TaxTMI 
TaxTMI 
2016 (8) TMI 1611
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....nder: The Appellant was serving as a regular Commandant of 61st Battalion, CRPF and at the time of incidents, was posted at Mantripukhri, Imphal. He is alleged to be involved in two cases. The 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. Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of 7.62 ammunition issued in the name of one Lance Naik Man Bahadur, who was posted at the same battalion 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 the Appellant, directing him to submit a written statement of d....
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....its ammunition. 8. Aggrieved of the said action of withdrawal of imposition of minor penalty and initiating departmental inquiry, the Appellant filed Writ 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 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 It was observed that the earlier punishment imposed upon the Appellant was withdrawn suo motu by the competent authority by order dated 15.03.1999 without affording him the opportunity of being heard, by passing a non speaking order. The learned single Judge accordingly set aside the order dated 15.03.1999 as the earlier penalty imposed upon the Appellant was withdrawn by which the letter dated 24.06.1998 was withdrawn by the IGP-NS. 10.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.....
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....t the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning in the aforesaid capacity and during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds through kote UC's without keeping/maintaining proper records violating the instructions on the subject. Thus, the said Shri B.S. Yambem, Comdt. (Retired) 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)(ii) and (iii) of CCS (Conduct) Rules, 1964. 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....
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.... 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 Anr. Memorandum of Charges dated 16.10.2009 was 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 ranks of his Unit out of the area of operational jurisdiction without the approval of IGP (Ops) Manipur and Nagaland. Two of the above vehicles and 11 men were later intercepted and apprehended by the Customs and Central Excise Authorities at Didarganj check post near Patna on the night of 11/08/1995 as a huge quantity of contraband ganja was found loaded in these vehicles. 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 Rul....
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.... and disposed of by the learned single Judge vide common judgment and order dated 01.09.2010. The learned single Judge held that 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. Accordingly, the learned single Judge quashed the Memorandum of Charges dated 22.08.2008 and 16.10.2009 and allowed the above Writ Petitions filed by the Appellant. 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. 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 fr....
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....dated 22.08.2008 and 16.10.2009 for initiating fresh departmental enquiry proceedings against the Appellant as they 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 Respondents under Rule 14 of the CCS (CCA) Rules, 1965 in respect of the alleged incident of loss of weapon and ammunition, were quashed by the learned single Judge of the High Court. 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 of the first enquiry proceeding itself, when the same was initiated afresh by the disciplinary authority after obtaining sanction from the President as requir....
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....ere commenced in the same manner as if the Government servant had continued in the service. Further, reliance is placed by the learned ASG on the decision of this Court in the case of D.V. Kapoor v. Union of India (1990) 4 SCC 314, wherein this Court has held that the proceedings under Rule 9 of the CCS (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 the CCS (Pension) Rules, 1972 for continuing the disciplinary proceedings against the Appellant. The learned ASG further places reliance on the decision of this Court in the case of State of M.P. v. Dr. Yashwant Trimbak (1996) 2 SCC 305, 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 learn....
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....02 and State of Madras v. G. Sundaram AIR 1965 SC 1103, 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 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 the fact the disciplinary proceedings were initiated more than four years after the alleged incidents? 2. Whether the impugned judgment and order is erroneous and is vitiated in law? 3. What Order? Answer to Point Nos. 1 and 2 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 ....
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....uperannuation (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. (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 13.08.2008 passed in W.A. No. 25 of 2007 by the Division Bench of the High Court initiated disciplinary proceedings afresh against the Appellant under Rule 9(2)(b)(ii) of CCS (Pension) 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 referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this Rule and shall be continued....
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....um 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 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 after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Appellant challenged the correctness of the sanction and charges framed 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 Aut....
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....ipulated in 9(2)(b) (ii) of the CCS (Pension) Rules, 1972 does not apply to the facts of the present case for the reason that the departmental proceedings against the Appellant had already been initiated while he was in service, and it was because of the pendency of the litigation before the High Court 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 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 Appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (P....
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....nitiated 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 allowed the officer to escape from the provisions of Regulation 351-A of the Regulations. This order does not preclude 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 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 principle of law is not applicable to the present fact situation for the reason that the order of sanction granted by the President of India is not in exercise of his executive power Under Article 77(2) of the Constitution which s....
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.... 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 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 legis....
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....t power must also be exercisable from time to time and must include within it the power to add to, amend, vary or rescind any of those rules...... (Emphasis laid by this Court) 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 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 cannot be equated with power exercised Under Article 77(2) of the Constitution of India. The High Courts and this Court can exercise power of judicial review under Articles 226 and 32, respectively, of the Constitution of India in cases of statutory exerci....
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....atures upon which hinges the system of checks and balances..." 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 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 executive action against the Appellant. 41. In the instant case, the action of the Disciplinary Authority is untenable in law for the reason that the interpretation of the CCS (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 obtain....