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2017 DIGILAW 303 (GAU)

Lawmkima v. State of Mizoram

2017-03-09

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Victor L. Ralte, learned counsel for the petitioner. Also heard Mrs. Linda L. Fambawl, learned Government Advocate for the State respondents. 2. The present writ petitioner under Article 226 of the Constitution prays for setting aside the notification dated 30.11.2015 wherein the Governor of Mizoram has been pleased to specify the competent authorities who are to exercise powers in relation to imposition of penalties upon a Government Servant. This writ petition has been filed due to the non-implementation of the Judgment and Order dated 1.7.2015 passed by this Court in WP(C) No. 90/2015. 3. The counsel for the petitioner submits that the petitioner is a Mizoram Civil Service Officer and that while he was posted as Block Development Officer of Bungtlang South, certain allegations regarding misappropriation of money was made against the petitioner. A departmental Inquiry was drawn up against the petitioner and he was imposed with major penalty of "reduction to the lower time pay of scale, grade pay of Rs. 5400/- p.m. for a period of 3(three) years without effecting seniority and without having the effect of postponing future increments of pay. 4. The petitioner being aggrieved with the imposition of the major penalty mentioned above filed Revision Petition dated 7.1.2015 to the Chief Secretary to the Government of Mizoram. 5. The Under Secretary to the Government of Mizoram, DP & AR (CSW) wrote a letter dated 10.3.2015 in reply to the petitioner's revision petition, which is as follows:- "In referring to your revision petition captioned above, I am directed to inform you with regret that, since no new fact or material that may have the effect of changing the nature of the case has arisen, there is no further provision for revision/review against a penalty order made by and in the name of the Governor. Therefore, the major penalty of 'reduction to the lower time scale of pay, Grade pay of Rs.5400/- p.m. for a period of 3 years without effecting seniority and without having the effect of postponing future increments of pay' awarded to you vide Order No. C.14011/33/2010-P&AR(CSW) dated 10.12.2014 & 11.02.2015 shall stand." 6. Therefore, the major penalty of 'reduction to the lower time scale of pay, Grade pay of Rs.5400/- p.m. for a period of 3 years without effecting seniority and without having the effect of postponing future increments of pay' awarded to you vide Order No. C.14011/33/2010-P&AR(CSW) dated 10.12.2014 & 11.02.2015 shall stand." 6. The petitioner's counsel submits that as per the notification dated 27.5.2013 issued by the State Government and the Schedule appended thereto, the competent authority to consider the petitioner's revision petition dated 7.1.2015 in relation to disciplinary matters as per the CCS (CCA) Rules, 1965, the Revision Authority is the Governor. 7. The petitioner thereafter filed WP(C) No. 90/2015, wherein the petitioner prayed that the impugned letter dated 10.3.2015 should be set aside and the revision petition submitted by the petitioner should be considered by the Governor in view of the notification dated 27.5.2013 and the Schedule appended thereto. The relevant extract of the Schedule appended to the notification dated 27.5.2013 is as follows:- Sl. No. Description of Service/post Appointing Authority Kind of penalties specified in Rule 11 Disciplinary Authority Appellate Authority Revision/Review Authority 1 2 3 4 5 6 . 1 Group 'A' Officers (Gazetted) Governor (a)All (b) Minor{(i) (iv)} Governor Chief Secretary Governor Governor under rule 29-A Governor under rule 29-A" 8. This Court on considering the matter observed that. "8. Rule 29 of the CCS (CCA) Rules, 1965 states that the appeal/revision/review has to be filed within 6 (six) months from the date of the Order of penalty. In the present case the petitioner has submitted his revision petition within the 6(six) months period provided by Rule 29 of the CCS (CCA) Rules, 1965. 9. The revision petition dated 7.1.2015 submitted by the petitioner has been wrongly addressed to the Chief Secretary and it should have been addressed to the Governor. This mistake on the part of the petitioner however does not prejudice the respondents, inasmuch as, the petitioner's revision petition could have been placed by the Chief Secretary before the Governor. The Governor of Mizoram was pleased to specify the competent authority to exercise powers in respect of imposing penalty and also the Appellate/Revision/Review Authority vide notification dated 27.5.2013." 9. Thereafter, WP(C) No. 90/2015 was disposed of as follows:- "10. The Governor of Mizoram was pleased to specify the competent authority to exercise powers in respect of imposing penalty and also the Appellate/Revision/Review Authority vide notification dated 27.5.2013." 9. Thereafter, WP(C) No. 90/2015 was disposed of as follows:- "10. A perusal of the extract of the schedule of the notification dated 27.5.2013 goes to show that the revision authority to decide and consider the petitioner's revision petition is the Governor. As the documents in the case records and the impugned letter dated 10.3.2015 do not show that the Governor has considered or decided the petitioner's revision petition dated 7.1.2015, the petitioner's revision petition should be placed by the respondents before the Governor for his consideration and decision. The Revision Authority shall consider the petitioner's revision petition dated 7.1.2015 as expeditiously as possible and preferably within a period of 2(two) months from the date of receipt of a certified copy of this Order. Consequently, the letter dated 10.3.2015 issued by the Under Secretary to the Government of Mizoram, DP & AR (CSW) is hereby set aside." 10. The petitioner's counsel thereafter submitted a letter dated 2.7.2015 to the Chief Secretary to the Government of Mizoram, along with a copy of the Judgment and Order dated 1.7.2015 passed in WP(C) No. 90/2015 praying that the direction of this Court should be complied with. Thereafter, the Secretary to the Government of Mizoram, Vigilance Department issued a notification dated 30.11.2015, wherein it stated that the Governor of Mizoram was pleased to make an order specifying the competent authorities who were to exercise powers in appropriate manner as enumerated in the Schedule appended in respect of State Government employee who had been imposed penalties under the CCS (CCA) Rules, 1965. The new Schedule appended to the notification dated 30.11.2015 with regard to Group 'A' Officers (Gazetted) is reproduced below:- Sl No. Description of Service/Post Appointing Authority specified in Rule 11 Kind of Penalties Disciplinary Authority Appellate Authority Revising Authority Review Authority 1 2 3 4 5 6 7 8 1 Group 'A' Officers (Gazetted) Governor (a) All Governor - - Governor under rule 29-A (b) Minor {(i) to A (iv)} Chief Secretary Governor Governor under rule 29(1)(i) 11. The petitioner's counsel submits that thereafter, a letter dated 22.2.2016 was issued by the Secretary to the Governor addressed to the Secretary to the Government of Mizoram, DP&AR, with regard to the direction passed by this Court in its Order dated 1.7.2015 to consider the petitioner's revision petition dated 7.1.2015. The said letter is basically to the effect that the Governor cannot consider the petitioner's revision application as Rule 29 A mentioned in the Schedule appended to the notification dated 27.5.2013 deals only with the power of review and not the power of revision. The letter dated 22.2.2016 is reproduced below:- "With reference to the subject and your letter your letter No cited above, I am directed to bring to your kind notice that the Hon'ble Governor has gone through the facts of the case in the matter of review of disciplinary action against Shri Lawmkima, MCS in view of the Order Dated 1st July, 2015 passed by the Hon'ble Gauhati High Court, Aizawl Bench. The order passed by the Hon'ble Governor in this instant case is reproduced herewith for your kind necessary action:- "Rule 29-A of the CCS (CCA) Rules speaks about 'Review' only and not 'Revision', but in the Notification issued by the Govt. of Mizoram on 27.5.2013, the Schedule mentions 'Review' and 'Revision' in the same column which appears to be an inadvertent error. In my opinion, since a Notification rectifying the error has now been issued on 30.11.2105, the same may be placed before the Court along with an application for modification of the Hon'ble Court's order. Govt. Advocate appearing in the matter may be instructed accordingly". In view of the order passed by the Hon'ble Governor, the State Govt. may take necessary steps with regard to filing an application for modification of the Hon'ble Court's order. All files pertaining to Departmental proceedings (3 Volumes) against the officers are returned herewith." 12. The petitioner's counsel submits that the CCS (CCA) Rules, 1965 being applied in to in the State of Mizoram, the State respondents could not have done away with the power of revision of the Governor under Rule 29 of the CCS (CCA) Rules, 1965. All files pertaining to Departmental proceedings (3 Volumes) against the officers are returned herewith." 12. The petitioner's counsel submits that the CCS (CCA) Rules, 1965 being applied in to in the State of Mizoram, the State respondents could not have done away with the power of revision of the Governor under Rule 29 of the CCS (CCA) Rules, 1965. He, further submits that as the power of review under Rule 29A is in the nature of a revisionary power and not in the nature of reviewing of one's own order, the respondents' authorities could not have done away with Rule 29 of the CCS(CCA) Rules, 1965 in the new Schedule appended to the notification dated 30.11.2015. 13. The petitioner's counsel submits that the Order dated 1.7.2015 passed in WP(C) No. 90/2015 had been passed during the validity of the earlier Schedule appended to the notification dated 27.5.2013 and as the power of revision was present in the said Schedule, though the said provision/rule had not been mentioned, the same does not invalidate the power of the disciplinary authority to examine the petitioner's revision petition under Rule 29 of the CCS (CCA) Rules, 1965. 14. The petitioner's counsel also submits that the Judgment and Order dated 1.7.2015 passed in WP(C) No. 90/2015 had not been challenged by the respondents till date and neither has the State Government taken any steps for modification of the judgment and order as per the letter dated 22.2.2016, issued by the Secretary to the Governor. As such, the respondents are duty bound to comply with the said judgment and order. 15. The petitioner's counsel thus submits that in view of the above reasons, the notification dated 30.11.2015 and the Schedule appended thereto and the letter dated 22.2.2016 issued by the Secretary to the Governor, Mizoram should be set aside. 16. Mrs. Linda L. Fambawl, learned Government Advocate submits that the CCS (CCA) Rules, 1965 is being applied in the State of Mizoram in to. The Government Advocate also submits that the State Government has not issued any notification which states that Rule 29 of the CCS(CCA) Rules, 1965 is not applicable to the State. She also fairly submits that the Governor, as the disciplinary authority has the power of revision under Rule 29 of the CCS(CCA) Rules, 1965. The Government Advocate also submits that the State Government has not issued any notification which states that Rule 29 of the CCS(CCA) Rules, 1965 is not applicable to the State. She also fairly submits that the Governor, as the disciplinary authority has the power of revision under Rule 29 of the CCS(CCA) Rules, 1965. She, however, submits that as per the order issued by the Director General, P&T, the Governor, being the disciplinary authority with respect to Group 'A' Officers (Gazetted), the Governor cannot cancel his own penalty order issued earlier as the power of revision has to be applied in relation to an order issued by a Subordinate authority. She thus submits that there is no infirmity in the State respondents changing the Schedule with regard to the appropriate authorities who can consider penalties imposed upon the Government Servants, as the Governor as a disciplinary authority, cannot be made a revisionary authority, with regard to a penalty order issued in the name of the Governor. 17. I have heard the learned counsels for the parties. 18. The facts that the Judgment and Order dated 1.7.2015 passed in WP(C) No. 90/2015 has not been challenged is an admitted fact. Besides the above, the fact that the power of revision given to the President or the Governor under Rule 29 of the CCS (CCA) Rules, 1965 is not in dispute. The Schedule comprising the competent authorities, who are to decide the correctness of the imposition of penalties, as appended in the notification dated 27.5.2013, shows that the Governor has the power of revision and review under Rule 29 and 29 A of the CCS (CCA) Rules, 1965 respectively. However, in view of the fact that the Schedule appended to the notification dated 27.5.2013 has not made a reference to Rule 29 of the CCS(CCA) Rules, 1965, which could have been due to inadvertence or due to negligence, the same does not vitiate the exercise of revisionary power by the authority. 19. However, in view of the fact that the Schedule appended to the notification dated 27.5.2013 has not made a reference to Rule 29 of the CCS(CCA) Rules, 1965, which could have been due to inadvertence or due to negligence, the same does not vitiate the exercise of revisionary power by the authority. 19. In the case of N. Mani v. Sangeetha Theatre and Others reported in (2004) 12 SCC 278 , the Apex Court has held that if an authority has a power under the law, merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. 20. In the present case, the non-mentioning of Rule 29 in the Schedule appended to the notification dated 27.5.2013, does not mean that the Governor as the disciplinary authority does not have the power to decide a revision application submitted by a Government Servant, who had been imposed with a major penalty. 21. In the case of Union of India & Another v. Tulsiram Patel reported in (1985) 3 SCC 398 , the Apex Court has held that the source of power must exist for its exercise. In the present case, the source of power for exercising revisionary jurisdiction by the Governor is provided for in Rule 29 of the CCS(CCA) Rules, 1965. The non-mention of Rule 29 in the Schedule appended to the notification dated 27.05.2013 while using the word "revisionary authority", in the opinion of this Court does not take away the power of the Governor to decide a revision application. Non-mention of a source of power or inadvertence to mention the source of power does not invalidate the decision, if the power does exists. 22. Having stated the above, the decision of the Government of India, especially with regard to the Director General, P & T orders, as reflected in Page-159 of the CCS(CCA) Rules, 1965, 38th Edition-2015 states that the disciplinary authority does not have the power to revise its own order as the power of revision could only be with respect to orders issued by a Sub-ordinate authority. Keeping the above order in mind, it seems that the Governor, being the disciplinary authority of Group 'A' Officer (Gazetted), Government servant, the Governor does not seem to have the power of revision. However, a perusal of Rule 29A of the CCS(CCA) Rules, 1965 and the decision of the Government as reflected in Page 163 of the CCS(CCA) Rules, 1965, 38th Edition-2015 shows that the power of review given in Rule 29A is in the nature of revisionary power. The Government of India decision as reflected in Page-163 is reproduced below:- "President's power of review.----- Attention is invited to Notification of even number, dated the 6th August, 1981, amending Rule 29 of the CCS (CCA) Rules, 1965, and introducing Rule 29-A therein. The amendment has been necessitated by the judgment of the Delhi High Court in the case of Shri R.K. Gupta v. Union of India and another (Civil Writ Petitions Nos. 196 of 1978 and 322 of 1979-1981, Vol 26, S.L.R. 752) in which the High Court has held that under Rule 29 of the CCS (CCA) Rules, 1965- (1) the President has power to review any order under the CCS (CCA) Rules, 1965, including an order of exoneration, and (2) the aforesaid power of review is in the nature of revisionary power and not in the nature of reviewing one's own order. The matter has been examined in consultation with the Ministry of Law who have observed that the judgment of the Delhi High Court would indicate that the President cannot exercise his revisionary powers in a case in which the power had already been exercised after full consideration of the facts and circumstances of the case. There is, however, no objection to providing for a review by the President of an order passed by him earlier in revision if some new fact or material having the nature of changing the entire complexion of the case comes to his notice later. There is, however, no objection to providing for a review by the President of an order passed by him earlier in revision if some new fact or material having the nature of changing the entire complexion of the case comes to his notice later. Accordingly, Rule 29 of the CCS (CCA) Rules, 1965, has been amended to make it clear that the power available under that rule is the power of revision and a new rule, Rule 29-A, has been introduced specifying the powers of the President to make a review of any order passed earlier, including an order passed in revision under Rule 29, when any new fact or material which has the effect of changing the nature of the case comes to his notice. It may also be noted that while the President and other authorities enumerated in Rule 29 of the CCS (CCA) Rules. 1965, exercise the power of revision under that rule, the power of review under Rule 29-A is vested in the President only and not in any other authority. With the amendment of Rule 29 and the introduction of Rule 29-A, the heading of Part-VIII of the CCS(CCA) Rules, 1965, has also been appropriately changed as "Revision and Review". 23. In view of the above reasons, this Court directs that the petitioner's Revision Petition dated 07.01.2015 should be treated as a Review Petition and the Chief Secretary should place the same before the Governor for his consideration. The Reviewing Authority shall keep in mind the fact that the aforesaid power of review under Rule 29A of the CCS(CCA) Rules, 1965 is in the nature of a revisionary power and not in the nature of reviewing one's own order, while disposing the petitioner's review petition. 24. Accordingly, the Chief Secretary shall place the petitioner's revision /review petition dated 07.01.2015 along with a copy of the writ petition before the Governor within a period of 2(two) weeks from the date of receipt of a certified copy of this order along with a copy of this writ petition. Thereafter, the Reviewing Authority shall decide the issue within a reasonable period under Rule 29A of the CCS(CCA) Rules, 1965, preferably within a period of 4 (four) weeks from the date of receipt of the revision/ review petition from the Chief Secretary. 25. Thereafter, the Reviewing Authority shall decide the issue within a reasonable period under Rule 29A of the CCS(CCA) Rules, 1965, preferably within a period of 4 (four) weeks from the date of receipt of the revision/ review petition from the Chief Secretary. 25. The fact that the Governor cannot decide a revision application, if he is the disciplinary authority, has been settled by the decision made by the Government of India. However, when the Disciplinary Authority is subordinate to the Governor, the power of revision lies with the Governor, as per Rule 29 of the CCS(CCA) Rules, 1965. Further, Column 7 of the Schedule appended to the notification dated 27.5.2013 has specifically made a mention of "Revision/Review Authority". Besides the above, the fact that the CCS(CCA) Rules, 1965 having given revisionary power to the Governor under Rule 29 of the CCS(CCA) Rules, 1965, the State Government cannot do away with Rule 29 of the CCS(CCA) Rules without there being any decision to that effect being made by the competent authority. As nothing is produced before this Court showing that the State Government has decided to do away with Rule 29 of the CCS(CCA) Rules, 1965, this Court finds that the Schedule appended to notification dated 30.11.2015, doing away with Rule 29 of the CCS(CCA) Rules, 1965 is arbitrary. Accordingly, the Schedule appended to the notification dated 30.11.2015 is hereby set aside. Any consequential order issued in pursuant to the Schedule appended to the notification dated 30.11.2015 also stands set aside. 26. Writ petition is accordingly allowed. No cost.