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    W.P.(C) No.8878 of 2009 Page 1 of 21

    * IN THE HIGH COURT OF DELHI AT NEW DELHI

    + WP(C) No.8878/2009

    % Date of Decision: 31.05.2010

    Sh.Satish Kumar Kukreja …. Petitioner Through Mr.H.D.Sharma, Advocate.

    Versus

    Additional Secretary (HE), Ministry of HRD &

    others

    …. Respondent s

    Through Mr.S.Rajappa, Advocate.

    CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE MOOL CHAND GARG

    1. Whether reporters of Local papers may be allowed to see the judgment?

    YES

    2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported

    in the Digest?

    YES

    ANIL KUMAR, J. *

    1. The point for determination in the present writ petition is

    `whether a retired employee of Kendriya Vidyalaya Sangathan (KVS)

    could be appointed as an enquiry officer in a disciplinary enquiry ‟ under

    Rule 14 of Central Civil Services (Classification, Control & Appeal)

    Rules, 1965 [hereinafter referred to CCS (CCA) Rules, 1965] which was

    initiated against the petitioner who was an Assistant Commissioner in

    Kendriya Vidyalaya Sangathan (KVS) Regional Office, Lucknow.

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    W.P.(C) No.8878 of 2009 Page 2 of 21

    2. Sh. Indre Singh, a retired Commissioner of Departmental

    Enquiries of the Central Vigilance Commission was appointed by the

    Vice Chairman of Kendriya Vidyalaya Sangathan (KVS) on 17 th June,

    2008 as an enquiry officer in the Disciplinary proceedings, which were

    initiated against the petitioner. The petitioner had challenged the

    appointment of a retired officer as enquiry officer in the Original

    Application filed by the petitioner being O.A.No.1699 of 2008. On

    account of conflicting views of various Benches of the Administrative

    Tribunal regarding appointment of a retired employee as an enquiry

    officer under CCS (CCA) Rules, 1965, the matter was referred by a

    Division Bench of the Central Administrative Tribunal to the larger

    Bench.

    3. The larger Bench of the Tribunal by order dated 1 st November,

    2009 in O.A.No.1699 of 2008, titled as Satish Kumar Kukreja v.

    Additional Secretary, Ministry of HRD and Vice Chairman, Kendriya

    Vidyalaya Sangathan and another, held that a retired Government

    servant could be appointed as an enquiry authority under CCS (CCA)

    Rules, 1965 which is challenged by the petitioner before this Court in

    the present writ petition.

    4. Under Rules 14(2) of CCS (CCA) Rules, 1965, an enquiry officer

    can be appointed, which is as under:-

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    W.P.(C) No.8878 of 2009 Page 3 of 21

    “ 14(2). Whenever the Disciplinary Authority is of the opinion

    that there are grounds for inquiries into the truth of anyimputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof…..”

    Section 3 of the Public Servants (Inquiries) Act, 1850 also

    contemplates that enquiry may be committed either to the Court,

    Board, or other authority to which the person accused is subordinate or

    to other person or persons to be specially appointed. Section 3 of the

    Public Servants (Inquiries) Act, 1850 is as under:-

    “ 3. Authorities to whom inquiry may be committed. Notice to accused:- The inquiry may be committed either to the Court, Board, or other authority to which the person accused

    is subordinate, or to any other person or persons to bespecially appointed by the Government, Commissioners for the purpose; notice of which Commission shall be given to the person accused ten days at least before the beginning of the inquiry.”

    5. Under Article 80 of the Education Code applicable to the KVS, the

    CCS (CCA) Rules, 1965 have been made applicable mutatis mutandis to

    the employees of the KVS. Rule 80 of the Education Code applicable to

    KVS is as under:-

    “80.(a) All the employees of Kendriya Vidyalayas, Regional Offices and the Headquarters of the Sangathan shall be subject to the disciplinary control of the Sangathan and the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as amended from time to time, will apply mutatis mutandis to all members of the staff of the Sangathan except

    when otherwise decided. (In the above rules, for the words

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    W.P.(C) No.8878 of 2009 Page 4 of 21

    “Government Servant” wherever they occur, the words

    “Employees of Kendriya Vidyalaya/Kendriya VidyalayaSangathan ”, shall be substituted.”

    6. Before the Tribunal, the contention of the petitioner was that

    Section 3 of the Public Servants (Inquiries) Act, 1850 stipulates that a

    person against whom the enquiry is to be conducted should be

    subordinate to Court, Board or other authority and consequently, such

    authority has to be an official authority because an employee of the

    government cannot be subordinate to a person who is not in the

    employment of the Government.

    7. Relying on Section 3, it was further asserted that the authority

    contemplated for appointment under the said provision is

    Commissioner who is nothing but specially appointed person by the

    Government and ought to be a serving person and only such a person

    can be construed as an “Authority” under Rule 14 (2) of the CCS (CCA)

    Rules, 1965. According to the petitioner, the construction of Rule 14 (2)

    revolves around the t erm “Authority” and thus, the Disciplinary

    authority can only appoint a serving official of the Government as an

    enquiry authority. To buttress the point that the enquiry officer has to

    be a serving officer, it was pleaded that since the enquiry officer is

    delegatee of the Disciplinary authority, delegation cannot be made to a

    retired Government servant.

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    W.P.(C) No.8878 of 2009 Page 6 of 21

    of duly constituted Commission appointed by a notification and since

    the Central Vigilance Commission of the Department of Personnel and

    Training cannot issue instructions regarding appointment of a retired

    person as an enquiry officer de hors the specific provision in CCS (CCA)

    Rules, 1965, therefore, the enquiry authority has to be a serving officer.

    11. Reliance was also placed by the petitioner on Dhananjay Malik

    and others v. State of Uttaranchal and others, 2008 (2) SCT 659 to

    contend that the administrative instructions cannot override the law or

    the statutory rules. Comparing the Rule 14(8) with Rule 14 (2) of the

    CCS (CCA) Rules, 1965, it was argued that Sub Rule 8 specifically

    provides that the Government servant may appoint another

    Government servant or retired officer in contradistinction to Sub Rule

    (2) which does not provide the appointment of a retired officer, and

    consequently under Rule 14(2) only a serving government Officer could

    be appointed as enquiry officer.

    12. The respondents, before the Tribunal refuted the plea of the

    petitioner, inter-alia on the grounds that there is no bar under Rule

    14(2) of the CCS (CCA) Rules, 1965 to appoint a retired officer of the

    Government as an enquiry authority. The reliance was placed on the

    O.M. dated 15.05.1987 stipulating the instructions for employment of

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    W.P.(C) No.8878 of 2009 Page 7 of 21

    retired Government servant as enquiry authority by DoP&T. The said

    O.M.dated 15.05.1987 is as under:-

    “TERMS AND CONDITIONS FOR APPOINTING RETIRED OFFICERS AS INQUIRY OFFICERS

    The Retired Government Officer, hereinafter, referred to as Inquiry Officer (IO):

    1. should not be more than 70 years of age as on the 1st July of the year of his empanelment;

    2. should be in sound health, physically and mentally; 3. shall not engage himself/herself in any other

    professional work or service, which is likely to interfere with the performance of his/her duties as Inquiry Officer;

    4. shall be appointed as IOs by the Disciplinary authority of the Charged Officer whose case is entrusted to him/her;

    5. will be entrusted with the Inquiries on 'Case-to-case' basis, by the Disciplinary authority;

    6. shall maintain strict secrecy in relation to the documents he/she receives or information/data collected by him/her in connection with the Inquiry and utilise the same only for the purpose of Inquiry in the case entrusted to him/her. No such documents/information or data are to be divulged to any one during the Inquiry or after presentation of the

    Inquiry Report. The I.O. entrusted with the Inquiries willbe required to furnish an undertaking to maintain strict secrecy and confidentiality of all records/ documents/

    proceedings etc. All the records, reports etc. available with the I.O. shall be duly returned to the authority which appointed him/her as such, at the time of

    presentation of the Inquiry Report;

    7. shall be paid a lumpsu