Central Administrative Tribunal - Delhi
Vijay Kumar Verma S/O Bishan Das vs Union Of India Through on 9 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1864/2008 This the 9th day of February, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Vijay Kumar Verma S/O Bishan Das, R/O B-4, Sector-15, Noida-201203, Distt. Ghaziabad. Applicant ( By Shri M. M. Sudan, Advocate ) Versus 1. Union of India through, Secretary, Government of India, Department of Legal Affairs, Ministry of Law & Justice, 4th Floor, A Wing, Shastri Bhawan, New Delhi-110001. 2. Central Vigilance Commission through Chief Vigilance Commissioner, Satarkta Bhawan, GPO Complex, Block A, INA, New Delhi-110023. 3. Dr. S. S. Chahar, Designated Inquiring Authority and Government counsel, Rail Bhawan, Railway Board, Rafi Marg, New Delhi-110001. Respondents ( By Shri H. K. Gangwani, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Vijay Kumar Verma, the applicant herein, who, while serving as Deputy Government Advocate with the Government of India, was appointed as Presiding Officer, Debts Recovery Tribunal (DRT), Ahmedabad on deputation basis for a period of five years, takes strong exception to the charge memo dated 19.7.2007 issued to him under Rule 14 of CCS (CCA) Rules, 1965 (hereinafter to be referred as the Rules of 1965), in respect of misconduct alleged to have been committed by him while functioning as Presiding Officer, DRT. Arguments in this case were heard on 4.2.2009 and judgment was reserved. While preparing the judgment, we find that the points involved in this case are of far reaching consequences and thus need to be determined by a larger Bench.
2. The applicant, after graduating in law and obtaining Doctorate in law, started his career as a lawyer, practicing initially before District & Sessions Court at Delhi. He shifted his venue of practice to High Court and Supreme Court later, and in September, 1990, was recommended by Union Public Service Commission for appointment to the post of Deputy Government Advocate in the Central Agency Section of the Department of Legal Affairs, Ministry of Law and Justice. He joined the aforesaid post on 3.6.1991. While serving as Deputy Government Advocate, on being found to be fit and eligible and consequently recommended by the selection committee headed by an Honble Judge of the Supreme Court, he came to be appointed as Presiding Officer, DRT, Ahmedabad, for a period of five years from 9.4.1999, or till he attained the age of 62 years, whichever event was to occur earlier, vide notification dated 12.4.1999. On expiry of the period of deputation, he came back to the Ministry of Law and Justice, and on 15.4.2004 took over the charge of Additional Government Counsel in the Central Agency Section. A few days before he was to retire on 31.7.2007 on attaining the age of superannuation, he was slapped with a major penalty chargesheet, vide memorandum dated 19.7.2007 under Rule 14 of the Rules of 1965, in respect of certain alleged gross misconduct said to have been committed by him while functioning as Presiding Officer, DRT. With the notification dated 31.7.2007 retiring him from service w.e.f. 31.7.2007 (A/N), the applicant also received an order of even date declaring that in terms of Rule 69(c) of CCS (Pension) Rules, no gratuity would be paid to him till conclusion of the departmental proceedings and issue of final orders therein. The applicant submitted his written statement of defence on 29.8.2007 denying the allegations alleged against him. He requested the disciplinary authority to drop the departmental proceedings initiated against him. The disciplinary authority, however, proceeded to appoint the enquiry officer vide order dated 25.10.2007. Thereafter, as per the case set up by the applicant, there is no progress in the departmental proceedings, and the respondents are withholding the release of his retiral benefits such as gratuity, commutation of pension etc. on the ground that departmental proceedings are pending against him. The applicant first approached this Tribunal at Ahmedabad in June, 2006 challenging the charge memo and the departmental proceedings initiated against him, but his Application was returned to be presented before the appropriate Bench as the Tribunal at Ahmedabad lacked territorial jurisdiction. The applicant has approached this Tribunal at Principal Bench for the desired relief.
3. Admittedly, the appointment of the applicant as Presiding Officer, DRT is governed by the Act known as Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred as the Act of 1993). Presiding Officer, as per Section 2 (ja) of the Act, means the Presiding Officer of the Tribunal appointed under sub-section (1) of Section 4. In view of provisions contained in Section 4 (1), a Tribunal shall consist of one person only, to be referred as Presiding Officer, to be appointed by notification, by the Central Government. The Central Government may also authorise the Presiding Officer of one Tribunal to discharge also the functions of Presiding Officer of another Tribunal, as per provisions contained in sub-section (2) of Section 4. A person shall not be qualified for appointment as Presiding Officer of a Tribunal unless he is, or has been, or is qualified to be, a District Judge, as would be made out from provisions of Section 5 of the Act. Term of office of Presiding Officer of a Tribunal would be for five years from the date on which he enters upon the office or until he attains the age of 62 years, whichever is earlier, as per Section 6 of the Act. In exercise of powers conferred by sub-section (1) of Section 4 read with clause (e) of sub-section (2) of Section 36 of the Act of 1993, the Central Government has framed Rules called the Debts Recovery Tribunal (Procedure for Appointment as Presiding Officer of the Tribunal) Rules, 1998 (hereinafter to be referred as the Rules of 1998). The method of appointment is prescribed under Rule 3 of the Rules aforesaid. The same reads as follows:
3. Method of appointment under sub-section (1) of Sec. 4 of the Act. (1) for the purpose of appointment to the post of a Presiding Officer, there shall be a Selection Committee consisting of-
The Chief Justice of India or a Judge of the Supreme Court of India as nominated by the Chief Justice of India;
The Secretary to the Government of India in the Ministry of Finance (Department of Economic Affairs);
The Secretary to the Government of India in the Ministry of Law and Justice;
The Governor of the Reserve Bank or the Deputy Governor of the Reserve Bank nominated by the Governor of the Reserve Bank;
Special Additional Secretary to the Government of India in the Ministry of Finance, Department of Economic Affairs (Banking Division), or an officer not below the rank of Joint Secretary in the Banking Division nominated by the Special Additional Secretary in the Banking Division.
(2) The Chief Justice of India or the Judge of the Supreme Court shall be the Chairman of the Selection Committee.
(3) Any three members of the Committee including the Chairman shall form a quorum for meting of the Committee.
(4) The Selection Committee may devise its own procedure for selecting a candidate for appointment as Presiding Officer.
(5) The Selection Committee shall recommend persons for appointment as Presiding Officer, -
(i) from amongst the persons from the list of candidates prepared by the Ministry of Finance after inviting necessary applications; and
(ii) from amongst judicial officers nominated by a High Court.
(6) The Central Government shall on the basis of the recommendations of the Selection Committee make a list of persons selected for appointment as Presiding Officer and the said list shall be valid for a period of two years. The appointment of a Presiding Officer shall be made from the list so prepared. Every person appointed to be Presiding Officer under sub-section (1) of Section 4 of the Act of 1993, shall, before entering upon the office, make and subscribe an oath of office and secrecy in the forms annexed to the Rules, as per provisions contained in Rule 7 of the Rules of 1998. The Act of 1993, in Section 15, contains provision with regard to resignation and removal of Presiding Officer of a Tribunal or Chairperson of an Appellate Tribunal. Section 15, insofar as it may pertain to removal of a Presiding Officer, reads as follows:
(2) The Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal shall not be removed from his officer except by an order made by the Central Government on the ground of proved misbehaviour or incapacity after inquiry, -
(a) in the case of the Presiding Officer of a Tribunal, made by a Judge of a High Court;
(b) in the case of the Chairperson of an Appellate Tribunal, made by a Judge of the Supreme Court, in which the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal has been informed of the charge against him and given a reasonable opportunity of being heard in respect of these charges.
(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal. From the provisions of the Act and Rules referred to above, what emerges is that a definite set of procedure of removal of a Presiding Officer is prescribed.
4. The provisions contained in the CCS (CCA) Rules, 1965 would apply to every government servant including every civilian government servant in Defence Services, but shall not apply, amongst others, as per clause (e) of sub-rule (1) of Rule 3, to any person for whom special provision is made, in respect of matters covered by these Rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these Rules, in regard to matters covered by such special provisions. The pertinent question that arises is thus as to whether a person appointed as a Presiding Officer of DRT can be proceeded against under the Rules of 1965, particularly when the delinquency alleged against him pertains to the period when he was holding the post of Presiding Officer, DRT and discharging the duties entrusted to him under the relevant Act and Rules. The question, in our view, is of great significance and the same may not arise only with regard to Presiding Officers of DRT under the Act of 1993 and the Rules framed thereunder, but would also with regard to any person appointed under any statute prescribing a set of procedure for appointment and removal. The constitutional or statutory appointments, also providing procedure for removal in the Constitution or the statute, as the case may be, it prima facie appears, stand on a different footing, and if removal of persons so appointed during their tenure has to precede the procedure prescribed therein, resort, once again prima facie it appears, cannot be had to the Rules of 1965. To illustrate, if the appointments of Judges of High Court and Supreme Court are made under provisions of the Constitution of India, the procedure prescribed for impeachment is also provided therein. Can a Judge be removed or impeached for the alleged acts of omission and commission done by him during his tenure as Judge, after he has retired, or even after he has been given any other assignment? Prima facie, it appears that for such acts of omission and commission, the Judge can be proceeded only during the tenure of his office. The same, it again appears, would be applicable to those who have been appointed under any statute prescribing a procedure for both appointment and removal.
5. The respondents in opposing the cause of the applicant have relied upon instructions below Rule 11 of the Rules of 1965. Reliance is upon the Government of India decision which came into being vide GI, MHA OM No.39/1/67-Ests.(A) dated 21.2.1967. The same reads as follows:
It is clarified that the provision of Rule11 of the CCS (CCA) Rules, 1965, which envisages the imposition of penalties on Government servant for good and sufficient reason is adequate authority for taking action against a Government servant in respect of misconduct committed before his employment if the misconduct committed before his employment was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. When such action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service. Perusal of the decision/instructions, as reproduced above, would prima facie show that Rule 11 would apply against a government servant in respect of misconduct committed before his employment. The applicant, it may be recalled, was holding a public office, i.e., Deputy Government Advocate, before his joining the tenure post of Presiding Officer, DRT. The misconduct alleged against him pertains to the period when he was holding the post of Presiding Officer, DRT. It cannot be said that the misconduct alleged against him pertains to the period before his employment. The applicant was in employment before joining the tenure post of Presiding Officer in DRT. Whether instructions/decision dated 21.2.1967, reproduced above, would be applicable in the case of the applicant, is yet another significant question which needs determination.
6. Considering the importance of the matter and that the decision on the issues aforesaid would have far reaching consequences, we refer this matter to a larger Bench for more authoritative adjudication. Ordered accordingly.
7. Registrar may obtain orders on administrative side from one of us (V. K. Bali, Chairman) for constituting the larger Bench.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/