Manjit Ahluwalla Vs. Union of India and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/700387
SubjectService;Criminal
CourtDelhi High Court
Decided OnDec-16-1993
Case NumberCivil Writ Petition No. 1838 of 1990
Judge D.P. Wadhwa and; Vijender Jain, JJ.
Reported in1994IAD(Delhi)21; 53(1994)DLT571; 1994(28)DRJ114
ActsIndian Penal Code (IPC), 1860 - Sections 21
AppellantManjit Ahluwalla
RespondentUnion of India and ors.
Advocates: C.M. Chopra,; S.P. Jha,; Jagdev Singh and;
Cases ReferredIn R. K. Dalmia v. Delhi Administration
Excerpt:
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]
service - dismissal - section 21 of indian penal code, 1860 and oil india limited executives' conduct, discipline and appeal rules, 1982 - petitioner found guilty of misconduct in enquiry - order of dismissal passed - petition against such dismissal - enquiry not conducted by public servant - enquiry officer should be public servant so that in his capacity as a public servant he is not influenced by any extraneous considerations and acts within rules and regulations - respondent has no authority to appoint person who is not public servant as enquiry officer - enquiry officer not competent to hold enquiry - order of dismissal set aside. - - as well as the second respondent in order that he could accumulate more monies than that he could duly obtain otherwise. rule 23 prescribes.....
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
d.p. wadhwa, j.(1) this petition under article 226 of the constitution is directed against the order dated24 april 1989(communicatedtothe petitioner by letter dated 17 may 1989)of the oil india limited, the second respondent dismissing the petitioner from service. the petitioner also seeks to quash the order dated 25 january 1990 dismissing his appeal by the appellate authority. then the petitioner seeks consequential reliefs.(2) there are four respondents. the first respondent as the title shows, is the union of india in the ministry of petroleum; the second respondent is the oil india limited, a government company under section 617 of the companies act, through its chairman; the third and fourth respondents, respectively, are the executive director and chairman & managing director (for.....
Judgment:

D.P. Wadhwa, J.

(1) This petition under Article 226 of the Constitution is directed against the order dated24 April 1989(communicatedtothe petitioner by letter dated 17 May 1989)of the Oil India Limited, the second respondent dismissing the petitioner from service. The petitioner also seeks to quash the order dated 25 January 1990 dismissing his appeal by the appellate authority. Then the petitioner seeks consequential reliefs.

(2) There are four respondents. The first respondent as the title shows, is the Union of India in the Ministry of Petroleum; the second respondent is the Oil India Limited, a Government Company under Section 617 of the Companies Act, through its Chairman; the third and fourth respondents, respectively, are the Executive Director and Chairman & Managing Director (for short 'C.M.D. ' ) of the Oil India Limited.

(3) The petitioner was working as Assistant Financial Controller, a Grade Vi post, in Rajasthan Project of the second respondent. By memorandum dated 13 October 1987 he was informed by the General Manager, Rajasthan Project, Oil India Limited, Jodhpur, that the General Manager proposed to hold an enquiry against him under the Oil India Limited Executives' Conduct, Discipline and Appeal Rules, 1982 (for short 'the Rules'). The substance of the imputation of misconduct in respect of which the inquiry was to be held was separately given in the statement of articles of charges. The petitioner was also given statement of imputations of misconduct in respect of each article of charge and so also the documents by which the articles of charges were proposed to be sustained. The petitioner was given time to submit answer to the show cause notice giving his statement of defense and also to state whether he desired to be heard in person. There were four articles of charges framed against the petitioner. These were: (1) He remained absent from duty during varying periods in 1986 and 1987on his proposed ill health by furnishing false reasons and there being no previous approval of the General Manager; (II) When Explanationn was called for from the petitioner by the General Manager, the petitioner forged or got an endorsement forged on a certain receipt issued by the Jodhpur Hospital & Research Centre as having been referred to a specialist in Delhi for further treatment of a certain disease; (III) The petitioner submitted a demand letter dated 30 September 1985 from the Idpl Employees Cooperative Group Housing Society Limited, New Delhi, and drew a sumofRs.21,000.00 from the second respondent by manipulating or causing to be manipulated figures in the demand letter of the society whereas the correct figure was onlyRs.ll,000.00 ; and (IV) lastly, the petitioner withdrew a sum ofRs.52,050.00 from the Housing Development Finance Corporation Limited, New Delhi, as house building loan by submitting there an application dated I September 1983 whereas in his application dated 23 August 1984 to the second respondent he had stated that he would not be drawing the loan from the Housing Development Finance Corporation Limited, though he had in fact drawn the advance from both the sources, i.e., H.D.F.C. as well as the second respondent in order that he could accumulate more monies than that he could duly obtain otherwise. Respecting the articles of charge Ii and Iii it was stated that by submitting such forged or manipulated documents to the second respondent the petitioner committed misconduct in termsofRules5.4,5.17 and5.21 of theRules.and respecting article of charge Iv it was stated that by misrepresenting to the second respondent the petitioner committed misconduct in terms of Rule 5.4 of the Rules.

(4) The petitioner denied the charges. The General Manager, thereforee, appointed Mr. H.K. Nagpal, Deputy General Manager, Rajasthan Project, as Enquiry Officer to enquire in to the aforesaid articles of charge. This was by letter dated 12 December 1987 of the General Manager. Nagpal submitted his report on 16 November 1988 holding that except for a small part of Article I relating to 'furnishing false reasons of having ill health', all those charges stood proved against the petitioner. In spite of various opportunities since the petitioner did not appear before the Inquiry Officer he conducted the enquiry ex parte. The petitioner was supplied with the report of the enquiry officer and other records. He gave his reply on I March 1989. He questioned the appointment of Nagpal as Inquiry Officer and said that it is vocative of the Rules. Petitioner said that Nagpal was not the public servant and that the General Manager who was not the disciplinary authority under the Rules had no jurisdiction or power to appoint Nagpal as the Inquiry Officer. As such his contention was that the enquiry report could not be acted upon by the Chairman and Managing Director who was the disciplinary authority. The disciplinary authority rejected the contention raised by the petitioner and imposed the penalty of dismissal from service on him. The petitioner appealed and, as noted above, the appellate authority dismissed his appeal by order dated 25 January 1990.

(5) The petitioner has raised the following two points for our consideration :-

(1)Under the Rules the competent authority to impose major penalty of dismissal from service in the case of Grade Vi employee was C.M.D. Since the petitioner was Grade Vi employee, only the C.M.D. could, thereforee, either hold the enquiry himself or appoint another person for the purpose. (2) Nagpal was not a public servant and could not hold the enquiry. Though at the time of his appointment Nagpal was holding the post of Deputy General Manager and would be a public servant, but after his superannuation he could continue to hold the enquiry only if he was a regular employee' of the second respondent which in fact he ceased to be so, and, would not, thereforee, be a public servant within the meaning of the Rules.

(6) Before we consider these contentions of the petitioner it will be advantageous to refer to the Rules so far these are relevant for our purpose. Under Rule 3.1, 'employee' means a person in the employment of the undertaking other than the casual, work-. charged or contingent staff or workman as defined in the Industrial Disputes Act, 1947, but includes a person on deputation to the Company. 'Disciplinary authority', under Rule 3.6, means the authority specified in the Schedule appended to these rules and competent to impose any of the penalties specified in Rule 23. 'Public servant', under Rule 3.12, shall mean and include a person as mentioned in Section 21 of the Indian Penal Code as amended from time to time. Rule 5 defines what acts of commission and commission shall be treated as misconduct. The definition is, however, without prejudice to the generality of the term 'misconduct'. Rules 5.4,5.17 and 5.21, in so far as they are relevant for our purpose, are as under:-

5.4Furnishing false information regarding name, age, father'

name, qualification, ability or previous service or any other matter germane to the employment at the time of employment or during the course of employment. 5.17 Commission of any act which amounts to a criminal offence involving moral turpitude. 5.21 Abetment of or attempt at abetment of any act which amounts to misconduct. Rule 23 prescribes penalties and is as under :- 23.1 The following penalties may be imposed, on an employee, hereinafter provided, for misconduct committed by him or any other good and sufficient reasons. 23.1.1 Minor Penalties (a) Censure; (b) With holding of increments of pay with or without cumulative effect; (c) Withholding of promotion; (d) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Company by negligence or breach of orders. 23.1.2 Major Penalties (e) Reduction to a lower grade or post, or to a lower stage in a time scale; (f) Removal from service which shall not be disqualification for future employment; (g) Dismissal. 23.24 Explanationn: The following shall not amount to a penalty within the meaning of this rule: xx xx xx

(7) Rule 24 relates to disciplinary authority and states that disciplinary authority, as specified in the schedule, or an authority higher than it may impose any of the penalties specified in Rule 23 on any employee. If we now refer to the schedule the disciplinary authority for Grade Vi employees is General Manager for imposing minor penalties and C.M.D. for imposing major penalties.

(8) RULE25PRESCRIBESTHEPROCEDUREFORIMPOSINGMAJORPENALTIES. Rule25.1 and25.2 may be noted :- 25.14 No order imposing any of the major penalties specified in clauses 23.1.2 (e), (f) and (g) of Rule 23 shall be made except after an inquiry is held in accordance with this Rule. 25.24 Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of the imputation of misconduct or misbehavior against an employee it may itself enquire into, or appoint any public servant (hereinafter called the inquiring authority) to inquire into the truth thereof.

(9) Rules 25.3 to 25.18 prescribe the procedure for the conduct of the enquiry. No fault has been found with the procedure. Rule 26 provides for action on the inquiry report. It is as under :-

26.14The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reason to be recorded by it in writing remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 25 as far as may be. 26.24 The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. 26.34 If the Disciplinary Authority having regard to the findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 23 should be imposed on the employee it shall, not with standing anything contained in Rule 27 make an order imposing such penalty. 26.44 If the Disciplinary Authority having regard to the findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned.

(10) Rule 27 prescribes the procedure for imposing minor penalties, and is as under :- 27.14 Where it is proposed to impose any of the minor penalties specified in clauses 23.1 a to d of Rule 23, the employee concerned shall be informed in writing the imputations of misconduct or misbehavior against him and given an opportunity to submit his written statement of defense within a specified period not exceeding 15 days. The defense state- ment, if any, submitted by the employee shall be taken into consideration by the Disciplinary Authority before passing orders. 27.24 The record of the proceeding shall include: 27.2.1 a copy of the statement of imputations of misconduct or misbehavior delivered to the employee; 27.2.2 his defense statement, if any; and 27.2.3 the orders of the Disciplinary Authority together with the reasons thereforee. Nagpal, D.G.M., was to retire on 9 January 1988. He was appointed Inquiry Officer on 12 December 1987 when he had less than a month to go for his retirement on superannuation. A note was prepared on 9 December 1987 for retention of services on contract basis of Nagpal with the object of retaining his services for a period of two years. The note which is prepared by Director (Operations) and Director (Personnel) of the second respondent recorded the qualification of Nagpal and his rendering 24 years of service in the second respondent. The note further records that Nagpal's performance over the years had been assessed at commendable to good and he had been a loyal, hard working, methodical and dynamic executive with potential to take on still higher responsibilities. The note, thereforee, proposes to utilise his experience in the forthcoming Rajasthan Project. The note then points out that the second respondent was facing the problem of finding adequately qualified and experienced people in the project manage- ment and it would not be an easy task to find a replacement at that stage. Approval was, thereforee, sought to retain the services of Nagpal for a period of two years to be granted one year at atime. To this note terms and conditions on which Nagpal was to be retained were enclosed. The agreement with the second respondent was to be of one year from 10 January 1988 subject to termination by either side by giving one month's notice or one month's fee in lieu thereof. During this period Nagpal was to undertake that he. would not make his services available to any other organisation. The place of work of Nagpal was to be at Jodhpur with necessary office and telephone facilities to be extended to him to discharge his duties effectively. Nagpal was to be provided with transport facilities as per the terms of the agreement. The place of Nagpal's work could be shifted to any other place outside Jodhpur in the interest of the work of the second respondent and at second respondent's discretion. In the even of such transfer, Nagpal was to be eligible for transfer expenses (except transfer grant) as eligible to executives in Grade 'G' of the second respondent. Other terms of the agreement were to be as under -

'DURING the period of this agreement with the Company, Shri Nagpal will be entitled to the following: i) A consolidated fee ofRs.3,400.00 per month. ii) Unfurnished accommodation at 10% of the fee specified in Clause (i) above would be provided by the Company. If furniture is also provided (subject to availability), furniture lent recovery at 2-1/2% of the fee will also be payable by him. iii) Reimbursement of cost of disinfectants and preventive maintenance up to Rs. 100.00 per month would be made as applicable to the executives of the Company. iv) Car mileage reimbursement for authorised use of personal car on Company's duty will be admissible as applicable to executives of the Company. Shri Nagpal will not be eligible to use Company's transport if he opts to use this facility. v) In case Shri Nagpal chooses not to avail of transportation of personal effects and passage for himself and his spouse to home town on retire- ment from his normal service with the Company, he will be allowed to avail of this facility on completion of this agreement. vi) While traveling on Company's duty, Shri Nagpal's entitlement for halting/messing allowance and lodging etc. will be at part with Grade 'G' executives of the Company. vii) Thirty days earned leave computed at 2-1/2 days for each completed month of service and 7 days casual leave in a calendar year; nor more 3 days' casual leave will be sanctioned at any one time. viii) Shri Nagpal will not be entitled to any other allowance/benefit, whatever including terminal benefit (such as provident fund, gratuity, pension) upon completion of the agreement.'

(11) On the basis of above note another note was prepared on 24 December 1987 for the approval of Director (Personnel), C.M.D. and F.D. and concurrence was sought for proposal to engage Nagpal as Consultant (Project) w.e.f. 10 January 1988 for a period of one year with provision for extension for one more year based on actual requirement. On this the C.M.D. recorded his note as under:-

'THIS engagement should be for one year only. He will continue into his present designation as DGM.'

(12) On 31 December 1987 C.M.D. sought legal opinion if proceedings conducted by Nagpal as Inquiry Officer before retirement and continued by him beyond the date of his retirement while on contract service with the second respondent would be valid and that the conduct of enquiry proceedings by Nagpal would not be vitiated on technical grounds. While getting this opinion it was mentioned that Nagpal, presently working as Deputy General Manager had been appointed Inquiry Officer in the enquiry in question, would be retiring on 9 January 1988, and that, however, he was being appointed to by the second respondent to the same designation as Dgm on contract basis for a period of one year effective from 10 January 1988. On the following day, the legal opinion was received wherein it was mentioned if Nagpal was being appointed with the same designation and with the same salary, the mere fact that he was appointed on contract basis would not make any difference as he would continue to be in the service of the company on the same designation and as such would continue to be a public servant. The opinion, thereforee, was that there was no objection in Nagpal's conducting the enquiry even after his retirement on his re-employment on contract basis as that would be valid.

(13) Then on 5 January 1988 Nagpal was advised that it was decided to retain his services in the second respondent on contract basis and he was asked to give his agreement to the terms and conditions as narrated in the agreement sent with this letter. This agreement has not been produced before us in spite of our giving various opportunities for the purpose.

(14) Under section 21 of the Indian Penal Code, the definition of public servant, in so far as it is relevant, is as under :-

21.'Public servant'.- The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely: xx xx xx Twelfth. - Every person - (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as define din section 617of the Companies Act, 1956(1 of 1956). xx xx xx Explanationn 2. - Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

(15) Clause Nine before its amendment in the year 1964 was as under :- 'Ninth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty.'

(16) A comparison of clauses Nine and Twelve would reveal the change brought about by an amendment to Indian Penal Code . in 1964. The last para in underlined portion in the unamended clause Nine has been separated from the ninth clause and incorporated as an independent clause Twelfth (a),-and the original clause Twelfth was deleted and has been re-enacted as clause Twelfth (b) with minor modifications. It could not be disputed that the Rules are statutory in nature.

(17) It was submitted by the second respondent that when the General Manager appointed Inquiry Officer he could not foresee if the petitioner would be visited with minor penalty or a major one. This argument is against the very Rules. As we have reproduced Rule 27 above, it lays down procedure for imposing minor penalties. It has to be decided at the threshold if it is proposed to impose any of the penalties specified in rules 23.1.1 (a) to (d), and it is not that after the report of the Inquiry Officer is received that the disciplinary authority is to decide whether it proposes to impose minor or major penalties. Procedure for imposing minor penalties is different than that for imposing major penalties. Since the General Manager was not the disciplinary authority, he could not issue the memorandum in question and also appoint an Inquiry Officer. He has arrogated to himself the powers which under the Rules vest with the C.M.D. Since the appointment of Inquiry Officer itself was void ab initio, his holding disciplinary proceedings are of no effect and these could not be acted upon by the disciplinary authority in imposing the impugned punishment on the petitioner. It cannot be argued that the disciplinary authority independently applied its mind to the charges and it will not validate an order which is bad at the very start. The decision which is void ab initio could not be validated by the disciplinary authority.

(18) The next question that arises for consideration is if Nagpal was in service or pay of the second respondent as a public servant as defined in section 21 of the Indian Penal Code . A great deal of criticism has been levied by the petitioner that Nagpal who was to retire in less than a month's time was appointed Inquiry Officer to get a suitable report against the petitioner. No reasonable person could even think that enquiry of the present nature could conclude within one month's time. The petitioner submitted that the nothings which were made to continue the service of Nagpal were mere a farce to conceal the real purpose. The petitioner, however, did not question the qualification of Nagpal as a Civil Engineer, but what he objected to was that it could not be said that without Nagpal work of Rajasthan Project of the second respondent would come to stand still.or would suffer in any way. As the terms of employment of Nagpal after his superannuation would show, he was not a regular employee of the second respondent and was not holding any regular post. Terms of his re-employment show that under Rule 3.1 he would neither be a casual, work charged, or contingent staff, or workman as defined in the Industrial Dispute Act, though a person on deputation with the second respondent would be an employee. Could it be said that Nagpal was in the employment of the second respondent after superannuation and as per the terms referred to above. As earlier noted, the agreement under which Nagpal was re-employed has not been produced. When we are using the term 're-employment' it may or may not be in the sense as mentioned in Rule 3.1 of the Rules.

(19) On our direction the second respondent produced before us schedule of powers of Chairman and Managing Director delegated by the Board of Directors of the second respondent. Part A deals with the Establishment. C.M.D. has been delegated full powers regarding revision in the grades of posts within the establishment sanctioned by the Board but he has no such power in the case of the Executives. Power has also been delegated to the C.M.D. in respect of executives of certain grades regarding recruitment to fill vacant posts within the sanctioned establishment and fixation of initial pay. C.M.D. has also been delegated powers for creation of posts on approved scales of pay to cover temporary exigencies of work, and in the case of Executives he can exercise these powers for duration not exceeding six months in any single instance. Part A of the schedule also shows delegation of powers to the C.M.D: regarding fixation of pay on promotion, to make officiating/acting appointments during leave absence, grant of leave, transfer of staff, and such other matters dealing with the establishment. Under item 19 in this Part A, C.M.D. has been delegated full powers for all posts up to the Executives Grade Vii relating to 'retention of company employees after 58 years up to 60 years of age, one year at a time, subject to medical certificate of fitness'.

(20) All these we have pointed out to show that there are various categories of posts in the second respondent in its establishment. In this view of the matter, it could not be said that Nagpal was in the service of the second respondent after his superannuation and when he was re-employed. For him to be a public servant Nagpal has to be either in service or pay of the second respondent. It is not that services of Nagpal in the post which he was holding at the time of superannuation had been extended for a further period of one year and that he would be retiring only after that year. He was not holding any post after his retirement in the sanctioned strength of the second respondent and C.M.D. had also no power to create any such post. The word 'service' denotes various classes or categories of posts within it. Nagpal was holding none. It is also not the case of the second respondent that services of Nagpal were retained under item No. 19 of Part A of the schedule of powers which we have mentioned above. The case of the second respondent is that under item 57 of Part D of the schedule under the head 'Contingencies .and Miscellaneous' Nagpal was re-employed by the C.M.D. Under item 57, C.M.D. had been delegated powers 'to engage consultants/specialist for specific assignment/duration where no foreign exchange is involved'. From the record of the second respondent which have been produced before us it is difficult to see how it could be said that the case of Nagpal will fit in under Item 57. Be that as it may. it cannot be said that even if Nagpal was a consultant/specialist, he would be in the service of the second respondent in the sense used in section 21 Indian Penal Code . Nagpal as a consultant cannot be said to be on the sanctioned strength of the establishment of the second respondent. It is clear from the definition of 'employee' under rule 3.1 as well that he has to be on the strength of the establishment, and no casual, work charged or contingent staff would be covered under this definition of employee. Ms. Chopra said that Nagpal would be a contingent employee. That would not be so. The word 'contingent', as per Black's Law Dictionary, means 'possible, but not assured; doubtful or uncertain; conditioned upon the occurrence of some future event which is itself uncertain, or questionable. Synonymous with provisional'. From various nothings of the second respondent in re-employing Nagpal it cannot be said that his employment was contingent upon happen- ing of some event, e.g., completion of the Rajasthan Project. Rather re-employment of Nagpal would appear more to be for the conclusion of the inquiry against the petitioner. But that is not quite relevant. Period of superannuation of Nagpal could certainly be extended for a year or more up to the age of 60 years by the second respondent even though for the purpose of concluding the enquiry. We are only concerned with the question whether the present re-employment of Nagpal would be termed as within the service of the second respondent. Our answer is no. Then the question arises if Nagpal was in the pay of the second respondent after his-employment. The nothings show that he was to be given a fixed fee. The word 'fee' has a different connotation than 'pay'. Fee is normally paid to a consultant even though he may be working full time for his employer. In the service jurisprudence distinction between pay and fee is well understood and when the second respondent used the term 'fee' to be paid to Nagpal it was clear to it that Nagpal was not to be in the pay of the second respondent. As per Black's Law Dictionary 'fee' is 'a recompense for an official or professional service or a charge or emolument or com- pensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done.' A clear distinction has been brought out in clause Twelfth of section 21 I.P.C. when (a) a person is in service or pay of the Government or remunerated by fees or commission, and when (b) that person is in the service or pay of a corporation established under an Act or a company as defined in section 617 of the Companies Act, 1956. If a person is remunerated by fees by a corporation or a Govern- ment company that person would, thereforee, not be a public servant. We, thereforee, hold that Nagpal was not a public servant within the meaning of section 21 I.P.C. and, thereforee, could not continue to conduct enquiry against the petitioner.

(21) In Padam Sen and another v. The State of Uttar Pradesh, 0065/1960 : 1961CriLJ322 , the question was if a Local Commissioner appointed by civil court, though illegally, would nevertheless be a public servant under Explanationn 2 to section 21 I.P.C. The court said that it was necessary for the application of this Explanationn that the person concerned should be in actual possession of the pre-existing office of a public servant, and if there be no office or post, there could be no question of any person's being in actual possession thereof, and of the person concerned coming within the terms of this Explanationn. In the present cases also though Nagpal was redesignated as D.G.M. he was not in the position of D.G.M. within the service rules of the second respondent. It was just a designation given to him. Explanationn 2 to section 21 I.P.C. would, thereforee, not be applicable.

(22) In R. K. Dalmia v. Delhi Administration, (1963) 1 S.C.R. 252, a case under clause Nine of Section 21 I.P.C. earlier to its amendment in 1964, the court observed that for application of section 33 of the Insurance Act it was necessary that the Investigator, who was authorised to examine on oath any Manager, etc., of the Insurance Company, to be public servant. The court said that Annadhanam could not be said to be a public servant. He was not an employee of Government. He was a Chartered Accountant and had been directed by the order of the Central Government to investigate into the affairs of the Insurance Company and to report to the Government on the investigation made by him. Of course, he was to get some remuneration for the work entrusted with. The court held that Annadhanam would not be a public servant under section 21 I.P.C. as according to this clause every officer in the service or pay of the Government or remunerated by fees or commission for the purpose of any public duty would be a public servant. A person who is directed to investigate into the affairs of an Insurance Company under section 33 of the Insurance Act does not ipso facto become an officer. So, there is no office which he holds, and he is not employed in service and, thereforee, this definition would not apply to Annadhanam.

(23) The Rules provide that an Inquiry Officer has to be a public servant. There appears to be specific purpose for this so that in his capacity as a public servant he is not influenced by any extraneous considerations and acts within the rules and regulations.

(24) We, thus, hold that General Manager of the second respondent had no authority to appoint Nagpal as the Inquiry Officer. The disciplinary proceedings were to be con- ducted either by the Chairman and Managing Director himself or only he could appoint another person for the purpose and that person had to be a public servant. Nagpal ceased to be a public servant after he superannuated on 9 January 1988 and he was, thereforee, incompetent to continue to hold enquiry.

(25) The petition, thereforee, succeeds. The impugned orders of dismissal of the petitioner are set aside. The petitioner will be entitled to all the consequential benefits.

(26) This judgment will, however, not bar the second respondent from taking disciple nary proceedings afresh against the petitioner as per the Rules. There will be no order as to costs. Rule is made absolute.