Anil Kumar, J.
1. The point for determination in the present writ petition is 'whether a retired employee of Kendriya Vidyalaya Sangathan (KVS) could be appointed as an enquiry officer in a disciplinary enquiry' under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 [hereinafter referred to CCS (CCA) Rules, 1965] which was initiated against the petitioner who was an Assistant Commissioner in Kendriya Vidyalaya Sangathan (KVS) Regional Office, Lucknow.
2. Sh. Indre Singh, a retired Commissioner of Departmental Enquiries of the Central Vigilance Commission was appointed by the Vice Chairman of Kendriya Vidyalaya Sangathan (KVS) on 17th June, 2008 as an enquiry officer in the Disciplinary proceedings, which were initiated against the petitioner. The petitioner had challenged the appointment of a retired officer as enquiry officer in the Original Application filed by the petitioner being O.A. No. 1699 of 2008. On account of conflicting views of various Benches of the Administrative Tribunal regarding appointment of a retired employee as an enquiry officer under CCS (CCA) Rules, 1965, the matter was referred by a Division Bench of the Central Administrative Tribunal to the larger Bench.
3. The larger Bench of the Tribunal by order dated 1st November, 2009 in O.A. No. 1699 of 2008, titled as Satish Kumar Kukreja v. Additional Secretary, Ministry of HRD and Vice Chairman, Kendriya Vidyalaya Sangathan and Anr., held that a retired Government servant could be appointed as an enquiry authority under CCS (CCA) Rules, 1965 which is challenged by the petitioner before this Court in the present writ petition.
4. Under Rules 14(2) of CCS (CCA) Rules, 1965, an enquiry officer can be appointed, which is as under:
14(2). Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiries into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof
Section 3 of the Public Servants (Inquiries) Act, 1850 also contemplates that enquiry may be committed either to the Court, Board, or other authority to which the person accused is subordinate or to other person or persons to be specially appointed. Section 3 of the Public Servants (Inquiries) Act, 1850 is as under:
3. Authorities to whom inquiry may be committed. Notice to accused: The inquiry may be committed either to the Court, Board, or other authority to which the person accused is subordinate, or to any other person or persons to be specially appointed by the Government, Commissioners for the purpose; notice of which Commission shall be given to the person accused ten days at least before the beginning of the inquiry.
5. Under Article 80 of the Education Code applicable to the KVS, the CCS (CCA) Rules, 1965 have been made applicable mutatis mutandis to the employees of the KVS. Rule 80 of the Education Code applicable to KVS is as under:
80.(a) All the employees of Kendriya Vidyalayas, Regional Offices and the Headquarters of the Sangathan shall be subject to the disciplinary control of the Sangathan and the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as amended from time to time, will apply mutatis mutandis to all members of the staff of the Sangathan except when otherwise decided. (In the above rules, for the words 'Government Servant' wherever they occur, the words 'Employees of Kendriya Vidyalaya/Kendriya Vidyalaya Sangathan', shall be substituted.
6. Before the Tribunal, the contention of the petitioner was that Section 3 of the Public Servants (Inquiries) Act, 1850 stipulates that a person against whom the enquiry is to be conducted should be subordinate to Court, Board or other authority and consequently, such authority has to be an official authority because an employee of the government cannot be subordinate to a person who is not in the employment of the Government.
7. Relying on Section 3, it was further asserted that the authority contemplated for appointment under the said provision is Commissioner who is nothing but specially appointed person by the Government and ought to be a serving person and only such a person can be construed as an 'Authority' under Rule 14(2) of the CCS (CCA) Rules, 1965. According to the petitioner, the construction of Rule 14(2) revolves around the term 'Authority' and thus, the Disciplinary authority can only appoint a serving official of the Government as an enquiry authority. To buttress the point that the enquiry officer has to be a serving officer, it was pleaded that since the enquiry officer is delegatee of the Disciplinary authority, delegation cannot be made to a retired Government servant.
8. On behalf of the petitioner reliance was placed on Ravi Malik v. National Film Development Corporation Ltd. and Ors. (2004) 13 SCC 427; Sangeeta Ashok Kumar v. KVS and Ors. O.A. No. 766/2006 (Principal Bench); Dilip Kumar Sengupata v. Union of India and Ors. OA No. 854/2002 (Calcutta Bench); Balvir Bahadur v. Union of India and Ors. O.A. No. 41/2007 (Allahabad Bench), order of the Allahabad High Court in Civil Misc. Writ Petition No. 44002/2007, Kendriya Vidyalaya Sangathan v. Central Administrative Tribunal, Allahabad Bench, Allahabad and Anr. and Smt. Santosh Verma v. Union of India and Ors. O.A. No. 1164/2007 (Principal Bench). Before the Tribunal, the decision of Guwahati High Court in Writ Petition(C) No. 659 of 2005, KVS and Anr. v. Vijay Bhatanagar was alleged to be per incuriam as it had not considered the ratio of Ravi Malik (Supra) of the Supreme Court.
9. The petitioner had also relied on the Departmental Inquiries Act, 1972, which stipulates the definition of enquiry authority is as under:
(b) 'inquiring authority' means an officer of authority appointed by the Central Government or by any officer or authority subordinate to that Government to hold a departmental inquiry and includes any officer of authority who is empowered by or under any law or rule for the time being in force to hold such inquiry.
10. On behalf of the petitioner, it was contended before the Tribunal that the enquiry authority has to be a serving officer who is a member of duly constituted Commission appointed by a notification and since the Central Vigilance Commission of the Department of Personnel and Training cannot issue instructions regarding appointment of a retired person as an enquiry officer de hors the specific provision in CCS (CCA) Rules, 1965, therefore, the enquiry authority has to be a serving officer.
11. Reliance was also placed by the petitioner on Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. 2008 (2) SCT 659 to contend that the administrative instructions cannot override the law or the statutory rules. Comparing the Rule 14(8) with Rule 14(2) of the CCS (CCA) Rules, 1965, it was argued that Sub Rule 8 specifically provides that the Government servant may appoint another Government servant or retired officer in contradistinction to Sub-rule (2) which does not provide the appointment of a retired officer, and consequently under Rule 14(2) only a serving government Officer could be appointed as enquiry officer.
12. The respondents, before the Tribunal refuted the plea of the petitioner, inter-alia on the grounds that there is no bar under Rule 14(2) of the CCS (CCA) Rules, 1965 to appoint a retired officer of the Government as an enquiry authority. The reliance was placed on the O.M. dated 15.05.1987 stipulating the instructions for employment of retired Government servant as enquiry authority by DoP&T.; The said O.M.dated 15.05.1987 is as under:
TERMS AND CONDITIONS FOR APPOINTING RETIRED OFFICERS AS INQUIRY OFFICERS
The Retired Government Officer, hereinafter, referred to as Inquiry Officer (IO):
1. should not be more than 70 years of age as on the 1st July of the year of his empanelment;
2. should be in sound health, physically and mentally;
3. shall not engage himself/herself in any other professional work or service, which is likely to interfere with the performance of his/her duties as Inquiry Officer;
4. shall be appointed as IOs by the Disciplinary authority of the Charged Officer whose case is entrusted to him/her;
5. will be entrusted with the Inquiries on 'Case-to-case' basis, by the Disciplinary authority;
6. shall maintain strict secrecy in relation to the documents he/she receives or information/data collected by him/her in connection with the Inquiry and utilise the same only for the purpose of Inquiry in the case entrusted to him/her. No such documents/information or data are to be divulged to any one during the Inquiry or after presentation of the Inquiry Report. The I. O. entrusted with the Inquiries will be required to furnish an undertaking to maintain strict secrecy and confidentiality of all records/ documents/ proceedings etc. All the records, reports etc. available with the I.O. shall be duly returned to the authority which appointed him/her as such, at the time of presentation of the Inquiry Report;
7. shall be paid a lumpsum remuneration of Rs. 6,5000/- (Rupees Six thousand Five hundred only), per Departmental Inquiry Report, in a case, by the Department/Organisation to which the charged officer belongs;
8. shall be paid, in addition to the remuneration of Rs. 6,5000/- (Rupees Six thousand Five hundred only), per Departmental Inquiry Report, for clerical and Stenographic work, which the IO has to arrange by himself/herself.
9. will be entitled, besides the above, reimbursement of Rs. 500/- (Rupees five hundred only) as Conveyance Charges, per Departmental Inquiry Report (applicable only if the place of Inquiry is a 'A' or 'B-1' class cities);
10. shall conduct the inquiry proceedings only in the office premises of the Department/Organisation, which engages him/her.
11. the inquiry proceedings are to be conducted at the headquarters of the Departments/Organisations or at the place of concentration of the charged officer(s), witnesses etc. In unavoidable circumstances where the Inquiry Officer has to undertake travel for conducting inquiry, the rate of TA/DA in such cases may be permissible to the rate applicable to the serving officers of equivalent rank;
12. shall be provided with a room with furniture and lockable almirahs by the concerned Department/ Organisation, which engages him/her on the days of Inquiry;
13. shall be provided with the stationery/postage by the Department/Organisation, which engages him/her;
14. shall be terminated from the services of an IO at any time by the Appointing Authority, without notice and without assigning any reasons. However, the concerned authority has to intimate the Central Vigilance Commission the reasons for doing so that the Commission can take into account those things while reviewing the panel; and
15. shall submit the inquiry report after completing the inquiry within six months from the date of his appointment as Inquiry Officer to become eligible for payment of remuneration as indicated at item No. 7 to 9.
13. Reliance was also placed by the respondents on O.M. Dated 29th June, 2001, order dated 13th November, 2006 in W.P.(C) No. 6795/2005, titled as 'Kendriya Vidyalaya Sangathan and Anr. v. Sh. Vijay Bhatnagar, and the order dated 30th March, 2007 in O.A. No. 1292/2006, titled as 'Ashok Kumar Sharma v. Vice Chairman, KVS New Delhi and Ors.'.
14. The Tribunal after considering the pleas and contentions of the parties held that under Rule 14 (2) of the CCS(CCA) Rules the disciplinary authority can itself be inquiry authority or appoint an authority to make inquiry under the provisions of Public Servants (Inquiries) Act, 1850. After construing the provisions of the said act it has been held that under the said Act an authority need not be a serving official of the Government. It has been held that the delinquent officer has to be subordinate to Court, Board or other authority but there is no provision that the delinquent officer has to be subordinate to any person or persons appointed as Commissioner for the purpose of inquiry. It was held that the disciplinary authority either can itself inquire into the allegation or appoint someone else under the provisions of the Public Servants (Inquiries) Act, 1850. It was also held that the provisions of the Departmental Inquiries Act, 1972 are not to be resorted to as Rule 14(2) of CCS (CCA) Rules, 1965 does not refer to same. The Tribunal also held that in 1850 Act it has not been qualified that the delinquent officer would be subordinate to 'person' or 'persons' as an 'authority'. The Tribunal relied on Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forest : AIR 1990 SC 1747 and State of Kerala v. Mathai Verghese : (1986) 4 SCC 746 to hold that it is not permissible to add or substitute the words to the legislation for the purpose of construction and that the Tribunal does not have power to legislate and reframe legislation.
15. This Court heard the learned Counsel for the parties in detail. The learned Counsel for the petitioner has relied on Railways Servants (Discipline and Appeal) Rules, 1968 which categorically stipulates that retired Railways official cannot be appointed as an inquiry officer in contradistinction to CCS (CCA) Rule, 1965 which does not have any prohibition. Section 3 of the 1850 Act contemplates that the inquiry can be committed to any other 'person' or 'persons' to be specially appointed by the Government. Qualifications that delinquent officer has to be subordinate to such a 'person' or 'persons' which is to be appointed by the Government cannot be read into said provision of Act of 1850. Even on the basis of Departmental Enquiries Act, 1972 such qualifications cannot be read into Rule 14(2) of CCS (CCA) Rules, 1965. Had the intention been to read the definition of 'inquiry authority' of Departmental Inquiries Act, 1972 in the CCS (CCA) Rules, 1965, the rule would have been amended which has not been done. Rather Office Memorandum dated 15th May, 1987 was issued stipulating the instruction for employment of retired Government servant as enquiry authority by DOP&T.; The said memorandum lays down the maximum age of a retired government servant who can be appointed as enquiry officer and that such a retired Government servant should not be engaged in any other professional work or service which could interfere in his discharge of his duties as enquiry officer. It lays down the remuneration of such a retired officer who is to be appointed as enquiry officer. Not only the remuneration, it also defines the conveyance charges and clerical and stenographic charges payable to such an enquiry officer. It also restricts enquiry proceedings to be conducted in the office premises of Department/Organization which employs such a retired Government servant as enquiry officer. It also lays down the time within which such a retired Government servant has to give his report and also that such a retired Government servant appointed as enquiry officer can be terminated without assigning any reason and without any notice.
16. Sub-rule 2 of Rule 14 of CCS (CCA) Rules, 1965 does not specifically bar appointment of a retired Government servant as an inquiry officer. Even the Public Servant (Inquiries) Act, 1850 does not bar appointment of a retired Government servant as an inquiry officer, and on an interpretation given by the petitioner, it cannot be held that since these two provisions bar the appointment of the retired Government servant as inquiry officers, therefore, the Office Memorandum dated 15th May, 1987 tantamount to add or substitute words to the rules and enactment. If on the reading of the CCS (CCA) Rules, 1965 and Section 3 of Public Servant (Inquiries) Act, 1850, it can be construed that there is no bar to the appointment of a retired Government servant as an inquiry officer and such an appointment would be permissible, then the Office Memorandum dated 15th May, 1987 cannot be termed to be adding or substituting words to the rules under the CCS (CCA) Rules, 1965 or to the provisions of Public Servant (Inquiries ) Act, 1850. The DOP&T; has issued the said Memorandum dated 15th May, 1987 after duly construing the provisions of CCS (CCA) Rules, 1965 and the provisions of Public Servant (Inquiries) Act, 1850, laying down the details and terms & conditions for appointment of a retired Government servant as an inquiry authority. Therefore, the plea of the petitioner cannot be accepted, nor the findings of the Tribunal that a retired Government servant can be appointed as an inquiry officer be faulted in the facts and circumstances.
17. This Court also concurs with the reasoning of the Tribunal that the expression 'as the Case may be' as used under Rule 14(2) of the CCS (CCA) Rules, 1965 would mean that the disciplinary authority can either itself enquire into the allegation or appoint someone else under the provision of Public Servant (Inquiries) Act, 1850 and in the circumstances, 'an authority to enquire into the Tribunal thereof' is not same as 'Court, Board or other Authority to which the person accused is subordinate'. Though a delinquent officer has to be subordinate to Court, Board or other Authority but any 'person' or 'persons' need not be subordinate to such an authority for the purpose of conducting the enquiry. The Office Memorandum of DoP&T; lays down in detail the functioning of the retired Government servant as the inquiry officer, therefore, the plea of the petitioner that a retired Officer of the respondent, Kendriya Vidyalaya Sangathan could not be appointed as an inquiry officer cannot be accepted. In the circumstances, the ratio of Dhananjay Malik (Supra) that the administrative instructions cannot override the law or statutory rules is not applicable as rules do not specifically provide that a retired Government servant cannot be appointed as an inquiry officer.
18. In case of Ravi Malik (Supra), the Supreme Court had been dealing with the case of an employee of the National Film Development Corporation Ltd. The said Corporation had framed regulation known as Service Rules and Regulation, 1982 in respect of its employees which regulations also contained Conduct, Discipline & Appeals, Rules for taking the disciplinary action against the employee for misconduct. The Rule 23 (b) of Service Rules & Regulation 1982 of National Film Development Corporation contemplated appointment of any 'Public servant' to enquire into the allegations made against an employee of National Film Development Corporation. Since said rule contemplates appointment of a 'Public servant, therefore under said rule it was held that 'Public Servant' would mean 'a servant of the Public and not a person who was a servant of the Public'. Therefore, it was held while construing Rule 23 (b) of the said Rules of National Film Development Corporation that a retired employee would not be a Public servant for the purpose of Rule 23 (b). Apparently no such rule expression, 'Public Servant' is used under the CCS (CCA) Rules, 1965 and under the provisions of Public Servant (Inquiries) Act, 1850. Consequently, on the basis of the ratio of the Ravi Malik (Supra), it cannot be held that under CCS(CCA) Rules, 1965 a retired Government servant cannot be appointed as an inquiry officer. In the circumstances, the observations of the Tribunal regarding the case of Ravi Malik (Supra) cannot be faulted. Similarly, the ratio of the case of Ashok Kumar Sharma (Supra) of the Division Bench of the Tribunal holding that there is no requirement under Rule 80 of the Education Code of the respondent about appointment of a Public servant as an enquiry officer, and if that be so, since the expression Public servant has not been used, ratio of Ravi Malik (Supra) cannot be extended to CCS (CCA) Rules, 1965 and to Article 80 of the Education Code, also cannot be faulted on the plea of the petitioner.
19. Though in case of Balvir Bahadur (Supra), the Allahabad High Court relying on Ravi Malik (Supra) had held that a retired Assistant Commissioner of Kendriya Vidyalaya Sangathan could not be appointed as an inquiry officer, however, in the Special Leave petition filed by the Kendriya Vidyalaya Sangathan, this finding of the Allahabad High Court was not confirmed by the Supreme Court, rather whether a retired officer of the Kendriya Vidyalaya Sangathan could be appointed as an inquiry officer or not was left open by the Supreme Court in the Special Leave Petition filed by the Kendriya Vidyalaya Sangathan against the order of the Allahabad High Court. Therefore, on the basis of the decision of Balvir Bahadur (Supra) passed by the Allahabad High Court, it cannot be held that it was conclusively decided that the retired officer of Kendriya Vidyalaya Sangathan cannot be appointed as an inquiry officer.
20. The Guwahati High Court in writ petition being No. 6795 of 2005 had held that the Government and/or Commissioners are competent to commit an inquiry to any Court, Board or any other authority to which delinquent is subordinate and are also competent to make appointment of any other person or persons specially for the purpose of inquiry. The High Court had held that had the intention of the legislature been that delinquent should also be subordinate to any other 'persons' or 'persons', the words 'to which the person accused is subordinate' would have been inserted after the words 'to any other person or persons' qualifying the Court, Board or any other Authority, other persons or persons. This Court concurs with the construction of the said rules and provisions by the High Court of Guwahati and the decision of the Tribunal holding that a retired Government servant can be appointed as an inquiry authority under the CCS (CCA) Rules, 1965 does not suffer from any illegality, irregularity or any apparent perversity.
21. The Tribunal while holding that a retired Government servant can be appointed as an inquiry authority under the CCS (CCA) Rules, 1965 has also relied on Central Bank of India v. C. Bernard, 1990 (6) SLR 29. The Tribunal had observed that although the said judgment of the Supreme Court is not with reference to CCS (CCA) Rules, 1965, yet it establishes the principles that it may not be necessary for the inquiry authority to be an officer of the Bank and a 3rd party can be appointed in this capacity. This Court does not accept the plea of the petitioner and agrees with this reasoning of the Tribunal and it cannot be held that the decision of the Tribunal holding that a retired Government servant can be appointed as an inquiry authority under the CCS (CCA) Rules, 1965 and this finding of the Tribunal does not require any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
22. The plea on behalf of the petitioner that an inquiry officer for conduct of an inquiry cannot be a retired employee and has to be necessarily a serving employee cannot be sustained even on the ground that the disciplinary authority is entitled to take action against an erring enquiry officer but against a retired inquiry officer/inquiry authority, no such action can be initiated by such a disciplinary authority. This argument of the petitioner is without any basis and is based on the assumption of the petitioner. The rights and liabilities of retired officer acting as enquiry officer has been laid down by the memorandum of DOP&T; under CCS(CCA) Rules, 1965. In the circumstances it cannot be said that no action can be taken against an earring enquiry officer who is a retired officer.
23. Though the Allahabad High Court in Ram Bahor Yadav and Anr. (Supra) had held that a retired Railway officer is not equipped and would lack both commitment and motivation and interest and may be actuated with the purpose other than to discipline Railway servant, however, the said observation was in respect of Railway servant and seems to be based more on assumption. The observation was rather made in respect of Rule 9(2) of the Rules of 1968 and the letter dated 29th July, 1998 of the Railway Board. In absence of any specific regulations or rules debarring appointment of a retired Government officer as an inquiry officer, on such assumptions, it cannot be held that a retired Government servant cannot be appointed as an inquiry officer. Rather the office Memorandum of DoP&T; lays down the remuneration, secretarial expenses and other conveyance charges which a retired Government servant, if appointed as an inquiry officer, is entitled to which itself would be reflective of that a retired officer is not perceived as lacking commitment and motivation. The DoP&T; Memorandum also lays down that the inquiry has to be conducted within the premises of the department/ organization which engages him and also gives the power to terminate the service of the inquiry officer at any time without notice and without assigning any reason. Considering that a retired Government servant has more time than a serving Government servant and considering the fact that he would be getting remuneration for conducting an inquiry whereas a serving officer does not get any remuneration for conducting an enquiry entrusted to him, it is more probable that such inquiry officer would have more motivation and commitment for conducting a fair inquiry and it cannot be held that a retired Government servant would lack interest and would be actuated with the purpose other than to discipline the delinquent officer. In the circumstances, such pleas as have been raised by the petitioner are not sufficient to hold that a retired Government servant would not be fit to act as an inquiry officer.
24. Another plea of the petitioner based on the comparison of Rule 14(2) with Rule 14(8) of the CCS (CCA) Rules, 1965 also is not of much significance and on the basis of this it cannot be held conclusively that a retired Government servant cannot be appointed as an inquiry officer. The Rule 14 (8) (b) contemplates that a retired Government servant can be taken by the delinquent officer as an assistant subject to such conditions as may be specified be general or special order. This modification in the CCS(CCA) Rules, 1965 was inserted by Notification dated 14th September, 1977. The petitioner is attempting to interpret the CCS (CCA) Rules, 1965 in view of the provisions contained in the Departmental (Inquiries) Act, 1850. If the intention was not to appoint the retired Government servant as an inquiry officer, a specific notification could be issued modifying or amending the Rule 14 (2) of the CCS (CCA) Rules, 1965. If the doubt under Rule 14(8) had been clarified by issuing a subsequent notification about the appointment of a retired employee as a defense assistant and since no such modification has been done in Rule 14(2), it rather reflects that the respondents had no doubt that a retired employee could be appointed as enquiry officer and therefore, the DOP&T; issued the memorandum laying down the terms and conditions of a retired employee acting as enquiry officer. In the circumstances decision of the Tribunal that such a comparison is too farfetched cannot be faulted. Therefore, on the plea of the petitioner comparing Rule 14(2) with Rule 14(8) it cannot be inferred that under Rule 14(2) of CCS (CCA) Rules, 1965, a retired employee cannot be appointed as enquiry officer. The decision of the Tribunal, in the opinion of this Court, therefore, does not suffer from any such illegality, irregularity or apparent perversity so as to necessitate any interference by this Court.
25. No other ground has been raised by the parties except these which have been dealt hereinbefore. In the totality of the facts and circumstances and considering all the precedents relied on by the parties, this Court is also of the opinion that a retired Government servant can be appointed as an inquiry officer under the CCS (CCA) Rules, 1965 who has to function according to the office memorandum of DOP&T; dated 15th May, 1987 and consequently, the order of the Tribunal dated 1st April, 2000 holding so does not suffer from any such illegality, irregularity or such apparent perversity which shall entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The petitioner in the facts and circumstances is not entitled for any of the relief claimed by him, and therefore, the writ petition is dismissed. Considering the facts and circumstances, the parties are, however, left to bear their own costs.