Mr.Upendra Nath Mishra, learned Advocate appears for the opposite party No.2 by filing his 'Vakalatnama', the same is taken on record.
Heard Mr.Ram Raj, learned counsel for the petitioner, Mr.Upendra Nath Mishra, learned counsel for the opposite party No.2 as well as learned Standing Counsel.
The petitioner has assailed the order dated 7th of July, 2014 (Annexure No.1), issued by the Secretary, Secretariat Administration Department, whereby he has been placed under suspension.
He has challenged the order of suspension on many grounds, inter alia, that the order impugned is without jurisdiction as also it suffers from mala fide action of the respondents. On the question of jurisdiction of the authority, who has passed the order i.e. Secretary of the Secretariat Administration Department, State of U.P., the learned counsel for the petitioner Mr.Ram Raj drew attention of this court towards the Uttar Pradesh Secretariat Non-Gazetted Ministerial Staff (Conferment of Powers)(First Amendment) Rules, 1994 and submitted that the amended Rule 3 provides that every Principal Secretary, or Secretary shall have disciplinary powers in relation to any member of the staff for the time being attached to his department, notwithstanding that the particular member was appointed by any other Principal Secretary of Secretary or Deputy Secretary of the same or any other department.
Mr.Ram Raj, learned counsel for the petitioner submitted that once the particular Rules i.e. Rules 1967 provide the provisions indicating the authority to pass an order of suspension the power cannot be exercised under the General Rules, 1999. In support of his submission he also cited the following decisions:-
(1)Chandra Prakash Tiwari and others versus Shakuntala Shukla and others, reported in (2002) 6 SCC 127.
(2) D.R.Yadav and another versus R.K.Singh and another, reported in (2003) 7 SCC 110.
(3) P.Rajan Sandhi versus Union of India and another, reported in (2010) 10 SCC 338.
In reply Mr.Upendra Nath Mishra, learned counsel for the respondents submitted that Rule 6 of the Uttar Pradesh Government Servant (Discipline and Appeal ) Rules, 1999 prescribes the disciplinary authority and speaks that the appointing authority of a Government servant shall be Disciplinary Authority. He also drew attention of this court towards the U.P. Secretariat Non-Gazetted Ministerial Staff (Conferment of Powers) Rules, 1967 (hereinafter referred as the Rules 1967). The unamended Rules 5 of the Rules 1967 provides that the provisions of these Rules shall be in addition to and not in derogation of any power conferred on any authority by or under any other rules before the commencement of these rules. He further submitted that prior to Rules 1967, the petitioner's service conditions were governed under the Uttar Pradesh Secretariat Ministerial Staff Rules, 1942 (hereinafter referred to the Rules 1942). Rule 30 of Rules, 1942 provided that the appointing authority to the posts in different categories of staff shall be made by the officer dealing with matters relating to the ministerial establishment of the Secretariat in the Secretariat Administration Department, who shall not be below the rank of the Deputy Secretary to Government.
In the light of the aforesaid Rules, he submitted that since the 1967 Rules confer the power to the authority in addition to the powers conferred over the said authority under Rules 1942 and since the Secretary of the Administration Department has been declared as appointing authority under Rule 30 of the 1942 Rules, that being so he is the disciplinary authority, under Rules, 1999 to initiate the disciplinary proceedings against the petitioner as also to place him under suspension either in contemplation of inquiry or during the pendency of the inquiry. Thus, he submits that the Secretary of the Secretariat Administration has rightly exercised his power to pass the order impugned.
In support of his submission he also cited some decisions of the Hon'ble Supreme Court, in which the Hon'ble Supreme Court has discussed the powers of the delegator and delegate in the matter of administration of the employee.
(1) Godavari S.Parulekar, B.K.Khopkar and others versus State of Maharashtra, reported in AIR 1966 (SC) 1404. In this case the Hon'ble Supreme Court has held that even after delegation of power, the delegating authority was not divested of its power of passing an order.
He further placed a judgment of Karnataka High Court, rendered in the case of D.V.Rama Chandra Rao versus The State of Karnataka and others, reported in Services Law Reporter 1984 (3) page 768, in which the Karnataka High Court held that the power which is delegated can be exercised both by the delegator and the delegate, there is no power implied or express which enables the Government to denude itself of the power conferred by the Statute. The Karnataka High Court expressed its opinion on the basis of the several judgments of the Hon'ble Supreme Court (See Epari Channa Krishana Murthy and another vs. The State of Orissa and another [A.I.R. 1964 S.C. 1581] and N.K.Papiah and sons vs. The Excise Commissioner and another [A.I.R. 1975 S.C. 1007].
For the purpose of academic discussion of the relationship between the delegator and delegate, he also placed the introductory part of the "Administrative Law" Book written by D.D.Basu, in which the relationship of both has been discussed in the manner that when a statutory power has been validly delegated, the question arises as to the precise relationship that is created as between the delegator and the delegate. It is broadly established that even where a statute itself authorises the delegation of a power conferred by it upon a specified authority, the status of the delegate is that of an agent. He further expressed the opinion that when an administrative authority delegates its power, it does not completely divert itself of its power but is, in the absence of any statutory bar, capable of resuming it and unless that is precluded by the terms of the delegation, even exercises concurrent powers.
Admittedly the petitioner was working in the Enforcement Department, from where he was transferred on deputation to the Minority Welfare Department on 6th of June, 2014. Thus, it is stated that since on the date of order impugned the petitioner has been working in the Minority Welfare Department, it is the Secretary of the Minority Welfare Department, who is empowered to pass such an order.
The parent Rules are the U.P. Secretariat Non-Gazetted Ministerial Staff (Conferment of Powers) Rules, 1967. Rule 3 empowers the Secretary of the Secretariat Administration to take disciplinary action against the member of staff.
The order impugned has been passed in exercise of power provided under the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999.
On the question of application of U.P. Government Servant (Discipline and Appeal) Rules, 1999 over the petitioner, when I considered the Rules, 1969, I found that Rule 5 has provided that these Rules shall be in addition to and not in derogation of any power conferred on any authority by or under any other rules before the commencement of these Rules. Since prior to 1967 Rules the petitioner's services had been governed under Rule 1942, as above, in which the Secretary of the Secretariat Administration Department had been declared as appointing authority of the petitioner, who in terms of Rule 6 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999(hereinafter referred to as the Rules, 1999) has exercised the power to place the petitioner under suspension. Therefore, I am of the view that only posting of the petitioner in the Minority Welfare Department does not preclude the Secretary of Secretariat Administration, who is parent Administrative authority, to initiate the disciplinary proceeding against the petitioner. Therefore, I am of the view that the order impugned does not suffer from jurisdictional error.
So far as the mala fide action of the authority who is alleged to have acted at the behest of respondents 5 and 6 are concerned, once the Rules permit such an action, I am of the view that the plea raised as such has no considerable bearing.
Since the learned counsel for the petitioner has not raised any question on the merit of the case, therefore, I refrain myself to make any observation on merit of the case.
The writ petition stands dismissed.
Order Dated:8th of August, 2014.
Banswar