Delhi High Court
V.K. Bahuguna vs Ministry Of Environment, Forest ... on 17 March, 2016
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2170/2016
Date of decision: 17th March, 2016
V.K. BAHUGUNA ..... Petitioner
Through: Mr. Harsh Pathak with Ms. Shweta Mahajan
& Mr. Siddhartha Shukla, Advs.
versus
MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE
CHANGE ..... Respondent
Through: Ms. Shiva Lakshmi, CGSC with
Mr. Arindam Dey, Mr. Udit Grover &
Mr. Ashok Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
Mr. V.K.Bahuguna by this writ petition impugns the order
dated 26th February, 2016, whereby his OA No.381/2016 challenging
appointment of Mr. Mukesh Kumar as the Inquiry Officer stands
dismissed.
2. The limited issue raised before the Central Administrative
Tribunal, Principal Bench, New Delhi and before us is whether Mr.
Mukesh Kumar, Director, Central Vigilance Commission,
Commission of Departmental Inquiry can act as the Inquiry Officer
under Rules 8(2) and 8(3) of the All India Services (Discipline and
Appeal) Rules, 1969.
3. Mr. Mukesh Kumar, it is submitted, is an outsider as he is not a
member/officer of the Indian Forest Service and is not a senior
officer, i.e., holder of a post/rank higher to that of the petitioner.
Reliance is placed on the decision of the Ernakulam Bench of the
Central Administrative Tribunal in OA No.1862/2010 titled Tomin J
Thackankary IPS vs. State of Kerala & Ors.
4. Having considered the submissions made by the learned
counsel for the petitioner, we regret our inability to agree.
5. Rules 8(2) and 8(3) of All India Services (Discipline and
Appeal) Rules, 1969 read :-
"8(2) Whenever the disciplinary authority is of the opinion
that there are grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour against a
member of the Service, it may appoint under this rule or
under the provisions of the Public Servants (Inquiries) Act
1850, as the case may be, an authority to inquire into the
truth thereof.
Provided that where there is a complaint of sexual
harassment within the meaning of Rule 3 of the All India
Services (Prevention of Sexual Harassment) Regulations,
1998, the Complaints Committee established in each
Ministry or Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring authority
appointed by the disciplinary authority for the purpose of
these rules and the Complaints Committee for holding the
inquiry into the complaints of sexual harassment, the
inquiry as far as practicable, in accordance with the
procedure laid down in these rules.
8(3) Where a Board is appointed as the inquiring authority
it shall consist of not less than two senior officers provided
that at least one member of such a Board shall be an officer
of the Service to which the member of the Service belongs."
Sub-Rule (2) stipulates that whenever the disciplinary authority is of
the opinion that there are grounds of inquiring into the truth of any
imputation of misconduct or misbehaviour, it may appoint under these
Rules or under the Provisions of Public Servant (Inquiry) Act, 1850,
an authority to inquire into the truth thereof. Thus, the Disciplinary
Authority has the option to appoint an Inquiry officer under the Rules
or under the provisions of Public Servant (Inquiry) Act, 1850. This is
a dual option which is given to the Disciplinary Authority. We are
not concerned with the proviso which applies to cases where there is a
complaint of sexual harassment.
6. Sub-Rule (3) to Rule 8 is applicable, where a Board is
constituted to act as the Inquiring Authority. The Board shall consist
of two or more senior officers and at least one member should be an
officer of the service to which the member facing disciplinary
proceedings belongs. The stipulation in Sub-Rule 3 regarding one of
the member of the Board, would not apply when an individual is
appointed as an Inquiry officer, as is the position in the present case.
The wordings of sub-Rule (2) are conspicuously different and without
such stipulation. The said sub-Rule does not prescribe that the
individual appointed as the inquiry officer should be from the same
service. The expression "Senior Officer" used in Sub-Rule 3 of Rule
8, means that the members of Board should be high rank officers
keeping in view the rank of the charged officer. The Sub-Rule (2)
does not postulate or prescribe that the Inquiry officer must be senior
to the charged officer. There is a difference between the Disciplinary
Authority and the Inquiry Officer who is appointed by the
Disciplinary Authority. Their ranks would generally not be the same
and the Inquiry Officer would be of a lower rank/post.
7. The petitioner in the present case, before his retirement on 31st
August, 2014 was the Director General, Indian Council of Forestry
Research and Education at Dehradun in the apex scale of Rs.80,000/-.
The said post is a stand-alone post and the highest post in the
hierarchy of the said organization. Charges relate to his tenure as the
Director General of the said Institute. Counsel for the petitioner
contends that this post is equivalent to the post of Secretary,
Government of India, a contention which is disputed by the counsel
for the respondent. We need not go into this aspect for deciding the
limited issue raised in the present petition.
8. Mr. Mukesh Kumar, the Inquiry Officer, is undoubtedly a
senior officer, presently working as the Director in the Central
Vigilance Commission. He holds the post for departmental inquiry, a
special post meant to deal with cases of Departmental Inquiry. To
ascertain whether Mr. Mukesh Kumar is a group „A‟ officer, we had
directed the Counsel to verify facts as it was asserted that the
nominated Inquiry Officer is not a Group A officer. Learned counsel
for the respondent has produced the order dated 20th October, 2015 as
per which, Mr.Mukesh Kumar is a Group „A‟ officer in pay band
Rs.37,400-67,000/- with a grade pay of Rs.10,000/-. We are satisfied
that the officer in question is a senior officer.
9. The submission that an outside Inquiry Officer, not from the
same service, will necessarily be unfair, unjust and partisan is only to
be noticed and rejected. This is a farfetched and unworthy
contention. An Inquiry officer may or may not belong to the same
service. An Inquiry Officer from a different service can have its own
advantage. A fair and true-blue Inquiry officer would not have any
preconceived notions, beliefs and prejudices. Sub-Rule (2) does not
support this contention. Reading any such stipulation into Sub-Rule
2, founded on a chimerical supposition must be rejected. This
interpretation is unwarranted and would be adding to the words of
Sub-Rule2 to Rule 8, which is impermissible. It would re-write the
said Sub- Rule.
10. We have examined the judgment of the Central Administrative
Tribunal, Ernakulam Bench in the case of Tomin J Thackankary
(supra). In paragraph 6, it is observed that as per Rule 8 of the
aforesaid Rules, an Inquiry Authority ordinarily should be a member
of All India Services (AIS). The expression used in the paragraph 6 is
„ordinarily‟. Obviously, the Tribunal did not mean or imply that word
„ordinarily‟, means must or mandatory. We do not find or notice any
such stipulation and requirement in the Sub-Rule2 to Rule 8.
Thereafter, the Tribunal had referred to Clauses (2) and (3) of Rule 8
of the All India Services (Discipline and Appeal) Rules 1969 and
observed:-
"If a Board is appointed as Inquiring Authority, it shall
consist of not less than two senior officers out of which one
member shall be an officer of the service to which the
applicant belongs. If two officers at least have to be in a
Board, then there is no scope ordinarily for a single person-
Inquiring-Authority, consisting of an outsider. A plain
reading of Rule 8 shows that ordinarily an officer senior to
the applicant should conduct departmental Inquiry against
him. In an extra ordinary situation, say, of not having a
senior officer, then the 1st respondent with reasons to justify
may appoint an outsider as Inquiring Authority. In the
instant case, the 1st respondent has not shown any reason in
the impugned order to appoint the 2nd respondent as
Inquiring Authority instead of an AIS officer."
The aforesaid quotation refers to a Board appointed under Sub-Rule
(3) to Rule 8, which as noticed above, has a specific stipulation. This
paragraph does not interpret sub-Rule (2) to Rule 8, where the
expressions used are conspicuously different. The said paragraph
also records that in extraordinary situations, an outsider can be
appointed as the Inquiring Authority. Referring to the factual matrix
of the said case, the Bench recorded that the first respondent had not
given any reason for appointment of the second respondent as the
Inquiring Authority. We would for reasons recorded in paragraph 12
below, at this stage observe that the statutory Rules do not require
recording of reasons as to why the person named has been appointed
as the inquiry officer, though in a given case, the Disciplinary
Authority may record them.
11. Learned counsel for the respondent had drawn our attention to
paragraph 7 of the said judgment, which reads:-
"The absence of prohibition in AIS (Discipline and Appeal)
Rules, 1969, against appointing any authority as Inquiring
Authority does not enable the 1st respondent to empower the
2nd respondent to enquire into the allegations against the
applicant, who is statutorily outside his jurisdiction. The
issue is not that, there is no prohibition against appointing
any one as Inquiring Authority but whether the spirit of Rule
8 of AIS (Discipline and Appeal) Rules, 1969, is properly
understood and followed by the 1st respondent. It is relevant
to note that in O.A. No.94/1992, the Bangalore Bench of this
Tribunal vide order dated 29.05.1992, quashed the order of
the Karnataka Government appointing Lokayukta as the
Inquiring Authority in a disciplinary proceedings against an
AIS officer. The power to appoint the Inquiring Authority
under Rule 8 of AIS (Discipline and Appeal) Rules, 1969,
cannot be over stretched, without justifying the
appropriateness or the imperative need of appointing the 2nd
respondent beyond his jurisdiction to conduct a simple
domestic Inquiry when senior AIS officers are available,
ignoring the spirit of Rule 8."
12. We are not in agreement with some of the observations in the
aforesaid paragraph, including the ratio that the Inquiry Officer from
outside would statutorily lack jurisdiction. There is no embargo or
impediment in appointing an individual Inquiry officer, who may or
may belong to same service as Sub-Rule (2) of Rule 8 does not
stipulate and specify who can be the Inquiry officer. However, under
Sub-Rule (3) of Rule 8, when a Board is appointed, then one of the
members of the Board should be an officer of the service to which the
member belongs. As held above, we would not read and include the
aforesaid requirement in Sub-Rule (2) to Rule 8. The spirit of Rule
8(2) is not violated and infringed when a person who is not from the
same service is appointed as the inquiry officer. The disciplinary
authority should have some discretion in such appointments.
Observation that appointment of an inquiry officer must be justified
by elucidating and stating appropriate or imperative need has to be
rejected. Appointment of an inquiry officer is an administrative
decision. Reasons may or may not be recorded. Judicial intervention
in such cases would be rare.
13. In the present case, it is not alleged or urged that the enquiry is
biased or prejudiced.
14. In view of the aforesaid reasoning, we do not find any merit in
the present writ petition. The writ petition is dismissed with no orders
as to costs.
15. We clarify that we have not expressed any opinion on the
charge sheet or the allegations made against the petitioner.
SANJIV KHANNA, J
NAJMI WAZIRI, J
MARCH 17, 2016/ak
