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TMI Blog1996 (1) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... isciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to ward, is clearly erroneous. We, therefore, allow this appeal. The order passed by the Tribunal is set aside and the case is remitted back to the Tribunal to consider the other contentions which were raised before it and to dispose of the case in accordance with law. - C.A. 2299 OF 1996 - - - Dated:- 25-1-1996 - G.T. NANAVATI AND S.S. AGRAWAL, JJ. JUDGMENT Leave granted. A departmental proceeding was initiated against the respondent, a Sub-Inspector of Police, on an allegation that in January 1988, while he was working a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso contended that there was no evidence to prove the charge against the respondent. A contention was also raised that the respondent was not given a reasonable opportunity to defend himself. The Tribunal did not go into the other contentions raised by the respondent and allowed his application as it was of the view that "the charge memo under Rule 3(b) should be issued by the disciplinary authority empowered to impose the penalty specified therein and if any lower authority has initiated proceedings by issuing the charge memo then the penalty will be limited to those that such lower authority can award to the delinquent concerned". As the Deputy Superintended of Police could not have imposed the penalty of compulsory retirement, the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) and 3 (b)(i) and 3 (b)(ii) read as under : "Rule 3(a) - In every case where it is proposed to impose on a member of a service any of the penalties mentioned in clauses (a), (b), (c), (e) and (f) of Rule 2 he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any shall be taken into consideration before the order imposing the penalty is passed:" "Rule 3(b)(i)- In every case where it is proposed to impose on a member of a service any of the penalties specified in clauses (d), (h), (i) and (j) of Rule 2 the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. (ii) After the inquiry or personal hearing referred to in clause (i) has been completed, and if the authority competent to impose the penalty mentioned in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry that any of the penalties specified therein should be imposed on the Government servant, it shall make an order, imposing such penalty and it shall not be necessary to give the person charged, any opportunity of making representation on the penalty proposed to be imposed." We have not set out the provisos to Rule 3(a) and Rule 3(b)(ii) as they are not material for the purpose of this appeal. Before we consider the requirement of Rule 3(b) we will refer to the three decisions cited by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be dismissed or removed by an authority subordinate to that by which he was appointed." This Court further held that "we are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article. The learned counsel also drew our attention to P.V. Srinivasa Sastry Vs. Comptroller and Auditor General 1993 (1) SCC 419, wherein this Court in the context of Article 311(1) has held that in absence of a rule any superior authority who can be held to be the controlling authority can initiate a departmental proceeding an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n enquiry should be held in a case where it is proposed to impose on a member of the service any of the penalties specified in clauses (d), (h), and (i) and (j) of Rule 2. It lays down the different steps that have to be taken in the course of the enquiry proceedings. This Rule is completely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority holding the enquiry. Rule 3(b)(i) itself contemplates that the enquiry officer may not be the authority competent to impose the penalties referred to therein and that becomes apparent from the second paragraph of that sub-rule. If it was intended by the rule-making authority that the disciplinary authority should itself fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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