Ncert & Anr. vs Surinder Nath & Anr.
2010 Latest Caselaw 2944 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No. 15/1991

                                                Date of Decision: June 04, 2010

NCERT & ANR.                                   ..... Appellants
                     Through:      Mr.R.K. Singh, Advocate with
                                   Ms. Deepa Rai, Advocate,
                                   Mr. Sumeet Anand, Advocate

                            VERSUS

SURINDER NATH & ANR.                              ..... Respondents
              Through:             Mr. Vinay Kumar Garg, Advocate.

%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper 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

                            JUDGMENT

ARUNA SURESH, J.

1. Impugned in this appeal is the judgment and decree of the Trial Court

dated 13.02.1989 and that of the First Appellate Court dated

18.02.1991, whereby the suit filed by the Respondent for declaration

and permanent injunction was partly decreed and he was granted the

relief of declaration as prayed by him.

2. Precisely, the facts which led to the filing of the suit by the

Respondent No.1 are that Respondent No.1 (plaintiff in the suit) was

appointed as a Lecturer in Agriculture, Regional College of

Education, Mysore on 22.09.1964 by the Director of the appellant,

National Council of Educational Research & Training (hereinafter

referred to as „Council‟) (defendant in the suit). He was appointed in

substantive capacity w.e.f. 1.11.1965 by the appellant Council vide

letter dated 15.11.1969. Respondent was transferred and posted as

Assistant Field Advisor at Trivendrum (Kerela) vide letter dated

27.09.1978. However, Respondent did not go to the place of transfer

and instead took leave on medical ground that he was suffering from

heart ailment. Respondent failed to report to his duty either in Delhi

or in Trivendrum till 24.4.1979. Respondent disputed the receipt of

Transfer letter which according to him was received by him only in

the Court. On 16.05.1979 Appellant No.2 (Director) suspended the

Respondent and also initiated departmental proceedings against him.

The inquiry officer found him guilty of grave misconduct and

submitted his report. Consequently, the Director dismissed him from

his services vide order dated 10-11.8.1982.

3. Respondent challenged the legality and validity of the suspension

letter dated 16.05.1979, as well as his dismissal order dated 10-

11.8.1982, by way of a civil suit for declaration and permanent

injunction.

4. The Trial Court partly decreed the claim of the plaintiff (Respondent

No.1 herein) vide judgment and decree dated 13.2.1989, holding that

the suspension order dated 16.05.1979 and the dismissal order dated

10-11.8.1982 were illegal, null and void because Director was not the

appointing authority and was incompetent to pass a dismissal order.

However, the Trial Court did not grant relief of permanent injunction

as sought because, it did not find any malafide in the transfer order.

5. Challenge to the judgment and decree of the Trial Court by the

appellant Council in RC No.17/1989 dated 18.02.1991, failed as the

Appellate Court found itself agreeing with the findings of the Trial

Court.

6. Aggrieved by the judgment and decree of the courts below, this

appeal has been filed by the Council. This Court dismissed the

appeal vide order dated 4.11.2003. Being dissatisfied, appellants filed

SLP challenging the said order of this Court. SLP was accepted and

the Supreme Court vide its order dated 1.8.2007 was pleased to set

aside the order of this Court and remitted back the matter for fresh

consideration after formulating substantial questions of law.

7. On receipt of the order of remand, following substantial questions of

law were formulated for effective disposal of the appeal by this Court

vide order dated 23.3.2009:-

"1. Whether the Director is the competent authority to initiate disciplinary action and pass the suspension and dismissal order against the respondent No.1?

2. Whether the dismissal/termination order passed by the Director against the respondent No.1 is legal and valid?"

8. I have heard Mr.R.K. Singh, Advocate assisted by Ms. Deepa Rai

and Mr. Sumeet Anand, Advocates for the appellants and Mr. Vinay

Kumar Garg, Advocate for Respondent No.1.

9. My findings on substantial questions of law are as under:-

SUBSTANTIAL QUSTION OF LAW -1

10. Learned counsel for the appellants has argued that both the Courts

below did not correctly appreciate the extract of Minutes of

Governing Body Meeting dated 31.8.2006 (Ex. D-25 & D-26). The

courts misread and misinterpreted the documents. The Courts below

also did not properly interpreted the provision in the Schedule of

delegation of powers (Ex.D-10) while concluding that Director was

not the authority delegated with powers to penalize and dismiss

Respondent No.1 from services.

11. It is submitted that perusal of these documents clearly indicate that

Director is competent to appoint and therefore is the Appointing

Authority as well as Disciplinary Authority for the posts of Lecturer.

Powers of the Director as Appointing Authority as well as

Disciplinary Authority find mention in the Minutes of EC Resolution

dated 12th February, 1974 as well as in NCERT Regulations 63 and

64, Ex.AW-1/A and AW-1/E. He has argued that the Appellate

Court went wrong in interpreting the NCERT Regulations 63 and 64

while upholing the judgment and decree of the Trial Court.

12. It has been submitted by the counsel for the appellants that this Court

in another identical LPA No.140/1985, titled John Francis v/s.

NCERT & Ors‟, vide detailed judgment dated 24.12.1999, after

considering the above said documents containing the Services

Regulations and Schedule of Delegated Powers (Ex.D-10) held that

Director is the Appointing as well as Dismissing Authority. This

judgment is final on the interpretation of the abovesaid documents

and is binding upon this Court being a judgment of Division Bench.

He has also placed reliance on :-

(a) 'Jairsri Sahu vs. Rajdewan Dubey & Ors', AIR 1962 SC 83;

(b) 'Tribhovandas P. Thakar vs. Ratilal Motilal', AIR 1968 SC

372;

(c) 'S.I. Rooplal vs. LG, Delhi', (2000) (1) SCC 644;

(d) 'S. Shanmugavel Nadar vs. State of TN', (2002) 8 SCC 361; and

(e) 'John Francis vs. NCERT & Ors', LPA No.140/1985 decided by

DB on 24.12.1999.

13. It is argued that Respondent is not a civil servant and therefore is not

entitled to seek any protection provided under Article 311 of the

Constitution of India and therefore his claim that his dismissal by the

authority lower than the alleged Appointing Authority is bad, must

not be accepted. He has placed reliance on:-

(a) 'Dr. S.L. Aggarwal vs. The General Manager Hindustan Steel',

AIR 1970 SC 1150;

(b) ' M/s. Heckett Eng. Co. vs. Their Workmen', (1977) 2 SCC 377;

(c) 'Pyare lal Sharma vs. M.D., J&K Industries Ltd.', AIR 1989 SC

1854;

(d) 'SBI vs. A.K. Soundarajan', AIR 1991 SC 79;

(e) 'Indian Railway & ors. vs. Ajay Kumar', 83 (2000) DLT 242

(DB).

14. While refuting the submissions of the counsel for the appellants, it is

argued by the counsel for Respondent No.1 that Director NCERT, in

exercise of powers of Disciplinary Authority claimed to be conferred

on him by Central Civil Services (Classification Control and Appeal)

Rules of Government of India (hereinafter referred to as „CCS

(CCA) Rules‟) placed the Respondent under suspension and initiated

departmental inquiry against him in exercise of powers conferred by

sub rule (1) of Rule 10 of the CCS (CCA) Rules. The Director did not

claim that he was delegated powers by the Executive Committee to

initiate the disciplinary proceedings against the Respondent.

15. It is argued that Minutes of the Meeting of Executive Committee held

on 12th February, 1974 contained in Annual Report 1973-74 shows

that the power for appointment to the posts of professors, Readers

and Lectures were delegated by the Executive Committee to the

President NCERT to be exercised on recommendations of the

Director.

16. He emphasized that by virtue of delegation of powers in the meeting

of the Executive Committee held on 12.2.1974, the powers alleged to

have been delegated to the Director in 1966 stood superseded.

Delegations of powers w.e.f. 12.2.1974 were in force on 16 th May,

1979 when Respondent No.1 was suspended and also when his

services were terminated. Therefore, the Courts below rightly held

that the suspension order as well as the dismissal order were without

jurisdiction and authority, hence were nullity.

17. It is further argued that Shri P.N. Chawla, OSD in NCERT examined

as AW-1 in the Appellate Court as appellants witness admitted that

Ex.AW-1/A, the minutes of the meeting dated 12.21974 were

unsigned. The NCERT Rules 15, 23, 39, 41, 46, 53 and 71 do not

confer powers of Disciplinary Authority on the Director and therefore

he could not have claimed himself as delegated Appointing Authority

or Disciplinary Authority to invoke Rules contained in CCS (CCA)

Rules to suspend Respondent No.1, hold an inquiry and finally

penalize him with dismissal order. Therefore, the Courts below were

right in holding that the Director acted without jurisdiction in issuing

suspension order as well as dismissal order.

18. Learned counsel for Respondent No.1 has submitted that 'John

Francis's case (supra)‟ has no application to the facts and

circumstances of this case as the said case was regarding

appointments against temporary vacancies on terms and conditions

contained in the appointment letter and termination of services on

return of permanent appointee. He has submitted that none of the

judgments cited by the appellants are of any help to them. To support

his respective submissions, he has referred to:-

(a) 'Shanti Silk Mills (P) Ltd. & Anr. vs. Employees' State

Insurance Corporation', 1994 (5) SCC 346;

(b) 'Consumer Action Group & Anr. vs. State of Tamilnadu &

Anr.', 2007 (7) SCC 425;

(c) 'Zee Telefilms Ltd. & Anr. vs. UOI & Ors.', 2005 (4) SCC

649 (Constitution Bench);

(d) 'Uttar Pradesh State Road Transport Corporation vs.

Assistant Commissioner of Police', 2009 (3) SCC 634;

(e) 'Sanjay Singh vs. U.P. Public Service Commission', AIR

2007 SC 950.

19. Respondent No.1 was appointed to the post of Lecturer in

Agricultural vide order dated 22nd September, 1964 (Ex.D-2).

Relevant extract of the order reads:-

"No.F V-106/64-RCEU/6952 to 6954 National Council of Educational Research and Training (Regional Colleges Unit) 114, Sundar Nagar, New Delhi-11.

Dated : 22nd September 1964

ORDER

The Director, National Council of Educational Research & Training, is pleased to appoint Shri Surender Nath to the post of Lecturer in Agriculture in Regional College of Education, Mysore under the under the National Council of Educational Research & Training on a pay of Rs.400/- per month in the scale of Rs.400-30-

640-XB-40-400 with effect from 30.6.1964

(A.N.) in a temporary capacity and until further order.

Shri Surender Nath Lecturer in Agriculture, Regional College of Education, Mysore.

Sd/-

for Secretary."

20. Thus, it is clear that this order was issued by the Secretary on behest

of the Director of the Council thereby appointing Respondent No.1,

Surender Nath as Lecturer w.e.f. 30.6.1964 (AN) in a temporary

capacity till further orders.

21. Vide order dated 15/16 th November, 1969, NCERT appointed

Respondent No.1 as Lecturer in a substantive capacity w.e.f.

1.11.1965. The relevant part of this order reads:-

"No.F V-106/64-RCE/3182-85 National Council of Educational Research and Training NIE Campus, Sri Aurobindo Marg, New Delhi-16

Dated : 15th / 16th Nov.69

ORDER

The Council is pleased to appoint Shri Surender Nath as Lecturer in the Regional College of Education, in a substantive capacity, with effect from 1.11.1965.

Sd/-

(R.N.Vij) Secretary"

22. The fact remains Respondent No.1 was appointed in substantive

capacity retrospectively w.e.f. 1.11.1965. Therefore, for the period in

between the order dated 22.09.1964 till 1.11.1965, Respondent No.1

remained Lecturer in temporary capacity. After his appointment in

the substantive capacity, Respondent No.1 continued to work as a

Lecturer peacefully till 27th September, 1978, when his transfer

orders were issued and was subsequently suspended on 16th May,

1979 when he did not join the services at Trivendrum and was finally

dismissed.

23. The suspension order as well as the dismissal order were issued and

signed by the Director as Disciplinary Authority. At the time when

the appointment letter dated 22.09.1964 (Ex.D-2) was issued Director

had the delegated powers to appoint Respondent No. 1 by virtue of

minutes of the first meeting of the Governing Body held on 31 st

August, 1961. All these appointments were to be expressed to have

been made in the name of the Council.

24. Other available document on the record is Ex.D-10 dated 11.2.1966.

This is an extract from the Minutes of 11 th Meeting of the Governing

Body of the Council. As per item No.15, Director was delegated with

powers of appointment for the post of Class 1 and Class II only for a

period of one year, with a condition that all such appointments made

by him would be reported to the Appointment Committee in their

next meeting. The Director could appoint the candidate on

permanent basis in Class I post only on recommendation of the

Appointment Committee.

25. Respondent No.1 was appointed in substantive capacity on 16 th

November, 1969 with retrospective effect from 1.11.1965.

Therefore, the schedule of powers as approved by the Governing

Body in its meeting held on 11.2.1966 were in force when

Respondent No.1 was appointed in substantive capacity by the

Council. Appointment by the Council under the circumstances

becomes relevant. Permanent appointment of Respondent No.1 could

not have been made by the Director because he had no such delegated

Authority and therefore Council rightly issued appointment letter to

the Respondent No.1 on 15-16th November, 1969 appointing him as a

permanent Lecturer.

26. In the same meeting held on 11.2.1966, a decision was also taken as

to the authority who could impose penalty on respective class of

employees as shown in „Column No.2‟ under the head „Class of

Employees‟. Serial No.14 and 15 are relevant for the purposes of this

case.

27. Class I officer can be inflicted with minor penalty by the Joint

Director or by the Director, where Heads of Department including

Secretary, NCERT are involved. It is only the President of the

Council who has the authority to impose major penalty upon Class I

Officer including heads of Departments and Secretary NCERT. The

Appellate Authority in that case is the Governing Body.

28. Appellant has heavily relied on the findings of this Court dated 24 th

December, 2009 passed in LPA No.140/1985 titled „John Francis

v/s. NCERT & Ors‟ to emphasize that Director is the delegated

Appointing Authority and the Disciplinary Authority. In the said

case applications were invited by NCERT for two posts for Lecturer

in Physical Education. Appellant, John Francis was one of the

applicants. He was selected along with another candidate in the order

of merits. After his selection, he was given offer of appointment

containing the terms and conditions of the appointment and also that

the offer was against the temporary vacancy. It was also mentioned

that the services of the appointee could be terminated at any time by

one months notice on either side. However, Appointing Authority

reserved its right on termination of services before the expiry of the

prescribed period of notice by making payment of pay and

allowances for the notice period or its unexpired portion. The

appellant was accordingly appointed on his acceptance of offer. He

continued in service for about three years and thereafter his services

were terminated. The factor which weighed in the mind of the Court

was that appointment of the appellant was against temporary vacancy

which had been caused, as one of the Lecturer in Physical Education

had gone on deputation and he had come back and after he rejoined

his duties, no vacancy was left where the appellant being a temporary

employee could be accommodated.

29. While dismissing the appeal, Division Bench of this Court considered

the contents of Counter Affidavit filed by the department indicating

that Executive Committee had delegated powers to the Director to

make appointment for Posts in Group A and B on the

recommendation of the Appointment / Selection Committee and

Director was also the competent Authority to impose penalty. Under

those circumstances, considering the documents placed before the

said court, it was held that Director was the Disciplinary Authority to

impose penalty and therefore was empowered to terminate the

services of the appellant.

30. Respondent No.1 was permanent employee of the appellant. His

appointment letter does not contain any terms and conditions of his

appointment. He continued to serve in the Council for quite

substantial time before his services were terminated after

departmental inquiry was conducted against him.

31. Services of the appellant in the said case were terminated for various

reasons including that no vacancy was available against which he

could be adjusted. The Division Bench took into consideration the

delegated authority of the Director in imposition of minor penalties.

32. In this case, this Court is concerned with the powers of the Director

as Disciplinary Authority for imposition of major penalties i.e.

dismissal from services. In the present case Serial No. 15 becomes

applicable, and is to be considered by the Court to see if the Director

was the Appointing as well as Disciplinary Authority. It was limited

interpretation of the annexure attached with the counter affidavit for

considering, if Director was the Appointing Authority of the Council

and that too for appointment in temporary capacity. Therefore, the

observations made by the superior court in the said case were natural

consequence of the judgment which has no binding effect on this

Court under the facts and circumstances of this case.

33. It is noted that Court has to keep in mind the fundamental difference

between challenge to the final order forming part of the judgment and

challenge to ratio decidendi of the judgment. Every judgment of

superior courts has three segments, namely (1) The facts and the

point at issue, (2) the reasons for the decision and (3) the final order

containing the decision. The reasons for the decision or the ratio

decidendi is not the final order containing the decisions. In fact, in a

judgment of the court ratio decidendi may point to a particular result,

the decision that is final or relating to relief may be different and not

a natural consequence of the ratio decidendi of the judgment.

Reference is made to Sanjay Singh's case (supra), Zee Telefilms

Ltd.'s case (supra) and Uttar Pradesh State Road Transport

Corporation's case (supra.)

34. It is emphasized that law has to be applied in reference to the factual

situation of a particular case and any observations made by the Court

on facts of a particular case cannot be considered as a ratio decendi to

be followed in another case having different facts and circumstances.

35. Preposition of law that decision of the Superior Court i.e. of the

Division Bench or of the Full Bench is binding on the Single Bench is

not in dispute. But, then as discussed above, the decision of the

Superior Court should have some relevance and binding effect on the

facts and circumstances of the given case, which is being heard by the

Single Bench. Reference is made to S.I. Rooplal's case (supra). In

Jairsri Sahu's case (supra), Tribhovandas P. Thakar's case (supra)

and S. Shanmugavel Nadar's case (supra), the Supreme Court was

faced with two conflicting decisions of two different Benches dealt

with by another Bench. Under the said circumstances, it was

observed that matter should have been referred to the Full Bench by

the Later Bench without taking upon itself to decide whether it should

follow the one Bench‟s decision or the other.

36. In the present case, it is not disputed that Respondent No.1 being a

Lecturer was appointed as a Class I Officer. It is also not disputed

that he was penalized with major penalty of dismissal from service

under Rule 11 of CCS (CCA) Rules. These Rules and various

decisions of the Governing Body made in its meetings are

unambiguous and in clear terms indicate that Director had no power

either to suspend Respondent No.1 or dismiss him from services.

Therefore, suspension order dated 16.05.1979 and the dismissal order

dated 10-11.8.1982, issued by the Director in the capacity of a

Director are against the Rules of the Council. Hence, the Director

acted without jurisdiction in issuing the suspension order and after

receipt of inquiry report, in issuing dismissal order.

37. Though, the question of applicability of Article 311 of the

Constitution of India was never raised before the courts below nor

has been raised in the appeal but, it is submitted during the course of

arguments that Respondent No.1 is not a civil servant and therefore is

not entitled to protection under Article 311 of the Constitution of

India. These submissions are devoid of any merits. Significant for

that purpose is the suspension order dated 16 th May, 1979. Relevant

extract of this order reads :-

".....Now, therefore, the undersigned, in exercise of the powers conferred by sub- rule (1) of Rule 10 of the Central Civil Services (Classifications, Control and Appeal) Rules, 1965, hereby placed the said Shri Surender Nath under suspension with immediate effect......"

38. From perusal of the order dated 10th August, 1982 it is clear that the

inquiry was initiated against Respondent No.1 as per the procedure

provided under Rule 14 of the said Rules. This is clear from the

following opening lines of the order, which reads:-

"..... Whereas an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules as made applicable to the employees of the Council, is being held against Shri Surender Nath, Lecturer (under suspension) of the Council;......"

39. The inquiry officer found Respondent No.1 guilty of violating Rule 3

of CCS (CCA) Rules for various charges. Accordingly, the Director

as Disciplinary Authority terminated his services by imposing on

him penalty of dismissal from the services of the Council as per Rule

11.

40. Under Rule 10 of CCS (CCA) Rules, it is only the Appointing

Authority or any authority to which it is subordinate or the

Disciplinary Authority or any other authority empowered in that

behalf by the President, by general or special order, that can place a

Government servant under suspension where disciplinary

proceedings against him is contemplated or is pending.

41. Rule 2 (a) of CCS (CCA) Rules defines „Appointing Authority‟,

which reads:-

(a) "Appointing authority", in relation to a Government servant, means-

(i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or

(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or

(iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or

(iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which

appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority;"

42. Rule 2 (g) of CCS (CCA) Rules defines Disciplinary Authority. It

reads:-

"2(g) "Disciplinary authority" means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11:"

43. As discussed above, the Director is neither the Appointing Authority

nor a Disciplinary Authority within the meaning of Rule 2 (a) and

2(g). He has not been delegated any authority by the Council to

appoint or to impose major penalty upon a Lecturer who is a Class I

officer of the Council. The Council adopted these Rules as indicated

in the dismissal order dated 10-11.08.1982.

44. Ex.P-2 are the Rules adopted by NCERT on 18.12.1969 and finally

approved by Govt. of India on 30.01.1970. The Trial Court discussed

these Rules in para 16 of its judgment as below:-

"16. It would be fruitful to advert to the Rules & Regulations of defendant No.1 which are Ex.P.2 and P.3 on record. Under the Head of the Executive Committee, it is contemplated that the Executive Committee shall be the Governing Body of the Council. Under Rule 41, the Executive Committee shall have the power to appoint all categories of officers and staff for conducting the affairs of the Council, but is

subject to the Rules and Regulations. Rule 40 contemplates the powers of the Executive Committee to frame and amend regulations and it is under Rule 46 that the Executive Committee may delegate to the Director or its members or any other officers such administrative or financial powers as it deems proper. Unfortunately, in the Regulations, there appears to be nothing with respect to the appointment of class I officers of defendant no.1, but the Rules manifestly convey that the Executive Committee which is also the Governing Body of the Council is the over all body with respect to the appointments of class I staff of defendant No. 1. Therefore, delegation of powers vide Ex. D.10 is by the Executive Committee and under Column 8, the power to appoint Class I posts is to be Director on the recommendation of the Appointing Committee. So, at the time of appointing the plaintiff in substantive capacity, it could be Director on behalf of the Council. However, Ex.D4 appointing the plaintiff in substantive capacity is the council itself."

45. Director is defined in Rule 2 of Rules of „National Council of

Educational Research and Training, Memorandum of Association

and Rules.‟ It means Director in the Council is the person appointed

by the Government of India under Rule 14 i.e. it is the Government

who has the power to appoint the Director, joint Director or the

Secretary of the Council and prescribe their numerations and other

terms of service. It is the Executive Committee of the Council which

is the Governing Body. The Executive Committee under Rule 23

consists of members i.e. President, Minister of State in the ministry

of Education, A Deputy Minister of Education, Director of the

Council, Secretary of the Ministry of Education, Chairman of the

University Grants Commission, Four Educationists nominated by the

President, Joint Director of the Council, Three members of the

Faculty of the Council, One representative of the Ministry of

Education and One representative of the Ministry of Finance. It is

the Executive Committee of the Council which has the power to deal

with procedure for appointment of the officers and the staff of the

Council and the Institute and Services established and maintained by

the Council and also the terms and tenure of appointments,

emoluments, etc. of services of the officers and other staff. Powers

and functions of the Director are regulated by the Executive

Committee.

46. By virtue of Regulation No.46 promulgated w.e.f. 12 th May, 1971

under the head "Establishment", the relationship between the Council

and its employees is to be regulated by the Government Rules and

Regulations as contained in :-

"(a) The P & T Compilation of Fundamental and Supplementary Rules,

(b) Civil Service Regulations,

(c ) The Central Civil Services (Classification, Control and Appeal) Rules, and

(d) The Central Civil Services (Conduct) Rules,

and other relevant rules and regulations together with amendments and orders issued by the Government of India to said rules and regulations from time to time."

47. Since all the above said Rules are made applicable to the employees

of the Council, provision of Article 311 of the Constitution of India

automatically become applicable to Respondent No.1. Article 311 of

the Constitution makes it mandatory to hold an inquiry against

delinquent official and afford reasonable opportunity of being heard

in respect of those charges before he is dismissed or removed from

services.

48. It is a well settled principle of law that no lesser Authority than the

Appointing Authority has the power to remove an employee from

services even after holding an inquiry.

49. As per Rule 12 of CCS (CCA) Rules, President is the Disciplinary

Authority to impose penalties specified under Rule 11. Of course,

President can delegate his powers to the Appointing Authority to

impose penalty as specified under Rule 11.

50. Dr. S.L. Agarwal's case (supra) as referred to by the appellants

relates to a labour dispute and therefore it was observed that the

employees could not be deemed to be civil servants within the

meaning of Article 311 of the Constitution. Respondent happened to

be a Public Limited Company having its own identity. The employees

therefore were employed by the Corporation and they never belonged

to the civil services of the Union of India nor held civil posts under

the Union. This judgment is of no benefit to the appellant.

51. M/s. Heckett Engineering Co.'s case (supra) relates to a labour

dispute between the company and its workmen under the Industrial

Disputes Act. It is of no relevance to the facts and circumstances of

this case.

52. In Pyare Lal Sharma's case (supra), the Supreme Court did not

grant any protection to the employees under Article 311 of the

Constitution observing that there was no provision under Article of

Association or the Regulations of the Company which could give

some protection to the employees of the company as is given to the

Civil servants under the said Article.

53. Similarly, SBI's case (supra) is of no assistance to the Appellants as

Appellant No. 1 is not a banking industry. In the said case since the

delinquent official was governed by the State Bank of India General

Regulations, 1955 Rule it was held that the official was not entitled to

claim protection under Article 311 of the Constitution.

54. In Indian Railway's case (supra), while referring to Pyare Lal's

caseit was observed that though the company was wholly owned and

controlled by the Govt. of India, its employees cannot be considered

as civil servants and as such they can neither claim the protection of

Article 311 of the Constitution or the extension of that guarantee on

that parity. The employees of the company also cannot challenge the

dismissal order by an authority subordinate to that by which he was

appointed. This judgment is not applicable to the facts and

circumstances of this case.

55. As discussed above, the Council had adopted the Rules contained in

CCS (CCA) Rules and had conducted inquiry accordingly. It is

under these circumstances, that Respondent No.1 is deemed to be a

civil servant and entitled to protection under Article 311 of the

Constitution.

56. In view of my discussion as above, it is concluded that Director was

neither the Appointing Authority nor the Disciplinary Authority to

initiate disciplinary action, pass suspension order dated 16.05.1979

and dismissal order dated 10-11.8.1982 against Respondent No.1.

SUBSTANTIAL QUSTION OF LAW -2

57. In view of my observations on Substantial question of law -1, the

dismissal order passed by the Director being without any authority

and jurisdiction is illegal and void.

58. Hence, I find no merits in this appeal, the same is accordingly

dismissed.

ARUNA SURESH (JUDGE)

JUNE 04, 2010 vk/sb