IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32 (2)(b) Description of case Writ Petition No. 20 of 2005 (S/B) Date of Decision 21st February, 2005 For the approval of: Hon’ble Chief Justice V.S. Sirpurkar. Hon’ble Mr. Justice P.C. Pant. - Whether the order/judgment should be sent to the reporters for reporting? (Yes) - Whether the reporters be allowed to see the judgment? (Yes) HN IN THE HIGH COURT OF UTTARANCHAL, AT NAINITAL Writ Petition No. 20 of 2005 (S/B) Dr. R.A.K. Srivastava, S/o Late Rai Nath Bux Prasad Srivastava, Scientist E, R/o 2-B Green Park, Ballupur, Dehradun. ………… Petitioner Versus 1. Union of India through Secretary, Department of Secondary & Higher Education, Ministry of Human Resources & Development, Govt. of India, New Delhi. 2. Wadia Institute of Himalaya Geology, through its Director, 33 General Mahadev Singh Road, Dehradun. 3. Director, Wadia Institute of Himalayan Geology, Dehradun. 4. Commissioner for Department Inquiries, Central Vigilance Commission, Satarkta Bhawan, Block A, GPO Complex, INA, New Delhi. ……… Respondents Mr. Arvind Vashishth, Advocate for the petitioner. Mr. L.P. Naithani, Senior Advocate assisted by Mr. J.P. Joshi, Advocate for the respondents No. 2 & 3. Coram: Hon’ble V.S. Sirpurkar, C.J. Hon’ble Prafulla C. Pant, J. (Per Hon’ble the Chief Justice) 1. Heard Mr. Arvind Vashishth, Advocate appearing for the petitioner and Mr. L.P. Naithani, Senior Advocate assisted by Mr. J.P. Joshi, Advocate appearing for respondents No. 2 & 3. 2. This is a writ petition by the deputationist, who was earlier working with the Wadia Institute of Himalayan Geology, Dehradun. Thus, he was working under the Institute controlled by the Central Government. During his service, he was sent on deputation and was appointed as a Chairman of Commission for Scientific and Technical 2 Terminology (hereinafter referred to as Commission), which was run under the control of Ministry of Human Resources and Development and more particularly, the department of Secondary and Higher Education. This deputation period, admittedly is between 01.12.1998 to 30.11.2000. While he was engaged as such in his capacity as a Chairman of the aforementioned Commission, he is said to have committed misconduct on 18.11.1999, in as much, as, he claimed his travelling allowance twice in respect of a trip undertaken by him. 3. We are not concerned with the merits of the misconduct, at all. After completion of his deputation period, he went back to his parent department and it was informed by the Central Vigilance Commission to his parent department that he had committed a misconduct. On that basis a notice was sent to him on 31st May, 2001 and he was apprised of the compliant made against him by the Central Vigilance Commission. A complete idea, as to the misconduct, was given by this notice and a charge sheet was put up against him. This notice was given by the Joint Secretary (Languages), Government of India, Ministry of Human Resources and Development. Perhaps, on the basis of this, a charge sheet came to be filed against him. Though the petitioner claims to have given a reply to the aforementioned notice dated 31st May, 2001, it seems that the reply was ignored or after the consideration of the same, a charge sheet came to be filed against him on 02.05.2002. 4. The petitioner, in his defence statement, objected to the jurisdiction of the parent department and the disciplinary authority, thereunder, to conduct a disciplinary inquiry as it was his contention that the misconduct, if any, was committed by him while he was a deputationist and as such, it was only the borrowing department (the department where he was working on deputation), which had the jurisdiction to conduct any 3 such inquiry. For this purposes, the petitioner relied on Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter refers to as Rules). It seems that this objection also did not weigh with the department and the department went on to hold the inquiry on merits, in which the petitioner took full part. It seems that as the result of the inquiry, the petitioner has been found guilty and has been given the punishment of compulsory retirement from the service. 5. Against this verdict in the departmental inquiry and the consequent punishment thereto, the petitioner seems to have filed an appeal on 31st January, 2005. It is reported that the said appeal is still pending. It is, now, that the petitioner, has, for the first time, come before us by way of this writ petition dated 19.02.2005 challenging for the first time the jurisdiction aspect of the departmental inquiry. He raises a contention that the parent department i.e. Wadia Institute of Himalayan Geology does not and did not have the power to institute and conduct the inquiry and or to punish him therein. 6. Learned counsel Mr. Arvind Vashishth invites our attention to Rule 20 of the Rules and points out that under the Rules and more particularly, under its 1st Clause, the borrowing department had the power to deal with the misconduct and those powers would be the same powers as the appointing authority of the delinquent. He points out that the conduct of the disciplinary proceedings against a deputationist could be undertaken by the borrowing department. He further, contends that the parent department was divested of its powers to deal with the delinquent on account of the positive language of Rule 20 sub-rule (1) of the Rules. 7. As against this, Mr. L.P. Naithani, senior counsel appearing on behalf of the department assisted by Mr. J.P. Joshi, Advocate raises a preliminary objection that the writ petition, itself, is not maintainable 4 particularly, in view of the appeal pending before the department. Mr. Naithani, learned senior counsel also points out that the import of Rule 20 of the Rules is not as the petitioner wants it to be read. 8. After hearing both the sides, we are convinced that Rule 20 of the Rules has no application in the present situation. When we read the Rule carefully, it comes out that the Rule operates in presenti and when a deputationist commits a misconduct, while working as a deputationist, the borrowing department has the same power to deal with the misconduct as the original appointing authority of that deputationist. The Rule goes on to elaborate, further, that the borrowing department, then, has to make a report to the parent department and in case of a difference of opinion between the two, the ultimate power lies with the parent department, alone, of dealing with the delinquent. What is very clear before us is the language of the Rules, which operates during the time when the delinquent is on deputation. Here, though the alleged misconduct appears to have been committed during the time, when the petitioner was on deputation, it is an admitted fact that the deputation period is over on 30.11.2000 and the petitioner has been sent back to his own parent department. It appears clearly that, perhaps, on a complaint sent by the Central Vigilance Commission, his parent department has decided to deal with the misconduct, which appears to be in perfect order. 9. Even the stance of the parent department to conduct the departmental inquiry does not seems to be barred by any of the Rules. We, repeatedly, asked Mr. Arvind Vashishth, learned counsel for the petitioner as to whether there was any bar on the part of the parent department to deal with the misconduct, if committed, by delinquent while he was on deputation at the point of time when the deputation period was over and when the said employee was sent back to his parent department. The learned counsel could not show any rule. We have scanned the Rules and there, indeed, does not appear to be any such bar. In our opinion, there can be no bar on the rights of the parent 5 department to deal with the disciplinary aspect of a delinquent servant, who continues to be under their control. We, therefore, do not find any substance in the argument of Mr. Arvind Vashishth, learned counsel that the parent department did not have the powers to conduct the disciplinary inquiry. 10. This is apart from the fact that the charge sheet was sent to the petitioner on 02.05.2002. Today the period of three years has elapsed when the petitioner has suddenly woken up to complain against the jurisdiction of the department. In fact, he submitted to the departmental inquiry fully, though he undoubtedly raised an objection about the jurisdiction initially. The fact remains that he submitted to the departmental inquiry later on, took part in the departmental inquiry. Not only this, but after being found guilty, he has also filed an appeal, which is pending before the department. We do not know as to how the petitioner could, now, come before the High Court directly and raise the question of jurisdiction after three years. The petitioner is clearly guilty of latches, which remained unexplained. 11. In view of the above, we do not find any merits in the writ petition and the writ petition is dismissed. (P.C. Pant, J.) (V.S. Sirpurkar, C.J.) 21.02.2005 21.02.2005 HN