Vijay Kumar Singh vs Union Of India & Ors

Akhil Kumar Srivastava, Member (J)

The applicant has filed this Review Application (RA) under Section 22(3)(f) of A.T. Act, 1985 read with Rule 17 of CAT (Procedure) Rules, 1987 seeking review of the order passed by this Tribunal in O.A. No. 802 of 2006 by means of which O.A. filed by the applicant was dismissed vide judgment and order dated 12th May, 2008. The operative part of the order reads as under:-

“In our considered view, the inquiry proceedings shall not be abated in terms of this Tribunal’s order dated 5.11.2004 mainly on the ground that the applicant sought extension of time for submission of representation against the report of the inquiry officer and also on the ground that the applicant did not cooperate during the inquiry proceedings. Having given our anxious thought to the controversy involved this case, we are fully satisfied that the applicant has utterly failed to make out a case warranting our interference with the penalty of dismissal. Accordingly, the O.A. fails and is dismissed. No order as to costs.”

Against the order of this Tribunal, the applicant knocked the door of Hon’ble High Court of M.P. by filing Writ petition No. 9495 of 2008, which came to be dismissed as withdrawn vide order dated 23.11.2016.

Upon withdrawal of Writ petition, the applicant has filed the instant Review Application before this Tribunal with a prayer to review its order dated 12th May, 2008.

The main grounds taken by the applicant in the Review Application are that the applicant was appointed in the year 1973 by the Director General, Ordnance Factories, whereas he was dismissed from service by the General Manager, Gun Carriage Factory, Jabalpur, who is lower in rank and the applicant was not given full opportunity as the registers of the Stores and other documents were not admittedly provided. More-over, the witnesses necessarily required to be called for were also not called for and as such the applicant has materially prejudiced in not submitting his proper defence.

On notice, the respondents have filed Reply wherein they have stated that the applicant was appointed on the post of Labour ‘B’ w.e.f. 19.6.1973. Subsequently, he was appointed to the post of Assistant Store Keeper on 12.6.1980 and thereafter the post of Assistant Store Keeper was re-christened to Store Keeper w.e.f. 11.9.1985. The disciplinary proceedings were instituted against the applicant w.e.f. 24.3.1992 when he was working on the post of Store Keeper. As per Part V of CCS (CCA) Rules, 1965 amendment was circulated vide DoP&T notification dated 26.11.1986 whereby appointing as well as disciplinary authority of all Grade ‘C’ post of Charge-man-I Assistant Store Holder, Foreman, Principal Foreman as well as equivalent post in Ordnance Factories was Deputy General Manager. The General Manager was made the appointing and disciplinary authority in respect of all Grade ’C’ post other than the above mentioned post and Group ‘D’ posts in Ordnance Factories. The respondents have further averred that from the perusal of appointment letter dated 24.5.1973, it would reveal that the said order has been signed on behalf of then General Manager/GCF and thereafter his appointment was notified vide Factory order Part II dated 19.6.1973 under the signature of the then General Manager, GCF.

4.1 The respondents also stated that the disciplinary authority as well as appointing authority in respect of the applicant was the then General Manager and the disciplinary action has been taken against the applicant by the appropriate authority. Lastly, the respondents have stated that RA has no merit and the same is liable to be dismissed.

Additional Reply has also been filed by the respondents reiterating the contentions as already narrated in the Reply and nothing new has been added.

The applicant has filed Rejoinder to the Reply filed by the respondents by refuting the contentions made in the Reply by reiterating the averments made in the RA.

Learned counsel for the applicant has cited the following case laws in support of his arguments:-

(i) Maharastra State Mining Corporation Vs. Sunil Pathak decided by Hon’ble Supreme Court in Civil Appeal No. 2228 of 2006 decided on 24.4.2006.

(ii) Krishna Kumar Vs. Divisional Assistant Electrical Engineer & Others decided by Hon’ble Supreme Court in Civil Appeal No. 755 of 1978 decided on 17.7.1979.

We have heard the learned counsel for the parties and perused the pleadings available on record.

The key issue involved in this case is whether an authority, who is lower in rank to the appointing/disciplinary, has any power/authority to dismiss an employee from service or not? Admittedly, the applicant was appointed by the Director General, Ordnance Factories and as such the appointing/disciplinary authority of the applicant is Director General, Ordnance Factories. In Additional Reply as filed by the applicant, he has stated that till November, 1986 as per the un-amended Rules, DGOF was the appointing and disciplinary authority of the applicant and there was no delegation of powers and this fact has not been disputed by the respondents.

In the case of Krishna Kumar (supra), the Hon’ble Supreme Court has held as under:-

“In defence of the legality of the order of removal, counsel for the respondents relies on paragraph 2 of respondent 1's affidavit, dated January 7, 1978, wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is urged that since the Div. Asstt. Elect. Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the appellant's appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.

Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts has been delegated to him.

Since the applicant was appointed by the DG OF and has been dismissed by the General Manager, who at any rate, was subordinate in rank to the DG OF on the basis of applicant’s appointment, it must be held the General Manager had no power to dismiss the applicant from service. The order of dismissal is in patent violation of the provisions of Article 311(1) of Constitution of India.

In the result, Review Application succeeds. Order dated 12.5.2008 passed by this Tribunal dismissing the O.A. is recalled. The impugned orders in the O.A. are quashed by remitting the matter back to the appropriate competent authority to pass a fresh order in accordance with law within a period of 90 days from the date of receipt of copy of this order. No costs.

A copy of this order be also placed in the O.A. as well.