AI Structured Summary
Not yet generated for this judgment
Judgment
Manmohan Sarin, J.—Union of India through Director, Central Bureau of Investigation, by this writ petition assails the order dated 28.4.2004 of the Central Administrative Tribunal, Principal Bench, New Delhi, (hereinafter referred as CAT), By the impugned order, CAT allowed O.A. No. 902/2003 of Respondent S.P. Tanti, quashed termination order dated 15.4.2002 and directed his reinstatement with consequential benefits excluding back wages. CAT quashed the termination order, holding that it had not been passed by the appointing authority, as mandated in terms of Rule 5(1)(a) of CCS (TS) Rules, 1965. CAT held that non compliance with this mandatory requirement, vitiated the termination order. The facts and circumstances and respective contentions culminating in the passing of the impugned order and the grounds of challenge thereof are as follows:
(i) On 28.11.1995, the respondent S.P. Tanti applied for the post of Public Prosecutor in CBI against the post reserved for "SC Category Candidate". On verification of his caste certificate, a few doubts arose as to its sanctity entailing a clarification. However, taking a lenient view, respondent was appointed as Public Prosecutor against the post reserved for OBC candidates. Appointment letter dated 9.12.1996 was issued under the signatures of Dr. Tarsem Chand, Asst. Director (Estt.), CBI.
(ii) On further enquiry about his caste certificate. District Magistrate, Bhagalpur, vide his report dated 10.12.1998, clarified that as per report of Anumandal Padhadhikari Sadar, Bhagalpur, the signatures of the issuing authority available on the caste certificate of the respondent, were found to be doubtful as they did not tally with the signatures of the then Anumandal Padhadhikari. A criminal case, which is still pending, was lodged at Police Station Lodhi Colony, New Delhi.
(iii) Controversy with respect to the caste certificate apart, respondent was communicated adverse remarks in his ACR''s pertaining to the years 1997 and 1998 which were subsequently expunged on representation. Representation preferred against adverse remarks for the year 1999 was rejected on 3.7.2003. The DPC extended the probation. The post of the respondent though designated as Group B on coming into effect of revised Recruitment Rules in force w.e.f. 27.3.2001 and in pursuance of the recommendations of the 5th Central Pay Commission, accepted vide letter 14.3.2001, the pay scale of the prosecutors in CBI was revised. As per the revised Recruitment Rules, the post of public prosecutor in CBI now falls in Group A.
(iv) As during the probation of two years, the work, conduct and performance of the Respondent was found unsatisfactory, his probation period was extended for a period of 6 months i.e. upto 20.6.1999. DPC was held on 26.6.2001, which concluded that the performance of the respondent was unsatisfactory even during the extended probation and recommended that his services be terminated. Vide order dated 15.4.2002, signed by Dy. Director (Admn.), CBI services of respondent were terminated with immediate effect.
(v) Respondent made a representation dated 29.4.2002 for cancellation of his termination order and sought his reinstatement claiming that the order of termination was punitive in nature and was passed without following the procedure and safeguards as laid down in Article 311 of the Constitution. It was urged that the real reason for termination was the lodging of FIR No. 45/99 u/s 420, 468, 471 IPC at PS Lodhi Colony.
(vi) The representation was rejected on 23.9.2002 on the ground that the services of respondent were terminated in view of his poor performance during the probation period. Respondent filed O.A. No. 902 of 2003 challenging the termination order dated 15.4.2002. The main plea urged before CAT was that the post held by respondent had been re-designated as a Group A post as per CCS (CCA) Rules, 1965, for which the appointing authority is the President of India. The termination order had not been issued by the President of India or its delegated authority as required. Besides the termination order was not in the proper format envisaged in Rule 5(1) of the Rules. The thrust of the submission being that the termination was neither issued in the name of the President of India nor duly authorized by the Competent Authority and there was no communication in the termination order that it has been passed by the President. All the above contravened Article 311 of the Constitution of India.
(vii) The CAT allowed the O.A. holding that the requirement of Rule 5(1) of the CCS (TS) Rules, 1965 could not be dispensed with. Further that order of termination had not been passed by the appointing authority of the respondent and approval on file by the Minister of State cannot cure the inherent infirmity. The order should have been passed in the name of the President by the Competent Authority. Reliance was placed on Om Prakash Gupta Swadheen Vs. Union of India (UOI) and Others, In the cited case it was held that impugned notice of termination was given by an authority which was not the appointing authority and as such did not comply with the requirements of Rule 5(1)(a) of the CCS (TS), 1965 and was a nullity. Leaving all other contentions open, the O.A. was allowed directing reinstatement of the respondent with consequential benefits excluding back wages.
Following points arise for consideration. Firstly, does the termination order get vitiated on not being signed by or on behalf of the President of India. Secondly, has the termination order been signed by a Competent Authority, authorized to authenticate and sign the documents in the name of the President of India. Lastly, whether evidence could be led to show that competent authority had approved the termination order and administrative procedure and rules had been adhered to.
Before we consider the legal submissions made by the petitioner and respondents in detail and notice the judicial pronouncements on the subject, it would be appropriate to reproduce for facility of reference, the relevant extracts from the Authentication (Orders and Other Instruments) Rules, 2002.
In exercise of the powers conferred by Clause (2) of article 77 of the Constitution and in supersession of the Authentication (Orders and other Instruments) Rules, 1958, except as respects things done or omitted to be done before such supersession, the President is pleased to make the following rules, namely:-
(1) These rules may be called the Authentication (Orders and other Instruments) Rules 2002.
(2) They shall come into force on the date of their publication in the official gazette. All orders and other instruments made and executed in the name of the President shall be authenticated.
(1) by the signature of a secretary, Special Secretary, Additional Secretary, Joint Secretary. Director, Deputy Secretary or Under Secretary to the Government of India; or
(2) by the signature of a Director or Desk Officer in the Ministries, Departments Secretariats and Offices specified in the First Schedule to the Government of India (Allocation of Business) Rules 1961; or
(3) by the signature of a Head of a Department as defined in the Delegation of Financial Powers Rules, 1978, other than a Head of Department in any Union Territory; or
(4) in the case of orders and other instruments relating to a Department, Directorate, Commission, Board, Office or an Organisation, specified in column 1 of the Schedule to these rules, by an officer specified against that Department, Directorate, Commission, Board, Office or Organisation in column 2 of the said Schedule; or
(5) to (46) XXXXXXXXXXXXXXXXX
(emphasis supplied by us)
Again, Schedule appended therewith mentions the names of authorities who may authenticate orders and instruments:--
-----------------------------------------
Name of the Department/Directorate Commission, Officer Board, office or an Organisation
-----------------------------------------
MINISTRY OF AGRICULTURE
XXXXXXXXXXXXXXXXX
"DEPARTMENT OF PERSONNEL
AND TRAINING
Central Bureau of Investigation
XXXXXXXXXXXXXXXXX
Deputy Director (Administration)/Administrative Officer/Assistant Director (Establishment)
Ms. Jyoti Singh on behalf of the petitioner, urged that the objection regarding the termination order not being signed by and on behalf of the Present of India, was raised by the respondent only during the course of oral arguments before the Tribunal. This plea would hardly be of any avail as the objection goes to the root of the matter. It is sufficient to notice that the Central Administrative Tribunal accepted this very objection and set aside the termination order.
As regards the termination order, Ms. Jyoti Singh submitted that the appointment order of the respondent had been signed by the Assistant Director. Respondent was a probationer and his termination order was signed by the Deputy Director. As per the schedule to the authentication (Orders and other Instruments) Rules, 2002 as reproduced above, it would be seen that the competent and designated officer to sign all orders and instruments in relation to the officers of the Department of Personnel and Training Central Bureau of Investigation, was the Deputy Director (Administration)/Administrative Officer/Assistant Director (Establishment). She accordingly submits that in compliance with the requirement as per the above Rules, Deputy Director had signed the termination order. Ms. Jyoti Singh urged that the record was available to show that the competent authority had duly approved the termination of the respondent. She, therefore, submits that when the order has been duly authenticated and passed by a designated competent authorized officer, plea of lack of authority was liable to be rejected. As noted earlier, the approval of the concerned Minister/competent authority for the termination was available on record.
Mr. Khurana joins issue on this and submits that when respondent was appointed Public Prosecutor, he was Grade ''B'' officer whose appointment was to be made by an Officer of the rank of Deputy Director/Assistant Director. However, at the time of termination, the respondent was Grade ''A'' Officer. By virtue of the then recruitment rules in effect, termination of personnel of Group ''A'' services could only be done by the President of India.
It is his contention that the authenticating officer specified as Deputy Director for the Department of Personnel and Training would apply to the contracts and other instruments relating to the Directorate and not to orders of termination of officers of Grade A. He contends that authentication in the case of termination order of the respondent had to be done in terms of Rule 2 sub-rule (1) by Special Secretary/Additional Secretary/Under Secretary to the Government. He further submits that as a matter of fact disposal of the writ petition made against the termination had been conveyed by communication of the Under Secretary of the Department of Personnel and Training.
Mr. P.P. Khurana, learned counsel for the respondent submitted that the approval of the Minister on the file would be of no consequence. The mandatory requirement as per statutory rules as also the Constitution, is for the termination order to be communicated in the name of the President by a person who is duly authorized to authenticate the same. When the respondent was appointed Public Prosecutor, he was Grade-B Officer wherein appointment was to be made by an officer of the rank of Dy. Director/Astt. Director. However, at the time of termination, the respondent was Grade-A Officer by virtue of the then effective Recruitment Rules and termination of Group ''A'' services could only be done by the President of India. He submitted that the sine qua non for invoking the Authentication (Orders and Other Instrument) Rules, 2002 is the making and execution of the orders and instruments in the name of President to be authenticated by the specified officer. He argued that the termination order is admittedly not in the name of the President of India. He also questioned the authority of the Dy. Director to sign the termination order. Therefore, his main contention is that respondent being a Group-A Officer, the appointing authority would be the President and the termination order had to be signed by a person of the rank of Secretary in the name of the President.
Mr. Khurana submitted that the Authentication Rules, 2002 reveal that rule 2 sub-clause 4 deals with the cases of orders and other instruments relating to Department, Directorate, Commission Board Officer and these would not cover the case of either the appointment or termination of Group-A Officer. Similarly, he argued that the authenticating officers specified as Deputy Director for the Department of Personnel and Training would apply to the contracts and other officers relating to the Directorate and Department of Personnel and Training other than officers of Group-A but not to the officers of Group-A. He contends that authentication in the case of termination order of the respondent had to be done in terms of Rule 2 sub-rule (1) by Special Secretary/Additional Secretary/Under Secretary to the Government. He submits that as a matter of fact, disposal of the representation made against the termination had been conveyed by communication of the Under Secretary of the Department of Personnel and Training.
Mr. Khurana also sought to draw advantage from para 6 of the impugned order, where the submission of the petitioner''s counsel in the Tribunal had been recorded to the effect that when the order of termination had been approved by the Minister of State, its communication by an incompetent authority was only a technical defect, which would not vitiate the order of termination. Mr. Khurana also sought to urge that this was an admission that the order had been authenticated by an incompetent person.
We are of the view that in terms of the Schedule to the Authentication (Orders and Other Instruments) Rules, 2002 and the Schedule thereto for the Department of Central Bureau of Investigation Deputy Director (Administrative Officer) is the duly designated authenticating officer. This being a specific entry in the schedule for CBI Officers, would prevail over the general provision in Rule 2 of the Authentication (Orders and Other Instruments) Rules, 2002. As regards the submission made by the counsel for the petitioner before the Tribunal, it is in the nature of a plea that assuming there was communication by an incompetent authority, it would be a technical defect and would not vitiate the termination order, rather than admission of communication being by an incompetent authority. In any case, in view of the factual legal position, as noted above, the same is of no consequence.
On perusal of the above mentioned notification dated 16th February 2002, notifying the Authentication Rules, it becomes clear that all orders and other instruments made and executed in the name of the President shall be authenticated by the signatures of authorities mentioned in Rule-2. The case of the Respondent falls within category mentioned in Rule 2(4) of the above said notification and the Schedule. The notification does not make any distinction between the orders or instruments or between officers of Class I/Group A and other officers. We find merit in the above submission that officer in the rank of Director/Deputy Director in CBI was competent to authenticate the termination order.
On the objection that the termination order had not been executed in the name of the President, Ms. Jyoti Singh urged that as the order had been signed and authenticated by Deputy Director, who was the Competent designated officer to sign all appointments and termination order, non-issuance in the name of the President would not affect its validity, especially, when approval of the Minister of State and the Competent Authority had been shown and verified even before the Tribunal. In support of her contention, she relied on State of Madhya Pradesh and others Vs. Dr. Yashwant Trimbak, In the cited case, it was held that even where an order is issued by the Secretary to the Government without indicating that it is by the order of the Central Government or by the order of the President, the immunity in Article 166(2) would be available, if it appears from other material that in fact the decision had been taken by the Government.
In State of M.P. and Others v. Dr. Yashwant Trimbak (Supra), it was held by the Apex Court as under:--
Even where an order is issued by Secretary of the Government without indicating that it is by order of the Central Government or by order of the President, this Court came to the conclusion that the immunity in Article 166(2) would be available if it appears from other material that in fact the decision had been taken by the Government. In Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, this Court came to the conclusion that in fact sanction had been given by the Central Government as required under the Act. though the order did not indicate to be so.
It was further held:
This Court in the case of Samsher Singh Vs. State of Punjab and Another, had indicated that any function vested in the Governor, whether executive, legislative or quasi-judicial in nature and whether vested by the Constitution or by a statute (sic can) be delegated by Rules of Business unless the contrary is clearly provided for by such constitutional or statutory provision.
The Court further held: (SCC p. 847, para 48).
The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Whenever the Constitution requires the satisfaction of the President or the Governor for any exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister of officer under Rules of Business is the decision of the President of the Governor.
After referring to other authorities this Court further held: (SCC p. 849, para 57)
For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.
Ms. Jyoti Singh submitted that in view of the aforesaid authorities, the court can satisfy itself on perusal of the record that termination order has been duly approved by Competent Authority. She further placed on record the clarification given by Department of Personnel and Administrative Reforms O.M. No. 11012/7/79 Estt.(A) dated 07.09.1979 quoted hereinbelow:
The undersigned is directed to say that in this Department Office Memorandum No. 39/1/69-Estt (A) dated the 16th April, 1969, it is clarified as under:
It is also pointed out that according to entry 39(i) of the Third Schedule to the Government of India (Transaction of Business) Rules, 1961, cases relating to dismissal, removal, compulsory retirement or reduction in rank, of an officer of the All India Service or the Central Service Class I (Group A) holding a post, appointment to which requires the approval of the Appointment Committee of the Cabinet, are required to be submitted to the Prime Minister and the President.
All Ministers and Departments are requested to keep in view the aforesaid provisions of the Government of India (Transaction of Business) Rules, 1961, while dealing with cases of Group ''A'' officers holding posts within the purview of the Appointments Committee of the Cabinet, in addition to the clarification contained in the Ministry of Home Affairs Office Memorandum of 16th April, 1969 quoted in para 1 above.
From the aforesaid clarification it is abundantly clear that under transaction of Business Rules 1991, that approval by minister for initiation of Disciplinary Proceeding was sufficient. Further by virtue of Rule 3, it was competent for minister to delegate these functions.
Mr. Khurana, learned counsel for the respondent next sought to urge that intrinsic evidence regarding approval by the President of India or Competent Authority can only be allowed if order was in the name of the President but had been issued by an officer namely Secretary to Govt. of India. However if the order was neither in the name of the President nor passed by the secretary or by an officer authorized, then it is not open to adopt a course of going to the file and seeing if it had the approval of the Minister, the delegatee of the President under the Business Transaction Rules. The factum of the order being passed by the government is not disputed. The only issue sought to be raised is there was non compliance of the provisions of Rule 5(1) CCS Rules. It is now fairly well settled that provisions of Article 166 of Constitution are only directory and not mandatory in character and if they are not complied with, it can be established as a question of fact that order was in fact issued.
He next referred to standard proforma where the President is the appointing authority as is reproduced in para 8 of the judgment of the Tribunal. He pointed out that in the instant case, Form-IV would be applicable. He concluded by saying that wherever statutory rules have prescribed the procedure then that thing has to be done in the manner prescribed. He referred to Nazir Ahmad v. Kind Emperor, AIR 1936, Privy Council 253 (2) wherein it was held:--
Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
He also relied on Babu Verghese and Others Vs. Bar Council of Kerala and Others, to the same effect.
In this respect reference may again be made to the decision in State of Bombay v. Purushottam Jog Naik, (supra), the Court while dealing with the order which was stated to be defective in form held that it was open to the State Government to prove by other means that such an order had been validly made. Records were produced and the Counsel for the Respondent could not find any fault therewith. The arguments urged by the learned counsel for the respondent are therefore devoid of force. In view of the foregoing discussion, we hold that the termination order has been signed, executed and issued by a duly designated and authorized officer, empowered to authenticate the same under the Authentication (Orders and Other Instruments) Rules, 2002 and Government of India (Transaction of Business) Rules, 1961. The termination order had the approval of the concerned minister i.e., the Competent Authority. The mere factum of the same not having been issued in the name of the President or the exact format not having been followed would not vitiate the same in light of the judicial pronouncements, noted earlier. Moreover, the termination order had been issued keeping in mind the service record of the respondent, who had continued in probation and the order is otherwise not vitiated by any mala fide or extraneous circumstances. In the result, we set aside the impugned order and hold the order of termination to have been validly passed. The writ petition is allowed and the order of termination of the respondent stands restored with no order as to costs.