Central Administrative Tribunal - Lucknow
Sadhna Joshi vs Union Of India (Uoi) And Anr. on 7 April, 2003
Equivalent citations: 2003(3)SLJ254(CAT)
ORDER Rafiq Uddin, Member (J)
1. The applicant seeks quashing of order dated 6.2.2003 passed by the Assistant Commissioner, Kendriya Vidyalaya Sangathan (K. V.S.) Lucknow (respondent No. 3)(Annexure A-1) and also Memo dated 10.8.02 issued by the Assistant Commissioner (K.V.S.) Lucknow (respondent No. 5) (Annexure - 2 to this O.A.).
2. The applicant while working as Librarian at K.V.S. Rae Bareli, was served with a charge-sheet on 2.1.02 under rule 14 of the C.C.S. (C.C. A.) Rules, 1965 (in short the Rules of 1965). The charges levelled against the applicant are as under:
(a) that the applicant while functioning as Librarian at Rae Bareli during the period 2000-2002 refused to receive the final communications and letters given by the Principal.
(b) that the applicant during the period 2001-02 did not hand over the key of the Library and accordingly committed a gross misconduct.
(c) that the applicant submitted representation directly to the higher authorities.
2. One Shri A.K. Varshney, a retired Assistant Commissioner of K.V.S. was appointed as Enquiry Officer vide order dated 21.2.2000 to enquire into the articles of charges levelled against the applicant. The enquiry was duly conducted by the enquiry officer who submitted enquiry report dated 15.7.02 to the Disciplinary Authority, after completion of enquiry. The enquiry officer, in his findings given in the aforesaid enquiry report found the charges levelled against the applicant proved. The Disciplinary Authority, on receipt of the aforesaid report and after considering the same, asked the applicant to submit her reply vide impugned Memo dated 10.8.02. The applicant submitted her reply on 24.8.02 (Annexure A-6) to the aforesaid Memo. The Disciplinary Authority, after considering the enquiry report imposed the penalty of compulsory retirement from service upon the applicant vide impugned punishment order dated 6.2.03.
3. The case of the applicant is that the respondents have been harbouring malice against the applicant because she has challenged her transfer from Rat Bareli to C.C.I. Rajban, Himachal Pradesh and again to Shivepuri by filing O.A. before this Tribunal for setting aside the aforesaid transfer orders. It is further stated that the impugned punishment order is liable to be quashed because the same has been passed on the basis of an enquiry conducted by a retired person which is not permissible under the provisions of Rule 14 of the Rules of 1965.
4. The respondents, in their Counter Affidavit have denied the allegations made by the applicant and it is stated that under Article 80(a) of Education Code for K.V.S. (in short Code) all the employees of the K.V.S. are subjected to disciplinary control of the K.V.S. However, as per decision of the K.V.S. "the rules of 1965 are applicable mutatis mutandis to all members and staff of the K.V.S. except when otherwise decided. The Govt. of India (Central Vigilance Commission), vide its letter dated 16.9.99 directed that the services of a retired officer should be utilised for conducting departmental enquiries. Accordingly, the K.V.S. has drawn a panel of retired K.V.S. officers as Inquiry Officer in respect of teachers and employees of Lucknow and Patna Region in order to speed up the disciplinary proceedings. The name of Shri A.K. Varshney, retired Assistant Commissioner who has conducted the enquiry against the applicant has also been included at serial No. 12 in the aforesaid panel dated 29.9.99. Thus, the appointment of enquiry officer is in order. The plea of the applicant having not filed any appeal to the Appellate Authority, as per rules, has also been taken by the respondents.
5. We have heard the learned Counsel for the parties and have perused the pleadings on record.
6. The sole ground for challenging the validity of the punishment order taken by the applicant is that the appointment of the enquiry officer is not as per rules. It is contended by the learned Counsel for the applicant that since the Inquiry Officer is a retired person, the enquiry conducted by him is invalid because there is no provision under the Rules of 1965 for appointment of retired person as enquiry officer.
7. It is pertinent to mention here that the applicant has not challenged the validity either of letter dated 16.9.99 or letter dated 29.9.99. The applicant also did not raise objection regarding competence of the enquiry officer to conduct the enquiry against her either before the Disciplinary Authority or enquiry officer during the enquiry proceedings. The applicant has also not alleged any bias against the enquiry officer. Under these circumstances, in our opinion, the applicant cannot legally raise these pleas before this Tribunal i.e. first time, after participating in the enquiry proceedings. The plea of the enquiry officer being incompetent appears to be an after thought.
8. The learned Counsel for the applicant has contended that the appointment of are tired person as enquiry officer is illegal because there is no provision under the rules. Reliance has been placed on a case decided by Ernakulam Bench of this Tribunal in the case of X Baby v. Sub-Divisional Engineer (1998) 37 A.T.C. 393.
9. It may be stated that Rule 14(2) of the Rules of 1965 which are admittedly applicable to the teachers and employees of the K.V.S. provide procedure for holding enquiry by appointing the enquiry officer or authority or even a Board of enquiry. It is also clear from the perusal of the aforesaid rule that there is no specific provision for appointing a retired person as an enquiry officer.
10. The only question for consideration in the present case is as to whether the respondents are justified in appointing a retired person for conducting enquiry against the applicant. As stated, the learned Counsel for the applicant has contended before us that the appointment of Shri A.K. Varshney, who is the retired Assistant Commissioner is against rules and the report submitted by him is invalid and the punishment order passed on the basis of such report is liable to be quashed. The learned Counsel for the applicant has brought to our notice the case of X Baby (supra) to prove his point. We however, find from the perusal of the aforesaid case that the same is not of any help to the case of the applicant. The facts of the case relied upon are different from the case in hand. We find that in X Baby's case, the officer was appointed enquiry officer, while he was in service. He retired on superannuation during pendency of enquiry proceedings. However, the enquiry officer continued with the proceedings even after retirement and completed the same. It was, therefore, under the facts and circumstances of that case held that the enquiry report submitted by a retired enquiry authority was without jurisdiction and the punishment order passed by the Disciplinary Authority on the basis of such report was quashed. It was however, not held in this case that a retired person cannot be appointed as enquiry officer. There is a reference to the scheme framed by the Government giving permission for empanelment of selected retired officers who may be appointed as enquiry authorities in order to expedite the enquiries and clear the backlog of pending enquiries. The Bench has clearly observed that "the need to draw up such a scheme itself show that under the rules retired officers cannot function as enquiry authority." In other words, the appointment of retired persons as enquiry officer through some Scheme was not found invalid. It was however, found that the appointment of the enquiry officer was not in accordance with such scheme. It has thus been merely stated that under the Rules of 1965 retired persons can not function as enquiry officers but the Government, under the administrative instructions, can draw up the scheme and permit the retired officers to be appointed as enquiry officer. It has nowhere been held that retired officer can under no circumstances act as enquiry officer. In this case, the enquiry officer was a retired person and was not appointed as per the scheme drawn up by the Government and in the absence of specific provision in the Rules of 1965, his appointment was obviously illegal. Such enquiry officer was not competent to proceed with the enquiry after his retirement.
11. We have also looked into the validity of the appointment of Shri A.K. Varshney as enquiry officer.
12. The case of the respondents is that Sri A.K. Varshney was appointed enquiry officer because he was empanelled as enquiry officer by the K.V.S. for holding disciplinary enquiry, as such Shri A.K. Varshney was competent to hold enquiry against the applicant, having been appointed enquiry officer, in terms of Govt. of India circular dated 16.9.99 issued by Central Vigilance Commission. We have perused the contents of letter dated 16.9.99 (Annexure CA-2 to the Counter Affidavit) which is reproduced below:
"As you are aware, the Commission, in order to ensure that the departmental inquiries are completed in time, had advised all Departments/Organisations, vide its instruction No. 8(1) (h)/98 (1) dated 18.11.98 to immediately review all pending cases and appoint IOs from among the retired Government officers. In the said instructions, the Commission had inter alia stated that it would build a panel of officers for this purpose.
2. Accordingly, after verifying the antecedents of Retired officers, the Commission has built a database. The details of retired officers who have been empanelled by the Commission as on date is enclosed. The terms and conditions formulated by the Commission for appointing these officers is also enclosed.
3. This is brought to the notice of all concerned in order to utilise the services of empanelled retired officers as IOs.
In pursuance of the aforesaid instructions the K.V.S., vide letter dated 29.9.99 (C.A.-3 to the Counter reply has drawn a panel of retired K.V.S. Officers as enquiry officers in respect of teachers and employees. The name of Shri A.K. Varshney was also included in the said penal at serial No. 12.
13. It is no doubt, correct that there is no provision in the Rules of 1965 for appointment of any retired person as enquiry officer, but there is also no provision prohibiting such appointment. In other words, the Rules of 1965 are silent on this point. Under these circumstances, the Government can, by means of administrative instructions, make provision for appointment of a retired person as enquiry officer. The law on this point has been clearly stated by the Apex Court in Union of India and Ors. v. Rakesh Kumar and Ors., 2001 SCC (L&S) 207=2001(3) SLJ 257 (SC), in the following words:
"In our view, there cannot be any doubt that the Government cannot amend or substitute statutory rules by Administrative Instructions but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with rules.
(Emphasis supplied).
14. In the case in hand also we find that the rules are silent about appointment of retired officers/persons as enquiry officer. Therefore, the Government is justified in issuing instructions vide letter dated 16.9.99 and the K.V.S. in empanelling the retired officers vide letter dated 29.9.99. We do not find that these instructions are in any way inconsistent with the provisions of Rules of 1965. In this context the case of "Shyam Bahadur Tripathi v. U.P. State Public Services Tribunal, 1997 SCC (L&S) 744, may also be referred. In this case, the U.P. Road Transport Corporation had departmental instructions to appoint departmental officer as enquiry officer. But subsequently, instructions were issued for transferring the departmental enquiry to independent agency namely a retired Judicial Officer. However, in a particular case, the Corporation transferred the enquiry to be held by a departmental officer. It was held that there was no illegality in it because the instructions were mere guidelines for the authorities and action even if contrary to the departmental instructions, was not illegal or invalid. However, the apex Court did not question the power of the Corporation to appoint retired Judicial Officer as enquiry officer. We find in the present case also that the respondents can legally appoint enquiry officers from retired officers and the action of the respondents is not inconsistent with the Rules of 1965.
15. For the reasons stated above, we are of the considered opinion that the appointment of Shri A.K. Varshney as enquiry officer to conduct enquiry against the applicant is neither illegal nor it is violative of principles of fair play.
Since no other irregularity in conducting the enquiry against the applicant has been pointed out, and we also do not find any such irregularity in conducting the enquiry, the punishment order based on the enquiry report submitted by the enquiry officer in question, therefore, does not require any interference by this Tribunal. Consequently, the O.A. deserves to be dismissed. Accordingly, the O.A. is dismissed. No order as to costs.