Full Judgment Text
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CASE NO.:
Appeal (civil) 1295 of 1998
PETITIONER:
STATE OF U.P. AND ANR.
RESPONDENT:
CHANDRAPAL SINGH AND ANR.
DATE OF JUDGMENT: 12/03/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003 (2) SCR 1062
The following Order of the Court was delivered :
The State of U.P. and another are before us in this appeal, assailing the
order passed by the High Court in a writ petition affirming the order
passed by the U.P. Public Service Tribunal No. Ill, Lucknow. The respondent
No. 1 herein was appointed as Assistant Agriculture Inspector, Group-Ill by
the Director of Agriculture. On account of certain irregularity or
misconduct the disciplinary proceedings were initiated against him by the
District Agriculture Officer. After holing enquiry, he submitted a report
to the disciplinary authority which authority, accepting the report of the
District Agriculture Officer, passed the order of dismissal dated 11.4.1977
dismissing the respondent no. 1 from service. Challenging the said order of
dismissal, the respondent No. 1 filed a claim petition before the U.P.
Public Service Tribunal. Before the said Tribunal, a contention was raised
that respondent No. 1 having been appointed by the Director of Agriculture,
the District Agriculture Officer could not have initiated the disciplinary
proceedings. Consequently, the disciplinary proceedings initiated and
further proceedings taken, culminating into an order of dismissal, were all
vitiated. The Tribunal accepted this contention, observing that subsequent
delegation of power or making the District Agriculture Officer an
appointing authority in relation to Group III posts, to which respondent
No. 1 belonged at the relevant point of time, would not cure the defect,
namely, initiation of disciplinary proceedings by the District Agriculture
Officer while the Director of Agriculture having been the appointing
authority. Aggrieved by the said order of the Tribunal, the State filed
writ petition before the High Court. The High Court agreeing with the
findings recorded by the Tribunal, dismissed the writ petition. Hence, this
appeal.
The learned counsel for the appellants contended that respondent No. 1 was
appointed as Assistant Agriculture Inspector on 24.6.1966; disciplinary
proceedings were initiated against him by the District Agriculture Officer
on 10.1.1974 and the order of dismissed came to be passed on 11.4.1977. He
pointed out two G.Os. dated 15.6.1961 and 26.12.1983 to show that on those
dates the District Agriculture Officer was the appointing authority by
virtue of the powers conferred on them by all the relevant G.Os. which had
the assent of the Governor. On the basis of these G.Os., the learned
counsel contended that prior to the appointment of the respondent No. 1,
these G.Os. were very much in existence. It appears to us that the Tribunal
and the High Court were under a wrong impression that the District
Agriculture Officer was made an appointing authority subsequent to the
initiation of the disciplinary proceedings. He further submitted that
initiation of disciplinary proceedings could be by an authority lower in
rank than the disciplinary authority. In support of this submission, he
placed reliance on the decisions of this court in 1970 (1) SCC 108, 1993
(1) SCC 419 and, 1994 (2) SCC 746. According to the learned counsel, having
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regard to these aspects both the Tribunal and the High Court committed an
error and the impugned order cannot be sustained.
In opposition, the learned counsel for respondent No. 1 strongly contended
that the two suspension orders were passed - one by the Project Officer who
was lower in rank to the District Agriculture Officer and the second by the
District Agriculture Officer and there was inconsistency between the two.
Even though the G.Os. referred to by the learned counsel for the appellant
were prior to the appointment of respondent No. 1, and the District
Agriculture Officer was the appointing authority yet he was appointed by
the Director of Agriculture. He further submitted that when the Tribunal
and the High Court have concurrently found in favour of respondent No., 1
this Court may not disturb the concurrent finding.
The facts that are not in dispute are: the respondent no. 1 was appointed
on 24.6.1966; the two G.Os, afore-mentioned were very much in existence and
operative much prior to his appointment, under which G.Os. the District
Agriculture Officer was competent to initiate disciplinary proceedings as
an appointing authority, as is evident from the G.Os. themselves. He was
appointed by the Director of Agriculture and the order of dismissal was
passed by the Director of Agriculture on 11.4.1977. In other words, it is
the appointing authority which passed the order of dismissal. Before the
Tribunal, the stand of respondent No. 1 was that the District Agriculture
Officer being lower in rank than the appointing authority of respondent No.
1, namely the Director of Agriculture, neither he could initiate
disciplinary proceedings nor any action could be taken on the disciplinary
proceedings so initiated by an incompetent authority. This contention found
favour with the Tribunal as well as with the High Court. Before us, the
learned counsel for respondent No. 1 submitted that the District
Agriculture Officer was the appointing Authority in the year 1966, when the
respondent No. 1 was appointed, the Director of Agriculture could not have
appointed him. This submission ignores the basic fact that if this order of
appointment was incompetent, in that case the very appointment of
respondent No. 1 goes away. It appears that this is a stand taken before us
for the first time and we have no hesitation to reject this contention. In
terms of Article 311 of the Constitution, no person who is a member of
civil service of the Union or All India Service or civil service of a State
or holds a civil post under the Union or a State, shall be dismissed or
removed by an authority subordinate to that by which he was appointed.
Admittedly, in this case, the Director of Agriculture actually appointed
the respondent No. 1.
This Court in State of M.P. and Ors. v. Shardul Singh, [1970] 1 SCC 108 has
held that Article 311(1) provides that no person who is a member of civil
service of the Union or State shall be dismissed or removed by an authority
subordinate to that by which he was appointed. However, that Article does
not in terms require that the authority is empowered under that provision
to dismiss or remove an official should itself initiate or conduct enquiry
proceeding.
In the case of P. V. Srinivas and Ors. v. Union of India and Ors., [1993] 1
SCC 419 referring to the judgment of this Court in Shardul Singh (supra)
the position is retreated.
In Registrar of Cooperative Societies v. Fernando, [1994] 2 SCC 746,
referring to the two afore-mentioned decisions of this Court, the position
is made clear thus in paragraph 16:-
"It was on the basis of this G.O., on March 20, 1989 the Registrar issued
the charge memo. In this connection, it is worthwhile to refer to a recent
decision of this Court reported in P. V. Srinivasa Sastry v. Controller and
Auditor General. The relevant Observations at pages 1323-24 are as under:-
(SCC pp.422-23, paras 4-5 and 6)
’But Article 311(1) does not say that even the departmental proceeding must
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be initiated only by the appointing authority. However, it is open to Union
of India or a State Government to make any rule prescribing that even the
proceeding against any delinquent officer shall be initiated by an officer
not subordinate to the appointing authority. Any such rule shall not be
inconsistent with Article 311 of the Constitution because it will amount to
providing an additional safeguard or protection to the holder of a civil
post. But in absence of any such rule, this right or guarantee does not
flow from Article 311 of the Constitution.
It need not be pointed out that initiation of a departmental proceeding per
se does not visit the officer concerned with any evil consequences, and the
framers of the Constitution did not consider it necessary to guarantee even
that to holders of civil posts under the Union of India or under the State
Government. At the same time, this will not give right to authorities
having the same rank as that of the officer against whom proceeding is to
be initiated to take a decision whether any such proceeding should be
initiated. In absence of a rule, any superior authority who can be held to
be the controlling authority, can initiate such proceeding.
In the case of State of U.P. v. Shardul Singh, the departmental enquiry had
been initiated against the Sub-Inspector of Police by the Superintendent of
Police, who sent his inquiry report to the Inspector-General, who was the
appointing authority. The Inspector General of Police dismissed the officer
concerned from the service of the State Government. That order was
challenged on the ground that the initiation of the departmental enquiry by
the Superintendent of Police was against the mandate of Article 311(1) of
the Constitution. This contention was accepted by the High Court. But this
Court said:-(SCC p. 112, para 10)
"We are unable to agree with the High Court that the guarantee given under
Article 311 (1) includes within itself a further guarantee that the
disciplinary proceedings resulting in dismissal or removal of a civil
servant should also be initiated and conducted by the authorities mentioned
in that Article.
Although Article 311 of the Constitution does not speak as to who shall
initiate the disciplinary proceedings but, as already stated above, that
can be provided and prescribed by the rules. But if no rules have been
framed, saying as to who shall initiate the departmental proceeding, then
on the basis of Article 311 of the Constitution, it cannot be urged that it
is only the appointing authority and no officer subordinate to such
authority can initiate the departmental proceeding. In the present case, it
was not brought to our notice that any rule prescribed that the Accountant
General, who is the appointing authority alone could have initiated a
departmental proceeding."
Thus, looking to the terms and content of Article 311(1) of the
Constitution, it does not follow that even initiation or conduct of inquiry
proceedings should be by that authority itself, which is empowered to
dismiss or remove an official under the said Article, unless there is an
express rule governing the official requiring it to be so.
We have to take note of one more fact that is the order of dismissal was
passed in 1977. We are told that respondent No. 1 was not reinstated in
service even after the Tribunal passed the order of reinstatement because
of the interim order granted by the High Court as well as by the status quo
order passed by this Court. Even otherwise, having regard to the age of
respondent No. 1 in all probability, the respondent No. 1 would have
attained the age of superannuation by now. Thus, having regard to all
aspects, the impugned judgment cannot be sustained. Hence, it is set aside,
the order of dismissal of respondent No. 1 from service is upheld. Appeal
allowed accordingly. No costs.