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Judgment
E. Padmanabhan, J.—The writ petitioner has prayed for the issue of a writ of certiorari calling for the records relating to the proceedings of
the 4th respondent in V-11014/22/98/L&R/Pers.-1-4430 dated 27.11.1998 confirming the orders of the 2nd respondent in V-11014/78/92-
A6(SZ)/12277 dated 30.10.1992 and the orders of the first respondent in V-15014 / (1) / Maj.4 / KCG / SSP / GHM/92/AD.VI/10484 dated
2.9.1992 and quash the same.
The petitioner joined as Constable in Central Industrial Security Force on 10.3.82. While the petitioner was stationed at Salem Steel Plant, on
the basis of a complaint given by one, Parvathi, the Inspector of Police, Central Industrial Security Force inspected and reported that complaint is
false. However, as against the petitioner, based upon the said complaint, the following three charges were framed :-
i) Gross misconduct and indiscipline in that No.822040021 Constable K.C.Gandhi of CISF Unit, SSP Salem has knocked the door of Constable
S.Palani (Quarter No.A-21/14 at Mohan Nagar, Salem), on 8.10.1991 around 21.45 hrs., with mala fide intention when his wife Mrs.Parvathi
Palani was alone (at her home saying that some of her relatives had come from Rasipuram). He tried to enter inside the Quarter (No.A-21/14)
forcibly by pushing the door from outside when Mrs.Parvathi Palani opened the door slightly ;
ii) in that he has appeared in drunken stage on 08.10.91 at about 21.45 hrs., (at Quarters No.A-21/14, Mohan Nagar Township SSP Salem) and
threatened Mrs.Parvathi Palani to slap and break her teeth which amounts a gross misconduct and misbehaviour on his part ;
iii) No.822040021 Constable K.C.Gandhi of CISF Unit SSP Salem failed to vacate the Quarter No/C-21/16 vide this office letter No.V-
15014/68/92/SSP/298 dated 21.10.1992. He has disobeyed the orders of the Asst. Commandant by refusing to vacate the said quarter.
The petitioner denied all the imputations and submitted a detailed explanation. The said charges were framed by the Deputy Commandant, who
called upon the petitioner to state his objections and required the petitioner to put forth his objection and take part in the enquiry. The first
respondent appointed the same Deputy Commandant, who framed the charges as enquiry officer. The petitioner raised objections. However, the
respondents insisted that the petitioner has to face the proceedings. The Inspector, who investigated the complaint also was examined as a witness
and his statement that there was no evidence to establish the charge has also been recorded. It is also the case of the Inspector that the petitioner
was not drunk at the material point of time. The said Deputy Commandant, who framed the charges initially and who came to be appointed as
enquiry officer, submitted a report holding that the petitioner is guilty of the charges. The enquiry report was furnished to the petitioner to which the
petitioner submitted his objections. Ultimately, the disciplinary authority, the first respondent, imposed the punishment of removal from service.
The petitioner preferred a writ petition, which was dismissed as premature, preferred an appeal before the 2nd respondent. The appeal was
dismissed. The petitioner preferred a revision before the 3rd respondent, but the 3rd respondent had failed to dispose of the revision. Hence, the
petitioner filed W.P. No.12431/98 to quash the order of dismissal. This Court directed the 3rd respondent to dispose of the revision
petition/representation. The 4th respondent rejected the revision petition by order dated 27.11.98 and confirmed the order of dismissal.
Challenging the said proceedings, the present writ petition has been filed.
It is contended by Mr.Duraisami, learned counsel appearing for the petitioner that the proceedings are nonest, in that the competent disciplinary
authority in terms of the statutory rule has not framed the charges, but charge has been framed by the subordinate authority, who is not competent
to frame the charges and this vitiates the proceedings. Nextly it is contended that the very Deputy Commandant, who is not the competent to frame
the charges, framed the charges and proceeded to hold inquiry and later the Group Commandant appointed the Deputy Commandant as the
enquiry officer and the proceedings of the enquiry officer is biased and this vitiates the proceedings. Nextly, it is contended that the imputations will
not constitute misconduct warranting disciplinary action as it occurred outside office hours and not in the course of employment. It is also
contended that the imputations will not constitute a misconduct as provided for u/s 8 of The Central Industrial Security Force Act. The latter two
contentions, this Court will not be justified in examining at this stage as the writ petition could be disposed of on the first contention itself.
Mr.Duraisamy, learned counsel for the petitioner contends that the competent authority in terms of Rule 29 (1) read with Rule II is the Group
Commandant of Central Industrial Security Force and the initiation of disciplinary proceedings by the Deputy Commandant, who is not the
disciplinary authority and not the competent authority under the Rules and, therefore, the very initiation itself is nonest.
Per contra, Mr.Kalaiselvan, learned counsel for the respondents contended that even the Deputy Commandant is competent to frame the
charges and, therefore, there is no illegality.
In this respect, it is essential to refer to Rule 29-A and Rule 34 of The Central Industrial Security Force Rules. Rule 29A of The Central
Industrial Security Force Rules reads thus :-
29-A. The Disciplinary authority in respect of a member of the Force for the purpose of imposing any particular penalty or the passing of any
disciplinary order shall be the authority specified in this behalf in (Sch. II) under whose administrative control the member is serving and shall
include any authority mentioned in the said Schedule superior to such authority.
Sub Rule (1) and (2) of Rule 34 of The Central Industrial Security Force Rules which are relevant reads thus :-
34 (1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850 (37 of 1850), no order imposing on a member of the
Force any of the penalties specified in Cls. (a) to (d) of Rule 31 shall be passed except after an inquiry held as far as may be in the manner
hereinafter provided.
(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges
together with a statement of the allegations on which they are based, shall be communicated in writing to the member of the Force and he shall be
required to submit, within such time as may be specified by the disciplinary authority, a written statement of his defence and also to state whether
he desires to be heard in person.
Explanation :- In this sub-rule and in sub-rule (3), the expression ""the disciplinary authority"" shall include the authority competent under these rules
to impose upon the member of the Force any of the penalties specified in Cls. (e) to (h) of rule 31.
In terms of Rule 34, the Deputy Commandant may suspend the petitioner, a Constable, but he is not competent to frame charges even to
impose the punishment, which may fall under Rule 34 (e) to (h). The authority, who is competent to impose the punishment in terms of Rule 34 (e)
to (h) may frame charges in respect of imputations or misconduct, which may lead to imposition of punishment as the punishment enumerated under
Rule 34 (a) to (d). Mr.Duraisami, learned counsel for the petitioner therefore contends that the initiation of proceedings by the Deputy
Commandant in this case is without jurisdiction and illegal.
Factually in this case, the Deputy Commandant framed the charges and called upon the petitioner to state his objections, while he proposed to
hold an enquiry himself. The petitioner raised objections and also submitted various objections. At that stage, the Group Commandant appointed
the very same Deputy Commandant as the enquiry officer and along with the appointment of enquiry officer, the very same charge memo as issued
by the Deputy Commandant under his signature has been enclosed as the charges and as if it has been framed by the respondent. In other words,
the charges have not been framed by the Group Commandant, who is the disciplinary authority, who has to frame the charge in terms of Rule 29
read with Rule 34. It is therefore rightly contended that the initiation of proceedings being without jurisdiction, all other proceedings will not survive
and they are liable to be quashed.
In this respect, the attention of this Court is drawn not only to the statutory rule referred to above, but also a few pronouncements of the Apex
Court.
It is well settled legal position that it is not necessary that the authority competent to impose the penalty alone to initiate the disciplinary
proceedings, but the proceedings could very well be initiated by any superior authority, who could be the controlling authority, who may be an
officer subordinate to the appointing authority. It is also equally well settled that in accordance with the maxim delagatus non potest delegare, the
statutory power must be exercised only by the body or officer on whom it has been conferred, unless such delegation of the power is authorised by
express words or necessary implication.
In Inspector General of Police and another Vs. Thavasiappan, : the Apex Court held thus:-
The learned counsel also drew our attention to P.V. Srinivasa Sastry v. Comptroller and Auditor General 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 and that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences. Transport
Commr. v. A. Radha Krishna Moorthy was next relied upon. Therein also this Court has held that initiation of disciplinary enquiry can be by an
officer subordinate to the appointing authority. These decisions fully support the contention of the learned counsel for the appellants that initiation of
a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the proposed penalty.
As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. Rule 2-A which provides that the Governor or any other
authority empowered by him may institute disciplinary proceedings is an enabling provision. From the way it is worded it is not possible to infer that
the rule-making authority intended to take away the power of otherwise competent authorities, like the appointing authority, disciplinary authority
or controlling authority and confine it to the authorities mentioned in Rule 2-A only. Moreover, it is difficult to appreciate how this provision can be
helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is competent to impose the
penalties mentioned in Rule 3(b)(i). An act of instituting a disciplinary proceeding is quite different from conducting an enquiry. Rule 3(b)(i)
provides how an 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), (i) and (j) of Rule 2. It lays down the different steps that have to be taken in the course of the enquiry proceeding. 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 para of that sub-rule. If it was intended by the rule-making authority that the disciplinary
authority should itself frame the charge and hold the enquiry then it would not have provided that a report of the enquiry shall be prepared by the
authority holding the enquiry whether or not such authority is competent to impose the penalty. Generally speaking, it is not necessary that the
charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority.
We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. In our opinion, the view taken by the
Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary 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 award, 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.
In the above said pronouncement, Rules 2 (a) and 3 (b) of The Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955,
was considered and it was held that the charge memo could be issued by an authority other than the disciplinary authority.
It is rightly contended that in the present case, a perusal of Rule 29 read with Rule 34 would show that it is the authority, who is competent to
impose the punishment alone could frame the charge and initiate disciplinary proceedings. Though there is an exception under Rule 34 read with
Schedule II, the Deputy Commandant could suspend a constable, but the Deputy Commandant is not competent to impose even the punishment as
enumerated under Rule 34 (e) to (h). Therefore, though the Deputy Commandant may suspend the constable, but he is not the disciplinary
authority nor he could frame charges for imposing the punishment enumerated under Clause (a) to (e) of Rule 34.
In the circumstances, in the light of the mandatory rule, whose language is clear, mandatorily it follows that the Deputy Commandant, who
framed the charges is not the competent authority to initiate disciplinary action. The judgment of the Division Bench in W.A. No.2386 of 2001
relied upon by the counsel for the respondent has no application to the facts of the case and it is clearly distinguishable, which the respondent
counsel fairly admitted.
It is true that in the present case punishment has been imposed by the competent authority, but he has not initiated nor framed the charges and
only the Deputy Commandant, who is not competent to impose the punishment enumerated under Clause (a) to (e) of Rule 34 has framed the
charges.
On this short ground alone this writ petition is allowed. The entire proceedings, which is without authority and illegal is quashed and the matter
is remitted back to the first respondent for de novo proceedings. It is open to the first respondent to frame fresh charges and proceed afresh
according to law by following the procedure.
The writ petition is allowed in the above terms and it is needless to state that the disciplinary authority, namely, the first respondent, who is
competent to impose the punishment alone shall frame the charges and as the incident relates to the year 1991-92, the said authority shall take
effective steps for earlier disposal of the disciplinary proceedings and without delay. The parties shall bear their respective costs.