PRAVEEN KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) In this Petition it has been prayed that a Mandamus may issue directing Respondent No.2, Hotel Corporation of India, to comply with the Circulars of the Central Vigilance Commission; that a Manadamus should issue quashing the so-called Regulations framed by Respondent No.2 and that the Inquiry Officer appointed by Respondent No.2, not being a public servant, should be changed. The Central Vigilance Commission (CVC) has, in terms of its letter dated 18.11.2004, directed Chief Vigilance Officers of Organisations such as Respondent No.2, to review the service Regulations and amend them to ensure that retired persons are not appointed as Inquiring Authorities. It is quite clear that this letter is predicated on the decision of the Hon'ble Supreme Court in Ravi Malik vs. National Film Development Corporation Limited and Others, Civil Appeal No.4481/2004, which is reproduced below in entirety, since it has not been reported: Leave granted. The respondent National Film Development Corporation Ltd. is a Government of India enterprise. Regulations were framed known as the Service Rules and Regulations 1982 (hereinafter referred to as the Regulations ) in respect of the employees of the respondent No.1. The Regulations, inter alia, contain conduct, discipline and appeal Rules, under which disciplinary action can be taken against an employee for misconduct by imposition of either a minor or a major penalty. As far as the procedure for imposing a major penalty is concerned, Rule 23 lays down the procedure. The subject matter of debate before us is the construction of Rule 23(b) which reads as follows: 23 (b) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself enquire into, or appoint any public servant, hereinafter called the inquiring authority to inquire the truth thereof . A retired judge of the City Civil Court was appointed as the Inquiry Officer for the purpose of inquiring into the truth of the imputations against the appellant. The appellant challenged this appointment by way of a petition under Art. 226 of the constitution of India. It was the appellant's submission that a retired judge was not a 'public servant' within the meaning of Regulation 23(b). In addition the appellant challenged the refusal of the inquiry officer to make available certain documents to him. The writ petition was partially allowed insofar as it pertained to the grant of copies of the documents. However, the submission relating to the competence of a retired judge to be appointed as an inquiry officer under Rule 23(b) was rejected. The High Court construed the words 'public servant' in the context of Rules 7 and 9 of the 1982 Regulations. Rule 9 in fact has no application whatsoever. It provides for matters concerning the conditions of service of public servants not covered by the Rules and reads thus: Rule 9 : In respect of matters concerning the conditions of service not covered by these rules, or specified decision of the Board, rules and procedures set forth in the government of India's F.R.s and S.R.s including the orders and decisions of the Government of India under Audit instructions, thereunder, and the orders issued by the B.P.E. from time to time, may be considered as guiding principles of deciding any individual cases arising in the Corporation . As far as Rule 7 is concerned it reads as follows: Rule-7. Interpretation not to be repugnant to Act : The interpretation of these regulations and issue of Administrative instructions pursuant thereto, shall not be repugnant to the provisions of the COMPANIES ACT, 1956, Articles of Association of the corporation and the various Acts, Rules, Notifications, directions issued by Government and other statutory authorities from time to time . In this case the Central Vigilance Commission had issued instructions permitting retired officers to be appointed as Inquiry officers. The words public Servant used in Rule 23(b) mean exactly what they say, namely, that the person appointed as an inquiry officer must be a servant of the public and not a person who was a servant of the public. Therefore, a retired officer would not come within the definition of 'public servant' for the purpose of Rule 23(b). Rule 7 cannot be interpreted to mean that the direction issued by the Central Vigilance commission would override any interpretation which a Court may put, as a matter of law, on it. The appeal is accordingly allowed and the finding of the High Court on the interpretation of Rule 23(b) is set aside. It will now be open to the respondents to appoint any serving public servant to hold the inquiry if it so desires. It is being made clear that the inquiry will proceed from the stage at which it has reached before the inquiry officer whose appointment is today held to be incompetent.

(2.) The directions of the CVC are not justifiably extractable or derivable from the said decision of the Apex Court as is evident from a reading of the Judgment in Ravi Malik 's case (supra) since the appointment of a retired Judge in that case was in conflict with the Regulations itself. This is not so in the case in hand. The two Rules are reproduced in juxtaposition in order to underscore the fact that so far as the Rules applicable to the parties in this case are concerned, the wordings or any other person from outside the Corporation is not found in the Rules applicable to the National Film Development Corporation Limited. 23(b) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself enquire into, or appoint any public servant, hereinafter called the inquiring authority to inquire the truth thereof. 2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself enquire into, or appoint any public servant or any other person from outside the Corporation (hereinafter called the inquiring authority) to inquire the truth thereof.

(3.) The Hon'ble Supreme Court, therefore, clarified that since the appointment of a retired Judge of the City Civil Court was in the face of Regulations to the contrary, that appointment did not replace by law. Therefore, the Office Order of the CVC dated 18.11.2004 is based on a fallacious reading and understanding of the said precedent. What the CVC ought to have clarified is that the natural consequences of the decision in Ravi Malik's case (supra) is that if the applicable Rules envisage the appointment of a public servant, no other person could have been appointed as the Inquiring Authority. For these reasons I find no merit in the contention that a Mandamus must issue.