Delhi High Court

Bs Puria vs Indraprastha Power Generation ... on 9 May, 2022

$~31
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 09.05.2022

+      LPA 309/2022 & CM APPL. 22162-63/2022
       BS PURIA                                           ..... Appellant
                                Through:      Mr.Anunya Mehta &
                                              Mr.Vinayak Thakur, Advocates

                                Versus

       INDRAPRASTHA POWER GENERATION
       CO. LTD. & ANR.                                    ..... Respondents
                       Through: None.

       CORAM:

       HON'BLE MR. JUSTICE SURESH KUMAR KAIT
       HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN

                         J U D G M E N T (oral)

1. The present appeal has been preferred seeking setting aside of the

judgment dated 19.01.2022 passed by learned Single Judge of this Court in

W.P.(C) 3495/2021, vide which appellant's challenge to the issuance of

charge sheet imposing major penalty on the ground of having been issued by

an incompetent officer, has been dismissed.

2. The background facts of the case presented before this Court are that

the appellant had joined the services to the post of Asst. Executive Engineer

(E & M) on 26.11.1990 and subsequent upon incorporation of respondent

No.1, appellant was transferred to respondent No.1 and was promoted to the

post of Executive Engineer on 04.06.2012 and further promoted to the post

of Senior Manager before retiring on 31.05.2018.

3. During the course his duties, appellant was first served with

memorandum of charge dated 20.12.2017 in relation to misbehaviour with a

senior and thereafter another memorandum of charge dated 23.04.2018 was

also served upon him by respondent No.2. With regard to both the

memorandum of charges, enquiry officers were appointed by respondent

No.2 and enquiry proceedings were carried out.

4. The aforenoted charge sheets dated 20.12.2017 and 23.04.2018, were

challenged by the appellant by way of writ petition (W.P.(C) No.

3495/2021) before the learned Single Bench of this Court on the ground that

respondent No.2 i.e. Director (T) was not the competent authority to issue

the charge sheet thereby rendering the issuance of charge sheets as illegal. In

addition, issuance of charge sheets was challenged being vitiated by gross

mala fides on the part of respondent No.1 and its senior officers.

5. During the course of hearing learned counsel appearing on behalf of

appellant submitted that the learned Single Bench has failed to appreciate

that a charge sheet for major penalty proceedings can be instituted only by

the officer who is competent to do it, which in this case should have been

Director (HR), whereas charge sheet in this case has been issued by Director

(Tech). Further submitted that the provisions of Rule 13(2) of the CCS

(CCA) Rules relates to institution of disciplinary proceedings, subsequent to

which charge sheet is issued and the learned Single Judge has failed to

distinct between these two stages. Learned counsel next submitted that in a

case, disciplinary proceedings can be initiated under Rule 13(2) of the CCS

(CCA) Rules, however, under the provisions of Rule 14(3) and 14(4) of the

CCS (CCA) Rules, charge sheet could have been issued by the disciplinary

authority who is competent to impose penalty in question by virtue of Rule

2(g) of the 1965 Rules. In support of above submissions, learned counsel

for appellant placed reliance upon decisions in Union of India & Ors. Vs. B.

V. Gopinath & Ors., (2014) 1 SCC 351 and decision dated 10.01.2017,

titled as M.K. Saini Vs. IPGCL in W.P.(C) No. 202/2017.

6. Learned counsel for appellant submitted that the relevant Service

Rules which govern the service conditions of the appellant specifically

prescribed the delegation of power for initiating disciplinary proceedings

against employees in relation to Group 'A' posts, which is as under:-

▪ Competent Authority for imposition of Minor Penalty - Director (Concerned)

▪ Competent Authority for imposition of Major Penalty except compulsory retirement, removal and dismissal - Director (Concerned)

▪ Competent Authority for imposition of Major Penalty of compulsory retirement, removal and dismissal - Director (HR)

7. It was submitted that the appellant herein was since Sr. Manager

(Technical) at the relevant point in time, the concerned Director in their case

would have been Director (Technical). Accordingly, the competent authority

to initiate minor penalty as well as major penalty (other than compulsory

retirement, removal and dismissal) and to issue the chargesheet in such

proceedings would be Director (Technical) and the competent Authority to

initiate and award major penalty of compulsory retirement, removal and

dismissal and issue chargesheet in such proceedings would be Director

(HR).

8. We have heard learned counsel appearing on behalf of appellant at

length and perused the impugned judgment and decisions cited.

9. Pertinently, Para-27 of the impugned judgment dated 19.01.2022

elaboratively notes the Delegation of Powers (DOP) in Indraprastha Power

Generation Company Limited & Pragati Power Corporation Limited and

further observed and held as under:-

"28. The DOP is clear in stipulating the authority who can impose penalty, both minor and major, in terms of Rule 11 of the Rules of 1965. As the petitioners were holding Group „A‟ posts, the Director concerned, i.e., Director (Technical), is the authority competent to impose minor and major penalties except compulsory retirement, dismissal and removal. The DOP only stipulates, the Director (HR) is the appointing authority for Group „A‟ posts except General Manager or equivalent posts and Company Secretary. It does not state, which is the authority competent to initiate disciplinary proceedings.

29. Even Rule 2(a) of the Rules of 1965 stipulates appointing authority to mean the authority competent to make appointments but Rule 2(g) of the Rules of 1965 which defines Disciplinary Authority to mean an authority competent under the Rules to impose on a government servant any of the penalties specified under Rule 11 of the Rules of 1965.

30. Mr. Vats is right in stating that the issue whether Director (Technical) can initiate disciplinary proceedings is covered by the provisions of Rule 13 (2) of the Rules of 1965 which I reproduce as under:

"13. Authority to institute proceedings

(1) The President or any other authority empowered by him by general or special order may

-

(a) institute disciplinary proceedings against any Government servant;

(b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 11.

(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties."

31. The above Rule makes it clear that the Disciplinary Authority is competent to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11, and may institute disciplinary proceedings against any government servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 notwithstanding that such Disciplinary Authority is not competent under these Rules to impose any of the latter penalties.

32. In other words, even though the Director (Technical)

in terms of the DOP is not competent to impose major penalties of compulsory retirement, dismissal and removal on a Group „A‟ employee (other than General Manager or equivalent posts and Company Secretary), he is competent to initiate disciplinary proceedings against a Group „A‟ employee (other than General Manager or equivalent posts and Company Secretary) for imposition of major penalties as specified in Clauses (v) to (ix) of Rule 11 of the Rules of 1965."

10. The pertinent observations of learned Single Judge clearly state that

Rule 2(g) of the Rules of 1965 defines that the Disciplinary Authority means

an authority competent under the Rules to impose any of the penalties on a

government servant as specified under Rule 11 of the Rules of 1965 and to

further initiate disciplinary proceedings. Thereby, submission of learned

counsel for appellant that Director (Technical) is not the competent

authority, has rightly been rejected by the learned Single Judge. The learned

Single Judge has also considered the decisions relied upon by learned

counsel for appellant before this Court in Union of India & Ors. Vs. B. V.

Gopinath & Ors (supra) and M.K. Saini Vs. IPGCL (Supra) to state that at

the time of initiation of disciplinary proceedings it is not known as to

whether it would culminate into minor or major penalty.