P.R.R. Nair vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 251 Del

JUDGMENT

Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner praying for quashing and setting aside the charge sheet dated June 22, 1988 issued by the respondent No.3 as also the order dated January 5, 1999 passed by the respondent No. 3 appointing an Inquiry Officer to enquire into the charges levelled against the petitioner.

2. The petitioner was appointed as the Registrar of the respondent Institute and he was placed in the pay scale of Rs.4,500-Rs.7,300. He was so appointed after his case for such appointment was recommended by the selection committee and his case was approved by the Executive Committee in its meeting held on February 27, 1996. The aforesaid order of appointment was issued by the Joint Director of the Institute. While the petitioner was working as the Registrar of the respondent Institute, the respondent No.3 was directed by an order dated August 1, 1997 issued by the Ministry of Human Resource Development to assume the charge of the Director of the Institute with immediate effect. The aforesaid appointment of the respondent No.3 was also approved by the Appointments Committee of the Cabinet. The said approval was granted by memorandum dated November 19, 1997 approving the proposal for entrusting the additional charge of the post of the Director of the respondent Institute without any extra remuneration for a period of six months or till a regular incumbent joins or until further orders. The aforesaid approval was renewed from time to time and the said respondent NO.3 was discharging the duties of the Director of the Institute when a departmental proceeding was instituted against the petitioner.

3. A charge sheet was issued to the petitioner on June 22, 1988 under the signature of the respondent No.3 enclosing therewith a statement of imputations of misconduct concerning articles of charges framed against the petitioner. By the aforesaid memorandum issued on June 22, 1988 the petitioner was asked to submit his reply as against the charges drawn up against him. The petitioner submitted his reply as against the aforesaid charges. However, the aforesaid reply was found to be not satisfactory and, therefore, it was decided that the departmental enquiry would continue against the petitioner and accordingly a request was sent to the Central Vigilance Commission for lending the service of an officer to act as the Inquiry Officer in the departmental proceeding. The aforesaid request of the respondent Institute was accepted and an officer was assigned to the respondent Institute to act as the Inquiry Officer in the proceeding against the petitioner. The Inquiry Officer received evidence adduced by the parties and thereafter he submitted his report. However, in the said report the Inquiry Officer found the petitioner to be not guilty of the charges. In the meantime, a full time Director was appointed by the respondent before whom the aforesaid findings of the Inquiry Officer were placed. The said Director upon going through the report submitted by the Inquiry Officer did not agree with the findings of the Inquiry Officer and the tentative reasons for not agreeing with the findings of the Inquiry Officer were recorded which were sent to the petitioner as required in accordance with the principles of the natural justice as laid down in the decision of the Supreme Court in Punjab National Bank and others v. Kunj Behari Misra and another, 1998 -II-LLJ-199 (SC). The petitioner is yet to submit his reply as against the aforesaid memorandum issued by the Director of the Institute on February 5, 2003.

4. It is, however, to be noted that in the writ petition the petitioner has merely challenged the validity and legality of the charge sheet and also the order of the respondent No.3 appointing the Inquiry Officer on the ground that the said respondent No.3 lacks the power and jurisdiction to issue the charge sheet and also the order appointing the Inquiry Officer inasmuch as he is not the appointing authority. As the request of the petitioner to stay further proceedings in the departmental proceeding was not granted by this Court and as only an interim order was passed directing that no final order in the departmental proceeding should be passed till the disposal of the writ petition, the enquiry proceeding initiated against the petitioner was continued and the same has reached the aforesaid stage as mentioned hereinabove.

5. The contention of the counsel appearing for the petitioner before me is that the respondent No.3 was appointed only as In-charge Director of the Institute and, therefore, he did not have either the power and jurisdiction to issue the charge sheet or the order appointing the Inquiry Officer. The next submission of the counsel appearing for the petitioner is that the appointing authority of the petitioner in terms of the Service Regulation is not the Director but the Executive Committee and, therefore, a case of departmental proceeding against the petitioner could have been initiated and conducted under the directions only of the Executive Committee and, therefore, the said proceeding initiated by the Director is illegal and void ab initio. It was also sought to be submitted by the counsel appearing for the petitioner that drawing up the departmental proceeding against him by the respondent No.3 is vitiated by malafide and malice in law as the respondent No.3 was not favorably placed against the petitioner as the petitioner as the Registrar of the Institute in the proper discharge of his duties did not accede to some unwarranted request of the respondent No.3 due to which the aforesaid action is initiated which is ex facie malafide.

6. Counsel appearing for the respondents, however, submits that the Director of the Institute is the appointing authority of the petitioner and, therefore, he is legally competent and also has the jurisdiction to initiate and conduct a departmental proceeding against the petitioner and also to issue the notice dated February 5, 2003. He, however, submits that even assuming for the sake of arguments that the respondent No.3 is not the appointing authority, even in that case a subordinate authority to the disciplinary authority could always initiated and conduct a departmental proceeding, but in such a case, the final order imposing the penalty is only required to be passed by the disciplinary authority. It is also submitted that as no final order is passed in the departmental proceeding, therefore the writ petition filed by the petitioner is premature and is required to be dismissed on that ground alone.

7. Having heard the learned counsel appearing or the parties and having perused the records, I may now proceed to dispose of this writ petition recording my reasons therefore.

8. I may first deal with the issue that is raised by the petitioner regarding the competence of the respondent No.3 to issue the charge sheet against the petitioner in the present case. The petitioner was appointed as the Registrar of the Institute by an order issued on February 27, 1996 when the unamended service regulation was in operation. S.R. 8 of the said regulation provides that the appointment to a post under the Institute could be made by the Director in the case of a post carrying a pay scale, the maximum of which is Rs.3,500. The petitioner was appointed to a scale, the maximum of which was Rs.4,500. If in case the post occupied by the person carries a scale, the maximum of which is more than Rs.3,500, in that case the appointing authority shall be the Executive Committee. It is pointed out that subsequent to the Fifth Pay Commission Report the service regulations have been amended and under the present SR 8 it is provided that appointment to a post under the Institute could be made by the Director in the case of a post carrying a maximum scale of Rs.10,500 other than a post specified in (a) and (b) which are mentioned therein. The petitioner is now placed in a scale the maximum of which is more than Rs.10500. However, the said issue may not detain me at this stage as it is also the submission of the respondent Institute that even if the respondent No.3 is not the appointing authority yet the respondent No.3 being the Director of the Institute and being the principal executive officer could have discharged the duties and responsibilities of issuance of a charge sheet and passing an order of appointing an inquiry officer, only prohibition, if any, being his inability to pass a final order in the departmental proceeding. In support of the said contention the counsel appearing for the respondents relies upon the decisions of the Supreme Court in Inspector General of Police v. Thanasiappan, , P.V. Srinivasa Sastry and others v. Comptroller & Auditor General and others, , State of Madhya Pradesh and others v. Shardul Singh, , and Director General, ESI and another v. T. Abdul Razak, . In Thanasiappan's case (supra) it was held by the Supreme Court that Article 311(1) of the Constitution of India does not in term require that the authority empowered under that provision to dismiss or remove an officer should itself initiate or conduct the enquiry proceeding. The dismissal or removal of the officer or even the enquiry could be done at his instance. It was also held that the only right guaranteed to a civil servant under that provision is that he should not be dismissed or removed by an authority subordinate to that by which he was appointed. It was further held by the Supreme Court that it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority as there is nothing under the rules which would induce the Supreme Court to read in the rules such a requirement. In Transport Commissioner v. A. Radha Krishna Moorthy, , it was held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority. It is thus established from the ratio of the aforesaid decision that initiation ad conducting an enquiry could be done by an authority other than the authority competent to impose the penalty. Therefore, unless a statutory rule specifically so requires that such proceeding is to be initiated and conducted only by a disciplinary authority, the same could be so done even by a subordinate authority.

9. I have considered the provisions of the Memorandum of Associations and Rules as also the service regulations in the instant case and on perusal of the same I am satisfied that there is no requirement under those provisions that it is only the disciplinary authority who could alone draw up a disciplinary proceeding, issue a charge sheet and conduct the enquiry. It is no doubt true and imperative that an order imposing the penalty should be passed only by the disciplinary authority. In that view of the matter, I am of the considered opinion that issuance of the charge sheet and the order of appointment of the Inquiry Officer by the respondent No.3, which are the impugned orders in the present writ petition, which are the basis of filing the present writ petition cannot be held to be illegal and void. The contention, therefore, stands rejected . However, during the pendency of the writ petition in this Court the departmental proceeding continued and the same has arrived at a stage when the Inquiry Officer has submitted his findings absolving the petitioner from the charges. A power is vested on the disciplinary authority to disagree with the findings of the inquiry officer but in that event he is required to record tentative reasons of his disagreement and send the same to the petitioner so as to provide him an opportunity as required in accordance with the principles of natural justice and as laid down in Kunj Behari (supra). Such a memorandum containing the tentative reasons of disagreement was sent to the petitioner by the present Director of the Institute who is appointed by the Institute as a full time Director. However, in the facts and circumstances of the of the present case and without giving any final opinion on the issue as to who is the appointing authority of the petitioner, I am of the considered opinion that it would be appropriate and befitting to direct the Executive Committee of the Institute which is the highest decision making body of the Institute itself to conduct and consider the proceeding against the petitioner from the present stage of the enquiry. The counsel for the petitioner also has taken a fair stand on instructions from the petitioner that the petitioner would have no objection to file a reply as against the aforesaid memorandum which is issued by the Director of the Institute in which the petitioner should be allowed to take up the plea that the findings recorded by the Inquiry Officer is legal and that there is no occasion for the disciplinary authority to disagree with the said findings. I find the request to be bonafide and valid and allow the petitioner to submit such a reply to the said memorandum treating the same to be the memorandum of the Institute.

10. Since the respondent No.3 has since vacated the office and a new full time Director has been appointed, the allegation of malafide now shall have no relevance and would not be material as the respondent No.3 shall have no further occasion to deal with the departmental proceeding of the petitioner in any manner. The said allegation accordingly requires no consideration and decision from this Court. It shall, however, be open to the Executive Committee to examine if the departmental proceeding initiated against the petitioner was in any manner persuaded or influenced by any malafide.

11. It is also made clear that the petitioner shall submit his reply within three weeks from today as against the memorandum issued by the present Director of the Institute dated February 5, 2003. The said reply along with the entire records of the disciplinary proceeding shall be placed before the Executive Committee for consideration. The Executive committee shall consider the entire records including the reply of the petitioner with an independent, fair and unbiased mind and thereafter arrive at a decision in accordance with law.

12. In terms of the aforesaid observations and directions, this writ petition stands disposed of.