Karnataka High Court
Bangalore Water Supply And Sewarage ... vs Dr. T.K. Puttaswamy Gowda on 11 December, 1992
Equivalent citations: ILR1993KAR278, 1993(1)KARLJ122
JUDGMENT N.D.V. Bhat, J.
1. In this Appeal the appellant has challenged the order dated 8th November 1991 passed in Writ Petition No.2227 on 985.
2. In the said Writ Petition the respondent had challenged the order dated 23,2.1984 passed by the Chairman and Disciplinary Authority, Bangalore Water Supply and Sewerage Board (hereinafter referred to as 'the Board') under Rule 8 read with Rule 9(2)(c) of K.C.S.(C.C.A.) Rules, 1957. By the said order the instant respondent was dismissed from service.
3. The facts which are necessary for the disposal of this Appeal briefly stated are as below:
The instant respondent was appointed by the Board before 1981 as a part time Medical Officer. Subsequently, in the year 1981 he was appointed as a Medical Officer in the Dispensary belonging to the Board at T.G. Halli. The instant respondent was appointed on the specific condition that he should stay as a resident in the quarters allotted to the Medical Officer. However it was noticed in due course of time that the respondent was absenting himself from duty both during office hours as also outside office hours, contrary to the conditions under which he was appointed. Repeated reminders and exhortation did not have the required result, with the result the Disciplinary Authority was compelled to initiate disciplinary action against the instant respondent.
Charges were framed as per Annexure-F and the same were served on the delinquent official. The delinquent official in response to charges served on him, put in his written statement denying the charges.
Having regard to the same, the Disciplinary Authority appointed one Sri B.N. Thyagaraj, Chief Engineer of the Board as the Enquiring Authority to go into the charges and to submit a report as provided for, under the provisions of K.C.S. (C.C.A.) Rules which in fact has been adopted by the Board. The Enquiring Authority on a consideration of the materials placed before him and for the reasons reflected in his Report found the delinquent official guilty in the sense that he found him absenting from duties both during office hours and also after office hours as reflected from the records. He submitted the Enquiry Report to the Disciplinary Authority. The Disciplinary Authority on receipt of the Enquiry Report issued a show cause notice to the delinquent official as per Annexure-C dated 21.1.1984. It is seen that the delinquent official in response to the same submitted his reply as per Annexure-H dated 1.2.1984.
The Disciplinary Authority on a consideration of the materials placed before it including the reply submitted by the official with reference to the Enquiry Report reached the conclusion that the charges levelled against the delinquent official have been established by the materials placed on record and imposed the penalty of dismissal by its order dated 23.2.1984. It is this order which was challenged before this Court in W.P.No. 2227 of 1985.
4. Before the learned Single Judge, it was contended among other things on behalf of the petitioner/instant respondent that the Disciplinary Authority who is said to have initiated disciplinary enquiry against the petitioner/instant respondent did not have the power to do so, having regard to the fact that under Section 12 of the Bangalore Water Supply & Sewerage Board Act (hereinafter referred to as 'the Act') it is only the Board which is the Appointing Authority in relation to staff members of the Board and no other authority including the Chairman had the power to do so. It appears to have been contended that Section 88 of the Act which empowers the Board to frame Regulations cannot be stretched to the extent of framing Regulations which will conflict with the provision as reflected in Section 12 of the Act. It was therefore contended that the Chairman of the Board did not have the authority to initiate the disciplinary action and to dismiss the instant respondent. It is seen that the said submission weighed with the learned Single Judge and the learned Single Judge accepting the said submission quashed the order challenged before him. It is further seen that while reaching the conclusion which he did, the learned Single Judge seems to have relied on a Decision of this Court in Writ Appeal Nos. 2010 and 2011 of 1989 disposed of on 12.6.1991. It would be indeed necessary to extract that portion of the Judgment of the learned Single Judge where he has made a reference to the observations made in the said Writ Appeals. In this connection para-2 of the order of the learned Single Judge would be relevant and the same reads as under.
"2. In Writ Appeal Nos.2010 and 2011/1989, disposed of on 12.6.1991, the Division Bench considering the question whether Chairman of the Bangalore Water Supply and Sewerage Board, Bangalore, was the appointing authority, held as follows:
"It is axiomatic in law the power to appoint by virtue of a regulation carries with it the power of suspension. But here we are on the question whether the Chairman is the appointing authority at all before the order of interim suspension could be invoked. We find the Chairman could not be the appointing authority in view of the imperative language of Section 12."
Thus the Division Bench agreeing with the learned Single Judge in the Writ Petition, dismissed the above Writ Appeals."
It is also necessary to extract here itself the observations of the learned Single Judge reflected in para-5 of his Judgment which reads as under:
"Until that order is reversed by the Supreme Court, it is binding on me. In the instant case also, the Chairman of the Board has passed the removal order (Annexure-A) and has framed charges (Annexure-F) against the petitioner. That cannot be sustained in view of the ruling of this Court. In the result, I make the following Order:
This Writ Petition is allowed. The order (Annexure-A) the report (Annexure-B) of the Enquiry Officer and the charge (Annexure-F) impugned herein are hereby quashed. However, liberty is reserved to the respondents to take appropriate action, in accordance with law."
It is in the context of the aforesaid observations the learned Single Judge has passed the order which is challenged in this Appeal.
5. We have heard the submissions made by the learned Counsels on either side.
6. In the light of the submissions made at the Bar, the following points arise for Consideration:-
1. Whether the Chairman of the Board had the power to initiate the disciplinary action against the delinquent official?
2. if so, whether the order of removal of respondent from service by the Chairman in the said proceeding is sustainable?
3. What order?
7. Points Nos. 1 & 2:- It is undisputed that the respondent was in fact appointed by the Board initially as a part time Medical Officer and thereafter by a Notification dated 15.1.1931 he was appointed as a Medical Officer on full time basis and was posted at T.G. Halli; on the conditions referred to in the Notification.
8. The main thrust of the submission made on behalf of the learned Counsel for the respondent is that under Section 12 of the Act, it is the Board and the Board alone which is the Appointing Authority and in fact it was the Board which appointed him and that therefore it is only the Board that was competent to vitiate the disciplinary action and the Chairman did not have the power either to initiate disciplinary action or to remove the officer from service in the course of the said disciplinary proceeding, it is pointed out that the Bangalore Water Supply & Sewerage Board Cadre Regulation and Promotion Regulation 1981 (hereinafter referred to as 'the Regulations') came into force on 30.10.1982 and that the same cannot designate the Chairman of the Board as an Appointing Authority for the reason that the same would be contrary to the provisions reflected in Section 12 of the Act itself. The same Decision Which is relied on by the learned Single Judge has also been pressed into service on behalf of the learned Counsel for the respondent in support of that submission. At this juncture, it would be necessary to make a reference to the provisions of Section 12 of the Act which reads as under:
"The Board may appoint the Secretary, the Chief Engineer, Sanitary Engineer, Water Supply Engineer and such other officers and servants as may be required to enable the Board to carry out its function under the Act'."
It is no doubt true that Section 12 of the Act invests the power of appointment in the board. However what is necessary to be seen is as to whether the Board in the context of any other provisions of the Act is competent to delegate its power. At this juncture it would be necessary to spell out the relevant provisions reflected in Section 88(1)(c) & (f) of the Act which reads as under:
"(1) The Board may with the previous approval of the State Government make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any other following matters, namely:-
(a) & (b) xxx xxx xxx
(c) the duties of officers and servants of the Board and their salaries, allowances and other conditions of service.
(d) & (e) xxx xxx xxx (1) any other matter arising out of the Board's functions under this Act in which it is necessary or expedient to make regulations."
It is necessary to notice here that Section 88(c) is more restrictive in its ambit. However, Section 88(1)(f) is indeed comprehensive. It is required to be seen as to whether the said provision is such as would bring within its fold the power of delegation even in respect of the power of the Board under Section 12 of the Act. In fact, the Supreme Court had an occasion to deal with a similar question. The Supreme Court had an occasion to deal with the provisions referred to in Section 79(k) and Section 15 of the Electricity Supply Act. At this juncture, it may be mentioned here that Section 15 of the said Act is pari materia with the provisions of Section 12 of the Act and Section 79(k) of the said Act is anologous to the provisions of Section 88(1)(f) of the Act. In the case dealt with by the Supreme Court, the Regulations framed by the U.P.State Electricity Board had been quashed by the High Court of Allahabad on the ground that the Regulations which designated different officers of the Board as appointing authorities among other things, contrary to the provisions of Section 15 of the said Act were ultra vires of the said Act. Dealing with that aspect, the Supreme Court in the Decision in U.P. STATE ELECTRICITY BOARD v. ABDUL SAKOOR HASHMI AND ORS., has observed as under:
"Although there are two questions, one of fact and one of law, which arise in these two appeals, the learned Attorney General fairly left the final outcome on the question of fact untouched because he was more concerned with a correct construction of Section 79(k) read with S. 15 of the Electricity (Supply) Act, 1948 and the validity of regulations framed by the U.P. State Electricity Board on December 18, 1970 in exercise of the powers conferred by S. 79(c) of the Act. That regulation lays down the mode of appointment to various posts under the Board, the appointing authorities thereof, the authorities who are competent to impose punishment on the employees and the authorities competent to hear appeals against disciplinary action. The said regulation was published in the U.P. Gazette dated 2.1.1971 pages 65-71 (Part I).
2. This regulation was struck down by the High Court on the score that there was no power of delegation by the Board which made the appointments and which ordinarily would be clothed with the power of terminating appointments. It is common ground that there is no specific provision under the Act which authorised the Board to delegate its powers and, therefore, the question turns upon the correct meaning and amplitude of Section 79(c) & (k) of the Act. We think that while Section 79(c) has been relied upon by the authority making the regulation, the appropriate provision is Section 79(k) which we read at this stage:
"79. The Board may make regulations not inconsistent with this Act and the Rules made thereunder to provide for all or any of the following matters, namely:-
(k) any other matter arising out of the Board's functions under this Act for which it is necessary or expedient to make regulations."
3. Section 79(c) which has actually been relied on may also be extracted here:
"79(c). The duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service."
4. It is obvious that Section 79(k) is a residuary provision which embraces the power to make regulations in regard to functions of the Board. Section 79(c) is more restricted and confines itself to defining the duties of officers and other employees of the Board and their allowances and other conditions of service. In our view the appropriate provision which will empower the Board to make regulations regarding termination of service and disciplinary action vis-a-vis employees of the Board is Section 79(k). Concerned language used is sufficient to cover making up of provisions to terminate employment. It is undoubtedly a clear function of the Board under Section 15 to make appointments of its officers and employees. Thai provision reads:
"Section 15. The Board may appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its functions under this Act.
Provided that the appointment of the Secretary shall be subject to the approval of the State Government."
5. The power, so vested by necessary implication carries with it the power also to take disciplinary action or to terminate employment. It, therefore, follows that Section 79(k) takes with it its sweep the power to maintain or to take disciplinary action. We cannot, therefore, agree with the High Court that the regulation is invalid.
A careful perusal of the observations made by the Supreme Court in the aforesaid case would go to show that the Board had the authority to delegate its power of appointment. It is therefore clear that in view of Section 88(1)(f) of the Act, the Bangalore Water Supply and Sewerage Board is authorised to delegate its power conferred under Section 12 of the Act.
9. It is necessary to mention at this juncture that under the Regulations which came into force in the year 1982 under Schedule II the Chairman is designated as the Appointing Authority with reference to several category of officers including the category of officers to which the instant respondent belongs. Under these circumstances, it becomes clear that the Chairman thus becomes the Appointing Authority with effect from the date on which the Regulations came into force with reference to the category of officers referred to in the Schedule to the Regulations and as such he becomes the Disciplinary Authority also.
10. At this juncture it is also necessary to point out that the Decision of the Division Bench of this Court in Writ Appeals Nos. 2010 and 2011 of 1989, DD 12-6-1991 : Ramesh v. B.W.S.S.B. set aside in No. 3 : referred to and relied on by the learned single Judge to reach a conclusion which he did has been set aside by the Supreme Court in Civil Appeal Nos. 1156 & 1157 of 1982. [Arising out of S.L.P. (Civil) Nos. 16575-76 of 1991], B.W.S.S.B v. Ramesh and Anr. decided on 25-3-1992. Under these circumstances, it is clear that the very basis on which the Decision of the learned single Judge rested is taken away. Further it is necessary to point out here that the Supreme Court in S. Ramesh's case while setting aside the Decision of the Division Bench of this Court in the Writ Appeals has referred to and relied on its two Decisions rendered earlier. One such Decision is STATE BANK OF INDIA v. VIJAYA KUMAR, . In the said case the appellant before the Supreme Court was appointed by the Executive Committee of the State Bank. However, at a subsequent date the Chief General Manager of the said Bank was designated as the Appointing Authority by virtue of the Regulations which came into being by way of amendment. With reference to the same, the Supreme Court among other things pointed out that the Chairman would become the Disciplinary Authority and that he was invested with power of dismissal by the said Regulation. It is not necessary to refer to the further details of the said Decision at this juncture, having regard to the observations of the Supreme Court in Uttar Pradesh State Electricity Board's case which is directly on the point viz., on the question as to whether the Chairman of the Board could initiate the disciplinary proceeding. As pointed out earlier, with effect from the date on which the Regulations framed under Section 88 of the Act came into force, the Chairman of the Board who is an Appointing Authority would become the Disciplinary Authority in relation to all the category of officers referred to in the Schedule and in respect of whom he is designated as such. Under these circumstances, we have no hesitation whatsoever in answering Point No,1 in the affirmative by holding that the Chairman of the Board was competent to initiate the disciplinary action against the instant respondent.
11. If that be so, the next question that arises for consideration of this Court is as to whether the order passed in the course of the disciplinary proceedings is valid in law?
12. As pointed out earlier, it is undisputed that the Board has adopted the K.C.S. (C.C.A.) Rules with reference to the disciplinary proceedings to be initiated against the officers and officials of the Board. Further, Sri Subba Rao, learned Counsel arguing the case for the appellant has also made available a copy of the Resolution dated 11.9.1973 to evidence the same. A perusal of the said proceeding would indeed go to show that among other things K.C.S. (C.C.A.) Rules have also been adopted by the Board. If that be so, it is clear that the Disciplinary Authority and the Enquiring Authority if any, in the course of the proceeding will have to comply with the provisions reflected under the various provisions of K.C.S. (C.C.A.) Rules.
13. One of the contentions raised by learned Counsel appearing for the respondent is that the enquiry is not valid in law having regard to the fact that the mandatory requirement as reflected in Rule 11 of the Rules has not been complied with. We find that there is force in the submission made on behalf of the Counsel appearing for the respondent.
14. It is necessary to point out here that under Rule 11(14) of the K.C.S. (C.C.A.) Rules, it is provided that on the date fixed for enquiry oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. It is also provided therein that the witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government Servant and the Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring Authority, it will suffice if it is stated here that statements of any of the witnesses have not been recorded. In fact with a view to see as to whether statement of any of the witnesses has been recorded by the Enquiring Authority we wanted to have the original records and Sri Subba Rao, learned Counsel appearing for the appellant has made available the said records and on going through the records we find that no statements as such are available. Sri Subba Rao, learned Counsel however tried to plug the loophole by submitting that there is a reference in the course of the Enquiry Report to the summary of the statements of different witnesses. However, it is needless to state that the statements are required to be recorded as per the mandatory' provisions referred to in Rule 11(14) of the K.C.S. (C.C.A.) Rules. Merely summarising the say of the witnesses in the Report after making a mental note of the same will not meet the mandatory requirement of Rule 11 (14) of the aforesaid Rules. It will not even give an idea to the higher forum as to how those statements read. Further an opportunity is required to be given to the delinquent official to cross-examine the witnesses and such cross-examination will have to be directed with reference to the statements given by the witnesses. If the statements of the witnesses are not recorded by the Enquiring Authority it is needless to say that the opportunity to the delinquent official to cross-examine the witnesses is also rendered futile. It is therefore clear that failure to follow the procedure has vitiated the enquiry, with the result, the proceedings before the Disciplinary Authority culminating in the order of dismissal also stands vitiated.
15. At this juncture, it is also necessary to point out here that the Chairman of the Board has become the Appointing Authority by virtue of the Regulations referred to earlier and as such, we have taken the view that he would become the Disciplinary Authority. At the same time, it is significant to notice here that the Regulations framed under Section 88 of the Act have not conferred on the Chairman the power of dismissal of an Officer of the Board. On the other hand, it is seen that in so far as the disciplinary proceeding is concerned, the Board has adopted K.C.S. (C.C.A.) Rules as pointed out earlier. Rule 9(3) of the K.C.S.(C.C.A.) Rules reads as under:
"9(3). Notwithstanding anything contained in this Rule no penalty specified in Clauses (v) to (viii) of Rule 8 shall be imposed by any authority lower than the Appointing Authority."
At this juncture it would be indeed necessary to see as to who would be the Appointing Authority with reference to the provisions of the Rules relating to Rule 9(3). In this connection, the definition of the Appointing Authority under the KCS (CCA) Rules as reflected in Rule 2(a) is indeed relevant which reads as under:
"2. Interpretation: In these rules, unless the context otherwise requires-
(a) 'Appointing Authority' in relation to a Government servant means -
(i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or
(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or
(iii) the authority which appointed the Government servant to such service, grade or post, as the case may be, whichever authority is the highest authority."
(Underlining by us) In the instant case, it is seen that the Chairman of the Board, by virtue of the Regulation with effect from the date of coming into force of the Regulations, is designated as the Appointing Authority. The instant respondent was infact appointed by the Board. It is needless to say that the Board is a higher authority than the Chairman. Having regard to the definition of the Appointing Authority in Rule 2 extracted herein above it is clear that for the purpose of Rule 9(3) of the K.C.S. (C.C.A.) Rules it is only the Board which would be competent to impose the penalty of dismissal. We may also point out here that Rule 11 (21) of the K.C.S. (C.C.A.) Rules reads as under:-
"21 (a) Where a Disciplinary Authority competent to impose any of the penalties specified in Clauses (i) to (ia) of Rule 8 but not competent to impose any of the penalties specified in Clauses (v) to (viii) of Rule 8, has itself inquired into or caused to be inquired into the articles of any charge and that authority having regard to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties specified in Clauses (v) to (viii) of rule 8 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such Disciplinary Authority as is competent to impose the last mentioned penalties.
(b) The Disciplinary Authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules."
A reading of the said provision would go to show that if the Disciplinary Authority at an appropriate stage of the proceeding reaches a conclusion that the penalty which it is not competent to inflict is liable to be imposed, then such Disciplinary Authority is indeed competent to transmit the papers to the higher authorities for the purpose of imposing such penalties. It is clear that such a modus operandi has not been adopted in the instant case and it is seen that the Chairman himself has chosen to direct dismissal of the respondent in his impugned order. Looked at from that point of view also we find that the order under challenge is rendered invalid. Point No.2 is answered in the negative.
16. Point No. 3:- It is seen that initiation of enquiry as such was valid in view of the fact that Chairman had the jurisdiction to initiate the disciplinary action, though he did not have the power to pass an order of dismissal for the reasons already stated. It is further seen that the enquiry is vitiated only at the stage when the Enquiry Officer conducted the enquiry. The said enquiry has got vitiated on account of the fact that the mandatory requirement reflected under Rule 11 of the K.C.S. (C.C.A.) Rules has not been complied with as already pointed out earlier. Under these circumstances, it is clear that in the eye of law there was no valid enquiry next after the charges were served upon the delinquent officer and the written statement was submitted by the latter. Therefore, it is clear that the enquiry has got vitiated of Enquiry Officer. Under these circumstances we find that the appropriate course for this Court to adopt would be to remit the matter to the Disciplinary Authority to proceed from the stage from which the enquiry got vitiated.
17. For the reasons stated herein above, the Writ Appeal is allowed. The Order dated 8.11.1991 passed by the learned Single Judge in W.P.2227/1985 is hereby set aside. The Writ Petition is allowed in part. The order dated 23.2.1984 passed by the Chairman of Appellant-Board is quashed. The Enquiry Report dated 21.11.1983 submitted by the Enquiry Officer is also quashed.
18. The matter is remitted to the Disciplinary Authority i.e., Chairman, B.W.S.& S.B. with a direction to conduct the enquiry himself or to appoint a fresh Enquiring Authority and to dispose of the proceedings according to law.
19. In the facts and circumstances of the case, we direct both the parties to bear their own costs.