Rama Tyagi vs Delhi Development Authority
2000 Latest Caselaw 715 Del

ORDER

Dr. M.K. Sharma, J.

1. The present writ petition is preferred by the petitioner seeking for quashing of the order dated 5.9.1995 issued by the respondent, removing her from service, in exercise of the powers conferred by Regulation 19(1) of the D.D.A. (Salaries, Allowances & Conditions of Service) Regulations, 1961 (hereinafter in short called the 'Regulations'). The aforesaid order of termination is challenged on the ground that no fair opportunity was given to the petitioner before removing her from service and, therefore, there is violation of the principles of natural justice.

2. It transpires from the records that a criminal case was instituted against the petitioner and her sons Shri Sanjay Tyagi and Shri Bipin Tyagi under Sections 498(a)/304-B/34 IPC vide .I.R.No.234/1991 in Police Station Keshavpuram Delhi. In connection with the aforesaid criminal case the petitioner was arrested on 30.11.1991. After conclusion of the trial, the petitioner and her elder son, namely, Shri Sanjay Tyagi were convicted by the Trial Court on 13.2.1995. The respondent in view of the aforesaid order of conviction passed against the petitioner removed her from service by the impugned order dated 5.9.1995. As against the aforesaid order of removal, the petitioner preferred an appeal before the Lt. Governor who dismissed the said appeal by order dated 29.5.1997. The petitioner being aggrieved by the aforesaid order of conviction and sentence passed by the Trial Court preferred an appeal which is pending disposal in this Court registered as Criminal Appeal No.39/1995.

3. Counsel for the petitioner submitted before me that the aforesaid order of removal dated 5.9.1995 is bad, illegal and void ab initio being in violation of the principles of natural justice. She also submitted that the said order was passed by an office having no jurisdiction to pass such an order being subordinate to the appointing authority. She further submitted that the appointing authority cannot delegate his power of dismissal or removal to a subordinate authority which would be in violation of the Constitutional provision and that the issue as to who is the appointing authority of the petitioner is to be determined at the point of time of appointment and not at the time of passing the impugned order of removal.

4. The aforesaid issue that the impugned order was passed by a subordinate officer than the appointing authority was not specifically raised in the writ petition and, therefore, counsel for the respondent took up an objection in allowing the petitioner to take up the said issue. However, since the said issue relates to an issue in law, I allowed the petitioner to raise the said issue during the course of hearing on which I allowed the respondent to make submissions by adjourning the matter to a subsequent date. Counsel for the parties were heard at length and I propose to dispose of the writ petition by the present judgment and order.

5. The issue that, therefore, arises for my consideration is that as to whether the order of removal passed against the petitioner by the respondent is in conformity with Regulations 15 and 19(1) of the Regulation. The relevant provisions for appreciating the arguments and connected with the decision are extracted below:-

"2. Definitions. -

       (1)        .......
       (2)        .....
       (3)        .....

 

     (4)  "Disciplinary Authority" in relation to the imposition of  a penalty on a member of the service, means the authority competent under these regulations to impose on him that penalty." 
 

     Regulation 15 specifies the authorities which can impose the penalties as against an officer/employee. It provides as follows :- 
 
 

"15. Disciplinary Authorities. - (1) Subject to the provisions of Sub-regulation (2) and of regulation 16, and to the condition that no officer or employee may be removed or dismissed or reduced in rank by an authority subordinate to that by which he was appointed, the authorities specified in the Schedule may impose the penalties specified in that Schedule upon officer and employees of the Authority included in that Schedule."

"19. Special procedure in certain cases-Notwithstanding anything contained in regulations 16,17 and 18-

     (i)  Where a penalty is imposed of an officer or employee on  the ground  of                 conduct which has led to his conviction on a  criminal charge; 
 

     (ii)       ...... 
 

     the disciplinary authority may consider the circumstances of  the case and pass such orders thereon as it deems fit." 

 

     In order to appreciate the contention of the counsel for the  parties, it is also necessary to refer to the Schedule referred to in the  aforesaid Regulation 15. 
 

     The  petitioner admittedly was holding a Class IV post at the time  of her  removal from service. The said Schedule provides that so far Class  IV posts  are concerned the Authority empowered to appoint and  the  Authority empowered  to impose penalties on a Class IV employee is the  Vice-Chairman (Engineer Member Finance & Accounts Member). 
 

6. Counsel for the respondent during the course of his arguments, however, submitted that the aforesaid Schedule relating to Class IV post has undergone amendment and that under the amended provision relating to Group D post which also the includes Class IV post, the appointing authority is the Director (Personnel) and the authority empowered to impose penalty is the Director (Personnel)/ Executive Engineer. The aforesaid amendment came into force with issuance of a notification dated 1.3.1994. Relying on the aforesaid provisions, counsel for the respondent submitted that the order of removal was passed in the instant case by the Director (Personnel) on 5.9.1995 in accordance with the said amended provisions of the Schedule and, therefore, the said order cannot be said to have been passed by a subordinate authority as it was passed by the competent authority in terms of Regulation 15 read with the Schedule.

7. There is no dispute to the fact that the petitioner was appointed to the Class IV post by an order issued by the Vice-Chairman of the Delhi Development Authority. Subsequent to her appointment and during the period of her service, the Schedule has undergone an amendment to the aforesaid extent whereby the appointing authority/punishing authority for Class IV post has been substituted by the Director (Personnel) in place of Vice-Chairman. There is also no dispute that as of 1995 when the order of removal was issued, the Director (Personnel) was the appointing authority as also the punishing authority in respect of employees holding Class IV post. Therefore, the question that arises for my consideration is whether the aforesaid order of removal passed by the Director (Personnel) infringes the provision of Regulation 15 read with Regulation 19.

8. It is not disputed that the petitioner was removed from service by the Director (Personnel) who is an authority subordinate in rank to the Vice-Chairman, who appointed the petitioner in service. In support of her contention, the learned counsel for the petitioner relied upon the ratio of the decision in Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Majdoor Sabha; as also the decision of the Supreme Court in Dharam Dev Mehta Vs. The Union of India and Ors.: reported in 1980 U.J. (S.C.) 1980 as also the decision of this Court in S.C. Mehta Vs. Union of India and others.,z reported in 1983 (3) SLR 714. While refuting the aforesaid submission of the counsel for the petitioner, counsel for the respondent in support of his contention relied upon the ratio of the decision in State Bank of India Vs. S. Vijaya Kumar; .

9. In Krishna Kumar Vs. The Divisional Assistant Electrical Engineer, Central Railway and others; , it was held by the Supreme Court that whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment and that it is at that point of time that the constitutional guarantee under Article 311(1) becomes available. It was further held that subsequent authorisation made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant would not confer upon him the power to remove him. It was also held that an Officer subordinate to another would not become his equal in rank by reason of his coming to possess some of the powers of that another. In Dharam Dev Mehta (supra), it was held that the order of appointment, to be legal, must be issued by the Comptroller and Auditor General, who was the appointing authority and is the competent person and could not have been issued by the Director of Commercial Audit who is a subordinate Officer. Similar is the reasoning of this Court in the decision of S.C. Mehta (supra). The decision relied upon by the respondent in this context was the decision in State Bank of India (supra). In the said decision it was held that under Article 311(1), the words used are "by which he was appointed" whereas, in Regulation 55(2)(a) of the State Bank of India General Regulations, 1955, there are no such words "by which he was appointed" and that in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. On consideration of the said difference it was held that, the right guaranteed in case of the officers or employees of the State Bank was that the order of dismissal could not be passed by an authority lower than the appointing authority.

10. The aforesaid decisions, therefore, clearly bring out the difference between the expressions "the order of removal cannot be passed by an authority lower than the appointing authority" and "the order of removal cannot be passed by an authority subordinate to that by which he was appointed". Article 311(1) provides that no person who is a member of a civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. When the said provision is considered in the light of the provisions in the Regulation in hand, it is clear and apparent that the provision of Regulation 15 is similar to the provision of Article 311(1) of the Constitution. On the other hand, the provision contained under Regulation 55(2)(a) which was to be considered and interpreted by the Supreme Court in the decision in State Bank of India (supra) was worded in a different language. In that context, it was held by the Supreme Court that the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority whereas, the right guaranteed in case of the officers or employees of the Delhi Development Authority is that the order of dismissal/removal cannot be passed by an authority subordinate to that by which he was appointed.

11. In view of the aforesaid material difference in the language of the two provisions, in my considered opinion, the ratio of the decision in State Bank of India (supra) is not applicable to the facts and circumstances of the present case. This conclusion is also in consonance with the decision of the Supreme Court in Krishna Kumar (supra) for in that case, the provisions contained in Article 311(1) was considered by the Supreme Court and in that context held that, whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment and that it is at that point of time that the constitutional guarantee under Article 311(1) would become available and that the subsequent authorisation made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant cannot confer upon him the power to remove him. The aforesaid ratio of the Supreme Court is clearly applicable to the facts and circumstances of the present case. Even the subsequent empowerment made in favour of the Director (Personnel) by virtue of the amendment made in the Schedule in the year, 1994 could not and did not change the situation where the order of appointment was made by a higher authority. The writ petition is, therefore, required to be allowed on this score alone. The impugned order, therefore, is required to be set aside, which I hereby do and she is ordered to be reinstated in service. However, it is not the end of the matter for at this stage it would be necessary also to decide as to what relief including consequential relief the petitioner is entitled to.

12. It is an admitted position that the petitioner prior to issuance of the order of removal was under suspension on the basis of an order issued by the respondent placing her under suspension. The order of removal has been ordered to be set aside because the same was passed by an authority not empowered to do so. In the context thereof, while setting aside the order of removal, it is ordered that the petitioner on reinstatement would have the status of a suspended employee on the date on which she was removed from service and would continue to be so till an order is passed by the competent authority. So far the prayer for arrear salary is concerned, the respondent is directed to decide as to whether the petitioner would be entitled to full salary or only subsistence allowance for the entire period of suspension and I refrain from expressing any opinion on that aspect of the matter. These directions are being issued in conformity with the decisions of the Supreme Court in Baldev Raj Guliani Vs. The Punjab & Haryana High Court and Others; 1976 Supreme Court Case (L & S) 571 and also as stated in paragraph 31 in the decision in Managing Director, ECIL Vs. B. Karunakar; . It is also needless to mention that since the order of removal has been set aside on a technical ground and for violation of the provisions of Regulation 15, it would be open for the respondent to proceed against the petitioner in accordance with law.

13. The writ petition stands allowed to the aforesaid extent, but, without any costs. Pending application stands disposed of accordingly.