Ncert & Anr. vs Surinder Nath & Anr. on 4 June, 2010

[Cites 11, Cited by 1]

Delhi High Court

Ncert & Anr. vs Surinder Nath & Anr. on 4 June, 2010

1. Impugned in this appeal is the judgment and decree of the Trial Court dated 13.02.1989 and that of the First Appellate Court dated 18.02.1991, whereby the suit filed by the Respondent for declaration and permanent injunction was partly decreed and he was granted the relief of declaration as prayed by him.

2. Precisely, the facts which led to the filing of the suit by the Respondent No.1 are that Respondent No.1 (plaintiff in the suit) was RSA NO. 15/1991 Page 1 of 26 appointed as a Lecturer in Agriculture, Regional College of Education, Mysore on 22.09.1964 by the Director of the appellant, National Council of Educational Research & Training (hereinafter referred to as „Council‟) (defendant in the suit). He was appointed in substantive capacity w.e.f. 1.11.1965 by the appellant Council vide letter dated 15.11.1969. Respondent was transferred and posted as Assistant Field Advisor at Trivendrum (Kerela) vide letter dated 27.09.1978. However, Respondent did not go to the place of transfer and instead took leave on medical ground that he was suffering from heart ailment. Respondent failed to report to his duty either in Delhi or in Trivendrum till 24.4.1979. Respondent disputed the receipt of Transfer letter which according to him was received by him only in the Court. On 16.05.1979 Appellant No.2 (Director) suspended the Respondent and also initiated departmental proceedings against him. The inquiry officer found him guilty of grave misconduct and submitted his report. Consequently, the Director dismissed him from his services vide order dated 10-11.8.1982.

3. Respondent challenged the legality and validity of the suspension letter dated 16.05.1979, as well as his dismissal order dated 10- 11.8.1982, by way of a civil suit for declaration and permanent injunction.

RSA NO. 15/1991 Page 2 of 26

4. The Trial Court partly decreed the claim of the plaintiff (Respondent No.1 herein) vide judgment and decree dated 13.2.1989, holding that the suspension order dated 16.05.1979 and the dismissal order dated 10-11.8.1982 were illegal, null and void because Director was not the appointing authority and was incompetent to pass a dismissal order. However, the Trial Court did not grant relief of permanent injunction as sought because, it did not find any malafide in the transfer order.

5. Challenge to the judgment and decree of the Trial Court by the appellant Council in RC No.17/1989 dated 18.02.1991, failed as the Appellate Court found itself agreeing with the findings of the Trial Court.

6. Aggrieved by the judgment and decree of the courts below, this appeal has been filed by the Council. This Court dismissed the appeal vide order dated 4.11.2003. Being dissatisfied, appellants filed SLP challenging the said order of this Court. SLP was accepted and the Supreme Court vide its order dated 1.8.2007 was pleased to set aside the order of this Court and remitted back the matter for fresh consideration after formulating substantial questions of law.

7. On receipt of the order of remand, following substantial questions of law were formulated for effective disposal of the appeal by this Court vide order dated 23.3.2009:-

RSA NO. 15/1991 Page 3 of 26

"1. Whether the Director is the competent authority to initiate disciplinary action and pass the suspension and dismissal order against the respondent No.1?

2. Whether the dismissal/termination order passed by the Director against the respondent No.1 is legal and valid?"

8. I have heard Mr.R.K. Singh, Advocate assisted by Ms. Deepa Rai and Mr. Sumeet Anand, Advocates for the appellants and Mr. Vinay Kumar Garg, Advocate for Respondent No.1.

9. My findings on substantial questions of law are as under:-

SUBSTANTIAL QUSTION OF LAW -1

10. Learned counsel for the appellants has argued that both the Courts below did not correctly appreciate the extract of Minutes of Governing Body Meeting dated 31.8.2006 (Ex. D-25 & D-26). The courts misread and misinterpreted the documents. The Courts below also did not properly interpreted the provision in the Schedule of delegation of powers (Ex.D-10) while concluding that Director was not the authority delegated with powers to penalize and dismiss Respondent No.1 from services.

11. It is submitted that perusal of these documents clearly indicate that Director is competent to appoint and therefore is the Appointing Authority as well as Disciplinary Authority for the posts of Lecturer. RSA NO. 15/1991 Page 4 of 26 Powers of the Director as Appointing Authority as well as Disciplinary Authority find mention in the Minutes of EC Resolution dated 12th February, 1974 as well as in NCERT Regulations 63 and 64, Ex.AW-1/A and AW-1/E. He has argued that the Appellate Court went wrong in interpreting the NCERT Regulations 63 and 64 while upholing the judgment and decree of the Trial Court.

12. It has been submitted by the counsel for the appellants that this Court in another identical LPA No.140/1985, titled John Francis v/s. NCERT & Ors‟, vide detailed judgment dated 24.12.1999, after considering the above said documents containing the Services Regulations and Schedule of Delegated Powers (Ex.D-10) held that Director is the Appointing as well as Dismissing Authority. This judgment is final on the interpretation of the abovesaid documents and is binding upon this Court being a judgment of Division Bench. He has also placed reliance on :-

(a) 'Jairsri Sahu vs. Rajdewan Dubey & Ors', AIR 1962 SC 83;

(b) 'Tribhovandas P. Thakar vs. Ratilal Motilal', AIR 1968 SC 372;

(c) 'S.I. Rooplal vs. LG, Delhi', (2000) (1) SCC 644;

(d) 'S. Shanmugavel Nadar vs. State of TN', (2002) 8 SCC 361; and RSA NO. 15/1991 Page 5 of 26

(e) 'John Francis vs. NCERT & Ors', LPA No.140/1985 decided by DB on 24.12.1999.

13. It is argued that Respondent is not a civil servant and therefore is not entitled to seek any protection provided under Article 311 of the Constitution of India and therefore his claim that his dismissal by the authority lower than the alleged Appointing Authority is bad, must not be accepted. He has placed reliance on:-

(a) 'Dr. S.L. Aggarwal vs. The General Manager Hindustan Steel', AIR 1970 SC 1150;

(b) ' M/s. Heckett Eng. Co. vs. Their Workmen', (1977) 2 SCC 377;

(c) 'Pyare lal Sharma vs. M.D., J&K Industries Ltd.', AIR 1989 SC 1854;

(d) 'SBI vs. A.K. Soundarajan', AIR 1991 SC 79;

(e) 'Indian Railway & ors. vs. Ajay Kumar', 83 (2000) DLT 242 (DB).

14. While refuting the submissions of the counsel for the appellants, it is argued by the counsel for Respondent No.1 that Director NCERT, in exercise of powers of Disciplinary Authority claimed to be conferred on him by Central Civil Services (Classification Control and Appeal) RSA NO. 15/1991 Page 6 of 26 Rules of Government of India (hereinafter referred to as „CCS (CCA) Rules‟) placed the Respondent under suspension and initiated departmental inquiry against him in exercise of powers conferred by sub rule (1) of Rule 10 of the CCS (CCA) Rules. The Director did not claim that he was delegated powers by the Executive Committee to initiate the disciplinary proceedings against the Respondent.

15. It is argued that Minutes of the Meeting of Executive Committee held on 12th February, 1974 contained in Annual Report 1973-74 shows that the power for appointment to the posts of professors, Readers and Lectures were delegated by the Executive Committee to the President NCERT to be exercised on recommendations of the Director.

16. He emphasized that by virtue of delegation of powers in the meeting of the Executive Committee held on 12.2.1974, the powers alleged to have been delegated to the Director in 1966 stood superseded. Delegations of powers w.e.f. 12.2.1974 were in force on 16 th May, 1979 when Respondent No.1 was suspended and also when his services were terminated. Therefore, the Courts below rightly held that the suspension order as well as the dismissal order were without jurisdiction and authority, hence were nullity.

17. It is further argued that Shri P.N. Chawla, OSD in NCERT examined RSA NO. 15/1991 Page 7 of 26 as AW-1 in the Appellate Court as appellants witness admitted that Ex.AW-1/A, the minutes of the meeting dated 12.21974 were unsigned. The NCERT Rules 15, 23, 39, 41, 46, 53 and 71 do not confer powers of Disciplinary Authority on the Director and therefore he could not have claimed himself as delegated Appointing Authority or Disciplinary Authority to invoke Rules contained in CCS (CCA) Rules to suspend Respondent No.1, hold an inquiry and finally penalize him with dismissal order. Therefore, the Courts below were right in holding that the Director acted without jurisdiction in issuing suspension order as well as dismissal order.

18. Learned counsel for Respondent No.1 has submitted that 'John Francis's case (supra)‟ has no application to the facts and circumstances of this case as the said case was regarding appointments against temporary vacancies on terms and conditions contained in the appointment letter and termination of services on return of permanent appointee. He has submitted that none of the judgments cited by the appellants are of any help to them. To support his respective submissions, he has referred to:-

(a) 'Shanti Silk Mills (P) Ltd. & Anr. vs. Employees' State Insurance Corporation', 1994 (5) SCC 346;

(b) 'Consumer Action Group & Anr. vs. State of Tamilnadu & RSA NO. 15/1991 Page 8 of 26 Anr.', 2007 (7) SCC 425;

(c) 'Zee Telefilms Ltd. & Anr. vs. UOI & Ors.', 2005 (4) SCC 649 (Constitution Bench);

(d) 'Uttar Pradesh State Road Transport Corporation vs. Assistant Commissioner of Police', 2009 (3) SCC 634;

(e) 'Sanjay Singh vs. U.P. Public Service Commission', AIR 2007 SC 950.

19. Respondent No.1 was appointed to the post of Lecturer in Agricultural vide order dated 22nd September, 1964 (Ex.D-2). Relevant extract of the order reads:-

"No.F V-106/64-RCEU/6952 to 6954 National Council of Educational Research and Training (Regional Colleges Unit) 114, Sundar Nagar, New Delhi-11.

Dated : 22nd September 1964 ORDER The Director, National Council of Educational Research & Training, is pleased to appoint Shri Surender Nath to the post of Lecturer in Agriculture in Regional College of Education, Mysore under the under the National Council of Educational Research & Training on a pay of Rs.400/- per month in the scale of Rs.400-30- 640-XB-40-400 with effect from 30.6.1964 RSA NO. 15/1991 Page 9 of 26 (A.N.) in a temporary capacity and until further order.

Shri Surender Nath Lecturer in Agriculture, Regional College of Education, Mysore.

Sd/-

for Secretary."

20. Thus, it is clear that this order was issued by the Secretary on behest of the Director of the Council thereby appointing Respondent No.1, Surender Nath as Lecturer w.e.f. 30.6.1964 (AN) in a temporary capacity till further orders.

21. Vide order dated 15/16 th November, 1969, NCERT appointed Respondent No.1 as Lecturer in a substantive capacity w.e.f. 1.11.1965. The relevant part of this order reads:-

"No.F V-106/64-RCE/3182-85 National Council of Educational Research and Training NIE Campus, Sri Aurobindo Marg, New Delhi-16 Dated : 15th / 16th Nov.69 ORDER The Council is pleased to appoint Shri Surender Nath as Lecturer in the Regional College of Education, in a substantive capacity, with effect from 1.11.1965.

Sd/-

(R.N.Vij) Secretary"

RSA NO. 15/1991 Page 10 of 26

22. The fact remains Respondent No.1 was appointed in substantive capacity retrospectively w.e.f. 1.11.1965. Therefore, for the period in between the order dated 22.09.1964 till 1.11.1965, Respondent No.1 remained Lecturer in temporary capacity. After his appointment in the substantive capacity, Respondent No.1 continued to work as a Lecturer peacefully till 27th September, 1978, when his transfer orders were issued and was subsequently suspended on 16th May, 1979 when he did not join the services at Trivendrum and was finally dismissed.

23. The suspension order as well as the dismissal order were issued and signed by the Director as Disciplinary Authority. At the time when the appointment letter dated 22.09.1964 (Ex.D-2) was issued Director had the delegated powers to appoint Respondent No. 1 by virtue of minutes of the first meeting of the Governing Body held on 31 st August, 1961. All these appointments were to be expressed to have been made in the name of the Council.

24. Other available document on the record is Ex.D-10 dated 11.2.1966.

This is an extract from the Minutes of 11 th Meeting of the Governing Body of the Council. As per item No.15, Director was delegated with powers of appointment for the post of Class 1 and Class II only for a period of one year, with a condition that all such appointments made RSA NO. 15/1991 Page 11 of 26 by him would be reported to the Appointment Committee in their next meeting. The Director could appoint the candidate on permanent basis in Class I post only on recommendation of the Appointment Committee.

25. Respondent No.1 was appointed in substantive capacity on 16 th November, 1969 with retrospective effect from 1.11.1965. Therefore, the schedule of powers as approved by the Governing Body in its meeting held on 11.2.1966 were in force when Respondent No.1 was appointed in substantive capacity by the Council. Appointment by the Council under the circumstances becomes relevant. Permanent appointment of Respondent No.1 could not have been made by the Director because he had no such delegated Authority and therefore Council rightly issued appointment letter to the Respondent No.1 on 15-16th November, 1969 appointing him as a permanent Lecturer.

26. In the same meeting held on 11.2.1966, a decision was also taken as to the authority who could impose penalty on respective class of employees as shown in „Column No.2‟ under the head „Class of Employees‟. Serial No.14 and 15 are relevant for the purposes of this case.

27. Class I officer can be inflicted with minor penalty by the Joint RSA NO. 15/1991 Page 12 of 26 Director or by the Director, where Heads of Department including Secretary, NCERT are involved. It is only the President of the Council who has the authority to impose major penalty upon Class I Officer including heads of Departments and Secretary NCERT. The Appellate Authority in that case is the Governing Body.

28. Appellant has heavily relied on the findings of this Court dated 24 th December, 2009 passed in LPA No.140/1985 titled „John Francis v/s. NCERT & Ors‟ to emphasize that Director is the delegated Appointing Authority and the Disciplinary Authority. In the said case applications were invited by NCERT for two posts for Lecturer in Physical Education. Appellant, John Francis was one of the applicants. He was selected along with another candidate in the order of merits. After his selection, he was given offer of appointment containing the terms and conditions of the appointment and also that the offer was against the temporary vacancy. It was also mentioned that the services of the appointee could be terminated at any time by one months notice on either side. However, Appointing Authority reserved its right on termination of services before the expiry of the prescribed period of notice by making payment of pay and allowances for the notice period or its unexpired portion. The appellant was accordingly appointed on his acceptance of offer. He continued in service for about three years and thereafter his services RSA NO. 15/1991 Page 13 of 26 were terminated. The factor which weighed in the mind of the Court was that appointment of the appellant was against temporary vacancy which had been caused, as one of the Lecturer in Physical Education had gone on deputation and he had come back and after he rejoined his duties, no vacancy was left where the appellant being a temporary employee could be accommodated.

29. While dismissing the appeal, Division Bench of this Court considered the contents of Counter Affidavit filed by the department indicating that Executive Committee had delegated powers to the Director to make appointment for Posts in Group A and B on the recommendation of the Appointment / Selection Committee and Director was also the competent Authority to impose penalty. Under those circumstances, considering the documents placed before the said court, it was held that Director was the Disciplinary Authority to impose penalty and therefore was empowered to terminate the services of the appellant.

30. Respondent No.1 was permanent employee of the appellant. His appointment letter does not contain any terms and conditions of his appointment. He continued to serve in the Council for quite substantial time before his services were terminated after departmental inquiry was conducted against him. RSA NO. 15/1991 Page 14 of 26

31. Services of the appellant in the said case were terminated for various reasons including that no vacancy was available against which he could be adjusted. The Division Bench took into consideration the delegated authority of the Director in imposition of minor penalties.

32. In this case, this Court is concerned with the powers of the Director as Disciplinary Authority for imposition of major penalties i.e. dismissal from services. In the present case Serial No. 15 becomes applicable, and is to be considered by the Court to see if the Director was the Appointing as well as Disciplinary Authority. It was limited interpretation of the annexure attached with the counter affidavit for considering, if Director was the Appointing Authority of the Council and that too for appointment in temporary capacity. Therefore, the observations made by the superior court in the said case were natural consequence of the judgment which has no binding effect on this Court under the facts and circumstances of this case.

33. It is noted that Court has to keep in mind the fundamental difference between challenge to the final order forming part of the judgment and challenge to ratio decidendi of the judgment. Every judgment of superior courts has three segments, namely (1) The facts and the point at issue, (2) the reasons for the decision and (3) the final order containing the decision. The reasons for the decision or the ratio RSA NO. 15/1991 Page 15 of 26 decidendi is not the final order containing the decisions. In fact, in a judgment of the court ratio decidendi may point to a particular result, the decision that is final or relating to relief may be different and not a natural consequence of the ratio decidendi of the judgment. Reference is made to Sanjay Singh's case (supra), Zee Telefilms Ltd.'s case (supra) and Uttar Pradesh State Road Transport Corporation's case (supra.)

34. It is emphasized that law has to be applied in reference to the factual situation of a particular case and any observations made by the Court on facts of a particular case cannot be considered as a ratio decendi to be followed in another case having different facts and circumstances.

35. Preposition of law that decision of the Superior Court i.e. of the Division Bench or of the Full Bench is binding on the Single Bench is not in dispute. But, then as discussed above, the decision of the Superior Court should have some relevance and binding effect on the facts and circumstances of the given case, which is being heard by the Single Bench. Reference is made to S.I. Rooplal's case (supra). In Jairsri Sahu's case (supra), Tribhovandas P. Thakar's case (supra) and S. Shanmugavel Nadar's case (supra), the Supreme Court was faced with two conflicting decisions of two different Benches dealt with by another Bench. Under the said circumstances, it was RSA NO. 15/1991 Page 16 of 26 observed that matter should have been referred to the Full Bench by the Later Bench without taking upon itself to decide whether it should follow the one Bench‟s decision or the other.

36. In the present case, it is not disputed that Respondent No.1 being a Lecturer was appointed as a Class I Officer. It is also not disputed that he was penalized with major penalty of dismissal from service under Rule 11 of CCS (CCA) Rules. These Rules and various decisions of the Governing Body made in its meetings are unambiguous and in clear terms indicate that Director had no power either to suspend Respondent No.1 or dismiss him from services. Therefore, suspension order dated 16.05.1979 and the dismissal order dated 10-11.8.1982, issued by the Director in the capacity of a Director are against the Rules of the Council. Hence, the Director acted without jurisdiction in issuing the suspension order and after receipt of inquiry report, in issuing dismissal order.

37. Though, the question of applicability of Article 311 of the Constitution of India was never raised before the courts below nor has been raised in the appeal but, it is submitted during the course of arguments that Respondent No.1 is not a civil servant and therefore is not entitled to protection under Article 311 of the Constitution of India. These submissions are devoid of any merits. Significant for RSA NO. 15/1991 Page 17 of 26 that purpose is the suspension order dated 16 th May, 1979. Relevant extract of this order reads :-

".....Now, therefore, the undersigned, in exercise of the powers conferred by sub- rule (1) of Rule 10 of the Central Civil Services (Classifications, Control and Appeal) Rules, 1965, hereby placed the said Shri Surender Nath under suspension with immediate effect......"

38. From perusal of the order dated 10th August, 1982 it is clear that the inquiry was initiated against Respondent No.1 as per the procedure provided under Rule 14 of the said Rules. This is clear from the following opening lines of the order, which reads:-

"..... Whereas an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules as made applicable to the employees of the Council, is being held against Shri Surender Nath, Lecturer (under suspension) of the Council;......"

39. The inquiry officer found Respondent No.1 guilty of violating Rule 3 of CCS (CCA) Rules for various charges. Accordingly, the Director as Disciplinary Authority terminated his services by imposing on him penalty of dismissal from the services of the Council as per Rule

11. RSA NO. 15/1991 Page 18 of 26

40. Under Rule 10 of CCS (CCA) Rules, it is only the Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, that can place a Government servant under suspension where disciplinary proceedings against him is contemplated or is pending.

41. Rule 2 (a) of CCS (CCA) Rules defines „Appointing Authority‟, which reads:-

(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, or

(iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which RSA NO. 15/1991 Page 19 of 26 appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority;"

42. Rule 2 (g) of CCS (CCA) Rules defines Disciplinary Authority. It reads:-

"2(g) "Disciplinary authority" means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11:"

43. As discussed above, the Director is neither the Appointing Authority nor a Disciplinary Authority within the meaning of Rule 2 (a) and 2(g). He has not been delegated any authority by the Council to appoint or to impose major penalty upon a Lecturer who is a Class I officer of the Council. The Council adopted these Rules as indicated in the dismissal order dated 10-11.08.1982.

44. Ex.P-2 are the Rules adopted by NCERT on 18.12.1969 and finally approved by Govt. of India on 30.01.1970. The Trial Court discussed these Rules in para 16 of its judgment as below:-

"16. It would be fruitful to advert to the Rules & Regulations of defendant No.1 which are Ex.P.2 and P.3 on record. Under the Head of the Executive Committee, it is contemplated that the Executive Committee shall be the Governing Body of the Council. Under Rule 41, the Executive Committee shall have the power to appoint all categories of officers and staff for conducting the affairs of the Council, but is RSA NO. 15/1991 Page 20 of 26 subject to the Rules and Regulations. Rule 40 contemplates the powers of the Executive Committee to frame and amend regulations and it is under Rule 46 that the Executive Committee may delegate to the Director or its members or any other officers such administrative or financial powers as it deems proper. Unfortunately, in the Regulations, there appears to be nothing with respect to the appointment of class I officers of defendant no.1, but the Rules manifestly convey that the Executive Committee which is also the Governing Body of the Council is the over all body with respect to the appointments of class I staff of defendant No. 1. Therefore, delegation of powers vide Ex. D.10 is by the Executive Committee and under Column 8, the power to appoint Class I posts is to be Director on the recommendation of the Appointing Committee. So, at the time of appointing the plaintiff in substantive capacity, it could be Director on behalf of the Council. However, Ex.D4 appointing the plaintiff in substantive capacity is the council itself."

45. Director is defined in Rule 2 of Rules of „National Council of Educational Research and Training, Memorandum of Association and Rules.‟ It means Director in the Council is the person appointed by the Government of India under Rule 14 i.e. it is the Government who has the power to appoint the Director, joint Director or the Secretary of the Council and prescribe their numerations and other terms of service. It is the Executive Committee of the Council which is the Governing Body. The Executive Committee under Rule 23 RSA NO. 15/1991 Page 21 of 26 consists of members i.e. President, Minister of State in the ministry of Education, A Deputy Minister of Education, Director of the Council, Secretary of the Ministry of Education, Chairman of the University Grants Commission, Four Educationists nominated by the President, Joint Director of the Council, Three members of the Faculty of the Council, One representative of the Ministry of Education and One representative of the Ministry of Finance. It is the Executive Committee of the Council which has the power to deal with procedure for appointment of the officers and the staff of the Council and the Institute and Services established and maintained by the Council and also the terms and tenure of appointments, emoluments, etc. of services of the officers and other staff. Powers and functions of the Director are regulated by the Executive Committee.

46. By virtue of Regulation No.46 promulgated w.e.f. 12 th May, 1971 under the head "Establishment", the relationship between the Council and its employees is to be regulated by the Government Rules and Regulations as contained in :-

"(a) The P & T Compilation of Fundamental and Supplementary Rules,

(b) Civil Service Regulations, (c ) The Central Civil Services (Classification, Control and Appeal) Rules, and RSA NO. 15/1991 Page 22 of 26

(d) The Central Civil Services (Conduct) Rules, and other relevant rules and regulations together with amendments and orders issued by the Government of India to said rules and regulations from time to time."

47. Since all the above said Rules are made applicable to the employees of the Council, provision of Article 311 of the Constitution of India automatically become applicable to Respondent No.1. Article 311 of the Constitution makes it mandatory to hold an inquiry against delinquent official and afford reasonable opportunity of being heard in respect of those charges before he is dismissed or removed from services.

48. It is a well settled principle of law that no lesser Authority than the Appointing Authority has the power to remove an employee from services even after holding an inquiry.

49. As per Rule 12 of CCS (CCA) Rules, President is the Disciplinary Authority to impose penalties specified under Rule 11. Of course, President can delegate his powers to the Appointing Authority to impose penalty as specified under Rule 11.

50. Dr. S.L. Agarwal's case (supra) as referred to by the appellants relates to a labour dispute and therefore it was observed that the employees could not be deemed to be civil servants within the meaning of Article 311 of the Constitution. Respondent happened to RSA NO. 15/1991 Page 23 of 26 be a Public Limited Company having its own identity. The employees therefore were employed by the Corporation and they never belonged to the civil services of the Union of India nor held civil posts under the Union. This judgment is of no benefit to the appellant.

51. M/s. Heckett Engineering Co.'s case (supra) relates to a labour dispute between the company and its workmen under the Industrial Disputes Act. It is of no relevance to the facts and circumstances of this case.

52. In Pyare Lal Sharma's case (supra), the Supreme Court did not grant any protection to the employees under Article 311 of the Constitution observing that there was no provision under Article of Association or the Regulations of the Company which could give some protection to the employees of the company as is given to the Civil servants under the said Article.

53. Similarly, SBI's case (supra) is of no assistance to the Appellants as Appellant No. 1 is not a banking industry. In the said case since the delinquent official was governed by the State Bank of India General Regulations, 1955 Rule it was held that the official was not entitled to claim protection under Article 311 of the Constitution.

54. In Indian Railway's case (supra), while referring to Pyare Lal's caseit was observed that though the company was wholly owned and RSA NO. 15/1991 Page 24 of 26 controlled by the Govt. of India, its employees cannot be considered as civil servants and as such they can neither claim the protection of Article 311 of the Constitution or the extension of that guarantee on that parity. The employees of the company also cannot challenge the dismissal order by an authority subordinate to that by which he was appointed. This judgment is not applicable to the facts and circumstances of this case.

55. As discussed above, the Council had adopted the Rules contained in CCS (CCA) Rules and had conducted inquiry accordingly. It is under these circumstances, that Respondent No.1 is deemed to be a civil servant and entitled to protection under Article 311 of the Constitution.

56. In view of my discussion as above, it is concluded that Director was neither the Appointing Authority nor the Disciplinary Authority to initiate disciplinary action, pass suspension order dated 16.05.1979 and dismissal order dated 10-11.8.1982 against Respondent No.1. SUBSTANTIAL QUSTION OF LAW -2

57. In view of my observations on Substantial question of law -1, the dismissal order passed by the Director being without any authority and jurisdiction is illegal and void.

RSA NO. 15/1991 Page 25 of 26

58. Hence, I find no merits in this appeal, the same is accordingly dismissed.

ARUNA SURESH (JUDGE) JUNE 04, 2010 vk/sb RSA NO. 15/1991 Page 26 of 26

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