Central Administrative Tribunal - Allahabad
Shri Narain Ram Bhardwaj vs The Union Of India Through Its Secretary on 20 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH (THIS THE 20TH DAY OF MAY, 2011) Honble Dr.K.B.S.Rajan, Member (J) Honble Mr.D.C.Lakha, Member (A) Original Application No.1095 of 2007 (U/S 19, Administrative Tribunal Act, 1985) Shri Narain Ram Bhardwaj, Ex.SPM.XXXI, P.A.C., a/a 60 years, son of Sri Sita Ram, R/o Awas Vikas Colony, M.S.B.666,Nainital. Applicant Present for Applicant: Shri B.R.Tiwari, Adv. Versus 1. The Union of India through its Secretary Ministry of Communication, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi. 2. Senior Superintendent of Post Offices Nainital Division, Nainital. 3. Director, Postal Services, Dehradun. Respondents Present for Respondents: Shri H.Singh, Adv. O R D E R
(Delivered by Honble Dr.K.B.S.Rajan, Member (J) When this case came for final hearing, only counsel for the applicant was present who was heard. Briefly stated this case relates to removal from service of the applicant on account of certain charges levelled against the applicant (shortage of huge amount and thus violation of the provisions of rule 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules. Simultaneous action was taken, both under the departmental proceedings as well as criminal proceedings, and while the criminal proceedings ended in acquittal, the departmental proceedings ended in removal from service of the applicant. The main thrust of the counsel for the applicant in this case is that the inquiry officer being a retired public servant he could not have held the inquiry as per the decision by the Apex Court in the case of Ravi Malik v. National Film Development Corpn. Ltd. (2004) 13 SCC 427. The Honble High Court of Allahabad, in the case of Kendriya Vidyalaya Sangathan vs C.A.T. and Another (WP No. 44002 of 2007) dismissed the writ petition filed by the KVS and upheld the decision of the C.A.T., which had followed the decision of the Apex Court in the case of Ravi Malik (supra). Of course, in the course of arguments by the Counsel for the applicant, feebly, submissions have also been made by the counsel for the applicant that the impugned orders suffer from other legal lacuna as the proceedings were not conducted in accordance with the provisions of Rule 14 of the CCS(CC&A) Rules, 1965.
2. As the counsel for the respondents is not available for arguments, permission was granted to file written arguments. However, no written arguments were filed.
3. In so far as the first limb of argument i.e. inquiry by a retired public servant, though in the case of Ravi Malik, the Apex court had held that inquiry cannot be conducted by a retired public servant, in a subsequent case of Union of India vs P.C. Ramakrishnayya, relying upon the decision in the case of Union of India vs Alok Kumar (2010) 5 SCC 349, the Apex Court has held as under:-
The question of validity of appointment of a retired officer from a panel prepared for appointment of inquiry officers for holding departmental enquiry was examined in great detail in a recent decision of this Court in Union of India v. Alok Kumar3. It may be clarified that the decision in Alok Kumar3 was rendered in a case under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 and the present case arises from Rule 14(2) of the CCS (CCA) Rules. But it needs to be pointed out that the provisions of Rule 9(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 dealing with the appointment of inquiry officers are in pari materia with Rule 14(2) of the CCS (CCA) Rules.
13. Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 is as follows:
9. Procedure for imposing major penalties.(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof.
(3) Where a Board of Inquiry is appointed under sub-rule (2) it shall consist of not less than two members, each, of whom shall be higher in rank than the railway servant against whom the inquiry is being held and none of whom shall be subordinate to the other member or members, as the case may be, of such Board.
* * * Explanation.Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub-rule (14) to sub-rule (25), to the inquiring authority shall be construed as a reference to the disciplinary authority. (emphasis supplied)
14. Rule 14(2) of the CCS Rules is reproduced hereinbelow:
14. Procedure for imposing major penalties.(1) * * * (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a government servant, it may itself inquire into, or appoint under this rule, or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. (emphasis supplied)
15. It is, thus, to be seen that the only difference between Rule 14(2) of the CCS (CCA) Rules and Rule 9(3) of the Railway Servants (Discipline and Appeal) Rules is that in the former the words a Board of Inquiry or are not there. But that is of no significance for the issue in hand.
16. In Alok Kumar this Court considered in great detail, the meaning of the word authority occurring in Rule 9(3) and came to find and hold that a retired officer could also be vested with the delegated authority of the disciplinary authority (see paras 26-62) to hold the inquiry. It may also be noted that in Alok Kumar , this Court also considered the decision in Ravi Malik v. National Film Development Corpn. Ltd. and distinguished it by pointing out that it was in the context of Rule 23(b) of the Service Rules and Regulations, 1982 of National Film Development Corporation. In SCC para 45 of the judgment, the Court observed as follows: (Alok Kumar case, SCC p. 367) 45. Reliance placed by the respondents upon the judgment of this Court in Ravi Malik is hardly of any assistance to them. Firstly, the facts and the rules falling for consideration before this Court in that case were entirely different. Secondly, the Court was concerned with the expression public servant appearing in Rule 23(b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that public servant should be understood in its common parlance and a retired officer would not fall within the meaning of public servant, as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9(2) as well as Section 3 of the Act have used a very different expression i.e. other authority and person/persons. In other words, the absence of the words public servant of the Government are conspicuous by their very absence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the common parlance.
17. In the light of the discussions made above, we are satisfied that the judgments of the Tribunal and the High Court are contrary to the correct legal position and therefore cannot be sustained.
4. Thus, the first point canvassed by the applicants counsel cannot be accepted. In so far as the second limb is concerned, i.e. violation of provisions of Rule 14, the applicant was expected to challenge the order of the disciplinary authority pinpointing the alleged violation of specific provisions of the rules, and the appellate authority was expected to deal with the same. it is seen from the records that the appellate authority had considered all the grounds of appeal and his decision, vide the impugned order meets all the grounds. Thus, the order of the appellate authority cannot be held to be vitiated.
5. As the applicant has failed in both the grounds of attack of the impugned orders, we find no substance in the OA. Hence, the OA is dismissed. No costs.
MEMBER (A) MEMBER (J)
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