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Sunday, August 28, 2016

alleged supply of contraband ganja, by 11 CRPF personnel posted in the unit of the appellant and one AK-47 rifle with 3 magazines and 90 rounds of 7.62 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”).= .The appellant was serving as a regular Commandant of 61st Battalion, CRPF and at the time of incidents, was posted at Mantripukhri, Imphal. He is alleged to be involved in two cases.= The observation made by this Court in the case of Dr. Yashwant Trimbak (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 Articles 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 disciplinary action but not the executive action against the appellant. 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 Part III 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 Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed.- 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 40 of 2011. Therefore, the impugned judgment is liable to be set aside and accordingly, set aside. - 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. The 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.

REPORTABLE

                  IN THE SUPREME COURT OF INDIA
                   CIVIL APPELLATE JURISDICTION


                 CIVIL APPEAL NO.8323 OF 2016
            (Arising out of SLP(C) No.30907 of 2013)


BRAJENDRA SINGH YAMBEM               …APPELLANT

                                    Versus


UNION OF INDIA AND ANR.                  …RESPONDENTS

                                     WITH

             CIVIL APPEAL NO.8324 OF 2016
        (Arising out of SLP(C) No.10092 of 2014)



                       J U D G M E N T



V. GOPALA GOWDA, J.


      Leave granted.


The present appeals arise out of the  common  impugned  judgment  and  order
dated 05.08.2013 passed by the Division Bench of the High Court  of  Manipur
at Imphal in Writ Appeal Nos. 39 and 40 of 2011, whereby  the  judgment  and
order dated 01.09.2010 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  2010  was
set aside.

The necessary facts required  to  appreciate  the  rival  legal  contentions
advanced on behalf of the parties are stated in brief hereunder:
 The appellant was serving as a regular Commandant of 61st  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 of 2013 relates to missing of arms  and
ammunition. The second case, i.e. Civil Appeal arising out of  SLP  (C)  No.
10092 of 2014 relates to the alleged supply of contraband ganja, by 11  CRPF
personnel posted in the unit of the appellant.
Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines  and  90
rounds of 7.62 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”).

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 relevant portions  of  the
said letter are extracted hereunder:
“It has been intimated by IGP, N/ Sector,  CRPF  that  one  AK-47  Rifle,  3
Magazines  and  90  rounds  of  7.62  ammunition  of  commanding  61  Bn  at
Mantripukhri, Imphal. A Court of Inquiry was  conducted.  IGP  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……
………Therefore, I am directed by IGP, N/Sector that to  request  you  to  send
your written statement to this office at an early date……”


Pursuant to the above letter, the appellant submitted his written  statement
on 07.04.1998, explaining the reasons which resulted  in  the  loss  of  the
said weapon and ammunition.

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.

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  14.10.1999,  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.

Aggrieved of the said action of withdrawal of imposition  of  minor  penalty
and initiating departmental inquiry, the appellant filed Writ  Petition  (C)
No. 720 of  2002  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 of law.

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  the  appellant  was  withdrawn  by  which  the
letter dated 24.06.1998 was withdrawn by the IGP-NS.

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

The respondent-Union of India 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.

The Division Bench of the High Court by way  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.

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.

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:

“Article-I

That the said Shri  B.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  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(1)(ii) and (iii) of CCS (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(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-III

That  the  said  Shri  B.S.  Yambem,  Commandant(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 of one  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(1)(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 committed  an  act  of
misconduct in that he  passed  verbal  orders  to  issue  service  arms  and
ammunitions to ex-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 and devotion to duty and acted in a manner unbecoming of  a  Govt.
Servant and thereby violated the provisions contained  in  Rule  3(1)(i)(ii)
and (iii) of CCS (Conduct) Rules, 1964.”


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.
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) of  CCS  (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  of  2005  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.

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  Articles
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  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 IGP  (Ops)  Manipur
and Nagaland. Two of the above vehicles and 11 men  were  later  intercepted
and apprehended by the Customs and Central Excise Authorities  at  Didarganj
check post near Patna on the night of  11/08/1995  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(1), (i),(ii)and   (iii)  of  CCS
(Conduct) Rules, 1964.

Article-II

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 of CRPF 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), (i), (ii)  and  (iii)  of  CCS  (Conduct)
Rules, 1964.

Article-III

That the said Shri B.S. Yambem, Commandant (under suspension)  while  posted
and functioning as Commandant  61  Bn.  CRPF,  Mantripukhri,  Imphal  during
August, 1995 committed a  serious  misconduct  in  that  he  suppressed  the
information of arrival of Shri Ram Singh, Asstt. Comdt  (under  suspension),
4 Ors. with Civil TATA 608 truck with civilian driver at Bn. HQrs on  15/16-
8-95 and kept them hiding at remote  Coy  location  at  Mayang,  Imphal  and
shown their arrival at Bn HQrs on 0245 hrs on 17/08/1995  though  they  were
wanted by Central Excise authorities  in  connection  with  the  seizure  of
ganja from two trucks of his Unit at Didarganj check-post near Patna on  the
night of 11/8/1995. 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) of CCS (Conduct) Rules, 1964.”
Aggrieved of the same, the appellant filed Writ Petition(C) No. 264 of  2010
before the High Court of Gauhati, Imphal Bench.

 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
1st case i.e. Arms case) and Writ Petition No. 264 of  2010  (filed  against
Memorandum of Charges dated 16.10.2009-issued in 2nd case i.e. Ganja  case),
they were heard together and disposed of by the learned  single  Judge  vide
common judgment and order dated 01.09.2010. 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
10 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.

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  of  2010,
respectively) before the Division Bench of the High  Court  questioning  the
correctness of the same.

 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  departmental  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.

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 State  of  U.P.  &  Anr.  v.  Shri  Krishna  Pandey[1],
wherein it has been held that a government employee cannot be  subjected  to
a departmental 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.

The learned counsel further contends that the Division  Bench  of  the  High
Court has erred in bypassing the CCS (Pension) Rules, 1972 in extending  the
limitation  period  for  initiating   departmental   enquiry   against   the
appellant, which action of the disciplinary authority  is  contrary  to  the
Rules as well as the decision of this Court in  the  case  of  Shri  Krishna
Pandey (supra).

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.

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  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) of CCS (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.

As far as the case in the Civil Appeal  arising  out  of  the  SLP  (C)  No.
10092 of 2014 is concerned (ganja case), the learned counsel  on  behalf  of
the 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 for the 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, after 13 years of the alleged incident which is  in  violation
of the CCS (Pension) Rules, 1972. The learned counsel further contends  that
the above departmental enquiry was initiated against the  appellant  with  a
mala fide intention to harass him.

 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 this Court in exercise of its appellate  jurisdiction  under
Article 136 of the Constitution of India.

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.

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:

“9(2)(a)… The departmental  proceedings  referred  to  in  sub-rule  (1)  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 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 v. Union of India[2],  wherein  this  Court
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 Rule 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.  Dr.  Yashwant
Trimbak[3], 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 of India.

The learned ASG further contends that the  legal  principles  enunciated  by
this Court in the case of Shri Krishna Pandey (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 of Shri Krishna Pandey  (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 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 Union of India v. Kewal Kumar[4],  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 Shri Krishna Pandey (supra), when  the  charges  framed  against
him by the  disciplinary  authority  pertain  to  a  matter  as  serious  as
smuggling contraband ganja.

The learned ASG further places reliance on the decisions of  this  Court  in
the cases of Railway Board Representing  The  Union  of  India  v.  Niranjan
Singh[5] and State of Madras v. G. Sundaram[6], 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.

We have heard the learned counsel appearing on behalf of both  the  parties.
The following essential questions would arise for our consideration  in  the
case:

 Whether the impugned judgment and order passed by  the  Division  Bench  of
the High Court correctly appreciates the scope of Rule  9(2)(b)(ii)  of  the
CCS (Pension) Rules, 1972 in light of the fact the disciplinary  proceedings
were initiated more than four years after the alleged incidents?

Whether the impugned judgment and order is  erroneous  and  is  vitiated  in
law?


What Order?


Answer to Point Nos. 1 and 2
Since Points 1 and 2 are inter-related, the same are  answered  together  as
under:

With reference to the aforesaid factual and rival  legal  contentions  urged
before this Court, to answer the same, at the outset it would  be  necessary
to refer to the letter dated 20.02.2009 issued  by  the  DIGP  (CR  &  Vig.)
which reads as under:
 “Directorate General, CRPF
       (Ministry of Home Affairs)
    Sub : Department Enquiry Against Shri B.S.
          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  of
his  jurisdiction  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 IOs report was served on  the  C/O.
The C/O filed a WP No. 805 of 2005 in the Guwahati High Court, Imphal  Bench
in which first  the Hon’ble Court 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 report 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 statements of the witnesses and documents  recorded  in  Hindi  to
the petitioner.

3.    Against the above order, the Department filed W.A. No. 25 of  2007  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/120c/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 :-

  Supplying copies of proceedings of the  COI  and  the  English  translated
copies of statements of the witnesses and documents  recorded  in  Hindi  to
the petitioner. This would be pre-requisite for starting the DE against  the
C/O afresh.

   Memorandum dated 14.5.1998 will have to be cancelled and DE  against  the
C/O started afresh on 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 approval  of  Competent
Authority  to  take  the  above  actions.  Since  the  Officer  has  already
proceeded on superannuation (while under suspension)  w.e.f  31.8.2006,  the
DE ordered afresh would be under Rule 9(2) of CCS (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 of 2005 by the learned single Judge of the High  Court  and  judgment
and order dated 13.08.2008 passed in W.A. No. 25 of  2007  by  the  Division
Bench of the High Court initiated disciplinary  proceedings  afresh  against
the appellant under Rule 9(2)(b)(ii) of CCS (Pension) 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 (1), 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 if the 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 departmental proceedings, if not        |
|          |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.

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, 1972. It  is
an undisputed fact that the appellant retired from  service  on  31.08.2006.
The learned single Judge of the High Court by  way  of  judgment  and  order
dated 18.05.2006 in Writ Petition No. 720 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  judgment  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. 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 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  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 of  Gauhati,  Imphal  Bench
in W.P. (C) No. 264 of 2010.  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 the same was barred by limitation as per  the  provision  of  Rule
9(2)(b)(ii) of the CCS (Pension) Rules 1972.  This  important  legal  aspect
of the case was not considered by the  Division  Bench  of  the  High  Court
while setting aside the common judgment and order  dated  01.09.2010  passed
by the learned single Judge in Writ Petition  No.  904  of  2008  (arms  and
ammunitions case) and Writ  Petition  No.  264  of  2010  (contraband  ganja
case).

It is a well established principle of law 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. The aforesaid legal position has been  laid  down
by this Court in the case of Babu Verghese & Ors. v. Bar Council  of  Kerala
& Ors.[7], the relevant paragraphs of which are extracted hereunder :
“31. It is the basic principle of law long settled that  if  the  manner  of
doing a particular act 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 Taylor v. Taylor which was followed by Lord Roche  in  Nazir
Ahmad v. King Emperor who stated as under:

“[W]here a power is given to do a certain thing in a certain way, the  thing
must be done in that way or not at all.”

32. This rule has since been approved by this  Court  in  Rao  Shiv  Bahadur
Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan.  These
cases were considered by a three-Judge Bench of this Court in State of  U.P.
v. Singhara Singh and the rule laid down  in  Nazir  Ahmad  case  was  again
upheld. This rule has since been applied to the exercise of jurisdiction  by
courts  and  has  also  been  recognised  as   a   salutary   principle   of
administrative law.”


The aforesaid important aspect of the case should have  been  considered  by
the Division Bench of the High Court instead of mechanically  accepting  the
argument  advanced on behalf  of  the  respondents  that  the  case  of  the
appellant squarely falls under Rule 9(2)(b)(i) read with Rule  9  (2)(b)(ii)
of CCS (Pension) Rules,  1972.  Therefore,  the  findings  recorded  by  the
Division Bench in the impugned judgment are erroneous in law and are  liable
to be set aside.

The learned ASG appearing on behalf of the  respondents  contends  that  the
period of limitation of four years as stipulated in 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  appellant  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 further disciplinary proceedings were  continued  after
obtaining prior sanction of the President of India as  required  under  Rule
9(2)(b)(i) of  the  CCS  (Pension)  Rules,  1972.  The  said  contention  is
untenable both on facts as well as in law.

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 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.

The similar question of law came for consideration before this Court in  the
case of Shri Krishna Pandey (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. Admittedly, in this case the officer had retired  on  31-3-1987
and the proceedings were initiated on 21-4-1991.  Obviously,  the  event  of
embezzlement which caused pecuniary loss to the State took  place  prior  to
four years from the date of his retirement. Under these  circumstances,  the
State had disabled itself by their deliberate omissions to take  appropriate
action against the respondent and allowed the officer  to  escape  from  the
provisions of Regulation 351-A of  the  Regulations.  This  order  does  not
preclude proceeding with the  investigation  into  the  offence  and  taking
action thereon.”
                (emphasis laid by this Court)

The judgment of this Court in the case  of            Dr.  Yashwant  Trimbak
(supra) 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  of  India.  This
principle of law 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 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 India 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. 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, which cannot be treated as  an  executive  action  of
the Government of India. Rather, it is a statutory exercise of power by  the
President, under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The  said
Rules are framed by the President of India in exercise of legislative  power
conferred under Article 309 of the Constitution of  India.  Article  309  of
the  Constitution  provides  for  framing  Rules  and  Regulations  for  the
regulation of recruitment and  conditions  of  service  of  persons  serving
under the Union or a State government, and reads as under :
“309.Recruitment and conditions of service of persons serving the  Union  or
a State-       Subject to the provisions of this Constitution, Acts  of  the
appropriate Legislature may regulate  the  recruitment,  and  conditions  of
service of persons appointed, to public services  and  posts  in  connection
with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person  as  he
may direct in the case of services and posts in connection with the  affairs
of the Union, and for the Governor of a State  or  such  person  as  he  may
direct in the case of services and posts in connection with the  affairs  of
the State, to make rules regulating the recruitment, and the  conditions  of
service of persons appointed, to such services and  posts  until  provisions
in that behalf is made by or under an Act  of  the  appropriate  Legislature
under this article, and any rules so made shall 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 Yadav  v.
State of Haryana[8], held as under:
“……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 of the ultimate repository of a power  not
exercising that power. The proviso to Article 309 provides,  in  so  far  as
material, that until the State legislature passes a law  on  the  particular
subject, it shall be competent to the Governor of the State  to  make  rules
regulating the recruitment and the conditions of  service  of  the  judicial
officers of the State. The Governor thus steps in when the legislature  does
not act. The power, exercised by the Governor under the proviso  is  thus  a
power which the legislature is competent to exercise but  has  in  fact  not
yet exercised. It par takes of the characteristics of the  legislative,  not
executive, power. It is legislative power.
That the Governor 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 158, the Governor of a State is a part of  the
legislature of the State. And  the  most  obvious  exercise  of  legislative
power by the  Governor  is  the  power  given  to  him  by  Article  213  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  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 Articles  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 Sampat Prakash v.  State  of
Jammu and Kashmir[9], 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 of the Government  of  India  or  the
Government of the State, as the case may be, and for  the  allocation  among
Ministers of  the  said  business.  If,  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. There are  other
similar rule-making powers, such as the power of making service rules  under
Article 309 of the Constitution. That power must also  be  exercisable  from
time to time and must include within it the power to add to, amend, vary  or
rescind any of those rules……”
              (emphasis laid by this Court)

It becomes clear from a perusal of the  constitutional  provisions  and  the
decisions by constitution benches of this Court 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 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. 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  Court  can  exercise
power of judicial review under Articles 226 and  32,  respectively,  of  the
Constitution of India in  cases  of  statutory  exercise  of  power  by  the
President or Governor. In the case of Dr.  Yashwant  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 Court in the said case is not  tenable  in  law  in
view of the decision of this Court in the landmark judgment of His  Holiness
Kesavananda Bharati Sripadagalvaru & Ors. v. State of  Kerala  and  Anr.[10]
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:
“577 ……The observations of Patanjali Sastri, C.J., in  State  of  Madras  v.
V.G. Row which have become locus classicus need alone be  repeated  in  this
connection. Judicial review is undertaken 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
Commonwealth of Australia v. Bank of New 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 Commonwealth 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 evidence in the  Constitution  itself  to  indicate  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.  Yashwant  Trimbak
(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 Articles  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 disciplinary action but not the executive action against the appellant.
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 Part III 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 Rule 9(2)(b)(i) of the CCS (Pension) Rules,  1972  are  liable  to  be
quashed.

Answer to Point No. 3

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 40 of  2011.
Therefore, the impugned judgment is liable to be set aside and  accordingly,
set aside.

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  allegations  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.
The 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.

                      …………………………………………………………J.
                      [ANIL R. DAVE]



                                      …………………………………………………………J.
                               [V. GOPALA GOWDA]


          …………………………………………………………J.
                               [C. NAGAPPAN]


New Delhi,
August 26, 2016


ITEM NO.1A-For JUDGMENT       COURT NO.8               SECTION XIV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A. NO.8323/2016 @ Petition(s) for Special Leave to Appeal (C)  No(s).
30907/2013

BRAJENDRA SINGH YAMBEM                             Petitioner(s)

                                VERSUS

UNION OF INDIA AND ANR                             Respondent(s)

WITH

C.A. No.8324/2016 @ SLP(C) NO.10092/2014


Date : 26/08/2016 These appeals were called on for pronouncement of
JUDGMENT today.

For Petitioner(s)
                     Ms. Momota Devi Oinam,AOR

For Respondent(s)
                     Mr. B. Krishna Prasad,AOR

                     Ms. Sushma Suri,AOR



      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising Hon'ble Mr. Justice Anil R. Dave, His Lordship and  Hon'ble
Mr. Justice C. Nagappan.

      Leave granted.



      The appeals are partly allowed  in  terms  of  the  signed  Reportable
Judgment.


|(VINOD KUMAR JHA)                      | |(MALA KUMARI SHARMA)                  |
|AR-CUM-PS                              | |COURT MASTER                          |

 (Signed Reportable judgment is placed on the file)


-----------------------
[1]     (1996) 9 SCC 395
[2]     (1990) 4 SCC 314
[3]    (1996) 2 SCC 305
[4]     AIR 1993 SC 1585
[5]     (1969) 1 SCC 502
[6]     AIR 1965 SC 1103
[7]    (1999) 3 SCC 422
[8]    AIR 1981 SC  561
[9]    AIR 1970 SC 1118
[10]    (1973) 4 SCC 225

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