Central Administrative Tribunal - Delhi
Vijay Kumar Verma vs Union Of India on 22 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A 1864/2008 New Delhi, this the 22nd day of February, 2010 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. L.K. Joshi, Vice Chairman (A) Vijay Kumar Verma, S/o late Shri Bishan Das, R/o B-4, Sector-15, Noida 201 301, Ghaziabad Distt. Uttar Pradesh Applicant (By Advocates Shri Anoop G. Chowdhary, senior counsel with Shri M.M. Sudan, Shri N.N.S. Rao and Shri Tarun Verma) Versus 1. Union of India, (to be represented by the Secretary to the Government of India), Department of Legal Affairs, Ministry of Law & Justice, Government of India, 4th Floor, A Wing, Shastri Bhawan, New Delhi-110001. 2. Central Vigilance Commission, (to be represented by the Chief Vigilance Commissioner), Central Vigilance Commission, Satarkta Bhawan, GPO Complex, Block A, INA, New Delhi-110023. 3. Dr. S.S. Chahar, Designated Inquiring Authority and Government Counsel, Rail Bhavan, Railway Board, Rafi Marg, New Delhi-100001. Respondents (By Advocate Shri A.S. Chandhiok, ASG and with him Shri H.K. Gangwani, Shri Ritesh Kumar and Shri Sandeep Basu, Advocates) O R D E R
M. Ramachandran, Vice Chairman (J) The Facts:
While working as Additional Government counsel in the Central Agency Section, Department of Legal Affairs of Government of India, the applicant had been served with a Memorandum dated 19.07.2007, avowedly by an order, in the name of the President of India, advising him that the President proposes to hold an enquiry against him. Memo referred to his tenure held earlier, viz. as Presiding Officer, Debt Recovery Tribunal, Ahmedabad. The proceedings were proposed as coming under Rule 14 of the CCS (CCA) Rules. Substance of imputations, of misconduct/misbehaviour, on which enquiry was proposed to be held had been supplied, along with the articles of charges. Details of documents and witnesses also had been appended.
2. The officer had been required to submit his written statement of defence. In compliance, a statement had been presented by him on 29.08.2007. Thereafter, purporting to be in exercise of powers under Rule 14 (2) supra, by Annexure A-2, on 25.10.2007, Dr. S.S. Chahar, Joint Secretary had been appointed as inquiring authority to enquire into the charges framed. It could also be stated that after service of Annexure A-1 within a few days, applicant had been permitted to go on superannuation, effective from 31.07.2007. a provisional pension has been authorized in his favour, but his gratuity has been withheld.
3. Mr. V.K. Verma, the officer concerned had shortly thereafter filed an Original Application under Section 19 of the Administrative Tribunals Act as OA 216/2008, before the Ahmedabad Bench of the Tribunal. However, by order dated 23.07.2008 the Bench expressed its view that none of the jurisdictional facts had arisen within their territorial jurisdiction. The OA was returned, for presentation before the proper Bench. We notice that a newly prepared application thereupon has been filed before the Principal Bench, on 20.08.2008. The prayer in the application is to quash Annexure A-1 and A-2, and for directing release of the retirement dues to him with interest. The principal contention in the OA is that the impugned orders are ex facie illegal, and the disciplinary authority lacks power to invoke the CCS (CCA) Rules. This is because the misconduct alleged relate wholly to a period of his tenure while he was working as Debt Recovery Tribunal having been appointed to function in terms of the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as `the Debts Recovery Act). In so far as an officer appointed under the said Act is concerned, the CCS (CCA) Rules stands totally excluded, whether or not he has demitted office especially pertaining to an allegation while he was holding the said post.
4. On notice, respondents had entered appearance. They have come up with a reply, refuting the contentions raised as about the issue of jurisdiction, and maintain that the disciplinary proceedings contemplated are sustainable.
5. Before adverting to the legal issues raised, a few more details might be relevant to be stated, concerning the service history of the applicant and the general sequence of events. It is claimed that applicant was a practicing lawyer in the High Court and Supreme Court during the period 1977 to 1991. He had been recommended by the UPSC for appointment as Deputy Government Advocate in the Central Agency Section, Ministry of Law and Justice, and was appointed to such post on 03.06.1991. Later on, he had been appointed as Presiding Officer, Debs Recovery Tribunal, on deputation basis for a period of five years, and he had joined as Presiding Officer, DRT at Ahmedabad on 09.04.1999. He had done commendable work. On expiry of the period of five years, he had come over to his parent department, on 15.04.2004, and had taken charge as Additional Government Counsel. This became possible, since, while away on deputation, he had been given proforma promotion in the higher pay scale, on 11.02.2003. As referred to earlier, before his date of superannuation unexpectedly, he had been slapped with Annexure A-1 on 19.07.2007, suggesting that certain allegations against him while functioning as Debt Recovery Tribunal, had been proposed to be subjected to departmental enquiry. This has led him to file the OA.
6. The Original Application filed before the Principal Bench had been heard by a Bench, on 04.02.2009 and was reserved for judgment. But while preparing the judgment, the Members felt that the points involved in the application might be of far reaching consequences, and required, therefore, to be determined by a Larger Bench. The reference had been made in the above context. We had occasion to hear Shri Anoop G. Chowdhary, Senior Counsel, assisted by Shri M.M.Sudan, Shri N.N.S. Rao and Shri Tarun Verma, on behalf of the applicant on various dates, and Shri A.S. Chandhiok, ASG, assisted by Government counsel Mr. H.K. Gangwani, representing the respondents.
7. The reference order dated 09.02.2009 is comprehensive, but the same is not being extracted here in view of the circumstance that most of the factual details have already been narrated by us in the previous paragraphs. The question in short is as to whether proceedings as contemplated under the CCS (CCA) Rules could be within the jurisdictional power of the Central Government in respect of a person situated like the applicant, and whether the absolute protection claimed by him could be upheld.
8. The preamble of Act 51/93 (Debts Recovery Act) shows that it is an Act to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith and incidental thereto. There is provision for establishing Tribunals and appellate Tribunals as could be seen respectively under Sections 3 and 8 of the Act. The selection is to be carried out by the procedure prescribed by Rules. A Tribunal is to consist of one person, who is designated as Presiding Officer. Likewise Appellate Tribunal is also to consist of one person, with designation as Chairperson of the Appellate Tribunal. The Act provides for appointment of more than one Presiding Officers/Appellate Tribunals. Regions within which they are to exercise jurisdiction could be notified. Section 5 of the Act prescribes qualification for appointment for presiding officers, as following:
Qualifications for appointment as Presiding Officer. A person shall not be qualified for appointment as the Presiding Officer of a Tribunal unless he is, or has been, or is qualified to be, a District Judge. The term of office is stipulated as five years from the date on which a person enters his office, or until he attains the age of 65 years, whichever is earlier. Section 13 of the Act, which prescribes for salary and conditions of service of Presiding Officers of the Tribunals and Appellate Tribunals, might be relevant, and it could be extracted hereunder:
Salary and allowances and other terms and conditions of service of Presiding Officers.- The salary and allowances payable to and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, (the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal) shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of (the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal shall be varied to his) disadvantage after appointment. We may also specifically notice the presence of Section 15 of the Act, which has a short title as Resignation and Renewal. Substantial reliance is seen placed on the provision. It reads as follows:
15. Resignation and removal. (1) (The Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal) may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that (the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal) shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of officer, whichever is the earliest.
(2) (The Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehaviour or incapacity after inquiry, -
in the case of the Presiding Officer of a Tribunal, made by a Judge of a High Court;
in the case of (the Chairperson of an Appellate Tribunal, made by a Judge of the Supreme Court, in which (the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.
(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of (the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal). It is conceded that even as at present rules regulating the investigation of misbehaviour or incapacity as referred to under Section 15 (3) have not been formulated. The Tribunals and Appellate Tribunals are conferred jurisdiction, powers and authority to entertain and decide applications from the Banks and Financial Institutions for recovery of debts due. From the appointed day, no Court of other authority excepting the High Court and Supreme Court would be entitled to exercise jurisdiction, powers or authority, in relation to mattes specified in Section 17. The procedure prescribed by Chapter IV explicitly indicates that the powers of civil courts have been conferred on the Tribunal and Appellate Tribunal. By Section 31, it is provided that all pending matters as on the date of Establishment of the Tribunal (excepting appeals) stand transferred to them and the adjudication is to continue from the stage at which the proceedings had reached. No suit, prosecution or other legal proceedings are to lie against the Tribunals, for anything which is done or intended to be in good faith (section 33).
9. By GSR 62 (E) dated 04.02.1994 on the authority of Section 13 of the Act read with Section 36 (2) (a), the Central Government had promulgated the DRT (Salaries, Allowances and other Terms and Conditions of Service of Presiding Officer) Rules, 1993. Salary scale is prescribed by Rule 3. A retired Government officer, however, is to get a salary reduced to the extent he may receive as pension. Rule 4 appears also to be relevant. It provides for deputation duty allowance as following:
4. Deputation Duty Allowance.- If a person holding the post on a regular basis in the scale of pay of Rs. (Rs.18,400-500-22,400) is appointed as Presiding Officer of a Tribunal on tenure basis and holds lien in his parent cadre, he shall be paid a salary in the scale of pay specified in Rule 3 plus a deputation duty allowance at a rate as are applicable to Group `A officers of the Central Government drawing an equivalent pay. The statutory stipulation speaks about holding the post on tenure basis, and in respect of certain appointees, the lien continuing in the parent department. Eligibility might be there in some cases for drawing deputation allowance. Rest of the allowances is as admissible to Group `A officers. In matters of right to leave, it is stated that the Presiding Officer will be governed by the CCS (Leave) Rules.
10. As far as a serving Judge or an officer of Central/State Government is concerned, the service rendered as Presiding Officer will count for pension in accordance with the rules of the service, to which he belongs. In rest of the cases, entitlement for contributory PF alone might be available. The rule could be extracted hereinbelow:
Pension/Provident Fund.- In case a serving Judge or an officer of the Central Government or State Government, is holding the post of Presiding Officer, the service rendered in the Tribunal will count for pension to be drawn in accordance with the rules of the service, to which he belongs. He shall also be governed by the provisions of the General Provident Fund (Central Services) Rules, 1960. In all other cases, a person shall be entitled to Contributory Provident Fund (India) Rules, 1962. Facilities available to Group `A officers in matters of TA, Accommodation and LTC have also been expressly made admissible to the Tribunal. Benefits available under CHS Scheme or Central Services Medical Attendance Rules, 1944 also have been covered. We may also extract herein the residuary provision incorporated in Rule 13 as hereinbelow:
13. Residuary provision. Matters relating to the conditions of services of the Presiding Officer of a Tribunal with respect to which no express provision has been made in these rules, shall be referred in each case to the Central Government for its decision and the decision of the Central Government thereon shall be binding on the said Presiding Officer.
11. After noticing the Act and the Rules, we may presently apply ourselves to the contentions raised by the applicant, canvassing for the position that the proceedings against him suffers from jurisdictional deficiency. Mr. Anoop G. Chowdhry, Senior Counsel, who had addressed us, invited our attention to Rule 3 of the DRT Procedure for Appointment Rules, 1998 and contends that the modalities prescribed may by itself indicate that a special status is decided to be conferred on the officers, who came to be appointed to the post of Presiding Officers. The selection Committee is to be chaired by the Chief Justice of India, or a nominated Supreme Court Judge. Secretaries of Government of India, in the Ministry of Finance and Ministry of Law and Justice, Special Additional Secretary in the Ministry of Finance (or his nominee) and the Governor/Deputy Governor of Reserve Bank of India are nominated as Members of the Committee, for carrying out the selection. The list of eligible and qualified candidates is as finalized by the Ministry of Finance and also includes nominees of the High Court. A select list prepared is valid for two years, and appointment should be from the said list. Taking into account the sensitive nature of the functions attached to the post of the Tribunal, counsel points out that the Statute had taken care to ensure that the functionary occupying the position is not unduly disturbed or need be cautious about possible insecurity that might be there as far as his full tenure is concerned. They are protected. He was expected to discharge the duties fearlessly, and unaffected by external influence. Statutory protection is always there, and relevance of Section 15 (2) could not at all have been overlooked. Only in the face of a report made by a Judge of the High Court, after an enquiry, and that too on account of proved misbeahviour or incapacity, the Central Government could have removed a Member of the Tribunal from office.
12. Counsel submits that during the whole tenure of the applicant, no steps had been taken to hold an enquiry against him as contemplated under Section 15 of the Act. After the tenure of five years, he had gone back to his parent department, and had been accommodated to the promoted post. The attempt to goad him just before a week of his retirement, was by way of an experiment, to harass him. Power had been exercised without caution, casually and respondent themselves might be fully aware of the position that action was not maintainable. If removal was possible only after an enquiry by a Judge of the High Court, in respect of his conduct as Presiding Officer of the Debts Recovery Tribunal, for the same conduct, a Joint Secretary could not have been authorized to hold an enquiry facilitating disciplinary authority to impose a penalty on him. If that was the case, the conduct would amount to a fraud on the statute. The statutory restrictions could not have been circumvented by ingenuity.
13. Counsel submits that by resorting to the impugned proceedings, the Government simultaneously overlooked the procedure spoken to by Section 17-A of the Act. This had been incorporated in the Act, effective from 17.01.2000. Jurisdictional powers had been conferred on the Chairperson of the Appellate Tribunal to exercise general power of superintendence and control over the Tribunals, under him, including the power to appraise the work, and recording the confidential reports of the Presiding Officers. Thus, the service conditions and procedures to be followed had been squarely and completely laid down, and it could not have been short circuited by the belated wisdom of the respondents, suggesting that after passage of years of the repatriation, applicant could have been dealt with as if he was always a civil servant, and the respondent always continued to be the administrative and supervisory authority over him. Counsel submits that Rule 3(1)(e) of the CCS (CCA) Rules itself would have supplied guidance in the matter. In respect of a person for whom a special provision is made by any law for the time being in force in respect of matters covered by the Rules, the CCS (CCA) Rules were not to apply. Rules of 1993 (GSR 62E referred to earlier) provided the conditions of service of a Presiding Officer of DRT. In respect of matters not covered by the Rules, Rule 13 thereof required reference in each case to be considered by the Central Government. Situation was plainly stated that in any case the CCS (CCA) Rules would not have had automatic application. Therefore, invocation of power under the rules was unauthorized, and it vitiated the proceedings totally.
14. The next facet of the argument appears to be that as far as the case at hand is concerned, it is not an instance of deputation, as is usually understood in service law. The applicant had been selected by a High Power Committee, on the basis of merit, and after assumption of office, he was assured of a minimum tenure of five years to be accommodated there. The principles or presence of a lending authority or a borrowing authority could not have been spelt out from the situation. If this might be the position, after repatriation, the lending authority as in other usual cases could not have had reserve powers to proceed against the officer, in respect of lapses which might have been committed by him when he was in foreign employment. The usual and recognized powers of calling back an officer at the discretion of lending authority could not at all have been possible during the tenure period. If that be the position there was no jurisdictional powers to subject him to any disciplinary proceedings after he had rejoined his department. Looked at from this point also, the impugned orders suffered from evident oversight.
15. The last submission made was about the aspect of delay. While the applicant was functioning as Presiding Officer of the Tribunal, in the year 2002, there were attempts from some quarter to tarnish his image by flinging baseless allegations against him. At his level, he had satisfied the Appellate Tribunal as early as on 05.06.2002 about the fallacy of the charges. Thereafter, he had been permitted to continue. He had completed his term by 07.04.2004, had rejoined his department, obtained benefits of promotion, and had continued there for years together. The attempt to subject him to disciplinary action at the eve of his retirement viz on 19.07.2007 was therefore to be assumed as motivated, and the delay in initiating action had not been explained. In his written statement, he had raised such an objection, but the enquiry was proceeding as pre-decided. Unexplained delay will vitiate the action, and being the person at the wrong end of the stick, and retired as he is, it would cause imponderable difficulties for him to defend himself. Instead of being a step for enforcement of discipline, the proceedings are likely to turn out to one of persecution. This, in any case, could not have been possible to be overlooked, as Courts uniformly had condemned belated disciplinary action, at all levels.
16. By way of answer, the Additional Solicitor General, Mr. A.S. Chandiok, pointed out that the contentions raised by the applicant, by far were hyper technical, and in an attempt to evade from the real issue. By issuing Annexure A-1 and A-2, the President had not committed any indiscretion, but if the stand of applicant was to be accepted, it would have resulted in a travesty of justice. A person, who had opportunity, to hold a high office but when is suspected of having misused his position, instead of raising technicalities, he could have utilized the opportunity of an enquiry to clear his image. On the issue of delay, it is highlighted that taking note of the issues involved, it was essential to go in for advice of the Central Vigilance Commission. The issues had been arranged to be enquired by the CBI, and steps had been taken on the basis of the report. The delay was, therefore, explainable, and the applicant could not have raised it as an objection.
17. The respondent reiterated that the proceedings are valid in all respects. He had referred to Government of India Instruction No. 1 under Rule 11 of the CCS (CCA) Rules, 1965. For good and sufficient reasons, penalties on a Government servant could have been possible to be inflicted when the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service. The objection raised was, therefore, without substance.
18. His next submission was that when the applicant had joined back his parent department, the provisions of the DRT Act became irrelevant and the protection claimed was, therefore, misconceived. Being primarily a civil servant, as a matter of fact CCS (CCA) Rules always applied to him, and thus there was ample jurisdictional power vested with the Administration to charge sheet him and continue the proceedings to its logical end. Citing the opinion obtained by the Department, it was argued that since the applicant has already been relieved by the Department, the embargo spoken to by Section 15 of the DRT Act is irrelevant, in any case, as of now. It is reassured that the allegation of malice and mala fides is totally misplaced.
19. On the issue of delay, we are of the view that in essence the contention raised by applicant has been satisfactorily met. Taking note of the law on the subject, it may not be possible to hold that the respondents were sleeping over the issue. Although at present a retired officer, the applicant might have to face inconveniences of protracted proceedings. We are of the view that the order is not required to be interfered with for the said reason.
20. At this point, we may examine whether there is substance in the Governments contention that in the wake of the Governments Instruction No. 1 below Rule 11 of the CCS (CCA) Rules, initiation of proceedings under the CCS Rules cannot be faulted, and authority is deemed as vested in the Government to continue proceedings against him as had been contemplated. The instruction relied on could be extracted hereinbelow:
It is clarified that the provision of Rule 11 of the CCS (CCA) Rules, 1965 which envisages the imposition of penalties on Government servant for `good and sufficient reason is adequate authority for taking action against a Government Servant in respect of misconduct committed before his employment if the misconduct committed before his employment was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. When such a action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service. Evidently, the Assistant Legal Advisor has heavily relied on the above. But in our considered opinion, the defence resting on the note is thoroughly and absolutely misconceived. The provision evidently had been incorporated to take into account a specific contingency, and it cannot at all be imported to the present scenario. Government apparently had to tackle a situation where under, after conferment of appointment, to an individual later on, it might have come to be revealed that the past conduct of the person, before entering Government service were not one encouraging. Normally after a selection and appointment, unless perhaps in a case of deliberate suppression, there would have been limitations for the employer to retrace the steps on a plea that past records of the individual were not satisfactory. This required to be addressed in the interest of Administration. The instructions cited are obviously intended to tackle such mischief. A limited review power is reserved thereby to empower the Government to assess the situation as may be required.
21. Under Rule 11 of the Rules, Government has conferred on itself power to initiate proceedings against a government servant for goods and sufficient reasons. The right as above, we find from the Note has now been reserved to be enforced in situations where action could be taken in a circumstance where it is found that the misconduct committed in the past has a rational connection with his employment, which would have rendered him unfit and unsuitable for continuing in service. We are sure in our mind that what is provided is power to deal with a specific situation as highlighted, and this absolutely can have no relevance as far as the present issue is concerned. The parallels attempted to be relied on are not acceptable.
22. Now we may examine the principal contentions of the applicant. It is argued that the text of the DRT Act and the Rules, appointing him to the Service and laying down his conditions of service totally bars the respondents from troubling him not only during his tenure as Presiding Officer but also after he demits the office. Taking into account the submissions made, we find we have to go in some detail to examine the legality of the submissions as a whole, including, of course, as to whether the proceedings under CCS (CCA) Rules could be successfully maintained.
23. The applicant had specifically adverted to Rule 3 of the DRT Procedure for Appointment rules (already extracted by us) in the early part of the order. The job of selection to the office of the Presiding Officer, indeed has been conferred on a High Power body. Correspondingly, it is argued, a person can be unseated only after going all through the formalities laid down. The sensitive nature of the duties that were to be entrusted to a Debt Recovery tribunal cannot go unnoticed, it is urged. The Presiding Officer, as would be evident, was being reassured that without fear of interference, influence or repercussions, he was to discharge his duties, as required of him. He was obliged to subscribe to an oath before assuming office. The protection was to continue always because no legal proceedings could have been initiated against an officer for anything which was done in good faith, as reassured by Section 33 of the Act.
24. But the question is whether the protection also extends to ensure that for acts or omissions the insulation is absolute in its content and nature or that the embargo and the restriction spoken to by Section 15 can have only limited operational field. As highlighted in the counter reply, since the applicant already has been relieved, having been permitted to go on retirement, the question as to whether he could be removed from the post of Debts Recovery Tribunal has become a non issue. Definitely, after permitting the person to leave the Organization after completing the period of full tenure, we cannot conceive of an order which might declare that he is/was liable to be removed from service. Therefore, the procedure for arranging to hold an enquiry by a High Court Judge to examine his misbehaviour or incapacity, and duty to act on such a report, practically do not arise now. From the submissions made, such a course is also not in contemplation of the respondent. Therefore, we are constrained to repel the argument which is rested on Section 15 of the Act. The method of selection or the procedure for removal, therefore, does not have any significance as of now.
25. Thus, we come to the next contention, viz. that the invocation of CCS (CCA) Rules as shown in Annexures A-1 and A-2 are without justification or jurisdiction. This, in fact, is the foundation on which the case rests. The learned Senior Counsel had, taken us to Rule 3 (1)(a) of the CCS (CCA) Rules, and later on to Rule 13, the residuary provisions of DRT (Salary, Allowances and Other Terms and Conditions of Service of Presiding Officers) Rules (1993 Rules). When the issues are stated, apparently some ambiguity might appear to precipitate. But a closer scrutiny, and a purposeful interpretation, which is required by the Court to be followed, may clear the clouds. It is a cardinal rule of interpretation that no part of a statute is to be deemed as superfluous, since it is to be accepted that they have been incorporated with a purpose. If there is apparent conflict, the effort should be to reconcile the positions rather than to hold that a positive position does not at all emerge. We may, therefore, examine the contentions with the above principles in our mind.
26. Whether or not the applicant had gone over as Presiding Officer to the DRT on a tenure and not strictly on deputation, we are of the opinion that it may not have had any significance in the larger perspective. This is because the applicant was an officer of Government of India from 1991 onwards, and continued to be an officer after the brief period of his appointment as Tribunal. He is deemed as having retained his lien in the parent department, and this is never under dispute. A proforma promotion had been conferred on him in his parent Department while he was in foreign service. He had rejoined in his promotional post. Since Rule 4 prescribed for deputation allowance to an officer situated like him, he might have drawn the same. His service on deputation was also to be counted as service rendered by him in the Department for purposes of pension. Unless there are, therefore, very strong indication to show that he was to be deemed as a rank outsider for purposes of disciplinary action in respect of the period of his deputation, normally the contention will have to be turned down. Likewise, for the irregularities alleged against the applicant, the argument that he could not have been proceeded against under CCS (CCA) Rules, in spite of his coming back to the Department, and was never bound by the Rules insofar as allegation pertained to a period of his deputation can be acceptable only if the Rules definitely gives him protection, as above claimed.
27. Rule 3 (1) (e) of the CCS (CCA) Rules could, for our purpose here, be extracted as following:
3. Application (1) These rules shall apply to every Government servant, including every civilian Government servant in the Defence Services, but shall not apply to
(a) to (d) x x x x
(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions. The prime requirement as gatherable from the above situation is that there should be special provision in respect of matters covered by the CCS (CCA) Rules if the Rules could be excluded vis-`-vis the officer. From Section 15 of the DRT Act, it could be found that power is conferred on the Central Government to regulate the procedure for investigation of misbehaviour about a Presiding Officer. Although textually this may be formalities to facilitate and assist the Judge of the High Court for coming to conclusions, it is not necessary that it should get only a restricted attention. No rules as proposed to be prescribed have been brought about. Further, more importantly, Section 15 deals with a circumstance where an officer is likely to be removed from the office. Short of dismissal and removal, it is well known that other punishments could be imposed on an officer for sufficient and just reasons. Rule 11 appearing in Part V of the CCS (CCA) Rules makes reference to minor and major penalties. There is no case for the applicant that in so far as Presiding Officers of DRT is concerned any rules for the above purposes operate in the field. Only if there was presence of such rules, the exclusion spoken to by Rule 3 (1)(a) would have helped his case. The exception has been provided by very careful use of expressions. There is no total exception, which means that the Rules continue to apply to every Government servant. It could be seen that if in respect of matters covered by the CCA Rules, special provisions have been made, and are in operation in regard to such matters, the CCA Rules to that extent are not to apply. Such being not the situation, a finding on this issue cannot be in favour of the applicant. He is bound by the CCS (CCA) Rules, at least in respect of disciplinary matters, as contemplated.
28. Technical argument raised was that in such situations in view of presence of Rule 13, a reference of the case required to be made to the Central Government. However, the benefit of this rule hardly may come to the assistance of the applicant. Matters in respect of which clarifications might be required, the concerned Presiding Officer is empowered to address the Government, in each case, and decision of the Central Government would be binding on the said Presiding Officer (underline supplied). This provision does not at all advance the case of the applicant as urged.
29. For one other reason also, it appears that the applicants contentions that he is out of bounds of the CCS (CCA) Rules of the 1993 Rules, cannot be acceptable. This is because of the presence of Rule 6 of the 1993 Rules, which provides that Presiding Officer of a Tribunal shall be governed in matters relating to his right in respect of leave by the Central Civil Service (Leave) Rules, 1972. The Rule although loosely worded would have to be assigned a meaning to hold that the leave rules in its entirety are applicable to him. Rights correspondingly include obligations as well. The applicant will be bound by the Rules, and the Government also would have the obligations and rights as flowing from such rules.
30. If that be the case application of Rule 9 (1) of the CCS (Pension) Rules cannot naturally be avoided. In addition to CCS (CCA) Rules, the said rule authorizes the President, right to withheld the pension, or part of the pension either permanently or for specified periods, and to order recovery from pension. In fact, the Rule simultaneously go along with CCS (CCA) Rules. Government of India instructions by MHA OM No. 134/17/80 dated 28.02.1981 explain that only minor penalty proceedings alone are liable to lapse by the contingency of an officer retiring before the enquiry initiated is completed. The expression used in Rule 9 of the Pension Rules is that `the pensioner is found guilty of grave misconduct/negligence during the period of service. During the period of deputation, the applicant was in Government service, and under sub rule 6, Departmental proceedings are deemed as issued on the date the charge sheet is issued. Therefore, if power is reserved in the President for imposition of penalty as per the rule, the applicant may not be in a position to get away by a technical ground as has been raised by him. He was in Government service, all throughout. Therefore, if applicant is governed by pension rules, as admittedly the position appears to be is, he may not be able to dodge an enquiry under the CCS (CCA) Rules as well, as the enquiry is to be conducted as authorized by the Rules. Thus, the proceedings taken against the applicant cannot be termed as non est or which suffer from jurisdictional deficiency.
31. As we had posed earlier, on the other hand, there is nothing positive, forthcoming to show that the proceedings against a person who for a period of time had held position of Debts Recovery Tribunal is prohibited under the normal rules, in respect of allegations stated to have been committed during his erstwhile tenure.
32. The DRT Act had been introduced by the Parliament primarily for expeditious disposal of claims put up by Banks and Financial Institutions. All suits till the advent of the Act, and some of the proceedings, even as of now were being handled by the civil courts, by Munsiffs and Subordinate Judges. The long pendency had necessitated enactment of special provisions. Therefore, contention that the sensitivity, and fearlessness, as required to discharge the functions, had prompted the Parliament to make special provisions for dealing with such officers, can be taken only with a pinch of salt. The Munsiffs and Subordinate Judges are bound to be subjected to disciplinary action by the general service rules of the State concerned. The applicant may not be justified to equate his status to that of Constitutional post like that of the High Court Judges or Supreme Court judges. The clear indication in the DRT Act is that Presiding Officers were intended to be controlled about their activities, by Rules, and only in the matter of removal of the offices, special provision had been incorporated. This aspect according to us requires to be pointedly noticed.
33. The further attempt of the applicant to show that the restrictions which has now surfaced as far as a selectee officer from service, is concerned, may not at all be enforceable as against a direct recruitee to the post, and he may not at all be visited with any disability, we feel will be beside the point. There cannot be any discrimination possible to be spelt out from the situation. The better service conditions of persons like the applicant, drawn from service indicate that the two sets of persons are treated separately, in the matter of emoluments, perquisites, and the like. A rigid control over their conduct, therefore, cannot be objectionable, as they are bound to return to their parent cadres one day.
34. We, therefore, come to the conclusion that the objections raised by the applicant, as against Annexure A-1 and Annexure A-2 have no legal base. The contentions are liable to be rejected. We notice that a comparison about the status of functionaries under different enactments reveal that conditions of service differ widely. Insofar as the Administrative Tribunals Act is concerned, we notice that the Administrative Members who join the CAT are to be treated as having technically resigned from their previous office, and they are disabled to go back. This is one of the reasons for us to hold that our order as well as observations made above could be understood as specifically made, while dealing with the case of Presiding Officers of Debts Recovery Tribunals only.
35. In the course of arguments, counsel had adverted to a few judicial pronouncements, but since we could not find any principles decided therein supporting the arguments raised by the parties excepting to catalogue them, we may not have to enter into any detailed discussions on the questions decided there. Applicant had cited State of Rajasthan & Anr. Vs. S.N. Tiwari & Ors. (AIR 2009 SC 2104) but the point decided there was that there was no provision to terminate the lien of a government servant on a post, even on his consent. Baldev Singh Dhingra & Ors. Vs. Madan Lal Gupta & Ors. (AIR 1999 SC 902), of course, held that the Bar Council of India had no jurisdictional power to proceed against a lawyer for lapses which he may have committed, while he was not working as a lawyer. But the facts of the present case are totally dissimilar, as the repatriation of the applicant was only on a deputation basis. Sub Committee of Judicial Accountability Vs. Union of India & Ors. (AIR 1992 sc 320) was a case where the Supreme Court was considering an issue under Judges (Enquiry) Act. It had been held that the Parliament was bound to follow the Act, when once the Act came to Statute Book. The decision also laid down that before admitting the motion, the Parliament was not obliged to hear the concerned Judge. Apart from the above, we were not able to notice any point decided, as might be relevant to the question we were considering here. C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee & Ors. (1995 (5) SCC 457) again was a case which related to a Judge of the High Court. The strictness attached to the procedure for impeachment, the Supreme Court had noticed was to ensure that a Judge has to feel secure in view of social demand for active judicial role which he is required to fulfil. The reason for citing the judgment had not been properly explained. In Dr. Gurjeewan Garewal (Mrs.) Vs. Dr. Sumitra Dash (Mrs.) and Ors. (2004 (5) SCC 263), the Court had held that a person may not always get the protection of Article 311 of the Constitution, and when the person concerned was not holding civil post, remedy of a writ petition may not be possible to be claimed. Again, hardly there is any similarity as between the two cases, and we may not be required to advert to any greater details as discussed in the judgment.
36. Another decision cited by the applicant was Union of India & Anr. Vs. Shardindu (2007 (6) SCC 276). The person concerned had been appointed as Chairperson of the National Council for Teachers Education (NCTE) for a period of four years or upto the attainment of sixty years of age. The appointment had been made under the NCTE Act. Before the completion of the term, an order had been issued by the Central Government prematurely terminating the deputation arrangement and he was ordered to be repatriated. Reason which led to this order was that in the officers parent cadre (under the State of UP), troubles were brewing which would have affected him. An inquiry was being conducted in respect of incidents which happened during his tenure there, an order of suspension had been issued and disciplinary proceedings were contemplated. The question was whether the Central Government was competent to repatriate the individual prematurely acting on the reports as above received from the State Government.
37. The High Court in a writ petition had held that the order of the Central Government was invalid. This had been upheld by a Division Bench. The Supreme Court in SLP proceedings had taken a view that the concept of pleasure doctrine could not have been applied to the facts of the case since the person had been recipient of a statutory appointment and the service conditions of Chairperson, NCTE had been specifically laid down by the Act. If separate rules govern service conditions of a person, it would have been mandatory to follow the rules and the matter could not have been dealt with, otherwise.
38. But, however, the circumstance that the applicants deputation had been completed and he went back essentially make the position different for him. All throughout, the applicant was a Central Government employee excepting a deputation for a brief period. Especially, disciplinary action was initiated after he reached back the Central Government. Therefore, it should not have been possible for him to contend that resort to CCS (CCA) Rules could not have been made in respect of his conduct while he was on deputation. The decision cited as above may not be of any assistance to him.
39. Resultantly, we dismiss the Original application. The interim orders are vacated. There will be, however, no order as to costs.
(L.K. Joshi) (M. Ramachandran) (V.K. Bali) Vice Chairman(A) Vice Chairman (J) Chairman `SRD Per Justice V. K. Bali, Chairman
I have gone through the judgment prepared by my brother Justice M. Ramachandran, Vice-Chairman (J). While agreeing with the conclusions arrived at by him in dismissing the Original Application, I may add some reasons in support of the view taken by him.
2. The facts of the case have been elaborately given in the order referring the matter to the Full Bench dated 9.2.2009, as also the judgment prepared by Honble Justice M. Ramachandran, Vice-Chairman (J). The same would need no reiteration, but for to state that the respondents were conscious of the complications involved in the matter and applied their mind as to whether the applicant was to be departmentally tried under provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred as the Act of 1993) or under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965). In the additional affidavit filed on behalf of the respondents, it has inter alia been pleaded that the Ministry of finance (Department of Economic Affairs), which is the concerned Ministry in respect of DRT, informed the 1st respondent vide letter dated 25.6.2004 that the allegations against the applicant mainly relate to acquiring of assets disproportionate to his income and abuse of official position. The Ministry of Finance stated that since the applicant had been reverted back to the Ministry of Law on completion of his term in April, 2004, the Ministry of Law may take appropriate action in the matter. Central Vigilance Commission (CVC) vide letter dated 17.6.2005 advised initiation of major penalty proceedings against the applicant. However, in respect of a query whether the enquiry could be held in respect of the applicant under the provisions of the Act of 1993 applicable in respect of Presiding Officers in DRT, CVC advised to consult DOP&T in the matter. DOP&T vide note dated 18.7.2005 desired that it may be indicated whether there is any bar under the Act of 1993 to enquire into those charges under the Rules of 1965. They stated that there is no such bar and that enquiry may be held under the Rules of 1965 which provide for imposition of penalty for good and sufficient reasons. However, DOP&T advised that since the question involved consideration from the Act of 1993 and rules angle, legal opinion may be sought in the matter. Legal opinion was accordingly sought from the Legal Adviser of the department, who opined that the Act of 1993 has provisions for enquiry to prove the misbehaviour or incapacity of the Presiding Officer for the purpose of removal from service and empowers the Government to make rules to regulate the procedure or misbehaviour or incapacity of such Presiding Officer, and that since the applicant had already been relieved from the post of Presiding Officer, DRT, Ahmedabad, the provisions of the Act of 1993 would not appear to create any bar to enquire into the charges against him under the Rules of 1965. The Legal Adviser, therefore, advised the department to proceed in the matter. The contents of the affidavit as mentioned above have been supported from various documents annexed therewith. We may only refer to the advise that came to be tendered by Legal Adviser. The same reads, thus:
The matter for our consideration is whether there is any bar under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Act of 1993) to inquire into the charges against Vijay Kumr Verma, the then Presiding Officer, DRT, Ahmedabad under the CCS (CCA) Rules, 1965.
2. Section 15(2) of the Act of 1993 provides that the Presiding Officer of a tribunal or an appellate tribunal shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehaviour or incapacity after an inquiry (a) in the case of a Presiding Officer of the tribunal, made by a Judge of a High Court, and (b) in the case of a Presiding Officer of an appellate tribunal, made by a Judge of the supreme Court, in which the Presiding Officer concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.
3. Section 15(3) read with section 36(2)(b) of the Act of 1993 empowers the Central Government to frame rules regulating the procedure for the investigation of misbehaviour or incapacity of such Presiding Officer.
4. As such, the Act of 1993 only has the provisions for inquiry to prove the misbehaviour or incapacity of the Presiding Officer for the purpose of removal from service and empowers the Central government to make rules to regulate the procedure or misbehaviour or incapacity of such PO. Shri Vijay Kumar Verma has already been relieved from his deputation post of PO, DRT, Ahmedabad on 8.4.2004 and joined back his parent department in his cadre post of Additional Govt. Advocate on 15.4.04. Since Shri Verma has already been relieved from the post of PO, DRT, provisions of the Act of 1993 does not appear to create any bar to inquire into charges against him under CCS (CCA) Rules, 1965.
5. The main allegations against Shri Verma during his tenure as Presiding Officer, DRT, as stated, are
(i) Acquiring assets disproportionate to the income.
(ii) Abuse of official positioning in the matters of State Bank of India vs. Priya Blues and Ramesh G. Parimkh vs. Bank of India.
(iii) Abuse of official positioning by appointing Mrs. Malashah as Government Commissioner paying her fee of around Rs.1.05 lakhs.
6. It was held by the Division Bench of the High Court of Allahabad (Lucknow Bench) in the case of A. K. Srivastava Vs. State of UP & Ors. reported in 1980 (1) SLR 369 that the officer on deputation continue to hold status in the parent department.
7. The apex court in the case of Khemi Ram Vs. State of Punjab (AIR 1976 SC 1737) held that the parent department does not lose jurisdiction to place an employee under suspension merely because it had placed his services at disposal of some other authority.
8. Supreme Court in the case of Govinda Menon vs. UOI, 1967 (2) LLJ 249 has observed as under:
It is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service.
9. Further Govt. of Indias instruction No.1 below rule 11 of the CCS (CCA) Rules reads as under:
It is clarified that the provision of Rule 11 of the CCS (CCA) rules, 1965 which envisages the imposition of penalties on Government servant for good and sufficient reason is adequate authority for taking action against a Government servant in respect of misconduct committed before his employment if the misconduct committed before his employment was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. When such action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service. It is after the opinion of the Legal Adviser that decision was taken to proceed against the applicant departmentally.
3. The opinion that the applicant could be proceeded under the Rules of 1965 is based upon a decision of the Allahabad High court in A. K. Srivastava v State of UP & Others [1980 (1) SLR 369], and two decisions of the Honble Supreme Court in Khemi Ram v State of Punjab [AIR 1976 SC 1737] and S. Govinda Menon v Union of India [AIR 1967 SC 1274 : 1967 (2) LLJ 249], as also rule 11 of the Rules of 1965. Insofar as, provisions of rule 11 are concerned, the same, in my view, have been rightly held not to be applicable, by my learned brother Justice Ramachandran, but the legal opinion tendered on the basis of judicial precedents, and in particular, the judgment of the Honble Supreme Court in S. Govanda Menon (supra), seems to be correct. The facts of the said case reveal that S. Govinda Menon was a member of the Indian Administrative Service. He was the First Member of the Board of Revenue, Kerala State and was holding the post of Commissioner of Hindu Religious and Charitable Endowments. While discharging his duties as Commissioner, the State Government instituted certain preliminary enquiries and thereafter started disciplinary proceedings against him. He was also placed under suspension applying provisions of the All India Services (Discipline and Appeal) Rules, 1955 (hereinafter to be referred as the Rules of 1955). During currency of the proceedings, Menon filed a petition in the High Court seeking a writ in the nature of certiorari so as to quash the said proceedings, as also a writ in the nature of mandamus allowing him to function as the First Member of the Board of Revenue. No stay was granted to him, and, therefore, the enquiry proceeded culminating into report submitted by the enquiry officer that some charges subject matter of enquiry stood proved against him. When a show cause was issued to him in consideration of the enquiry report, he sought amendment of the writ petition, which was allowed. Challenge to the disciplinary proceedings was on variety of grounds, the primary being that the proceedings initiated against him were entirely without jurisdiction as no disciplinary proceedings could be taken against him for acts and omissions with regard to his work as commissioner under the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter to be referred as the Act of 1951). Whereas, the opinion of the Judges constituting the Bench with regard to the proceedings being without jurisdiction was unanimous in repelling the said plea, there was a difference of opinion on some other issues, and the matter was thus referred to third Bench. The writ petition ultimately came to be dismissed. Constrained thus, Govinda Menon challenged the decision of the High Court before the Honble Supreme Court. The first proposition put forward in support of the appeal before the Apex Court was that the Commissioner was a corporation sole and not a servant of the Government and against a person acting in the capacity of Commissioner, the Government would have no jurisdiction to take disciplinary proceedings. Reference was made to Section 80 of the Act of 1951, which states that the Commissioner shall be a corporation sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name. It was urged that the acts and omissions of the appellant in his capacity as Commissioner could not be questioned in any disciplinary proceedings as the Commissioner was not a servant of the Government subject to its administrative control. Based upon rule 4 of the Rules of 1955, it was also urged that IAS officers would be governed by statutory rules; that any act or omission referred to in rule 4(1) would relate only to an act or omission of an officer when serving under the Government; that serving under the Government would mean subject to the administrative control of the Government; and that disciplinary proceedings should, therefore, be on the basis of the relationship of master and servant. Rule 4 provides that a member of the service shall be liable to any penalty specified in rule 3, where he may have committed any act or omission which may render him liable for penalty. It was further urged that in exercising its statutory powers, the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings could not, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. The contention raised by the appellant that the Commissioner had a separate legal personality as corporation sole under Section 80 of the Act of 1951, and was thus exempt from disciplinary proceedings in respect of acts and omissions that might have been committed by him in his capacity as Commissioner, was repelled. What, however, is crucial for determining the core controversy in the present lis, is the observation made by the Honble Supreme Court that even if there was no master and servant relationship, Menon could still be proceeded under the Rules of 1955. The relevant observations read, thus:
.We are unable to accept the proposition contended for by the appellant as correct. Rule 4 (1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4 (1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the Service. While taking the view as extracted above, the Honble Supreme Court placed reliance upon the following observations of Lopes, L. J. in Pearce v Foster [(1886) 17 QBD 536 at p. 542]:
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified. not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
4. Whether the applicant can be departmentally proceed with regard to misconduct alleged against him during currency of his tenure as Presiding Officer, DRT, for which period, at the most, it is the case of the applicant, he was not Government servant but was a statutory authority, would thus make no difference, if one may have regard to the observations of the Honble Supreme Court as extracted above. It is clearly stated that the test is whether the act or omission has some reasonable connection with the nature and condition of service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. It was further held that even if the employee may have been functioning elsewhere, having been appointed under provisions of some other Act and he may not be subject to the administrative control of the Government while so functioning under the said Act, his acts or omissions would form subject matter of disciplinary proceedings if the acts or omissions would reflect upon his reputation for integrity or devotion to duty as a member of the service. Provision of rule 3(1)(e) of the rules of 1965 on which the contention of the learned counsel representing the applicant rests may be of no avail to the applicant. The applicant, if at all, was to be governed by special provisions contained in the Act of 1993, it could be only during his tenure as Presiding Officer, DRT. Surely and admittedly, the applicant had demitted his office as Presiding Officer, DRT having completed his tenure and, therefore, the applicability of the special provisions for instituting disciplinary proceedings against him under the provisions of the said Act came to an end with his tenure. The applicability of the rules with regard to disciplinary action to be taken against the applicant was, thus co-terminus or co-tenuous with his term. The two main judicial precedents relied upon by the learned counsel for the applicant in support of the plea that no proceedings under the Rules of 1965 could be instituted against the applicant would also not be relevant to the facts of the present case. In Baldev Singh Dhingra & Others v Madan Lal Gupta & Others [AIR 1999 SC 902] the question was as to whether conduct of an advocate who had later occupied a judicial post, and because of his delinquency or acts of misconduct indulged in by him while occupying the judicial post was dismissed from service, could be gone into by the Bar Council after his dismissal from service, for purposes of renewing or restoring his licence to practice. Surely, the delinquency or misconduct indulged in by the lawyer-turned-judicial officer, and which delinquency or misconduct related to the period he was in service, could not be gone into by the Bar Council. Insofar as, the other judgment on which reliance is placed, in Union of India v Shardindu [(2007) 6 SCC 276] is concerned, the same may not be relevant as well. Sharindu was selected as Chairperson of National Council for Teachers Education (NCTE) for a fixed period of four years or till he attained the age of 60 years, whichever was to be earlier. On his appointment he was relieved by the Government of Uttar Pradesh on 21.1.2004, and he assumed the charge of Chairperson, NCTE on 22.1.2004. The allegation against him was that while working as Director, State Council for Educational Research and Training in the State of Uttar Pradesh, an enquiry was conducted by the State Vigilance Commission at the behest of the State Government in respect of examination of 2001, in 2004. The State Vigilance Commission submitted its report on 27.3.2005 and on the basis thereof an FIR was registered against him and others. He was placed under suspension by the State Government pending commencement of the disciplinary proceedings. When this fact came to the notice of the Union of India, by an order dated 18.11.2005 his deputation was terminated. The issue raised by Shardindu was that while holding the post of Chairperson, NCTE for a fixed tenure, he was not on deputation. Indeed, it was held that he may not be, strictly speaking, on deputation while holding the post of Chairperson, NCTE. As to whether for his delinquency or misconduct in discharge of his duties as Chairperson, NCTE, the State Government could proceed against Shardindu departmentally after his tenure was over, was not the question involved at all in the said case. A Division Bench of the High Court of Delhi in Ravi Kumar Mathur & Another v Union of India [149 (2008) Delhi Law Times 660 (DB)], while dealing with the case of Shardindu (supra) mentioned that the said case dealt with the case of Chairperson, NCTE who had been appointed for a period of four years or till he attained the age of 60 years, whichever was to be earlier, wherein it was held that the Chairperson could not be summarily removed on the ground that FIR was registered against him for his alleged earlier misconduct as an officer of the State Government, and that there was no allegation that the Chairperson was guilty of any misconduct for the period after his appointment as Chairperson. What was held in Shardindu (supra), in view of the Division Bench of the High Court, is that the tenure appointment could not be curtailed unless the respondent had incurred the disqualifications mentioned in the NCTE Act, 1993. This is exactly what we have observed above. Further, in the same very judgment of the High Court it was held that insofar as appellants before it were concerned, they also treated themselves to be deputationists and they were being paid deputation duty allowance as well. In the present case, the notification dated 12.4.1999 unequivocally states that the applicant was being appointed as Presiding Officer, DRT, Ahmedabad on deputation basis from 9.4.1999 for a period of five years or till he attained the age of 62 years, whichever event was to occur earlier. The applicant during his tenure as Presiding Officer, DRT got promotion in his parent department, which he accepted. We do not find parity on facts in the case of Shrdindu (supra) nor the law points involved therein with that of the case in hand.
5. It appears to me that whereas, it may be possible not to take any action against a person for delinquency or misconduct committed during currency of his tenure as constitutional functionary or statutory authority after he completes his term, but if he may revert to the post held by him prior to such assignment, naturally if he is left with some years of service still, then there would be no embargo to take action against him even with regard to delinquency or misconduct alleged against him while holding the post where he might have been appointed.
( V. K. Bali ) Chairman /as/