Tripura High Court
Sri Subrata Majumder vs The Tripura State Pollution Control ... on 29 September, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
1
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 869/2022
Sri Subrata Majumder, son of late Chandan Majumder, resident of Town
Indranagar, P.O. Dhaleswar-799008, P.S. East Agartala, District- West
Tripura
.....Petitioner
-VERSUS-
1. The Tripura State Pollution Control Board, to be represented by
the Member Secretary, Tripura State Pollution Control Board, P.N.
Complex, Gorkhabasti, Agartala, West Tripura, PIN-799006
2. The Member Secretary, Tripura State Pollution Control Board,
P.N. Complex, Gorkhabasti, Agartala, West Tripura, PIN-799006
3. The Chairman, Tripura State Pollution Control Board, P.N.
Complex, Gorkhabasti, Agartala, West Tripura
4. The Commissioner of Departmental Inquiries, Government of
Tripura, P.N. Complex, Gurkhabasti, Agartala, West Tripura, PIN-799006
.....Respondents
For Petitioner(s) : Mr. K. Nath, Advocate
For Respondent(s) : Mr. Ratan Datta, Advocate
Date of hearing & delivery : 29.09.2022
of judgment & order
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
29/09/2022 The main challenge here is the competency of a "full-time Member Secretary" to act as disciplinary authority under the Tripura State Pollution Control Board. Said full-time Member Secretary issued the impugned memorandum dated 19.09.2022 whereby and whereunder he proposed to hold a disciplinary inquiry against the petitioner under Rule 14 of the CCS (CC&A) Rules, 1965 (Annexure 1 to the writ petition).
22. I have heard Mr. K. Nath, learned counsel appearing for the petitioner as well as Mr. Ratan Datta, learned standing counsel appearing for the respondents.
3. Mr. Nath, learned counsel has submitted that the disciplinary authority is a statutory authority as contemplated under Rule 12 of the CCS (CC&A) Rules, 1965 (for short, "CCS Rules") and the exercise of such power of disciplinary authority is a statutory power. It is the further contention of Mr. Nath, learned counsel that the post of Member Secretary under the Tripura State Pollution Control Boards (for short, "TSPCB") is a statutory post and the power to initiate a disciplinary proceeding is only vested with such Member Secretary who is duly appointed through regular recruitment process and holds the post as permanent member of the Board. Drawing my attention to the notification dated 07.11.2019 (Annexure 2 to the writ petition), Mr. Nath, learned counsel has contended that Dr. Bishu Karmakar holds the current charge of the duties of the post of Member Secretary under the respondents no. 1, 2 and 3 i.e. TSPCB, till regular appointment is made for the said post, and such Member Secretary merely performing current duties cannot exercise statutory power as a full-fledged Member Secretary to act as disciplinary authority under Rule 12 of the CCS Rules. Mr. Nath, learned counsel has referred to certain Government of India‟s decisions wherein it is stated that an officer appointed to perform current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent to the said post, but, he cannot exercise the statutory powers, whether those powers are derived direct from an Act of Parliament or Rules.
4. On the other hand, Mr. Datta, learned counsel appearing for TSPCB has contended that the appointment of Dr. Bishu Karmakar to hold the 3 charge of Member Secretary under TSPCB cannot be compared with an officer holding the current charge of the duties of a certain post. Showing the gazette notification dated 19.09.2019 (Annexure CA-3 of Counter Affidavit), Mr. Datta, learned counsel has submitted that Dr. Karmakar is holding the charge of Member Secretary on full-time basis being duly appointed by the Government of Tripura, which is permissible under The Water (Prevention and Control of Pollution) Act, 1974 (here-in-after referred to as "Water Act of 1974"). Mr. Datta, learned counsel has urged to dismiss the writ petition contending that the order to initiate disciplinary proceeding against the petitioner under memorandum dated 19.09.2022 is consistent with the Water Act, 1974.
5. I have pondered over the erudite submissions canvassed by learned counsel appearing for the parties and considered the legal positions.
6. "Disciplinary Authority" is defined under Rule 2(g) of CCS Rules which means the authority competent under the CCS Rules to impose on a Government servant any of the penalties specified in Rule 11of CCS Rules. Rule 12 of CCS Rules prescribes the powers and functions of the disciplinary authorities, which reads as under:
"12. DISCIPLINARY AUTHORITIES:
(1) The President may impose any of the penalties specified in Rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on -
(a) a member of a Central Civil Service other than the General Central Service, by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;
(b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.4
(3) *** *** *** *** *** *** *** *** *** (4)) *** *** *** *** *** *** *** *** *** EXPLANATION 1) *** *** *** *** *** *** *** *** *** EXPLANATION 2) *** *** *** *** *** *** *** *** ***
7. On plain reading, it appears that Rule 12(2)(b) of the CCS Rules is relevant to the issue in controversy. Rule 12(2)(b) clearly lays down that a person can be appointed to a civil post by the authority under special order of the President or, where any such order has been made by the appointing authority.
8. To clarify the meaning attached to the expression "disciplinary authority", the Government of India issued certain orders. One of such orders relates to the officers performing current duties of a post. It says that an officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament [G.I., M.H.A., O.M. No. F. 7/14/16-Ests. (A), dated 24th January, 1963].
Another order speaks that where appointment to hold the current duties of a post involves the exercise of statutory or such other powers conferred on the holders of the post, the appointment should also be notified in the gazette. [G.I., M.F. O.M. No. F. 12(2)-E, II.(A) 60, dated 15th October, 1960].
59. From the above orders, it becomes clear that an officer appointed to perform the current duties of a post cannot be treated as full-fledged incumbent of the post and he cannot exercise statutory powers. However, statutory or such other powers can be conferred on the holders of the post if such appointment of the officers is notified in the gazette. To sum up, an officer merely looking after the current duties of a higher officer is not competent to exercise the power of disciplinary authority or the appellate authority of the latter, unless and until the appointment of such officer is made by appointing authority being duly notified in the official gazette.
10. At this juncture, I have taken note of the scheme of the Water Act of 1974, which is a central act. It becomes apparent that in pursuance of clause 1 of Article 22 of the Constitution of India, resolutions had been passed by all the houses of the legislature of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters relating to prevention and control of water pollution and the maintaining or restoring of wholesomeness of water should be regulated in those States by the Law of Parliament.
11. Sub-section (2) of Section 1 of the Water Act of 1974 envisages that it was applied in the first instance to the State of Tripura including other States, as aforesaid. Sub-section (3) of Section 1 of the Water Act of 1974 provides that it came into force at once to the aforesaid States. Section 4(2)(f) of the Water Act of 1974 is required to be noticed in the context of the case. It provides that:
"4. Constitution of State Boards.-- (1) The State Government shall, with effect from such date, as it may, by notification in the Official Gazette, appoint, constitute a [State Pollution Control Board], under such name as may be specified 6 in the notification, to exercise the powers conferred on and perform the functions assigned to that Board under this Act.
(2) A State Board shall consist of the following members, namely:--
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) xxxxx
(e) xxxxx [(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government.]"
12. It is noticed that clause (f) of sub-section (2) of Section 4 was not enacted in the original Water Act of 1974. Clause (f) was inserted by the Amendment Act 53 of 1988 in the original enacted Act of 1974 and it came into force in the State of Tripura w.e.f. 29.08.1988.
13. Now, if both CCS Rules and Water Act of 1974 are conjointly read, it is crystallized that the law as conceptualized for the posts of "Current duties and full-time Member Secretary" is quite distinct and created on different connotations. The two posts should not be mistaken as equivalent. While Rule 12 of CCS Rules speaks of officers merely performing current duties of a post, the concept of the post of full-time Member Secretary embodied in Section 4(2)(f) of the Water Act of 1974 is to give the said post a statutory flavour. A full-time Member Secretary is a statutory post incorporated in the Act of 1974 by Act 53 of 1988 especially for the States of Tripura, Himachal Pradesh and Union Territories to fulfill certain objects the respective governments wanted to achieve.
14. That apart, it is apparent that under Section 4(2)(f) of the Act of 1974, the State Government is statutorily empowered to appoint a full-time Member Secretary having qualification, knowledge and experience of scientific, engineering or management aspects of pollution control. In other 7 words, the State Government is the appointing authority of a full-time member secretary of Tripura State Pollution Control Board.
15. Now what is culled out that a full-time Member Secretary being appointed by the State Government can exercise all statutory powers which includes the power of disciplinary authority as contemplated under Rule 12(2)(b) of CCS Rules apart from the powers conferred upon him, and perform the functions assigned to him in the interest of the State Pollution Control Board.
16. Coming to the context of the present case, the Government of Tripura constituted State Pollution Control Board under the nomenclature Tripura State Pollution Control Board (for short, „TSPCB‟) at the behest of the Department of Science, Technology and Environment in terms of Section 4(1) of the Water Act of 1974. To run and govern the TSPCB, the State Government has appointed Dr. Bishu Karmakar as a full-time Member Secretary of the Board. It is not disputed that Dr. Bishu Karmakar possesses all necessary qualifications, knowledge and experience in the field of pollution control. It is admitted that Member Secretary is the disciplinary authority of TSPCB and can exercise the powers of disciplinary authority as embodied in Rule 12(2)(b) of CCS Rules.
17. In the case on hand, the State Government being the appointing authority issued necessary order appointing Dr. Bishu Karmakar as full-time Member Secretary by way notification published in the official gazette. The notification for appointment of Dr. Karmakar may be reproduced here-in- below, for convenience, in extenso:-
8 "No. 1966 Registered No. N.E. 930TRIPURA GAZETTEE Published by Authority EXTRAORDINARY ISSUE Agartala, Thursday, September 19, 2019 A.D. Bhadra 28, 1941 S.E. PART-1- Orders and Notifications by the Government of Tripura The High Court, Government Treasury etc. GOVERNMENT OF TRIPURA DEPARTMENT OF SCIENCE TECHNOLOGY & ENVIRONMENT No. F.11(68)/DSTE/CC/Pt-I/5597-606 Dated, Agartala the 7th September, 2019 In exercise of the powers conferred by clause (f) of sub-section (2) of section (4) of the Water (Prevention and control of pollution)Act of 1974 (Act 6 of 1974) and in the interest of public service, the Governor, Tripura is pleased to order that Shri Bishu Karmakar, scientist-B, Tripura State Pollution Control Board shall hold the charge of Member Secretary in the Tripura State Pollution Control Board (TSPCB) on full time basis with immediate effect and until further orders. Any other work assigned to him in the Board shall be re-assigned to other officer9s) in the TSPCB, Ex-post facto approval is also accorded to assignment of the charge of Member Secretary, TSPCB to Shri Bishu Karmakar, Scientist-B in addition to his assigned duties w.e.f. 13.08.2019.
By order of the Governor Sd/-
(Shailendra Singh) Special Secretary to the Government of Tripura"
18. The tenure of appointment of Dr. Bishu Karmakar has been further extended vide notification dated 6/05/2021 which is also notified in the official gazette of the Government of Tripura. The notification dated 6/05/2021 is reproduced here-in-below:
"No. 1135 Registered No. N.E. 930TRIPURA GAZETTEE Published by Authority EXTRAORDINARY ISSUE Agartala, Thursday, June 30, 2022 A.D. Asadha 9, 1944 S.E. PART-1- Orders and Notifications by the Government of Tripura The High Court, Government Treasury etc. 9 GOVERNMENT OF TRIPURA DEPARTMENT OF SCIENCE TECHNOLOGY & ENVIRONMENT BIGYAN, PRAJUKTI O PARIVESH BHAWAN GORKHABASTI: P.N. COMPLEX AGARTALA:TRIPURA No. F.8(1)/DSTE/ENV/Pt-IX/3106-166 Dated, 06/05/2021 NOTIFICATION In partial modification of the Notification No. F.11(68)/DSTE/CC/Pt-1/5597-606 dated 07.09.2019 issued by the Department of Science, Technology & Environment, Government of Tripura, Shri Bishu Karmakar, Scientist-B, Tripura State Pollution Control Board (TSPCB) holding the Charge of the Member Secretary, TSPCB on full time basis will continue to hold the Charge of the Member Secretary, TSPCB on full time basis till completion of the recruitment process of the eligible candidates to this post of Member Secretary as per the "Tripura State Pollution Control Board [Prevention & Control of water Pollution (Amendment)] Rules, 2021. This is issued with the approval of Hon'ble Council of Ministers, Govt. of Tripura vide Memorandum No. F.1(1)-GA(CAB)/2021-C dated 23.04.2021.
Sd/-
(Saradindu Choudhury) Secretary Govt of Tripura"
19. The above notifications crystallize that the appointment of Dr. Bishu Karmakar has been made in exercise of the powers conferred under clause(f) Sub-section 2 of Section 4 of the Water Act of 1974 by the order of the Governor.
That the Member Secretary of TSPCB can exercise all statutory powers and perform all statutory duties as disciplinary authority in the interest of TSPCB as contemplated under Rule 12(2)(b) of the CCS Rules has not been disputed by learned counsel appearing for the petitioner. To re- iterate, it is the only grievance of the petitioner that Dr. Bishu Karmakar not being appointed through regular recruitment process and merely holding the post temporarily acted as disciplinary authority, which is not permissible under Rule 12 of CCS Rules, since, according to learned counsel for the petitioner, this power is exclusively vested with a permanent i.e. regularly appointed Member Secretary.
1020. I am constrained to say that Mr. Nath, learned counsel fails to visualize the distinctive features as regards the appointment of the officers performing current duties of the higher post and the full-time Member Secretary under TSPCB and misconstrued both Rule 12(2)(b) of the CCS Rules and Section 4(2)(f) of the Water Act of 1974.
21. I have already stated and analyzed the law that the post of full-time Member Secretary under TSPCB is a post recognized under the statute (Water Act of 1974). The incumbent Officer of the said post being duly appointed under Section 4(2)(f) of the Water Act of 1974 as enumerated here-in-above can exercise all statutory powers derived direct from the Act of Parliament or rules made under various Articles of the Constitution in addition to the performance of normal day to day administrative or financial function. Needless to say that CCS Rules, 1965 is framed in exercise of the powers conferred by proviso to Article 309 and clause (5) of Article 148 of the Constitution of India.
22. As a sequel, I do not find any infirmity or legal impediment in the order passed under impugned memorandum dated 19/09/2022 by Dr. Bishu Karmakar, the full-time Member Secretary of TSPCB to hold inquiry under Rule 14 of CCS (CC&A) Rules, 1965 against the petitioner herein.
23. Accordingly, the instant writ petition stands dismissed being devoid of merit. However, there shall be no order as to costs.
Pending application(s), if any, also stands dismissed.
JUDGE Snigdha