WP(C) 4318/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA Judgment and Order (CAV) Amitava Roy, J The petitioner, a member of the All India Services and belonging to the Assam - Meghalaya Joint Cadre in the Indian Forest Service (for short hereafter referred to as the IFS) seeks to invoke the writ jurisdiction of this Court to upturn th e judgment and order dated 16.07.2010, rendered by the Central Administrative Tr ibunal, Gauhati Bench, Guwahati (hereafter for short referred to as the Tribunal ) in Original Application No. 157/2008. By the decision impugned, the learned Tr ibunal has negated the petitioner’s assailment of the memorandum of charges date d 22.10.2007, issued by the Commissioner & Secretary to the Government of Assam, Environment and Forest Department, initiating a departmental proceeding against him under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 (for short hereafter also referred to as the Rules). This Court, while issuing a returnable notice in the instant proceedings, in the interim, had stayed the progress of the impugned disciplinary proceeding. 02. We have heard Mr. AK Bhattacharjee, Senior Advocate assisted by Ms. M Dev, Advocate for the petitioner, Mr. C Boruah, learned Central Government Counsel, for the respondent No. 1, Union of India and PS Deka, learned State Co unsel, Assam, for the respondent Nos. 2, 3 & 4. Also heard Mr. J Chutia, learned Standing Counsel, Karbi Anglong Autonomous Council (for short hereafter referre d to as the Council), respondent No. 5. 03. The contentious arguments demand a brief sketch of the pleaded v ersions as the preface thereof for better appreciation. The services of the peti tioner, who is a IFS Officer of 1984 batch, lodged in the Assam segment of the A ssam-Meghalaya Joint Cadre, were placed at the disposal of the Council vide noti fication No. FRE-6/90/pt/180, dated 02.04.2003 of the Government of Assam in the Environment and Forest Department for his posting as Conservator of Forest, Kar bi Anglong Autonomous Council. In reciprocation, the Council by its order dated 07.04.2003 accepted the services of the petitioner in the above capacity from th e date of his taking over charge of the said office. The petitioner, accordingly , joined and rendered his services as Conservator of Forest under the Council ti ll 01.09.2007, whereafter, he handed over the charge of his office and on the ve ry same date, took up his new assignment as Conservator of Forest (Border), Gove rnment of Assam on repatriation. To facilitate this, he was, pursuant to the Sta te Government notification No. FRE/6/90/272, dated 17.07.2007, released by the C ouncil and the petitioner joined his new place of posting aforementioned on 07.0 9.2007. 04. It was, thereafter that he was placed under suspension by notifi cation No.FRE.105/07/112, dated 11.10.2007, issued by the Commissioner and Secre tary to the Government of Assam, Environment and Forest Department under Rule 3 (1) (a) of the Rules in contemplation of a disciplinary proceeding against him f or misconduct, indiscipline and misappropriation of funds. The impugned memorand um of charges dated 22.10.2007 followed and the article of charges accompanying the same, inter alia, disclosed that imputations of gross misconduct of insubord ination, defalcation and misappropriation of government fund, unauthorized commu nication of information and connivance in illegalities had been levelled against him for the alleged acts and omissions of his during the period from 10.04.2003 to 31.08.2007. Being aggrieved, he filed an appeal under Rule 16 of the Rules before the Union of India and by order No.13011/6/2007-AVU, dated 16.06.2008. The Government of I ndia, Ministry of Environment & Forests allowed the appeal and revoked the order of suspension. In the aforesaid order, however, it was clarified that the decis ion of revocation was without prejudice to the disciplinary proceeding initiated against the petitioner by the Government of Assam. As the Government of Assam in the Department of Forest & Environment, thereafter , sought to proceed with the departmental proceedings, the petitioner, eventuall y, approached the learned Tribunal questioning the maintainability thereof princ ipally on the ground that having regard to the period covering his alleged acts and omissions, he being then under the absolute administrative control of the Co uncil then, the State Government, in terms of Rule 7 of the Rules, was incompete nt to initiate such exercise. The petitioner in reinforcement of this plea prima rily relied on the office memorandum No.HAD.57/95/316, dated 31.12.1996, issued by the Government of Assam, Hill Areas Department, Dispur. Reliance was placed a s well on Article 244(2) of the Constitution of India and the Sixth Schedule the reof to demonstrate the overriding autonomy of the Council in administering its affairs vis-a-vis the departments/subjects, meanwhile, transferred to it, by not ification No. HAD.57/95/63-64, dated 29.06.1995 in exercise of powers conferred by paragraph 6(2) of the Sixth Schedule of the Constitution of India. The petiti oner’s pleadings before the learned Tribunal, though, also indicate his cavil qu a non-release of subsistence allowance and reinstatement following the revocatio n of the order of his suspension, the same not being within the contours of the debate in the instant proceedings, the same have not been dilated upon. 05. Whereas, the Union of India did not submit its response before t he learned Tribunal, the State respondents in their written statement filed thro ugh the Joint Secretary, Government of Assam, Department of Environment & Forest s, pleaded that for the period during which the services of the petitioner had b een placed at the disposal of the Council, he discharged duties in connection wi th the affairs of the State of Assam and was, thus, construed to be under the ad ministrative control of the State Government, for which it, under Rule 7 (1) (b) of the Rules, had the power to institute the departmental proceeding against hi m for his acts and omissions amounting to misconduct. While, admitting that the order of suspension against him had been revoked in response to his appeal, the State respondents have insisted that as the decision to that effect had been wit hout prejudice to the validity of the departmental proceeding initiated by the m emorandum of charges dated 22.10.2007, the same was wholly inconsequential vis-a -vis the validity thereof (departmental proceedings). According to the State res pondents, the allegations levelled against the petitioner had been enquired into and a report to that effect had been submitted before the decision to initiate a disciplinary proceeding against him was, eventually, taken. 06. In the proceedings in hand, as well, the Union of India has neit her filed its counter nor inspite of several opportunities granted, laid before this Court its decision under Rule 7 (1-B) of the Rules determining the authorit y in the attendant facts and circumstances, to institute the disciplinary procee ding against the petitioner. The pleadings before this Court offered by the Stat e respondents, however, tread on the lines outlined before the learned Tribunal. Additional affidavits by the petitioner though, filed, do not project new and r elevant facts, albeit, certain documents annexed thereto have figured in course of the arguments and would be duly dealt with. 07. The learned Tribunal in the backdrop of the above adversarial or ientations declined to interfere Qua the term serving in connection with the af fairs of the State appearing in Rule 7 (1) (b) (i) of the Rules, it observed th at the same cannot be construed in a narrow and pedantic manner. Referring to th e order dated 02.04.2003, placing the services of the petitioner at the disposal of the Council, the learned Tribunal opined that the arrangement contemplated t herein did not amount to deputation and, thus, his mere placement with it (Counc il) did not permit the Council to usurp the power of the State Government to ins titute the disciplinary proceeding. The learned Tribunal rejected the office mem orandum dated 31.12.1996 as inconsequential and concluded that in any view of th e matter, the Council could not be construed to be a local authority under Artic le 244 A of the Constitution of India. It, thus, determined that when a All Indi a Services Officer is posted with an Autonomous District Council constituted as per Article 244 A of the Constitution of India, he continues to serve in connect ion with the affairs of the State and axiomatically the State Government to whic h the officer belong has the authority, power and jurisdiction to take appropria te action against any misdeed committed by him and for that purpose initiate a d isciplinary proceeding under the Rules. 08. Mr. Bhattacharjee has strenuously urged that as the charges on w hich the disciplinary proceeding had been initiated against the petitioner relat e to a period during which he had been placed on deputation with the Council, un der Rule 7 (1) (b), (i) the State Government had no authority to take such actio n and on that count alone, the impugned memorandum dated 22.10.2007 ought to hav e been annulled by the learned Tribunal. Referring to the notification dated 29. 06.1995, transferring departments/subjects including that of Forest by the State Government to the Council under paragraph 6(2) of the Sixth Schedule as well as Clause (G) of the office memorandum dated 31.12.1996 in particular, the learned Senior Counsel maintained that it was the Council, which, as the Borrowing Auth ority, was, during that period, the disciplinary authority competent and authori zed to initiate the proceeding, if at all. Drawing the attention of this Court t o the communications issued by the office of the Council in response to the quer ies made by the petitioner under the Right to Information Act, 2005 and otherwis e, Mr. Bhattacharjee has insisted that it would be apparent therefrom that the C ouncil, in the facts and circumstances of the case, is the only authority compet ent under the Rules to initiate the departmental proceeding against the petition er, if called for. That the Government of Assam, according to the Council, is no t the disciplinary authority for the officers of All India Services and Assam Ci vil Service serving it on deputation being apparent, amongst others, from the le tter dated 04.05.2011 issued. In reply to the queries made by the petitioner to that effect, the learned Tribunal had obviously erred in holding otherwise, he u rged. While contending that the merit of the accusation against the petitioner i s, for the present, beyond the pale of scrutiny in the instant proceeding, Mr. B hattacharjee has argued in the alternative, that in any view of the matter, the State Government is not the competent authority to initiate the impugned departm ental proceeding against the petitioner and, thus, the memorandum of charges dat ed 22.10.2007 ought to be adjudged a nullity. The learned Senior Counsel to butt ress his contentions pressed into service the decision of the Apex Court in Stat e of Uttar Pradesh Vs. Ram Naresh Lal, AIR 1970 SC 1263. 09. The learned Central Government Counsel, however, has urged that in that in terms of Rule 7 (1-B) of the Rules, the Ministry of Environment and F orest, Union of India in consultation with the Department of Personnel and Train ing has determined the Government of Assam to be the competent authority to init iate the disciplinary proceeding against the petitioner. He reiterated that as t he revocation of the order of suspension qua the petitioner in the appeal under Rule 16 was without prejudice to the impugned disciplinary proceeding, the same did not cast any invalidating effect therein. Mr. Boruah, learned Central Govern ment Counsel echoed the view of the learned Tribunal that during his tenure with the Council, the petitioner continued to work in connection with the affairs of the State Government, for which the latter was competent to institute the depar tmental proceeding against him. When queried by this Court, however, Mr. Boruah could not produce the decision of the Ministry of Environment and Forest, Govern ment of India under Rule 7 (1-B) of the Rules asserting the Government of Assam to be competent to initiate the impugned disciplinary proceedings against the pe titioner. According to him, the arguments advanced were founded on verbal instru ctions communicated to him by the concerned authorities of the Central Governmen t. 10. Mr. Chutia, in substance, adopted the assertions made on behalf of the petitioner with detailed reference to Article 244(2) and the relevant pro visions of the Sixth Schedule. Profusely relying on the notification dated 29.06 .1995, transferring the departments/subjects including that of Forest under para graph 6(2) of the Sixth Schedule to the Constitution of India as well as the mem orandum dated 31.12.1996, the learned Counsel emphatically insisted that in term s thereof, the Council as the Borrowing Authority was alone competent to draw up the disciplinary proceeding against the petitioner. With special reference to C lauses (G) & (H) of the office memorandum dated 31.12.1996, Mr. Chutia has urged that in terms of the administrative arrangements made following the sequence of events enumerated in the recital thereof, this power of the Council was availab le to it vis-a-vis the members of the All India Services as well. He relied, in order to brace up his pleas, the decision of the Apex Court in EDWINGSON VS. STA TE OF ASSAM, AIR 1966 SC 1220 and of this Court in WP(C) NO. 335/2007 (SAYED MD. BAKIR VS. THE STATE OF ASSAM, rendered on 08.05.2008. 11. The pleadings on record together with the supporting documents a s well as the competing arguments have received our anxious attention. As afores tated, by orders, amongst others, dated 15.09.2011 and 04.04.2012, the Union of India was granted time to take a decision under Rule 7 (1-B) of the Rules to det ermine, in the face of the contrasting projections, the authority empowered to i nitiate the disciplinary proceeding against the petitioner. Neither the Union of India filed its pleadings nor could it, till the date of hearing, apprise this Court of such determination, instead, time was repeatedly prayed for. By order d ated 04.04.2012, the prayer for time was acceded to as the last opportunity with the observation that in case it (Union of India) failed, either to furnish nece ssary instructions, or file its pleadings, the petition would be heard on merit and disposed of in absence thereof. The prayer for adjournment made on 21.05.201 2 was thus rejected. Though, in the written arguments submitted on behalf of the Union of India, it h as been mentioned that the Department of Environment and Forest, under Rule 7 (1 -B) of the Rules, has determined the Government of Assam to be competent to inst itute a disciplinary proceeding against the petitioner, Mr. Boruah candidly admi tted that this has been incorporated only on verbal instructions. In absence of any basis for this conclusion, we are not inclined to take note of this plea. As it is, the tenability or otherwise of the challenge to the competence of the St ate Government to initiate the disciplinary proceeding against the petitioner is being examined in the exercise of the writ jurisdiction of this Court. Any deci sion of the Central Government as referred to in the arguments of the learned Ce ntral Government Counsel, thus, in any view of the matter, does not preclude thi s Court to adjudicate upon the same. 12. Before adverting to the rival arguments, it would be expedient t o notice the relevant legal provisions having bearing on the issues seeking adju dication. 13. Rule 2 (b), 2 (c), 2 (d) of the Rules define disciplinary autho rity, Government and member of the service , respectively as hereunder: - (b) ’disciplinary authority’ means the authority competent under these rules to impose on a member of the service any of the penalties specified in rule 6 ; (c) ’Government’ means - (i) in the case of a member of the Service serving in connection with the affair s of a State, or who is deputed for service in any company, association or body of individuals whether incorporated or not, which is wholly or substantially own ed or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State; (ii) in any other case, the Central Government; (d) member of the service: means a member of an All-India Service as defined in Section 2 of the All India Services Act, 1951 (61 of 1951). Rule 7, which identifies the authority to institute a disciplinary proceeding an d impose penalty being of pivotal significance, relevant excerpts thereof deserv e to be extracted as hereunder: - 7. Authority to institute proceedings and to impose penalty - (1) Where a member of the Service has committed any act or omission which render him liable to any penalty specified in Rule 6 - & & & & & & & & & & & & & & & & & & & & & & & & & & & (b) If such act or omission was committed after his appointment to the Service - (i) while he was serving in connection with the affairs of State, or is deputed for Service under any company, association or body of individuals, whether incor porated or nor, which is wholly or substantially owned or controlled by the Gove rnment of a State, or in a local authority set up by an Act of the Legislature o f that State, the Government of that State; or & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & & & & (vii) the Central Government, in any other case, shall alone be competent to ins titute disciplinary proceedings against him and, subject to provisions of sub-ru le (2), to impose on him such penalty specified in Rule 6 as it thinks fit, and the Government, company, association, body of individuals or local authority, as the case may be, under whom he is serving at the time of institution of such pr oceedings shall be bound to render all reasonable facilities to the Government i nstituting and conducting such proceedings. Explanation - For the purpose of clause (b) of sub-rule (7), where the Governmen t of a State is the authority competent to institute disciplinary proceedings ag ainst the member of the Service, in the event of a re-organization of the State, the Government on whose cadre he is borne after such re-organization shall be t he authority competent to institute disciplinary proceedings and, subject to the provisions of sub-rule (2) to impose on him any penalty specified in Rule 6 & & & & & & & & & & & & & & & & & & & & & &... & & & & & & & & & & & & & & & & & & & & & & & & &... (1-B) Notwithstanding anything contained in sub-rule (1), if, in any case, a que stion arises as to the Government competent to institute disciplinary proceeding s, it shall be decided by the Central Government so decided by the Central Gover nment, as being competent to institute disciplinary proceedings (which may inclu de the Central Government also), shall alone be competent to institute disciplin ary proceedings against him and, subject to the provisions of sub-rule (2), to i mpose on him such penalty specified in Rule 6 as it thinks fit and the Governmen t, company association, body of individuals, or the local authority, as the case may be, under whom he is serving at the time of the institution of such proceed ings shall be bound to render all reasonable facilities to the Government instit uting and conducting such proceedings & & & & & & & & & & 14. Part X of the Constitution of India, which dwells on the Schedul ed and Tribal Areas as mentioned therein enjoins under Article 244(2) that the p rovisions of the Sixth Schedule would apply to the administration of the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram. Article 244 A postu lates formation within the State of Assam an autonomous State by a law made by t he Parliament comprising of or any of the tribal areas specified in Part-I of th e Table appended to paragraph 20 of the Sixth Schedule and provides for the matt ers as enumerated therein. The Sixth Schedule to the Constitution of India in deference to the enjoinment o f Article 244(2) deals with the provisions as to the administration of these tri bal areas. Whereas, paragraph 1 thereof mandates an autonomous district for the tribal areas in each of the items of Parts-I, II, IIA, III of the Table appended to paragraph 20, paragraph 2 prescribes a District Council for each autonomous district and a Regional Council for each area constituting an autonomous region contemplated in paragraph 1(2). Such District Councils and Regional Councils are to be body corporates having perpetual succession and common seal liable to be sued and entitled to sue by that name. Paragraph 2(4) mandates that subject to t he provisions of the Schedule, the administration of an autonomous district shal l in so far as it is not vested in any regional council within such district be vested in the District Council and the administration of an autonomous region in the Regional Council. Rule 3 delineates the powers of the District Council and Regional Councils to make laws in respect of all areas within the district/regio n, as the case may be, on the subjects as listed thereunder. This provision unde rwent an amendment in its application to the State of Assam by the Sixth Schedul e to the Constitution (Amendment) Act, 1995, adding paragraph 3A, whereby, the p owers on the North Cachar Hills Autonomous Council and the Karbi Anglong Autonom ous Council to make laws were conferred. Paragraph 3(3), however, requires that all laws so made be submitted to the Governor and provides that unless assented by him, would not have any effect. Paragraph 12 thereof enjoins that notwithstan ding anything in the Constitution, no act of the Legislature of the State of Ass am in respect of any of the matters specified in paragraph 3 with respect to whi ch a District Council or Regional Council may make laws and no Act of the Legisl ature of the State of Assam prohibiting or restricting the consumption of any no n-distilled alcoholic liquor would apply to any autonomous district or autonomou s region in the State unless in either case, the District Council for such distr ict or having jurisdiction over such region by public notification so directs, a nd that in doing so, it may direct that the Act in its application to such distr ict or region or any part thereof would have effect subject to such exceptions o r modifications as thought fit. It provides as well that the Governor, may, by p ublic notification direct that any Act of Parliament or the Legislature of the S tate of Assam, as referred to therein, would not apply to such district or regio n or any part thereof or would apply subject to such exceptions or modifications as he might specify in the notification. 15. The tribal areas enumerated in paragraph 20 of the Sixth Schedul e within the State of Assam are contained in Part-I thereof as follows: - (i) The North Cachar Hills District (ii) The Karbi Anglong District 16. The factual backdrop, in which the office memorandum dated 31.12 .1996 came to be issued, as the available pleadings would attest has a vital bea ring. A Memorandum of Understanding was drawn up