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UNION OF INDIA & ANOTHER versus NANAK CHAND

High Court of Judicature at Allahabad

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Union Of India & Another v. Nanak Chand - SECOND APPEAL No. 989 of 1983 [2004] RD-AH 427 (2 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

 Court No. 27

Second Appeal No. 989 of 1983

Union of India & another Vs. Nanak Chand

Hon'ble Dilip Gupta, J.

This Second Appeal has been filed by the Union of India for setting aside the judgment and decree dated 15th December 1982, of the Additional District Judge, Kanpur in Civil Appeal No. 548 of 1981 arising out Original Suit No. 1848 of 1980.

Original Suit No. 1848 of 1980 was filed by the plaintiff/respondent who was working as an Assistant Store Keeper in the Ordnance Parachute Factory, Kanpur for a declaration that the order of suspension dated 5th April 1980 and the order dated 26th May 1980 for holding an inquiry against the plaintiff under Rule 14 of the Central Civil Services (Qualification Control and Appeal) Rules, 1965 (hereinafter referred to as the ''CCS Rules') be declared illegal, void and without jurisdiction on the ground mentioned in paragraph 13 of the plaint that the Officer Incharge of the Ordnance Parachute Factory Sri K.S. Ganesh Babu was below the rank of the General Manager, who was the appointing authority of the plaintiff. A written statement was filed on behalf of the Union of India in which it was asserted that the Officer Incharge of the Factory not only enjoyed the same powers as the General Manager but was also competent to issue these orders. The trial court decided issues no. 1 and 2 together which were whether the impugned orders dated 5th April 1980 and 26th May 1980 for holding enquiry against the plaintiffs were without jurisdiction. The trial court noticed that by means of the order dated 7th November 1979, (Exhibit A-11), it was notified that the Additional Director General Ordnance Factory had transferred the General Manager of the Ordnance Parachute Factory, Kanpur to ADGOF Grade II at Kanpur and appointed Sri K.S. Ganesh Babu as the Officer-in-Charge Ordnance Parachute Factory at Kanpur. The trial also court considered the letter dated 13th November 1979 (Exhibit A-9) by which the power of making appointment of Class III and Class IV employees was delegated to the General Manager/Officer Incharge/Officer in Temporary Charge of Ordnance Equipments Factories under the proviso to Rule 9(1) of the CCS Rules. After examining the various provisions of the CCS Rules, and the documents on record the trial court held that the Officer-in-charge of the Ordnance Factory was competent to issue the aforesaid orders. The suit was accordingly, dismissed.

An appeal, being Civil Appeal No. 548 of 1981, was filed by the plaintiff Nanak Chand. The appellate court, however, found that the plaintiff had been appointed by the General Manager of the Ordnance Factory while he was suspended by the Officer-in-charge of the Ordnance Factory who was lower in rank and the order for holding enquiry was also passed by the said officer. Both the orders were, therefore, found to be without jurisdiction and so the appeal was allowed and the suit was decreed.

I have heard Sri Ashok Mohilay learned counsel for the appellant and the learned counsel appearing for the respondent.

The Court, while admitting this Second Appeal, framed the following substantial question of law:

"Whether the powers of General Manager were delegated to the Officer-in-charge to take disciplinary action against the plaintiff opposite party".  

In order to appreciate the contentions advanced by the learned counsel for the parties, it would be appropriate to refer to the relevant provisions of the CCS Rules. Rule 9(1) provides that all appointments to Central Civil Services Group-B, Group-C and Group-D shall be made by the authorities specified in the Schedule provided that in respect of Group-C, Group-D Civilian Services or Civilian Posts in the Defence Services, appointments may be made by the Officers empowered in this behalf by the aforesaid authorities. The Schedule to the CCS Rules dealing with the civil posts in Defence Services indicates that in respect of concerned post the Director General, Ordnance Factory is the Appointing authority and the authority competent to impose penalties is also the Director General Ordnance Factories. Rule 10(1) provides that the Appointing authority or any authority to which it is subordinate or the Disciplinary or any other authority empowered in this behalf by the President, by general or special order, may place a government servant under suspension. Rule 12 deals with Disciplinary Authorities and Rule 12(2)(b)provides that any of the penalties specified in Rule 11 may be imposed by the authority specified in this behalf by a general or special order of President or where no such order has been made by the Appointing authority or the authority specified in the Schedule in this behalf. Rule 13(2) provides that the Disciplinary authority competent under these Rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government Servant for imposition of any of the penalties specified in clause (v) of Rule 11 notwithstanding that such Disciplinary authority is not competent under these Rules to impose any of the latter penalties.  

At this stage it may be pertinent to state that on the basis of the inquiry initiated against the plaintiff/respondent a penalty of withholding three increments for a period of 3 years with cumulative effect was imposed upon the plaintiff by the order dated 31st July 1982 and the plaintiff also retired from service after attaining the age of superannuation.

A perusal of Rule 9(1) clearly shows that the Appointing authority is the authority specified in the Schedule, which is the Director General Ordnance Factories but it has also been provided that the appointments can be made by the Officers empowered in this behalf by the aforesaid authorities. In this context, exhibit A-9 which is the communication dated 13th November 1979 clearly shows that under the proviso to Rule 9(1), the powers have been delegated to the General Manager/Officer Incharge/Officer in Temporary Charge of the Ordnance Equipment Factories in respect of Class III and Class IV employees. It is, therefore, clear that in respect of the plaintiff, who was a class III employee, the Officer Incharge of the Ordnance Factory was the Appointing authority. Under Rule 10(1), the Appointing authority could place the government servant under suspension. The plaintiff/respondent was suspended by the Officer Incharge Ordnance Factory who, as stated above, was the Appointing authority. The disciplinary proceedings have been instituted neither by the President nor by an authority directed by him to do so, nor by any other authority empowered by him, by general or special order, to do so. The disciplinary authority in the present case, therefore, has to be, in terms of Rule 12(2) (b), " the appointing authority or the authority specified in the Schedule in this behalf". Under Rule 12(2)(b), the Appointing authority, which is the disciplinary authority, could impose any of the penalties specified in Rule 11. Thus the Appointing authority, namely the Officer-in-charge of the Ordnance Factory was also the officer competent to institute the disciplinary proceedings.

The appellate court, however, has completely failed to examine the issue in the light of the aforesaid CCS Rules. Though it is referred to the provisions of Rule 9(1) it has concluded that such authorities to whom the powers have been delegated under the proviso can only be the Appointing authorities but they cannot institute disciplinary proceedings against those employees. In this context the appellate court has completely failed to consider the provisions of CCS Rules, which empowered the Appointing authority to institute the disciplinary proceedings.

It may be stated that by means of the order dated 7th November 1979, the General Manager of the Ordnance Parachute Factory Kanpur, was transferred and Sri K.S. Ganesh Babu was appointed as the Officer-in-charge of the Ordnance Parachute Factory at Kanpur. The trial court on the basis of evidence clearly held that the said Sri K.S. Ganesh Babu was discharging the duties of the General Manager. The appellate court has, however, set aside the order of suspension and the order for holding enquiry on the ground that though Sri K.S. Ganesh Babu may be having the financial or administrative powers of the General Manager, but he had no power to institute disciplinary proceedings and in fact the order was not also passed by Sri K.S. Ganesh Babu as General Manager.

This reasoning adopted by the appellate court is not correct. There was admittedly no General Manager posted at the relevant time in the Ordnance Parachute Factory at Kanpur, Sri K.S. Ganesh Babu was the Officer-in-charge. The CCS Rules, as stated above, clearly empowered the Officer-in-charge to institute disciplinary proceedings. The trial court on the basis of the evidence held that the post of Officer-in-charge cannot be said to be lower in rank then the post of General Manager and there is nothing on the record to indicate that the said finding of the trial court is incorrect. Thus when the rules specifically empowered the Officer-in-charge of the Ordnance Parachute Factory Kanpur to suspend and institute disciplinary proceedings and in the absence of any evidence to suggest that the Officer-in-charge was holding a post lower then that of the General Manager it cannot be said that the two orders sought to be set aside in the suit were without jurisdiction.  

Learned counsel for the respondents however, submitted that the Appointing authority cannot be the Officer-in-charge of the Ordnance Parachute Factory for the purposes of Rule 12(2)(b) and in this context he drew the attention of the Court to the definition of the Appointing authority given in Rule 2(a) of the Rules which is as follows:

"2.(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 posts 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 appointed him to that Service or is the highest to any grade in that service or to that post, whichever authority is the highest authority."  

Learned counsel placed much emphasis on the last few words of Rule 2(a) under which the highest of the authorities would be the Appointing authority. He submitted that the Director General Ordnance Factories continues to be the Appointing authority despite the fact that under the Proviso to Rule 9(1), the said powers had been delegated to the Officer Incharge Ordnance Factory. This submission of the learned counsel for the respondents was considered by the Supreme Court in the case of Scientific Adviser to the Ministry of Defence and others Vs. S. Daniel and others reported in (1991) 15 Administrative Tribunals Cases 799 and it was held as follows:-

"Still the basic question that remains is, whether, in the context of Rule 2(a) read with Rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to Rule 9 or to both the authorities falling under the main part of Rule 9(1) as well as the proviso......................................................................................................................... We think, on a proper and harmonious reading of Rule 2(a) and Rule 9, that sub-rule (a) of Rule 2 only envisages the authority to whom the power of appointment has been delegated under Rule 9 and not both the delegator and the delegate."

From the aforesaid it is clear that the Officer-in-charge of the Ordnance Factory was the Officer competent to institute disciplinary proceedings against the plaintiff/respondent.

Learned counsel for the plaintiff/respondent then placed reliance upon the decision of the Madhya Pradesh High Court in the case of Shardul Singh Vs. The State of Madhya Pradesh and others, reported in AIR 1966 Madhya Pradesh 193, for the proposition that the Appointing authority which possess all the powers of taking disciplinary action cannot delegate the power to initiate disciplinary action to a subordinate authority. In the first instance, as stated above, this submission is without any substance since the Officer-in-charge of the Ordnance Factory was the officer competent to appoint the plaintiff/respondent but in any view of the matter the aforesaid decision of the Madhya Pradesh High Court was taken up in appeal to the Supreme Court and reversed in the case of State of Madhya Pradesh Vs. Shardul Singh reported in (1970)1 SCC 108.      

This being the position, the Judgment of the appellate court holding that the Officer-in-charge Ordnance Factory was not competent either to suspend the plaintiff/respondent or hold an enquiry against him cannot be sustained and is hereby set aside. This appeal is, accordingly, allowed and the suit filed by the plaintiff is dismissed. The parties shall bear their own costs.                

Dt: 2.8.2004

NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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