[2016] 6 S.C.R. 333

BRAJENDRA SINGH YAMBEM

UNION OF INDIA AND ANR.

(Civil Appeal No. 8323of2016)

AUGUST 26, 2016

[ANIL R. DAVE, V. GOPALA GOWDA AND

C. NAGAPPAN, JJ.)

Service Law:

Central Civil Services (Pension) Rules. 1972 - r. 9(2J(b)(ii) - Scope of - 7il'o disciplinary proceedings first relating to missing of arms and ammunitions und second relating to supply to contraband ganja - l11i1iated against 1he appellant while he was in service - The disciplinary proceedings ll'ere quashed by the High Court - In the meantime delinque111 retired ji-0111 service - Pursuant to his retirement fiesh departmental inquiries initiated ajier obtaining sanction from the President of India ult: 9(2){b){i) of the I 972 Rules - Single Judge of High Court held the fresh departmental proceedings as barred by limitation as per 1:9(2)(b){ii) - Division Bench of High Court set aside the decision of single Judge - On appeal, Held: As per r.9(2)(b){ii) the disciplinary proceedings are burred by limitation and hence are liable to be quashed - Howeve1; having regard to the seriousness of the allegations made ugainst the delinquent, in exercin of power u!Art. 142, the Disciplinary Authority is directed to continue the disciplinary proceedings - Constitution of India - Art.142.

Partly allowing the appeals, the Court

HELD: 1. A perusal of r. 9(2) of CCS (Pension) Rules, 1972 makes it clear that ifthe disciplinary proceedings are not instituted against the Government servant by the disciplinary authority while he was in service, then the prior sanction of the President G 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. [Para 33) [351-H;

352-A-B)

333 H

2. It is an undisputed fact that the appellant retired from service on 31.08.2006. The 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 Single Judge was challenged by the respondents by way of Writ Appeal No. 45 of 2006, in which the Division Bench, by , iudgment 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. [Para 34) (352-B-D]

3. In the case involving the contraband ganja as well, 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 Single Judge. It was pursuant to this that the fresh departmental enquiry was initiated against the appellant on 16.10.2009 after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. [Para 34] (352-E-F]

4. It is a well established principle oflaw 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. (Para 35] [353-B)

Babu Verghese & Ors. v. Bar Council of Kera/a & Ors.

(1999) 3 SCC 422: 1999 (1) SCR 1121relied on.

5. 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

BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND 335

ANR.

Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the 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. [Para 37]

[354-C-F)

6. 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, is a statutory exercise of power by the President.

The said Rules are framed by the President of India in exercise of legislative power conferred under Article 309 of the Constitution of India. The powers under Articles 77(3), 166(3) and 309 operate in completely different fields and 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. [Para 39] (356-B-D]

His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kera/a and Anr. (1973) 4 SCC 225 : 1973 (0) Suppl. SCR 1 - followed.

B.S Yadav v. State of Haryana AIR 1981 SC 561 : 1981 SCR 1024; Sampat Prakash v. State of Jammu and Kashmir AIR 1970 SC 1118 : 1970 SCR 365 - relied on.

7. 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 respondents amounts to deprivation of the Fundamental Rights guaranteed to the appellant under Part III of the Constitution oflndia. Therefore, 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. [Para 41) (360-E-GJ

State of U.P. & Am: v. Shri Krishna Pandey (1996) 9 SCC 395 : 1996 (3) SCR 183 - relied on.

State of MP. v. D1: Yashwant Trimbak (1996) 2 SCC 305 : 1995 (6) Suppl. SCR 128 - distinguished.

8. However, having regard to the seriousness of the allegations made against the appellant, in exercise of power of o this Court under Article 142 of the Constitution of India, the Disciplinary Authority is directed 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. [Para 43) [361--B)

E D. V. Kapoor v. Union of India (1990) 4 SCC 314: 1990

(3) SCR 697; Union of India v. Kewal Kumar AIR 1993 SC 1585 : 1993 (3) SCR 45; Railway Board Representing The Union of India v. Niranjan Singh

(1969) 1 SCC 502 : 1969 (3) SCR 548; State of Madras

v. G. Sundarwn AIR 1965 SC 1103 - referred to. F Case Law Reference

1996 (3) SCR 183 relied on Para 22

1990 (3) SCR 697 referred to Para 29

G 1995 (6) Suppl. SCR 128 distinguished Para 29

1993 (3) SCR 45 referred to Para 30

1969 (3) SCR 548 referred to Para 31

AIR 1965 SC 1103 referred to Para 31

1999 (1) SCR 1121 relied on Para35

BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND 337

1981 SCR 1024

1970 SCR 365

ANR.

1973 (0) Suppl. SCR 1

relied on

relied on

followed

Para 39

Para 39

Para 40

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8323 of2016.

From the Judgment and Order dated 05.08.2013 of the High Court of Manipur at Imphal in the Writ Appeal No. 39 of 2011.

WITH

C. A. No. 8324 of2016.

Lenin Singh Hijam, A. D. Tamboli, Ms. Momota Devi, Oinam, Advs. for the Appellant.

P. S. Patwalia, ASG, Ms. B. Sunita Rao, B. Krishna Prasad, Advs. with him for the Respondents.

The Judgment of the Court was delivered by

V. GOPALA GOWDA, J. I. 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 E the High Cou11 of Manipur at Imphal in Writ Appeal Nos. 39 and 40 of 2011, whereby the judgment and order dated 01.09.20 I 0 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 20 I 0 was set aside.

3. The necessary facts required to appreciate the rival legal F contentions advanced on behalf of the pai1ies are stated in brief hereunder:

The appellant was serving as a regular Commandant of 61" 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 of2013 relates to G missing of arms and ammunition. The second case, i.e. Civil Appeal arising out ofSLP (C) No. I 0092of2014 relates to the alleged supply of contraband gunja, by 11 CRPF personnel posted in the unit of the appellant.

1-1

Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of7.62 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 relewnt portions of the said letter are extracted hereunder:

"It has been intimated by !GP, NI Sector, CRPF that one AK-47 Rifle, 3 Magazines and 90 rounds of7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. !GP N/Sector 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 ..... .

. . . , , .. , . Thereforn, I am directed by IGP, N/Sector that to request you to send your written statement to this office at ; m early ctate,,, ... "

5. Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998, explai11ing 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 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. l O. J 999, 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 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 of2002 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 oflaw.

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 speaking order. The learned single Judge accordingly set aside the order dated

15.03.1999 as the earlier penalty imposed upon th!) appellant was withdrawn by which the letter dated 24.06.1998 was withdrawn by the

IGP-NS. .

10. In the meanwhile, the appellant retired fro111 service as a regular Commandant/Police Officer, CRPF on 31.08.2006. ·

11, The respondenHJnion oflndia 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 B()nch of the High Court by w11y 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, 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 (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:

E "Article-I

That the said Shri S.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 F 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( I )(ii) G and (iii) ofCCS (Conduct) Rules, 1964.

Article-II

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( I )(ii) and (iii) ofCCS (Conduct) Rules, 1964.

Article-III

That the said Shri B.S. Yarnbem, Cornmandant(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 ofone 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 thereby violated the provisions contained in Rule 3( I )(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 con11nitted an act of misconduct in that he passed

verbal orders to issue service arms and ammunitions to ex- F 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 G and devotion to duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3( I )(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.

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) ofCCS (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 of2005 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 after complying with the directions given in the judgment.

1 7. 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 A11icles 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 G 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 ranks of his Unit out of the area of operational jurisdiction without the approval of!GP (Ops) Manipur and Nagaland. Two of the above vehicles and 11 men were later intercepted and H

apprehended by the Customs and Central Excise Authorities at Didarganj check post near Patna on the night of I 11081

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( I), (i),(ii)and (iii) ofCCS (Conduct) Rules, I 964.

Articfo-11

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 ofCRPF 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 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), (iJ. (ii) and (iii) ofCCS (Conduct) Rules, 1964.

Article-Ill

That the said Shri B.S. Yambem, Commandant (under F suspension) while posted and functioning as Commandant 6 I Bn. CRPF, Mantripukhri. Imphal during August, I 995 committed a serious misconduct in that he suppressed the information of arrival of Shri Ram Singh, Asst!. Comdt (under suspension), 4 Ors. with Civil TATA 608 truck with G civilian driver at Bn. 1-JQrs on I 5/16-8-95 and kept them hiding at remote Coy location at Mayang, Imphal and shown their arrival at Bn HQrs on 0245 hrs on I 7/08/1995 though they were wanted by Central Excise authorities in connection with the seizure of ganja from two trucks of his

1-1

Unit at Didarganj check-post near Patna on the night of 11 I 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) ofCCS (Conduct) Rules, 1964."

18. Aggrieved of the same, the appellant filed Writ Pctition(C) No. 264 of20 I 0 before the High Cou1i 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 I" case i.e. Arms case) and Writ Petition No. 264 of2010 (filed against Memorandum of Charges dated 16.10.2009-issued in 2"d case i.e. Ganja case), they were heard together and disposed of by the learned single Judge vide common judgment and order dated 01.09.20 I 0. 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 I 0 years earlier was barred by limitation as provided for under Rule 9(2)(b )(ii) of the CCS (Pension) Rules, 1972. 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 of20 I 0, 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 (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 depa11mental 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.

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 St(lfe o/U.P. &A11r. v. Sltri Krislt11" P(lndey1, wherein it has been held that a government employee cannot be subjected to a depm1mental 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 the Division Bench of the High Court has erred in bypassing the CCS (1',11sin11) Rules, 1972 in extending the limitation period for initiating depm1mental enquiry against the appellant, which action of the disciplinar) authority is contrary to the

Rules as well as the decision of this Com1 in the case of Sflri Kris///1(1 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 respondents under Rule 14 of the CCS (CCA) Rules, 1965 in respect of the alleged incident of loss of weapon and

'(1996) 9 sec 395

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) ofCCS (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.

26. As far as the case in the Civil Appeal arising out of the SLP (C) No. I 0092of2014 is concerned (ganja case), the learned counsel on behalfofthe 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 forthe 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, afrer 13 years of the alleged incident which is in violation of the CCS (Pension) Rules, 1972. The learned counsel further contends that the above dcprutmental enquiry was initiated against the appellant with a ma/a fide intention to harass him.

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 th is Court in exercise of its appellate jurisdiction under A11icle 136 of the Constitution oflndia.

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 (Pension) Rules. 1972 which reads thus: A

"'9(2)(a) ... The departmental proceedings referred to in subrule (I) if instituted, while the Government servant was in service whether before. his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under B this ru'e 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 i: U11io11 of lmlia1, wherein this Cou1t 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 Ruic 9(2)(b)(i) of 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. D1: Yasllwallf Trim/}(lk', 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 oflndia.

30. The learned ASG further contends that the legal principles enunciated by this Court in the case of S/1ri Kris/ma P1111dey (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 ofS//ri Kris//1111 l'muley (supra). the concerned officer therein 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

'(1990) 4 sec 314

' ( 1996) 2 sec 305

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 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

U11ion of l11dia v. Kewal Kumar', 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 Sltri Kris/ma Pandey (supra), when the charges framed against him by the disciplinary authority pertain to a matter as serious as smuggling contraband ganja.

31. The learned ASG further places reliance on the decisions of this Court in the cases of Railwlly Bocml Represe11ti11g Tlte Union of bulia v. Nirctnji111 Si11glt-' and Stllte of Mcu/ras 1( Ci Su11dllrl11116, 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 pm1ies. The following essential questions would arise for our consideration in the case:

I. Whether the impugned judgment and order passed by the Division Bench of the High Cou11 correctly appreciates the scope of Rule 9(2)(b )(ii) of the CCS (Pension) Rules,

'AIR 1993 SC 1585 '(1969) 1 sec 502

6 AIR 1965 SC 1103

1972 in light of the fact the disciplinary proceedings were A 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?

B Answer to Point Nos. l 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 Cou11, to answer the same, at the outset it C would be necessary to refer to the letter dated 20.02.2009 issued by the

DIGP (CR & Vig.) which reads as under:

"Directorate Ge11eral, CRPF

(Ministry of Home Affairs) Sub : Department Enquiry Against Shri B.S.

D 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 on 8.8.1995 out ofhisjurisdiction 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 !Os report was served on the C/0. The C/O filed a WP No. 805 of2005 in the Guwahati High Com1, Imphal Bench in which first the Hon'ble Cout1 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 repo11 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 statemer., s. of the witnesses and documents. recorded i.1~ 11ilil4.f. t~ he petitioner.

3. Against the al.Jove 0r.der. tlw Department filed W.A. No.

A 25 of2007 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/J 20c/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 C witnesses and documents recorded in Hindi to the petitioner. This would be pre-requisite for sta1ting 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 D 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 E approval of Competent Authority to take the above actions.

Since the Officer has already proceeded on superannuation (while under suspension) w.e.f3 I .8.2006, the DE ordered afresh would be under Rule 9(2) ofCCS (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 of2005 by the learned single Judge of the High Court and judgment and order dated 13.08.2008 passed in W.A. No. 25 of2007 by the Division Bench of the High Court initiated disciplinary proceedings

BRAJENDRA SINGH YAMBEM v. UNION OF INDIAAND 351

ANR. [V. GOPALA GOWDA, J.]

afresh against the appellant under Rule 9(2)(b )(ii) of CCS (Pension) A 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 referred to in sub-rule (I), 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 ifthe Government servant had continued in service :

Provided that where the departmental proceedings are instituted by an authority subordinate to the

President, that authority shall submit a report recording its findings to the President.

(b) The depa1tmental proceedings, ifnot instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -

(i) shall not be instituted 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 applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."

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, 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, I 972. It is an undisputed fact that the appellant retired from service on 3 I .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 of2002 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 single Judge was challenged by the respondents by way of Writ Appeal No. 45 of2006, in which the Division Bench, by judgment and order dated 07. I I .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 oflimitation of four years as provided for under the CCS (Pension) Rules, I 972. 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 pf 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 vi de 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 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 ofGauhati, Imphal Bench in W.P. (C) No. 264 of20 I 0. 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 th~ &ame was barred by limitation as per the provision of Rule 9(2)(b)(ii) oft11e CCS (Pension) Rules 1972. This impo1tant legal aspect of the case was not .considered by the Division Bench of the High Court

BRAJENDRA SINGH YAMBEM v. UNION OF !NOIA AND

ANR. [Y GOPALA GOWDA, J,]

while setting aside the common j4dg1111Jnt and prder dated 01.09,20 l Q passed by the learned singlll Judge in Writ P11tition No, 904 of 200$ (arms and ammunitio11s case) and Writ Petition No. 264 of 2010 (contraband ganja case).

35. It is a well established principle of law that if the ma!)ner of dping a particular act is prescribed under lll1Y statute then the act must be done in that 1mrnner or not at all. Thll 11foresaid legal position has been laid down b)' th i§ Court in the 1li1s!l of Or1(?11 V1Jrg(1ese & Ors. v.

B"r Co11n(!/I of Kemlo & Ors, 7, th~ rl"!IQvant pilragraphs of which are extracted hereunder ;

"3 l. It is the basic principle of hnv long settled that ifthe manner of doing ;1 partleulnr &Qt is prescribed 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 Ta.vlor

v. Taylor which Wf!S followecl by Lord Rpc; he in Nq; ir Ahmc"I \'. Ki11g Jimpl!rm• Wll9 st; Mcl H~ Pllllm

"[W)herl; l a powl; lr i~ 1.1lven to. do ii i;; ertain thing; in 11 ertain wuy. the tliintJ nrnt bi! dPlle in that way Pf not 1111111!'

32. This rul~ lrn~ §hW<i been flppn::ivecl by thi~ '3i:iµ, rt in {?90 Shiv Bahqdur Singh v. 81a/(J of U.fl. and again in Deep Chand v. Sime of Rajas than. These cases were considered lly I! thre~-Jµc!, ge Bench of thi~ Cp1.ff( ill 8/qte of V.P v, $in[f/1qm Si1mh 11nd the rule laid down in Nazir Ahmad

PW!!" Wlls flflin Hpheld. Tl1is rµle ha~ since been applied to tlw "~!,!rci&e qf jµr!sRif; tion by cqµrts in1c! has also been f(ICPfcllliS!:lQ 'I~ ; i alutary principle of administrative law."

Thi!! 11for~f!id imppnimt llSpect of the case should have been considered lly th~ DivhiPn ~@rwh of the High Court instead of mechanically° rwcepting the 11rti; ument advanced on behalf of the respondents that the case pf the appell'l!lt squarely falls under Rule 9(2)(b )(i) reial with Rule 9 (2)(b )(ii) of CCS (Pension) Rules, 1972, Therefore, the flncllns recorded by the Division Bench in the impugned judgment are erroneous in law and are liable to be set aside.

36. The learned ASG appeari11g on behalf of the respondents contends that the period of limitation of four years as stipulated in

1 (19991 3 sec 422

9(2)(b )(ii) of the CCS (Pension) Rules, 1972 does not apply to the facts of the present case for the reason that the departmental proceedings against the appel I ant 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 fu11her disciplinary proceedings were continued after obtaining prior sanction of the President of India as required under RLile 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 Cou11 failed to appreciate the fact that liberty had been granted by the High Court vi de its judgment and order dated 07.11.2006 in W.A. (C) No. 45 of2006 to the Disciplinary Authority to take disciplina1y 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 disciplina1y proceedings afresh against the appellant on the same charges by obtaining an order of sanction from the President oflndia 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 a1Tiving 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.

38. The similar question oflaw came for consideration before this Court in the case of Sltri Krisll11a P1111dey (supra), wherein it was held as under:

"6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement.

There is no specific provision allowing the officer to continue in service 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 proceedings be initiated as a disciplinary measure

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 dereliction 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 proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Ad1i1ittedly, in this case the officer had rt:tired Qn 3 l-3...:.l 98_Land the proceeding~ wcr~ init[Jited 01121-4-

1991. Obvimifil, the_ event of embezzlement which caused J2!'CUniary loss to the State took place prior to four wars from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appronriate action against the respondent and allowed the officer to escape from the provisions of Regulation 351- A of the Rfilill_lations. This order does not preclude 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. Yas/1wm1t Trimlmk\.Stipra) 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 oflndia. This principle oflaw 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

I-I

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 Indi& 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.

Ttw 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 !ln executive action of the Government of India. Rather, it is a statutWY ex1.1rcise of power by the President, under Rule 9(2)(b )(i) of the CCS (Pension) R~1les, 1972. The said Rules are framed by the President oflnclia in exercise of legislative power conferred under Article 309 of the Constitution oflndla. Article 309 of the Constitution provides for fraining Rules and Regulations for the regulation ofrecruitment and conditions of service of persons serving under the Union or a State government, mid reads as under :

11309, Recruitment and conditions of service of

flllf~QllS sQrvln!; J the Union or a State Subject to the

proviions of this Constitution, Acts of the appropriate Legislature inay reguh\te the recruitment, and conditions of service of persons appointed, to public services and posts in co11m:ction with tlw affairs pf the Union or of &ny State:

Prqviei:I th!lt it h!lll be Qo1n.petent for the. President or such Pel's\ln !ls hti nl!lY dirllct ln the case Qf services and posts in

onnectiAn wll11 the !lffllirs pf the Union, and for the Oovemor of a Stme w s1.1ch pero11 as he may direct in the case of service§ anct posts in connection with the &ffairs of the State, to make rules regulating the recruitment, and the conditions of service of persons 11ppointed, to such services and posts until provisions in tlun behalf is made by or under an Act of the 11ppropri11te l.., eglsl11ture under this article, and !\HY rules &P made Sh!lll 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 YttdllV v. Stllte of HttrYlln<t, held as under:

'AIR 1981 SC 561

' ...... 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 _Qf the __ ultimate repository of a power not exercisingthfil._Qower. The proviso to Article 309 provides. in so far as material. that until the State legislature P-asses a law OJlllit;_J).articular s@ject, it shall be comp_\,'!tent to the Goverqor .Jlf_thct.i!.t~_hLJlli!.ke _r!lks _x_c_gy liltiru, Uli~ recruitment and the conditions of service o.f the judicial officers ofthc State. The Governor thu~ st.cps in when the

]egisl.nt11i:~_<:joes_J.!QL1l<;_L I11_~_JJ.9v.sr,_gE~!:£ised .Qy the Governor underJ.l!.e_nroviso is thus 1!...QQWer which the legislature is C9JI!J1ent_to exercise but has in fact not yet exercised. It par takes of the characteristics of t.he lcgisiat ivc, not executive, power. It is legislative power.

That the Clovernor 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 I 58. the Governor of a State is a part of the legislature or the State. And the most obvious exercise oflegislative power by the Governor is the power given to him by Article 2 I 3 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

I-I

A 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."

(emphasis laid by this Court)

The distinction between the powers under A1ticles 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 S11111pat Prakash v.

State of Jm111m1 1111d Kasl1111ir9. 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_Q(Jbe Gove.rrm~Dt of .1!1dia.9.r the Government of the State. as the ca~~-H:!fil'Jis:'-'1nd for !he al.l.ocatl_Q_!l_fil11ong h'!inisterd_Qj'the saici.PJ.lsJni;:ss. It: 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. Jl1ere arc other

imili!J_f!!_le-m{1_king_pow~:? .. ,_1i_uch a~..!l~J2QY~'..er Qf makir)g

ex.v..!s:.~J:\!Jes _ _!!illlr:..8-LtL<: le.J.Q2_of_t.!.i~(9nsJitl!!L9!1" That F power must also be exercisable from time to time and must include within it the power to add to, amend, vaiy or rescind any of those rules ...... "

(emphasis laid by this Court)

40. It becomes clear from a perusal of the constitutional provisions G and the decisions by constitution benches of this Cou1t 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 A1iicle 309 of the Constitution and framing rules

''AIR 1970 SC 1118

BRAJENDRA SINGH YAMBEM v. UNION OF !NOIA AND

ANR. [V. GOPALA GOWDA, J.]

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 cannot be equated with power exercised under Article 77(2) of the Constitution of India. The High Courts and this Cow1 can exercise power of judicial review under Articles 226 and 32, respectively, of the Constitution oflndia in cases of statutory exercise of power by the President or Governor. In the case of Dr.

Yas/nvanl 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 Cou11 in the said case is not tenable in law in view of the decision of this Court in the landmark judgment of llis llo/i11ess Ke.1·1n•(ltut11d" B/111ruti Sripmlagafr"ru & Ors. 1: Sl11te 1l Kera/a 1111<1Anr. 111 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:

•s 77 ...... The observations of Patanjal i Sastri, C.J ., in St(l/e <!{Madras v. V.G. Rml' which have become locus classicus

need alone be repeated in this connection . .Judicial review is unde11aken 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 Constitution".

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 Co111111011wealth ofAustralia v. Bank of Nell' South Wales:

"The problem to be solved will often be not so much legal as politicaL social or economic, yet it must be solved by a Court of law. For where the dispute is. as here. not only between Comnrnnwealth and citizen but between Commonwealth and intervening 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 i;:videm:e in the Constitution itself to indicate

'"(1973)4SCC225 H

that it creates a system of checks and balances 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 others from exercising and discharging 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 degree 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. Yasilwm1t Trimhak (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 A1ticlcs 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 disciplinaiy action but not the 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 Pait Ill 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 Ruic 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 40of2011. 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 al legations 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. !"he Appeals are partly allowed only to the extent of answering the legal questions framed 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.

Kalpuna K. lripathy Appeals partl) all011cd.