Case: H.V.Nirmala Vs. Karnataka State Financial Corpn

regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Article 310. In other words, in exercising the power conferred by Article 309, the extent of the pleasure recognised by Article 310 cannot be affected, or impaired. In fact, while stating the conclusions in the form of propositions, the said judgment has observed that the Parliament or the Legislature can make a law regulating the conditions of service without affecting the powers of the President or the Governor under Article 310 read with Article 311. It has also been stated at the same place that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. In the context, it would be clear that this latter observation is not intended to lay down that a law cannot be made under Article 309 or a rule cannot be framed under the proviso to the said article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised. This observation which is mentioned as proposition number (2) must be read along with the subsequent propositions specified as (3), (4), (5) and (6). The only point made is that whatever is done under Article 309 must be subject to the pleasure prescribed by Article 310." In Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School : (1993) 4 SCC 10 it was held : "But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi- judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved." The said decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October, 1991. On the other hand, Ms. Suri has produced the Regulation which is said to be applicable at the relevant point of time, in terms whereof not only an officer of the Corporation but also any authority as listed in the panel approved for the purpose could have been appointed as an Enquiry Officer. However, the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer. 16. In Central Bank of India (1991) 1 SCC 319 (supra) also this Court held that an Enquiry Officer need not be an officer of the Bank as even a third party can be appointed an Enquiry Officer to enquire into the conduct of an employee. What was, however, emphasised was that a non-official cannot act as a disciplinary authority and pass an order of punishment against the delinquent employee. It is in that view of the matter it was held that a retired employee could not act as a disciplinary authority. 17. We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (See - Sohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ). 18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate the proceeding.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.19. Submission of Mr. Patil that the Managing Director could not have directed the proceeding to be placed before the Board, in our opinion, has equally no merit. Appointing authority of Class `A Officers is the Board. Managing Director is the disciplinary authority only in respect of minor punishments. When a major punishment is proposed to be imposed, the Board of Directors alone will have the jurisdiction to consider the gravity of the alleged misconduct so as to enable it to pass an appropriate order. It is idle to contend that had Managing Director passed an order, an appeal could have been preferred thereagainst. If the entire Board is the appropriate authority for taking a decision, it is only that authority which was required to take decision and not any other. (See Indian Airlines Ltd. vs. Prabha D, Kanan : (2006) 11 SC 67) .20. For the said purpose an express provision in the Regulation was not imperative. Managing Director of the Corporation initiated a proceeding but he could not impose a major penalty and in that view of the matter he will have the incidental power to place the findings of the Enquiry Officer before the Board. Such an incidental power must be held to be existing with all the statutory authorities. Absence of any Rule as is obtaining in Rule 13 of the CCS (CCA) Rules would not, in our opinion, vitiate thedo not agree. Appointment of an incompetent enquiry officer may not vitiate the entire proceeding. Such a right can be waived. In relation thereto even the principle of Estoppel and Acquiescence wouldin the said decisions, applicability of the prejudice doctrine was not considered being not necessary to do so. Jurisdictional issue should be raised at the earliest possible opportunity. A disciplinary proceeding is not a judicial proceeding. It is a domestic tribunal. There exists a distinction between a domestic tribunal and a court. Appellant does not contend that any procedure in holding the enquiry has been violated or that there was no compliance of principles of naturaltherein also all consequential benefits were not given. In that case the Enquiry Officer had no jurisdiction at all. Even the defecto doctrine could not be applied as he was not the holder of the office but merely anwho could not have been appointed as an Enquirysaid decisions, to our mind, are not applicable to the fact of the present case.15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October,the Regulation, which was produced by Ms. Suri is corrected upto 1st April, 2002, but it is not clear as to whether the necessary amendment has been carried out prior to 14th July, 1996 or not. We hope that the said assertion of the learned counsel is correct. We are, however, in this case proceed on the basis that Regulation 41(3) remained unchanged and according to learned counsel in terms of the Regulation which was prevalent at the relevant point of time, an outsider could have been appointed as the Enquiry Officer.We may, however, notice that in a case of this nature where appointment of the Enquiry Officer may have something to do only for carrying out the procedural aspect of the mater, strict adherence to the Rules may not be insisted upon. Superior courts in a case of this nature may not permit such a question to be raised for the first time. (SeeSohan Singh and others vs. The General Manager, Ordnance Factory, Khamaraia, Jabalpur and others : AIR 1981 SC 1862 ).Prejudice doctrine, in our opinion, may also be applied in such a contingency. We, therefore, are of the opinion that the first contention of Mr. Patil has no merit.