TaxTMI 
TaxTMI 
2010 (4) TMI 963
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....he Disciplinary Authority to conduct the inquiry afresh from the stage of nomination of the inquiry officer. 5. A simple but question of some significance under service jurisprudence falls for consideration in the present appeals, whether or not under the relevant Rules and provisions of the Act, the Railway Authorities have the jurisdiction to appoint a retired employee of the Department as 'Inquiry Officer' within the ambit of Rule 9(2) of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short referred to as 'the Rules'). 6. The facts necessary for dealing with this batch of appeals can be summarily stated. The respondents in all these appeals are the members in service of the Railway Establishment. Alok Kumar, respondent in SLP (C) No. 25293 of 2008, is a Group-A officer, while in all other appeals the respondents are from clerical cadre of the Railway Department. This is primarily the only distinguishing feature in the facts of the present appeals. The High Court as well as the Tribunal in all these cases recorded the finding that a retired officer of the Railways cannot be appointed as an inquiry officer within the meaning of the provisions of Rule 9 of the Rules.....
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....ejected the same vide Order dated 18th July, 2005. Since the respondent could not get any relief, he filed an Original Application No. 458 of 2006 before the Tribunal against the orders of the Disciplinary Authority and the Appellate Authority. Different points were raised in the application by the respondent, however finally only two issues were raised before the Tribunal which were noticed in paragraph 6 of its judgment as under:- "(a)Whether, CVC's advice should be made available to the defender and (b)Whether a retired person can be appointed as inquiry officer." 11. The Tribunal while noticing the provisions of Rule 9 (2) of the Rules took the view that the Disciplinary Authority, with an intention to examine the truth of any imputation of misconduct or misbehavior against the Railway servant, can conduct an inquiry itself or appoint a Board of Inquiry or other authority under the Rules. However, it held that even on the strength of the Circular relied upon by the present appellants issued by the Railways, empowering them to prepare a panel of retired officers to be nominated as inquiry officers; the appellants have no authority to appoi....
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....isions, we may also notice that a different view was taken by the Bench of Guwahati High Court in the case of Kendriya Vidyala Sangthan v. Vijay Bhatnagar, Writ Petition No. 6795 of 2005 than the view taken by the Allahabad High Court, Lucknow Bench, in the impugned judgment. The Bench of Guwahati High Court while dealing with Rule 14 (2) of the CCS Rules had set aside the judgment of the Tribunal and held that a retired person could be appointed as Inquiry Officer which judgment is heavily relied upon by the appellants before us. DISCUSSION ON LAW 16. During the British regime some of the persons holding high positions, in the governance of the Indian Dominion were found to be acting as autocrat. Their behaviour as public servants became a cause of concern for the Government. In order to have a check on this, a Bill was introduced in the Legislature on 1st November, 1850. By Act 1 of 1897 it was enacted as 'The Public Servants (Inquiries) Act, 1850'. This Act was enacted with an object to amend the law of regulating inquiries into behaviour of public servants, not removable (from their appointments) without the sanction of the Government and to make the same uniform throughout t....
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....ervice of the Government, who cannot be removed from his appointment without its sanction. Such an inquiry could be conducted by a Board or other authority to which the said Officer is subordinate or any other person or persons to be specifically appointed by the Government. However, in terms of Section 4, the Government, where it thinks fit to conduct the prosecution, shall nominate some person to conduct the same on its behalf. Under this Section, the prosecution has to be completed in terms of the provisions of the Act by the persons so appointed or the Commissions so appointed. In other words, inquiry or prosecution has to be conducted strictly in consonance with these provisions. The scope of applicability of this Act cannot be enlarged and it must be construed somewhat narrowly and the persons who are not specifically covered under the provisions of this Act cannot be included by implication or exemption. It is a settled rule of interpretation that where the legislature in its wisdom has made an Act applicable to a particular class of persons, there it will be impossible to construe it in a manner so as to enlarge the scope of its applicability. The provisions afore-referred ....
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....placed under suspension but also the authority which can pass such orders as well as the authority which shall be the appellate authority for dealing with the grievances raised by the delinquent officer/official. It may be noticed that Schedule 1 deals with a class of non-gazetted railway servants including Grade-B non-gazetted officers/officials. Schedule-II deals with different grades of railway officers and senior supervisors of non-gazetted staff. Schedule III spells out the class of railway servants covered, authority empowered to place a railway servant under suspension or impose penalty and its nature as well as the appellate authority. Railway servants of Grade-A and Grade-B are dealt with under this Schedule and the President is vested with full powers. Where the orders are passed by the Railway Board, the appeal lies to the President. The penalties that can be imposed upon a delinquent officer/official for good and sufficient reasons have been spelt out in Rule 6, for which a disciplinary authority has been specified under Rule 7. While Rule 8 deals with authority to institute the proceedings, there is Rule 9 which falls under Part IV of these Rules, which provides the pr....
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....ciplinary authority, enabling it to hold the inquiry itself or get the truth of imputations inquired by any 'other authority' in terms of the Rule. It will be appropriate to read Rule 9(1) and 9(2) together but cautiously. Rule 9(1) starts with a negative language putting an embargo on passing of an order imposing penalties as specified under clause 5 to clause 9 of Rule 6, major penalties can be imposed except after an inquiry held. The inquiry contemplated can be held as per the procedure spelt out in Rule 9 and Rule 10 of these Rules. The other mode of holding an inquiry is in the manner provided by the Public Service Inquiries Act, 1850, when such inquiries are held under that Act. The language of Rule 9 of the Rules, therefore, clearly demonstrates that the Rules and the Act are neither interdependent nor convey a legislative intent that a departmental inquiry has to be held under both collectively or at the discretion of the disciplinary authority. We have already clarified it above, that the provisions of the Act are applicable to a very limited class of persons i.e., the officers who are removable or liable to be dismissed from service only with the sanction of the Governm....
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....njunction with other words in the Rules as well as the Act. In absence of any specific definition or meaning we have to rely upon understanding of this expression in common parlance. In common parlance, the word 'authority' is understood to be, power to exercise and perform certain duties or functions in accordance with law. Authority may vest in an individual or a person by itself or even as a delegatee. It is the right to exercise power or permission to exercise power. Such permission or right could be vested in an individual or a body. It can also be in conferment of power by one person to another. This expression has been used differently in different statutes and can be given a different meaning or connotation depending upon the context in which it is used. The purpose and object of using such expression should be understood from the provisions of the relevant law and the purpose sought to be achieved. The word 'authority' is derived from the latin word auctoritas, meaning intention, advice, opinion, influence or command which originate from an auctor, indicating that authority originates from a master, leader or author, and essentially is imposed by superior upon inferior ei....
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.... and of parents over children ; the authority of an agent to act for his principal. An authority is general when it extends to all acts, or all connected with a particular employment, and special when confirmed to a single act. "Authority, is nothing but a power to do something; it is sometimes given by word, and sometimes by writing; also it is by writ, warrant, commission, letter of attorney & c. and sometimes by law. The authority that is given must be to do a thing lawful: for if it be for the doing anything against law, as to beat a man, take away his goods, or disseise him of his lands this will not be a good authority to justify him that doth it.: "Authority (In contracts) the lawful delegation of power by one person to another. Authority (In administrative law) is a body having jurisdiction in certain matters of a public nature. Authority. Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction. Often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another. Power of agen....
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....onducting a departmental inquiry. It is a settled principle of interpretation that exclusion must either be specifically provided or the language of the rule should be such that it definitely follows by necessary implication. The words of the rule, therefore, should be explicit or the intent should be irresistibly expressed for exclusion. If it was so intended, the framers of the rule could simply use the expression like 'public servant in office' or 'an authority in office'. Absence of such specific language exhibits the mind of the framers that they never intended to restrict the scope of 'other authority' by limiting it to the serving officers/officials. The principle of necessary implication further requires that the exclusion should be an irresistible conclusion and should also be in conformity with the purpose and object of the rule. 27. The learned counsel appearing for the respondents wanted us to accept the argument that provisions of Rule 9 (2) have an implicit exclusion in its language and exclusion is absolute. That is to say, the framers have excluded appointment of former employees of Railway Department as other authority (inquiry officer) under these provisions. We....
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....23 (b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that public servant should be understood in its common parlance and a retired officer would not fall within the meaning of public servant, as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9 (2) as well as Section 3 of the Act have used a very different expression i.e. 'other authority' and 'person/persons'. In other words, the absence of the word public servant of the Government is conspicuous by its very absence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the common parlance. Another factor which we may notice is that the definition of the public servant appearing in the Indian Penal Code (for short 'the Code'), reliance upon which was placed by the respondents, was not brought to the notice of the Court while dealing with the case of Ravi Malik (supra). In terms of Section 21 of the Code a public servant denotes a person falling under any of the descriptions stated in the provisi....
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....essary to empanel certain retired senior-scale and JA Grade officers who would be relatively free to undertake the inquiries. This further led to the criteria of eligibility, remuneration and the work expected to be performed by the former employees to be appointed as inquiry officers. Again a circular is stated to have been issued on 16th October, 2008 on the same lines and taking a view that the former employees could be appointed as inquiry officers. Of course, the circular of 2008 may not be of great relevancy before us as the charge sheet was served upon the delinquent officer/official much prior to the implementation of this circular. However, the circular of 1998 is relevant. 30. The contention raised before us is that the circular issued by the appellants is in contradiction to the language of Rule 9(2). It is a settled rule that a circular cannot supersede the provisions of the Rules and thus appointment of the former employees of the railway department as inquiry officer is impermissible and the appellants had no jurisdiction to issue such circular. On the other hand, it is contended on behalf of the appellant, that special instructions can be issued by the department fo....
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.... manner which would take away the discretion contemplated under the Rule. Rather it would be appropriate to adopt an interpretation which would further the object of such rule. In the case of Virpal Singh Chauhan (supra), this Court was concerned with the circular/letters providing for reservation in favour of SC & ST and their operation on the subject of seniority as between reserved and general category candidates. Certain instructions had been issued and after perusing the facts of that case this Court took the view that, the Railway Board circulars which are provided specifically for such a situation and are not being violative of the constitutional provisions, should prevail and given effect to. In that case also it was not brought to the notice of the Court that the letter/circular was in any way inconsistent with the provisions of any law, as in the present case the respondents have failed to demonstrate that the circular issued is in conflict with or opposed to any specific rule enacted under proviso to Article 309 of the Constitution or any other constitutional protection. Once there is no conflict, then the Rule and the circular should be harmoniously read. 32. Another i....
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....submitting that the expression "other authority" would have to be read ejusdem generis to the earlier part of Rule 9 (2) and that they must take colour from the earlier part of the Rule. While reliance is placed upon the judgment of this Court in the case of Commissioner of Income Tax, Udaipur, Rajasthan Vs. Mcdowell and Company Limited [2009 (10) SCC 755] to contend that the Rules and the provisions of the Act contemplate 'other authority' only as the persons in service. We are not impressed with either of these submissions. Firstly, the general rule stated in the case of Mcdowell and Company (supra) is a matter relating to fiscal laws, the interpretation of which is controlled by the rule of strict construction. We have already discussed at some length that it is not possible for this Court to apply the rule of strict construction to the provisions in question before us. Applicability of such doctrine to the rules of procedure under the service jurisprudence can hardly be justified. 35. The rule of ejusdem generis is applied where the words or language of which in a section is in continuation and where the general words are followed by specific words that relates to a specific ....
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....even a former employee could be appointed so. 38. It will be useful to apply the rule of contextual interpretation to the provisions of Rule 9. It would not be permissible to import any meaning or make additions to the plain and simple language of Rule 9(2) in relation to "other authority." The rule of contextual interpretation requires that the court should examine every word of statute in its context, while keeping in mind the preamble of the statute, other provisions thereof, pari material statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries. It is also a well established and cardinal principle of construction that when the rules and regulations have been framed dealing with different aspects of the service of the employees, the Courts would attempt to make a harmonious construction and try to save the provision, not strike it down rendering the provision ineffective. The Court would normally adopt an interpretation which is in line with the purpose of such regulations. The rule of contextual interpretation can be purposefully applied to the language of Rule 9 (2), particularly to examine th....
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....the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised." 42. A practice adopted for a considerable time, which is not violative of the Constitution or otherwise bad in law or against public policy can be termed good in law as well. It is a settled principle of law, that practice adopted and followed in the past and within the knowledge of the public at large, can legitimately be treated as good practice acceptable in law. What has been part of the general functioning of the authority concerned can safely be adopted as good practice, particularly, when such practices are clarificatory in nature and have been consistently implemented by the concerned authority, unless it is in conflict with the statutory provisions or principal document. A practice which is uniformly applied and is in the larger public interest may i....
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....ncluded that the case was akin to the referred judgment and the notes of the CVC should have been furnished and thus set aside the order of punishment. It will be useful to refer to the reason and conclusion recorded by the Tribunal in its order. There are only two paragraphs i.e., Paragraph Nos. 17 and 18 of the Tribunal's judgment which have been recorded in this regard: "17. We are of the opinion that this case is akin to the two cases mentioned above as far as the non supply of CVC's advise is concerned. 18. If the advise of the Central Vigilance Commission has been considered during the course of the disciplinary proceedings, the same should have been supplied to the delinquent official if asked for at appropriate time. In very special cases, such request may not be considered, but in such situations, the competent authority should have recorded the reasons for not supplying such documents." 47. The High Court has really not dealt with this issue in any further elaboration, except affirming the order of the Tribunal. The High Court mainly considered the arguments founded on the interpretation of Rule 9(2). The rea....
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....respondent because of the alleged non-supply of the Vigilance note. On the contrary, the learned counsel appearing for the respondents has relied upon the judgment of this Court in the case of State Bank of India & Ors. v. D.C. Aggarwal & Anr. [1993 (1) SCC 13], to raise a counter plea that any document taken into consideration for imposing a punishment and if the CVC recommendations were prepared at the back of the officer, the order of punishment so passed would be liable to be set aside. The proposition of law stated in the above two judgments can hardly be disputed. What is really required to be seen by the Court is, whether the duty to furnish such a report arises out of a statutory rule or in consonance with the principles of natural justice and whether non- furnishing of such a report has caused any prejudice to the officer concerned. 52. From the aforenoticed facts it is clear that, there is nothing on record to show that the alleged CVC notes have actually been taken into consideration and that the same have affected the mind of the disciplinary authority while considering the defence of the delinquent officer and imposing punishment upon him. Unless such notes were actua....
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....ellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commissioner. That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there." 53. No rule has been brought to our notice where it is a mandatory requirement for the disciplinary authority to consult the vigilance officer and take the said report into consideration before passing any order. If that was the position, the matter would have been different. 54. In the present case, firstly, no such rule has been brought to our notice and secondly, there is nothing on record to show that the alleged notes of the CVC were actually taken into consideration and the same effected or tainted the findings or mind of the authority while passing the orders of punishment. Thus, in our view, the findings of the Tribunal cannot be sustained in law. Unless the Rules so require, advice of the CVC is not binding. T....
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....d with by the Court, particularly when the inquiry otherwise had been conducted in accordance with law and no grievance was raised by the respondent on that behalf except the points raised for consideration of the Tribunal. Thus, we are of the view that no statutory rule or regulation has been violated by the appellant nor any CVC notes were actually taken into consideration for imposing the punishment upon the respondent. Thus, the second argument of the respondent also merits rejection. Whether the de facto prejudice was a condition precedent for grant of relief and if so, whether respondents had discharged their onus. 56. In the submission of the appellants, there is no violation of any statutory rule or provision of the Act. Departmental inquiry has been conducted in accordance with the Rules and in consonance with the principles of natural justice. The respondents have not suffered any prejudice, much less prejudice de facto, either on account of retired employees of the railway department being appointed as inquiry officers in terms of the Rule 9(2) of the Rules or in the case of Alok Kumar, because of alleged non furnishing of CVC report. The contention is that the prejudic....
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....y officers as inquiry officers. We have no hesitation in stating that the respondents have no way satisfied this test of law. Thus, if their argument was to be accepted on the interpretation of Rule 9 (2), which we have specifically objected, even then the inquiries conducted and the order passed thereupon would not be vitiated for this reason. 58. Doctrine of de facto prejudice has been applied both in English as well as in Indian Law. To frustrate the departmental inquiries on a hyper technical approach have not found favour with the Courts in the recent times. In the case of S.L. Kapoor v. Jagmohan [1980 (4) SCC 379], a three Judge Bench of this Court while following the principle in Ridge v. Baldwin stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in its self prejudice would not apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S.L. Kapoor (supra) held as under: "18. In Ridge v. Baldwin [1964 AC 40, 68 : 1963 2 All ER 66, 7....
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....se. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons. It will be useful to refer to the judgment of this Court in the case of Haryana Financial Corporation v. Kailash Chandra Ahuja [2008 (9) SCC 31] at page 38 where the Court held as under: "From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that nonsupply of such report had caused prejudice and resulted in miscarriage of justice.....