Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Uday Umesh Lalit, Hemant Gupta* and S. Ravindra Bhat, JJ., addressed the instant appeal filed against the order of the High Court of Judicature at Allahabad, whereby the High Court had declared the order of punishment passed by Milk Commissioner/Registrar as incorrect. The Supreme Court stated,

“In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority.”

Issue before the Court

A petition was filed before the High Court to assail an order of punishment, whereby the one Jagpal Singh (employee) was ordered to be reverted to the minimum pay scale and the period of suspension was to be considered as a period spent by the employee in service. The order of punishment was passed after the prior approval Commissioner (Dairy Milk), designated as Registrar by the State Government. The said punishment was imposed due to manipulation in the weight measurement.

The employee contended that there was an undue and unexplained haste in passing the impugned order as the order was passed without taking prior approval under Regulation 87 of the Service Regulations from the competent authority i.e., the Uttar Pradesh Co-operative Institutional Service Board. The High Court found that the punishment order had been passed by the Chairman of the Administrative Committee and the approval for the punishment had also been granted by the same person. Therefore, relying on the case of Chandra Pal Singh v. State of U.P., 2018 SCC OnLine All 5992 the Court held that the approval in the instant case was inappropriate and was given by an incompetent authority.

Noticeably, the Administrative Committee in exercise of the powers conferred under Rule 10 of the Dairy Service Rules read with proviso to Rule 15 passed an office order that prior to imposing of penalty, the approval of Dairy Milk Commissioner/Registrar would be mandatory. It is in terms of the said Circular that the order of punishment was passed against the employee after approval from the Commissioner (Dairy Milk), discharging functions as the Registrar.

Findings of the Court

The Bench opined that the High Court in the impugned judgment and in Chandra Pal Singh’s case proceeded on wrong assumptions of facts and law. Pertinently, by a notification dated 17-11-1979 issued by the State Government, Pradeshik Co-operative Dairy Federation, Central or Primary Milk Societies, whose area of operation extends to more than one district or State and Co-operative Milk Unions, were taken out of the control of Uttar Pradesh Co-operative Institutional Service Board. Instead a Selection Committee was constituted in respect of Category I and II employees. Thereafter, it was the Selection Committee who was empowered for the purpose of recruitment, training and disciplinary control of the employees of Dairy Co-operative Societies until the Dairy Service Rules came into force upon publication of the Gazette on 29-08-1984. Section 122-A inserted in the 1965 Act which opens with a non-obstante clause should be taken to have an overriding effect over the general regime; accordingly,

“The Dairy Service Rules have been framed in exercise of the jurisdiction conferred under Section 122A of the Act. The Regulations can be framed by the Registrar or the State either under Section 121 or 122 of the Act or in terms of Rule 9 of the Dairy Service Rules. Such Rules would have precedence over the Regulations, which are framed or are required to be framed either by the Registrar or by the Authority entrusted with the task of recruitment, training and disciplinary control.”

The proviso to Rule 15 empowered the Administrative Committee constituted under Rule 5 as an Appointing Authority and the authority to exercise disciplinary control over the employees of the centralised services till the time regulations are framed. Thus, the Bench was of the view that the resolution dated 20-09-984 would be applicable in respect of other service conditions. However, with regard to disciplinary control, it would be the Dairy Service Rules which would be applicable.

Therefore, the Bench opined that in terms of proviso to Rule 15, the Chairman of the Administrative Committee is the Appointing and Disciplinary Authority. Hence, the Service Regulations would be inapplicable to determine the Appointing Authority and/or the Disciplinary Authority in respect of the employees of Co-operative Milk Societies. The Bench stated,

“The Resolution dated 20-09-1984 will not determine the Appointing or Disciplinary Authority, the same being covered by the Statutory Rule namely the Dairy Service Rules.”

Regulation 106 of the Service Regulations which empowers the State Government or the Registrar to pass such orders not inconsistent with the Regulations in respect of termination, dismissal or removal would not be applicable in the instant case, since the punishment imposed was of reversion and not of either termination, dismissal or removal. Therefore, the order of punishment passed by the Chairman of the Administrative Committee was by the competent Disciplinary Authority.

Sir William Wade in his Administrative Law stated:

“But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity…” It was further stated: “In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested.”

The Milk Commissioner had been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar was in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. Considering that the exercise of the powers under the Act were conferred by designation and the prior approval of the punishment was by the Registrar; if, incidentally, the person holding the post of Registrar was also Chairman of the Administrative Committee, it could not be said to be illegal.

Consequently, since the Chairman of the Administrative Committee happened to be the Registrar, the decision to impose punishment may not require prior approval. Hence, it was held that there was nothing wrong in the exercise of power by the Chairman, neither was there any error in the order of punishment passed by the Administrative Committee. The instant appeal was dismissed.

[Milk Union & Dairy Federation Centralized Services v. Jagpal Singh, 2021 SCC OnLine SC 245, decided on 23-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Hot Off The PressNews

Many instances have come to the notice of the Election Commission of India wherein Chief Electoral Officers and some other officials working directly in the office of Chief Electoral Officers, e.g., Additional Chief Electoral Officers and Joint Chief Electoral Officers, etc. have been victimised after the elections are over. Ironically, in most such instances the concerned officers had discharged their duties in an impartial manner in order to ensure free, fair, robust and ethical elections. After a comprehensive review of this issue and keeping in view such specific instances, Commission has addressed a communication to all concerned vide its letter No. 154/2020, dated 15-01-2021 inter alia stating: –

(i) The state/UT governments shall invariably obtain prior approval of the Commission, if any disciplinary action is initiated against the Chief Electoral Officers and other officers up to Joint Chief Electoral Officer during their tenure and also up to one year from the expiry of last election conducted by them.

(ii) Commission has also directed that the State/UT government shall not reduce facilities such as vehicle, security and other facilities/amenities provided to the office of the Chief Electoral Officer for proper discharge of his/her duties.

            Commission is sanguine in the expectation that all concerned shall strictly adhere to this regimen in letter as well as in spirit.

Copy of the above instruction is available on the ECI website https://eci.gov.in.


Election Commission

[Press Release dt. 15-01-2021]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ, and V. Kameswar Rao, J. dismissed an appeal preferred by the writ petitioner against the order of the Writ Court allowing the petition filed by the respondents against the order of Chief Information Commission.

The appellant had filed an application under the Right to Information Act, 2005. The CPIO concerned refused to furnish the same while giving the appellant an opportunity to carry out inspection of the record and copies thereof. The appellant filed an appeal before the Appellate Authority prescribed under the Act. The Appellate Authority dismissed the appeal. Thereafter, the matter reached to the CIC who decided the matter in favour of the appellant and directed furnishing of certified copies while also recommending disciplinary action against the Appellate Authority. Challenging the order of CIC, a writ petition was filed by the Union of India which was allowed by the Writ Court. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused Section 20 of the Act and observed that it was clear that sub-section (2) thereof makes only a CPIO liable for disciplinary action. Further, it was also observed that an Appellate Authority under Section 19(1) is classified as an officer senior in rank to the CPIO. meaning thereby that the CPIO is a different authority from the Appellate Authority. The legislative intent was only to take a disciplinary action against CPIO and not against the Appellate Authority as was evident from Section 20(2). Thus, it was held that no penal action could be taken against the Appellate Authority under RTI Act. As such the appeal was dismissed. [R.K. Jain v. Union of India,2018 SCC OnLine Del 10957, dated 29-08-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to the scope of power of Armed Forces Tribunal to hear the appeals arising out of court martial verdicts qua GREF personnel, the Court held that denial of jurisdiction to the said tribunal would be contrary to the Army Act, 1950 and the provisions engrafted under the Armed Forces Tribunals Act, 2007. It was held that the right to approach the AFT by the personnel of GREF who are tried by a court martial held under the very same Act has to be recognized. It was, however, clarified, that at the same time if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS(CCA) Rules, 1965 the same cannot be agitated before the AFT and AFT shall have no jurisdiction to hear and decide grievances of GREF personnel relating to their terms and conditions of service or alternatively put ‘service matters’.

The bench of Dipak Misra and U.U. Lalit, JJ explained that the 2007 Act has been made applicable to persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, the retired personnel subject to these Acts including their dependants, heirs and successors insofar as it relates to their service matters. The tribunal constituted in terms of Sections 4 and 5 thereof, is vested with twin jurisdiction viz., jurisdiction, powers and authority in service matters as provided in Section 14 and the jurisdiction in matter of appeal against courts martial under Section 15 of the Act.

It was further stated that the 1950 Act and the Army Rules, 1954 have been applied to civilian personnel of the GREF only for the purpose of discipline. The reasons are obvious. The GREF is a force raised and maintained under the authority of the Central Government, its units are set up on the lines of the Indian Army, it works with and under close coordination with regular army in border areas, facilitates the Indian Army to carry out its operational role, etc. Hence, it has been felt appropriate that the 1950 Act should be made applicable to a force raised and maintained by the Central Government as considered necessary in the interest of discipline. The issue can be perceived from a different perspective. The GREF personnel are subjected by legislative scheme to dual disciplinary control, and such an arrangement is permissible

Hence, if an offence is committed in relation to an enemy, offences on active service, mutiny, desertion, disobedience, etc., considering the nature and gravity of the offence, it may warrant severe action against the delinquent by way of trial by a court martial. In other disciplinary cases, the competent authority may decide to proceed under CCS(CCA) Rules, 1965 in which the maximum permissible punishment is only ‘dismissal from service’. [Mohammed Ansari v. Union of India, 2017 SCC OnLine SC 83, decided on 02.02.2017]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While declaring an RTI applicant as misuser of social media and RTI, CIC warned him to stop misusing the law to harass his colleagues in a Delhi college. The Commission was hearing an appeal filed by an employee of Ambedkar Polytechnic, who filed RTI application seeking wide range of information about his colleagues and Principal and even of the officers who were supposed to inquire into complaints filed against him. He sought copies of integrity certificate of committee members those were involved in the inquiry. Appellant had already filed number of complaints, grievance representations, RTI applications, almost chocking entire administration. He also videographed the lecture of one of his lady colleagues in the class room without permission and put it on social media with reckless allegations. She complained against him before Delhi Commission for Women, which was dismissed on the ground that the Principal should have given a memo. She was upset with invasion of her privacy and reputation by wide circulation of abusive comments with video giving an impression there was some scandal. After perusal of documents and hearing the parties, CIC observed that the appellant is, “a misuser of every mechanism” and “every misuse of system like, PGMS, RTI and Social media shall be considered as an item of misconduct that invite disciplinary action.” “The head of the institute need to examine if it (actions of appellant) amounts to any offence under IPC or IT Act, and shall report to appropriate authorities including police,” CIC noted. The Commission also observed that the women colleagues were also entitled to get compensation for invasion of their privacy. The Commission further recommended the Delhi Commission for Women, to take necessary action on complaints of the lady colleague and report the compliance to the Commission. [Mohd. Shakeel Saifi v. Bhai Parmanand Institute of Business Studies, 2016 SCC OnLine CIC 3673, decided on March 3, 2016]