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2007 DIGILAW 481 (CAL)

RAM NATH CHOUDHURY v. UNION OF INDIA

2007-07-02

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS application under Article 226/227 of the constitution of India is at the instance of an unsuccessful applicant under section 19 of the Administrative Tribunal Act, 1985 and is directed against the order dated May 24, 2007 passed by the Central Administrative Tribunal, calcutta Bench (Circuit at Port Blair) thereby dismissing the application filed by the writ-petitioner in which he challenged the issue of Charge-Memo dated 10th October, 2002 by the employer on the ground of want of jurisdiction. ( 2 ) THE Tribunal by the said order refused to enter into the merit of the application on the ground that the plea taken by the writ-petitioner in the application before the Tribunal would be available before the enquiring authority and as such, the Tribunal did not feel the necessity of going into the question raised by the writ-petitioner at that stage and to interfere with the order impugned by which the Employer merely issued the Charge-Memo against the writ-petitioner. ( 3 ) BEING dissatisfied, the writ-petitioner has come up with the present application under Article 226/227 of the Constitution of India. ( 4 ) MRS. Nag, the learned Counsel appearing on behalf of the writ-petitioner has raised a pure question of law in support of the present writ application. According to Mrs. Nag, the learned Tribunal acted illegally in not entering into the merit of the plea of lack of jurisdiction taken in the application filed by her client notwithstanding the fact that on the face of the materials on record, the Employer lacked authority to issue of such charge sheet. She contends that in the case before us, admittedly, the Charge-Memo having been issued on the basis of certain misconducts alleged to have been committed by her client during the period when he was in deputation and the borrowing authority having already made preliminary enquiry and exonerated her client of those charges, the lending authority had no jurisdiction to issue the Charge-Memo on the basis of the selfsame allegations. ( 5 ) MR. ( 5 ) MR. Mandal, the learned Government Pleader appearing on behalf of the Respondent has, however, supported the order passed by the learned tribunal and has contended that the writ-petitioner can raise the plea of want of jurisdiction of the authority not only at the stage of enquiry but also subsequently, if any penal action is taken against him by the Employer pursuant to the said Charge-Memo. He, therefore, prays for dismissal of this writ-application as a premature one. ( 6 ) THEREFORE, the first question that fails for determination in this writ-application is whether the present application is a premature one. ( 7 ) IN the case before us, undisputedly, the allegations mentioned in the Charge-Memo were enquired into by the borrowing authority and it decided to take no action against the writ-petitioner after the preliminary enquiry. Therefore, a pure question of law relating to the authority of the lending authority to issue a fresh Charge-Memo on the selfsame allegations has been raised by the writ-petitioner and if the question is answered in favour of the writ-petitioner, the enquiry should be quashed. It is now a settled law that a pure question of law relating to the jurisdiction should be decided as a preliminary issue before unnecessarily involving the party to face the proceedings. We are, therefore, unable to subscribe to the submission made by Mr. Mandal that the present writ-application or the application before the Tribunal was a premature one. ( 8 ) THEREFORE, the next question that arise for determination in this writ application is whether a lending authority has right to intiate disciplinary proceeding against the employee for the misconduct alleged to have been committed during the period the employee was on deputation, when the borrowing authority had already made preliminary enquiry on those allegations and decided not to take any action against such employee. ( 9 ) IN order to appreciate the aforesaid question, it will be profitable to refer to Rule 20 of the Central Civil Services (Class, Control and Appeal)Rules, 1965 which is quoted below : - "20. ( 9 ) IN order to appreciate the aforesaid question, it will be profitable to refer to Rule 20 of the Central Civil Services (Class, Control and Appeal)Rules, 1965 which is quoted below : - "20. Provisions regarding officers lent to State Governments etc.- (1) Where the services of a Government Servant are lent by one department to another department or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as "the borrowing authority"), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government Servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceedings against him. Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government Servant (hereinafter in this rule referred to as "the lending authority") of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be. (2) In the light of the findings in the disciplinary proceeding conducted against the Government Servant - (i) If the borrowing authority is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government Servant, it may after consultation with the lending authority, make such orders on the case as it deems necessary : provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government Servant shall be replaced at the disposal of the lending authority, (ii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to ix) of Rule 11 should be imposed on the Government Servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may, if it is the disciplinary authority pass such orders thereon as it may deem necessary or, if it is not the disciplinary authority, submit the case to the disciplinary authority which shall pass orders on the case as it may deem necessary : provided that before passing any such order the disciplinary authority shall comply with the provisions of sub-rule (3) and (4) of Rule 15. Explanation.- The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority or after holding such further inquiry as it may deem necessary, as far as may be, in accordance with Rule 14. " ( 10 ) AFTER hearing the learned Counsel for the parties and after going through the aforesaid provision, we find substance in the contention of Mrs. Nag that for any misconduct alleged to have been committed by an employee during the period of deputation, the lending authority has no right to intiate any departmental proceeding ; in such a situation, the borrowing authority is vested with power to conduct such enquiry and if after such enquiry, it proposes to take any penal action, it shall proceed in accordance with the rule 20 mentioned above depending upon the nature of the penalty it proposes to inflict upon the Employee. ( 11 ) IN the case before us, on the basis of the selfsame allegations, the borrowing authority made a preliminary investigation and after such investigation, decided not to take any action against the writ-petitioner, as according to borrowing authority, those were not established. It further appears from record that the lending authority in the present case, of its own, called for the documents in connection with those preliminary enquiries and decided to issue the Charge-Memo. Such action on the part of the lending authority was totally without jurisdiction. The position would have been different, if the borrowing authority on the basis of full-fledged departmental enquiry found the writ petitioner guilty and proposed any action and in that situation, it was their duty to consult the lending authority or to place the service upon the lending authority as the case may be depending upon the proposed penal action. But in a case, where the borrowing authority itself is satisfied that no action need be taken against the employee, the lending authority cannot investigate such allegation of misconduct alleged to have been committed by the employee during the period of deputation under the borrowing authority. But in a case, where the borrowing authority itself is satisfied that no action need be taken against the employee, the lending authority cannot investigate such allegation of misconduct alleged to have been committed by the employee during the period of deputation under the borrowing authority. ( 12 ) ON consideration of the aforesaid materials on record, we are of the view that the Tribunal ought to have quashed the Charge-Memo, issued against the writ-petitioner on the ground that the concerned respondent had no jurisdiction to issue such Charge-Memo for the purpose of investigating the misconduct allegedly committed by the writ-petitioner during the period of deputation when the borrowing authority has decided to take no action. ( 13 ) WE, therefore, set aside the order passed by the Tribunal and quash the Charge-Memo being Annexure A-9 issued by the Lieutenant governor, A and N Islands. ( 14 ) THE writ application is, thus, allowed. There will be, however, no order as to costs.