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Dr. H. Mukherjee vs S.K. Bhargava on 9 April, 1996
Dr. Preetesh Kumari vs The Director on 14 August, 2008
Article 12 in The Constitution Of India 1949
The Administrative Tribunals Act, 1985
Article 311 in The Constitution Of India 1949

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Central Administrative Tribunal - Delhi
Dr. V.K. Kashyap vs Union Of India on 18 September, 2009

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

OA No.897/2009

New Delhi, this the 18th day of September, 2009.

Honble Mr. Justice V.K. Bali, Chairman

Honble Dr. Ramesh Chandra Panda, Member (A)

Dr. V.K. Kashyap,

S/o Shri N.D. Kashyap,

R/o National Institute of Biologicals,

A-32, Sector 62, NOIDA (U.P.) Applicant.

(By Advocate: Shri L.R. Khatana)

Versus

1. Union of India

Through Secretary to the Govt. of India,

Ministry of Health & Family Welfare,

Nirman Bhavan,

New Delhi.

2. The Chairman,

General Body & Governing Body,

National Institute of Biologicals,

Ministry of Health & Family Welfare,

Government of India,

A-32, Sector-62, Institutional Area,

Phase-II, NOIDA-201301 (U.P.). Respondents.

(By Advocate: Shri Naresh Kaushik with Ms. Manisha Badani)

:O R D E R:

Dr. Ramesh Chandra Panda, Member(A)

Dr. V. K. Kashyap, the Applicant herein, visiting this Tribunal for the 3rd time, has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:- 8. (A) That this Honble Tribunal may be pleased to declare the impugned order dated 21.1.2009 as illegal, arbitrary, mala fide, without jurisdiction and ultra vires the powers of the respondent and quash and set aside the same and direct the respondents to allow the applicant to join forthwith and permit him discharge the functions and duties of his post as per the relevant rules, regulations, and the law and allow him all the consequential benefits including the pay and allowances of the post for the period of suspension.

(B) Pass any such other or further order or direction as this Honble Tribunal may deem fit and proper in the facts and circumstances of this case.

(C) Award heavy costs against the respondents and in favour of the Applicant. 

2.1 The factual matrix of the case would reveal that the Applicant while working as Director, Central Forensic Laboratory (CFL) Kolkata, applied for the post of Director, National Institute of Biologicals (NIB, for short) in pursuance to an advertisement issued dated 1-7 February, 2003. He was selected as the Director NIB on the basis of his merits and performance in the interview conducted by the Search cum Selection Committee. He was appointed by the Central Government vide Ministry of Health and Family Welfare Letter F.No.-A/11018/22/2000-DMS&PFA (Vol. II) dated 7.2.2005. Pursuant to the said order, he joined the post of Director NIB on 5.4.2005. His appointment was for a period of five years from the date of his joining. It is the case of the Applicant that without any prior notice issued to him and any explanation called for from him, he was attached to the office of the Director General, Indian Council of Medical Research (ICMR) vide order dated 29.8.2005. Against the said order the Applicant filed OA No.1896/2008 before this Tribunal, which was decided on 17.01.2009 with the following directions to the respondents. 40. As regards disciplinary proceedings, the same are not surfaced as per the law against the applicant. However, nothing precluded the respondents to resort suspension of the applicant, as an employee of the Institute or even repatriation to the present cadre would have been one of the modes to ensure smooth functioning of administration but to achieve that a methodology not approved in law cannot be resorted to. We do not approve & subscribe the view of the departmental authorities for which rules and law shall take its own course.

41. However, we have no hesitation to rule that the order passed by the official respondents attaching the applicant with ICMR is beyond the scope of rule and being an administrative authority, the act of the Government is not in consonance with law.

42. Resultantly, the OA is allowed. Order dated 29.8.2008 with regard to attachment of the applicant with ICMR is set aside. Respondents are directed to continue the applicant as Director, NIB forthwith, with all consequences in law. No costs.

2.2 It is the case of the Applicant that despite the directions given by this Tribunal, the Applicant has not been allowed to join the post of Director, NIB and on the other hand, the Respondents served on him the impugned order dated 21.01.2009 (Annexure A/1), as per which the Applicant was placed under suspension with immediate effect. Though, the Applicant made several representations followed by reminders against the said order but no action had been taken by the Respondents. Aggrieved by the action of the Respondents, Applicant has approached this Tribunal for the second time with a Contempt Petition in CP No.132/2009. While disposing of the CP on 14.7.2009, this Tribunal deprecated the methodology by which the directions of the Tribunal were complied with by the Respondents in true letter and spirit which preceded the joining of the Applicant in his post of Director, NIB but exercising the discretion power, the Applicant was suspended in a major disciplinary proceeding vide order dated 21.1.2009. The Applicant, having been aggrieved, is, therefore, challenging his suspension order dated 21.1.2009 (Annexure A/1) in this OA,

3. Shri L. R. Khatana, the learned Counsel appearing for the Applicant, at the outset, highlighted about the distinguished career and outstanding academic achievement of the Applicant. He contended that the administrative authority for suspending the Applicant was the General Body of the NIB as per the Rules and Regulations of the NIB. But in case of this Applicant, he was suspended by the President of India, which, being contrary to the Rules and Regulations of the NIB, must be quashed as arbitrary and invalid. (i) He further contended that the President has no power as per the Memorandum of Association, Rules and Regulations and the Bye Laws of the NIB and as such the suspension order passed by the President is against law. The President, Shri Khatana contends, is not the Competent Authority to take disciplinary action against him, less to speak of suspending the Applicant. (ii) Shri Khatana drew our attention to the Bye Law 38, Schedule-II of the Bye Laws, and General Clause in the Bye Law 3 of NIB to state that though the CCS (CCA) Rule 1965 are mutatis mutandis applicable to the NIB employees including the Applicant, the powers of the President of India as stated in CCS (CCA) Rules are applicable for government employees and not to the employees of NIB including the Applicant. Thus, he contends that order passed by the President in suspending the Applicant, is beyond the jurisdiction. (iii) Referring to the Rule 11 dealing with Principal Executive Officer, Shri Khatana contends that Director of the Institute, who shall be appointed by the General Body of the Institute, General Body is the Appointing Authority for the Applicant, and thus, it is the General Body (not the Government/President) competent to initiate disciplinary action including suspension of the Applicant. (iv) In this context, he drew our attention to the General Clause in Bye Law 3 to highlight that in case any of the Bye Laws is inconsistent with the Rules and Regulations of NIB, it is the provisions of the Rules and Regulations which shall prevail. He, therefore, contended that Bye Law 16 and the Schedule to the Bye Laws stipulating the Government as the Appointing Authority being inconsistent with the Rule 11 of the NIB (General Body of the Institute is competent to appoint the Director NIB), the Rule 11 would prevail over the Bye Laws. (v). Another associated contention raised by the counsel for the Applicant relates to the fact that once the order was passed by the President of India, the Applicant lost his right to appeal. In support of his all the above contentions he relied on the following judgments of Supreme Court of India in (i)B. S. Minhas versus Indian Statistical Institute and others [1983 (4) SCC 582]; (ii) Kanta Devi (Smt.) versus Union of India and Another (2003-4-SCC-753); and (iii) Prahlad Sharma versus State of UP and Others (2004-4-SCC-113).

4. On the other hand, Shri Naresh Kaushik, the learned Counsel assisted by Ms. Manisha Badani, the learned Counsel representing the Respondents opposed the contentions raised in support of the Applicant. At the outset, Shri Kaushik highlighted (a) the importance of NIB, (b) declining standards of performance of NIB during Applicants tenure, and (c) the appeal preferred by the Applicant to the Minister of Health and Family Welfare against the order of suspension was considered and rejected. He also highlighted certain complaints received against the Applicant involving financial, administrative and technical improprieties, besides the case of sexual harassment levelled against him where the Committee concerned indicted the Applicant. Adverting to the contentions raised by Shri L. R. Khatana, Shri Naresh Kaushik drew our attention to the same set of Bye Laws, Rules and Regulation of NIB to highlight that the Appointing and the Disciplinary Authority in respect of the Director of NIB is the Government of India. Shri Kaushik submitted a set of copy of orders and letters during the hearing to argue that the Applicant was appointed by the Government of India which he accepted and did not challenge his appointment order. He stated that as per Schedule II of Bye Laws, Government being the Competent Appointing and Disciplinary Authority in case of Director, NIB, the suspension order passed by the President does not contravene any law. He also highlighted that the NIB was established as a society by the Government. NIB is under the administrative control of the Ministry of Health and Family Welfare and is being fully funded by the Central Government. He submits that as per Bye Laws of NIB, the Appointing Authority, Disciplinary Authority and Appellate Authority in respect of Director, NIB is Government and, as such, the suspension order against the Applicant is as per the Bye Laws of NIB and is valid in law. He also contends that there is no inconsistency between the Rule 11 and Bye Law 16 and Schedule to Bye Laws. He also drew our attention to this Tribunals order dated 17.1.2009 in OA No.1896/2008 where it was observed that nothing precluded the respondents to resort to suspension of the Applicant as an employee of the Institute or even repatriation to the parent cadre, and the Respondents had followed the said guidance. Shri Kaushik furnished a copy of the Minutes of the 4th meeting of the General Body of NIB held on 14.10.2008 and submitted that the initiation of disciplinary proceedings for major penalty against the Applicant was approved by the General Body. He, therefore, urges that OA should be dismissed.

5. Having heard the rival contentions and perused the pleadings, the only issue that comes before us for consideration and determination is - Whether the suspension order of the Applicant was passed by the Competent Authority?

6. We would examine the issue of the Applicants suspension, which is based on the question who is the Appointing Authority in case of Director NIB since it is the Appointing Authority or the Authority higher than him is the competent authority to suspend the Director NIB. The counsel for the Applicant through his elaborate argument has elucidated that the General Body of NIB is the Appointing Authority. Per contra, the counsel for the Respondents has stated that the Government is the Appointing Authority. Hence, the question before us for decision in the first instance is who is the Appointing Authority for the Director NIB? We would examine the question from two different angles namely (i) facts of the case and (ii) legal angle taking into account the relevant provisions of Rules and Regulations, Bye Laws and Recruitment Rules of the NIB for determining the same.

7. Let us consider the facts. It is undisputedly admitted fact that an advertisement appeared on the news papers on 19.1.2003 calling for application for the post of Director, NIB; a Selection Committee was constituted which selected the Applicant in its meeting held on 4.7.2003 for the post of Director, NIB; and after the approval by the NIB General Body in its meeting held on 25.7.2003, the proposal was submitted to the Government. The proposal for the post of Director so recommended by the General Body of the NIB, was approved by the Appointments Committee of the Cabinet (ACC) which was conveyed to the Respondent No.1 vide the Government letter dated 17.1.2005. the Applicant was issued an offer letter for his appointment to the post of Director, NIB vide F. N. A.11018/22/2000-DMS&PFA (Vol. II) dated 31.1.2005 which he accepted on the same day and sent his letter by courier to the Joint Secretary, Food & Drugs Administration, Ministry of Health and Family Welfare. The Ministry of Health and Family Welfare vide order dated 07.02.2005 issued the appointment of the Applicant as Director, NIB. In the meantime, the Ministry of Home Affairs vide order No.3/12/2001-Adm dated 23.3.2005 ordered that the Applicant stands relieved of his duties with effect from 4.4.2005 (AN) to enable him to take up his new assignment. He joined the said post on 5.4.2005.

8.1 We extract below the letter conveying the decision of the Appointments Committee of the Cabinet and offer of appointment letter dated 31.1.2005, which read as follows:-

I. Letter conveying the approval of the Appointments Committee of Cabinet

 No.5/17/2003-EO(SM.II)

Government of India

Secretariat of the Appointments Committee of the Cabinet

Ministry of Personnel, Public Grievances & pensions

Department of Personnel & Training

New Delhi, dated the 17th January, 2005

Reference Correspondence resting with Ministry of Health & Family Welfare DO No.A-11018/22/2000-DMS and PFA (Pt.), dated 1.12.2004.

2. The Appointments Committee of the Cabinet has approved the appointment of Dr. V. K. Kashyap, Director, Centre for Forensic Science Laboratory, Kolkata as Director, National Institute of Biologicals (NIB) in the pay scale of Rs.22400-24500/- w.e.f. the date of assumption of charge of the post and until further orders.

3. The ACC has also approved ex-post facto, assignment of additional charge of the post of Director, National Institute of Biologicals to Dr. N. K. Ganguly, DG, ICMR for the period from 1.3.2002 and till post is filled on regular basis.

(Ravindra Kumar)

Under Secretary to the Govt. of India

Ministry of Health & Family Welfare,

(Shri P. K. Hota, Secretary),

Nirman Bhawan,

New Delhi.

II. Offer of appointment Letter dated 31.1.2005

 By Speed Post

F.No.A.11018/22/2000-DMS&PFA(Vol.II)

Government of India

Ministry of Health & Family Welfare

Nirman Bhavan, New Delhi,

31st January 2005

To

Dr. V. K. Kashyap

Director

Centre for Forensic Science Laboratory,

Kolkatta

Sub : Appointment to the post of Director, National Institute of

Biologicals (NIB), NOIDA.

Sir,

I am directed to say that on the recommendations of the Search cum Selection Committee it has been decided to offer you appointment on the permanent post of Director, National Institute of Biologicals (NIB) in the pay scale of Rs.22400-525-24500. Your initial pay in the scale will be fixed in accordance with the normal rules and, in addition, you will be eligible for the usual allowance under the rules and orders in force from time to time. Other terms and conditions of your appointment will be as follows:

Your appointment will be on probation for a period of one year from the date of your appointment which may be extended or curtailed at the discretion of the competent authority.

During the period of probation, you will be required to undergo such training and such departmental tests as Government may prescribe. Failure to complete the period of probation to the satisfaction of the competent authority or to pass the prescribed tests, will render you liable to be discharged from service.

You will be liable to be discharged from service at any time without notice, if on any information received relating to your nationality, age, health etc. Government is satisfied that you are ineligible or otherwise unfit for Central Government service.

During probation period, the appointment may be terminated at any time by a months notice given by either side, namely, the appointing authority or the appointee, without assigning any reason the appointing authority, however, reserves the right of terminating the services of the appointee forthwith on or before the expiration of the stipulated period of notice by making payment to you of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof.

You will not be entitled to any traveling allowances for joining the post unless you are holding substantively a permanent appointment under the Central or State Government.

(a) you are required to submit a declaration in the enclosed from X

(b) Submit a declaration to the effect that you are aware that in case any statement in the attestation form earlier filed by you is found to be incorrect your services can be terminated by the government without notice.

This appointment will be further subject to your taking an oath of allegiance/faithfulness to the Constitution of India or making a solemn affirmation to that effect in the prescribed form. Other conditions of your service will be governed by the relevant rules and orders in force from time to time.

At the time of joining you will be required to produce the following certificates/documents in original:

(i) Certificates of Education Qualifications.

(ii) Scheduled Caste/Scheduled Tribe/OBC Certificate in the prescribed form (in case of SC/ST/OBC candidates only).

Your appointment will be subject to any other orders issued by the Government from time to time.

You should send your acceptance together with the declaration regarding marital status in the enclosed proforma in this office within 15 days from the date of issue of this letter. If no reply is received by the stipulated date, it will be presumed that you are not interested in the offer, which will be treated as cancelled.

Please acknowledge the receipt of this letter.

-sd-

K. Patney)

Under Secretary to the Government of India.

8.2 Acknowledging the above cited order dated 7.2.2005, the Applicant joined the post of Director, NIB on 5.4.2005. We take the extract of the Charge Assumption Certificate dated 5.4.2005 submitted by the Applicant which reads thus:- CHARGE ASSUMPTION CERTIFICATE

Dated 5/4/2005

In pursuance of the Order of the Government of India, Ministry of Health & F.W. vide its letter No. A.11018/22/2000-DMs&PFA (Vol.II) dated 07/02/2005 appointing the undersigned to the post of Director, National Institute of Biogicals, A-32, Sector-62, Noida-201 307 in the pay scale of Rs.22400-525-24500, I hereby assume the charges of the post of Director, National Institute of Biologicals, A-32, Sector-62, Noida-201 307 w.e.f. F/N of 5th April, 2005. -sd-

(Dr. V. K. Kashyap)

8.3 Initiation of disciplinary proceedings for major penalty against the Applicant as the Director of the Institute was approved by the General Body of NIB in the 4th Meeting of the General Body of the Institute held on 14.10.2008 and the same was communicated to the Director NIB on 14-11-2008. The communication reads as follows:

 A.11018/13/08-DFQC

Government of India

Ministry of Health & Family Welfare

Nirman Bhavan, New Delhi

Dated the 14th November, 2008

To

The Director

National Institute of Biologicals

A-32, Sector-62 (Institutional Area)

NOIDA-201307

Subject : Minutes of 4th Meeting of the General Body of National Institute of Biologicals-reg.

Madam,

I am directed to refer to the Institutes letter No.E.3-12/2008-NIB/1055, dated 22.10.08 on the above mentioned subject and to convey the approval of the competent authority to the draft minutes of the 4th Meeting of the General Body of the Institute held on 14.10.2008 subject to the condition that the Agenda item No.3 (Any other agenda with the permission of the Chair) may be replaced with the following:

Agenda Item NO.3- Any other agenda with the permission of the Chair-Disciplinary proceedings against Dr. V. K. Kashyap, former Director, NIB.

Initiation of disciplinary proceedings for major penalty against Dr. V. K. Kashyap former Director of the Institute was noted and approved by the General Body.

Yours faithfully,

(Sudhir Kumar)

Under Secretary to the Government of India

Telefax: 23062292

8.4 The Applicant was first attached to the office of the Director General of ICMR and by intervention of the Tribunal, though he was to be reposted to the post of Director NIB, but due to the decision of the General Body of NIB contemplating to take disciplinary action for major penalty , he was placed under suspension vide order dated 21-1-2009 by the President in exercise of powers conferred by sub-rule (1) of Rule 10 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965

 No.A.11018/12/2007-DFQC

Government of India

Ministry of Health & Family Welfare

Nirman Bhavan,

New Delhi, dated the 21st January, 2009.

O R D E R

WHEREAS, a disciplinary proceeding against Dr. V. K. Kashyap, Director, National Institute of Biologicals, NOIDA (U.P.) is contemplated.

NOW THEREFORE, the President, in exercise of powers conferred by sub-rule (1) of Rule 10 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, hereby places the said Dr. V. K. Kashyap under suspension with immediate effect.

It is further ordered that during the period that this order shall remain in force the headquarters of Dr. V. K. Kashyap shall be the office of Chairman, National Institute of Biologicals and he shall not leave the headquarters without obtaining the previous permission of the Competent Authority.

(By order and in the name of the President)

-sd-

(Sudhir Kumar)

Under Secretary to the Government of India

Phone 23062292

Copy to

Dr. V. K. Kashyap, Director, National Institute of Biologicals, NOIDA (U.P.)-orders regarding subsistence allowance admissible to him during the period of his suspension will issue separately.

9. The above cited communications clearly and unambiguously bring out the fact that the Government in the Ministry of Health & Family Welfare has issued the appointment letter to the Applicant; he accepted the same and informed the Government. Appointment to the posts under the Institute is governed by the Bye Laws of NIB. Bye Law 16.1 envisages that appointment in the case of Director is made by the Government on the recommendation of the General Body. The Rule 2 (b) of NIB Recruitment Rules 1994 defines the Appointing Authority as the authority empowered to make appointments to various posts as per Bye law 16 of the Bye Laws of the Institute. The appointment in our considered view was properly done by the Government. Further, the General Body of NIB in its meeting held on 14.10.2008 has decided to take disciplinary action for major penalty proceedings and the suspension of the Applicant by the President is a subsequent event. The fact remains that the NIB does not have a separate Discipline and Appeal Rules. This institute being fully a Government Institution has mutatis mutandis adopted CCS(CCA) Rules and in fact the suspension order in case of an officer in Group A post to which the Applicant belongs in NIB has to be issued by President. Facts reveal that Government is the Appointing Authority.

10. The learned Counsel for the Applicant has interpreted some of the provisions to say that there are only 2 authorities in NIB under Rule 5 viz., (i) The General Body and (ii) Governing Body and as per Rule 11, the General Body of NIB is the Appointing Authority and though the Bye Law 16.1 indicates Government as the Appointing Authority which creates inconsistency between Rule-11 and Bye Law 16.1, the Bye Law-3 General Clause becomes operational to solve the issue. The Bye Law-3 reads:Nothing in these Bye Laws shall be inconsistent with the Rules and Regulations of the National Institute of Biologicals and in case of any such inconsistency the provisions of the Rules and Regulation shall prevail. In order to appreciate the rival contentions of the parties a reference may be made to the relevant provisions of Rules and Regulations, Bye Laws and Recruitment Rules of the NIB, which are relevant for determining the issue. The rival parties have referred to some of the following provisions in their respective arguments:

11.1 Rules 4.3, 5, and 11 of the Rules and Regulations of NIB are relevant in the case and those are thus:

4.3 Subject to approval of the Government of India the General Body may make or alter the rules and regulations of the Institute at any time by resolution passed by the majority of not less than 3/5 of the members present and voting at any meeting of the General Body which shall be convened for the purpose after giving due notice of such resolution to the members of the General Body.

5. AUTHORITIES OF THE INSTITUTE

The General Body.

The Governing Body.

11. PRINCIPLE EXECUTIVE OFFICER

The Director of the Institute, who shall be appointed by the General Body of the Institute with the approval of the Government of India, shall be the Principal Executive Officer of the Institute. He/She shall have the financial and administrative powers as may be prescribed the Governing Body.

Provided that the Project Director, National Institute of Biologicals, appointed by the Government of India, Ministry of Health and Family Welfare shall be the first Director of the Institute.

11.2 Bye Laws for administration and management of the NIB were framed under Rule 14 (3) (vii) of the Rules and Regulations of NIB. The relevant Bye Laws (2.1, 2.5, 3, 16, 16.1 18.1 and 38 including the Schedule II under 38) for addressing the issue in this OA are as follows:- 2.1 Appointing Authority in relation to any post under the Institute means the authority competent to make the appointment to that post.

2.5 Employee means a person serving the Institute in any post or capacity.

GENERAL CLAUSE

Nothing in these Bye-Laws shall be inconsistent with the Rules and Regulations of the National Institute of Biologicals and in case of any such inconsistency the provisions of the Rules and Regulations shall prevail.

APPOINTING AUTHORITIES

Appointment to the posts under the Institute shall be made :

16.1 By the Government in the case of Director on the recommendation of the General Body.

18.1 Direct Recruitment.

18.1.1 Appointment to any post by direct recruitment shall be made on the basis of recommendations of a selection committee.

The selection for the post of Director shall be made by a special selection committee appointed by the General Body and approved by the Government. The Director shall be a distinguished medical or non-medical scientist. His appointment shall be for a tenure of 5 years, not extending beyond the age of 60 years. The tenure may be extended for a further term up to the age of 62 years or terminated on 3 months notice or pay in lieu of notice, if considered appropriate and for reasons to be recorded in writing by the General Body.

CONDUCT, DISCIPLINE AND PENALTIES

The Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Central Civil Services (Conduct) Rule, 1964 as amended from time to time shall mutatis mutandis apply to the employee to the Institute provided that for this purpose the appointing authority, the Disciplinary Authority for the penalties that may be imposed and the Appellate Authority for the various posts in the Institute shall be as prescribed in Schedule II.

38.1 Except where specifically provided otherwise, the Governing Body shall exercise the same powers in respect of its employees as are exercisable by the President of the Union of India in respect of Central Government Employees. Powers of the Disciplinary Authority shall be exercised by the appointing authority and the powers of the Appellate Authority shall be exercised by the next higher authority/Governing Body.

11.3 The Appointing, Disciplinary and Appellate Authority for the various posts in the Institute are in the Schedule II of the Bye Laws. The Item 1 (i) in 6 columns of the said Schedule deals with Director of the NIB and as such relates to the case which reads as follows : SCHEDULE II

The Appointing, Disciplinary and Appellate Authority for the various posts in the Institute.

___________________________________________________________

S.No. Description of Appointing Authority competent to impose Appellate

Posts Authority penalties and penalties which it Authority

may impose with reference to rule

11 of the Central Civil Services

(Classification, Control and Appeal)

Rules, 1965.

_____________________________

Disciplinary Penalties under rule 11

Authority of Central Civil Service

(Classification, Control

and Appeal) Rules 1965

_____________________________________________________________________

(1) (2) (3) (4) (5) (6)

_____________________________________________________________________

GROUP A POSTS

(I) Director Government Government All subject to the Government

condition that

penalties (v) to (ix)

shall not be imposed

without the prior

approval of the Central

Government.

_______________________________________________________________________

11.4 The Institute framed its Recruitment Rules for various posts including the Director which defines Appointing Authority in Rule 2(b) which reads as follows: NIB Recruitment Rules, 1994 DEFINITIONS

In these rules unless the context otherwise requires, the following terms shall connote as under:-



(b) Appointing Authority means the authority empowered to make appointments to various posts as per Bye law 16 of the Bye Laws of the Institute.

12. The NIB is an Institute specifically constituted by the Ministry of Health and Family Welfare, Government of India. This is registered as a Society and is being run and controlled by the Government. It is not only fully dependent on the Government of India in respect of its finances but also for the administration and management of the Institute. The NIB is being looked after by the General Body and Governing Body of the Institute. We find that the Chairman and majority of Members of the General Body and Governing Body of the Institute are from the Government of India. The NIB is, therefore, an Institute of the Government of India and thus we are of the considered opinion that NIB is an instrumentality of the State under the ambit of the Article 12 of the Constitution of India. This OA is to be considered by us in this setting.

13. Against this background we need to examine the context of the case in the OA. The Applicants appointment as Director, NIB, and the legal issues raised by the Counsel for the Applicant need our examination. Shri Khatana contended that as per the Rules and Regulations, neither the President of India nor the Government of India is competent to take disciplinary action, much less to place the Applicant under suspension. Thus, Shri Khatana contends that the order of Applicants suspension is void ab initio, and de hors the Rules. The issue of Competent Authority to appoint the Applicant was raised by the counsel for the Applicant and argued that there were inconsistency between the provision in the Rules and Regulations on the one hand and the Bye Laws on the other. Citing the General Clause in the Bye Laws, Shri Khatana contended that in view of the said inconsistencies the Rules and Regulations would prevail. Thus, as per his contentions the General Body of the NIB is the Appointing Authority and as such the General Body of the NIB can only suspend the Applicant not the President. We have very closely examined the provisions in the Rules and Regulations, Recruitment Rules and the Bye Laws. In the Schedule II of the Bye Laws the Appointing, Disciplinary and Appellate Authorities for the Director of NIB have been clearly and unambiguously designated as Government. Bye Laws 16.1 also clearly stipulates the Government as the Appointing Authority and the General Body to recommend for the approval by the Government. Further, the Recruitment Rules 1994 defines Appointing Authority as the authority empowered to make appointments to various posts as per Bye law 16 of the Bye Laws of the Institute. Where as Rules and Regulations do not indicate or designate the General Body as the Appointing Authority for the Director NIB. Nor any of the Rules and Regulations designates the General Body as Disciplinary Authority and Appellate Authority. Since the Bye Laws designate the Government as Appointing, Disciplinary and Appellate Authority in case of the Director NIB, we have no hesitation to accept the clearly designated authority in the Bye Laws supported by the Recruitment Rules as the competent authority which is explicit. In the Rules and Regulations of the NIB, it is stated The Director of the Institute, who shall be appointed by the General Body of the Institute with the approval of the Government of India, shall be the Principal Executive Officer of the Institute which means ultimate authority vests with the Government as the appointing authority though not as explicit as in Bye Laws. It is noted that the prior approval of the Government is envisaged in the said Rules and Regulations of the NIB. The Recruitment Rules of NIB re-enforces the position by providing the definition of the Appointing Authority in referring to the Bye Laws 16. We, therefore, do not find any inconsistency between the Bye Laws and the Rules and Regulations of the NIB in so far as the Appointing Authority for the post of Director NIB is concerned. In our considered view, the Government is the Appointing Authority for the post of Director NIB, and therefore competent to suspend the Applicant. Our view is based on the logic and rationality that the Bye Laws provide specific, explicit and unambiguously clear provision in the matter. Our finding is fortified with the judgment of Honourable Apex Court in a case between A. Sudhakar Versus Postmaster General, Hyderabad [2006 -4- SCC- 348]. While considering the issue of designated authority in the context of punishment awarded in a disciplinary case, the Honourable Supreme Court examined the statement "Designatio unius est exclusion alterius, et expressum facit cessare tacitum." (The appointment or designation of one is the exclusion of the other; and that which is expressed prevails over that which is implied.)", and observed as follows:-

"If an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do the same but in a case of this nature where clause (2) of Article 311 of the Constitution of India envisages that a delinquent officer should not be imposed with major penalties save and except an order passed by the appointing authority, the latter becomes the designated authority."

14. It has been held by the Honble Supreme Court of India in catena of judgments that when two interpretations on an issue are available it is proper to adopt harmonious, contextual and purposive interpretations of the relevant provisions. Honourable Supreme Court in British Airways Plc. Versus Union of India [JT 2001 (9) SC 544] decided on 6-11-2001 observed that while interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision would have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. This observation is wholly applicable in this case. It is our duty to make such construction of the Rules and Regulations and the Bye Laws of NIB which will provide the remedy.

15. In A. N. Roy Commissioner of Police Versus. Suresh Sham Singh [2006-5-SCC-745] decided on 4.7.2006 and Anwar Hasan Khan Versus Mohd. Shafi and Ors. ( (2001) 8 SCC 540) Honourable Supreme Court also held that the cardinal principle of construction should be to avoid conflict and adopt a harmonious construction. The statute or rules should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. It is also a well-settled principle of law that in a case where it is found that provisions on an issue is confusing or obscure the same must be interpreted by the courts by adopting the doctrine of purposive construction as reported in Nathi Devi Versus Radha Devi Gupta [(2005) 2 SCC 271], Lalit Mohan Pandey Versus Pooran Singh & Ors. [(2004) 6 SCC 626], Indian Handicrafts Emporium & Ors. Versus Union of India & Ors. [(2003) 7 SCC 589], Balram Kumawat Versus Union of India & Ors. [(2003) 7 SCC 628] and State of H.P. Versus Surinder Singh Banolta [2007 STPL(LE) 37972 SC]. In the backdrop of the settled legal position on interpretations and constructions, we try to interpret the text of the case in the context and setting in which the NIB came into being and managed. The text of the Rules and Regulations and the Bye Laws are the bases of the interpretation. We may well say if the text is the texture, the context is what gives the colour. Neither can be ignored and both are important. In a recent judgment in Central Bank of India Versus State of Kerala[2009 STPL(LE) 41478 SC]the Honourable Apex Court observed that That interpretation is the best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation.

16. In so far as the applicability of principles of construction in the present OA is concerned we have to determine whether the Bye Laws providing the Government as the Appointing Authority and Disciplinary Authority for the Director of NIB is legally valid or the provision in the Rules and Regulations indicating that the Director shall be appointed by the General Body with Prior approval of the Government is valid or both supplement each other. The contextual construction, in our opinion is more appropriate for application in the present case. Let us examine the context. The Applicant was appointed as the Director of NIB by the Government after the recommendation of the General Body of NIB. He accepted the offer of appointment conveyed to him by the Government and he also sent his acceptance letter to the Government. Now, when he has been suspended by the President he is challenging the same on the ground that the Government is not the Appointing Authority but the General Body being the appointing authority, the suspension order has been passed by the incompetent authority. In the present case if we go by the argument and logic adduced by the Applicant's counsel even the Applicant's appointment has been done by the incompetent authority. We find this argument is not correct in the context and the specific provisions in the Recruitment Rules, Bye Laws and Rules and Regulations. The Bye Laws and its Schedule prescribe and designate the Government as the Appointing and Disciplinary Authority for the Director of NIB. If harmonious construction and contextual interpretation of the Rules and Regulations, Bye Laws and Recruitment Rules of the NIB is taken the conclusion will be same that the Government is the Appointing Authority, Disciplinary Authority, and Appellate Authority for the Director of NIB and as such, the executives actions of the Government of India are to be expressed in the name of the President.

17. Another contention raised by the counsel for the Applicant relates to the plea that the Applicant having been suspended by the President has lost the opportunity for an appeal. The fact is that there is no provision for appeal against the suspension either in Rules and Regulations or Bye Laws. However, the counsel for the Respondents informed during the hearing that the Applicant's representation against the order of suspension was considered by the Government and the same was rejected. In a matter of this nature, it would be obligatory on the part of the delinquent Applicant to show prejudice which could not be shown to us. Thus, in our opinion, in the instant case, the Applicant has not been deprived of an opportunity of submitting his representation against the order of the suspension passed by the President.

18. During the course of the argument, the learned counsel for the Applicant, while appreciating the Applicants performance in his previous post as Director, Centre for Forensic Science Laboratory, Kolkatta, submitted that since the Applicant was holding lien on his previous post of Director, Centre for Forensic Science Laboratory, Kolkatta, the Government could have reverted/repatriated him to the said post from the post of Director NIB. The counsel for the Respondents did not have any specific comment on such a proposal and he even did not raise any objection. We also considered this aspect. It is considered appropriate to leave our observation for the Respondents to consider the Applicants repatriation to the post of Director, Centre for Forensic Science Laboratory, Kolkatta, for which he has been holding his lien, without any prejudice to the Respondents right to continue the contemplated disciplinary proceedings as per law. While considering the repatriation of the Applicant, the Respondents are also directed to review the continuance or otherwise of the Applicants suspension.

19. Taking into account the overall facts and circumstances of the case and legal interpretations of the Bye Laws, Rules and Regulations, and the Recruitment Rules of NIB, we come to the considered conclusion that the Government is the Appointing Authority for the post of Director NIB and also the Disciplinary Authority and Appellate Authority in case of Director NIB. In the result we uphold the relevant provisions in the Bye Laws and Rules and Regulations as legally valid and complementary to each other. We also come to the considered finding that the Applicant has been suspended by the competent authority and thus the Order of the Respondent dated 21-1-2009 is legally valid and procedurally correct.

20. In view of our above analysis, we find that the Applicant has not made out the case in his support and the Original Application is dismissed. We also direct the Respondents to consider our observation in paragraph 18 supra for appropriate action within a period of 30 days from today. In peculiar circumstances of the case, the respective parties will bear their own costs.

(Dr. Ramesh Chandra Panda) (V. K. Bali)

Member (A) Chairman

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