Union Of India And Ors. vs Om Prakash
2015 Latest Caselaw 5568 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 4523/2015
%                                       Judgment dated 4th August, 2015
         UNION OF INDIA AND ORS.                 ..... Petitioner
                       Through : Mr.Ashwani Bhardwaj, Adv.

                            versus

         OM PRAKASH                                     ..... Respondent

Through : Mr.Deepak Verma and Mr.R.P. Sharma, Advs.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J (ORAL)

1. Present petition has been filed by petitioners under Article 226 of the Constitution of India, inter alia, seeking a direction to quash the Order dated 13.11.2014 passed by Central Administrative Tribunal, Principal bench, New Delhi, (hereinafter referred to as „the Tribunal‟) in O.A.No.2168/2013, whereby the Memorandum dated 10.7.2006, Enquiry Report dated 30.12.2009, the advice of the UPSC dated 5.11.2012 and the Presidential Order dated 19.2.2013 were held to be not sustainable. The petitioners also pray that the O.A. filed by the respondent herein before the Tribunal should also be dismissed.

2. The brief facts of the case, according to the petitioners, are that on 10.7.2006 the respondent was proceeded under Rule 14 of the CCS (CCA) Rules, 1965, on the allegations of violation of the provisions of

Rule 3 (2)(i) of CCS (Conduct) Rules, 1964 and Rule 33 (3) (b) (iii) of Post Office Savings Bank Manual Volume-I, wherein the Enquiry officer held the charges proved. The substance of imputation of misconduct or misbehavior in respect of which enquiry was conducted and as set out in the statement enclosed with the Memorandum No.F1/IV-1/04-05 dated 10.7.2006 reads as under:

" Article-I

That the said Sh.Om Prakash while functioning as A.P.M. S.B. Counter at Ashok Vihar Head Office, Delhi-110052 during the period w.e.f. January, 2001 to March, 2001 is alleged not to have ensured the integrity of Shri Gabdu Lal Meena Postal Asstt. SB Counter working under his control thereby violating the provisions of Rule 3 (2)(i) of CCS (Conduct) Rules, 1964.

By doing so, said Shri Om Prakash is alleged to have failed to maintain devotion to duty and committed an act which is unbecoming of a Govt. Servant thereby contravening the provisions of Rule 3(1)(ii) & (iii) of CCS (Conduct) Rules, 1964.

Article -II

That during the aforesaid period and while functioning in Ashok Vihar Head Office the said Shri Om Parkash is alleged not to have carefully scrutinized the applications for withdrawals and not to have seen that these do not bear any erasures, overwriting or other suspicious corrections or alternations in respect of Ashok Vihar Head Office Savings Bank Account Nos.3408978, 3408105 and 3408134 on various dates during the course of his duty thereby violating the provisions of Rule 33 (3) (b) (iii) of Post Office Saving Bank Manual Volume-I.

By doing so, the said Shri Om Parkash is alleged to have failed to maintain devotion to duty and committed an act which is unbecoming of a Govt. Servant thereby contravening the provisions of Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964."

3. As the respondent denied the Articles of Charge, an enquiry was held in the matter. During the pendency of the enquiry the respondent herein retired form service on 31.8.2006. Thereafter the proceedings which were conducted in accordance with Rule 14 of the CCS (CCA) Rules, 1965, were then continued under Rule 9 of the CCS (Pension) Rules 1972. The Enquiry Officer submitted his report on 30.10.2009. The conclusion of the report reads as under "Conclusion

On the basis of documentary and oral evidences adduced in the case before me and in view of reason given before me and case of the Disc. Authority and case put forth by the C.O./D.A. during the inquiry. I hold that all the two charges framed against Sh.Om Parkash Ex-P.R.I. (P) N.S. Mandi P.O. Delhi-33 stand proved."

4. Respondent thereafter made a representation to the petitioners herein on 3.2.2010. The matter was referred to the UPSC for its advice. The UPSC, vide its report dated 5.11.2012, advised the petitioners herein that the charges established against the respondent constituted grave misconduct on his part and the ends of justice would be met if "the penalty of withholding of 20% of his monthly pension otherwise admissible for a period of five years as well as forfeiture of entire gratuity admissible to him is imposed upon him.". The President thereafter vide order dated 19.2.2013 imposed the same very punishment.

5. Various grounds were raised by the respondent herein before the Tribunal including that the Departmental Enquiry was conducted in a perverse manner; one of the prosecution witnesses, Sh.Gabdu Lal Meena, whose statement was recorded by the Enquiry Officer, was not presented for cross-examination; the documents were not proved in accordance with law as the persons, who appeared to prove the documents, had in fact

nothing to do with most of the documents; and the charges framed against him did not amount to misconduct.

6. Another argument, which was raised before the Tribunal by the respondent herein, was that the impugned order of penalty was imposed upon the respondent by the President while the President has not even examined his case for the purpose of continuing the proceedings before the Enquiry Officer under Rule 9 of the CCS (Pension) Rules, 1972, which stipulates that "the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. Provided that the Union Public Service Commission shall be consulted before any final orders are passed". In this regard, the respondent had submitted before the Tribunal that any such disciplinary proceedings initiated without the orders of the Disciplinary Authority is not sustainable. In support of this submission, the respondent had relied upon Union of India & Others v. B.V. Gopinath, reported at 2014 (1) SCC 35. Relevant para of the said judgment reads as under:

"43. Accepting the submission of Ms. Indira Jaising would run counter to the well known maxim delegatus non protest delegare (or delegari). The principle is summed up in "Judicial Review of Administrative Action" De Smith, Woolf and Jowell (Fifth Edition) as follows:-

"The rule against delegation A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known

principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."

The same principle has been described in "Administrative Law" H.W.R. Wade & C.F. Forsyth (Ninth Edition), Chapter 10, as follows:-

"Inalienable discretionary power An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub- committees or delegates, however expressly authorized by the authority endowed with the power."

44. This principle has been given recognition in Sahni Silk Mills (P) Ltd. (supra), wherein it was held as under:

"6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee (sic) is to exercise the power. The real problem or the controversy arises when there is a sub- delegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place."

7. The respondent had raised another contention before the Trial Court that

even though the UPSC, vide its letter dated 14.8.2012, had specifically enquired from the respondents (petitioners herein) as to whether they had obtained the prior permission of the President for proceeding against the respondent herein under Rule 9 of CCS (Pension) Rules, 1972, they have misled the Commission by simply forwarding a copy of their note in this regard, which had been signed only by Member (P) and Member (O) and not stating the fact that the President‟s approval was not obtained in the matter.

8. The other contention raised by the respondent herein before the Tribunal was that the UPSC itself had not applied its mind as it did not verify the position as to whether the President has actually approved the proposal to continue with the enquiry proceedings under Rule 9 of the CCS (Pension) Rules, 1972, or not but proceeded to examine the case like an Enquiry Officer and then advised the Disciplinary Authority to impose the aforesaid penalty.

9. It was also contended by the respondent before the Tribunal that since the President‟s Order imposing the aforesaid penalty upon the respondent herein was based entirely on the advice of the UPSC, the said advice should have been communicated to him in accordance with the principles of natural justice. In support of this submission, the respondent had relied upon Union of India and Others v. S.K. Kapoor, reported at 2011 (4) SCC 589.

10. We have heard learned counsel for the parties, considered their rival submissions and also perused the impugned Order dated 13.11.2014 passed by the Tribunal. On the last date of hearing, this Court had directed the petitioner to produce the relevant record/file in Court to show that the officers, who passed the order, were delegates of the President. Today, we are informed that such record is not available.

11. Having regard to the submissions made and in the light of the judgment rendered in the case of Union of India & Others v. B.V. Gopinath (supra), which has been referred to by the Tribunal in the impugned order dated 13.11.2014, we find that in the absence of any document in support of the delegation of powers of the President in favour of the officers, the order of the Tribunal cannot be faulted. In our view the Tribunal has correctly applied the law to the facts of the present case. Accordingly, no grounds are made out to entertain the present writ petition and the same is accordingly dismissed. Let the order dated 13.11.2014 passed by the Tribunal be implemented/complied with within a period of four weeks from today.

CM APPL. 8189/2015

12. Application stands disposed of in view of above.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J AUGUST 04, 2015 msr