Shri Brajendra Singh Yambem Vs Union of India

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8323 OF 2016 (Arising out of SLP(C) No.30907 of 2013)

BRAJENDRA SINGH YAMBEM …APPELLANT Versus

UNION OF INDIA AND ANR. …RESPONDENTS WITH

CIVIL APPEAL NO.8324 OF 2016 (Arising out of SLP(C) No.10092 of 2014)

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

2. The present appeals arise out of the common impugned judgment and order dated 05.08.2013

passed by the Division Bench of the High Court of

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Manipur at Imphal in Writ Appeal Nos. 39 and 40

of 2011, whereby the judgment and order dated

01.09.2010 passed by the learned single Judge of

the High Court of Gauhati, Imphal Bench in W.P.

(C) Nos. 904 of 2008 and 264 of 2010 was set

aside.

3. The necessary facts required to appreciate the rival legal contentions advanced on behalf of

the parties are stated in brief hereunder:

The appellant was serving as a regular

Commandant of 61st Battalion, CRPF and at the time

of incidents, was posted at Mantripukhri, Imphal.

He is alleged to be involved in two cases. The

first case, i.e. Civil Appeal arising out of the

SLP (C) No. 30907 of 2013 relates to missing of

arms and ammunition. The second case, i.e. Civil

Appeal arising out of SLP (C) No. 10092 of 2014

relates to the alleged supply of contraband

ganja, by 11 CRPF personnel posted in the unit of

the appellant.

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Between 03.06.1995 and 05.07.1995, one AK-47

rifle with 3 magazines and 90 rounds of 7.62

ammunition issued in the name of one Lance Naik

Man Bahadur, who was posted at the same battalion

of which the appellant was the commandant went

missing. According to the respondents, the loss

occurred as a result of the verbal orders issued

by the appellant, which action amounted to a

violation of Rules 3(1)(i) & (iii) of the Central

Civil Services (Conduct) Rules, 1964 (hereinafter

referred to as the “CCS (Conduct) Rules, 1964”).

4. On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal sent a letter to

the appellant, directing him to submit a written

statement of defence in connection with the said

lapse. The relevant portions of the said letter

are extracted hereunder:

“It has been intimated by IGP, N/ Sector, CRPF that one AK-47 Rifle, 3 Magazines and 90 rounds of 7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. IGP N/Sector

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has intimated to this office that the said weapon and ammunition belonging to HQr Coy was shown as issued to LNK Man Bahadur but was actually being used by a civilian on your orders. It has further been intimated that S.M. P.N. Gupta (OC HQr Coy 61 Bn) had brought it to your notice that the said weapon and ammunition were not returned by the civilian and were missing from the HQr Coy Kote. To this effect, Shri P.N. Gupta had informed you in writing on 21.08.1995. However, no action was taken nor any decision given by you…… ………Therefore, I am directed by IGP, N/Sector that to request you to send your written statement to this office at an early date……”

5. Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998,

explaining the reasons which resulted in the loss

of the said weapon and ammunition.

6. By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of

the conclusion arrived at by the internal Court

of Inquiry, issued a warning to the appellant to

be more careful and also ordered for a sum of

Rs.3,750/- to be recovered from the appellant in

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lieu of the lost weapon.

7. Subsequently, on 15.03.1999, the IGP, Northern Sector, CRPF, sent a letter to the

appellant stating that after review of the case,

the Directorate General had come to the

conclusion that the penalty inflicted upon him

vide letter dated 24.06.1998 was being withdrawn

as the same did not commensurate with the gravity

of the offence committed by the appellant in

discharge of his official duties. After obtaining

approval from the competent authority, major

penalty proceedings were initiated and Memorandum

of Charges dated 23.06.1999 was issued to the

appellant. Subsequently, pursuant to the

Presidential Order dated 14.10.1999, a regular

departmental inquiry under Rule 14 of the Central

Civil Services (Classification Control & Appeal)

Rules, 1965 (hereinafter referred to as the “CCS

(CCA) Rules, 1965”) was ordered in connection

with the said incident of the loss of AK-47 Rifle

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along with its ammunition.

8. Aggrieved of the said action of withdrawal of imposition of minor penalty and initiating

departmental inquiry, the appellant filed Writ

Petition (C) No. 720 of 2002 before the High

Court of Gauhati, Imphal Bench, by questioning

the validity of the said Memorandum of Charges

dated 15.03.1999 on the ground that it is in

violation of the principles of natural justice

and is also contrary to the settled position of

law.

9. The learned single Judge allowed the Writ Petition vide judgment and order dated 18.05.2006

by placing reliance on various decisions of this

Court on the aspect of principles of natural

justice. It was observed that the earlier

punishment imposed upon the appellant was

withdrawn suo motu by the competent authority by

order dated 15.03.1999 without affording him the

opportunity of being heard, by passing a non

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speaking order. The learned single Judge

accordingly set aside the order dated 15.03.1999

as the earlier penalty imposed upon the appellant

was withdrawn by which the letter dated

24.06.1998 was withdrawn by the IGP-NS.

10. In the meanwhile, the appellant retired from service as a regular Commandant/Police Officer,

CRPF on 31.08.2006.

11. The respondent-Union of India preferred Writ Appeal No. 45 of 2006 before the Division Bench

of the High Court against the said judgment and

order of the learned single Judge.

12. The Division Bench of the High Court by way of judgment and order dated 07.11.2006 upheld the

finding and reasons recorded by the learned

single Judge and held that the appellant should

have been afforded an opportunity of being heard

before the Memorandum of Charges dated 15.03.1999

was issued to him. The Division Bench however,

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observed that it was open for the Disciplinary

Authority to initiate fresh action in the matter

against the appellant by complying with the

principles of natural justice. The appeal was

accordingly dismissed.

13. In pursuance of the liberty granted by the Division Bench to the respondents, a show cause

notice dated 02.02.2007 was issued to the

appellant, by which he was given time of fifteen

days to reply to the same. After considering the

reply of the appellant, the DG-CRPF came to the

conclusion that it was appropriate to initiate

disciplinary proceedings against the appellant

afresh.

14. Accordingly, on 22.08.2008, the respondents issued another Memorandum of Charges to the

appellant in pursuance of the sanction accorded

by the President of India under Rule 9(2)(b)(i)

of the Central Civil Services (Pension) Rules,

1972 (hereinafter referred to as the “CCS

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(Pension) Rules, 1972”) for initiating

departmental inquiry proceedings against him in

accordance with the procedure laid down in Rule

14 of the Central Civil Services (Classification,

Control and Appeal) Rules, 1965 and directed him

to submit his written statement of defence to the

said Memorandum of charges. The articles of

charges framed against the appellant are

extracted hereunder:

“Article-I That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning as Commandant 61 Bn CRPF at Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act of misconduct in that he allowed, kote UO to issue arms and ammunitions more than authorization. Thus the said B.S. Yambem, Commandant (Retired) failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Government Servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-II

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That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning in the aforesaid capacity and during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds through kote UC’s without keeping/maintaining proper records violating the instructions on the subject. Thus, the said Shri B.S. Yambem, Comdt. (Retired) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3(1) (ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-III That the said Shri B.S. Yambem, Commandant(Retired)while posted and functioning as Commandant 61 Bn CRPF, Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act, of misconduct in that he got issued service weapons to undergrounds through No.793020336 LNK Man Bahadur in violation of orders which resulted in missing of one AK-47 Body No. 313422 Butt No. 77, 3 Magazine and 90 rounds. That the said Shri B.S. Yambem, Commandant (Retired) failed to maintain absolute integrity and devotion to the duty and acted in a manner unbecoming of a Govt. Servant and

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thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of the CCS (Conduct)Rules, 1964.

Article-IV That the said Shri B.S. Yambem, Comdt. (u/s) while posted and functioning in the aforesaid capacity during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds resulting missing of one AK 47 Body No. 313422 Butt No. 77, 3 Magazines and 90 Rounds. He had hidden the above fact and failed to take appropriate action after missing the service weapon. Thus the said Shri B.S. Yambem, Comdt. (u/s) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.”

15. Aggrieved of the same, the appellant filed Writ Petition(C) No.904 of 2008 before the High

Court of Gauhati, Imphal Bench questioning the

issuance of the Memorandum of Charges urging

various legal grounds.

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16. In the meanwhile, another set of disciplinary proceedings had been initiated

against the appellant in connection with the

arrest of 11 personnel and seizure of two trucks

of the unit of the appellant carrying contraband

ganja. The allegation against the appellant was

that he tried to cover up the same and that the

said act of the appellant amounted to a violation

of the Rules 3(1)(i),(ii) &(iii) of CCS (Conduct)

Rules, 1964. The departmental enquiry was

initiated against him on 14.05.1998. Aggrieved of

the initiation of disciplinary proceedings in

connection with the above alleged misconduct, the

appellant filed W.P. No. 805 of 2005 before the

High Court of Gauhati, Imphal Bench. The learned

single Judge of the High Court allowed the Writ

Petition by way of judgment and order dated

16.06.2006 by the learned single Judge of the

High Court. The single Judge, however, granted

liberty to the Disciplinary Authority to initiate

departmental enquiry afresh against the appellant

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after complying with the directions given in the

judgment.

17. Aggrieved of the said judgment, the respondents filed Writ Appeal No. 25 of 2007

before the Division Bench of the High Court

questioning the correctness of the same. The

Division Bench of the High Court dismissed the

said Writ Appeal vide judgment and order

13.11.2008 and upheld the impugned judgment and

order of the learned single Judge. Thereafter,

the said Memorandum of Charges dated 14.05.1998

was withdrawn by the respondents, and another

Memorandum of Charges dated 16.10.2009 was

issued. The Articles of Charges framed against

the appellant are extracted as hereunder:

“Article-I That the said Shri B.S. Yambem, Commandant while posted and functioning as Commandant in 61 Bn. CRPF at Mantripukhri, Imphal during August 1995 committed a serious misconduct in that he on 08/08/1995 sent three vehicles, one Asstt. Commandant and 18 other

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ranks of his Unit out of the area of operational jurisdiction without the approval of IGP (Ops) Manipur and Nagaland. Two of the above vehicles and 11 men were later intercepted and apprehended by the Customs and Central Excise Authorities at Didarganj check post near Patna on the night of 11/08/1995 as a huge quantity of contraband ganja was found loaded in these vehicles. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i),(ii)and (iii) of CCS (Conduct) Rules, 1964.

Article-II That during the aforesaid period and while functioning in the aforesaid Unit in the aforesaid capacity, the said Shri B.S. Yambem committed a serious misconduct in that he fabricated office records to cover illegal dispatch of CRPF vehicles and men out of operational jurisdiction without proper permission or orders of the competent authority and also tried to secure false medical certificates in respect of Officers and men allegedly involved in the illegal transshipment of ganja from civil hospital on coming to know about the detention of his Unit vehicles and men by Central Excise

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authorities of Patna on 12/08/1995. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion of duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-III That the said Shri B.S. Yambem, Commandant (under suspension) while posted and functioning as Commandant 61 Bn. CRPF, Mantripukhri, Imphal during August, 1995 committed a serious misconduct in that he suppressed the information of arrival of Shri Ram Singh, Asstt. Comdt (under suspension), 4 Ors. with Civil TATA 608 truck with civilian driver at Bn. HQrs on 15/16-8-95 and kept them hiding at remote Coy location at Mayang, Imphal and shown their arrival at Bn HQrs on 0245 hrs on 17/08/1995 though they were wanted by Central Excise authorities in connection with the seizure of ganja from two trucks of his Unit at Didarganj check-post near Patna on the night of 11/8/1995. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i) (ii) and (iii) of CCS (Conduct) Rules, 1964.”

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18. Aggrieved of the same, the appellant filed Writ Petition(C) No. 264 of 2010 before the High

Court of Gauhati, Imphal Bench.

19. As the legal issue was same in both the Writ Petitions, i.e., No. 904 of 2008 (filed

against the Memorandum of Charges dated

22.08.2008-issued in 1st case i.e. Arms case) and

Writ Petition No. 264 of 2010 (filed against

Memorandum of Charges dated 16.10.2009-issued in

2nd case i.e. Ganja case), they were heard

together and disposed of by the learned single

Judge vide common judgment and order dated

01.09.2010. The learned single Judge held that

the Memorandum of Charges in both the cases make

it clear that the initiation of disciplinary

proceedings against the appellant by the

Disciplinary Authority for the alleged incidents

which took place more than 10 years earlier was

barred by limitation as provided for under Rule

9(2)(b)(ii) of the CCS (Pension) Rules, 1972.

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Accordingly, the learned single Judge quashed the

Memorandum of Charges dated 22.08.2008 and

16.10.2009 and allowed the above Writ Petitions

filed by the appellant.

20. Aggrieved of the common judgment and order passed by the learned single Judge, the

respondents filed Writ Appeal (C) Nos. 39 of 2011

and 40 of 2011 (against Writ Petition No. 904 of

2008 and Writ Petition No. 264 of 2010,

respectively) before the Division Bench of the

High Court questioning the correctness of the

same.

21. The Division Bench of the High Court after hearing the parties decided the above said Writ

Appeals by passing the impugned common judgment

and order dated 05.08.2013, observing that once

the sanction was obtained by the Disciplinary

Authority from the President of India, then the

bar of period of limitation of four years as

contained in Rule 9(2)(b)(ii) of the CCS

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(Pension) Rules, 1972 will not apply. Hence, the

proceedings of serving the Memorandum of Charges

to the appellant after his retirement falls

within the ambit of Rule 9(2)(a) read with Rule

9(2)(b)(i) of the CCS (Pension) Rules, 1972. The

Division Bench of the High Court, thus, allowed

the appeals and set aside the order of the

learned single Judge and upheld the decision of

the respondents to hold departmental enquiry

against the appellant. The Division Bench of the

High Court further directed the Enquiry Officer

to hold the departmental enquiry strictly in

accordance with law without being influenced by

any observation of its order. The respondents

were further directed to proceed with the

departmental enquiry against the appellant and

conclude the same after affording adequate

opportunity of hearing to him in the enquiry

proceedings. Hence, the present appeals filed by

the appellant.

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22. Mr. Lenin Singh Hijam, the learned counsel appearing on behalf of the appellant contends

that the initiation of the disciplinary

proceedings against the appellant by the

Disciplinary Authority in the year 2008, after

long lapse of 13 and 14 years of the occurrence

of the alleged incidents in the two cases is

violative of Rule 9(2)(b)(ii) of the CCS

(Pension) Rules, 1972. In support of the same,

reliance is placed on the decision of this Court

in the case of State of U.P. & Anr. v. Shri

Krishna Pandey1, wherein it has been held that a

government employee cannot be subjected to a

departmental enquiry after his retirement from

service for any event or occurrence which took

place more than four years prior to the date of

the institution of the disciplinary proceedings

against an employee.

23. The learned counsel further contends that

1 (1996) 9 SCC 395

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the Division Bench of the High Court has erred in

bypassing the CCS (Pension) Rules, 1972 in

extending the limitation period for initiating

departmental enquiry against the appellant, which

action of the disciplinary authority is contrary

to the Rules as well as the decision of this

Court in the case of Shri Krishna Pandey (supra).

24. The learned counsel further contends that neither the Inspector General of Police (NS-CRPF)

nor the Director General, CRPF could have issued

the Memorandum of Charges dated 22.08.2008 and

16.10.2009 for initiating fresh departmental

enquiry proceedings against the appellant as they

were not the competent authority to do so. It is

further contended that the statutory safeguards

provided for retired government employees under

the CCS (Pension) Rules, 1972 should not have

been overlooked by the respondents.

25. The learned counsel further contends that enquiry proceedings that were initiated by the

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respondents under Rule 14 of the CCS (CCA) Rules,

1965 in respect of the alleged incident of loss

of weapon and ammunition, were quashed by the

learned single Judge of the High Court.

Subsequently, enquiry proceedings were initiated

afresh against the appellant under Rule 9(2)(b)

(ii) of CCS (Pension) Rules, 1972. Therefore, the

respondents cannot mislead this Court by

justifying their action of initiation of the

disciplinary proceedings against the appellant on

the ground that the second enquiry proceeding

which was initiated by them by issuing the

Memorandum of Charges was merely a continuation

of the first enquiry proceeding itself, when the

same was initiated afresh by the disciplinary

authority after obtaining sanction from the

President as required under Rules 9(2)(b)(i)

after the retirement of the appellant from

service and more than four years from the date of

the alleged incidents.

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26. As far as the case in the Civil Appeal arising out of the SLP (C) No. 10092 of 2014 is

concerned (ganja case), the learned counsel on

behalf of the appellant refutes the involvement

of the appellant in the same. It is contended

that there were 11 CRPF personnel who were

charge-sheeted and booked in the said case and

tried before the District and Sessions Judge,

Patna for the alleged offences punishable under

the relevant provisions of the NDPS Act. The

Trial Court acquitted the said personnel.

Further, no departmental enquiry was conducted

against them. Strangely, the departmental enquiry

proceedings were initiated only against the

appellant and that too, after 13 years of the

alleged incident which is in violation of the CCS

(Pension) Rules, 1972. The learned counsel

further contends that the above departmental

enquiry was initiated against the appellant with

a mala fide intention to harass him.

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27. On the other hand, Mr. P.S. Patwalia, learned Additional Solicitor General appearing on

behalf of the respondents, has sought to justify

the common impugned judgment and order dated

05.08.2013 passed by the Division Bench of the

High Court contending that the High Court was

right in allowing the Writ Appeals filed by the

respondents and that the same does not suffer

from either erroneous reasoning or any error in

law which warrants interference by this Court in

exercise of its appellate jurisdiction under

Article 136 of the Constitution of India.

28. The learned ASG further contends that Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972

cannot come to the rescue of the appellant as the

departmental inquiry had already been initiated

against the appellant vide letter dated

15.03.1999, while he was still in service.

29. The learned ASG further places reliance on clause (a) of sub-rule 2 of Rule 9 of the CCS

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(Pension) Rules, 1972 which reads thus:

“9(2)(a)… The departmental proceedings referred to in sub-rule (1) if instituted, while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the Authority by which they were commenced in the same manner as if the Government servant had continued in the service”

Further, reliance is placed by the learned ASG on

the decision of this Court in the case of D.V.

Kapoor v. Union of India2, wherein this Court has

held that the proceedings under Rule 9 of the CCS

(Pension) Rules, 1972 can be instituted or

continued against a government servant who has

retired from service in those cases in which

grave misconduct is alleged to have been

committed. In the case on hand, prior sanction of

the President was obtained by the Disciplinary

Authority as required under Rule 9(2)(b)(i) of

2 (1990) 4 SCC 314

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the CCS (Pension) Rules, 1972 for continuing the

disciplinary proceedings against the appellant.

The learned ASG further places reliance on the

decision of this Court in the case of State of

M.P. v. Dr. Yashwant Trimbak3, wherein it was

held that personal sanction of the Governor or

President is not required and it is sufficient

that the sanction be issued by a duly authorized

officer and is properly authenticated. No court

can look into the validity of such sanction in

terms of Articles 77(3) and 166(3) of the

Constitution of India.

30. The learned ASG further contends that the legal principles enunciated by this Court in the

case of Shri Krishna Pandey (supra) cannot be

relied upon in the instant case, as the factual

situations in the two cases are very different

from each other. In the case of Shri Krishna

Pandey (supra), the concerned officer therein

3 (1996) 2 SCC 305

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retired from service on 31.03.1987 and the

proceedings against him were initiated on

21.04.1991. This Court observed in the said case

that it was clear that the incident of

embezzlement had taken place four years prior to

the date of his retirement and the embezzlement

had resulted in pecuniary loss to the State

Government. The State Government did not take any

action and allowed the officer to escape from the

provisions of regulations 351-A of the Civil

Services Regulations. It was further observed by

this Court in the above case that the decision of

this Court did not preclude the Disciplinary

Authority from carrying on with the investigation

into the offence and take action thereon. While

in the instant case, the appellant retired from

service on 31.08.2006 and sanction was accorded

by the President of India within 3 years, that

is, on 22.8.2008 for conducting departmental

enquiry against him, which is within the limit of

four years period as prescribed in the said

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Rules. Therefore, the learned ASG submits that

the facts of the instant case do not attract Rule

9(2)(b)(ii)of the CCS (Pension)Rules, 1972.

According to the learned ASG, the date of

institution of the disciplinary proceedings

should be considered from the date on which the

Memorandum of Charges was issued. The learned ASG

further places reliance on the decision of this

Court in the case of Union of India v. Kewal

Kumar4, wherein it was held that the requirement

of issuance of the Memorandum of Charges is not

necessary to be complied with when decision is

taken by the competent Disciplinary Authority to

initiate disciplinary proceedings on the basis of

an FIR. Hence, the appellant cannot place

reliance on the decision of this Court on the

case of Shri Krishna Pandey (supra), when the

charges framed against him by the disciplinary

authority pertain to a matter as serious as

smuggling contraband ganja.

4 AIR 1993 SC 1585

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31. The learned ASG further places reliance on the decisions of this Court in the cases of

Railway Board Representing The Union of India v.

Niranjan Singh5 and State of Madras v. G.

Sundaram6, wherein this Court has held that the

High Court while exercising jurisdiction under

Article 226 of the Constitution of India should

not interfere with the conclusions arrived at by

the Disciplinary Authority after holding an

enquiry, unless the findings of fact are not

supported by any evidence.

32. We have heard the learned counsel appearing on behalf of both the parties. The following

essential questions would arise for our

consideration in the case:

1. Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of

5 (1969) 1 SCC 502

6 AIR 1965 SC 1103

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the fact the disciplinary proceedings were initiated more than four years after the alleged incidents?

2. Whether the impugned judgment and order is erroneous and is vitiated in law?

3. What Order?

Answer to Point Nos. 1 and 2 Since Points 1 and 2 are inter-related, the same

are answered together as under:

33. With reference to the aforesaid factual and rival legal contentions urged before this Court,

to answer the same, at the outset it would be

necessary to refer to the letter dated 20.02.2009

issued by the DIGP (CR & Vig.) which reads as

under:

“Directorate General, CRPF (Ministry of Home Affairs)

Sub : Department Enquiry Against Shri B.S. Yambem, Commandant (Retd.) ------

A DE was conducted against Shri B.S. Yambem, Commandant on the charges of sending vehicle of his Unit along with men

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on 8.8.1995 out of his jurisdiction and when the vehicles were seized by the Customs authorities for illegal transshipment of Ganja, he made efforts to conceal the same by manipulating documents. Article of charge is at P/72 of C/file.

2. The DE was completed and a copy of IOs report was served on the C/O. The C/O filed a WP No. 805 of 2005 in the Guwahati High Court, Imphal Bench in which first the Hon’ble Court vide order dated 18.7.2005 stayed the DE and then vide judgment dated 16.6.2006 (copy at P/55/c/side), quashed the DE initiated vide Memo dated 14.5.1998 and report of the IO. The Hon’ble Court, however, left it open for the DA/IOP to conduct the DE afresh, after supplying copies of proceedings of the COI and also the English translated copies of statements of the witnesses and documents recorded in Hindi to the petitioner.

3. Against the above order, the Department filed W.A. No. 25 of 2007 in the Division Bench which was dismissed by the Hon’ble Court on 13.11.2008 (copy at P/125c/Side). The matter was referred to MOL and the ASG opined that it is not a fit case for filing SLP (copy of relevant notes at P/120c/side).

4. In view of the above, the judgment dated 16.6.2006 of the Hon’ble Court is required to be implemented now which would require taking the following actions :-

(i) Supplying copies of proceedings of the COI and the English translated copies of statements of the witnesses and

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documents recorded in Hindi to the petitioner. This would be pre-requisite for starting the DE against the C/O afresh.

(ii) Memorandum dated 14.5.1998 will have to be cancelled and DE against the C/O started afresh on the same charges. However, fresh Memorandum would be issued after supplying the C/O with a copy of the COI file and English translation of the statement of witnesses.

5. MHA may therefore like to see the case and convey approval of Competent Authority to take the above actions. Since the Officer has already proceeded on superannuation (while under suspension) w.e.f 31.8.2006, the DE ordered afresh would be under Rule 9(2) of CCS (Pension) Rules, 1972.

6. This has the approval of the DG. (Ranjit Singh) DIGP (CR & Vig) 20.02.2009”

(emphasis laid by this Court)

A perusal of the said letter makes it clear that

the Disciplinary Authority, following the

judgment and order dated 16.06.2006 passed in

W.P. No.805 of 2005 by the learned single Judge

of the High Court and judgment and order dated

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13.08.2008 passed in W.A. No. 25 of 2007 by the

Division Bench of the High Court initiated

disciplinary proceedings afresh against the

appellant under Rule 9(2)(b)(ii) of CCS (Pension)

Rules, 1972 and also sought the sanction of the

President of India.

Rule 9(2) of the CCS (Pension) Rules, 1972

reads thus:

“9. Right of President to withhold or withdraw pension-

(2) (a) The departmental proceedings re- ferred to in sub-rule (1), if in- stituted while the Government ser- vant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government ser- vant, be deemed to be proceedings under this rule and shall be con- tinued and concluded by the au- thority by which they were com- menced in the same manner as if the Government servant had contin- ued in service : Provided that where the departmen- tal proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.

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(b) The departmental proceedings, if not instituted while the Govern- ment servant was in service, whether before his retirement, or during his re-employment, -

(i) shall not be in- stituted save with the sanction of the President,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure ap- plicable to de- partmental pro- ceedings in which an order of dis- missal from ser- vice could be made in relation to the Government servant during his ser- vice.”

A perusal of the above Rule makes it clear

that if the disciplinary proceedings are not

instituted against the Government servant by the

disciplinary authority while he was in service,

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then the prior sanction of the President of India

is required to institute such proceedings against

such a person. It is also clear that such

sanction shall not be in respect of an event

which took place more than four years before the

institution of such disciplinary proceedings.

34. The learned counsel appearing on behalf of the appellant has rightly placed strong reliance

on Rule 9(2)(b)(ii) of the CCS (Pension) Rules,

1972. It is an undisputed fact that the appellant

retired from service on 31.08.2006. The learned

single Judge of the High Court by way of judgment

and order dated 18.05.2006 in Writ Petition No.

720 of 2002 quashed the disciplinary proceedings

in the case pertaining to the missing arms and

ammunitions. However, liberty was granted to the

Disciplinary Authority/Enquiry Officer to conduct

the disciplinary enquiry afresh after supplying

the copies of the proceedings of the enquiry to

the appellant. The said judgment and order of the

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single Judge was challenged by the respondents by

way of Writ Appeal No. 45 of 2006, in which the

Division Bench, by judgment and order dated

07.11.2006 upheld the order of the single judge

of the High Court. It was only pursuant to this

that the fresh memorandum of charges dated

22.08.2008 was issued to the appellant, which was

clearly beyond the period of limitation of four

years as provided for under the CCS (Pension)

Rules, 1972. Similarly, in the case involving the

contraband ganja, the single Judge of the High

Court by way of judgment and order dated

16.06.2006 passed in Writ Petition No. 805 of

2005 quashed the departmental enquiry under the

memorandum of charges dated 14.05.1998. The

Division Bench dismissed the Writ Appeal No. 25

of 2007 filed by the respondents vide judgment

and order dated 13.11.2008 and upheld the order

of the learned single Judge. It was pursuant to

this that the fresh departmental enquiry was

initiated against the appellant on 16.10.2009

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after obtaining sanction from the President of

India under Rule 9(2)(b)(i) of the CCS (Pension)

Rules, 1972. The appellant challenged the

correctness of the sanction and charges framed

against him before the High Court of Gauhati,

Imphal Bench in W.P. (C) No. 264 of 2010. The

High Court quashed the Memorandum of Charges on

the ground that it was issued after four years

from the date of the alleged incident. Therefore,

it was held that the said action of the

Disciplinary Authority in initiating disciplinary

proceedings is not valid in law as the same was

barred by limitation as per the provision of Rule

9(2)(b)(ii) of the CCS (Pension) Rules 1972.

This important legal aspect of the case was not

considered by the Division Bench of the High

Court while setting aside the common judgment and

order dated 01.09.2010 passed by the learned

single Judge in Writ Petition No. 904 of 2008

(arms and ammunitions case) and Writ Petition No.

264 of 2010 (contraband ganja case).

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35. It is a well established principle of law that if the manner of doing a particular act is

prescribed under any statute then the act must be

done in that manner or not at all. The aforesaid

legal position has been laid down by this Court

in the case of Babu Verghese & Ors. v. Bar

Council of Kerala & Ors.7, the relevant

paragraphs of which are extracted hereunder :

“31. It is the basic principle of law long settled that if the manner of doing a particular act is pre- scribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:

“[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”

32. This rule has since been ap- proved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Ra- jasthan. These cases were consid- ered by a three-Judge Bench of this

7 (1999) 3 SCC 422

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Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of adminis- trative law.”

The aforesaid important aspect of the case should

have been considered by the Division Bench of the

High Court instead of mechanically accepting the

argument advanced on behalf of the respondents

that the case of the appellant squarely falls

under Rule 9(2)(b)(i) read with Rule 9 (2)(b)(ii)

of CCS (Pension) Rules, 1972. Therefore, the

findings recorded by the Division Bench in the

impugned judgment are erroneous in law and are

liable to be set aside.

36. The learned ASG appearing on behalf of the respondents contends that the period of

limitation of four years as stipulated in 9(2)(b)

(ii) of the CCS (Pension) Rules, 1972 does not

apply to the facts of the present case for the

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reason that the departmental proceedings against

the appellant had already been initiated while he

was in service, and it was because of the

pendency of the litigation before the High Court

that the proceedings could not be concluded and

further disciplinary proceedings were continued

after obtaining prior sanction of the President

of India as required under Rule 9(2)(b)(i) of the

CCS (Pension) Rules, 1972. The said contention is

untenable both on facts as well as in law.

37. The Division Bench of the High Court failed to appreciate the fact that liberty had been

granted by the High Court vide its judgment and

order dated 07.11.2006 in W.A. (C) No. 45 of 2006

to the Disciplinary Authority to take

disciplinary action against the appellant. Thus,

there was no need for the respondent Disciplinary

Authority to withdraw the Memorandum of Charges

dated 14.05.1998 for the purpose of initiating

disciplinary proceedings afresh against the

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appellant on the same charges by obtaining an

order of sanction from the President of India as

required under Rule 9(2)(b)(i) of the CCS

(Pension) Rules, 1972. The Division Bench of the

High Court in its judgment and order dated

05.08.2013 has completely ignored this important

legal aspect of the matter, that the prior

sanction accorded by the President under the

above said Rules was in fact, barred by

limitation. Thus, it has committed serious error

in law in arriving at the conclusion that the

respondent Disciplinary Authority had obtained

due sanction from the President of India to

conduct the departmental proceedings against the

appellant for the same charges, which action was

barred by limitation as provided under Rule 9(2)

(b)(ii) of CCS (Pension) Rules, 1972. Therefore,

the impugned judgment and order passed by the

Division Bench of the High Court cannot be

allowed to sustain in law.

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38. The similar question of law came for consideration before this Court in the case of

Shri Krishna Pandey (supra), wherein it was held

as under:

“6. It would thus be seen that proceed- ings are required to be instituted against a delinquent officer before re- tirement. There is no specific provision allowing the officer to continue in ser- vice nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceed- ings be initiated as a disciplinary mea- sure and the action initiated earlier would remain unabated after retirement. If Regulation 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the Regulation also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or derelic- tion of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of pro- ceedings, should not have taken place more than four years before the date of institution of proceedings. In other

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words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of mis- conduct etc. had taken place. Admit- tedly, in this case the officer had re- tired on 31-3-1987 and the proceedings were initiated on 21-4-1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and al- lowed the officer to escape from the provisions of Regulation 351-A of the Regulations. This order does not pre- clude proceeding with the investigation into the offence and taking action thereon.”

(emphasis laid by this Court)

39. The judgment of this Court in the case of Dr. Yashwant Trimbak (supra) also does not apply

to the facts of the case on hand. This Court had

held in that case that the order of sanction to

initiate disciplinary proceedings granted by the

Governor cannot be scrutinized by this Court in

exercise of its power of judicial review, as the

said action comes within the protection of

Article 166(2) of the Constitution of India. This

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principle of law is not applicable to the present

fact situation for the reason that the order of

sanction granted by the President of India is not

in exercise of his executive power under Article

77(2) of the Constitution which speaks of orders

and other instruments made and executed in the

name of President of India. The Rules specified

under Article 77(3) of the Constitution are rules

framed by the President of India for transaction

of business of the Government of India. The said

constitutional immunity conferred either upon the

Governor or President is confined only to the

executive action of the appropriate Government.

The order of sanction to be granted by the

President of India as provided under Rule 9(2)(b)

(i) of the CCS (Pension) Rules, 1972 is for

initiation of the disciplinary proceedings

against the appellant, which cannot be treated as

an executive action of the Government of India.

Rather, it is a statutory exercise of power by

the President, under Rule 9(2)(b)(i) of the CCS

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(Pension) Rules, 1972. The said Rules are framed

by the President of India in exercise of

legislative power conferred under Article 309 of

the Constitution of India. Article 309 of the

Constitution provides for framing Rules and

Regulations for the regulation of recruitment and

conditions of service of persons serving under

the Union or a State government, and reads as

under :

“309.Recruitment and conditions of service of persons serving the Union or a State- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to

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such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”

Discussing the scope and powers of the

President and Governor under Article 309, a

Constitution Bench of this Court in the case of

B.S Yadav v. State of Haryana8, held as under:

“……It is in this context that the proviso to Article 309 assumes relevance and importance. The State legislature has the power to pass laws regulating the recruitment and conditions of service of judicial officers of the State. But it was necessary to make a suitable pro vision enabling the exercise of that power until the passing of the law by the legislature on that subject. The Constitution furnishes by its provisions ample evidence that it abhors a vacuum. It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power. The proviso to Article 309 provides, in so far as material, that until the State legislature passes a law on the particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment

8 AIR 1981 SC 561

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and the conditions of service of the judicial officers of the State. The Governor thus steps in when the legislature does not act. The power, exercised by the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised. It par takes of the characteristics of the legislative, not executive, power. It is legislative power. That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 to promulgate Ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: 'Legislative Power of the Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject.”

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(emphasis laid by this Court)

The distinction between the powers under

Articles 77(3), 166(3) and 309, regarding the

framing of Rules and Regulations was discussed by

a Constitution Bench of this Court in the case of

Sampat Prakash v. State of Jammu and Kashmir9, as

under:-

“……As an example, under Article 77(3), the President, and, under Article 166(3) the Governor of a State are empowered to make rules for the more convenient transaction of the business of the Government of India or the Government of the State, as the case may be, and for the allocation among Ministers of the said business. If, for the interpretation of these provisions, Section 21 of the General Clauses Act is not applied, the result would be that the rules once made by the President or a Governor would become inflexible and the allocation of the business among the Ministers would forever remain as laid down in the first rules. Clearly, the power of amending these rules from time to time to suit changing situations must be held to exist and that power can only be found in these articles by applying Section 21 of the General Clauses Act. There are other similar rule-making

9 AIR 1970 SC 1118

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powers, such as the power of making service rules under Article 309 of the Constitution. That power must also be exercisable from time to time and must include within it the power to add to, amend, vary or rescind any of those rules……” (emphasis laid by this Court)

40. It becomes clear from a perusal of the constitutional provisions and the decisions by

constitution benches of this Court referred to

supra that the powers under Articles 77(3),

166(3) and 309 operate in completely different

fields. It would thus, be clear that the Rules

framed in exercise of power under Articles 77(3)

and 166(3) cannot be compared while exercising

power under Article 309 of the Constitution and

framing rules and regulations for recruitment and

conditions of service of persons appointed to

such posts either in connection with the affairs

of the Union government or a state government. It

is for this reason that the statutory exercise of

power by the President of India under Rules 9(2)

(b)(i) and (ii) of the CCS (Pension) Rules, 1972

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cannot be equated with power exercised under

Article 77(2) of the Constitution of India. The

High Courts and this Court can exercise power of

judicial review under Articles 226 and 32,

respectively, of the Constitution of India in

cases of statutory exercise of power by the

President or Governor. In the case of Dr.

Yashwant Trimbak (supra), this Court held that

the power of judicial review is not available in

case of executive exercise of power by the

President or the Governor. The said observation

made by this Court in the said case is not

tenable in law in view of the decision of this

Court in the landmark judgment of His Holiness

Kesavananda Bharati Sripadagalvaru & Ors. v.

State of Kerala and Anr.10 wherein this Court has

clearly held that the power of judicial review is

part of the basic structure of the Constitution

of India. The relevant portion of the judgment is

extracted hereunder:

10 (1973) 4 SCC 225

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“577 ……The observations of Patanjali Sastri, C.J., in State of Madras v. V.G. Row which have become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitu- tion”. The respondents have also contended that to let the court have judicial review over constitutional amendments would mean involving the court in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales:

“The problem to be solved will of- ten be not so much legal as politi- cal, social or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only between Commonwealth and citi- zen but between Commonwealth and in- tervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament.”

There is ample evidence in the Con- stitution itself to indicate that it creates a system of checks and bal- ances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the

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others from exercising and discharg- ing powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a de- gree as was found in Ranasinghe case. The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances…”

The observation made by this Court in the case of

Dr. Yashwant Trimbak (supra) to the extent that

orders of sanction granted by the Governor are

outside the scope of judicial review, is

untenable in law. The same is contrary not only

to the law laid down by this Court referred to

supra, but also the provisions of Articles 77(2)

& 166(2) of the Constitution of India. Therefore,

the same has no application to the fact situation

for the reason that the President has exercised

his statutory power for grant of sanction under

Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972

to initiate the disciplinary action but not the

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executive action against the appellant.

41. In the instant case, the action of the Disciplinary Authority is untenable in law for

the reason that the interpretation of the CCS

(Pension) Rules, 1972 which is sought to be made

by the learned ASG on behalf of the respondents

amounts to deprivation of the Fundamental Rights

guaranteed to the appellant under Part III of the

Constitution of India. Therefore, we have to hold

that the disciplinary proceedings initiated by

the disciplinary authority after obtaining

sanction from the President of India under Rule

9(2)(b)(i) of the CCS (Pension) Rules, 1972 are

liable to be quashed.

Answer to Point No. 3

42. For the aforesaid reasons, we answer the questions of law that arose for consideration of

this Court in favour of the appellant. The

Division Bench of the High Court erred in

allowing the Writ Appeal Nos. 39 and 40 of 2011.

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Therefore, the impugned judgment is liable to be

set aside and accordingly, set aside.

43. Though we have answered the questions of law framed in this case in favour of the appellant

and set aside the impugned judgment by allowing

these appeals, however, having regard to the

seriousness of the allegations made against the

appellant, in exercise of power of this Court

under Article 142 of the Constitution of India,

we direct the Disciplinary Authority to continue

the disciplinary proceedings and conclude them

within six months in accordance with the relevant

provisions of law as well as the principles of

natural justice. If the same are not completed

within the said time period by the disciplinary

authority, the said liberty granted by this Court

in this order to the respondents will not ensue

to their benefit.

44. The Appeals are partly allowed only to the extent of answering the legal questions framed

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and the impugned judgment and order is set aside

to that extent with the above liberty given to

the respondents. All the pending applications are

disposed of. No costs. …………………………………………………………J. [ANIL R. DAVE]

…………………………………………………………J. [V. GOPALA GOWDA]

…………………………………………………………J. [C. NAGAPPAN]

New Delhi, August 26, 2016

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ITEM NO.1A-For JUDGMENT COURT NO.8 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS C.A. NO.8323/2016 @ Petition(s) for Special Leave to Appeal (C) No(s). 30907/2013 BRAJENDRA SINGH YAMBEM Petitioner(s) VERSUS UNION OF INDIA AND ANR Respondent(s) WITH C.A. No.8324/2016 @ SLP(C) NO.10092/2014 Date : 26/08/2016 These appeals were called on for pronouncement of JUDGMENT today. For Petitioner(s) Ms. Momota Devi Oinam,AOR For Respondent(s) Mr. B. Krishna Prasad,AOR Ms. Sushma Suri,AOR

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Anil R. Dave, His Lordship and Hon'ble Mr. Justice C. Nagappan.

Leave granted.

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The appeals are partly allowed in terms of the signed Reportable Judgment.

(VINOD KUMAR JHA) AR-CUM-PS

(MALA KUMARI SHARMA) COURT MASTER

(Signed Reportable judgment is placed on the file)

SHRI BRAJENDRA SINGH YAMBEM Vs UNION OF INDIA

SHRI BRAJENDRA SINGH YAMBEM Vs UNION OF INDIA