TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 1473
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....ables, (amounting to Rs.1,55,000/- in total) and Rs. 2,00,000/- to two civilian informers for being involved in arrest of a hardcore militant. Complaint was made by three constables against him that they had not received the reward money. The complaint regarding the incident of June, 2008 was filed by the constables through three separate identical worded complaints after three years in July, 2011. Based on the said complaints, the Director-cum-Additional DG of Police (Intelligence), Odisha directed a preliminary inquiry to be held in the matter and appointed Shri Sanjeeb Panda, IPS DIG of Police (Intelligence), Odisha to conduct the inquiry. Admittedly, inquiry was conducted without any notice to respondent no. 1 and the inquiry report was submitted on 19.05.2012. Pursuant thereto, after more than three years, on 07.11.2015, a Memorandum as well as Article of Charges and a Statement of Imputation against the respondent no. 1 were issued by the Principal Secretary to the Government of Odisha. 2. The respondent no. 1 challenged the issuance of the charge-sheet by way of filing an Original Application before the Central Administrative Tribunal. That application was disposed of vide ....
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....00/- was towards Secret Service Fund, and thus the respondent no. 1 was not required to furnish the receipts or disclose the names of the civilian recipients. It has been submitted by the learned counsel for the appellant that as per the rules, respondent no. 1 was required to furnish the receipts of the payments made, which has not been done, and thus, the preliminary inquiry against respondent no. 1 was fully justified. It is, thus, contended that the impugned judgment passed by the High Court deserves to be set aside and the disciplinary proceedings against respondent no. 1 may be permitted to go on. 4. Per contra, Mr. P. Chidambaram, learned senior counsel appearing for respondent no. 1 has submitted that the preliminary inquiry initiated against respondent no. 1 was wholly unjustified and unwarranted inasmuch as there is no provision for holding of preliminary inquiry in the case of All India Services Officers, which is governed by the All India Services (Discipline & Appeal) Conduct Rules, 1969. It was next submitted by him that even if the appellant had power to initiate the preliminary inquiry, the same could only be conducted with the due approval of the Disciplinary Auth....
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....th and carefully perused the record. 6. It is admitted by the learned counsel for the appellant that there is no provision for preliminary inquiry in the All India Services (Discipline and Appeal Rules), 1969 and the preliminary inquiry was held only in order to facilitate and to find out as to whether any case is made out against respondent no. 1 or not. In the absence of there being any provision for preliminary inquiry, in our opinion, no such preliminary inquiry could have been held. Before deciding as to whether to charge a delinquent employee or not, the employer is entitled to undertake a minimal exercise to ascertain if the allegations raised against the former warrant issuance or memorandum of charges or not. But that would be an informal exercise with that limited objective. To proceed with a structured preliminary enquiry, it must have statutory sanction. A statutory authority can do only such acts which are permissible under the statute and the authority cannot be permitted to do something which is not provided in law. This principle was formulated by the Calcutta High Court nine decades ago in the case of Maniruddin Bepari v. The Chairman of The Municipal Commissioner....
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....ch a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show case why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Govern-ment) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and ....
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.... proceedings includes approval of charge-memo. The second one is that if any authority other than the disciplinary authority is permitted to draw charge memo, the same would destroy the underlying protection guaranteed under Article 311(2) of the Constitution of India, 1950. In the subject-proceeding, the High Court has come to a finding that the charge-memo was not approved by the Disciplinary Authority. This point is covered by the ratio of the case of Pramod Kumar (supra). The ratio of the decisions in the cases of State of West Bengal v. Nripendra Nath Bagchi [(1966) 1 SCR 771] and P.S. Malik v. High Court of Delhi and Another [(2019) SCC Online SC 1070] do not aid the petitioner on this point. In the former authority, the power of the High Court to conduct disciplinary proceeding was traced to Article 235 of the Constitution of India, 1950. In the case of a District Judge, Article 233 of the Constitution of India, 1950 vests in the Governor of a State the power of appointment, posting and promotion. Article 234 of the Constitution of India, 1950 deals with appointment of persons other than the District Judges, which is also to be made by the Governor after consultation with th....
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.... of Article of Charges, the phrasing of which clearly revealed formation of opinion of the authorities in finding of guilt of the respondent no. 1. 13. We find substance in the submission of Mr. Chidambaram that in the Article of Charges, a definite opinion has been formed by the Government against respondent no. 1, inasmuch in the said Article of Charges it had been observed that "Subsequently, three police personnel in favour of whom the reward money was sanctioned alleged about non receipt of the reward amount. On inquiry into their allegation, it was established that Shri Gijbhiye has neither disbursed the reward amount. On enquiry into their allegation, it was established that Shri Gajbhiye has neither disbursed the reward amount of Rs.1,55,000/- to the six police personnel as directed to him and nor submitted the utilization certificate or the original disbursement voucher/money receipt in support of the payment/disbursement of Rs.1,55,000/-. With respect to payment of Rs.2,00,000/- to the two civilian sources, whose true identity was not disclosed by Shri Gajbhiye, it was not clear regarding the actual payment of Rs.2,00,000/- to the two sources as Shri Gajbhiye has faile....