Delhi High Court
Udbhash Mukherjee vs Kendriya Vidhalaya Sangathan on 23 December, 2016
$~02
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11804/2016
Date of decision: 23rd December, 2016
UDBHASH MUKHERJEE ..... Petitioner
Through Mr. Subhash Gosai, Advocate.
versus
KENDRIYA VIDHALAYA SANGATHAN ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
The petitioner-Udbhash Mukherjee is facing departmental
proceedings under Rules 14 of the Central Civil Services (Classification,
Control and Appeal) Rules, 1965 vide charge sheet dated 28 th June, 2006.
The aforesaid Rules are applicable mutatis mutandis to Kendriya
Vidhayalaya Sangathan.
2. During the pendency of the disciplinary proceedings, the petitioner
retired from service as a Trained Graduate Teacher in Drawing on 31st
August, 2011.
3. On or about 30th April, 2014, the petitioner filed OA No. 1690/2014,
primarily on the ground that disciplinary proceedings could not have
continued post retirement as there was no valid sanction/approval under
Rule 9 (2) (a) of the Central Civil Services (Pension) Rules, 1972, which are
also mutatis mutandis applicable to Kendriya Vidhayalaya Sangathan.
Reliance was placed upon the decision dated 23rd October, 2007 of the
Principal Bench of the Central Administrative Tribunal in OA No.
886/2007, K.S. Malik Vs. Union of India & Ors. (KVS).
4. The impugned order dated 27th January, 2016 dismisses the OA, inter
alia, relying upon the minutes of the 77th meeting of the Board of Governors
of Kendriya Vidhayalaya Sangathan held on 20th June, 2007, wherein it had
been resolved that power under Rule 9 of the Central Civil Services
(Pension) Rules, 1972, shall be exercised by the Chairman, Kendriya
Vidhayalaya Sangathan. The resolution reads as under:-
"ITEM NO.2 POWERS EXERCISE BY PRESIDENT
UNDER RULE 9 OF THE CCS (PENSION) RULES,
1972 TO BE EXERCISED BY CHAIRMAN, KVS.
The Board approved the following proposals:
a) The powers conferred upon the President of India
under Rules 9 of the CCS (Pension) Rules, 1972 fall
within the domain of the Chairman, K.V.S. as he is the
appropriate authority to exercise those powers as has
been done in the past and in the present as the same is
in accordance with THE GOVERNMENT OF INDIA
(ALLOCATION OF BUSINESS) RULES.
b) In exercise of powers conferred upon the Chairman,
K.V.S. under Article 12 of the Education Code, all
decision taken and orders passed in the past under Rule
9 of the CCS (Pension) Rules, disciplinary cases/other
cases in respect of retired employees of K.V.S. are
approved as the same have been taken in proper
exercise of powers vested in the Chairman, K.V.S."
5. The Tribunal in the impugned order has rightly held that the decision
in the case of K.S. Malik (supra) would not be applicable because after the
said decision, the Board of Governors of the Kendriya Vidhayalaya
Sangathan on 20th June, 2007, have passed the aforesaid resolution.
6. Counsel for the petitioner does not dispute the aforesaid resolution
passed by the Board of Governors, but submits that the Board of Governors
could not have empowered the Chairman to exercise the power of President
under Rule 9 of the Central Civil Services (Pension) Rules, 1972.
7. We are not impressed with the said argument for the Kendriya
Vidhayalaya Sangathan is a society registered under the Societies
Registration Act. Central Civil Services (Pension) Rules, 1972 have been
made applicable to the employees of the said society. The Board of
Governors by the aforesaid resolution had empowered the Chairman of the
said society to exercise the power conferred on the President under Rule 9 of
the Central Civil Services (Pension) Rules, 1972. It is not the case of the
petitioner that the Board of Governors of the society could not have passed
the said resolution. Competence and authority of the Board of Governors is
not questioned. As a sequitur, it follows that Board of Governors could
confer power under Rule 9 of the Central Civil Services (Pension) Rules,
1972 to a particular authority. The said exercise has been undertaken and
the authority and power has been conferred on the Chairman.
8. The petitioner in the writ petition has raised additional and new
grounds, which were not raised in the OA before the Tribunal. We would
not like to go into and refer the said grounds, for the said grounds are
extraneous and we are not the Court of first instance.
9. Counsel for the petitioner has submitted that gratuity has not been
paid to the petitioner, though he accepts that provisional pension has been
paid. We clarify, in case the petitioner has any specific grievance that
retirement benefits payable while the petitioner is facing departmental
proceedings, have not been paid, he would be entitled to raise the said
grievance before the authority and before a legal forum in
accordance with law.
10. With the aforesaid observations, the writ petition is dismissed.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
DECEMBER 23, 2016
NA
