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Judgment
K. Suguna, J.—As per the order of reference, the issue to be decided is whether the officer-in-charge of a post is vested with powers to perform the statutory powers and duties of such post. As per the judgment reported in 1997 Writ L.R. 33 (C. Baskaran v. The District Collector, Trichy), the Division Bench of this Honourable Court has held that an Officer-in-charge of a post is not entitled to discharge the statutory functions of such post. In the judgment reported in 1997 Writ L.R. 33 (C. Baskaran v. The District Collector, Trichy) at page 35 in para 4, the Division Bench of this Honourable Court has held as follows:
There is one more aspect of the matter which has not been noticed by the petitioner/appellant and also by the learned single Judge. The order is not passed by the District Collector, Trichy, but it is passed by the officer-in-charge of the office of the District Collector. The very title of the proceedings shows that it is the order passed by the incharge Collector. In-charge Collector cannot be considered to be the Collector and he is entitled to discharge the statutory functions of the Collector. He is only intended to look after the day-to-day administration and is not entitled to exercise the statutory powers. Therefore, on this ground also, the impugned order is liable to be set aside.
As per the finding of the Division Bench, the officer-in-charge cannot be considered to be the Officer of the said post and he is not entitled to discharge the statutory functions of the Collector and he can look after only the day-to-day administration. But neither any provision of law nor any instruction of the Government in this regard is cited to lay down this principle. Under Ruling 19 of F.R.9, in a vacancy one can be posted by way of officiating and under F.R.49 in a vacancy one can be posted by way of full additional charge. As per F.R. 49, the Government may appoint a Government servant whether permanent or officiating, to hold full additional charge or to discharge the current duties of one or more independent posts at one time as a temporary measure and grant additional pay subject to certain limits which will also reflect that a Government servant who is posted to officiate the post can discharge the current duties of the said post. As such not only the permanent holder of the post but also who is holding the post as an additional full charge or in his officiating capacity can exercise the powers of the said post. Likewise, when an Officer is posted as an incharge, he is holding the said post. Necessarily while holding that post, he has to perform the functions of that post and execute the responsibilities of the said post. Even the term ''in-charge of a post'' means, over all control of the post or of the Company or of the Firm. That means, when one is posted as in-charge, he is having the overall control of that post which necessarily follows the execution of the powers and functions of the said post. Unless, contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, an officer who holds the post in-charge has got the power to discharge the statutory functions and the responsibilities of the said post.
Mr. S. Parthasarathy, the learned senior counsel appearing for the appellant relied on the judgment reported in AIR 1996 S.C.C. 1729 (Gopalji Kanna v. Allahabad Bank). The issue therein is whether the order, enhancing the penalty imposed on an employee, passed by the Executive Director who was holding the current charge of the post of Chairman and Managing Director, was valid or not. The Honourable Apex Court has held in paragraph Nos. 7 and 13 as follows:
With respect to the second contention, it was submitted by the learned counsel that the power of review is conferred by Regulation 18. Only the Chairman and Managing Director are specified as reviewing authorities. This statutory power, therefore, can be exercised by Chairman and Managing Director only as they are the named authorities under the statutory provision and cannot be validly delegated to any subordinate authority. Shri Wadhwa, therefore could not have validly exercised that power. There is no substance in this submission. It is really misconceived. Though the Regulations have been framed in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970, by the Board of Directors, they cannot be equaled with a statute. What the Board of Directors have done by making those Regulations is to regulate the power of taking disciplinary action against the employees of the bank. Moreover, this is not a case where the power of Chairman or the Managing Director came to be exercised by a subordinate official as a result of delegation of that power. Shri Wadha while exercising the power of review was really discharging the functions of Chairman and Managing Director as he was then placed incharge of those offices and was therefore entitled to perform all the duties and functions of those offices. He did not exercise that power on the basis that it was delegated to him. Therefore, the decisions in Barnard v. National Dock Labour Board, (1953) 1 All ER 1113, Krishna Kumar Vs. Divisional Assistant Electrical Engineer and Others, and Marathwada University Vs. Seshrao Balwant Rao Chavan, relied upon by the learned counsel in support of his contention that statutory power can be exercised by the names authority only and cannot be further delegated, require no further consideration. So also, Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, and State of Haryana v. S.M. Sharma, 1993 Suppl (3) SCC 252 : (1993 AIR SCW 2160) cited by the learned counsel have no relevance. The question which arose for consideration in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as promoted to that higher post. This Court held that entrustment of current duties charge of a higher post does not amount to promotion and in such cases the person continues to hold his substantive lower post and only discharges the duties of higher post essentially as a stop-gap arrangement.
After considering the above decisions and Regulations 2(n) and 18, we are of the opinion that as the Executive Director Shri Wadhwa was entrusted with the charge of the offices of Chairman and Managing Director he became entitled to exercise all the executive powers, perform duties and discharge functions attached to those offices and, therefore, the order of penalty passed by him was legal and valid.
The Honourable Apex Court has held, the Executive Director while exercising the power of review the Executive Director was really discharging the functions of the Chairman and Managing Director as he was then placed in-charge of those offices and therefore, entitled to perform all the duties and functions of those offices. As per the above said judgment, when an Officer is posted as in-charge of a post, he discharges the functions of the said post in the capacity of the officer of the said post. As such, as per the above said judgment, he is entitled to discharge and perform all duties and functions of those offices.
Though not the term in-charge is defined in any of the Rules applicable in relation to the Government Offices, as per the above said judgment, when an officer is posted as in-charge of a post, he discharge the functions of the said post as an Officer of that post. Consequently, he can exercise the statutory powers of the said post. That apart, when a vacancy is filled by way of an in-charge, unless the statutory functions of the said post is exercised by an officer who is posted as in-charge, the functions of the said post will become a stand still which will have a consequence in administration.
When an officer is posted as in-charge, the question that arises is whether the powers and functions of the said post is exercised by the competent authority. Learned counsel has relied on the judgment reported in Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, wherein the issue is, the respondent therein was working as a conductor in the Road Transport Department of the erstwhile State of Hyderabad prior to the coming into force of the States Reorganisation Act, 1956. Consequence upon coming into force of the said Act, the respondents were allotted to the new State of Mysore but their employment as conductors was continued in the Depots which became parts of the Mysore Government Road Transport Department. As a result of the disciplinary proceedings taken against them for certain cash and ticket irregularities alleged to have been committed by them, they were dismissed from service by the Divisional Controller of the Mysore Government Road Transport Department in December 1960 and the orders of dismissal were affirmed by the General Manager. However, the suits were filed for declaration that the aforesaid orders of dismissal passed by the Divisional Controller was illegal. The point therein is their appointment being made by the Superintendent of the Road Transport Department of the erstwhile State of Hyderabad, who was the Head of the Department, their dismissal from service could only be by the General Manager of the Department. Consequently, their dismissal by the Divisional Controller who was not the Head of the Department but a subordinate of his, is in violation of the right guaranteed to them under Article 311(1) of the Constitution. In the said judgment, the Honourable Apex Court has held as follows:
It has to be read in conjunction with, construed and understood as having the same meaning as the expression ''appropriate authority'' contemplated by sub-section (1) of that section which in turn according to Article 311(1) of the Constitution means the appointing authority or an authority equivalent to or coordinate in rank with the appointing authority.
At page No.464 of the said judgment it is held that the word ''subordinate'' in Article 311 (1) must be properly construed to mean subordination in rank and not subordination of function; otherwise, the protection referred to in Article 311 would be illusory. At page No.465 of the said judgment, it is held as follows:
The authority equivalent to or coordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellants'' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the ''competent authority'' in terms of sub-section (2) of section 116 of the States Reorganisation Act, 1956. The fact that there is no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the state of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with Section 115(7) of the States Reorganisation Act, 1956.
Under such circumstances, unless contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, a Government servant who holds the post as in-charge has got power to discharge the statutory functions and responsibilities of the said post.
Besides since already this issue has been covered by the judgment of the Honourable Apex Court reported in 1996 AIR S.C. 1729 as referred above, we are of the opinion, the view of the Division reported in 1997 Writ L.R. 33 (C. Baskaran v. The District Collector, Trichy) rendered in W.A.No.1054 of 1983 is not a correct law. Consequently, we hold that an officer-in-charge of a post has got power to discharge the powers and statutory functions of the said post. Consequently, as far as the point of reference is concerned, we hold that the Officer who is holding the post in-charge has got power to discharge the powers and statutory functions of the said post. Registry is directed to place the papers of the writ appeal before the appropriate Bench for disposal.