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TMI Blog2016 (8) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the provision of Rule 9(2)(b)(ii) of the CCS (Pension) Rules 1972. This important legal aspect of the case was not considered by the Division Bench of the High Court while setting aside the common judgment and order dated 01.09.2010 passed by the learned single Judge in Writ Petition No. 904 of 2008 (arms and ammunitions case) and Writ Petition No. 264 of 2010 (contraband ganja case). It is a well established principle of law that if the manner of doing a particular act is prescribed under any statute then the act must be done in that manner or not at all. The Division Bench of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and order dated 07.11.2006 in W.A. (C) No. 45 of 2006 to the Disciplinary Authority to take disciplinary action against the Appellant. Thus, there was no need for the Respondent Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the Appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CRPF and at the time of incidents, was posted at Mantripukhri, Imphal. He is alleged to be involved in two cases. The first case, i.e. Civil Appeal arising out of the SLP (C) No. 30907 of 2013 relates to missing of arms and ammunition. The second case, i.e. Civil Appeal arising out of SLP (C) No. 10092 of 2014 relates to the alleged supply of contraband ganja, by 11 CRPF personnel posted in the unit of the Appellant. Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of 7.62 ammunition issued in the name of one Lance Naik Man Bahadur, who was posted at the same battalion of which the Appellant was the commandant went missing. According to the Respondents, the loss occurred as a result of the verbal orders issued by the Appellant, which action amounted to a violation of Rules 3(1)(i) (iii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the CCS (Conduct) Rules, 1964 ). 4. On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal sent a letter to the Appellant, directing him to submit a written statement of defence in connection with the said lapse. The relevant portions of the said letter are extracted h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant filed Writ Petition (C) No. 720 of 2002 before the High Court of Gauhati, Imphal Bench, by questioning the validity of the said Memorandum of Charges dated 15.03.1999 on the ground that it is in violation of the principles of natural justice and is also contrary to the settled position of law. 9. The learned single Judge allowed the Writ Petition vide judgment and order dated 18.05.2006 by placing reliance on various decisions of this Court on the aspect of principles of natural justice. It was observed that the earlier punishment imposed upon the Appellant was withdrawn suo motu by the competent authority by order dated 15.03.1999 without affording him the opportunity of being heard, by passing a non speaking order. The learned single Judge accordingly set aside the order dated 15.03.1999 as the earlier penalty imposed upon the Appellant was withdrawn by which the letter dated 24.06.1998 was withdrawn by the IGP-NS. 10. In the meanwhile, the Appellant retired from service as a regular Commandant/Police Officer, CRPF on 31.08.2006. 11. The Respondent-Union of India preferred Writ Appeal No. 45 of 2006 before the Division Bench of the High Court against the said judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erbal orders to issue service arms and ammunitions to ex-undergrounds through kote UC's without keeping/maintaining proper records violating the instructions on the subject. Thus, the said Shri B.S. Yambem, Comdt. (Retired) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964. Article-III That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning as Commandant 61 Bn. CRPF, Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act, of misconduct in that he got issued service weapons to undergrounds through No. 793020336 LNK Man Bahadur in violation of orders which resulted in missing of one AK-47 Body No. 313422 Butt No. 77, 3 Magazine and 90 rounds. That the said Shri B.S. Yambem, Commandant (Retired) failed to maintain absolute integrity and devotion to the duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of the CCS (Conduct) Rules, 1964. Article-IV That the said Shri B.S. Yambem, Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.10.2009 was issued. The Articles of Charges framed against the Appellant are extracted as hereunder: Article-I That the said Shri B.S. Yambem, Commandant while posted and functioning as Commandant in 61 Bn. CRPF at Mantripukhri, Imphal during August 1995 committed a serious misconduct in that he on 08/08/1995 sent three vehicles, one Asstt. Commandant and 18 other ranks of his Unit out of the area of operational jurisdiction without the approval of IGP (Ops) Manipur and Nagaland. Two of the above vehicles and 11 men were later intercepted and apprehended by the Customs and Central Excise Authorities at Didarganj check post near Patna on the night of 11/08/1995 as a huge quantity of contraband ganja was found loaded in these vehicles. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i), (ii) and (iii) of CCS (Conduct) Rules, 1964. Article-II That during the aforesaid period and while functioning in the aforesaid Unit in the aforesaid capacity, the said Shri B.S. Yambem committed a serious misconduct in that he fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged incidents which took place more than 10 years earlier was barred by limitation as provided for under Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. Accordingly, the learned single Judge quashed the Memorandum of Charges dated 22.08.2008 and 16.10.2009 and allowed the above Writ Petitions filed by the Appellant. 20. Aggrieved of the common judgment and order passed by the learned single Judge, the Respondents filed Writ Appeal (C) Nos. 39 of 2011 and 40 of 2011 (against Writ Petition No. 904 of 2008 and Writ Petition No. 264 of 2010, respectively) before the Division Bench of the High Court questioning the correctness of the same. 21. The Division Bench of the High Court after hearing the parties decided the above said Writ Appeals by passing the impugned common judgment and order dated 05.08.2013, observing that once the sanction was obtained by the Disciplinary Authority from the President of India, then the bar of period of limitation of four years as contained in Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 will not apply. Hence, the proceedings of serving the Memorandum of Charges to the Appellant after his retirement falls within the ambit of Rule 9(2)(a) rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en overlooked by the Respondents. 25. The learned Counsel further contends that enquiry proceedings that were initiated by the Respondents under Rule 14 of the CCS (CCA) Rules, 1965 in respect of the alleged incident of loss of weapon and ammunition, were quashed by the learned single Judge of the High Court. Subsequently, enquiry proceedings were initiated afresh against the Appellant under Rule 9(2)(b)(ii) of CCS (Pension) Rules, 1972. Therefore, the Respondents cannot mislead this Court by justifying their action of initiation of the disciplinary proceedings against the Appellant on the ground that the second enquiry proceeding which was initiated by them by issuing the Memorandum of Charges was merely a continuation of the first enquiry proceeding itself, when the same was initiated afresh by the disciplinary authority after obtaining sanction from the President as required under Rules 9(2)(b)(i) after the retirement of the Appellant from service and more than four years from the date of the alleged incidents. 26. As far as the case in the Civil Appeal arising out of the SLP (C) No. 10092 of 2014 is concerned (ganja case), the learned Counsel on behalf of the Appellant refutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted or continued against a government servant who has retired from service in those cases in which grave misconduct is alleged to have been committed. In the case on hand, prior sanction of the President was obtained by the Disciplinary Authority as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 for continuing the disciplinary proceedings against the Appellant. The learned ASG further places reliance on the decision of this Court in the case of State of M.P. v. Dr. Yashwant Trimbak (1996) 2 SCC 305, wherein it was held that personal sanction of the Governor or President is not required and it is sufficient that the sanction be issued by a duly authorized officer and is properly authenticated. No court can look into the validity of such sanction in terms of Articles 77(3) and 166(3) of the Constitution of India. 30. The learned ASG further contends that the legal principles enunciated by this Court in the case of Shri Krishna Pandey (supra) cannot be relied upon in the instant case, as the factual situations in the two cases are very different from each other. In the case of Shri Krishna Pandey (supra), the concerned officer therein retired from service on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. 32. We have heard the learned Counsel appearing on behalf of both the parties. The following essential questions would arise for our consideration in the case: 1. Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of the fact the disciplinary proceedings were initiated more than four years after the alleged incidents? 2. Whether the impugned judgment and order is erroneous and is vitiated in law? 3. What Order? Answer to Point Nos. 1 and 2 Since Points 1 and 2 are inter-related, the same are answered together as under: 33. With reference to the aforesaid factual and rival legal contentions urged before this Court, to answer the same, at the outset it would be necessary to refer to the letter dated 20.02.2009 issued by the DIGP (CR Vig.) which reads as under: Directorate General, CRPF (Ministry of Home Affairs) Sub: Department Enquiry Against Shri B.S. Yambem, Commandant (Retd.) A DE was conducted against Shri B.S. Yambem, Commandant on the charges of sending vehicle of his Unit along with men on 8.8.1995 out of his jurisdiction and when the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.08.2008 passed in W.A. No. 25 of 2007 by the Division Bench of the High Court initiated disciplinary proceedings afresh against the Appellant under Rule 9(2)(b)(ii) of CCS (Pension) Rules, 1972 and also sought the sanction of the President of India. Rule 9(2) of the CCS (Pension) Rules, 1972 reads thus: 9. Right of President to withhold or withdraw pension- (2) (a) The departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,- (i) shall not be instituted save with the san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the learned single Judge. It was pursuant to this that the fresh departmental enquiry was initiated against the Appellant on 16.10.2009 after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Appellant challenged the correctness of the sanction and charges framed against him before the High Court of Gauhati, Imphal Bench in W.P. (C) No. 264 of 2010. The High Court quashed the Memorandum of Charges on the ground that it was issued after four years from the date of the alleged incident. Therefore, it was held that the said action of the Disciplinary Authority in initiating disciplinary proceedings is not valid in law as the same was barred by limitation as per the provision of Rule 9(2)(b)(ii) of the CCS (Pension) Rules 1972. This important legal aspect of the case was not considered by the Division Bench of the High Court while setting aside the common judgment and order dated 01.09.2010 passed by the learned single Judge in Writ Petition No. 904 of 2008 (arms and ammunitions case) and Writ Petition No. 264 of 2010 (contraband ganja case). 35. It is a well established principle of law that if the manner of doing a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and order dated 07.11.2006 in W.A. (C) No. 45 of 2006 to the Disciplinary Authority to take disciplinary action against the Appellant. Thus, there was no need for the Respondent Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the Appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court in its judgment and order dated 05.08.2013 has completely ignored this important legal aspect of the matter, that the prior sanction accorded by the President under the above said Rules was in fact, barred by limitation. Thus, it has committed serious error in law in arriving at the conclusion that the Respondent Disciplinary Authority had obtained due sanction from the President of India to conduct the departmental proceedings against the Appellant for the same charges, which action was barred by limitation as provided under Rule 9(2) (b)(ii) of CCS ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the case on hand. This Court had held in that case that the order of sanction to initiate disciplinary proceedings granted by the Governor cannot be scrutinized by this Court in exercise of its power of judicial review, as the said action comes within the protection of Article 166(2) of the Constitution of India. This principle of law is not applicable to the present fact situation for the reason that the order of sanction granted by the President of India is not in exercise of his executive power Under Article 77(2) of the Constitution which speaks of orders and other instruments made and executed in the name of President of India. The Rules specified Under Article 77(3) of the Constitution are Rules framed by the President of India for transaction of business of the Government of India. The said constitutional immunity conferred either upon the Governor or President is confined only to the executive action of the appropriate Government. The order of sanction to be granted by the President of India as provided under Rule 9(2)(b) (i) of the CCS (Pension) Rules, 1972 is for initiation of the disciplinary proceedings against the Appellant, which cannot be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular subject, it shall be competent to the Governor of the State to make Rules regulating the recruitment and the conditions of service of the judicial officers of the State. The Governor thus steps in when the legislature does not act. The power, exercised by the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised. It par takes of the characteristics of the legislative, not executive, power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 to promulgate Ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such posts either in connection with the affairs of the Union government or a state government. It is for this reason that the statutory exercise of power by the President of India under Rules 9(2)(b)(i) and (ii) of the CCS (Pension) Rules, 1972 cannot be equated with power exercised Under Article 77(2) of the Constitution of India. The High Courts and this Court can exercise power of judicial review under Articles 226 and 32, respectively, of the Constitution of India in cases of statutory exercise of power by the President or Governor. In the case of Dr. Yashwant Trimbak (supra), this Court held that the power of judicial review is not available in case of executive exercise of power by the President or the Governor. The said observation made by this Court in the said case is not tenable in law in view of the decision of this Court in the landmark judgment of His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225 wherein this Court has clearly held that the power of judicial review is part of the basic structure of the Constitution of India. The relevant portion of the judgment is extracted hereunder: 577 ...The observations of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41. In the instant case, the action of the Disciplinary Authority is untenable in law for the reason that the interpretation of the CCS (Pension) Rules, 1972 which is sought to be made by the learned ASG on behalf of the Respondents amounts to deprivation of the Fundamental Rights guaranteed to the Appellant under Part III of the Constitution of India. Therefore, we have to hold that the disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed. Answer to Point No. 3 42. For the aforesaid reasons, we answer the questions of law that arose for consideration of this Court in favour of the Appellant. The Division Bench of the High Court erred in allowing the Writ Appeal Nos. 39 and 40 of 2011. Therefore, the impugned judgment is liable to be set aside and accordingly, set aside. 43. Though we have answered the questions of law framed in this case in favour of the Appellant and set aside the impugned judgment by allowing these appeals, however, having regard to the seriousness of the allegations made against the Appellant, in exercise of power of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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