SHRI BRAJENDRA SINGH YAMBEM vs. UNION OF INDIA

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8323 OF 2016 (Arising out of SLP(C) No.30907 of 2013) BRAJENDRA SINGH YAMBEM …APPELLANT Versus UNION OF INDIA AND ANR. …RESPONDENTS WITH CIVIL APPEAL NO.8324 OF 2016 (Arising out of SLP(C) No.10092 of 2014) J U D G M E N T JUDGMENT V. GOPALA GOWDA, J. Leave granted. 2. The present appeals arise out of the common impugned judgment and order dated 05.08.2013 passed by the Division Bench of the High Court of Page 1 2 Manipur at Imphal in Writ Appeal Nos. 39 and 40 of 2011, whereby the judgment and order dated

(C) Nos. 904 of 2008 and 264 of 2010 was set aside. 3. The necessary facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder: The appellant was serving as a regular st Commandant of 61 Battalion, CRPF and at the time of incidents, was posted at Mantripukhri, Imphal. He is alleged to be involved in two cases. The JUDGMENT first case, i.e. Civil Appeal arising out of the SLP (C) No. 30907 of 2013 relates to missing of arms and ammunition. The second case, i.e. Civil Appeal arising out of SLP (C) No. 10092 of 2014 relates to the alleged supply of contraband ganja , by 11 CRPF personnel posted in the unit of the appellant. Page 2 3 Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of 7.62

of which the appellant was the commandant went missing. According to the respondents, the loss occurred as a result of the verbal orders issued by the appellant, which action amounted to a violation of Rules 3(1)(i) & (iii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the “CCS (Conduct) Rules, 1964”). 4. On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal sent a letter to JUDGMENT the appellant, directing him to submit a written statement of defence in connection with the said lapse. The relevant portions of the said letter are extracted hereunder: “It has been intimated by IGP, N/ Sector, CRPF that one AK-47 Rifle, 3 Magazines and 90 rounds of 7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. IGP N/Sector Page 3 4

5. Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998, explaining the reasons which resulted in the loss JUDGMENT of the said weapon and ammunition. 6. By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of the conclusion arrived at by the internal Court of Inquiry, issued a warning to the appellant to be more careful and also ordered for a sum of Rs.3,750/- to be recovered from the appellant in Page 4 5 lieu of the lost weapon. 7. Subsequently, on 15.03.1999, the IGP,

the Directorate General had come to the conclusion that the penalty inflicted upon him vide letter dated 24.06.1998 was being withdrawn as the same did not commensurate with the gravity of the offence committed by the appellant in discharge of his official duties. After obtaining approval from the competent authority, major penalty proceedings were initiated and Memorandum of Charges dated 23.06.1999 was issued to the JUDGMENT appellant. Subsequently, pursuant to the Presidential Order dated 14.10.1999, a regular departmental inquiry under Rule 14 of the Central Civil Services (Classification Control & Appeal) Rules, 1965 (hereinafter referred to as the “CCS (CCA) Rules, 1965”) was ordered in connection with the said incident of the loss of AK-47 Rifle Page 5 6 along with its ammunition. 8. Aggrieved of the said action of withdrawal

Petition (C) No. 720 of 2002 before the High Court of Gauhati, Imphal Bench, by questioning the validity of the said Memorandum of Charges dated 15.03.1999 on the ground that it is in violation of the principles of natural justice and is also contrary to the settled position of law. 9. The learned single Judge allowed the Writ JUDGMENT Petition vide judgment and order dated 18.05.2006 by placing reliance on various decisions of this Court on the aspect of principles of natural justice. It was observed that the earlier punishment imposed upon the appellant was withdrawn suo motu by the competent authority by order dated 15.03.1999 without affording him the opportunity of being heard, by passing a non Page 6 7 speaking order. The learned single Judge accordingly set aside the order dated 15.03.1999

24.06.1998 was withdrawn by the IGP-NS. 10. In the meanwhile, the appellant retired from service as a regular Commandant/Police Officer, CRPF on 31.08.2006. 11. The respondent-Union of India preferred Writ Appeal No. 45 of 2006 before the Division Bench of the High Court against the said judgment and order of the learned single Judge. JUDGMENT 12. The Division Bench of the High Court by way of judgment and order dated 07.11.2006 upheld the finding and reasons recorded by the learned single Judge and held that the appellant should have been afforded an opportunity of being heard before the Memorandum of Charges dated 15.03.1999 was issued to him. The Division Bench however, Page 7 8 observed that it was open for the Disciplinary Authority to initiate fresh action in the matter

accordingly dismissed. 13. In pursuance of the liberty granted by the Division Bench to the respondents, a show cause notice dated 02.02.2007 was issued to the appellant, by which he was given time of fifteen days to reply to the same. After considering the reply of the appellant, the DG-CRPF came to the conclusion that it was appropriate to initiate disciplinary proceedings against the appellant JUDGMENT afresh. 14. Accordingly, on 22.08.2008, the respondents issued another Memorandum of Charges to the appellant in pursuance of the sanction accorded by the President of India under Rule 9(2)(b)(i) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the “CCS Page 8 9 (Pension) Rules, 1972”) for initiating departmental inquiry proceedings against him in

Control and Appeal) Rules, 1965 and directed him to submit his written statement of defence to the said Memorandum of charges. The articles of charges framed against the appellant are extracted hereunder: “ Article-I That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning as Commandant 61 Bn CRPF at Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act of misconduct in that he allowed, kote UO to issue arms and ammunitions more than authorization. Thus the said B.S. Yambem, Commandant (Retired) failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Government Servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964. JUDGMENT Article-II Page 9 10

Article-III That the said Shri B.S. Yambem, Commandant(Retired)while posted and functioning as Commandant 61 Bn CRPF, Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act, of misconduct in that he got issued service weapons to undergrounds through No.793020336 LNK Man Bahadur in violation of orders which resulted in missing of one AK-47 Body No. 313422 Butt No. 77, 3 Magazine and 90 rounds. That the said Shri B.S. Yambem, Commandant (Retired) failed to maintain absolute integrity and devotion to the duty and acted in a manner unbecoming of a Govt. Servant and JUDGMENT Page 10 11 thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of the CCS (Conduct)Rules, 1964. Article-IV That the said Shri B.S. Yambem, Comdt. (u/s) while posted and functioning in the aforesaid capacity during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds resulting missing of one AK 47 Body No. 313422 Butt No. 77, 3 Magazines and 90 Rounds. He had hidden the above fact and failed to take appropriate action after missing the service weapon. Thus the said Shri B.S. Yambem, Comdt. (u/s) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.” JUDGMENT 15. Aggrieved of the same, the appellant filed Writ Petition(C) No.904 of 2008 before the High Court of Gauhati, Imphal Bench questioning the issuance of the Memorandum of Charges urging various legal grounds. Page 11 12 16. In the meanwhile, another set of disciplinary proceedings had been initiated

of the unit of the appellant carrying contraband ganja . The allegation against the appellant was that he tried to cover up the same and that the said act of the appellant amounted to a violation of the Rules 3(1)(i),(ii) &(iii) of CCS (Conduct) Rules, 1964. The departmental enquiry was initiated against him on 14.05.1998. Aggrieved of the initiation of disciplinary proceedings in connection with the above alleged misconduct, the JUDGMENT appellant filed W.P. No. 805 of 2005 before the High Court of Gauhati, Imphal Bench. The learned single Judge of the High Court allowed the Writ Petition by way of judgment and order dated 16.06.2006 by the learned single Judge of the High Court. The single Judge, however, granted liberty to the Disciplinary Authority to initiate departmental enquiry afresh against the appellant Page 12 13 after complying with the directions given in the judgment.

before the Division Bench of the High Court questioning the correctness of the same. The Division Bench of the High Court dismissed the said Writ Appeal vide judgment and order 13.11.2008 and upheld the impugned judgment and order of the learned single Judge. Thereafter, the said Memorandum of Charges dated 14.05.1998 was withdrawn by the respondents, and another Memorandum of Charges dated 16.10.2009 was JUDGMENT issued. The Articles of Charges framed against the appellant are extracted as hereunder: “ Article-I That the said Shri B.S. Yambem, Commandant while posted and functioning as Commandant in 61 Bn. CRPF at Mantripukhri, Imphal during August 1995 committed a serious misconduct in that he on 08/08/1995 sent three vehicles, one Asstt. Commandant and 18 other Page 13 14

Article-II That during the aforesaid period and while functioning in the aforesaid Unit in the aforesaid capacity, the said Shri B.S. Yambem committed a serious misconduct in that he fabricated office records to cover illegal dispatch of CRPF vehicles and men out of operational jurisdiction without proper permission or orders of the competent authority and also tried to secure false medical certificates in respect of Officers and men allegedly involved in the illegal transshipment of ganja from civil hospital on coming to know about the detention of his Unit vehicles and men by Central Excise JUDGMENT Page 14 15

Article-III That the said Shri B.S. Yambem, Commandant (under suspension) while posted and functioning as Commandant 61 Bn. CRPF, Mantripukhri, Imphal during August, 1995 committed a serious misconduct in that he suppressed the information of arrival of Shri Ram Singh, Asstt. Comdt (under suspension), 4 Ors. with Civil TATA 608 truck with civilian driver at Bn. HQrs on 15/16-8-95 and kept them hiding at remote Coy location at Mayang, Imphal and shown their arrival at Bn HQrs on 0245 hrs on 17/08/1995 though they were wanted by Central Excise authorities in connection with the seizure of ganja from two trucks of his Unit at Didarganj check-post near Patna on the night of 11/8/1995. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i) (ii) and (iii) of CCS (Conduct) Rules, 1964.” JUDGMENT Page 15 16 18. Aggrieved of the same, the appellant filed Writ Petition(C) No. 264 of 2010 before the High

Writ Petitions, i.e., No. 904 of 2008 (filed against the Memorandum of Charges dated st 22.08.2008-issued in 1 case i.e. Arms case) and Writ Petition No. 264 of 2010 (filed against Memorandum of Charges dated 16.10.2009-issued in nd 2 case i.e. Ganja case), they were heard together and disposed of by the learned single Judge vide common judgment and order dated 01.09.2010. The learned single Judge held that JUDGMENT the Memorandum of Charges in both the cases make it clear that the initiation of disciplinary proceedings against the appellant by the Disciplinary Authority for the alleged incidents which took place more than 10 years earlier was barred by limitation as provided for under Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. Page 16 17 Accordingly, the learned single Judge quashed the Memorandum of Charges dated 22.08.2008 and

20. Aggrieved of the common judgment and order passed by the learned single Judge, the respondents filed Writ Appeal (C) Nos. 39 of 2011 and 40 of 2011 (against Writ Petition No. 904 of 2008 and Writ Petition No. 264 of 2010, respectively) before the Division Bench of the High Court questioning the correctness of the same. JUDGMENT 21. The Division Bench of the High Court after hearing the parties decided the above said Writ Appeals by passing the impugned common judgment and order dated 05.08.2013, observing that once the sanction was obtained by the Disciplinary Authority from the President of India, then the bar of period of limitation of four years as contained in Rule 9(2)(b)(ii) of the CCS Page 17 18 (Pension) Rules, 1972 will not apply. Hence, the proceedings of serving the Memorandum of Charges

9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court, thus, allowed the appeals and set aside the order of the learned single Judge and upheld the decision of the respondents to hold departmental enquiry against the appellant. The Division Bench of the High Court further directed the Enquiry Officer to hold the departmental enquiry strictly in accordance with law without being influenced by JUDGMENT any observation of its order. The respondents were further directed to proceed with the departmental enquiry against the appellant and conclude the same after affording adequate opportunity of hearing to him in the enquiry proceedings. Hence, the present appeals filed by the appellant. Page 18 19 22. Mr. Lenin Singh Hijam, the learned counsel appearing on behalf of the appellant contends

Disciplinary Authority in the year 2008, after long lapse of 13 and 14 years of the occurrence of the alleged incidents in the two cases is violative of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. In support of the same, reliance is placed on the decision of this Court in the case of State of U.P. & Anr. v. Shri 1 Krishna Pandey , wherein it has been held that a government employee cannot be subjected to a JUDGMENT departmental enquiry after his retirement from service for any event or occurrence which took place more than four years prior to the date of the institution of the disciplinary proceedings against an employee. 23. The learned counsel further contends that 1 (1996) 9 SCC 395 Page 19 20 the Division Bench of the High Court has erred in bypassing the CCS (Pension) Rules, 1972 in

action of the disciplinary authority is contrary to the Rules as well as the decision of this Court in the case of Shri Krishna Pandey (supra). 24. The learned counsel further contends that neither the Inspector General of Police (NS-CRPF) nor the Director General, CRPF could have issued the Memorandum of Charges dated 22.08.2008 and 16.10.2009 for initiating fresh departmental enquiry proceedings against the appellant as they JUDGMENT were not the competent authority to do so. It is further contended that the statutory safeguards provided for retired government employees under the CCS (Pension) Rules, 1972 should not have been overlooked by the respondents. 25. The learned counsel further contends that enquiry proceedings that were initiated by the Page 20 21 respondents under Rule 14 of the CCS (CCA) Rules, 1965 in respect of the alleged incident of loss

Subsequently, enquiry proceedings were initiated afresh against the appellant under Rule 9(2)(b) (ii) of CCS (Pension) Rules, 1972. Therefore, the respondents cannot mislead this Court by justifying their action of initiation of the disciplinary proceedings against the appellant on the ground that the second enquiry proceeding which was initiated by them by issuing the Memorandum of Charges was merely a continuation JUDGMENT of the first enquiry proceeding itself, when the same was initiated afresh by the disciplinary authority after obtaining sanction from the President as required under Rules 9(2)(b)(i) after the retirement of the appellant from service and more than four years from the date of the alleged incidents. Page 21 22 26. As far as the case in the Civil Appeal arising out of the SLP (C) No. 10092 of 2014 is

of the appellant in the same. It is contended that there were 11 CRPF personnel who were charge-sheeted and booked in the said case and tried before the District and Sessions Judge, Patna for the alleged offences punishable under the relevant provisions of the NDPS Act. The Trial Court acquitted the said personnel. Further, no departmental enquiry was conducted against them. Strangely, the departmental enquiry JUDGMENT proceedings were initiated only against the appellant and that too, after 13 years of the alleged incident which is in violation of the CCS (Pension) Rules, 1972. The learned counsel further contends that the above departmental enquiry was initiated against the appellant with a mala fide intention to harass him. Page 22 23 27. On the other hand, Mr. P.S. Patwalia, learned Additional Solicitor General appearing on

05.08.2013 passed by the Division Bench of the High Court contending that the High Court was right in allowing the Writ Appeals filed by the respondents and that the same does not suffer from either erroneous reasoning or any error in law which warrants interference by this Court in exercise of its appellate jurisdiction under Article 136 of the Constitution of India. 28. The learned ASG further contends that Rule JUDGMENT 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 cannot come to the rescue of the appellant as the departmental inquiry had already been initiated against the appellant vide letter dated 15.03.1999, while he was still in service. 29. The learned ASG further places reliance on clause (a) of sub-rule 2 of Rule 9 of the CCS Page 23 24 (Pension) Rules, 1972 which reads thus:

Further, reliance is placed by the learned ASG on the decision of this Court in the case of D.V. 2 Kapoor v. Union of India , wherein this Court has held that the proceedings under Rule 9 of the CCS JUDGMENT (Pension) Rules, 1972 can be instituted or continued against a government servant who has retired from service in those cases in which grave misconduct is alleged to have been committed. In the case on hand, prior sanction of the President was obtained by the Disciplinary Authority as required under Rule 9(2)(b)(i) of 2 (1990) 4 SCC 314 Page 24 25 the CCS (Pension) Rules, 1972 for continuing the disciplinary proceedings against the appellant.

3 M.P. v. Dr. Yashwant Trimbak , wherein it was held that personal sanction of the Governor or President is not required and it is sufficient that the sanction be issued by a duly authorized officer and is properly authenticated. No court can look into the validity of such sanction in terms of Articles 77(3) and 166(3) of the Constitution of India. 30. The learned ASG further contends that the JUDGMENT legal principles enunciated by this Court in the case of Shri Krishna Pandey (supra) cannot be relied upon in the instant case, as the factual situations in the two cases are very different from each other. In the case of Shri Krishna Pandey (supra), the concerned officer therein 3 (1996) 2 SCC 305 Page 25 26 retired from service on 31.03.1987 and the proceedings against him were initiated on

embezzlement had taken place four years prior to the date of his retirement and the embezzlement had resulted in pecuniary loss to the State Government. The State Government did not take any action and allowed the officer to escape from the provisions of regulations 351-A of the Civil Services Regulations. It was further observed by this Court in the above case that the decision of this Court did not preclude the Disciplinary JUDGMENT Authority from carrying on with the investigation into the offence and take action thereon. While in the instant case, the appellant retired from service on 31.08.2006 and sanction was accorded by the President of India within 3 years, that is, on 22.8.2008 for conducting departmental enquiry against him, which is within the limit of four years period as prescribed in the said Page 26 27 Rules. Therefore, the learned ASG submits that the facts of the instant case do not attract Rule

institution of the disciplinary proceedings should be considered from the date on which the Memorandum of Charges was issued. The learned ASG further places reliance on the decision of this Court in the case of Union of India v . Kewal 4 Kumar , wherein it was held that the requirement of issuance of the Memorandum of Charges is not necessary to be complied with when decision is taken by the competent Disciplinary Authority to JUDGMENT initiate disciplinary proceedings on the basis of an FIR. Hence, the appellant cannot place reliance on the decision of this Court on the case of Shri Krishna Pandey (supra), when the charges framed against him by the disciplinary authority pertain to a matter as serious as smuggling contraband ganja . 4 AIR 1993 SC 1585 Page 27 28 31. The learned ASG further places reliance on the decisions of this Court in the cases of

6 Sundaram , wherein this Court has held that the High Court while exercising jurisdiction under Article 226 of the Constitution of India should not interfere with the conclusions arrived at by the Disciplinary Authority after holding an enquiry, unless the findings of fact are not supported by any evidence. 32. We have heard the learned counsel appearing JUDGMENT on behalf of both the parties. The following essential questions would arise for our consideration in the case: 1. Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of 5 (1969) 1 SCC 502 6 AIR 1965 SC 1103 Page 28 29 the fact the disciplinary proceedings were initiated more than four years after the alleged incidents?

Since Points 1 and 2 are inter-related, the same are answered together as under: 33. With reference to the aforesaid factual and rival legal contentions urged before this Court, to answer the same, at the outset it would be necessary to refer to the letter dated 20.02.2009 JUDGMENT issued by the DIGP (CR & Vig.) which reads as under: “Directorate General, CRPF (Ministry of Home Affairs) Sub : Department Enquiry Against Shri B.S. Yambem, Commandant (Retd.) ------ A DE was conducted against Shri B.S. Yambem, Commandant on the charges of sending vehicle of his Unit along with men Page 29 30

3. Against the above order, the Department filed W.A. No. 25 of 2007 in the Division Bench which was dismissed by the Hon’ble Court on 13.11.2008 (copy at P/125c/Side). The matter was referred to MOL and the ASG opined that it is not a fit case for filing SLP (copy of relevant notes at P/120c/side). JUDGMENT 4. In view of the above, the judgment dated 16.6.2006 of the Hon’ble Court is required to be implemented now which would require taking the following actions :- (i) Supplying copies of proceedings of the COI and the English translated copies of statements of the witnesses and Page 30 31 documents recorded in Hindi to the petitioner. This would be pre-requisite for starting the DE against the C/O afresh. (ii) Memorandum dated 14.5.1998 will have to be cancelled and DE against the C/O started afresh on the same charges. However, fresh Memorandum would be issued after supplying the C/O with a copy of the COI file and English translation of the statement of witnesses. 5. MHA may therefore like to see the case and convey approval of Competent Authority to take the above actions. Since the Officer has already proceeded on superannuation (while under suspension) w.e.f 31.8.2006, the DE ordered afresh would be under Rule 9(2) of CCS (Pension) Rules, 1972. 6. This has the approval of the DG. (Ranjit Singh) DIGP (CR & Vig) 20.02.2009” JUDGMENT (emphasis laid by this Court) A perusal of the said letter makes it clear that the Disciplinary Authority, following the judgment and order dated 16.06.2006 passed in W.P. No.805 of 2005 by the learned single Judge of the High Court and judgment and order dated Page 31 32 13.08.2008 passed in W.A. No. 25 of 2007 by the Division Bench of the High Court initiated

Rules, 1972 and also sought the sanction of the President of India. Rule 9(2) of the CCS (Pension) Rules, 1972 reads thus: “ 9. Right of President to withhold or withdraw pension- (2) (a) The departmental proceedings re- ferred to in sub-rule (1), if in- stituted while the Government ser- vant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government ser- vant, be deemed to be proceedings under this rule and shall be con- tinued and concluded by the au- thority by which they were com- menced in the same manner as if the Government servant had contin- ued in service : JUDGMENT Provided that where the departmen- tal proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. Page 32 33 (b) The departmental proceedings, if

JUDGMENT that if the disciplinary proceedings are not instituted against the Government servant by the disciplinary authority while he was in service, Page 33 34 then the prior sanction of the President of India is required to institute such proceedings against

which took place more than four years before the institution of such disciplinary proceedings. 34. The learned counsel appearing on behalf of the appellant has rightly placed strong reliance on Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. It is an undisputed fact that the appellant retired from service on 31.08.2006. The learned single Judge of the High Court by way of judgment and order dated 18.05.2006 in Writ Petition No. JUDGMENT 720 of 2002 quashed the disciplinary proceedings in the case pertaining to the missing arms and ammunitions. However, liberty was granted to the Disciplinary Authority/Enquiry Officer to conduct the disciplinary enquiry afresh after supplying the copies of the proceedings of the enquiry to the appellant. The said judgment and order of the Page 34 35 single Judge was challenged by the respondents by way of Writ Appeal No. 45 of 2006, in which the

of the High Court. It was only pursuant to this that the fresh memorandum of charges dated 22.08.2008 was issued to the appellant, which was clearly beyond the period of limitation of four years as provided for under the CCS (Pension) Rules, 1972. Similarly, in the case involving the contraband ganja, the single Judge of the High Court by way of judgment and order dated 16.06.2006 passed in Writ Petition No. 805 of JUDGMENT 2005 quashed the departmental enquiry under the memorandum of charges dated 14.05.1998. The Division Bench dismissed the Writ Appeal No. 25 of 2007 filed by the respondents vide judgment and order dated 13.11.2008 and upheld the order of the learned single Judge. It was pursuant to this that the fresh departmental enquiry was initiated against the appellant on 16.10.2009 Page 35 36 after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension)

against him before the High Court of Gauhati, Imphal Bench in W.P. (C) No. 264 of 2010. The High Court quashed the Memorandum of Charges on the ground that it was issued after four years from the date of the alleged incident. Therefore, it was held that the said action of the Disciplinary Authority in initiating disciplinary proceedings is not valid in law as the same was barred by limitation as per the provision of Rule JUDGMENT 9(2)(b)(ii) of the CCS (Pension) Rules 1972. This important legal aspect of the case was not considered by the Division Bench of the High Court while setting aside the common judgment and order dated 01.09.2010 passed by the learned single Judge in Writ Petition No. 904 of 2008 (arms and ammunitions case) and Writ Petition No. 264 of 2010 (contraband ganja case). Page 36 37 35. It is a well established principle of law that if the manner of doing a particular act is

legal position has been laid down by this Court in the case of Babu Verghese & Ors. v. Bar 7 Council of Kerala & Ors. , the relevant paragraphs of which are extracted hereunder : “31. It is the basic principle of law long settled that if the manner of doing a particular act is pre- scribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: JUDGMENT “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 32. This rule has since been ap- proved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Ra- jasthan . These cases were consid- ered by a three-Judge Bench of this 7 (1999) 3 SCC 422 Page 37 38

The aforesaid important aspect of the case should have been considered by the Division Bench of the High Court instead of mechanically accepting the argument advanced on behalf of the respondents that the case of the appellant squarely falls under Rule 9(2)(b)(i) read with Rule 9 (2)(b)(ii) of CCS (Pension) Rules, 1972. Therefore, the findings recorded by the Division Bench in the JUDGMENT impugned judgment are erroneous in law and are liable to be set aside. 36. The learned ASG appearing on behalf of the respondents contends that the period of limitation of four years as stipulated in 9(2)(b) (ii) of the CCS (Pension) Rules, 1972 does not apply to the facts of the present case for the Page 38 39 reason that the departmental proceedings against the appellant had already been initiated while he

that the proceedings could not be concluded and further disciplinary proceedings were continued after obtaining prior sanction of the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The said contention is untenable both on facts as well as in law. 37. The Division Bench of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and JUDGMENT order dated 07.11.2006 in W.A. (C) No. 45 of 2006 to the Disciplinary Authority to take disciplinary action against the appellant. Thus, there was no need for the respondent Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the Page 39 40 appellant on the same charges by obtaining an order of sanction from the President of India as

High Court in its judgment and order dated 05.08.2013 has completely ignored this important legal aspect of the matter, that the prior sanction accorded by the President under the above said Rules was in fact, barred by limitation. Thus, it has committed serious error in law in arriving at the conclusion that the respondent Disciplinary Authority had obtained due sanction from the President of India to JUDGMENT conduct the departmental proceedings against the appellant for the same charges, which action was barred by limitation as provided under Rule 9(2) (b)(ii) of CCS (Pension) Rules, 1972. Therefore, the impugned judgment and order passed by the Division Bench of the High Court cannot be allowed to sustain in law. Page 40 41 38. The similar question of law came for consideration before this Court in the case of

as under: “6. It would thus be seen that proceed- ings are required to be instituted against a delinquent officer before re- tirement. There is no specific provision allowing the officer to continue in ser- vice nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceed- ings be initiated as a disciplinary mea- sure and the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or derelic- tion of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of pro- ceedings, should not have taken place more than four years before the date of institution of proceedings. In other JUDGMENT Page 41 42 words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of mis- conduct etc. had taken place. Admit- tedly, in this case the officer had re- tired on 31-3-1987 and the proceedings were initiated on 21-4-1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and al- lowed the officer to escape from the provisions of Regulation 351-A of the Regulations. This order does not pre- clude proceeding with the investigation into the offence and taking action thereon.” (emphasis laid by this Court) 39. The judgment of this Court in the case of Dr. Yashwant Trimbak (supra) also does not apply JUDGMENT to the facts of the case on hand. This Court had held in that case that the order of sanction to initiate disciplinary proceedings granted by the Governor cannot be scrutinized by this Court in exercise of its power of judicial review, as the said action comes within the protection of Article 166(2) of the Constitution of India. This Page 42 43 principle of law is not applicable to the present fact situation for the reason that the order of

77(2) of the Constitution which speaks of orders and other instruments made and executed in the name of President of India. The Rules specified under Article 77(3) of the Constitution are rules framed by the President of India for transaction of business of the Government of India. The said constitutional immunity conferred either upon the Governor or President is confined only to the executive action of the appropriate Government. JUDGMENT The order of sanction to be granted by the President of India as provided under Rule 9(2)(b) (i) of the CCS (Pension) Rules, 1972 is for initiation of the disciplinary proceedings against the appellant, which cannot be treated as an executive action of the Government of India. Rather, it is a statutory exercise of power by the President, under Rule 9(2)(b)(i) of the CCS Page 43 44 (Pension) Rules, 1972. The said Rules are framed by the President of India in exercise of

Constitution provides for framing Rules and Regulations for the regulation of recruitment and conditions of service of persons serving under the Union or a State government, and reads as under : “309.Recruitment and conditions of service of persons serving the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: JUDGMENT Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to Page 44 45

Discussing the scope and powers of the President and Governor under Article 309, a Constitution Bench of this Court in the case of 8 B.S Yadav v. State of Haryana , held as under: “……It is in this context that the proviso to Article 309 assumes relevance and importance. The State legislature has the power to pass laws regulating the recruitment and conditions of service of judicial officers of the State. But it was necessary to make a suitable pro vision enabling the exercise of that power until the passing of the law by the legislature on that subject. The Constitution furnishes by its provisions ample evidence that it abhors a vacuum. It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power. The proviso to Article 309 provides, in so far as material, that until the State legislature passes a law on the particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment JUDGMENT 8 AIR 1981 SC 561 Page 45 46 and the conditions of service of the judicial officers of the State. The Governor thus steps in when the legislature does not act. The power, exercised by the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised. It par takes of the characteristics of the legislative, not executive, power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 to promulgate Ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: 'Legislative Power of the Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject.” JUDGMENT Page 46 47 (emphasis laid by this Court) The distinction between the powers under

JUDGMENT 9 AIR 1970 SC 1118 Page 47 48

40. It becomes clear from a perusal of the constitutional provisions and the decisions by constitution benches of this Court referred to supra that the powers under Articles 77(3), 166(3) and 309 operate in completely different fields. It would thus, be clear that the Rules framed in exercise of power under Articles 77(3) and 166(3) cannot be compared while exercising JUDGMENT power under Article 309 of the Constitution and framing rules and regulations for recruitment and conditions of service of persons appointed to such posts either in connection with the affairs of the Union government or a state government. It is for this reason that the statutory exercise of power by the President of India under Rules 9(2) (b)(i) and (ii) of the CCS (Pension) Rules, 1972 Page 48 49 cannot be equated with power exercised under Article 77(2) of the Constitution of India. The

respectively, of the Constitution of India in cases of statutory exercise of power by the President or Governor. In the case of Dr. Yashwant Trimbak (supra), this Court held that the power of judicial review is not available in case of executive exercise of power by the President or the Governor. The said observation made by this Court in the said case is not tenable in law in view of the decision of this JUDGMENT Court in the landmark judgment of His Holiness

10 State of Kerala and Anr. wherein this Court has clearly held that the power of judicial review is part of the basic structure of the Constitution of India. The relevant portion of the judgment is extracted hereunder: 10 (1973) 4 SCC 225 Page 49 50

“The problem to be solved will of- ten be not so much legal as politi- cal, social or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only between Commonwealth and citi- zen but between Commonwealth and in- tervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament.” JUDGMENT There is ample evidence in the Con- stitution itself to indicate that it creates a system of checks and bal- ances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the Page 50 51

The observation made by this Court in the case of Dr. Yashwant Trimbak (supra) to the extent that orders of sanction granted by the Governor are outside the scope of judicial review, is untenable in law. The same is contrary not only JUDGMENT to the law laid down by this Court referred to supra, but also the provisions of Articles 77(2) & 166(2) of the Constitution of India. Therefore, the same has no application to the fact situation for the reason that the President has exercised his statutory power for grant of sanction under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 to initiate the disciplinary action but not the Page 51 52 executive action against the appellant. 41. In the instant case, the action of the

(Pension) Rules, 1972 which is sought to be made by the learned ASG on behalf of the respondents amounts to deprivation of the Fundamental Rights guaranteed to the appellant under Part III of the Constitution of India. Therefore, we have to hold that the disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are JUDGMENT liable to be quashed. Answer to Point No. 3 42. For the aforesaid reasons, we answer the questions of law that arose for consideration of this Court in favour of the appellant. The Division Bench of the High Court erred in allowing the Writ Appeal Nos. 39 and 40 of 2011. Page 52 53 Therefore, the impugned judgment is liable to be set aside and accordingly, set aside.

and set aside the impugned judgment by allowing these appeals, however, having regard to the seriousness of the allegations made against the appellant, in exercise of power of this Court under Article 142 of the Constitution of India, we direct the Disciplinary Authority to continue the disciplinary proceedings and conclude them within six months in accordance with the relevant provisions of law as well as the principles of JUDGMENT natural justice. If the same are not completed within the said time period by the disciplinary authority, the said liberty granted by this Court in this order to the respondents will not ensue to their benefit. 44. The Appeals are partly allowed only to the extent of answering the legal questions framed Page 53 54 and the impugned judgment and order is set aside to that extent with the above liberty given to

…………………………………………………………J. [ANIL R. DAVE] …………………………………………………………J. [V. GOPALA GOWDA] …………………………………………………………J. [C. NAGAPPAN] New Delhi, August 26, 2016 JUDGMENT Page 54 55 ITEM NO.1A-For JUDGMENT COURT NO.8 SECTION XIV

BRAJENDRA SINGH YAMBEM Petitioner(s) VERSUS UNION OF INDIA AND ANR Respondent(s) WITH C.A. No.8324/2016 @ SLP(C) NO.10092/2014 Date : 26/08/2016 These appeals were called on for pronouncement of JUDGMENT today. For Petitioner(s) Ms. Momota Devi Oinam,AOR For Respondent(s) Mr. B. Krishna Prasad,AOR Ms. Sushma Suri,AOR JUDGMENT Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Anil R. Dave, His Lordship and Hon'ble Mr. Justice C. Nagappan. Leave granted. Page 55 56 The appeals are partly allowed in terms of the

(VINOD KUMAR JHA) (MALA KUMARI SHARMA) AR-CUM-PS COURT MASTER (Signed Reportable judgment is placed on the file) JUDGMENT Page 56