The Lieutenant Governor And Others v. P. Hussain And Others
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA AND THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE WP.CT/187/2021 The Lieutenant Governor and others ... Petitioners VS.
P.Hussain and others ... Respondents For the petitioners : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal For the respondents : Mr. Gopala Binnu Kumar Heard on : August 23, 2022 Judgment on : August 26, 2022 MOUSHUMI BHATTACHARYA, J.
1.
The petition arises out of an order dated 29th January 2021 passed by the Central Administrative Tribunal (CAT), Kolkata Bench, in two Original Applications filed by one Md. Sabib and P. Hussain. 2.
P. Hussain is the respondent before us since Md. Sabib was subsequently exonerated all the charges framed against him by a Speaking Order dated 27th May 2021 of the Directorate of Health Services (DHS), Andaman & Nicobar Administration. The petitioners
are the Administrator including the Principal Secretary (Health) and the Directorate of Health Services.
3.
By the impugned order, the Tribunal quashed the chargesheet and all consequential orders passed against the respondent P. Hussain and remanded the matter to the Disciplinary Authority to act in accordance with law.
4.
P. Hussain was working as a Driver in G. B. Pant Hospital, Port Blair and filed the Original Application for quashing an Office Order dated 3rd September 2019 as well as for quashing the Memorandum of Chargesheet dated 24th April 2018 and a Minor Penalty Order dated 31st July 2018 by which the petitioner's increments were withheld. The issue which was considered by the Tribunal and is before us is whether Dr. S.P. Burma, was competent to initiate disciplinary proceeding against the respondent at a time when Dr. Burma held additional charge of current duties of the Director of Health Service. 5.
The records show that a disciplinary proceeding against the respondent was initiated by an order dated 16th April 2018 and the respondent was placed under suspension with immediate effect. A memorandum of 24th April 2018 proposed an inquiry against the respondent and charges were framed in April 2018. An appeal filed by the respondent under Rule 23 of The Central Civil Services (Classification, Control & Appeal) Rules, 1965 (CCS (CCA) Rules) was preferred by the respondent against the order of suspension and issue
of chargesheet and by an order dated 3rd September 2019, the appeal was dismissed by the Principal Secretary (Health). 6.
Learned counsel appearing for the petitioners/Administration submits that the said Dr. S. P. Burma had the power to initiate disciplinary proceeding against the respondent as Dr. Burma was holding additional charge of the post of Director of Health Service. Counsel relies on Rule 13 of the CCS(CCA) Rules to submit that express delegation for initiation of disciplinary proceedings or imposition of penalties is not required and that the DHS is the Disciplinary Authority in the present case. Counsel also relies Rule 12
(3) (b) of the CCS (CCA) Rules also in this regard. 7.
Learned counsel appearing for the respondent P. Hussain relies on the Office Order enclosed in the affidavit-in-opposition to urge that Dr. S.P. Burma, DHS on additional charge did not have any statutory, financial or administrative power delegated to him to initiate any disciplinary proceeding or impose punishment on the respondent. Counsel further submits that the order dated 19th January 2018 by which Dr. S.P. Burma was assigned the additional charge of DHS was without any extra remuneration. Counsel also takes the point of the respondent being discriminated against as Md. Sabib was exonerated of all the charges by an order dated 27th May 2021 despite being on a similar footing with the respondent before us. 8.
The entire controversy before the Court is whether Dr. S.P. Burma, holding additional charge of the DHS as on the date of
initiation of disciplinary proceeding against the respondent, was competent to take the aforesaid step or was competent to impose the penalty of suspension against the respondent. 9.
The Central Civil Services (Classification, Control & Appeal) Rules, 1965 provides the answer to the issue raised before the Court. 10.
Rule 12 - "Disciplinary Authority" - provides that the President may impose any of the penalties specified in Rule 11 on any Government servant. Rule 12 (2) is an exception to 12 (1) but subject to 12 (4) and provides that any of the penalties in Rule 11 may be imposed on (a) member of a Central Civil Service other than the General Central Service, by the Appointing Authority or the authority specified in the Schedule or by any other authority empowered in this behalf by a general or special order of the President. (underlined for emphasis) 11.
Rule 12 (2) (b) contemplates situations where a general or special order of the President has not been made. In that case, the penalties under Rule 11 may be imposed by the Appointing Authority or the authority specified in the Schedule.
12.
Rule 12 (1) and (2) make it clear that penalty under Rule 11 may either be imposed by the President or by the Appointing Authority or the authority specified in the Schedule or by any other authority empowered in this behalf by a general or special order of the President. In the absence of such order, the Appointing Authority or
the authority specified in the Schedule will have the power to impose the penalties specified in Rule 11.
13.
Rule 12 (3) (b) relied on by counsel appearing for the petitioners/Administration is not applicable in the present case since Sub-Clause (b) provides that the "Head of that Office" will have the power to impose the penalties under Rule 11 except where the Head of Office is lower in rank than the authority competent to impose the penalty under Rule 12 (2).
14.
The expression "Head of the Office" has been defined under Rule 2 (j) as the authority declared to be the Head of Officer under the General Financial Rules. The General Financial Rules, 2017 under Rule 2 (xviii) defines "Head of Office" as a Gazetted Officer declared by the relevant Rules or any other authority declared as such by any general or special orders of the competent authority. The petitioner has not placed any declaration/order in this regard. 15.
In any event, Rule 12 (3) (b) is not applicable since the Head of Office is admittedly lower in rank than the Appointing Authority or the authority specified in the Schedule under Rule 12 (2). The relevant entry in the Schedule indicates that the authority must be the Head of Office or specified by the Administrator. It is nobody's case that Dr. Burma who was holding the additional charge of DHS was superior in rank to either the appointing authority or the authority specified in the schedule under Rule 12 (2) (a).
16.
As stated above, the relevant sub-rules to Rule 12 contain a specific requirement of the authority being empowered by a general or special order of the President for imposing any of the penalties specified in the Rule 11. The President in this case is the Lieutenant Governor of the Islands. There is no document on record to show that Dr. Burma was empowered to impose the penalties in Rule 11 by a general or special order of the Lieutenant Governor. 17.
Sub-Rule (1) of Rule 13 - "Authority to institute proceedings" provides that the President or any other authority empowered by him by general or special order may institute disciplinary proceeding against any government servant. Rule 13 (2) provides that a Disciplinary Authority competent under the Rules may impose any of the penalties and institute disciplinary proceedings against a government servant notwithstanding the fact that such Disciplinary Authority is not competent under these Rule to impose any of the penalties under Rule 11 clauses (v) - (ix). Rule 13(2) would also not come to the assistance of the petitioner since the underlying requirement is of competence of the Disciplinary Authority to impose any of the penalties specified in clauses (i)-(iv) of Rule 11. As discussed above, Dr.
Burma admittedly lacked the competence to impose any of the penalties specified in Rule 11 as he was neither the President nor the Appointing Authority or even the authority specified in the schedule and was also not empowered by a general or special order of the President to impose penalties on the respondent as on the relevant date.
under Rule 11, it follows that he also did not have the authority to institute disciplinary proceedings as provide under Rule 13 (2). 18.
The above discussion leads to the inescapable conclusion that Dr. Burma did not have the competence or the power to institute disciplinary proceedings against the respondent or impose any penalty on the respondent. We therefore concur with the decision taken by the Tribunal in quashing the chargesheet and all consequential orders passed by Dr. Burma against the respondent.
19.
There is another aspect of the matter which is required to be considered. F. R. 49 (iii) provides that a government servant who is formally appointed to hold charge of another post shall be allowed the pay of the higher post or of the highest post if he hold charges of more than two posts in addition to 10 % of the presumptive pay of the additional post/posts if the additional charge hold for more than 45 days but not exceeding three months. The proviso to F.R. 49 (iii) is important; the concurrence of the Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of three months, if it is considered necessary that the government servant should hold charge of another post for a period exceeding three months. In the present case, the order dated 19th January 2018 makes it clear that Dr. S.P. Burma was assigned the additional charge of DHS without any extra remuneration. Read together, it is to be presumed that the additional charge held by Dr. Burma did not have any consequent benefit of additional pay.
20.
We also agree with the issue of discrimination raised on behalf of the respondent. The other party before the Tribunal, Md. Sabib was exonerated from all charges by an order dated 27th May 2021 by reason of a report submitted by the CBI stating that there was no evidence against Md. Sabib. It is therefore clear that the petitioner acted solely on the basis of the CBI report and exonerated Md. Sabib who was evidently on the same footing as the respondent before us. This leaves us with the firm conclusion that the absence of a clean report in a criminal proceeding cannot be the sole ground for continuing the proceeding against the respondent. The petitioners have made a differentiation between similarly-situated persons without any credible ground and particularly without the support of the governing Rules.
21.
Although it is arguable whether Union of India vs. Udayan Samaddar would strictly apply to the present case since the said decision dealt with a claim to additional remuneration for holding additional charge, we agree with the conclusion arrived at by the Tribunal. The full Bench decision of the Madras High Court in A. Savariar Vs. Secretary, Tamil Nadu Service Commission is also not applicable in the present case since the issue before the Court was whether the Officer-Incharge of a post is vested with the power to perform the statutory powers and duties of such post.
22.
We have considered the import of the relevant Rules of the CCS (CCA) Rules, 1965 and base are views, as expressed above, on the said Rules.
23.
WPCT/187/2021 is accordingly dismissed as we find the impugned order of the Central Administrative Tribunal dated 29th January 2021 to be correct in terms of the law on the subject read together with the relevant facts.
( Moushumi Bhattacharya, J.) 24.
I agree ( Ajoy Kumar Mukherjee, J.)