srivastava,Satish Chaturvedi,Saurabh Srivastava
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

(Delivered by Hon'ble R.L. Mehrotra, J.)

[1] The present writ petition has been filed by the petitioner for quashing the judgment and order dated 07.09.2000 passed by the Central Administrative Tribunal dismissing the original application filed by him against the punishment order of compulsory retirement.

[2] As per the case of the petitioner, he was appointed as Superintendent (Building/Road) Grade-II by the Chief Engineer, Central Command, Lucknow on 15.12.1964. Subsequently, he was promoted as Superintendent B/R Grade-I on the basis of the seniority by the Chief Engineer referring therein the Circular letter dated 22nd April, 1985 approved by the Engineer-In-Chief. The petitioner at the same time was also holding the post of Secretary, National Confederation of Central Government Employees as well as Vice President of Central Region of All India MES Civil Engineers Association (in short 'AIMCEA'). Being the office-bearer of the aforesaid organizations, he used to raise the issues relating to welfare of the members of these organizations. While posted at Bareilly Zone, he along with other members of the AIMCEA, submitted a memorandum to the Chief Engineer, Central Command, Lucknow regarding some problems on his arrival at Bareilly. As the petitioner was leading the delegation, therefore, the Chief Engineer, Bareilly Zone and Additional Chief Engineer, assuming it to be a complain against them, became highly annoyed and conspired against the petitioner pursuant to which he was placed under suspension vide order dated 06.07.1987 and later on served with three memorandums of charge-sheets.

[3] The first charge-sheet was issued by the Chief Engineer, Central Command, Lucknow on 07.08.1987 mentioning therein the charges of misconduct/mis-behaviour and collectively disrupting office functioning by leading the masses during office hours on 07.08.1987.

[4] The second charge-sheet dated 26.09.1987 was issued by the Chief Engineer, Bareilly Zone, Bareilly mentioning therein that the petitioner entered forcibly in E-II Section of the office on 12.08.1987 and took away the attendance register kept on the table of the Superintendent without his permission and tampered with official documents by making cuttings and over-writings and later on barged into the room of Lieutenant Colonel Namubdri and behaved in a manner exhibiting disrespect and arrogance.

[5] The third charge sheet dated 31.12.1987 was issued by the Chief Engineer, Central Command, Lucknow with the allegation that the petitioner entered into the chambers of the Chief Engineer, Bareilly Zone on 12.09.1987, used abusive language, threatened to use criminal force and behaved arrogantly. As the Chief Engineer was not competent to issue the charge-sheets, therefore, the petitioner moved a representation before Engineer-In-Chief, Bareilly Zone, through Chief Engineer with a request to decide as to who is the competent disciplinary authority, but rather than forwarding the said representation, Chief Engineer, Bareilly Zone, himself decided the matter vide order dated 30.11.1987. The petitioner challenged this decision by filing an Original Application No. 23 of 1988 before the Central Administrative Tribunal, Principal Bench, New Delhi with a further relief to quash the charge-sheets. The Tribunal decided the matter vide judgment dated 31th October, 1989 holding therein that the Chief Engineers are enjoying the delegated power of Engineer-In-Chief, therefore, they are the Competent Authority to impose punishment. However, it was left open to challenge the order of punishment, if any, which may be passed.

[6] The said enquiry was conducted by Sri M.K. Chakorborty as Inquiry Officer. On the request of the petitioner, Sri. I.P. Gupta was permitted to act as defence helper of the petitioner. As the conduct of the Inquiry Officer was biased, hence, the petitioner moved a representation for change of the Inquiry Officer but no action was taken by the superior officers. Even, the charge-sheet dated 31.12.1987 was not provided to the petitioner and on his request, a duly attested photocopy was given to him. He was permitted only to inspect the documents produced during the inquiry and was further directed to submit a list of documents as well as witnesses to be produced by him for all the inquiries.

[7] During the course of inquiry, the defence helper of the petitioner expired on 01.11.1990. The petitioner engaged another defence helper and requested the Inquiry Officer to provide him adequate time for preparation but the Inquiry Officer being biased enough, refused to entertain his request and examined the witnesses on 28.11.1990 despite protest of the petitioner. On the same day, the inquiry proceedings were declared as closed without affording any opportunity to produce defence evidence.

[8] Moreover, the petitioner was not provided the opportunity even to inspect the relevant documents relied upon by the department and the star witness Brigadier D.C. Mishra as well as his P.A. Hardeep were not examined by the Department. Though the petitioner filed objections against the Inquiry Report but the Chief Engineer Central Command Lucknow without noticing the objections and without applying his mind passed the punishment order dated 8th May, 1991 knowing this fact that no penalty specified in Clauses V to IX prescribed in Rule 11 CCS can be imposed by an authority subordinate to the Appointing Authority. Against the said punishment order, the petitioner preferred an appeal which too was rejected by Engineer-In-Chief without assigning any plausible reason.

[9] Thereafter, the petitioner preferred an original application before the Central Administrative Tribunal, Allahabad challenging both these orders categorically stating therein that in some cases, punishment orders to Group C and D employees was awarded by Engineer-In-Chief who is the competent Appointing Authority. Illustration of an order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1368 of 1995 and the order dated 11th January, 1996 passed by the President of India to the same effect were also narrated in the petition. In both the abovesaid matters, it was observed that the Chief Engineer is not the Appointing Authority of Grade C and D employees. But the Tribunal after hearing the parties at length dismissed the original application ignoring the abovestated observations, vide its judgment dated 07.09.2000 holding that the Chief Engineer Central Command was competent to impose penalty. Hence, this writ petition.

[10] Respondent nos. 2 to 7 have filed their counter affidavit refuting the allegations in general levelled by the petitioner in the petition and further submitted that the actual Appointing Authority of the petitioner was the Chief Engineer. This is why the order of promotion in respect of the petitioner dated 19th July, 1986 was issued by the Chief Engineer. The order passed by the Central Administrative Tribunal, New Delhi in other original applications has no relevancy in the present case. The act of the petitioner towards his seniors/superiors had been contemptuous and violent. He used abusive and vulgar language for his superior officers. The petitioner had been non-cooperative throughout the enquiry proceedings. All the relevant documents during the enquiry were provided to the petitioner and he was given full opportunity to defend himself and inspect all the documents required by him. The Inquiry was conducted in a most fair and proper manner. The impugned order and the order in appeal was passed after considering all the evidence available on record. Vide order dated 16th August, 1999, the President of India has empowered various authorities including the Chief Engineers, Command to impose penalties as prescribed under CCS Rules, 1965 to all the employees of Group C and D including the Superintendent B/R Grade-I serving in their jurisdiction. Therefore, the objection raised by the petitioner to this effect is not tenable. The illustrations given by the petitioner in this regard challenging the competence of the Chief Engineers to impose the penalty were looked into and it was observed that these orders were passed under some misconception. The impugned judgment and order passed by the Central Administrative Tribunal, Allahabad is perfectly correct and legally justified. Hence, the petition lacks merit and deserves to be dismissed.

[11] The petitioner has filed the rejoinder affidavit reiterating the averments made in the petition and refuting the version of the respondents made in the counter affidavit.

[12] The primary ground of challenge to the impugned order of compulsory retirement as well as the impugned order of the Tribunal is that the punishment order has been passed, not by the Appointing Authority, but by an authority subordinate to him apart from the other submissions noted above.

[13] The petitioner relying on the order dated 22nd April, 1985, copy whereof is annexure no.4 to the writ petition, contends that the Engineer-in-Chief is the Appointing Authority who had approved the promotion of the petitioner from Grade-II to Grade-I against a Class-C Post. The order dated 19th July, 1986 issued by the Chief Engineer, Bareilly Zone, copy whereof is annexure no. 5 is a consequential order for executing the promotion of the petitioner and merely because the said order has emanated from the office of the Chief Engineer, he would not be the Appointing Authority. It is further urged on behalf of the petitioner that the said order dated 19th July, 1986 itself refers to the select Panel dated 22nd April, 1985 approved by the Engineer-in-Chief. In order to substantiate that the Engineer-in-chief is the Appointing Authority, the petitioner has relied on an order passed by His Excellency the President of India on 11th January, 1996 in a disciplinary matter of a Class-C Post where it has been held that the Engineer-in-Chief is the competent disciplinary authority and therefore, the order of penalty passed by the Chief Engineer Central Command imposing punishment was set aside.

[14] He has also relied on a similar order of the Central Administrative Tribunal, copy whereof is annexure no. 39 dated 21.03.1996 to contend that in that case also the Superintending Engineer Staff Officer representing the department had conceded that the Chief Engineer was not competent authority and accordingly, the Tribunal had allowed the said claim on that short ground.

[15] He has further relied on the order passed by the Engineer-in-Chief in terms of Rule 12 of the CCS Rules, 1965, copy whereof is annexure no. 41 dated 25th April, 1997 where also the power has been exercised by the Engineer-in-chief.

[16] Another judgment of the Tribunal has also been relied by the petitioner rendered by the Central Administrative Tribunal on 09.05.2002, copy whereof has been filed as annexure no. 3 to the rejoinder affidavit where also the Tribunal had allowed the original application on the ground of incompetence of the Chief Engineer being a subordinate authority to impose penalty.

[17] He has then invited the attention of the Court to the schedule in this regard contained in Part (v) of the Schedule at item no. 2 of CCS Rules, 1965 to urge, that Group-C and Group-D posts in the Engineer-in-chief Branch mentioned at Clause-B (f) (v) defines the Appointing Authority as the Engineer-in-Chief and the authority competent to impose penalty is also the Engineer-in-Chief. He, therefore, contends that the respondents cannot take a different stand in the case of the petitioner as that would amount to violating Article 14 of the Constitution of India and would also be contrary to the prescription as referred to hereinabove.

[18] Replying to the said submissions, learned counsel for the respondents Sri Saurabh Srivastava submits that Rule-9 read with Rule 12 of the Civil Classification and Central Civil Services Classification Control and Appeal Rules, 1965, leaves no room for doubt that such powers can be conferred on any authority through a Presidential Order.

[19] For this, he has invited the attention of the Court to the proviso to Rule-9(1) of the 1965 Rules read with Rule 12 (2) (a) thereof. The same are extracted hereinunder:

9."(1) All appointments to the Central Civil Services (other than the General Central Service) Group 'B', Group 'C' and Group 'D' shall be made by the authorities specified in this behalf in the Schedule:

Provided that in respect of Group 'C' and Group 'D', Civilian Services, or civilian posts in the Defence Services appointments may be made by officers empowered in this behalf by the aforesaid authorities.

Rule 12 (2) (a)

(a) a member of a Central Civil Service other than the General Central Service, by the Appointing Authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;"

[20] Sri Saurabh Srivastavata, therefore contends that the Presidential Order dated 16th August, 1979 issued in exercise of the powers under Rule 12 (2) (a) amounts to an amendment of the rule altering the status of the Appointing Authority and also defining the Appellate Authority, according to which a Group-C Post is covered by the said notification where the Chief Engineer of the Command is the Appointing Authority and the Engineer-in-chief is the Appellate Authority. He has also referred to the earlier clarification dated 26th May, 1977 that existed in this regard and had been issued by the Engineer-in-chief Branch itself. Copy of the said document is annexure no.3 to the counter affidavit and a copy of the notification of 1979 is annexure 6 to the counter affidavit.

[21] To this, the reply of Sri Pathak, the petitioner is that the respondents themselves clarified the status of the 16th August, 1979 notification through the circular dated 31st August, 1979, copy whereof is annexure no. 38 to the writ petition, whereby the imposition of major penalty has been retained with the original authority appointing a Group-C employee. It is only the minor penalty that can be imposed by a delegating authority.

[22] The question, therefore, is as to whether in view of the Presidential notification referred to hereinabove, which Sri Saurabh Srivastava submits is continued even today under the notifications of 2015, will prevail and the Chief Engineer could be construed as the Appointing Authority.

[23] Petitioner has also filed the copy of the said Presidential Order dated 16th August, 1979 as Annexure-37 to the writ petition. Though the Central Services Rules came into force with effect from 1st December, 1965, part-V of which clearly indicates that it is only Engineer-In-Chief who is competent to impose penalties on the employees of Group C and D working under him but the abovesaid Presidential Notification dated 16th August, 1979 has now changed the position. Vide circular dated 31st August, 1979 filed as Annexure-38 to the writ petition, the office of the Engineer-In-Chief has further made it clear. Paras 5 and 6 of the said letter are extracted hereinunder :-

"5. Your attention is again invited to para 21-1 of Chapter 9 of Vigilence Manual, Volume-I, third edition and para-4 of Government of India Memo No. 93792/100/Org-4 (Civil) (a) 7480 dated 3rd December, 1973 which provides that major penalties should in no case be imposed by any authority lower than the authority who actually appointed the accuses government servant. Only minor penalty can be imposed in such a case by delegate authority.

6. Please ensure that the above orders are brought to the notice of all concerned and also ensure disciplinary cases/appeals are dealt with in future strictly according to the revised orders. The appeals which are required to be decided by E-in-C in accordance with these revised orders, will continue to be forwarded to this Headquarter as per procedure laid down in para-5 of the Circular Letter No. 73087/EID dated 12th February, 1973."

[24] The said circular letter has been issued after issuance of the Presidential Order dated 16.08.1979 with the intent to supersede previous Circular Letters and to issue a fresh and clear direction to the effect that for all the posts of Group-C including Office Superintendent, Grade-II and I, the Authority competent to impose penalty shall be Chief Engineer in Command who shall be competent to impose all types of penalties which are described in Rule 11 of CCS-CCA Rules, 1965. Penalty of compulsory retirement is also enshrined in it at serial no. 8.

[25] Now there remains no doubt that the Chief Engineer-in-Command is the competent authority, in the case of petitioner also, to impose all types of penalties mentioned in Rule-11 of CCS-CCA Rules.

[26] The petitioner has relied upon the order dated 21.03.1996 passed by CAT (Principal Bench) filed as Annexure-39 to the writ petition, order passed by the President of India dated 11.01.1996 filed as Annexure-40 and the order passed by Engineer-In-Chief dated 25th April, 1997 filed as Annexure-41 to the writ petition. In all these orders, it was observed that Chief Engineer, Central Command being not the appointing authority, is not competent to award punishment orders. The said Presidential Order dated 16.08.1979 was not taken into consideration in all these cases. Therefore, the petitioner is not entitled to any sort of parity of the aforesaid orders. It shall be proper to mention here that because of the said reason, the promotional order of the petitioner was also issued by the Chief Engineer. It may be apt to mention that Rule 9(1) read with Rule 12(2)(a) of the 1965 Rules as extracted hereinabove clearly provides for empowerment by the Hon'ble President of India to an authority to discharge the duty of an authority specified in the schedule. The Presidential notification dated 16th August, 1979 therefore, attains the status of a statutory provision. Thus, the Chief Engineer in the present case is the Appointing Authority empowered to exercise powers of the Punishing Authority as well. The Engineer-In-Chief would be the appellate authority. It is trite law that there cannot be any estoppel against Statute. Consequently, the judgments as also the order passed by the Hon'ble President of India on 11.01.1996 in a particular case without noticing the said Presidential Order cannot be said to have taken note of the status of the appointing and punishing authority correctly. Thus, the reliance placed by the petitioner that the Engineer-In-Chief is the Appointing Authority and therefore, the punishing authority cannot be accepted as it is contrary to the statutory position as explained hereinabove. The respective orders of the Tribunal and of the Hon'ble President of India does not come to the aid of the petitioner and cannot be stated to be reflecting the correct position of law.

[27] It is further argued by the petitioner that as the promotion order was approved by the Engineer-in-Chief, hence he be treated as Appointing Authority. This argument is not tenable because had the Engineer-in-Chief being the Appointing Authority, he would have directly issued the promotion order. Normally, Head of the Department approves appointments/promotion orders in case of requirements and Appointing Authority issues it. Moreover, the abovesaid President Order has made it non-absolute particularly in the case of the petitioner.

[28] During the inquiry proceedings, so many dates were fixed in consultation with the petitioner as per his convenience, but as per order sheet of inquiry proceedings available on record, the petitioner on one or another pretext tried to prolong these proceedings. We have also perused the entire order sheet that has been placed on record and which also reflects the same position as extracted in the punishment order. The impugned order also shows that the witnesses during the enquiry were examined in the presence of the petitioner and he was provided sufficient opportunity to cross-examine these witnesses. It is also mentioned in the impugned order that these witnesses used to come from different districts and were holding responsible position there. Petitioner was also permitted to have the services of defence helper. The allegation against the inquiry officer of being biased was also assessed as a delaying tactics on the part of the petitioner. The inquiry proceedings were ultimately declared over in the presence of the petitioner when he despite repeated requests, refused to cooperate with the proceedings. As per the available records, the petitioner was given full opportunity on different dates to inspect the documents relied upon by the Presiding Officer during the course of inquiry. The petitioner could not lead any evidence contrary to the said finding.

[29] The other contention of the petitioner to the effect that the Star witnesss Brig. D.C. Mishra and his P.A. Hardip were not examined during the course of inquiry, is also not tenable because as per charges, the petitioner entered into the chamber of Mr. Mishra forcibly and used abusive language against him in presence of so many employees. Thus, the evidence of other employees in support of this charge was presumed as sufficient. The humiliation of a senior officer by his subordinate can be proved by the oral evidence of other eye witnesses present at the time of incident who deposed during the enquiry.

[30] Moreover, we are not deciding the appeal against either the Inquiry Report or against the order of Disciplinary Authority. We have just to see as to whether the norms of natural justice were followed or not before issuance of the impugned order and the punishment awarded is in consonance with the guilt or not.

[31] In the light of the above discussions, it is clear that all the norms of natural justice were followed by the respondents while conducting the enquiry as well as before issuing the impugned order. It is also clear that after issuance of the presidential order dated 16th August, 1979, the Chief Engineer, Command was competent to pass all types of punishments enshrined under Rule-11 of CCS-CCA Rules, 1965. Therefore, we do not find any infirmity either in the impugned order or in the order of Central Administrative Tribunal. The writ petition is devoid of merits and is liable to be dismissed. The writ petition is accordingly, dismissed. No orders as to costs.

Order Date :- 09.10.2017

Sumit S