Delhi High Court

Rajesh Joshi vs Uoi & Anr. on 6 October, 2009

Author: Pradeep Nandrajog

R-9


*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 6th October, 2009

+                         W.P.(C) 199/1991


         RAJESH JOSHI                          ..... Petitioner
                   Through:    Mr. V.Shekhar, Sr. Adv. with
                               Mr. Pradeep K.Dubey, Adv.,
                               Mr. Zangpo Sherpa, Adv. &
                               Ms. Deepakshi Jain, Adv.

                               versus

         UOI & ANR.                           ..... Respondents
                   Through:    Mr. R.Balasubramanian, Adv.


         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

1.       Whether the Reporters of local papers may be allowed to
         see the judgment?

2.       To be referred to the Reporter or not?             Yes

3.       Whether the judgment should be reported in the
         Digest?                                        Yes

PRADEEP NANDRAJOG, J. (ORAL)

1. On 22.1.1991 show cause notice as to why rule nisi

be not issued was restricted in the following language:-

"Notice to show cause as to why rule nisi be not issued for February 15, 1991. Notice is confined to the question as to whether UPSC can in its discretion enhance the punishment suggested by the disciplinary authority."

2. On 5.12.1991 limited rule was issued in the

following language:-

"Mr. Shekhar says that the revision petition has since been dismissed by order dated 14.3.91. A copy of that order he has filed along with his rejoinder.

When notice to show cause was issued in this matter, it was confined to the question as to whether UPSC could in its discretion enhance the punishment suggested by the disciplinary authority. As a matter of fact if reference is made to the advise rendered by the UPSC (Pages 116 to 123) the UPSC said that in its opinion the ends of justice would be met if the penalty of removal from service was imposed on the officer, and the UPSC, therefore, advised the department accordingly. The disciplinary authority had proposed the penalty of compulsory retirement. Mr. Mathur says that the UPSC had merely advised the department and that advise was not binding on the department as such. However, Mr. Shekhar points out that after the advise of the UPSC was received there is nothing on the record to show as to what happened after considering thereof and the petitioner in any case did not receive any notice to show cause for the proposed penalty of termination of service. Limited to this we issue Rule."

3. Thus, final hearing of the writ petition has been

restricted to the question whether UPSC could in its discretion

enhance the punishment suggested by the disciplinary

authority.

4. The answer takes us straight to the Constitution of

India. Two articles of the Constitution need to be noted. The

first is Article 311 of the Constitution of India and the other is

Article 320 of the Constitution of India.

5. Article 311 of the Constitution of India reads as

under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to

dismiss or remove such person or to reduce him in rank shall be final."

6. Article 320 of the Constitution of India reads as

follows:-

"320. Functions of Public Service Commissions.

- (1) It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments to the services of the Union and the services of the State respectively.

(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more State so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.

(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted -

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings

instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award,

and it shall be the duty of a Public Service Commission to advice on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor, of the State, may refer to them:

Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect maybe given to the provisions of Article 335.

(5) All regulations made under the proviso to clause ( 3 ) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of

the Legislature of the State may make during the session in which they are so laid."

7. Suffice would it be to state that post Constitution

42nd Amendment, with effect from 3.1.1977, the requirement of

a second show cause notice pertaining to the penalty proposed

to be inflicted upon a civil servant has been done away with.

The proviso to Article 311 (2) of the Constitution of India

evidences that the mandate of the Constitution is to afford an

opportunity to the delinquent to represent with respect to the

findings at an inquiry. The proviso expressly states that it shall

not be necessary to give such person any opportunity of

making representation on the penalty proposed.

8. Union Public Service Commission is an authority

created under the mandate of the Constitution i.e. Article 315

of the Constitution of India. A perusal of Article 320 of the

Constitution of India shows that of the various functions of the

Union Public Service Commission, one of the function of the

Commission, vide sub-clause (c) of sub-article 3, is to assist on

all disciplinary matters affecting a person serving under the

Government of India or the Government of a State in a civil

capacity, including memorials or petitions relating to such

matters.

9. Thus, it is apparent that in the case of the present

petitioner, consultative process with the UPSC was mandatorily

to be followed in relation to the disciplinary proceedings which

were initiated against the petitioner.

10. Indeed, during arguments learned counsel for the

petitioner did not question the action of the respondents in

taking consultative advice from Union Public Service

Commission.

11. Time to get into the facts of the present case.

12. The petitioner was appointed as a Deputy

Superintendent CRPF on 22.11.1976. On 2.1.1988 a charge

memo was issued to the petitioner alleging two charges

against the petitioner. Inquiry officer was appointed who

submitted a report on 4.7.1988. The report indicted the

petitioner on both counts. On 4.1.1989 the inquiry report was

furnished to the petitioner for his response informing the

petitioner that the disciplinary authority would take a decision

keeping in view the facts brought out in the inquiry report.

13. Before the inquiry report was furnished to the

petitioner for his response, on 7.7.1988 the Deputy Director

Establishment penned a note for consideration by the Director

General of CRPF informing the Director General that five major

penalties were provided under the service rules. Opinion of the

Director General was sought as to which punishment would be

recommended by him.

14. Processing the note, on 22.7.1988 the IGP (HQ)

penned a note that a tentative decision to impose the major

penalty of compulsory retirement may be approved. The next

day i.e. on 23.7.1988 the Director General approved the

tentatively proposed punishment of compulsory retirement.

15. Since the mandate of Article 320(3)(c) of the

Constitution of India required consultative process with UPSC, a

communication was sent to the Union Public Service

Commission informing the Commission the tentative opinion of

the Director General for imposing the penalty of compulsory

retirement with reference to the findings of the inquiry officer.

16. UPSC considered the report of the inquiry officer

and the record of the inquiry officer. UPSC opined that the

proposed penalty of compulsory retirement was not adequate

penalty and advised that the penalty of removal from service

should be imposed.

17. We may note that before giving the advice UPSC

had the benefit of the response of the petitioner to the report

of the inquiry officer which response was specifically sought by

the UPSC.

18. We may note at this stage that the original record

pertaining to the disciplinary proceedings and the

communication between the respondent and UPSC has been

shown to us in Court today.

19. Proceeding ahead, after receiving the advice from

UPSC, a note was penned on 6.7.1990. The note was for the

benefit of the Director General CRPF. The note clearly refers to

the hiatus between the penalty proposed and tentatively

approved by the Director General and the penalty proposed as

per the advice received from the UPSC.

20. At each stage thereafter, each officer who

processed the file, consciously penned the fact that the

Director General CRPF should consider the matter with

reference to the recommendations of the UPSC vis-à-vis his

tentative decision pertaining to the penalty proposed i.e. of

compulsory retirement.

21. While according his final approval, post rejection of

the representation of the petitioner against the report of the

inquiry officer and agreeing with the findings of the inquiry

officer, the Director General CRPF granted approval for levy of

the penalty of removal from service.

22. The fact that the Director General CRPF has not

acted mechanically, in that, has not blindly accepted the

advice of the UPSC but has kept in mind his earlier decision is

evidenced from the office note dated 11.7.1990 penned by the

Commandant Assistant Director Establishment conveying the

final decision of the Director General. The note reads as

under:-

"MHA may kindly refer UPSC letter No.F.3/43/89-SI dated 27.6.1990 placed at page 42/corr. with Ministry‟s earlier references at pages 38 to 40/corr.

2. In this case D.E. proceedings were conducted against Shri Rajesh Joshi, DYSP. The Inquiry Officer held the charges against the officer proved. The disciplinary authority also agreed with the findings of the Inquiry Officer and came to the conclusion tentatively to impose the major penalty of „Compulsory Retirement‟ on the charged officer. The case was then referred to UPSC for advice as may be seen at pages 38 to 40/corr.

3. The UPSC has, vide their letter dated 27.6.1990 placed at page 42/corr., rendered their advice differing with the conclusion of the disciplinary authority as they considered the proposed penalty on the lower side and advised that the ends of justice would be met if the penalty of „Removal from Service‟ is imposed on Shri Rajesh Joshi, DYSP.