Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 152 (GAU)

Bimalendu Gupta, Son of Late Biswanath Gupta Resident of B-103, Arunudoi Residency, Sahid Dilip Huzuri Path, Sarumotoria, Dispur, Assam v. Union of India, Represented By The Secretary To The Government of India, Ministry of Home Affairs (Department of Personnel and Administratie Reforms) North Block, New Delhi – 1

2012-02-04

AMITAVA ROY, P.K.MUSAHARY

body2012
Amitava Roy, J;— In assailment is the judgment and order dated 18.06.2010, passed by the learned Central Administrative Tribunal, Gauhati Bench, Guwahati (for short hereafter referred to as the Tribunal) in OA No.170/2008. Thereby, the petitioner’s impugnment of his removal from service as a disciplinary measure has been negated. 02. We have heard Ms. M Dev, Advocate assisted by Ms. S Khan, Advocate for the petitioner and Mr. R Sarma, learned Assistant Solicitor General of India, Gauhati High Court for respondent Nos. 1 & 2. Also heard Mr. G Baishya, learned counsel appearing for the respondent Nos.3,4 & 5. 03. The thumbnail facts indispensable for the disposal of the instant petition are that the petitioner, who at the relevant time was serving as Senior Accountant in the office of the Accountant General (A&E), Assam, Guwahati was served with a memorandum of charges dated 23.04.2007 under the hand of Senior Deputy Accountant General (Administration), proposing to hold enquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short hereafter referred to as the Rules) on the charges listed out in Annexure-1 thereto. He was, prior thereto, placed under suspension by order dated 11.04.2007 issued by the Senior Deputy Accountant General (Admn). Being dissatisfied with the order of suspension, the petitioner after having unsuccessfully, pleaded with the concerned authorities, approached the learned Tribunal and while the proceedings before it were pending, he was, by order dated 26.03.2008 removed from service on the conclusion of the disciplinary proceeding so initiated vide the order of the even date of the Senior Deputy Accountant General (Admn), Assam. The petitioner submitted an appeal against this decision before the Principal, Accountant General (A&E) Assam (the post of Accountant General (A&E), Assam Guwahati have meanwhile been upgraded and re-designated as Principal Accountant General (A&E), Assam). The Appellate Authority in his turn, by the order dated 07.07.2008 dismissed the appeal. The petitioner’s impeachment of the disciplinary proceeding and the orders passed therein before the learned Tribunal having failed, he is before this Court seeking to invoke its extra ordinary jurisdiction under Article 226 of the Constitution of India for redress. 04. The Appellate Authority in his turn, by the order dated 07.07.2008 dismissed the appeal. The petitioner’s impeachment of the disciplinary proceeding and the orders passed therein before the learned Tribunal having failed, he is before this Court seeking to invoke its extra ordinary jurisdiction under Article 226 of the Constitution of India for redress. 04. The principal challenge laid by the petitioner before the learned Tribunal and reiterated in the instant proceeding is want of authority of the Senior Deputy Accountant General, (Admn), Assam in initiating the departmental proceeding by the memorandum dated 23.04.2007 and, eventually, imposing the penalty of removal from service. According to the petitioner, in terms of the relevant Standing Orders prescribing organizational configuration and hierarchy of the concerned authorities, as the Accountant General (A&E), Assam is the Head of his office, it was he alone, who was empowered in law to do so. The disciplinary action being, thus, non est in law, having been resorted to by an authority incompetent in terms of the mandatory norms prescribed by the Indian Audit and Accounts Department, the penalty of removal is void ab initio. Though, the petitioner before the learned Tribunal also pleaded unfairness in action for having been rendered unable to participate in the disciplinary proceeding being denied the subsistence allowance due to him in law, this plea has not been persuaded in course of the arguments. 05. The respondents in their written statement in the proceedings before the Tribunal, in substance, asserted that the Senior Deputy Accountant General in terms of the relevant Standing Orders was duly authorized in law to initiate the departmental proceeding against the petitioner and award the penalty as done. According to them, having regard to the gravity of the proved charges, the penalty of removal is commensurate thereto and, thus, no legal flaw is discernible in the decision of the Appellate Authority as well. 06. The learned Tribunal, on a perusal of the pleadings of the parties and the documents on record rejected both the contentions of the petitioners and sustained the impugned decision of the respondents. 07. Ms. 06. The learned Tribunal, on a perusal of the pleadings of the parties and the documents on record rejected both the contentions of the petitioners and sustained the impugned decision of the respondents. 07. Ms. Dev has emphatically argued with reference to Rule 12 of the Rules that the Accountant General/Principal Accountant General (A&E), Assam being head of the office of the petitioner, Senior Deputy Accountant General (Admn) has no jurisdiction/power to take any disciplinary action against him and that on that count alone, the learned Tribunal ought to have adjudged the actions to be non-existent in law. She pleaded that the post of Senior Accountant was a Group-C post in the General Central Service governed by the Rules and the Accountant General (A&E)/Principal Accountant General being the appointing authority of the petitioner, any officer sub-ordinate to him in rank was not authorized in law to initiate any departmental proceeding against him. According to her, in the instant case, the only authority, who could have resorted to the disciplinary measure, is the Principal Accountant General/Accountant General (A&E) and none else. Referring to the Comptroller and Auditor General’s Manual of Standing Orders (Administrative) Vol-I & II (for short hereinafter also referred to as the Standing Orders), the learned counsel has insistently argued that the Principal Accountant General/Accountant General (A&E) is the Head of office of the Civil Audit of Accounts Offices, Assam and thus the Senior Deputy Accountant General (Admn), by no means could be designated as the appointing/disciplinary authority and, therefore, the learned Tribunal had fallen in error in rejecting the petitioner’s plea to this effect. 08. Mr. Sarma has, as against this also referred to the same Standing Order and submitted that the Senior Deputy Accountant General (Admn), being duly authorized thereunder had validly taken the disciplinary action against the petitioner. According to him, the Principal Accountant General/Accountant General (A&E), as the Appellate Authority, on an indepth consideration of the materials on record dismissed his appeal on cogent and convincing grounds and, therefore, no interference with the determination made by the learned Tribunal is called for. 09. Mr. According to him, the Principal Accountant General/Accountant General (A&E), as the Appellate Authority, on an indepth consideration of the materials on record dismissed his appeal on cogent and convincing grounds and, therefore, no interference with the determination made by the learned Tribunal is called for. 09. Mr. Baishya, while generally endorsing the above stand has drawn the attention of this Court to Clause 1.12 of the Standing Orders (Vol-II) together with Annexure-I thereof to plead that the Senior Deputy Accountant General (A&E) was empowered to initiate the departmental proceeding and impose the penalty as considered appropriate having regard to the proved charges against the petitioner. In order to bolster his point that the Senior Deputy Accountant General is the appointing/disciplinary authority vis-a-vis the Group-C post of Senior Accountant held by the petitioner at the relevant time, the learned counsel placed reliance on the copy of the issue dated 24.09.1988 of The Gazette of India publishing the notification S.O. No. 2815, dated 13.09.1988. He has also referred to Section E to the Standing Orders (Vol-II) to contend that the Principal Accountant General/Accountant General (A&E) as the Head of the department was only the Appellate Authority vis-a-vis the petitioner in the concerned disciplinary proceeding. 10. In reply, Ms. Dev, has referred to a copy of the mortgage deed executed by the petitioner in connection with official loan obtained by him countersigned by the Accountant General, Meghalaya etc. She reiterated that the Accountant General is the Head of the office under whom the petitioner had been serving when the impugned departmental proceeding was launched against him. 11. We have duly extended our cautious consideration to the rival pleadings as well as the arguments advanced. That the post of the Senior Accountant in the office of the Accountant General (A&E), Assam, Guwahati, is a Group-C post of the General Central Service governed by the Rules is a matter of record. Rule 12 (2) (b) ordains that any of the penalties specified in Rule 11 may be imposed on a person appointed to a Central Civil Post included in the General Central Service by the authorities specified in that behalf by a general or special order of the President or where no such order has been made, by the Appointing Authority or the authority specified. In the Schedule referred to hereinabove vis-a-vis Group-C posts in non Secretariat Office other than the one in respect of which specific provision has been made, by a general or special order of the President, the Appointing Authority and the Disciplinary Authority of the incumbents thereof are the Head of the Office and in case such Head of Office is subordinate to a Head of Department under the Ministry or Department of Government, such Head of Department. If the Head of the Office is himself, the head of Department, or is not subordinate to any Head of Department, the Secretary in the Ministry or Department of Government would be the appellate authority. 12. In Clause 1.12 of the said Standing Orders (Vol-I), reference to a list of all the field offices has been enumerated in Annexure-I to the Chapter. This list discloses the Office of the Accountant General (A&E), Assam, Guwahati and Branch Office at Shillong to be one of the Civil Audit of Accounts Offices. 13. As adverted to hereinabove in the Schedule to the Rules, vis-a-vis Group-C post in General Central Service, the appointing authority and the disciplinary authority has been identified to be the Head of the Office, who is authorized to award of penalties with the rider that if such Head of Office is subordinate to a Head of Department under the Ministry or Department of Government, than the Appellate Authority would be the latter i.e the Head of Department. Further, if the Head of Office is himself the Head of Department, the Appellate Authority in such an eventuality would be Secretary in the Ministry or Department of Government. 14. S.O. NO.2815, dated 13.09.1988 published in the Gazette dated 24.09.1988 of the Gazette of India in the exercise of the powers under the provisions of the Rules as referred to therein discloses that His Excellency, the President of India, in consultation with the Comptroller and Auditor General of India had specified the Appointing/Disciplinary/Appellate Authorities vis-a-vis the Group-B, Group-C and Group-D posts in the General Central Service. In terms of this notification, for all Group-C posts, the Appointing/Disciplinary Authority is the Senior Deputy Accountant General/Deputy Accountant General/Officers of equivalent rank are empowered to award all penalties, the Appellate Authority being the Head of the Department in the rank of Principal Accountant General/Accountant General. In terms of this notification, for all Group-C posts, the Appointing/Disciplinary Authority is the Senior Deputy Accountant General/Deputy Accountant General/Officers of equivalent rank are empowered to award all penalties, the Appellate Authority being the Head of the Department in the rank of Principal Accountant General/Accountant General. These entries, as would appear from a comparative study have been replicated in Section E of the Standing Orders (Vol-II), dealing with General Central Service relating to the Indian Audit and Accounts Department. In this view of the matter, in absence of any overwhelming material to the contrary, we are inclined to hold that vis-a-vis the petitioner, who at the relevant time was holding a Group-C post under the General Central Service, the Appointing/Disciplinary Authority could be the Senior Deputy Accountant General/Deputy Accountant General/Officers. 15. Additionally, his appointment letter, available on records also discloses the Senior Deputy Accountant General (Admn) to be his appointing authority. In that view of the matter, in the above backdrop of the relevant provisions of the Rules and the Standing Orders, we are of the unhesitant opinion that this authority could have and did validly initiate the departmental proceeding against him and finally award the penalty of removal under the Rules. As a corollary, the Accountant General did legally act as the Appellate Authority. The plea of want of authority of the aforementioned authorities as perceived by the petitioner is thus untenable in law and on facts. We respectfully, concur with the conclusion recorded by the learned Tribunal in this regard. No other plea having been raised as indicated hereinabove, we find no substance in the challenge. The petition lacks in merit and is dismissed. No costs. _____________