Nani Gopal Das v. The Lieutenant Governor And Others

14.02.2022 Court No. 19 Item no.01 CP CALCUTTA HIGH COURT CIRCUIT BENCH AT PORT BLAIR WPA No. 11 of 2022 Shri Nani Gopal Das vs.

The Lieutenant Governor & ors.

(via video conference) Mr. Gopala Binnu Kumar .....for the petitioners.

Mr. Surendra Dube Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Mr. Vidhya Upadhyay ....for the respondents.

The petitioner was initially appointed as a Junior Engineer (Civil) under the Andaman Public Works Department. Thereafter, the petitioner was assigned the duties of the Assistant Engineer (Civil) under the Andaman Public Works Department.

The petitioner was transferred on deputation. The petitioner stated discharging his duties under the Zilla Parishad, North and Middle Andaman. According to the petitioner, he had become an employee of the Zilla Parishad and the Andaman and Nicobar Administration had lost all disciplinary control over him.

The petitioner prays that the disciplinary proceeding which is pending against him and is near conclusion, be set aside.

According to the petitioner, the Zilla Parishad being an autonomous body exclusively retained the power to suspend the petitioner and also initiate disciplinary proceeding against the petitioner in case of any allegation of misconduct. Reliance has been placed on a decision of this court which is annexed to the writ petition being MAT No. 001 of 2011 and MAT No. 002 of 2011, dated January 12, 2011.

Relevant portions of the said judgment are quoted below:

"The Zilla Parishad is a local self government and being an autonomous body, has every control over its employees. The disciplinary actions in respect of the employees of the Zilla Parishad can be taken only by the competent authority of the Zilla Parishad and no one else. The Lieutenant Governor cannot act as the appointing authority in respect of any one of the aforesaid writ petitioners since the two writ petitioners namely Mr. Ramana and Mr.

Oommen were in the regular employment of the Zilla Parishad and Mr. Dakua was serving the said Zilla Parishad as a deputationist.

The Lieutenant Governor should not be unmindful to the fact that the autonomy of the local self government should be respected. The Lieutenant Governor cannot regulate the terms and conditions of service of any employee of the local self government like the Zilla Parishad or initiate any disciplinary proceedings against the employees of the Zilla Parishad including the employees serving the Zilla Parishad as deputationist. The service condition of the employees of the local self government can only be controlled and/or

regulated by the competent authority of the said local self-government and not by any other authority including the Lieutenant Governor of the A & N Administration.

In the present case, unfortunately, the Lieutenant Governor interfered with the rights and/or authorities of the Zilla Parishad to regulate its own employees including the deputationists and thus sought to curtail the power and/or jurisdiction of the competent authority of the Zilla Parishad which is not at all permissible.

The Learned Single Judge, in our opinion, has rightly considered all the issues raised in the writ petition and granted relief to the writ petitioners quashing the orders of suspension issued by the Lieutenant Governor.

We do not find any infirmity and/or illegality and/or irregularity in the impugned decisions of the Learned Single Judge and therefore, we affirm the impugned judgment and order under appeal passed by the Learned Single Judge upon dismissing all the appeals without awarding any costs.

Urgent Xerox certified copy of this order, if applied for, be made available to the learned counsel appearing for the parties upon compliance of usual formalities."

The facts of the case are that the petitioner was suspended by the order of the Lieutenant Governor, issued on August 27, 2019 for alleged misconduct. Disciplinary proceeding was initiated. A charge-sheet was served upon the petitioner dated June 22, 2020. Allegations are of acceptance of bribe from the contractors, exhibition of lack of absolute integrity and devotion towards duty as also acting in a manner unbecoming of a government servant. The authorities proceeded against the petitioner under the provisions of Rule 3(1) (i) (ii) & (iii) of the Central

Civil Services (Conduct) Rules, 1964. A criminal case for alleged offences under the penal code on the selfsame charges is pending against the petitioner. The disciplinary proceedings progressed to a considerable extent.

The petitioner filed a writ petition before this court which was registered as WP No. 011 of 2021, on the ground that the disciplinary proceedings could not proceed without allowing the petitioner inspection of the documents relied upon by the disciplinary authority. This court disposed of the writ petition on February 19, 2021 directing the inquiry officer to give an inspection of all the original documents within a fortnight to the petitioner and the disciplinary proceeding was directed to be continued.

The court granted liberty to the disciplinary authority to pass the final order insofar as the disciplinary proceeding was concerned, but directed that the said order shall be kept in abeyance till the disposal of the pending criminal case. Challenging the aforementioned order, the Andaman and Nicobar Administration preferred an appeal which was registered as MA/7/2021. A Division Bench of this court on November 8, 2021, passed an order directing that the employer shall be entitled to not only to pass the final order in the

disciplinary proceeding but shall also be entitled to give effect to the said order, notwithstanding the pendency of the criminal case. Reliance was placed on a decision of the Hon'ble Apex Court in the matter of Captain M. Paul Anthony Vs Bharat Gold Mines and another reported in (1999) 3 SCC 679.

The disciplinary proceeding proceeded as per the directions of this court. The Divisional Bench held that the disciplinary proceeding would not only be reached to its logical conclusion, but the order should also be implemented despite there being a criminal case against the petitioner.

It is also relevant to point out that the petitioner was arrested during the investigation of the criminal case and, subsequently, enlarged on bail.

Mr. Kumar, learned advocate appearing on behalf of the petitioner, places reliance on Rule 20 of the CCS (CCA) Rules, 1965 (hereinafter referred to as 'the said Rules'), and submits that the borrowing department was the only authority to exercise power as the disciplinary authority and the lending department, i.e., the Andaman and Nicobar Administration did not have any authority to do so. Reliance has been placed on the judgment of this

court. Relevant paragraphs of the same are quoted below: - "In the instant case, Mr.

Dakua was undisputedly serving in Zilla Parishad at the relevant time and therefore, the Zilla Parishad had the power of the appointing authority for the purpose of placing the said Mr. Dakua under suspension. The Lieutenant Governor, in our opinion, had no power and/or authority and/or jurisdiction to issue the order of suspension in respect of Mr. Dakua while he was serving the Zilla Parishad to the post of Assistant Engineer, Rule 20 of the CCS(CCA) Rules of 1965 does not empower the Lieutenant Governor to issue order of suspension in respect of a deputation while serving an autonomous body like Zilla Parishad."

In the said decision it was held that in case of one such person who was on deputation, the Zilla Parishad would be the appropriate authority and not the Andaman and Nicobar Administration.

According to Mr. Kumar, the decision of the Hon'ble Division Bench referred to hereinabove squarely applies in the case of the petitioner. Mr. Chakraborty, learned advocate appearing on behalf of the Andaman and Nicobar Administration, submits that Rule 20 of the said Rules was an enabling provision allowing the borrowing department to initiate the disciplinary proceedings upon informing the lending authority and also upon taking the approval of the lending authority before a final order was passed. According

to him, it was an enabling provision allowing the borrowing department to deal with employees who were on deputation, but the same did not take away the power of the lending authority to initiate disciplinary proceeding against the petitioner who continued to be an employee of the Andaman and Nicobar Administration.

He refers to the decisions of this court in the earlier writ petition as also in the appeal which have been discussed hereinabove and submits that the petitioner cannot re-agitate the question of powers of the disciplinary proceeding at this stage, when these points were not raised by the petitioner in the first round of litigation before this court. He further submits that the petitioner has participated in the disciplinary proceeding and the disciplinary proceeding is at the verge of completion. Just to stall the result of such proceeding, the writ petition has been filed on frivolous grounds.

Heard the parties.

The question as to whether the lending department retains the right to proceed against the employee even if he is on deputation, has been settled by the Hon'ble Apex Court's in various decision. In the decision of Nisha Priya Bhatia vs.

Union of India reported in (2020) 13 SCC 56, the Apex Court held as follows:

"39. A deputationist is an employee who has been assigned to another department from his/her parent department. The law regarding employees on deputation is well settled. As regards the matter of disciplinary control, this Court, in State of U.P. & ors. vs. Ram Naresh Lal has observed that a deputationist continues to be governed by the rules of his/her parent department and is deemed to be under the disciplinary control of his/her parent department unless absorbed permanently in the transferee department. In Kunal Nanda vs. Union of India & anr., it was further observed that the basic principle underlying deputation is that the person concerned can always and at any time be repatriated back to his parent department.

By sending back the person to his parent department, any adverse effect on the Organisation (R&AW) including of reasons of security would be averted. Therefore, a deputationist stands on an altogether different footing than a direct recruit of the Organisation/Department who is exposed as an intelligence officer or his/her becoming unemployable in the Organisation for reasons of security. A deputationist can be repatriated back to his/her parent department and in cases of misconduct, necessary action can also be initiated against him/her as per the conditions of service governing his/her parent department. In that sense, a deputationist and a direct recruit are not stricto sensu similarly placed and thus the plea of differential treatment meted out to them is unavailable. It would not entail discrimination nor be violative of Article 14.

Accordingly, we must negate the challenge to constitutional validity of Rule 135."

The decision of the Hon'ble Division Bench relied upon by the petitioner has not discussed the Rules on the basis of which such order was passed. Nor has the proposition of law as laid down by

different judicial authorities in this regard taken note of. With due respect, the said judgment was given per incuriam. The said judgment cannot be a binding precedent.

Three writ petitions were disposed of. Out of which it appears that two of the writ petitioners before the Hon'ble Division Bench were already absorbed permanently in the Zilla Parishad. The facts with regard to R. K. Dakua (MAT 002 of 2011) it is submitted are more or less similar to that of the petitioner herein. But in the absence of any discussion on the facts and the decisions rendered by the Court of law, this Court is bound to follow the decisions of the Hon'ble Apex Court which have the settled the question and have been holding the field for a considerable period of time.

In the matter of Siddharam Satlingappa Mhetre v. State of Maharashtra (Criminal Appeal No. 2271 of 2010 (Arising out of SLP (Crl.) No. 7615 of 2009)) The Hon'ble Apex Court explained the concept of "per incuriam" as:- "139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided

and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."

In Halsbury's Laws of England (4th Edn.) Vol. 26: per incuriam has been elucidated as under: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300."

It is now well settled that if a decision has been rendered without taking into account the statutory provision or binding authorities, such a decision cannot be considered to be a binding precedent. In the matter of Shah Faesal v. Union of India, (2020) 4 SCC 1 The Hon'ble Apex Court held as follows:

"28. The rule of per incuriam has been developed as an exception to the doctrine of judicial precedent.

Literally, it means a judgment passed in ignorance of a relevant statute or any other binding authority [see Young v. Bristol Aeroplane Co.

Ltd. [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)] ]. The aforesaid rule is well elucidated in Halsbury's Laws of England in the following manner [ 3rd Edn., Vol. 22, Para 1687, pp. 799-800.] :

'1687. ... the court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the

case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords'."

Rule 20 of the said Rules enables the borrowing department to initiate disciplinary proceeding against a deputationist. The borrowing authority is required to inform the department which lent the services of government servant, if the borrowing authority suspends the said employee. Rule 20(1) and 21(2) deals with the power to impose penalty. If the penalty proposed to be imposed was major, the power to impose such penalty would lie only with the lending authority. If the borrowing authority considered that a major punishment was called for, after completion of the enquiry, the person concerned was to be reverted to the lending authority for such action. In the case of punishments other than major punishments, the borrowing authority could impose those punishments. The only limitation being that the lending authority should be consulted before imposing any penalty. These being the provisions of the Rules, the interpretation of Rule 20 and 21 of the said Rules of 1965 by the petitioner that the power and the disciplinary control of the

lending authority, was taken away by the said Rules, cannot be accepted.

The interpretation of the Rules would be that both the lending authority and the borrowing authority could initiate disciplinary proceedings subject to the condition that the borrowing authority would have to give information and take the approval of the lending authority as per the Rules. In the matter of Khemi Ram v. State of Punjab, reported in (1976) 3 SCC 699, the Hon'ble Apex Court held that while a officer was on deputation, the parent organization would still have the power to initiate disciplinary proceeding against the said employee. Moreover, in this case, another Hon'ble Division Bench of this court has already directed that the employer, Andaman and Nicobar Administration would be at liberty to conclude the disciplinary proceeding and pass necessary order and implement the same, irrespective of the pendency of the criminal proceeding.

This court is not in a position to interfere with or pass any order which would amount to either vacating or modifying or supplementing the order already passed by the Hon'ble Division Bench in MA 7 of 2021. The petitioner was a party to the

proceedings and these points, though available to the petitioner were not agitated.

Thus, the writ petition does not merit any consideration and the same is disposed of without orders.

It goes without saying that as there is a provision of appeal under the Rules, the petitioner will be at liberty to challenge the final order, if aggrieved, before the appellate authority, on all points, including the point of jurisdiction of the disciplinary authority.

There shall be no order as to costs.

Parties are to act on the server copy of this order.

(Shampa Sarkar, J.)