Order
1. The State of U.P and another are before us in this appeal, assailing the order passed by the High Court in a writ petition affirming the order passed by the U.P Public Service Tribunal No. III, Lucknow. Respondent 1 herein was appointed as Assistant Agriculture Inspector, Group III by the Director of Agriculture. On account of certain irregularity or misconduct disciplinary proceedings were initiated against him by the District Agriculture Officer. After holding enquiry, he submitted a report to the disciplinary authority which authority, accepting the report of the District Agriculture Officer, passed the order of dismissal dated 11-4-1977 dismissing Respondent 1 from service. Challenging the said order of dismissal, Respondent 1 filed a claim petition before the U.P Public Service Tribunal. Before the said Tribunal, a contention was raised that Respondent 1 having been appointed by the Director of Agriculture, the District Agriculture Officer could not have initiated the disciplinary proceedings. Consequently, the disciplinary proceedings initiated and further proceedings taken, culminating in an order of dismissal, were all vitiated. The Tribunal accepted this contention, observing that subsequent delegation of power or making the District Agriculture Officer an appointing authority in relation to Group III posts, to which Respondent 1 belonged at the relevant point of time, would not cure the defect, namely, initiation of disciplinary proceedings by the District Agriculture Officer while the Director of Agriculture having been the appointing authority. Aggrieved by the said order of the Tribunal, the State filed writ petition before the High Court. The High Court agreeing with the findings recorded by the Tribunal, dismissed the writ petition. Hence, this appeal.
2. The learned counsel for the appellants contended that Respondent 1 was appointed as Assistant Agriculture Inspector on 24-6-1966; disciplinary proceedings were initiated against him by the District Agriculture Officer on 10-1-1974 and the order of dismissal came to be passed on 11-4-1977. He pointed out two GOs dated 15-6-1961 and 26-12-1963 to show that on those dates the District Agriculture Officer was the appointing authority by virtue of the powers conferred on them by the relevant GOs which had the assent of the Governor. On the basis of these GOs, the learned counsel contended that prior to the appointment of Respondent 1, these GOs were very much in existence. It appears to us that the Tribunal and the High Court were under a wrong impression that the District Agriculture Officer was made an appointing authority subsequent to the initiation of the disciplinary proceedings. He further submitted that initiation of disciplinary proceedings could be by an authority lower in rank than the disciplinary authority. In support of this submission, he placed reliance on the decisions of this Court in State of M.P v. Shardul Singh (1970) 1 SCC 108, P.V Srinivasa Sastry v. Comptroller and Auditor General (1993) 1 SCC 419, (1993) 23 ATC 645 and Registrar of Coop. Societies v. F.X Fernando (1994) 2 SCC 746, (1994) 27 ATC 188. According to the learned counsel, having regard to these aspects both the Tribunal and the High Court committed an error and the impugned order cannot be sustained.
3. In opposition, the learned counsel for Respondent 1 strongly contended that the two suspension orders were passed — one by the Project Officer who was lower in rank to the District Agriculture Officer and the second by the District Agriculture Officer and there was inconsistency between the two. Even though the GOs referred to by the learned counsel for the appellant were prior to the appointment of Respondent 1, and the District Agriculture Officer was the appointing authority yet he was appointed by the Director of Agriculture. He further submitted that when the Tribunal and the High Court have concurrently found in favour of Respondent 1, this Court may not disturb the concurrent finding.
4. The facts that are not in dispute are: Respondent 1 was appointed on 24-6-1966; the two GOs aforementioned were very much in existence and operative much prior to his appointment, under which GOs, the District Agriculture Officer was competent to initiate disciplinary proceedings as an appointing authority, as is evident from the GOs themselves. He was appointed by the Director of Agriculture and the order of dismissal was passed by the Director of Agriculture on 11-4-1977. In other words, it is the appointing authority which passed the order of dismissal. Before the Tribunal, the stand of Respondent 1 was that the District Agriculture Officer being lower in rank than the appointing authority of Respondent 1, namely the Director of Agriculture, neither could he initiate disciplinary proceedings nor could any action be taken on the disciplinary proceedings so initiated by an incompetent authority. This contention found favour with the Tribunal as well as with the High Court. Before us, the learned counsel for Respondent 1 submitted that the District Agriculture Officer was the appointing authority in the year 1966, when Respondent 1 was appointed, the Director of Agriculture could not have appointed him. This submission ignores the basic fact that if this order of appointment was incompetent, in that case the very appointment of Respondent 1 goes away. It appears that this is a stand taken before us for the first time and we have no hesitation to reject this contention. In terms of Article 311 of the Constitution, no person who is a member of the civil service of the Union or all-India service or civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed. Admittedly, in this case, the Director of Agriculture actually appointed Respondent 1.
5. This Court in State of M.P v. Shardul Singh (1970) 1 SCC 108 has held that Article 311(1) provides that no person who is a member of the civil service of the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed. However, that article does not in terms require that the authority empowered under that provision to dismiss or remove an official should itself initiate or conduct enquiry proceeding.
6. In the case of P.V Srinivasa v. Comptroller and Auditor General (1993) 1 SCC 419, (1993) 23 ATC 645 referring to the judgment of this Court in Shardul Singh (1970) 1 SCC 108 the position is reiterated.
7. In Registrar of Coop. Societies v. Fernando (1994) 2 SCC 746, (1994) 27 ATC 188 referring to the two aforementioned decisions of this Court, the position is made clear thus in para 16:
“16. It was on the basis of this GO, on 20-3-1989 the Registrar issued the charge memo. In this connection, it is worthwhile to refer to a recent decision of this Court reported in P.V Srinivasa Sastry v. Comptroller and Auditor General (1993) 1 SCC 419, (1993) 23 ATC 645. The relevant observations at pp. 1323-24 are as under:( and 6)
‘But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder of a civil post. But in absence of any such rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the framers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time, this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding.
In the case of State of M.P v. Shardul Singh (1970) 1 SCC 108 the departmental enquiry had been initiated against the Sub-Inspector of Police by the Superintendent of Police, who sent his inquiry report to the Inspector General, who was the appointing authority. The Inspector General of Police dismissed the officer concerned from the service of the State Government. That order was challenged on the ground that the initiation of the departmental enquiry by the Superintendent of Police was against the mandate of Article 311(1) of the Constitution. This contention was accepted by the High Court. But this Court said:
“[W]e are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that article.”
Although Article 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but, as already stated above, that can be provided and prescribed by the rules. But if no rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Article 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. In the present case, it was not brought to our notice that any rule prescribes that the Accountant General, who is the appointing authority, alone could have initiated a departmental proceeding.’ ”
8. Thus, looking to the terms and content of Article 311(1) of the Constitution, it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so.
9. We have to take note of one more fact, that is, the order of dismissal was passed in 1977. We are told that Respondent 1 was not reinstated in service even after the Tribunal passed the order of reinstatement because of the interim order granted by the High Court as well as by the status quo order passed by this Court. Even otherwise, having regard to the age of Respondent 1, in all probability, Respondent 1 would have attained the age of superannuation by now. Thus, having regard to all aspects, the impugned judgment cannot be sustained. Hence, it is set aside and the order of dismissal of Respondent 1 from service is upheld. Appeal allowed accordingly. No costs.