Union Of India & Ors. vs Ram Karan Sharma
2010 Latest Caselaw 532 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P. (C.) No. 7895/2009

%                                           Date of Decision:01.02.2010

UNION OF INDIA & OTHERS                           .... Petitioners
                  Through Mr. H.K. Gangwani, Adv.

                                   Versus

RAM KARAN SHARMA                                                .... Respondent
                Through Mr. M.M. Sudan, Adv.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                    Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                       No
3.     Whether the judgment should be reported in                   No
       the Digest?



MOOL CHAND GARG, J.

*

1. The short point involved in this matter is as to whether the

initiation of enquiry just a day before the retirement of the respondent

on the charges framed against him as per the charge memorandum

dated 30.01.2006 could be sustained by the petitioners and is justified

under Rule 14 of the Central Civil Services (Classification, Control and

Appeals) Rules 1965.

2. The charges leveled against the petitioner are reproduced for the

sake of reference:

Statement of Articles of Charge framed against Shri Ram Karan Sharma, Deputy Director (Horticulture)

Shri Ram Karan Sharma, Deputy Director (H) while working as Deputy Director (H), Horticulture Division-V during the period 31.01.2001 to 01.05.2001 committed the following lapses:

Article-I

a) Shri Ram Karan Sharma, Deputy Director (H) placed 4 Nos. Work Orders costing more than Rs. 1 lakhs each during 2001-2002 which were beyond his competency as per financial powers delegated to CPWD officers as per CPWD Manual Vol.II (1988 edition) and without taking the approval of the competent authority.

b) Shri Ram Karan Sharma, Deputy Director (H) approved the work orders worth Rs. 28,86,619/- during 2001-2002 exceeding financial limit of Rs. 15 lakhs per annum as per financial power delegated to CPWD officers as per CPWD Manual Vol.II (1988 edition).

Article-II

a) Shri Ram Karan Sharma, Deputy Director (H) procured materials other than liveries, stationery etc. costing Rs. 2,64,719/- during 2000-2001 and Rs. 27,24,097/- during 2001-2002 respectively and as per Appendix I & II on various unauthorized cooperative stores without ensuring the requirement of reasonability of rates which was in violation of DG(W)'s instructions issued vide No.15/Misc./93- VS.I dated 03.06.93 and DOPT OM No. 14/3/88- Welfare dated 04.02.88 and 14/3/95-Welfare dated 03.08.95.

b) Shri Ram Karan Sharma, Deputy Director (H) placed indents for local purchase of materials other than liveries, stationery etc. from unauthorized consumer cooperative stores worth Rs. 27,24,097/- during 2001-2002 respectively in excess of local purchase power delegated to CPWD officers thereby contravening the provisions CPWD Manual Vol.II (1988 edition).

Thus, the said Shri Ram Karan Sharma, Deputy Direction (H), by his above acts failed to maintain absolute integrity and exhibited lack of devotion to duty thereby contravening Rules 3(1)(i) and 3(1)(ii) of CCS (Conduct) Rules-1964.

3. It has been submitted by the counsel for the petitioner that the

aforesaid charge-sheet was issued to the respondent as by the

impugned action the respondent caused financial loss to the petitioners

and, therefore, the petitioner was entitled to hold a departmental

enquiry even at the verge of retirement of the respondent as per the

provisions contained under CCS (CCA) Rules 1965 in accordance with

Rule 9(5)(b)(ii) of the CCS Pension Rules 1972. The petitioner has

prayed for quashing of the order dated 07.12.2006 in OA No. 370/2006

which was preferred by the respondents against the impugned action of

the petitioners.

4. The respondent who retired as Deputy Director (Horticulture) on

31.01.2006 assailed the memorandum issued to him on 30.01.2006

initiating departmental disciplinary proceedings against him in respect

of charges as stated above. Charges pertained to the period 2001-2002

in the OA No. 370/2006 which had been set aside by the Central

Administrative Tribunal. Primary attack about the issuance of

aforesaid memorandum was on two accounts i.e. firstly the

memorandum dated 30.01.2006 was not issued by any authority

competent to start disciplinary proceedings against the petitioner. The

second point which was taken before the Tribunal was that there was

nothing in the charge-sheet which could show that any pecuniary loss

has been caused by the respondent to the petitioners by the impugned

action as detailed in the memorandum of charge. It was also pleaded

that nothing was shown as to how commission of grave misconduct by

the petitioner was committed by the respondent while issuing work

orders or purchase of material as mentioned in the charge-sheet.

5. It was averred by the respondent that while working as Deputy

Director he earned excellent service records before superannuation and

was accorded vigilance clearance on 12.01.2005. It was certified that

neither there was any vigilance case pending nor being contemplated

against him. The said certificate was, however, withdrawn on

27.01.2006, a day before his retirement i.e. on 30.01.2006 Under

Secretary to the Government of India, without satisfying as to whether

the proceedings have been initiated on behalf of the President being the

appointing authority of applicant, initiated a disciplinary proceeding

against applicant under Rule 14 of the CCS (CCA) Rules, 1965, on the

allegation that he had sanctioned works beyond his sanctioning limits

i.e. work orders costing more than one lac rupees and also sanctioning

work orders beyond the limit of 15 lacs. It has also been alleged that

during the years 2000 to 2002 without ensuring reasonability of rates,

materials had been procured from unauthorized consumers cooperative

stores. Accordingly, it was alleged that it amounted to failure to

maintain absolute integrity and lack of devotion to duty under Rule 3 (i)

and (ii) of the CCS (Conduct) Rules, 1964, has been alleged. The

aforesaid is now being challenged before us.

6. The respondent also alleged that enquiry was initiated against

him on the basis of mala-fides and bias on the part of the petitioners. It

was also stated that as per the vigilance certificate dated 12.01.2005 no

such enquiry was contemplated at least up to 27.01.2006. Moreover,

the charge-sheet had not been issued under authentication of the order

of the Appointing Authority. It is only later by corrigendum dated

24.03.2006 the words "by order and in the name of President", were

added. It was, thus, alleged that charge-sheet issued to the respondent

was without jurisdiction and accordingly by resorting to Rule 14 (4) of

CCS (CCA) Rules 1965 it was specifically stated that Under Secretary

who issued the charge-sheet was not Disciplinary Authority and, thus,

had no jurisdiction to start such an enquiry.

7. The Tribunal allowed the application filed by the respondent

quashing the charge-memo dated 30.01.2006 primarily on the ground

that the charge-sheet was issued by a person who was not authorized to

do so and the authentication dated 24.03.2006 will not make the

charge-sheet valid for the reason that if a thing is to done in a

particular manner then no other manner can be adopted for executing

that thing, more particularly, when it relates to functioning of an

Executive Authority even on a quasi-judicial side. In this regard, the

Tribunal further observed:

11. CCS (CCA) Rules, 1965 and Article 311 of the Constitution of India, President is undoubtedly the appointing authority of applicant being working before superannuation on a Group A post. Rule 14 (4) of the Rules, empowers only DA to issue or calls to deliver a chargesheet. Rule 12 of the CCS (CCA) Rules, empowers the President to impose any punishment upon a Government servant. However, Authentication Rules ibid authorize when an order passed by the President to be authenticated by the Under Secretary. However, the

condition precedent for such an order is that the President accords his approval for initiating a disciplinary proceeding against a Government servant of the particular category being the DA. However, under the Delegation of Powers the Minister concerned of the Ministry has been delegated upon the functions of the DA by the President but this power is to be exercised in the name of the President. Whatever transpires in the file or withheld cannot be a substitute of the order and has to be adjudged on the touchstone of the person issuing order whether acting for the competent authority or on his behalf.

12. In the above backdrop, if the memorandum issued to applicant on 30.1.2006 was issued by the Under Secretary to the Government of India, though a competent authority to authenticate the orders of the President, non-mentioning of the words that it has been issued in the name of the President and a subsequent corrigendum to this effect issued on 24.3.2006 would not cure the defect as the DA has either himself and or through the delegated authority should issue a chargesheet to initiate disciplinary proceedings and this has to be in expressed terms reflect in the order. If this was the only irregularity and the approval of the concerned Minister was taken on file on 27.1.2006, as it appears from the record, there would have been no occasion for the respondents to have rectified through corrigendum their mistake of not to incorporate for and on behalf of President being DA. In nutshell, the chargesheet issued by the Under Secretary without mentioning as to acting on behalf of the President has been discussed by the Tribunal in one of the cases of termination in S.P. Tantis case (supra), where the following observations have been made:

11. No doubt, as per the Allocation of Business Rules and principle of subordinate legislation the Competent Authority, i.e., Appointing Authority for a Group A officer is the President of India who has validly delegated its power to the Minister of State concerned. However, the requirement of Rule 5 (1), which is statutory framed under Article 309 of the Constitution of India cannot be dispensed with. The order of termination has not been passed by the Competent Authority, i.e., Appointing Authority of applicant and approval on file by the Minister of State cannot legalise the order. The order should have been passed in the name of the President by the Competent Authority.

15. If one has regard to the above, in the present case having no legal communication of either approval of the corrigendum before applicant to be retired on

superannuation, we do not find any legal service effected of the memorandum upon applicant and as it has been issued by an incompetent authority, the memorandum cannot sustain in law. We also find that under Rule 9 (vi) of the Pension Rules the departmental proceedings shall be deemed to be instituted on the date when the statement of charges is issued to a Government servant and the issuance would be complete and legal only when it is passed with all formalities attached and by the competent authority. In such an event the order is complete in its entirety with all formalities only on 24.3.2006 through a corrigendum and this is an effective date. As the chargesheet has not been served upon applicant during the service tenure, Rule 9 (2)(a) (b) of the Pension Rules would have to be invoked and operated upon.

8. For invoking the provisions contained in Rule 9(2)(a)(b) of the

Pension Rules it was necessary for the petitioners to establish that the

charge-sheet was in respect of committing grave misconduct or

negligence alleged or causing any pecuniary loss to the Government, as

held by the Apex Court in D.V. Kapoor Vs. Union of India 1990 (4) SCC

314.

9. During the course of arguments, we asked the counsel for the

petitioner to inform us as to whether there are any allegations of

committing a grave misconduct or causing any pecuniary loss to the

Government by the public servant i.e. the respondent within 4 years

from the date of his retirement. However, no such allegation has either

been made in the charge-sheet nor has been brought to our notice by

the learned counsel for the petitioner.

10. In these circumstances, we find full justification in the order of

the Tribunal in allowing Original Application and quashing the

memorandum dated 30.01.2006. We find no infirmity in the aforesaid

order requiring any interference by us under Article 226. The writ

petition is, therefore, dismissed.

MOOL CHAND GARG, J.

FEBRUARY 01, 2010                          ANIL KUMAR, J.
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