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Himachal Pradesh High Court · body

2005 DIGILAW 463 (HP)

BALA RAM VERMA v. H. P. S. F. C.

2005-12-06

M.R.VERMA, S.S.NEGI

body2005
JUDGEMENT M. R. Verma, J. (Retd.) Chairman.:- The case of the applicant in this original application is that he was appointed as Clerk in the Corporation (Respondent No.1) in 1975, was promoted as junior Assistant in November 1984 and was further promoted as Office Manger (Junior) on ad-hoc basis vide order dated 11.1.1989 and his services were regularised as Office Manager (Junior) vide order dated 22.3.1990. The aforesaid appointment and promotions were made by the Managing Director of the respondent-Corporation. An FIR No. 241/1994 was registered against applicant and he was subsequently prosecution under Section 409 of the I.P.C. and; was convicted and sentenced by the learned Chief Judicial Magistrate, Sirmour vide judgment dated 4.3.1999. His appeal against such conviction and sentence was dismissed by the learned Additional Sessions Judge, Sirmour at Nahan on 13.8.1999. The criminal revision filed by the applicant in the High Court was withdrawn by his counsel on 8.3.2000. Against this background respondent No.2 issued show cause notice Annexure A-5 to the applicant proposing imposition of penalty of dismissal from service to which the applicant filed detailed reply Annexure A-6 and finally respondent No.2 imposed the penalty of dismissal from service on the applicant vide order dated 26.9.2000. The applicant is aggrieved by the order on the ground that the appointing and promoting authority of the applicant was the Managing director whereas the impugned penalty of dismissal was imposed by an authority subordinate to the appointing authority i.e. respondent No.2 who was not the appointing authority of the applicant. It has also been claimed that while passing the impugned order of dismissal the circumstances and facts of the case had not been taken into account by the respondent No.2, hence this original application with a prayer to quash and set a side the impugned order dated 26.9.2000 (Annexure A-7) and direct the respondents to reinstate the applicant in service with all the consequential benefits. 2 The respondents filed reply and contested the claim of the applicant wherein the registration of a case against the applicant, his trial, conviction and sentence imposed, dismissal of the appeal preferred by him and withdrawal of the revision petition have not been disputed, rather, they have been affirmed. 2 The respondents filed reply and contested the claim of the applicant wherein the registration of a case against the applicant, his trial, conviction and sentence imposed, dismissal of the appeal preferred by him and withdrawal of the revision petition have not been disputed, rather, they have been affirmed. It has also not been disputed in the reply that the applicant was appointed and promoted by the Managing Director of the respondent-corporation nor it has been disputed that respondent No.2 is an authority subordinate to the Managing Director. It has, however, been claimed that respondent No.2 as per the administrative powers delegated to the Directors has full power to pass orders as in hand in respect of the sanctioned post carrying pay scale upto and including Rs.3500/- now revised to Rs.10640/- Therefore, it was within the competence of respondent No.2 to pas the impugned order of dismissal. It is also claimed that in view of the conviction of the applicant, the impugned order imposing penalty of dismissal has been passed as per the rules and bye laws. Thus, the respondents have justified the passing of the impugned order of dismissal. 3. We have heard he learned counsel for the parties and have also perused the material placed on record. 4. To show that the respondent No.2 has the power and authority to pass the impugned order, the respondents relied on Annexure-8 which appears to be page-2 of some printed/typed material. According to the learned counsel for the respondents these are the rules which govern the powers of various officer of the respondent-Corporation in the matter of filing up of the posts, granting all kinds of leave and power to transfer within the Zone and the Division. 5. Be it stated that on a bare perusal of Annexure-8 it cannot be made out as to of which Rule it forms a part or when such Rules were framed and enforced or whether these are the rules of the Corporation or not or were in force at the relevant time or stand superseded. Even if it is assumed that these rules are the rules of the respondent-Corporation regarding the powers of its officers as mentioned therein still there is no material to show that the appointment of the applicant was made under these rules. Even if it is assumed that these rules are the rules of the respondent-Corporation regarding the powers of its officers as mentioned therein still there is no material to show that the appointment of the applicant was made under these rules. On the contrary, it can be readily inferred from the admitted fact that the applicant was appointed and promoted by the Managing Director of the Corporation that the appointing/promoting authority of the applicant is or at least was at the time of such appointment and promotions the Managing Director of the Corporation. Had the alleged rules Annexure-8 been in force at the time of appointment of the applicant there was no occasion for the Managing Director to appoint him as is admitted case of the parties. Thus, what is clear in the facts and circumstances of the case particularly the admission that the applicant was appointed by the Managing Director of the applicant is that the appointing authority of the applicant is the Managing Director of the Corporation. It appears that the alleged rules relied upon by the respondents came into being after the applicant had already been appointed by the Managing Director. Any change in the rules subsequent to the appointment of the applicant by the Managing Director will not enhance or improve the hierarchical status of the delegattee and the Managing Director of the Corporation will continue to be the appointing authority of the applicant for all intend and purposes. 6. In view of the provisions of Article 311 of the Constitution of India a person who is in civil service of the Union of India or a state or holds a civil post | under the Union or a State cannot be removed from service by an authority subordinate to the authority who had appointed him. 7. It is not dispute that respondent No.1 being instrumentality of Govt. is State within the meaning of article 12 of the Constitution. 8. In Krishan Kumar Versus. Divisional Assistant Electrical Engineer and others, (1979) 4 Supreme Court cases 289) the Apex Court held as under: - "4. 7. It is not dispute that respondent No.1 being instrumentality of Govt. is State within the meaning of article 12 of the Constitution. 8. In Krishan Kumar Versus. Divisional Assistant Electrical Engineer and others, (1979) 4 Supreme Court cases 289) the Apex Court held as under: - "4. Article 31(1) of the Constitution provides that no person who is a member of the civil service of the Union or an all India Service or a civil service of a state or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The simple question for determination is whether, as alleged by the appellant, he was removed from service Dy an authority, subordinate to that which had appointed him. The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The narrow question, therefore, for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed by Shri Sarathy, who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that the Chief Electrical Engineer in the official hierarchy. That the former is not higher in rank than the latter is self-evident. In the circumstances, it seems clear that the appellant was removed from service by an authority which seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he was appointed. 5. 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 Divisional Assistant Electrical Engineer. It is urged that since the Divisional Assistant Electrical 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. It is urged that since the Divisional Assistant Electrical Engineer. It is urged that since the Divisional Assistant Electrical 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 affair existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 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 appellants appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have therefore, the power to remove him. 6. 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 is rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him. 7. Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held that respondent 1 had no power to remove the appellant form service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution." 9. In view of the above settled position in law, delegation of powers to respondent No.2 by the corporation regarding appointment etc. does not in any way change the appointing authority of the applicant which was admittedly the Managing Director of the respondent-Corporation. In view of the above settled position in law, delegation of powers to respondent No.2 by the corporation regarding appointment etc. does not in any way change the appointing authority of the applicant which was admittedly the Managing Director of the respondent-Corporation. Therefore, the action as taken by the respondent No.2 against the applicant could only be taken by the Managing Director, the appointing authority of the applicant, and not by respondent No.2 who is an authority subordinate to the Managing Director. The impugned order, therefore, void ab initio and deserves to be set a side and the applicant is thus entitled to the consequential benefits also. 10. For the reasons stated hereinabove, the impugned order Annexure A-7 is set Advocate(s): side being unconstitutional and void ab initio and it is ordered that the applicant be deemed to have continued in service and shall be entitled to all consequential benefits. If so advised, the respondent No.1 may take appropriate steps against the applicant in accordance with law as a consequence of his conviction under Section 409 I.PC. The original application is accordingly disposed of with no order as to costs.