Union Of India & Others vs Subash Chandra Sharma on 19 May, 2011

$~27.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(C) 3377/2011

                                           Date of order: 19th May, 2011

        UNION OF INDIA & OTHERS                ..... Petitioners
                      Through Mr. Kumar Rajesh Singh,
                      Advocate.
                 versus
        SUBASH CHANDRA SHARMA               ..... Respondent
                      Through Ms. Meenu Mainee, Advocate.
        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J.:

        CAVEAT No. 460/2011

        Learned counsel for the caveator is present and has been

heard. Caveat is accordingly disposed of.


        CM Nos. 7057-7058/2011


        Exemption applications are allowed, subject to all just

exceptions.


        W.P.(C) 3377/2011 & CM No. 7056/2011


        With the consent of the parties, the matter is taken up for

hearing and disposal.

W.P. (C) No. 3377/2011                                            Page 1 of 5
 2.      The issue raised and argued is a short one and does not

require detailed elucidation of facts. Union of India has filed the

present writ petition impugning the order dated 20th January,

2011 allowing O.A. No. 3805/2010 filed by Subash Chandra

Sharma, the respondent herein.         By the impugned order,

departmental proceedings initiated against the respondent have

been quashed on the ground that authorization/charge sheet

dated 29th October, 2009 was not issued by the competent

authority.


3.      The respondent, Section Engineer (P. Way) was served

with charge sheet dated 29th October, 2009. The respondent

was to retire at the end of the said month on 31st October, 2009.

This charge sheet was issued by Mr. M.A. Rehman, Senior

Divisional Engineer (N).     The contention of the respondent

before the tribunal was that Mr. M.A. Rehman could not have

issued the said charge sheet as the respondent was working

under the charge of Mr. Sumit Sardana, Senior Divisional

Engineer, Bhopal. The said Mr. Sardana was the disciplinary

authority of the petitioner and had left for a week's training and

during the integrum Mr. M.A. Rehman was given the duty to look

after routine and emergency work.         The contention of the

W.P. (C) No. 3377/2011                                  Page 2 of 5
 respondent, which has been accepted by the tribunal, is that Mr.

M.A. Rehman was not disciplinary authority and could not be

delegated the power to issue a charge sheet.


4.      The order of the tribunal cannot be sustained for several

reasons. It is well settled that initiation of disciplinary enquiry

can be by an officer subordinate to the appointing authority. The

respondent was to retire from Railway service on 31st October,

2009 and Mr. Sumit Sardana under whom he was working was

on leave and had gone for training. In these circumstances, Mr.

M.A. Rehman had issued the charge sheet.          Both Mr. Sumit

Sardana and Mr. M.A. Rehman are Senior Divisional Engineers

and were holding the same or equivalent post on 29th October,

2009. Further, Mr. M.A. Rehman had been asked to look after

the work, which was being undertaken by Mr. Sumit Sardana in

his absence. Mr. M.A. Rehman was not junior or subordinate to

Mr. Sumit Sardana and both of them were holding the same

post/rank.       In the order dated 6th October, 2010, which was

passed by Divisional Railway Manager (West), Central Railway,

Bhopal pursuant to directions given in the earlier O.A. No.

2900/2010 vide order dated 13th September, 2010, the said

contention was examined and rejected recording as under:

W.P. (C) No. 3377/2011                                  Page 3 of 5
                 "3. The Contents of para 3 of the legal
                notice are denied.        You have strongly
                objected that Sr. DEN (N) BPL, Shri M.A.
                Rehman was not competent to issue the
                charge sheet and had no jurisdiction
                because he was not the administrative
                authority under whom you were working. In
                this context it is clarified that Shri M.A.
                Rehman, Sr. DEN (N) BPL was well
                competent to issue the charge sheet. The
                copy of Schedule of Power is enclosed
                herewith. At the relevant time he was
                looking after the work of Sr. DEN (CO) BPL,
                thus the administrative jurisdiction and
                power conferred upon him because Sr. DEN
                (CO) was under training from 26.10.2009 to
                30.10.2009 and it is also informed that Shri
                M.A. Rehman, Sr. DEN (N) was working in
                Junior Administrative Grade equivalent to Sr.
                DEN (CO), thus the objection is not
                sustainable as per rule."
5.      It has been explained and clarified that as per the Master

Circular No. 66, under Rule 9 (Procedure to be followed for

Imposition of a Major Penalty) in case of non-Gazetted

employees, the disciplinary authority is the competent authority,

which can impose major penalties specified in Rule 6. Further,

major penalty proceedings can be instituted by the authority,

who is competent to impose at least one of the major penalties

under paragraph 21(ii) of the Master Circular No. 66. Similarly,

in terms of Rule 2 (c)(iii) of Discipline and Appeal Rules, 1968,

disciplinary authority in relation to Rule 9 for imposition of major

penalty proceedings of any non-Gazetted Railway servant is an
W.P. (C) No. 3377/2011                                     Page 4 of 5
 authority competent to impose any of the major penalties. As

per schedule of powers, a Junior Administrative Grade Officer is

competent to impose major penalty of reduction to a lower time

scale of pay, grade, post or service in Group C staff in all

grades, including the respondent. There is no further stipulation

or condition in the said rules that only the concerned officer i.e. a

person to whom the respondent was reporting can issue the

charge sheet.


6.      In view of the aforesaid discussion, writ of certiorari is

issued and order dated 20th January, 2011 passed by the

tribunal in O.A. No. 3805/2010 is quashed. It is held that the

disciplinary proceedings have been validly initiated.


7.      The writ petition is disposed of. In the facts of the case,

there will be no order as to costs.


                                           SANJIV KHANNA, J.

CHIEF JUSTICE
MAY 19, 2011
VKR

W.P. (C) No. 3377/2011 Page 5 of 5