Shri Om Prakash Sharma vs Union Of India
2001 Latest Caselaw 1011 Del

ORDER

Khan, J.

1. Petitioner, LDC in COC is resisting his compulsory retirement. He challenged respondents last action in this regard in O.A.771/1992 before CAT which was dismissed by impugned order. He then filed this petition in which notice was issued on the limited question whether Director Ordnance Services (DOS) or OIC-AOC (Records) was competent authority to compulsorily retire him from service. He was asked to produce the letter of appointment to resolve the dispute by court order dated 18.8.2001, but he failed. He has filed an additional affidavit, though, reiterating his stand that he was appointed LDC by DOS, who alone was competent to compulsorily retire him and not his sub-ordinate Authority, OIC-AOC (R). Therefore all that remained to be seen was whether OIC-AOC (R) was competent to pass his order of compulsory retirement.

2. Petitioner's case has a chequered history and has gone through many ups and down. It speaks volumes of his tenacity and perseverance as he was fighting it out since 1972. It all started when he was charged of impersonating for one Mr.R.C. Sharma and was ordered to be compulsorily retired after enquiry on 1.7.1974. He took departmental appeal against this which was rejected. He then filed suit no. 300/1976 before Munsif, Agra to challenge this which was decreed on 26.3.1980. Respondents filed appeal against the decree which was dismissed on 19.4.1982 though liberty was granted to them to initiate fresh disciplinary proceedings. Pursuant thereto he was put on deemed suspension and after on second enquiry was again ordered to be compulsorily retired by order dated 11.10.1985 passed by OIC-AOC (Records). He filed appeal against it, but failed. He then challenged his order of deemed suspension in a writ petition before Allahabad High Court which was dismissed in liming on 26.8.1983. He again filed a suit (no. 750/1984) before Civil Judge, Agra to at the same time to restrain respondents from initiating any fresh disciplinary proceedings against him which was transferred to CAT, Allahabad (O.A. 386/1986) and was eventually dismissed vide order dated 3.10.1988. He took appeal against this which was also dismissed. Meanwhile, respondents passed second order of compulsory retirement dated 11.10.1985 against him which he challenged in O.A. 751/1986 before CAT, Allahabad and which was transferred to Principal Bench, Delhi (OA 464/1990) where it was allowed for non-supply of copy of enquiry report. Respondents were, however, allowed to continue disciplinary proceedings against him from the stage of enquiry report. The report was made available to him later but all the same, he was again ordered to be compulsorily retired third time by order dated 25.5.1992 passed by OIC-AOC (Records). He challenged this O.A. 771/1992 which was held barred on principle of res-judicata and dismissed by impugned order. A bitterly fought legal battle indeed and now this petition to be decided on the limited question of jurisdiction of OIC-AOC (Records) to pass his order of compulsorily retirement.

3. Petitioner's case is that he was appointed way back on 29.5.1962 as LDC (Class-III post) in COC, Agra by DOS and that order dated 30.9.1966 passed by OIC-AOC (Records) and projected by respondents as appointment order was only appointing him in quasi permanent capacity. He says that the appointing authority must necessarily fall under Rule 2(a)(iii) of CCS Rules, 1965 and that under Sub Rule 4 of Rule 12 of these Rules, penalties specified in sub rules (v) to ((ix)) of Rule 11 could be imposed only by the appointing authority and not by the authority subordinate to him. His further case is that the alleged delegation of powers of disciplinary authority to OIC-AOC (Records) under Presidential Notification dated 13.8.1979 was not attracted to his cause which had arisen in 1974 as it could not be given retrospective operation. He also finds fault with such delegation which according to him could be made only temporarily and not on permanent basis. He lastly asserts that only DOS was his appointing authority as decreed by Civil Court in his suit no. 300/1976 which finding had assumed finality and he alone could have imposed punishment of compulsory retirement on him.

4. Respondents case on the other hand is that it was OIC-AOC (Records) who had appointed him by order dated 30.9.1966 and that he was competent to compulsorily retire him from service. It is alternatively submitted by them that OIC-AOC (R) was made disciplinary authority under Presidential Notification dated 13.8.1979 passed under Clause (a) of Sub Rule (ii) of Rule 12 and 24 of CCS (CCA) Rules delegating power to impose all provided penalties on group "C" and "D" employees and that there was no scope to doubt his competence and jurisdiction in the matter.

5. There is no dispute about some of the propositions put in service by petitioner. It is true that appointing authority has to fall within the parameters of Rule 2(a) of CCS Rules and that penalties specified in Sub-Rules (v) to (ix) of Rule 11 of these Rules could not be imposed by any subordinate authority to the appointing authority. But, matter assumes a different complexion where a Presidential Notification issued under the Rules appoints a disciplinary Authority as in the present case and vest power in him to impose specific penalties on a category of employees. Petitioner has not questioned the validity of this Notification as such and so long as it is in force, OIC-AOC (R) becomes the competent Authority to impose the punishment of compulsory retirement on petitioner.

6. This position emerges if petitioner's case was taken at its best and it was assumed that he was appointed LDC by DOS in 1962. As it i, there is nothing on record to show that he was appointed by DOS. His was granted opportunity to produce his letter of appointment and to prove his point but he failed. His contention that Munsif Agra's finding in his suit no. 300/1976 that DOS was his appointing Authority should be treated final also cannot be accepted as the subject matter of that suit was his compulsory retirement of 1974 when Presidential Notification appointing OIC-AOCc (R) as disciplinary Authority had not come into existence. His further submission that this Notification could not take retrospective effect to apply his case is also misconceived as this was very much in force when his 1992 compulsory retirement order was passed.

7. As against his respondents have produced his appointment order dated 30.9.1966 backed up by his service book entries and also the copy of Presidential Notification to show that OIC-AOC (R) was competent to pass petitioners order of compulsory retirement.

8. We accordingly hold that OIC-AOC (R) was competent to impose punishment of compulsory retirement on petitioner on the strength of Presidential Notification which is in force. No other question or issue was required to be examined or answered.

9. Petition is accordingly dismissed.