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R.S. Pathak, C.J.—This Letters Patent Appeal is directed against the judgment and order of a learned single Judge of this Court allowing a writ petition and quashing an order removing the Respondent from service.
The Respondent, Narain Dass, was appointed as a driver in the Himachal Government Transport by the General Manager in 1965. On June 20, 1969, a motor bus, said to have been driven by the Respondent, met with an accident and was damaged. On September 27, 1969, the Regional Manager, Himachal Government Transport, Dhalli Region, framed a number of charges against the Respondent. The Regional Manager appointed an Inquiry Officer to conduct an inquiry into the charges, and the enquiry proceedings were taken by the Inquiry Officer. On November 1, 1971, the Commissioner of Transport, Himachal Pradesh, issued a memorandum to the Respondent expressing his agreement with the finding of the Inquiry Officer and holding that the charges had been proved, and he directed the Respondent to show cause against his dismissal from service. The Respondent tendered a reply to the notice. On March 30, 1972, the Commissioner of Transport made an order under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, removing the Respondent from service. The Respondent filed an appeal before the Governor of Himachal Pradesh, and while that appeal was pending he filed a writ petition in this Court challenging the removal order.
The writ petition came on for hearing before a learned single Judge of this Court. He has allowed the writ petition and quashed the removal order. The learned single Judge has come to the finding that the General Manager was the disciplinary authority in respect of the Respondent and, therefore, the Regional Manager was not competent to institute the proceedings against the Respondent. He also held that the Respondent was not afforded an opportunity of cross examining the witnesses produced against him and therefore Rule 14(14) of the aforesaid rules was violated. And now this Letters Patent appeal before us.
The question is whether the Regional Manager, Himachal Government Transport, Dhalli, was competent to institute the impugned disciplinary proceeding''s against the Respondent.
There is no dispute that the Central Civil Services (Classification, Control and Appeal) Rules, 1965, applied. At the relevant time, Himachal Pradesh was a Union territory, and it must be taken that the Respondent was in the employment of the Union of India. It is also not in dispute that the post held by him was a Class III post. Rule 4(1) classifies the civil service of the Union into Class I, Class II, Class III and Class IV Central Civil Services. It is clear from Part III of the Schedule, annexed to the rules, which classifies the different services and posts comprised in the Central Civil Service Class III that posts in Union territories are included in the said Central Civil Service Class III. Accordingly, the Respondent must be considered as a member of the Central Civil Service Class III.
The learned Advocate General, appearing for the Appellants, contends that the Respondent must be considered as a member of the General Central Service, but it seems to me that having regard to Rule 7 that cannot be so. Rule 7 provides that Central Civil posts of any class not included in any other Central Civil Service shall be deemed to be included in the General Central Service of the corresponding class. It is plain that the General Central Service is a ''residuary'' Central Service, and as the Respondent belongs to the Central Civil Service Class III, he cannot be treated as a member of the General Central Service.
Rule 13 defines the authority empowered to institute proceedings. Sub-rule (1) provides that the President or any other authority empowered by him by general or special order may institute disciplinary proceedings against any Government servant. There can be no dispute that Sub-rule (1) docs not apply. Sub-rule (2) of Rule 13 provides:
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.
Rule 12 specifies the disciplinary authorities. Sub-rule (2) of Rule 12 provides:
(2) Without prejudice to the provision of Sub-rule (1), but subject to the provisions of Sub-rule (4), any of the penalties specified in Rule 11 may be imposed on-
(a) a member of Central Civil Services other than the General Central Service by the appointing authority specified in the Schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;
(b) a person appointed to a Central Civil post included in the General Central Service, by the authority specie in this behalf by a general or special order of the President, or where no such order has been made, by the appointing authority specified in this behalf.
It is evident on a plain reading of Sub-rule (2) that as the Respondent is a member of the Central Civil Service Class III and therefore not a member of the General Central Civil Service, his case must fall under Clause (a). In his case, any of the penalties specified in Rule 11 may be imposed by the appointing authority specified in the: Schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President. When reference is made to the Schedule, we find that the appointing authority specified is the head of the office. The head of the office is shown as the authority competent to impose all the penalties mentioned in Rule 11. Therefore, according to Rule 12(2)(a) the head of the office is the disciplinary authority. In that view of the matter, by virtue of Rule 13(2) the head of the office is the authority to institute disciplinary proceedings against the Respondent. The head of the office in this case is the Regional Manager, Inimical Government Transport, Dhalli.
But Shri Inder Singh, for the Respondent, points out that the Respondent was appointed by the General Manager and by reason of Article 311(1) of the Constitution the Respondent could not be removed except by the General Manager (or, as is admitted between the parties, by his successor, the Commissioner of Transport), and therefore he is the disciplinary authority competent to institute disciplinary proceedings. Now, it is evident that the authority empowered to institute disciplinary proceedings may be different from the authority prescribed for removing a Government Servant. Indeed, Rule 13(2) contemplates that the authority empowered to institute proceedings may not be competent to impose all the penalties prescribed. It must be borne in mind that Rule 13 is concerned only with defining the authority competent to institute disciplinary proceedings for that purpose, Rule 13(2) speaks of a disciplinary authority "competent under these rules" to impose penalties and, as we have seen, when Rule 12(2)(a) is read one of the disciplinary authorities is the head of the office.
Shri Inder Singh then urges that the appointing authority mentioned in Rule 12(2)(a) must be ascertained from the definition of "appointing authority" in Rule 2(a). He says that upon a comprehensive reading of the definition it is clear that the General Manager, being the authority which appointed the Respondent and who upon a cumulative consideration of the provisions of Rule 2(a) must be considered as the highest authority, is the appointing authority. The submission is without force. We must have regard to the words which precedes the definition, and those words arc "in these rules, unless the context otherwise requires...." Rule 12(2) speaks of the "appointing authority specified in the Schedule in this behalf", and it refers to an appointing authority not mentioned in Rule 2(a). The context set out in Rule 12(2)(a) requires a different connotation to be given to the expression "appointing authority" from that given in Rule 2(a). Accordingly, the definition set out in Rule 2(a) cannot be referred to.
Shri Inder Singh also points out that the definition of "Head of the Office" in Rule 2(j) means the authority declared to be the head of the office under ''the Financial Rules and, he says, there is no evidence that the Regional Manager, Himachal Government Transport Dhalli, has been so declared. The Appellants have annexed a notification No. GM. Acctts. B-8/50-III, dated March 31, 1962, paragraph 2 of which provides that the Regional Manager, Himachal Government Transport, Dhalli, will continue to function as the head of the office. Shri Inder Singh says that it cannot be presumed that the Regional Manager was initially declared as the head of the office and there must be positive evidence to show that. Now, the Appellants have, in paragraphs 8(A) and (b) of their return, specifically averred that the said Regional Manager in his capacity as the head of the office, was competent to institute an enquiry against the Respondent. This averment has not been denied by the Respondent. No rejoinder affidavit to the return has been filed by him. It must, therefore, be taken that the averment of the Appellants indicating that the Regional Manager, Himachal Government Transport, Dhalli, was the head of the office is correct.
Upon the aforesaid considerations the conclusion, in my opinion, must be that the disciplinary proceedings instituted against the Respondent by the Regional Manager, Himachal Government Transport, Dhalli, were instituted by a competent authority. The contention to the contrary by the Respondent must be rejected.
The learned single Judge has held that the disciplinary authority in the case of the Respondent was the General Manager. He has referred to Rule 14(3), which provides that the disciplinary authority shall draw up or cause to be drawn up the charges and a statement of the allegations in support of each charge. To ascertain who is the disciplinary authority he has referred to Rule 12(3)(b). Now, Rule 12(3) is supplementary to Rule 12(2). Rule 12(2) specifies certain authorities as disciplinary authorities, and Rule 12(3) mentions that in respect of employees of certain categories certain other officers will also be the disciplinary authorities.
The learned Advocate General has contended that it is Rule 12(2)(b) which applies, and he has submitted that notification No. A-88-45/66, dated January 30, 1962, should be treated as a general order made by the President within the contemplation of Rule 12(2)(b). I have already held that Rule 12(2) will not apply because the Respondent cannot be said to belong to the General Central Service. But assuming for the purpose of this submission that Rule 12(2)(b) can be invoked, I am unable to agree that the notification, dated January 30, 1962, can be deemed to be a general order made by the President for the purpose of the Rules of 1965. The notification was made under the Central Civil Services (Classification, Control and Appeal) Rules, 1957, read with Rule 14(2) of those rules, and it refers to the penalties enumerated in Rule 13 thereof. The notification was made when the Rules of 1957 were in force. The learned Advocate General contends that the notification is still in force, and he relies for the purpose on Rules 33 and 34 of the Rules of 1965. Rule 33 provides that until the publication of the Schedules in the Rules of 1965 the Schedules to the Rules of 1957 shall be deemed to be the Schedules referred to in those rules. By 1969, the Rules of 1965 had their own specific Schedules and, therefore, no support can be derived from rule 33. As regards Rule 34, it repeals the Rules of 1957 but includes the following proviso
Provided that:
(a) such repeal shall not affect the previous operation of the said rules or any notification or order made or anything done or any action taken thereunder....
The learned Advocate General says that by virtue of proviso (a) the notification dated January 30, 1962, although made under the Rules of 1957 must be treated as continuing in operation despite the repeal of the rules under which it was made. There can be no dispute as to that, but when the learned Advocate General proceeds further and says that the said notification must be treated as applicable to proceedings commenced under the Rules of 1965 his submission seems unwarranted. In order that such notification should apply to a proceeding commenced under the Rules of 1965, the rule should have used appropriate language. The rule should have provided that the notification must be deemed to be a notification under the Rules of 1965. That is the fiction commonly employed, and an illustration is provided by rule 33. Accordingly, I am unable to accept the contention of the learned Advocate General that the notification dated January 30, 1962, can be applied in respect of disciplinary proceedings commenced under the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
During the hearing before us a doubt arose whether Rule 12(2)(a) should be read as referring to "the appointing authority or the authority specified in the Schedule in this behalf...." or "the appointing authority specified in the Schedule in this behalf". Chaudri''s Compilation of the Civil Service Regulations (8th Edition) was placed before us, and I have proceeded on the basis of the provisions set out there. It sets out the latter of the two texts mentioned above. But even if the former text is taken, it seems to me to make no difference because in cither case the authority specified in the Schedule is one of the disciplinary authorities.
The Appellants then assail the finding of the learned single Judge that there was a breach of Rule 14(14) inasmuch as the Respondent was not afforded an opportunity of cross-examining the witnesses produced against him. In paragraph 8(c) of the writ petition the Respondent has merely stated that the provisions of Rule 11 were violated because no opportunity was given to him to cross-examine the witnesses who deposed against him ''in spite of repeated requests''. The allegation is vague and there is nothing to show what were the specific occasions on which he made the alleged requests. Such an averment can provide little authority for the contention raised by the Appellants.
An averment of fact in the writ petition must be clear and specific. It must be one which gives adequate notice to the Respondent of the allegation which lie has to meet. It must be one which is sufficiently clear so as to fix the deponent of the verifying affidavit with responsibility for its truth. A vague averment is of no purpose and cannot be made the basis of a submission.
Now, when we turn to the material on the record, it is clear from the several notices, annexed collectively as Annexure-RC, and from the summary of the inquiry proceedings that the Respondent absented himself from the proceedings after the testimony of the witnesses produced against him had been recorded and when it was his turn to adduce evidence. There is nothing to show that the Respondent ever asked for an opportunity to cross-examine the witnesses whose statements had been recorded. The allegation is not supported by any material on the record. It may also be pointed out that in the appeal filed by the Respondent before the Governor no such complaint has been made. In my opinion, it is not possible to accept the ease of the Respondent that he applied for cross-examining the witnesses produced against him. When he did not do so, he cannot be heard to complain that he was not afforded an opportunity of cross-examining them. I regret I am unable to agree with the learned single Judge in his finding to the contrary.
The appeal is allowed. The judgment and order of the learned single Judge are set aside and the writ petition is dismissed. In the circumstances there is no order as to costs.
D.B. Lal, J.
I agree.