Eligibility of officer on contract exercising authority of competency

[Jayasankar Nair]

Sir,
Request reference of Supreme Court Judgement on disqualification of contractual/temporary officer exercising the power of Competent authority to initiate disciplinary action on regular/permanent employee in Central Government Service.

Also request clarification whether I can issue notice under Section 80 CPC in my individual capacity under the circumstance that (1) I am confident of incompetency of officer issued charge sheet (2) Officer not willing to provide documentary proof on competency inspite of my request. Specifically under the circumstance that the higher authority also found biased.

Thanking you.

[Dr. Ashok Dhamija]

As far as I understand if a person is holding the position of competent authority in a lawful manner and if there is no legal defect in his occupying that position, then he should be in a position to exercise the powers of that authority. The source of his recruitment should not come in the way, provided there is no legal defect in his appointment. Temporary only implies that he would not be there for regular duration but in so far as he is lawfully appointed to a position, he should be in a position to exercise the powers attached to that position during whatever tenure he has got. Of course, if there is a specific condition in his temporary / contractual appointment that he would not exercise such-and-such power, then it may be a different situation.

And, if there is a legal defect in his appointment and in his occupying that position (of competent authority), then you may even file a writ of quo warranto.

Since you have mentioned about a charge sheet against a central government servant, I don’t know why do you want to issue a notice under Section 80 CPC. A Central Government servant can directly challenge a charge sheet issued to him in the Central Administrative Tribunal (CAT), if there is a legal defect in the charge sheet. There is no need for issuing a notice under Section 80 CPC or, in fact, even for filing a suit under CPC. Such matters are covered under CAT now.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Jayasankar Nair]

Sir,
My heartiest thanks for your very prompt and kind reply. Your clarification cleared by doubts.
Thanks
Jayasankar

[Jayasankar Nair]

Sir,
The officer who initiated disciplinary action against me is not competent to do so, which I appealed to his higher authority. The higher authority of this officer is also biased and therefore my querry is not responded by either disciplinary authority or his authority.

In the meanwhile, I understand that a disciplinary action is undergoing against the officer who initiated action against me for his misconduct. Under such circumstance, I have a doubt whether this charge sheeted officer can be permitted to exercise role of disciplinary authority on his others, pending decision on his own case. As far as my general understanding, such permissions are likely to give room for arm-twisting act. Is there any judicial directions on such matter. While, I agree that I can approach judiciary or CAT challenging legal validity/appointment of my disciplinary authority. Still, considering the delay in decision making by judiciary, I wish to exercise all available options.

Thanking you in advance sir.

[Jayasankar Nair]

Sir, Please look into my request. I appealed to my higher authority about incompetency of Disciplinary authority and Inquiry officer. My higher authority is not responding and IO planned to proceed with the enquiry. As the litigation is a very time taking and expensive affair, I approved higher authority for financial assistance for litigation. He is not responding to this request also. Confirm correctness of my request for finance assistance. If at all I file a case, can I got this non-operation for financial assistance also to prove my stand.

Request guidance please.

Thanks

[Dr. Ashok Dhamija]

You have mentioned that the officer who initiated the disciplinary inquiry against you, is not competent to do so. You have also mentioned that the inquiry officer has planned to proceed with the inquiry and the higher authority is also not doing anything in this regard. In such situation, the only remedy would be to challenge the disciplinary inquiry against you in the Central Administrative Tribunal (CAT) since it has been initiated by incompetent authority, as per your version. You may file an Original Application (OA) in CAT to quash and set aside such inquiry and meanwhile obtain a stay against the inquiry.

As regards the issue of the officer himself facing departmental action, that is a separate issue between him and the government. Your case will be decided on the merits of your own case, including on the issue of whether the officer who initiated the disciplinary inquiry against you was competent to do so.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Jayasankar Nair]

Ok Sir. Thank you very much.

[Jayasankar Nair]

Sir,
As I was about to proceed in my matter with CAT, I got an intimation from my higher authority i.e Govt of India, wherein they assured me that the concerned authorities were communicating to strictly follow the due procedures.
While the action of Inquiry officer is still not as per procedure, I conveyed my reservation to attend enquiry pending receipt of applicable rules in the subject matter. By disregarding my request, Inquiry officer proceeded to conduct ex-parte and issued initial daily log which just indicated about my absence.

In the daily log below my name, it was stated as “accussed employee”.It offends my sentiment as I am an officer of Gp B status, put in over 30 yrs of experience.

So, I just want to know whether the charge sheeted employee could be termed as “Accussed Employee” by Inquiry Officer and Presenting Officer. As the company rule book on the subject of Conduct and Discipline Rules, no where used/state the term “Accused employee” for charge sheeted employee.

Request clarification to my view point, so that I can take up the matter further. Also please confirm whether I can file an FIR for such assertion on my dignity.

sir please confirm whether my view point is right or wrong.
jayasankar

[Jayasankar Nair]

Sir,
Request kindly clarify my querry whether the Inquiry Officer, who is conducting ex-parte inquiry can address the charged employee as “Accussed” while dealing in an official matter of misconduct. Can I take up this matter with police as it hurts my sentiment.

Jayasankar

[Jayasankar Nair]

Respected sir,
I submitted a doubt for your kind clarification on 17th Nov, followed by same request on 19 Nov also. I just have a doubt whether the procedure adopted by me by posting further querries only through the initial querry is right or I have to post it as a fresh querry.

It is my kind request for your clarification sir.
Thanking you, Jaya sankar

[Dr. Ashok Dhamija]

As per Cambridge dictionary, “accuse” means “to say that someone has done something morally wrong, illegal, or unkind”.

This word may even be used in general discussions, such as, “Are you accusing me of lying?” or “The government stands accused of eroding freedom of speech”.

It is true that generally, the word “accused” is used in criminal law for a person who is accused of committing an offence. But, it has other uses also, as mentioned above.

Since it appears that you are working under the Central Government, let me point out that in the guidelines issued under the CCS (CCA) Rules, the officer against whom a departmental inquiry is pending, is generally referred to as “delinquent officer”. During such departmental inquiries, I have also seen the use of “charged officer” or “CO” expressions for such employee.

If you are offended by the use of the words “accused employee”, you may request the authority concerned to use the appropriate words.

But, I don’t think you can file a complaint with police for use of these words. This may be taking it too far. As far as I understand, at the most (if at all), it may be considered as defamation, but that is also a non-cognizable offence and the police has no power to register FIR in such matters, and you may have to file a private complaint in court. But, I think it would not be easy to prove the charge of defamation in such situation. Rest is up to you. If you have time and energy left after fighting your existing departmental inquiry, you can file this new case.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Jayasankar Nair]

Respected Sir,
Thank you verymuch with all my heart sir for your valuable opinion.
Jayasankar

[Jayasankar Nair]

Respected Sir,
Your valuable timely expertise opinion coupled with provisio of RTI was instrumental for my self confidence on my stand in the arbitrary disciplinary action for major punishment initiated by my employer. As suggested, I approached CAT, preferred for self pleading and the Hon’ble Court accepted my plea and granted interim relief.(verymuch pained by the acts of executive machinery of the state).

Please accept my humble salute for your noble cause.
Jayasankar

[Jayasankar Nair]

Respected sir,

A filed a OA before CAT as petitioner-in-person against a disciplinary matter. Though the OA was based on court ruling that “initiation of disciplinary action by incompetent authority is nullity in the eyes of law”. The Hon’ble single Judge , in the 1st hearing, on a cursory look, understood some procedural irregularity in the inquiry report and granted IR, stating inquiry report is incomplete and ordered for reply from respondent on my OA.

Instead of submitted reply to my OA, respondents moved an application before the court stating fresh inquiry report will be served to me. This application was accepted by court in my absence (inspite of knowing that I am an applicant in person) and passed an interlocutory order stating that “ my OA is infructuous since disciplinary authority decided to issue fresh notice with enquiry report”. Surprisingly, inspite of my absence in the court , the order states that the “Applicant – In person”.

With a valid “IR” i.e. stay on disciplinary proceeding, my OA was transferred by Single Bench to Division Bench. As the Division bench is not functioning for almost two years in Lucknow, my case is not listed in the last three months.

In the meanwhile, Respondent issued another show cause notice for “removal from my service” with changed documents in the enquiry report. I approached Tribunal with a supplimentary application stating that my OA was on disciplinary action taken by incompetent authority against my service and the same is not addressed by respondent till date. I requested the court to address the matter on legality of ‘issuing of fresh (2nd) show cause notice’, which the court declined stating that it is pending before Division Bench and this action is a fresh cause of action. No restrain order was issued on the 2nd show cause notice, though this supplementary affidavit was also transferred to DB (DB is not functioning). With regard to merit of my case, I am confident of it but as my employer was biased, I preferred not to participate in inquiry as it was ordered by incompetent authority.

Taking advantage of interlocutory orders obtained on false affidavit, and no restrain order from CAT on my Supplementary Affidavit, now the respondents , outright neglected my defence to show cause notice and ordered “Removal of my service” from 31 Mar 18.

Sir, under such circumstance, what could be the remedy for me sir since there is no DB at Lucknow. Whether I have to file fresh OA in CAT single bench or is there any option for me to approach High Court against “Interlocatory order” which was obtained/pronounced on false affidavit in my absence. If so, whether it will be before the single bench or DB in High Court. Request kind suggestion so that High Court being higher court could address my genuine plea. please.
Thanking you, Jayasankar

[Jayasankar Nair]

Respected sir,

A filed a OA before CAT as petitioner-in-person against a disciplinary matter. Though the OA was based on court ruling that “initiation of disciplinary action by incompetent authority is nullity in the eyes of law”. The Hon’ble single Judge , in the 1st hearing, on a cursory look, understood some procedural irregularity in the inquiry report and granted IR, stating inquiry report is incomplete and ordered for reply from respondent on my OA.

Instead of submitted reply to my OA, respondents moved an application before the court stating fresh inquiry report will be served to me. This application was accepted by court in my absence (inspite of knowing that I am an applicant in person) and passed an interlocutory order stating that “ my OA is infructuous since disciplinary authority decided to issue fresh notice with enquiry report”. Surprisingly, inspite of my absence in the court , the order states that the “Applicant – In person”.

With a valid “IR” i.e. stay on disciplinary proceeding, my OA was transferred by Single Bench to Division Bench. As the Division bench is not functioning for almost two years in Lucknow, my case is not listed in the last three months.

In the meanwhile, Respondent issued another show cause notice for “removal from my service” with changed documents in the enquiry report. I approached Tribunal with a supplimentary application stating that my OA was on disciplinary action taken by incompetent authority against my service and the same is not addressed by respondent till date. I requested the court to address the matter on legality of ‘issuing of fresh (2nd) show cause notice’, which the court declined stating that it is pending before Division Bench and this action is a fresh cause of action. No restrain order was issued on the 2nd show cause notice, though this supplementary affidavit was also transferred to DB (DB is not functioning). With regard to merit of my case, I am confident of it but as my employer was biased, I preferred not to participate in inquiry as it was ordered by incompetent authority.

Taking advantage of interlocutory orders obtained on false affidavit, and no restrain order from CAT on my Supplementary Affidavit, now the respondents , outright neglected my defence to show cause notice and ordered “Removal of my service” from 31 Mar 18.

Sir, under such circumstance, what could be the remedy for me sir since there is no DB at Lucknow. Whether I have to file fresh OA in CAT single bench or is there any option for me to approach High Court against “Interlocatory order” which was obtained/pronounced on false affidavit in my absence. If so, whether it will be before the single bench or DB in High Court. Request kind suggestion so that High Court being higher court could address my genuine plea. please.
Thanking you, Jayasankar

[Jayasankar Nair]

Respected sir,
To save your precious time,my above querry in brief for consideration pl.
OA filed before CAT (single bench) on disp matter citing incompetency.IR granted by Tribunal citing incomplete inquiry report. Respondent informed court (not to applicant) of serving fresh inquiry report. On the false affidavit of respondent CAT declared by OA as infractuous. Applicant filed Supplimentary on false affidavit.IR not withdrawn by court. Court transferred the matter to DB with the opinion that OA infractuous but with observation as “since the matter is cognizible by DB, put up before DB for appropriate orders as and when available premptorily”.

Respondent served another show cause notice (no ref of court direction). Applicant approached CAT through Supplimentary again (Single bench as there is no DB). CAT not entertained stating it is pending before DB. Respondent removed applicant from service by neglecting all submission against Show Cause Notice. Applicant made departmental ‘appeal’.
Sir, suggest remedy since CAT’s acceptance of false affidavit of respondent and pronouncement on my OA as ‘infractuous in my absence’ led to loss of my employment.

Is there an option for me to exercise option of Article 226 before High Court as I fear on reaction of judge in my approach to CAT again before the same judge citing order pronounced in my absence, basically because no DB in Lucknow bench is my bad luck.

Please help me.Jayasankar

[Dr. Ashok Dhamija]

Please see our Forum guidelines. It is not possible for us to reply on the detailed facts of your case. Please consult some local lawyer by showing him all your documents. However, I may state generally that a service matter of a Central Government servant has first to be challenged before the CAT and thereafter CAT order can be challenged in High Court. A service matter cannot be challenged directly in High Court.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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