Constitution of India – Articles 77(2) & 166(2) – CCS (Pension) Rules, 1972 – Rule 9(2)(b)(ii) – Presidential Order – Departmental Inquiry – the observation made by this Court in the case of Dr. Yashwant Trimbak to the extent that orders of sanction granted by the Governor are outside the scope of judicial review, is untenable in law – 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 – 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, the disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed.
CCS (Pension) Rules
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[ANIL R. DAVE] [V. GOPALA GOWDA] [C. NAGAPPAN] JJJ.
August 26, 2016
CIVIL APPEAL NO.8323 OF 2016 (Arising out of SLP(C) No.30907 of 2013)
BRAJENDRA SINGH YAMBEM …APPELLANT Versus UNION OF INDIA AND ANR. …RESPONDENTS
CIVIL APPEAL NO.8324 OF 2016 (Arising out of SLP(C) No.10092 of 2014)
For Petitioner(s) Ms. Momota Devi Oinam,AOR For Respondent(s) Mr. B. Krishna Prasad,AOR Ms. Sushma Suri,AOR
J U D G M E N T
V. GOPALA GOWDA, J.
2. The present appeals arise out of the common impugned judgment and order dated 05.08.2013 passed by the Division Bench of the High Court of Manipur at Imphal in Writ Appeal Nos. 39 and 40 of 2011, whereby the judgment and order dated 01.09.2010 passed by the learned single Judge of the High Court of Gauhati, Imphal Bench in W.P. (C) Nos. 904 of 2008 and 264 of 2010 was set aside.
3. The necessary facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder: 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 defence in connection with the said lapse. The relevant portions of the said letter are extracted hereunder:
“It has been intimated by IGP, N/ Sector, CRPF that one AK-47 Rifle, 3 Magazines and 90 rounds of 7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. IGP N/Sector has intimated to this office that the said weapon and ammunition belonging to HQr Coy was shown as issued to LNK Man Bahadur but was actually being used by a civilian on your orders. It has further been intimated that S.M. P.N. Gupta (OC HQr Coy 61 Bn) had brought it to your notice that the said weapon and ammunition were not returned by the civilian and were missing from the HQr Coy Kote. To this effect, Shri P.N. Gupta had informed you in writing on 21.08.1995. However, no action was taken nor any decision given by you…… ………Therefore, I am directed by IGP, N/Sector that to request you to send your written statement to this office at an early date……”
5. Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998, explaining the reasons which resulted in the loss of the said weapon and ammunition.
6. By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of the conclusion arrived at by the internal Court of Inquiry, issued a warning to the appellant to be more careful and also ordered for a sum of Rs.3,750/- to be recovered from the appellant in lieu of the lost weapon.
7. Subsequently, on 15.03.1999, the IGP, Northern Sector, CRPF, sent a letter to the appellant stating that after review of the case, the Directorate General had come to the conclusion that the penalty inflicted upon him vide letter dated 24.06.1998 was being withdrawn as the same did not commensurate with the gravity of the offence committed by the appellant in discharge of his official duties. After obtaining approval from the competent authority, major penalty proceedings were initiated and Memorandum of Charges dated 23.06.1999 was issued to the appellant. Subsequently, pursuant to the Presidential Order dated 14.10.1999, a regular departmental inquiry under
Rule 14 of the Central Civil Services (Classification Control & Appeal) Rules, 1965
(hereinafter referred to as the “CCS (CCA) Rules, 1965”) was ordered in connection with the said incident of the loss of AK-47 Rifle along with 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.
11. The respondent-Union of India preferred Writ Appeal No. 45 of 2006 before the Division Bench of the High Court against the said judgment and order of the learned single Judge.
12. The Division Bench of the High Court by way of judgment and order dated 07.11.2006 upheld the finding and reasons recorded by the learned single Judge and held that the appellant should have been afforded an opportunity of being heard before the Memorandum of Charges dated 15.03.1999 was issued to him. The Division Bench however, observed that it was open for the Disciplinary Authority to initiate fresh action in the matter against the appellant by complying with the principles of natural justice. The appeal was accordingly dismissed.
13. In pursuance of the liberty granted by the Division Bench to the respondents, a show cause notice dated 02.02.2007 was issued to the appellant, by which he was given time of fifteen days to reply to the same. After considering the reply of the appellant, the DG-CRPF came to the conclusion that it was appropriate to initiate disciplinary proceedings against the appellant afresh.
14. Accordingly, on 22.08.2008, the respondents issued another Memorandum of Charges to the appellant in pursuance of the sanction accorded by the President of India under