Madhya Pradesh High Court
Chairman Board Of Management M.P. Bhoj ... vs Dr. Praveen Jain on 29 July, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, B.K. Shrivastava
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THE HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Heard through Video Conferencing
Writ Appeal No.555/2020
Chairman, Board of Management, M.P. Bhoj Open
University and another
versus
Dr. Praveen Jain and another
Smt. Shobha Menon, learned Senior Counsel with Shri Rahul
Choubey, learned counsel for the appellants.
Shri Akash Choudhary, learned counsel for the respondent
No.1.
CORAM :
Hon'ble Shri Justice Sanjay Yadav, Judge
Hon'ble Shri Justice B.K. Shrivastava, Judge
Date of decision : 29.07.2020
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ORDER
Per Sanjay Yadav, J :-
This intra-court appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against an order dated 04.02.2020 passed in Writ Petition No.19649/2017.2
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2. The issue which arises for consideration is regarding the validity of a departmental inquiry, under Rule 14(2) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity "Rules of 1966"), conducted by an enquiry officer who is not a serving officer or retired officer and, whether the Presenting Officer can be an officer junior in rank than the delinquent.
3. Relevant facts briefly are that respondent No.1- Director/Professor, Chemical Sciences was placed under suspension on 10.08.2017 in contemplation of a departmental enquiry. That, a major penalty charge sheet was issued on 19.09.2017. On respondent denying charges, decision was taken to initiate departmental enquiry.
4. Pertinent it is to note that as per Clause 9 Statute 13 and Clause 16 Statute 14 framed by the Appellant-University, no order imposing any of the penalties specified in sub-paragraph (1) of Paragraph 9, other than fine, shall be made except in accordance with the procedure for imposing penalties on Government servant prescribed by the Madhya Pradesh Government and in force at the 3 WA-555-2020 time the appointing authority orders an inquiry against the employee concerned.
5. In view whereof, while taking decision to initiate departmental enquiry against the respondent No.1, the Competent Authority by order dated 27.10.2017 appointed Shri Anil Pare, a retired District Judge, working with Narmada Valley Development Authority, as Enquiry Officer and Dr. Rajeev Saxena, Chief Finance Officer, an employee of the Appellant-University, as Presenting officer. This order came to be challenged in subject Writ Petition No.19649/2017 principally on the ground that an Enquiry Officer cannot be an outsider and that a person lower in rank than the delinquent cannot act as a Presenting Officer.
6. Learned Single Judge, relying on the circulars dated 25.01.1994, 10.03.1997 and 02.07.1999 issued by the General Administration Department, Govt. of M.P. and the decision in Mohd. Ismail Khan vs M.P. Road Transport Corporation (2010) 1 MPLJ 346, set aside the appointment of Enquiry Officer and Presenting Officer granting liberty to the University to appoint fresh Enquiry Officer and Presenting Officer.
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7. Exception is taken to the impugned order on the ground that the parity drawn by learned Single Judge of Regulation framed by Madhya Pradesh State Road Transport Corporation with sub-Rule (2) of Rule 14 of the Rules of 1966, is erroneous. Referring to the provisions contained in the Road Transport Corporations Act, 1950 and Madhya Pradesh State Road Transport Corporation Employees (Conduct, Discipline and Appeal) Regulations, 1975, it is contended that the stipulations contained in sub-clause (b) of Regulation 36 of the Regulation, 1975 has to be understood in the context of the stipulations contained in sub-section (2) of Section 12 of 1950 Act. In other words, it is urged that sub-section (2) of Section 12 of 1950 Act though empowers the Managing Director to delegate his powers and duties to any officers of the Corporation, he cannot sub-delegate his powers to enquire into the truth of any imputation of misconduct against an employee by appointing "an authority who is not an officer of the Corporation". It is urged that an expression "an authority" which finds mention in sub-clause (b) of Regulation 36 of the Regulations, 1975, therefore, cannot be treated as pari materia the stipulation contained in sub-rule (2) of Rule 14 of the Rules of 1966. It is urged that the expression "an authority" which find 5 WA-555-2020 mention in sub-rule (2) of Rule 14 of the Rules, 1966 is of wider connotation and cannot be confined to mean only the officers in service and not an outsider. To substantiate the contention, reliance is placed on the decisions in Union of India vs Alok Kumar (2010) 5 SCC 349 and Union Of India vs P.C. Ramakrishnayya (2010) 8 SCC 644. It is, accordingly, urged that it was well within the competence of the Authority concerned to appoint Enquiry Officer who was not an official of the University. As regard to the Presenting Officer, it is urged that his role is that of presenting the case for the prosecution and the officer who was appointed being not directly sub-ordinate to the delinquent, his appointment could not have been faulted with.
8. The respondent No.1, on his turn, has supported the impugned order passed by learned Single Judge. It is urged that the expression "an authority" which finds mention in sub-rule (2) of Rule 14 of the Rules of 1966 has to be considered in the context of the service to which an incumbent, who is subjected to the enquiry, belongs, i.e., an authority who is appointed as Enquiry Officer to conduct the enquiry must be an authority in service and not an outsider. Similarly, it is urged that a Presenting Officer appointed under Rule 6 WA-555-2020 14(5)(c) of the Rules of 1966 must be an officer higher in rank than the delinquent. On these contentions, respondent seeks dismissal of writ appeal.
9. Considered the rival submissions.
10. It being not in dispute that the procedure prescribed under Rule 14 of the Rules of 1966 being applicable in the Appellant- University in case of a department enquiry against its employee and in exercise of its powers under Rule 14(2) of the Rules of 1966, the Disciplinary Authority instead of conducting enquiry itself, appointed an authority who is not in service of the University as an Enquiry Officer and a Chief Finance Officer as a Presenting Officer under Rule 14(5)(c) of the Rules of 1966, we straight away come to the relevant clause i.e. sub-rule (2) of Rule 14 of the Rules of 1966, which stipulates :
"14. Procedure for imposing penalties. -
(1) ....
(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 Government servant, it may itself inquire into or appoint under this rule or under the provisions of the Public 7 WA-555-2020 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 sub-rule (3) of Rule 22 of the Madhya Pradesh Civil Services (conduct) Rules, 1965, the complaints committee established in each 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 shall hold, if separate procedure has not been prescribed for 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. Explanation. - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority."
11. Learned Single Judge interpreted the expression "an authority" with the aid of the provisions contained in Regulations, 1975 i.e. Regulation 36(b) and gave it a narrow meaning that "an authority" must be an officer of the department and not an outsider. However, learned Single Judge glossed over the fact that the Regulations, 1975 were framed under the provisions of 1950 Act 8 WA-555-2020 and Section 12 of 1950 Act which provides for power of Board to appoint committees and delegate functions and that sub-section (2) thereof stipulates that "the Chairman, Vice-Chairman or Managing Director may delegate any of his powers and duties duties including powers and duties delegated to him under sub-section (1) to any officer of the Corporation, and the officer to whom such powers and duties are delegated, shall exercise and perform such powers and duties under the control and supervision of the Managing Director"
(emphasis supplied). Thus, the Managing Director of the Road Transport Corporation in exercise of his powers under Regulation 36(b) of the Regulation, 19751 can appoint only an officer of the Corporation to enquire into the charges if he himself is not enquiring. However, the expression "an authority" as it appears in sub-rule (2) of Rule 14 of 1966 Rules does not suffer such conscription and thus, cannot be given narrow interpretation.
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(b) Whenever the Competent Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct against an employee, it may itself inquire, or appoint under this regulation an authority to inquiry into the truth thereof.9
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12. In Alok Kumar (supra), while dwelling on the expression "other authority" which appear in sub-rule (2) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 which is pari materia sub-rule (2) of Rule 14 of Rules of 1966, it has been held :
"31. Other important feature in the language of the Rule is appoint under this Rule a Board of Inquiry or other authority. What shall be the constitution of the Board of Inquiry and how the same would proceed further with the inquiry has been stated in sub-rules (3), (4) and (5) of Rule 9 of the Rules. The expression "other authority" has neither been explained nor defined under the Rules. In terms of Rule 2(1) (2), the words which have not been defined under these Rules shall be deemed to have been assigned the same meaning as assigned under the Indian Railway Act, 1890.
32 Even the Indian Railway Act does not define the term "authority" though this expression has been used in conjunction with other words in the Rules as well as the Act. In absence of any specific definition or meaning we have to rely upon understanding of this expression in common parlance. In common parlance, the word `authority' is understood to be power to exercise and perform certain duties or functions in accordance with law. Authority may vest in an individual or a person by itself or even as a delegatee. It is the right to exercise power or permission to exercise power. Such permission or right 10 WA-555-2020 could be vested in an individual or a body. It can also be in conferment of power by one person to another. This expression has been used differently in different statutes and can be given a different meaning or connotation depending upon the context in which it is used. The purpose and object of using such expression should be understood from the provisions of the relevant law and the purpose sought to be achieved.
33. The word `authority' is derived from the latin word auctoritas, meaning intention, advice, opinion, influence or command which originate from an auctor, indicating that authority originates from a master, leader or author, and essentially is imposed by superior upon inferior either by force of law (structural authority) or by force of argument (sapiential authority).
...
41. It is a settled principle of interpretation that exclusion must either be specifically provided or the language of the rule should be such that it definitely follows by necessary implication. The words of the rule, therefore, should be explicit or the intent should be irresistibly expressed for exclusion. If it was so intended, the framers of the rule could simply use the expression like `public servant in office' or `an authority in office'. Absence of such specific language exhibits the mind of the framers that they never intended to restrict the scope of `other authority' by limiting it to the serving 11 WA-555-2020 officers/officials. The principle of necessary implication further requires that the exclusion should be an irresistible conclusion and should also be in conformity with the purpose and object of the rule.
...
44. In the present case, neither of these ingredients appear to be satisfied. Ultimately, what is the purpose of a departmental inquiry? It is to put to the delinquent officer/official the charges or article of charges and imputation and seek his reply in the event of there being no substance to hold an inquiry in accordance with the rules and principles of natural justice. The inquiry officer appointed by the disciplinary authority is a delegatee and has to work within the limited authority so delegated to him. The charges and article of charges and imputations are served by the disciplinary/competent authority. The inquiry report is submitted again to the competent authority which is expected to apply its mind to the entire record and then decide whether any punishment should be imposed upon the delinquent officer or not. Thus, all substantive functions are performed by the disciplinary or the specified authority itself. It is only an interregnum inquiry. It is conducted by the delegatee of the said authority. That being the purpose and specially keeping in mind the language of Rule 9(2), we are unable to accept the contention that `other authority' has to be a person in service alone. Thus, it is not only the persons in service 12 WA-555-2020 who could be appointed as inquiry officers (other authority) within the meaning of Rule 9(2). ...
46. Another factor which we may notice is that the definition of the public servant appearing in the Indian Penal Code (for short `the Code'), reliance upon which was placed by the respondents, was not brought to the notice of the Court while dealing with the case of Ravi Malik (supra). In terms of Section 21 of the Code a public servant denotes a person falling under any of the descriptions stated in the provision. While it refers to a different kind of persons it also brings within its ambit every arbitrator or every person to whom any cause or matter has been referred for decision or report by any court or any other competent public authority. Furthermore, as per the 12th clause of inclusion, in this very section, even "every person" can be a public servant. In fact, in terms of Section 21(a), a person who is in service of the Government or remunerated by fees or commission for the purpose of any public duty of a Government is also a public servant.
47. Thus, a person who is engaged by a competent authority to work on a fee or a fixed remuneration can be a public servant. We fail to understand then how a person engaged for the purposes of performing a delegated function in accordance with law would not be `other authority' within the meaning of the Rule 9(2). The Rule 13 WA-555-2020 has not specified any qualifications or pre-requisites which need to be satisfied before a person can be appointed as an inquiry officer. It has been left to the discretion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simplicitor. ...
55. Still another aspect of the case can be that, the expression "public servant" cannot be equated to the term "other authority". Both these expressions cannot be treated as inter-changeable or synonymous. They have different connotations and meaning in law. "Public servant" is a term which is well defined and explained in the field of law, while "authority" is a generic term and is used in different places with different meanings and purposes. `Authority' thus is an expression of wide magnitude and is frequently used not only in legal jurisprudence but also in administrative and executive field. Therefore, it is to our mind not permissible to permit restricted meaning of this term."
13. Similar issue came up for consideration in the case of P.C. Ramakrishnayya (supra) in context to sub-rule (2) of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, wherein it has been held :
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12. Coming back to the merits of the case, we must point out that the issue is no longer res integra. The question of validity of appointment of a retired officer from a panel prepared for appointment of Inquiry Officers for holding departmental inquiry was examined in great detail in a recent decision of this Court in Union of India & Ors. vs. Alok Kumar, 2010 (5) SCC 349. It may be clarified that the decision in Alok Kumar was rendered in a case under rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 and the present case arises from Rule 14(2) of the CCS (CCA) Rules. But it needs to be pointed out that the provisions of Rule 9(2) of Railway Servants (Discipline and Appeal) Rules, 1968 dealing with the appointment of inquiry officers are in pari materia with Rule 14(2) of the CCS (CCA) Rules.
15. It is, thus, to be seen that the only difference between rule 14(2) of CCS (CCA) Rules and Rule 9(3) of Railway Servants (Discipline and Appeal) Rules is that in the former the words "a Board of Inquiry or" are not there. But that is of no significance for the issue in hand.
16. In Alok Kumar, this Court considered in great detail, the meaning of the word "authority" occurring in Rule 9(3) and came to find and hold that a retired officer could also be vested with the delegated authority of the Disciplinary Authority (see paragraphs 26-62) to hold the inquiry. It may also be noted that in Alok Kumar, this Court also considered the decision in Ravi Malik vs. 15 WA-555-2020 National Film Development Corporation Ltd. (2004) 13 SCC 427 and distinguished it by pointing out that it was in the context of Rule 23(b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. In paragraph 45 of the judgment, the Court observed as follows:
"45. Reliance placed by the respondents upon the judgment of this Court in Ravi Malik is hardly of any assistance to them. Firstly, the facts and the rules falling for consideration before this Court in that case were entirely different. Secondly, the Court was concerned with the expression "public servant"
appearing in Rule 23(b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that "public servant" should be understood in its common parlance and a retired officer would not fall within the meaning of "public servant", as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9(2) as well as Section 3 of the Act have used a very different expression i.e. "other authority" and "person/persons". In other words, the absence of the words "public servant" of the Government are conspicuous by their very absence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the common parlance."
14. In view whereof, we are satisfied that learned Single Judge erred in nullifying the order of appointment of Shri Anil Pare, a retired District Judge, as Enquiry Officer, which is hereby restored. 16
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15. As regard to appointment of Dr. Rajeev Saxena, Chief Finance Officer, as the Presenting Officer; clause (c) of sub-rule (5) of Rule 14 of Rules of 1966 stipulates that "(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge". Thus, a Presenting Officer must be a Government servant. The Rule does not qualify that such Presenting Officer must be equal or higher in rank than the delinquent and, rightly so, because the Presenting Officer does not adjudicate a cause but only presents the case of the department before the Enquiry Officer and merely because, the circular of the State Government says that ordinarily a Presenting Officer should be of equal or higher rank, will not vitiate his appointment unless it is established that any prejudice may be caused to the delinquent. Even otherwise, a close reading of said Circular No.F- 4(2)/1983/1(6) dated 25.01.1984 reveals that the same is not issued in the name of the Governor as would have any force of law. They 17 WA-555-2020 are merely guidelines and will not override the stipulations contained under Rule 14(5)(c) of the Rules of 1966.
16. The impugned order dated 04.02.2020 passed in Writ Petition No.19649/2017, when tested on the anvil of above analysis, cannot be given the stamp of approval. Consequently, the same is set aside.
17. The appeal is allowed to the extent above. No costs.
(Sanjay Yadav) (B.K. Shrivastava)
JUDGE JUDGE
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2020.08.05
13:46:48 +05'30'