LPA 313/2024 & LPA 1045/2024 Page 1 of 52

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 16.01.2026

% Judgment delivered on: 22.01.2026

+ LPA 313/2024

PARVEEN KUMAR .....Appellant

Through: Appellant in person.

versus

EXPORT INSPECTION COUNCIL & ORS. .....Respondents

Through: Mr. L.R. Khatana, Adv. for R-1 to R-

4.

Mr. Sandeeep Mahapatra, CGSC with

Ms. Mrinmayee Sahu and Mr.

Tribhuvan, Advs. for R-3.

Ms. Radhika Bishwajit Dubey, CGSC

with Ms. Gurleen Kaur Waraich,

Mr.Kritarth Upadhyay, Mr. Saksham

Sharma and Mr. Mathy V Kutty,

Advs. for R-5/UOI.

+ LPA 1045/2024 & CM APPL. 60976/2024

EXPORT INSPECTION COUNCIL & ORS. .....Appellants

Through: Mr. L.R. Khatana, Adv.

versus

PARVEEN KUMAR & ORS. .....Respondents

Through: Respondent no.1 in person.

Mr. Sandeep Kumar Mahapatra,

CGSC with Ms. Mrinmayee Sahu and

Mr.Tribhuvan, Advs. for UOI.

LPA 313/2024 & LPA 1045/2024 Page 2 of 52

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE TEJAS KARIA

J U D G M E N T

DEVENDRA KUMAR UPADHYAYA, C.J.

1.Since these two Letter Patent Appeals challenge the same judgment

and order dated 06.03.2024 passed by learned Single Judge, whereby the

writ petition filed by the appellant in LPA 313/2024, namely Praveen Kumar

has partly been allowed, with the consent of the parties the appeals were

heard together and are being decided by the common judgment and order

which follows:

2.For convenience, Praveen Kumar, the appellant in LPA 313/2024 shall

be referred to as the “petitioner” and the Export Inspection Council, the

appellant in LPA 1045/2024 shall be referred to as the “respondent” in this

judgment.

FACTS

3.The petitioner, at the relevant point of time, was working as Technical

Officer with the respondent, which is a statutory body created under Section

3 of the Export (Quality Control and Inspection) Act 1963. In respect of

certain charges disciplinary proceedings were instituted against the petitioner

and accordingly, a charge sheet dated 24.03.2014/27.03.2014 was served

upon him. The charge sheet contained three articles of charge.

4.Article I of the charge contained an allegation that the petitioner was

directed on 04.02.2014 to proceed on tour to Sub-Office, Kanpur of the

Agency and to hold the said charge w.e.f 06.02.2014. The petitioner was

LPA 313/2024 & LPA 1045/2024 Page 3 of 52

charged with disobedience of this order dated 04.02.2014. It was also

alleged in respect of this charge that he did not proceed to Kanpur despite the

reminder dated 26.02.2024, by making representations and, thus, indulged in

dilatory tactics and ultimately did not proceed to Kanpur on tour. According

to the charge sheet, such an act amounted to disobedience on the part of the

petitioner, in violation of Rule 3(1)(ii)(iii) of the Central Civil Services

(Conduct) Rules, 1964, which also amounted to grave misconduct on his

part.

5.As per Article II, the petitioner instead of proceeding on tour to

Kanpur pursuant to the order dated 04.02.2014, filed a tour programme

which was vague and could not be considered for processing. The petitioner

was informed, vide letter dated 06.02.2014, that there was no provision for

providing train tickets for a touring officer and, as such, he was directed that

he should submit a proper tour programme and proceed to Sub Office

Kanpur, failing which the matter would be viewed seriously. Such an act, as

per Article II of the charge sheet, was treated to be willful disobedience on

the part of the petitioner, amounting to grave misconduct and violation of

Rule 3(1)(ii)(iii) of the CCS (Conduct) Rules 1964.

6.Article III of the charge stated that the petitioner not only disobeyed

the order dated 04.02.2014 to proceed to Kanpur rather, he vide his letters

dated 11.02.2014 and 26.02.2014, raised certain issues which were not

germane and in the said letters he used impolite, indecent, derogatory and

irresponsible language in respect of superior officers levelling false and

baseless allegations. This Article of Charges also stated that false, frivolous

and baseless allegations were made by the petitioner without any basis or

evidence, which was an act of unbecoming of an employee of the respondent

LPA 313/2024 & LPA 1045/2024 Page 4 of 52

and such an act of willful use of impolite, indecent, derogatory and

irresponsible language in respect of superior officers was in violation of Rule

3(1)(ii)(iii) of the CCS (Conduct) Rules 1964, which amounted to grave

misconduct on his part.

7.The petitioner appears to have initially resisted the charge sheet and

instituted a writ petition being W.P.(C) No. 2458/2014 before this Court with

the prayer to quash the charge sheet dated 27.03.2014 and also to quash the

order dated 04.02.2014. The petitioner had also prayed in the said writ

petition that suitable directions be issued for departmental action against the

alleged misconduct of certain officers of the respondent and further, that he

be awarded exemplary damages on account of the alleged suffering and pain

as an exemplary deterrent.

8.The writ petition, however, was dismissed as withdrawn vide order

dated 22.04.2014, with the direction to the respondent to grant further two

weeks’ time to file reply to the charge sheet. It was further directed that the

decision in respect of the request of supplying documents made by the

petitioner, shall also be taken within five days.

9.This Court, thus, did not interfere with the charge sheet dated

27.03.2014.

10.One Rajvinder Singh, Deputy Director working with the respondent

was appointed as Inquiring Authority to conduct the inquiry against the

petitioner vide order dated 23.05.2014, however, since the said Inquiring

Authority expressed his inability to hold the inquiry, one Mr. Inder Singh,

retired Deputy Secretary/Commissioner for departmental enquiries, Central

LPA 313/2024 & LPA 1045/2024 Page 5 of 52

Vigilance Commission, was appointed as the Inquiring Authority to inquire

into the charges against the petitioner.

11.The petitioner raised certain objections against the appointment of a

retired public servant as the Inquiring Authority as, according to the

petitioner, it would be in contravention of Rule 11(2) of Export Inspection,

Agency Employees (Classification, Control and Appeal) Rules, 1978

(hereinafter referred to as the ‘EIA Rules’).

12.The objection raised by the petitioner in respect of appointment of

Mr. Inder Singh as inquiring authority was to the effect that since the said

public servant had retired, he is not a public servant in terms of Rule 11(2) of

the EIA Rules. According to the petitioner, it is only a public servant who

can be appointed to inquire into the charge sheet, and the public servant

ought to be a serving public servant and not a retired one. The said objection

was rejected and the inquiry accordingly proceeded, which was concluded by

the said Inquiring Authority, who prepared the Inquiry Report dated

07.09.2015.

13.The Inquiring Authority forwarded the Inquiry Report to the

Disciplinary Authority. The Disciplinary Authority tentatively agreed with

the findings of the Inquiry Authority. The Inquiry Report dated 07.09.2015

was served upon the petitioner vide letter dated 10.09.2015, giving him

opportunity to submit his comments/representation, if any, on the findings of

the Inquiring Authority within 15 days. It was stipulated in the said letter

dated 10.09.2015 that in case the petitioner fails to submit his comments/

representation within the specified period, the disciplinary authority will

finalize further action accordingly.

LPA 313/2024 & LPA 1045/2024 Page 6 of 52

14.From a perusal of the records available before us, it appears that the

petitioner submitted his representation dated 09.10.2015 to the findings

recorded by the Inquiring Authority. The Inquiry Report along with the

representation of the petitioner against the same was considered by the

disciplinary authority who passed the order of punishment and inflicted the

penalty of reduction in rank upon the petitioner from the post of Technical

Officer to the lower rank of Junior Scientific Assistant vide the order dated

17.02.2016. It was further stipulated in the punishment order dated

17.02.2016 that the penalty of reduction in rank would operate until the

petitioner is found fit by the competent authority to be restored to the higher

post of Technical Officer.

15.The said punishment order dated 17.02.2016 was put to challenge by

the petitioner by way of filing a statutory appeal under Rule 20 of the EIA

Rules on 22/23.03.2016. The appellate authority, however, vide order dated

20.02.2017, did not find any cogent ground to interfere with the order passed

by the disciplinary authority and, therefore, dismissed the appeal. It is this

order of punishment dated 20.02.2016 and the order passed by the appellate

authority, dated 20.02.2017 which were challenged by the petitioner by

instituting the writ petition being W.P.(C) No. 3940/2017, which has partly

been allowed by the learned Single Judge vide order dated 06.03.2024 which

is under challenge in these two appeals, one filed by the petitioner

(employee) and the other filed by the respondent (employer).

16.The learned Single Judge, while passing the impugned judgment and

order has found the appointment of a retired officer as the Inquiring

Authority to be in contravention of Rule 11(2) of the EIA Rules, however,

regarding the inquiry proceedings, being hit by the vice or bias of de facto

LPA 313/2024 & LPA 1045/2024 Page 7 of 52

prejudice on account of a retired officer being appointed as the inquiring

authority, the learned Single Judge has clearly recorded a finding that the

same were not clear from the records.

17.The finding recorded by learned Single Judge in the impugned

judgment and order regarding the appointment of the Inquiring Authority

being in violation of Rule 11(2) of the EIA Rules can be found in paragraph

44 of the judgment, which is extracted herein below:

“44. In view of the above, this Court has come to the irresistible

conclusion that the Inquiry Officer who was appointed, admittedly being a

retired officer of the respondent, did not fulfill the criteria of a 'public

servant' and as such, the said appointment is violative of Rule11 (2) of the

EIA Rules.”

18.However, as observed above, learned Single Judge has also recorded a

finding that it is not clear from the records that any real prejudice was caused

to the petitioner on account of appointment of Inquiring Authority, though,

though in violation of Rule 11(2) of the EIA Rules and further that it is also

not clear from the records that there was an element of bias on the part of the

Inquiring Authority. The said findings can be found in paragraph 52 and 53

of the impugned judgment, which are extracted herein below:

“52. This Court has considered the aforesaid submission of learned counsel for

the respondent as also the petitioner in the context of defacto prejudice caused to

the petitioner. On an overall consideration of the letter and perusal of the inquiry

proceedings placed before this Court, it would be difficult to conclusively render

a finding as to whether any real prejudice indicting the inquiry proceedings itself

has been established before this Court. No doubt that the petitioner did protest

against the appointment of the Inquiry Officer; the bias of the Inquiry Officer; as

also some issues regarding the recording of statement of the witnesses, however

the bias or the de facto prejudice as such is not clear from the records.

53. In view of the above, this Court holds that there has been a clear violation of

Rule 11 (2) as also 11(4) of EIA Rules, 1978. This opinion is also fortified by the

judgment of the Supreme Court as referred to above. While holding that there has

been a violation of Rule11 (2) in terms of appointment of retired officer as an

Inquiry Officer, however since de facto prejudice has not been established clearly

in terms of the aforesaid observations and also in line with the judgment of the

Supreme Court in Alok Kumar (Supra), this Court is of the considered opinion

that the inquiry proceedings till the stage of Inquiry Report are not vitiated.”

LPA 313/2024 & LPA 1045/2024 Page 8 of 52

19.In the impugned judgment, learned Single Judge has also found that

during the inquiry proceedings, Rule 11(4) of the EIA Rules was also

violated in as much as that no opportunity of personal hearing was afforded

to the petitioner which violated Rule 11(4) of the EIA Rules. According to

the learned Single Judge, the Disciplinary Authority is mandated in terms of

Rule 11(4) of EIA Rules to afford the charged officer an opportunity to

tender a written statement of defence against the article of charges. He has

further concluded that though in the written statement of defence submitted

by the petitioner vide his letter dated 12.05.2014, he had specifically sought

an opportunity of personal hearing, however the respondent did not grant any

opportunity despite the said prayer, which according to learned Single Judge

amounted to violation of Rule 11(4) of the EIA Rules. Consequently,

learned Single Judge quashed the order of punishment dated 17.02.2016 as

also the order passed by the Appellate Authority, dated 20.02.2017 and

directed the respondent to afford a proper and justifiable opportunity to the

petitioner of personal hearing before the Disciplinary Authority at the stage

of consideration of written statement of defence.

20.The learned Single Judge has also held that the petitioner would be

entitled to subsistence allowance as admissible in accordance with EIA

Rules on the post that the petitioner was holding at the time of initiation of

the disciplinary proceeding, from the date from which the petitioner had

sought personal hearing till the date he was reverted back to the post of

Technical Officer or was finally dismissed from service, whichever is earlier.

The learned Single Judge has, thus, remitted the matter to the Disciplinary

Authority for decision afresh. The operative portion of the impugned

judgment and order is embodied in paragraph 54 and 55, which are extracted

herein below:

LPA 313/2024 & LPA 1045/2024 Page 9 of 52

“54. The upshot of the above conclusion is that the impugned orders of the

Disciplinary Authority dated 17.02.2016 and the Appellate Authority 20.02.2017

are quashed and set aside. The respondent is directed to afford a proper and

justifiable opportunity to the petitioner of personal hearing before the

Disciplinary Authority at the stage of consideration of the Statement of Defence.

Consequently, the petitioner would be entitled to the subsistence allowance as

admissible in accordance with the EIA Rules, 1978 at the post that the petitioner

was holding at the time of initiation of the disciplinary proceedings, from the date

when the petitioner had sought personal hearing till the date when he was

reverted back to the post of Technical Officer or was finally dismissed from

service, whichever was earlier.

55. Considering the fact that it has been held above that there has been a direct

violation of Rule 11 (2) and Rule 11 (4) of the EIA Rules, 1978 and the matter is

remitted back to the Disciplinary Authority, the facts as referred to by the learned

counsel for the parties need not be examined or appreciated at this stage lest the

same cause any prejudice to either of the parties. As such, the issues on facts are

left open for the consideration of the Disciplinary Authority.”

SUBMISSION OF THE PETITIONER

21.The petitioner, who appears in person, has impeached the impugned

judgment and order passed by the learned Single Judge by submitting that

though learned Single Judge has remitted the matter back to the Disciplinary

Authority, however since it was a case of no evidence on the basis of which

charges have been found to be proved, the matter ought not have been

remitted to the Disciplinary Authority.

22.His further submission is that since it is a case of no evidence, the

relief as prayed for by the petitioner in the writ petition ought to have been

granted in totality instead of remanding the matter back to the Disciplinary

Authority. In support of his submission, the petitioner has relied upon a

judgment of Hon’ble Supreme Court in Bhupenderpal Singh Gill v. Sate of

Punjab & Ors.,2025 INSC 83. He has submitted that in the said case, the

Hon’ble Supreme Court found that since there was no legal evidence on the

basis of which the charged employee therein could be held guilty of the

charges, the order of penalty was quashed and it was held that the charged

LPA 313/2024 & LPA 1045/2024 Page 10 of 52

employee shall be entitled to full pension without any cut. He has laid

emphasis on paragraph 33 and 41 of the said judgment, which are extracted

as under:

“33. Certain generic principles governing interference with orders of

punishment that are passed following inquiry proceedings have evolved

over a period of time. Law is well settled that an administrative order

punishing a delinquent employee is not ordinarily subject tocorrection in

judicial review because the disciplinary authority is the sole judge of facts.

If there is some legal evidence on which the findings can be based, then

adequacy or even reliability of that evidence is not a matter for canvassing

before the high court in a writ petition filed under Article 226 of the

Constitution. However, should on consideration of the materials on record,

the court be satisfied that there has been a violation of the principles of

natural justice, or that the inquiry proceedings have been conducted

contrary to statutory regulations prescribing the mode of such inquiry, or

that the ultimate decision of the disciplinary authority is vitiated by

considerations extraneous to the evidence and merits of the case, or that

the conclusion of the disciplinary authority is ex facie arbitrary or

capricious, so much so that no reasonable person could have arrived at

such conclusion, or there is any other ground very similar to the above, the

high court may in the exercise of its discretion interfere to set things right.

After all, public servants to whom Article 311 of the Constitution apply do

enjoy certain procedural safeguards, enforcement of which by the high

court can legitimately be urged by such servants depending upon the

extent of breach that is manifestly demonstrated.”

“41. We have extracted verbatim (supra) the reasons assigned by the

Division Bench in support of the ultimate order it passed modifying the

penalty. It is not in doubt that in a rare and appropriate case, to shorten

litigation and for exceptional reasons to be recorded in writing, a high

court may substitute the punishment imposed on the delinquent employee.

However, what has overwhelmed our ability of comprehension is that the

Division Bench despite having returned clear findings in favour of the

appellant adopted a hands-off approach by leaving the findings with

regard to the charges untouched. In our considered opinion, the tenor of

the impugned order does suggest that the Division Bench found the

appellant to have been wronged and regard being had thereto, the

Division Bench ought to have set things right by interfering with the

findings and granting full relief that we intend to grant to the appellant.

The impugned order, insofar as it declines to interfere with the findings on

the charges, being clearly indefensible, we proceed to grant relief to the

appellant as indicated hereafter.”

LPA 313/2024 & LPA 1045/2024 Page 11 of 52

23.As to the violation of Rule 11(2) of the EIA Rules, the petitioner has

placed reliance on Ravi Malik v. National Film Development Corpn. Ltd.,

(2004) 13 SCC 427, wherein interpreting a rule which is similarly worded as

Rule 11(2) of the EIA Rules, Hon’ble Supreme Court has held that the

person to be appointed as an Inquiring Authority must be a serving public

servant and not a retired public servant. He has further stated that Ravi

Malik (supra)lays down the correct law, wherein it has been held that a

retired officer would not come within the definition of ‘public servant’ for

the purposes of the rule under which the disciplinary proceedings were held

in that case. Paragraph 7 of the judgment in Ravi Malik (supra)is extracted

herein below:

“7. In this case the Central Vigilance Commission had issued instructions

permitting retired officers to be appointed as inquiry officers. The words

“public servant” used in Rule 23(b) mean exactly what they say, namely,

that the person appointed as an inquiry officer must be a servant of the

public and not a person who was a servant of the public. Therefore, a

retired officer would not come within the definition of “public servant” for

the purpose of Rule 23(b). Rule 7 cannot be interpreted to mean that the

direction issued by the Central Vigilance Commission would override any

interpretation which a court may put, as a matter of law, on it.”

24.The petitioner, while defending the finding recorded by learned Single

Judge in the impugned judgment and order that there has been violation of

Rule 11(4) of the EIA Rules, has relied upon Punjab National Bank v. Kunj

Behari Misra, (1998) 7 SCC 84 and Yoginath D. Bagde v. State of

Maharashtra, (1999) 7 SCC 739. He has stated that the disciplinary

proceedings are vitiated on account of non-observance of Rule 11(4) of the

EIA Rules and such submission is supported by the principle enunciated by

Hon’ble Supreme Court in Kunj Behari Mishra (supra) and Yoginath D.

Bagde (supra).

LPA 313/2024 & LPA 1045/2024 Page 12 of 52

25.On the aforesaid counts, it has been prayed by the petitioner that the

part of the judgment and order passed by learned Single Judge, whereby the

matter has been remitted to the Disciplinary Authority to take a decision

afresh is liable to be set aside and the petitioner is entitled to be granted

complete relief as was prayed for by him in the writ petition.

ARGUMENTS ON BEHALF OF THE RESPONDENT

26.Sh. L.R. Khatana, learned counsel representing the respondent –

Export Inspection Council, has argued that the findings recorded by learned

Single Judge in respect of violation of Rule 11(2) of the EIA Rules in the

facts of the instant case are not tenable in as much as that Hon’ble Supreme

Court in Union of India v. Alok Kumar, (2010) 5 SCC 349,while referring

to Ravi Malik (supra),has held that even a retired public servant can be

appointed as Inquiring Authority. He has further stated that Alok Kumar

(supra)has subsequently been quoted with approval by Hon’ble Supreme

Court in Union of India v. P.C. Ramakrishnayya, (2010) 8 SCC 644,

wherein as well it has been held that a retired public servant can be

appointed as Inquiring Authority. Reliance has also been placed by the

learned counsel representing the respondent that the law laid down in Alok

Kumar (supra)and P.C. Ramakrishnayya (supra) has been referred to and

relied upon in a latest judgment by Hon’ble Supreme Court in Union of

India v. Jagdish Chandra Sethy, 2023 SCC OnLine SC 1932 and therefore,

the findings recorded by learned Single Judge in the impugned judgment and

order in respect of there being violation of Rule 11(2) of the EIA Rules, is

liable to be set aside in view of the aforesaid pronouncements.

27.He has further submitted that the argument made by the petitioner that

it was a case of no evidence, is not tenable as is borne out from the records.

LPA 313/2024 & LPA 1045/2024 Page 13 of 52

In this respect, it has been stated by learned counsel for the respondent that

the Inquiring Authority as also the Disciplinary Authority have considered

the evidence available on record of the disciplinary proceedings and have

come to the conclusion that all the three article of charges leveled against the

petitioner were proved. His submission is that from a perusal of the inquiry

report submitted by the Inquiring Authority and the punishment order passed

by the Disciplinary Authority, it is abundantly clear that the Inquiring

Authority as well as the Disciplinary Authority have drawn their conclusion

on the basis of evidence available and after discussing the evidence and

analyzing the same, the findings regarding guilt having been proved against

the petitioner has been recorded by these authorities, and therefore, it is not a

case of no evidence at all. His submission, thus, is that such an argument is

absolutely misconceived in the facts of the case. He has also stated that the

petitioner appears to be confused between a case based on no evidence and a

case based on misappreciation or misconstruction of evidence. His

submission is, that so far as the scope of judicial review in respect of an

order of penalty in disciplinary matters against employee is concerned, the

law is very clear, according to which this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India, would not interfere so far as

the finding of facts are concerned. He has stated that interference in such

matters is permissible and possible only if any legal flaw in the departmental

proceedings or violation of any statutory rule prescribing procedure for

conducting the departmental proceedings is established, in absence whereof

on finding of facts recorded by the Disciplinary Authority, the order of

penalty cannot be interfered with except in exceptional cases where some

perversity in the findings can be established. It is his further submission that

once the learned Single Judge came to the conclusion even on facts that there

LPA 313/2024 & LPA 1045/2024 Page 14 of 52

was no legal flaw in the order passed by the Disciplinary Authority,

remitting the matter back to him for the alleged violation of Rule 11(4) of the

EIA Rules, is unwarranted in law.

28.Sh. Khatana, arguing further, stated that the disciplinary proceedings

against the petitioner were conducted strictly in accordance with the

requirement in the EIA Rules, which are statutory in nature and no violation

had occurred during the course of inquiry including that of Rule 11(4) of the

EIA Rules for the reason that at every required step, the petitioner was given

adequate opportunity in the form it is available to him under EIA Rules.

Therefore, his submission is that the finding recorded by learned Single

Judge regarding violation of Rule 11(4) of the EIA Rules is liable to be

interfered with by this Court in this appeal.

29.He has also drawn our attention to the fact, as is borne out from a

perusal of the records available even on these appeals, that as per the

requirements of EIA Rules, the petitioner was given opportunity to submit

his comments/representation to the inquiry report submitted by the Inquiring

Authority, which is the only requirement post submission of the inquiry

report and therefore, there is no violation of Rule 11(4) of the EIA Rules. It

is also stated by Sh. Khatana that after submission of the inquiry report by

the Inquiring Authority, the petitioner was not only given an opportunity to

submit his comments/representation to the inquiry report but in fact he

availed this opportunity and submitted his representation objecting to the

findings recorded by the Inquiring Authority in the inquiry report, which

amounted to sufficient compliance of the relevant rules.

30.In respect of the submission regarding permissibility of appointment

of retired public servant as Inquiring Authority under Rule 11(2) of the EIA

LPA 313/2024 & LPA 1045/2024 Page 15 of 52

Rules, it has been argued on behalf of the respondent that the law in this

regard is no more res integra. He further stated that the judgments in the

case of Jagdish Chandra Sethy (supra), Alok Kumar (supra) and P.C.

Ramakrishnayya (supra) make the legal position clear in this respect. He

has also argued that Alok Kumar (supra)considers the law laid down in

Ravi Malik (supra)and thereafter holds that for the purpose of appointment

of Inquiring Authority, the Disciplinary Authority can entrust the inquiry to a

retired public servant as well for the reason that such a retired public servant

is paid remuneration for the same. To buttress his submission that public

servant will include a retired public servant, he has referred to the definition

of the expression ‘public servant’ occurring in Section 21 of the Indian Penal

Code, 1860 (hereinafter referred to as the “IPC”), which is extracted here

under:

“21. “Public servant”.—The words “public servant” denote a person

falling under any of the descriptions hereinafter following, namely:—

[

* * * * *]

Second.— Every Commissioned Officer in the Military, [Naval or Air]

Forces[ [*** of India];

[Third.— Every Judge including any person empowered by law to

discharge, whether by himself or as a member of any body of

persons, any adjudicatory functions;]

Fourth.— Every officer of a Court of Justice [(including a liquidator,

receiver or commissioner)] whose duty it is, as such officer, to

investigate or report on any matter of law or fact, or to make,

authenticate, or keep any document, or to take charge or

dispose of any property, or to execute any judicial process, or

to administer any oath, or to interpret, or to preserve order in

the Court, and every person specially authorized by a Court of

Justice to perform any of such duties;

Fifth.— Every juryman, assessor, or member of a panchayat assisting a

Court of Justice or public servant;

Sixth.— Every arbitrator or other person to whom any cause or matter

has been referred for decision or report by any Court of

Justice, or by any other competent public authority;

Seventh.— Every person who holds any office by virtue of which he is

empowered to place or keep any person in confinement;

LPA 313/2024 & LPA 1045/2024 Page 16 of 52

Eighth.— Every officer of [the Government] whose duty it is, as such

officer, to prevent offences, to give information of offences, to

bring offenders to justice, or to protect the public health, safety

or convenience;

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]

[

***];

Tenth.— Every officer whose duty it is, as such officer, to take, receive,

keep or expend any property, to make any survey or assessment

or to levy any rate or tax for any secular common purpose of

any village, town or district, or to make, authenticate or keep

any document for the ascertaining of the rights of the people of

any village, town or district;

[Eleventh.— Every person who holds any office in virtue of which he is

empowered to prepare, publish, maintain or revise an electoral

roll or to conduct an election or part of an election;]

[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 defined in section 617 of the

Companies Act, 1956 (1 of 1956).]”

31.On the aforesaid counts, it has been prayed on behalf of the

respondent that the impugned judgment passed by learned Single Judge is

liable to be set aside in its entirety and the appeal filed by the respondent

deserves to be allowed.

ISSUES

32.On the basis of the material available on record as also based on the

competing submissions made by the learned counsel for the parties, the

following issues emerge for our consideration and adjudication in this case:

LPA 313/2024 & LPA 1045/2024 Page 17 of 52

a.Whether it is legally permissible for a Disciplinary Authority to

appoint a retired public servant as Inquiring Authority under

Rule 11(2) of the Export Inspection Agency Employees

(Classification, Control and Appeal) Rules, 1978; and

b.As to whether in the facts of the instant case there has been any

violation of Rule 11(4) of the said Rules, which warranted the

matter to be remitted to the Disciplinary Authority for decision

afresh from the stage the disciplinary proceedings have been

found vitiated by learned Single Judge in the impugned

judgment and order.

ANALYSIS & CONCLUSION

ISSUE (a)

33. For appropriately deciding this issue, the relevant rules for

appointment of Inquiring Authority under Central Civil Services

(Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as

the “CCS (CCA) Rules”), which is applicable to the central government

employees, such rule occurring in the Railway Servants (Discipline and

Appeal) Rules, 1968, which is applicable to the railway servants and the rule

governing appointment of Inquiring Authority under the EIA Rules, which is

applicable in the instant case, need to be extracted which are as under:

a.Rule 14(2) of the CCS (CCA) Rules reads thus:

“PART VI – PROCEDURE FOR IMPOSING PENALTIES

14. Procedure for imposing major penalties

(1)********

(2) Whenever the disciplinary authority is of the opinion that there are

grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against a Government servant, it may itself inquire into, or

appoint under this rule or under the provisions of the Public Servants

LPA 313/2024 & LPA 1045/2024 Page 18 of 52

(Inquiries) Act, 1850, as the case may be, an authority to inquire into the

truth thereof.”

b.Rule 9(2) of Railway Servants (Discipline and Appeal) Rules, 1968 is

as under:

“9. Procedure for imposing major penalties.

(1) ********

(2) Whenever the disciplinary authority is of the opinion that there are

grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against a railway 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, [a Board of Inquiry or other

authority] to inquire into the truth thereof.”

c.Rule 11(2) of EIA Rules is as under:

“Part-VI

PROCEDURE FOR IMPOSING PENALTIES

11.(1) ********

(2) Whenever the disciplinary authority is of opinion that there are

grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against Agency employee, it may itself inquire or appoint

under this rule [a public servant**] to inquire into the truth thereof.”

34.Apart from the above, Rule 23(b) of the Service Rules and

Regulations, 1982 which regulates the appointment of Inquiring Authority in

case of employees of National Film Development Corporation Limited

(hereinafter referred to as the “NFDCL”) which has been discussed in Ravi

Malik (supra) also needs to be noted, which reads as under:-

“23. (b) Whenever the disciplinary authority is of the opinion that there

are grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against an employee, it may itself enquire into, or appoint

any public servant, hereinafter called the inquiring authority to inquire the

truth thereof.”

35.If we compare the aforesaid rules regulating the appointment of

Inquiring Authority in respect of employees of various organizations namely

LPA 313/2024 & LPA 1045/2024 Page 19 of 52

the Government of India, the Railways, NFDCL and Export Inspection

Council, what we find is that Rule 14(2) of the CCS (CCA) Rules and Rule

9(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 are

similarly worded, whereas Rule 23(b) applicable in case of employees of

NFDCL and Rule 11(2) of the EIA Rules applicable in the instant case, are

couched in similar language.

36.Ravi Malik (supra), on which the petitioner has heavily relied, was a

case relating to an employee of NFDCL where the expression ‘public

servant’ occurring in Rule 23(b) was interpreted to mean that a public

servant eligible to be appointed as an Inquiring Authority should be a serving

public servant and not a retired public servant. Hon’ble Supreme Court

quoting Rule 23(b) in paragraph 2 of Ravi Malik (supra) has arrived at such

a conclusion in para 7 of the report, which is extracted herein below:

“7. In this case the Central Vigilance Commission had issued instructions

permitting retired officers to be appointed as inquiry officers. The words

“public servant” used in Rule 23(b) mean exactly what they say, namely,

that the person appointed as an inquiry officer must be a servant of the

public and not a person who was a servant of the public. Therefore, a

retired officer would not come within the definition of “public servant” for

the purpose of Rule 23(b). Rule 7 cannot be interpreted to mean that the

direction issued by the Central Vigilance Commission would override any

interpretation which a court may put, as a matter of law, on it.”

37.In Alok Kumar (supra) which was a case of a railway employee,

Hon’ble Supreme Court has held that the expression ‘other authority’

occurring in Rule 9(2) of the relevant rules will encompass in its fold a

retired public servant as well. The judgment rendered by Hon’ble Supreme

Court in Ravi Malik (supra) has been taken note of in Alok Kumar (supra).

However, it has been observed that Ravi Malik (supra) was of no assistance

in Alok Kumar (supra) for two reasons, firstly, that rule falling for

consideration before the Supreme Court in Alok Kumar (supra) was

LPA 313/2024 & LPA 1045/2024 Page 20 of 52

different than the Rule which was discussed in Ravi Malik (supra) and

secondly, in Ravi Malik (supra), Hon’ble Supreme Court was concerned

with the expression ‘public servant’ appearing in Rule 23(b) of the Rules

relating to employees of NFDCL and it is in that context that the Court

expressed the view that ‘public servant’ should be understood in its common

parlance and a retired officer would not fall within the meaning of ‘public

servant’, for the reason that on account of retirement he loses the

characteristic of being a ‘public servant’. In Alok Kumar (supra),it was

further observed that the expression occurring in Rule 23(b) which was the

subject matter of discussion in Ravi Malik (supra) was not the same as in the

rule which was applicable to the charged employee in Alok Kumar (supra)

where a very different expressioni.e. ‘other authority’ has been used.

Hon’ble Supreme Court, thus, opined that absence of the words ‘public

servant’ was conspicuous by its absence in the Rules with which Alok

Kumar (supra) was concerned. The relevant findings recorded in this regard

in Alok Kumar (supra) can be found in paragraph 45 of the said judgment,

which is extracted herein below:

“45. Reliance placed by the respondents upon the judgment of this Court

in Ravi Malik [(2004) 13 SCC 427 : 2006 SCC (L&S) 882] is hardly of any

assistance to them. Firstly, the facts and the rules falling for consideration

before this Court in that case were entirely different. Secondly, the Court

was concerned with the expression “public servant” appearing in Rule

23(b) of the Service Rules and Regulations, 1982 of the National Film

Development Corporation. The Court expressed the view that “public

servant” should be understood in its common parlance and a retired

officer would not fall within the meaning of “public servant”, as by virtue

of his retirement he loses the characteristics of being a public servant.

That is not the expression with which we are concerned in the present

case. Rule 9(2) as well as Section 3 of the Act have used a very different

expression i.e. “other authority” and “person/persons”. In other words,

the absence of the words “public servant” of the Government are

conspicuous by their very absence. Thus, both these expressions, even as

per the dictum of the Court should be interpreted as understood in the

common parlance.”

LPA 313/2024 & LPA 1045/2024 Page 21 of 52

38.P.C. Ramakrishnayya (supra) was also concerned with railway

servant rules, where the language occurring in Rule 14(2) of the CCS (CCA)

Rules and Railway Servants (Discipline and Appeal) Rules, 1968 was found

to be akin to each other and it is in this background that Alok Kumar (supra)

was followed and it was held that in case of railway servants a retired public

servant can also be appointed as Inquiring Authority. P.C. Ramakrishnayya

(supra) also discusses Ravi Malik (supra) and relies upon the finding

recorded in paragraph 45 of the judgment in Alok Kumar (supra). It is also

to be noted that Jagdish Chandra Sethy (supra) has also relied upon Alok

Kumar (supra) while considering Ravi Malik (supra). Extracting paragraph

45 of the report in Alok Kumar (supra), it has been held inJagdish

Chandra Sethy (supra),who was an employee of the Central Government,

that a retired public servant could be appointed as an Inquiring Authority. It

is, thus, clear that Alok Kumar (supra) and P.C. Ramakrishnayya (supra)

were the cases where Hon’ble Supreme Court was concerned with

disciplinary action against the railway employees whereas in Jagdish

Chandra Sethy (supra) the Court was concerned with the disciplinary action

against a Central Government servant and, therefore, in these judgments the

arguments based on Ravi Malik (supra) which was a case concerning an

employee of NFDCL was not accepted.

39.Admittedly, the Rule discussed in Ravi Malik (supra) is akin to the

Rule in the present case, however, further reasoning given by Hon’ble

Supreme Court in Alok Kumar (supra) can be taken aid of, in our considered

opinion, for arriving at a correct conclusion as to whether even in the instant

case where the language of the Rule is slightly differently worded as

compared to the Rules relating to railway servants or central government

servants, appointment of retired government servant as Inquiring Authority

LPA 313/2024 & LPA 1045/2024 Page 22 of 52

is permissible or not. What we find in Alok Kumar (supra) is that Hon’ble

Supreme Court has discussed the law relating to appointment of Inquiring

Authority which has been in vogue since the British regime. Hon’ble

Supreme Court discusses the provision of Section 3 of the Public Servants

(Inquiries) Act, 1850 which reads 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.”

40.Section 3 of the Public Servants (Inquiries) Act 1850 as quoted above

provides that inquiry may be conducted either by ‘Court’, ‘Board’ or ‘other

authority’ or even by ‘any other person or persons to be appointed by the

Government, Commissioners for the purpose’.

41.Alok Kumar (supra) examined the ambit, scope and ramification of

Railway Servants (Discipline and Appeal) Rules, 1968 and returned a

finding that the said Rules clearly show that there is a discretion vested in the

Disciplinary Authority enabling itself to hold an inquiry itself or get the truth

of imputation inquired by any ‘other authority’ in terms of the Rules.

42.Alok Kumar (supra) further lays down that the expression ‘other

authority’ under the said Rules, has neither been explained nor defined and

that even the Railways Act, 1890does not define the term authority and

further that in absence of any specific definition or meaning of this

expression, reliance ought to be placed on understanding of this expression

in common parlance. The Court further records that the expression

‘authority’ should be understood in its plain language and without

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necessarily curtailing its scope. It is also held by Hon’ble Supreme Court

that it will be more appropriate to understand the said expression and give it

a meaning which should be in conformity with the context and purpose in

which it has been used. The Court also observed that ‘other authority’

appearing in Rule 9(2) is intended to cover a vast field and there is no

indication of the mind of the framers of the rules that the expression must be

given a restricted or narrow meaning. The Supreme Court further proceeds

to consider the argument that expression ‘other authority’ shall have to be

construed to mean only the persons who are in service of the railways, in

other words, the expression authority used in Rule 9(2) contemplates only a

person who is in service and excludes the appointment of an Inquiring

Authority of a retired railway officer/official.

43.The Supreme Court in Alok Kumar (supra) also considers the

judgment in Ravi Malik (supra).It further proceeds to take into account the

‘Doctrine of Exclusion’ and observes that as per the settled principle of

interpretation, exclusion must either be specifically provided, or the

language of rule should be such that it definitely follows by necessary

implication. It has also been held that the language occurring in the rule

permitting exclusion should be explicit or the intent should be irresistibly

expressed for such exclusion.

44.In Alok Kumar (supra), Hon’ble Supreme Court has clearly held that

if it was so intended, the framers of rule applicable to railway servants could

have used expressions like ‘public servant in office’ or ‘an authority in

office’ and also that absence of such a language shows the mind of the

framers that it was never intended to restrict the scope of ‘other authority’ by

limiting it to the serving officers/officials. Elaborating further, Hon’ble

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Supreme Court also held that principle of necessary implication further

requires that exclusion should be an irresistible conclusion and should also

be in conformity with the purpose and object of the rule. Repelling the

argument that provision of Rule 9(2) contains implicit exclusion in its

language and that exclusion is absolute, Hon’ble Supreme Court in this case

did not find any merit in such contention giving the reason that the exclusion

clause should be reflected in explicit and specific terms or language since in

the clauses excluding the jurisdiction of Court, the framers of law apply

specific language. Noticing that in some cases such exclusion could be read

with a reference to irresistible implicit exclusion, Hon’ble Supreme Court

found in Alok Kumar (supra) that language in Rule 9(2) does not support

such a contention and further that application of principle of exclusion can

hardly be inferred in absence of any specific language.

45.The Apex Court in Alok Kumar (supra) also considers the purpose of

departmental inquiry and opined that purpose is to put the Charged Officer to

the articles of charges and imputation of misconduct and seek his reply in

accordance with the rules and principles of natural justice. The Court further

opined that the Inquiring Authority is a delegatee of the disciplinary

authority and has to conduct the inquiry within the limited authority so

delegated to him. It has further been observed in this judgment that Inquiry

Report is submitted to the competent authority after its conclusion which is

expected to apply its mind to the entire record and then decide whether any

punishment should be imposed or not. The Court also expressed the

conclusion that all substantive functions in disciplinary proceedings are

performed by the disciplinary or the specified authority and it is only an

interregnum inquiry which is conducted by the delegatee of the said

authority i.e. the Inquiring Authority appointed by the disciplinary authority.

LPA 313/2024 & LPA 1045/2024 Page 25 of 52

46.The Hon’ble Supreme Court, thus, discussing in detail came to the

conclusion that since the purpose for which the Inquiring Authority is

appointed by the disciplinary authority is to conduct only an interregnum

inquiry preceding the final decision regarding punishment which is to be

taken by the disciplinary authority, therefore, the submission that ‘other

authority’ occurring in Rule 9(2) has to be a person in service alone cannot

be accepted.

47.Alok Kumar (supra) also notices the definition of ‘public servant’

appearing in the Indian Penal Code (hereinafter referred to as IPC) and

observes that the said provision of Indian Penal Code was not brought to the

notice of the Court dealing with Ravi Malik (supra). The Court goes on to

observe that as per Section 21 of the IPC a public servant denotes a person

falling under any of the descriptions mentioned in the said provision and

further that such expression occurring in Section 21 of the IPC brings within

its ambit arbitrator or any person to whom any cause or matter has been

referred to for decision or report by any Court or any other competent public

authority. The Court further opines that as per the Twelfth Clause of Section

21 of the IPC even ‘every person’ can be a public servant and that sub-clause

(a) appended to the Twelfth clause of Section 21 of the IPC provides that a

person who is in service of the government or is remunerated by fees or

commission for the performance of any public duty by the government is

also a public servant. The inference drawn by Hon’ble Supreme Court in

Alok Kumar (supra), as embodied in paragraph 47 of the report, is that a

person engaged by a competent authority to work on a fee or a fixed

remuneration can be a public servant. The Court has further observed that it

is not understandable as to how a person engaged for the purpose of

performing a delegated function would not be ‘other authority’ within the

LPA 313/2024 & LPA 1045/2024 Page 26 of 52

meaning of Rule 9(2) in the wake of the fact that the said Rule does not

specify any qualification or pre-requisites which need to be satisfied before a

person can be appointed as an Inquiring Authority.

48.The Court, thus, finally observed that it is to be left to the discretion of

the disciplinary authority as to who is to be appointed as an Inquiring

Authority and unless such exclusion of a former employee of the

government is spelt out specifically from the Rules, it will be difficult for the

Court to introduce that element and the principle of implication simplicitor.

The relevant discussion made and conclusion drawn by Hon’ble Supreme

Court in Alok Kumar (supra) are found in paragraph 38 to 47 that are

germane to decide the issue (a) as culled out above, which read as under:

“38. It is clear from above that there is some unanimity as to what

meaning can be given to the expression “authority”. The authority,

therefore, should be understood on its plain language and without

necessarily curtailing its scope. It will be more appropriate to understand

this expression and give it a meaning which should be in conformity with

the context and purpose in which it has been used. The “other authority”

appearing in Rule 9(2) is intended to cover a vast field and there is no

indication of the mind of the framers that the expression must be given a

restricted or a narrow meaning. It is possible that where the authority is

vested in a person or a body as a result of delegation, then delegatee of

such authority has to work strictly within the field delegated. If it works

beyond the scope of delegation, in that event it will be beyond the authority

and may even, in given circumstances, vitiate the action.

39. Now, we have to examine the argument of the respondents before the

Court that the expression “other authority” shall have to be construed to

cover only the persons who are in the service of the Railways. In other

words, the contention is that the expression “person” used under Section 3

of the Act and expression “authority” used under Rule 9(2) contemplates

the person to be in service and excludes appointment of an enquiry officer

(authority) of a retired railway officer/official.

40. Heavy reliance was placed by the respondents upon the judgment of

this Court in Ravi Malik v. National Film Development Corpn.

Ltd. [(2004) 13 SCC 427 : 2006 SCC (L&S) 882] We have already

discussed at some length the scheme of the Rules. As already noticed, we

are not required to discuss in any further elaboration the inquiries taken

under the Act, inasmuch as none of the respondents before us have been

LPA 313/2024 & LPA 1045/2024 Page 27 of 52

subject to public departmental enquiry under the provisions of the Act.

Rule 9(2) requires the authority to form an opinion, whether it should hold

the inquiry into the truth of imputation of misconduct or misbehaviour

against the railway servant itself or should it appoint some other authority

to do the needful. Thus, there is an element of discretion vested in the

competent authority to appoint “other authority” for the purposes of

conducting a departmental enquiry.

41. It is a settled principle of interpretation that exclusion must either be

specifically provided or the language of the rule should be such that it

definitely follows by necessary implication. The words of the rule,

therefore, should be explicit or the intent should be irresistibly expressed

for exclusion. If it was so intended, the framers of the rule could simply use

the expression like “public servant in office” or “an authority in office”.

Absence of such specific language exhibits the mind of the framers that

they never intended to restrict the scope of “other authority” by limiting it

to the serving officers/officials. The principle of necessary implication

further requires that the exclusion should be an irresistible conclusion and

should also be in conformity with the purpose and object of the rule.

42. The learned counsel appearing for the respondents wanted us to accept

the argument that the provisions of Rule 9(2) have an implicit exclusion in

its language and exclusion is absolute. That is to say, the framers have

excluded appointment of former employees of the Railway Department as

other authority (enquiry officer) under these provisions. We find no merit

in this contention as well.

43. An exclusion clause should be reflected in clear, unambiguous, explicit

and specific terms or language, as in the clauses excluding the jurisdiction

of the court the framers of the law apply specific language. In some cases,

as it may be, such exclusion could be read with reference to irresistible

implicit exclusion. In our opinion the language of Rule 9(2) does not

support the submission of the respondents. Application of principle of

exclusion can hardly be inferred in the absence of specific language.

Reference in this regard can be made to the judgment of this Court in New

Moga Transport Co. v. United India Insurance Co. Ltd. [(2004) 4 SCC 677

: AIR 2004 SC 2154]

44. In the present case, neither of these ingredients appear to be satisfied.

Ultimately, what is the purpose of a departmental enquiry? It is, to put to

the delinquent officer/official the charges or article of charges and

imputation and seek his reply in the event of there being no substance to

hold an inquiry in accordance with the rules and principles of natural

justice. The enquiry officer appointed by the disciplinary authority is a

delegatee and has to work within the limited authority so delegated to him.

The charges and article of charges and imputations are served by the

disciplinary/competent authority. The inquiry report is submitted again to

the competent authority which is expected to apply its mind to the entire

record and then decide whether any punishment should be imposed upon

LPA 313/2024 & LPA 1045/2024 Page 28 of 52

the delinquent officer or not. Thus, all substantive functions are performed

by the disciplinary or the specified authority itself. It is only an

interregnum inquiry. It is conducted by the delegatee of the said authority.

That being the purpose and specially keeping in mind the language of Rule

9(2), we are unable to accept the contention that “other authority” has to

be a person in service alone. Thus, it is not only the persons in service who

could be appointed as enquiry officers (other authority) within the

meaning of Rule 9(2).

45. Reliance placed by the respondents upon the judgment of this Court

in Ravi Malik [(2004) 13 SCC 427 : 2006 SCC (L&S) 882] is hardly of any

assistance to them. Firstly, the facts and the rules falling for consideration

before this Court in that case were entirely different. Secondly, the Court

was concerned with the expression “public servant” appearing in Rule

23(b) of the Service Rules and Regulations, 1982 of the National Film

Development Corporation. The Court expressed the view that “public

servant” should be understood in its common parlance and a retired

officer would not fall within the meaning of “public servant”, as by virtue

of his retirement he loses the characteristics of being a public servant.

That is not the expression with which we are concerned in the present

case. Rule 9(2) as well as Section 3 of the Act have used a very different

expression i.e. “other authority” and “person/persons”. In other words,

the absence of the words “public servant” of the Government are

conspicuous by their very absence. Thus, both these expressions, even as

per the dictum of the Court should be interpreted as understood in the

common parlance.

46. Another factor which we may notice is that the definition of “public

servant” appearing in the Penal Code, 1860 (for short “the Code”),

reliance upon which was placed by the respondents, was not brought to the

notice of the Court while dealing with Ravi Malik [(2004) 13 SCC 427 :

2006 SCC (L&S) 882] . In terms of Section 21 of the Code a public servant

denotes a person falling under any of the descriptions stated in the

provision. While it refers to a different kind of persons it also brings within

its ambit every arbitrator or every person to whom any cause or matter

has been referred for decision or report by any court or any other

competent public authority. Furthermore, as per the twelfth clause of

inclusion, in this very section, even “every person” can be a public

servant. In fact, in terms of Section 21(a) a person who is in service of the

Government or remunerated by fees or commission for the purpose of any

public duty of a Government is also a public servant.

47. Thus, a person who is engaged by a competent authority to work on a

fee or a fixed remuneration can be a public servant. We fail to understand

then how a person engaged for the purposes of performing a delegated

function in accordance with law would not be “other authority” within the

meaning of Rule 9(2). The Rule has not specified any qualifications or

prerequisites which need to be satisfied before a person can be appointed

LPA 313/2024 & LPA 1045/2024 Page 29 of 52

as an enquiry officer. It has been left to the discretion of the disciplinary

authority. Unless such exclusion of a former employee of the Government

was spelt out specifically in the Rule, it will be difficult for the Court to

introduce that element and the principle of implication simpliciter.”

49.Though, the principle of law laid down in Alok Kumar (supra)is

based on interpretation of Rule 9(2) occurring in Railway Servants

(Discipline and Appeal) Rules, 1968 where the language slightly differs

from the language in Rule 11(2) of the EIA Rules, however, as is the case in

Rule 9(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, Rule

11(2) of the EIA Rules also is not worded in a way where exclusion of

retired public servant can be read. For the purposes of ascertaining as to

whether Rule 11(2) of the EIA Rules excludes or not from its fold a retired

public servant, what we importantly notice is that the language occurring in

Rule 11(2) of the EIA Rules is akin to the language employed in Rule 9(2) of

the Railway Servants (Discipline and Appeal) Rules, 1968.

50.As is the case in Rule 9(2) of the Railway Servants (Discipline and

Appeal) Rules, 1968, which has been interpreted by Hon’ble Supreme Court

in Alok Kumar (supra),Rule 11(2) of the EIA Rules also does not contain a

language where exclusion of retired public servant has been specifically

provided; neither any such exclusion from a bare reading of the language

available in Rule 11(2) of the EIA Rules flows by necessary implication.

Applying the principle of interpretation as applied by Hon’ble Supreme

Court in Alok Kumar (supra),since there is no specific language which

exhibits the mind of the framers of Rule 11(2) of the EIA Rules for exclusion

of a retired public servant to be appointed as Inquiring Authority, it would

not be, in our opinion, incorrect to hold that even the expression ‘public

LPA 313/2024 & LPA 1045/2024 Page 30 of 52

servant’ occurring in Rule 11(2) of the EIA Rules would include retired

public servant as well.

51.We are also of the considered opinion that the language available in

Rule 11(2) of the EIA Rules does not indicate that by necessary implication

the retired public servants can be excluded. In Alok Kumar (supra),

Hon’ble Supreme Court has also held that principle of necessary implication

for the purposes of exclusion requires that such exclusion should be an

irresistible exclusion and should also be in conformity with the purpose and

object of the rule. The purpose and object of the rule regulating appointment

of the Inquiring Authority has already been discussed in Alok Kumar

(supra),according to which the inquiry is conducted by the Inquiring

Authority as a delegatee of the Disciplinary Authority and such inquiry is

only an interregnum inquiry and therefore, it is difficult to accept the

contention that ‘other authority’ has to be a person in service alone. The

purpose of appointing the Inquiring Authority under Rule 11(2) of the EIA

Rules and that of Rule 9(2) of the Railway Servants (Discipline and Appeal)

Rules, 1968 is the same and no difference in the purpose of appointing the

Inquiring Authority in these two sets of rules can indisputably be there.

52.While interpreting the expression ‘other authority’ occurring in Rule

9(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, Hon’ble

Supreme Court in Alok Kumar (supra)has also referred to the provisions of

Section 21 of IPC, especially sub-clause (a) appended to clause Twelfth of

Section 21 of IPC and it has been held that every person, who is in the

service or pay of the government or is remunerated by fee or even by

commission for performance of any public duty by the government, will be a

public servant. In the instant case undeniably that the Inquiring Authority

LPA 313/2024 & LPA 1045/2024 Page 31 of 52

who conducted the inquiry against the petitioner was a retired public servant,

however, he was remunerated by the respondent and therefore, for this

reason as well the contention that an Inquiring Authority under Rule 11(2) of

the EIA Rules, cannot be a retired public servant, in our opinion, does not

appear to be feasible.

53.As far as reliance placed on Ravi Malik (supra)by the petitioner is

concerned, even though the relevant rule, which was under consideration

therein and which pertained to the employees of NFDCL, is similarly

worded as Rule 11(2) of the EIA Rules, however, Ravi Malik (supra)has

been considered in Alok Kumar (supra),wherein it has clearly been noticed

that the provisions of Section 21 of the IPC were not brought to the notice of

the Court in Ravi Malik (supra).Further, the reasoning given in Alok

Kumar (supra)for holding that ‘other authority’ shall include retired public

servants as well in Rule 9(2) of the Railway Servants (Discipline and

Appeal) Rules, 1968, as noticed above, in our considered opinion, can be

applied to correctly arrive at the conclusion as to whether the expression

‘public servant’ occurring in Rule 11(2) of the EIA Rules would include a

retired public servant as well.

54.We have already discussed in detail the reasoning on the basis of

which conclusion in Alok Kumar (supra)has been drawn by Hon’ble

Supreme Court. The same reasoning, according to us, has to be applied to

appropriately interpret Rule 11(2) of the EIA Rules for coming to the

conclusion as to whether ‘public servant’ in this case as well would include

retired public servant. Accordingly, applying the reasoning given in Alok

Kumar (supra)by Hon’ble Supreme Court where Ravi Malik (supra)has

also been referred to and considered, we have no hesitation to hold that the

LPA 313/2024 & LPA 1045/2024 Page 32 of 52

expression ‘public servant’ occurring in Rule 11(2) of the EIA Rules will, in

its fold, include retired public servant as well.

55.For these reasons, we do not find any illegality in appointment of Sh.

Inder Singh, a retired public servant, as Inquiring Authority in this case who

conducted the inquiry and submitted the Inquiry Report to the Disciplinary

Authority.

ISSUE (b)

56.Any discussion or consideration on this issue would be incomplete if

we do not note the entire Rule 11 of the EIA Rules. Rule 11 falls in Part-VI

of the EIA Rules and appears therein under the heading “PROCEDURE

FOR IMPOSING PENALTIES”. Apart from Rule 11, Rule 8 and 12 of the

EIA Rules are also relevant to be noticed. Rule 8, 11 and 12 of the EIA

Rules extracted herein below:

RULE - 8

“PART V

PENALTIES & DISCIPLINARY AUTHORITIES

8. The following penalties may, for good and sufficient reasons as

hereinafter provided, be imposed on an Agency employee, namely:

Minor Penalties

(i) Censure;

(ii) Withholding of his promotion;

(iii) recovery from his pay of the whole or part of any pecuniary loss

caused by him/her to the Agency by negligence or breach of order;

(iv) Withholding of increments of pay;

Major Penalties

(v) reduction to a lower stage in the time scale of pay for a specified

period with further directions as to whether or not the Agency

employee will earn increment of pay during the period of such

reduction and whether on the expiry of such period, the reduction

will or, will not have the effect of postponing the further increments

of his pay;

LPA 313/2024 & LPA 1045/2024 Page 33 of 52

(vi) reduction to a lower time scale of pay, grade or post which shall

ordinarily be a bar to the promotion of the Agency employee to the

time scale of pay, grade or post from which he was reduced, with

or without further directions regarding conditions of the

restoration to that grade or post from which the Agency employee

was reduced and the seniority and pay on such restoration to that

grade or post;

(vii) compulsory retirement;

(viii) removal from service which shall not be a disqualification for

future employment under the Agency; and

(ix) dismissal from service which shall ordinarily be a disqualification

for future employment under the Agency.

Provided that, in every case in which the charge of acceptance from any

person of any gratification, other than legal remuneration, as a motive or

reward for doing or forbearing to do any official act is established, the

penalty mentioned in clause (viii) or clause (ix) shall be imposed:

Provided further that in any exceptional case and for special reasons

recorded in writing, any other penalty may be imposed.

Explanation - The following shall not amount to a penalty within the

meaning of this rule, namely:

(i) withholding of increments of pay of an Agency employee for

failure to pass any departmental examination in accordance

with rules or orders governing the post which he holds or

the terms of his appointment;

(ii) stoppage of an Agency employee at the efficiency bar in the

time-scale of pay on the ground of his unfitness to cross the

bar;

(iii) non-promotion of an Agency employee whether in a

substantive or officiating capacity after consideration of his

case to a grade or post for promotion to which he is

eligible;

(iv) reversion to a lower service, grade or post of an Agency

employee officiating in a higher grade or post on the

ground that he is considered, after trial, to be unsuitable for

such higher grade or post or on administrative grounds

unconnected with his conduct;

(v) reversion to his permanent service, grade or post of an

Agency employee appointed on a probation to another

grade or post during or at the end of the period of

probation in accordance with the terms of his appointment

or the rules and orders governing probation;;

LPA 313/2024 & LPA 1045/2024 Page 34 of 52

(vi) compulsory retirement of an Agency employee in

accordance with the provisions relating to his

superannuation or retirement;

(vii) termination of the services-

(a) of an Agency employee appointed on probation during or at

the end of the period of his probation, in accordance with

the terms of his appointment or the rules and orders

governing such probation; or

(b) of a temporary Agency employee in accordance with the

rule 16 of the Export Inspection Agency Service Rules; or

(c) of an Agency employee under an agreement in accordance

with the terms of such agreement.

(viii) replacement of the service of the Agency employee whose

services had been borrowed from a Central Government,

State Government or a local or other authority from which

the services of such Agency employee had been borrowed:

"NOTE- The Agency or its subordinate authorities described under

Rule 9 are competent or imposing penalties within the meaning of

Rule 8 on an employee of the Agency in respect of misconduct

committed before his employment, if the misconduct was of such a

nature as has rational connection with his present employment in

the Agency and renders him unfit and unsuitable for continuing

service".”

RULE – 11

“Part-VI

PROCEDURE FOR IMPOSING PENALTIES

11. (1) No order imposing any of the penalties specified in clauses (v) to

(ix) of Rule 8 shall be made except after an inquiry held, as far as

may be, in the manner provided in this rule and in the manner

hereinafter provided.

(2) Whenever the disciplinary authority is of opinion that there are

grounds for inquiring into the truth of any imputation of

misconduct or misbehavior against Agency employee, it may itself

inquire or appoint under this rule [a public servant**] to inquire

into the truth thereof.

Explanation: Where the disciplinary authority itself holds the inquiry, any

reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the

LPA 313/2024 & LPA 1045/2024 Page 35 of 52

inquiring authority shall be construed as a reference to the disciplinary

authority.

(3) Where it is proposed to hold an inquiry against an Agency

employee under this rule and in the manner hereinafter provided,

the disciplinary authority shall draw up or cause to be drawn up-

(i) the substance of the imputations of misconduct or

misbehavior into definite and distinct articles of charge;

(ii) a statement of the imputations of misconduct or

misbehavior in support of each article of charge; which

shall contain–

(a) a statement of all relevant facts including any

admission or confession made by the Agency

employee;

(b) a list of documents by which, and a list of witnesses

by whom, the articles of charge are proposed to be

sustained.

(4) The disciplinary authority shall deliver or cause to be delivered to

the Agency employee a copy of the articles of charge, the statement

of the imputations of misconduct or misbehavior and a list of

documents and witnesses by which each article of charge is

proposed to be sustained and shall require the Agency employee to

submit, within such time as may be specified, a written statement of

his defence and to state whether he desires to be heard in person.

(5) (a) On receipt of written statement of defence, the disciplinary

authority may itself inquire into such of the articles of charge as

are not admitted, or, if it considers it necessary to do so, appoint

under sub-rule (2) an inquiring authority for the purpose, and

where all the articles of charges have been admitted by the Agency

employee in his written statement of defence, the disciplinary

authority shall record its findings on each charge after taking such

evidence as it may think fit and shall act in the manner hereinafter

provided.

(b) If no written statement of defence is submitted by the

Agency employee, the disciplinary authority may itself inquire into

the articles of charge, or may, if it considers it necessary to do so,

appoint under sub-rule (2) an inquiring authority for the purpose.

(c) Where the disciplinary authority itself inquire into any

articles of charge or appoints an inquiring authority for holding an

inquiry into such charge, it may, by an order, appoint a [public

servant] or a legal practitioner, to be known as the “Presenting

LPA 313/2024 & LPA 1045/2024 Page 36 of 52

Officer” to present on its behalf the case in support of articles of

charge

(6) The disciplinary authority shall, where it is not the inquiring

authority, forward to the inquiring authority –

(i) a copy of the articles of charge and the statement of the

imputations of misconduct or misbehavior;

(ii) a copy of the written statement of defence, if any, submitted

by the Agency employee;

(iii) a copy of the statement of witnesses, if any referred to in

sub-rule (3);

(iv) evidence proving the delivery of the documents referred to

in sub-rule (3) to the Agency employee; and

(v) a copy of the order appointing the “Presenting Officer”.

(7) The Agency employee shall appear in person before the inquiring

authority on such day and at such time within ten working days

from the date of receipt by him/her of the articles of charge and the

statement of the imputations of misconduct or misbehaviour, as the

inquiring authority may, by a notice in writing, specify in this

behalf, or within such further time not exceeding ten days as the

inquiring authority may allow.

(8) The Agency employee may take the assistance of any Government

servant posted in any office either at his headquarters or at the

place where the inquiry is held, to present the case on his behalf,

but may not engage a legal practitioner for the purpose, unless the

Presenting Officer appointed by the disciplinary authority is a

legal practitioner, or, the disciplinary authority, having regard to

the circumstances of the case, so permits;

Provided that the Agency employees may take the assistance of any other

Government servant posted at any other station, if the inquiring authority

having regard to the circumstances of the case, and for reasons to be

recorded in writing, so permits.

NOTE: - The Agency employee shall not take the assistance of a

Government servant who has three pending disciplinary cases in hand in

which he has to give assistance.

(9) If the Agency employee who has not admitted any of the articles of

charge in his written statement of defence or has not submitted any

written statement of defence, appears before the inquiring

authority, such authority shall ask him whether is guilty or has any

defence to make and if he pleads guilty to any of the articles of

charge, the inquiring authority shall record the plea, sign the

record and obtain signature of the Agency employee thereon.

LPA 313/2024 & LPA 1045/2024 Page 37 of 52

(10) The inquiring authority shall return a finding of guilt in respect of

those articles of charge to which the Agency employee pleads

guilty.

(11) The inquiring-authority shall, if the Agency employee fails to

appear within the specified time or refuses or omits to plead,

require the Presenting Officer to produce the evidence by which he

proposes to prove the articles of charge, and shall adjourn the case

to a later date not exceeding thirty days, after recording an order

that the Agency employee may, for the purpose of preparing his

defence;

(i) Inspect within five days of the order or within such further

time not exceeding five days as the inquiring authority may

allow, the documents specified in the list referred to in sub-

rule (3);

(ii) Submit a list of witnesses to be examined on his behalf;

NOTE:- If the Agency employee applies orally or in writing for the supply

of copies of statements of witnesses mentioned in the list referred to in sub-

rule (3), the inquiring authority shall furnish him with such copies as early

as possible and in any case not later than three days before the

commencement of the examination of the witnesses on behalf of the

disciplinary authority.

(iii) Give a notice within ten days of the order or within such

further time not exceeding ten days as the inquiring

authority may allow for the discovery or production of any

documents which are in the possession of Agency but not

mentioned in the list referred to in sub-rule (3).

NOTE: - The Agency employee shall indicate the relevance of the

documents required by him to be discovered or produced by the Agency.

(12) The inquiring authority shall, on receipt of the notice for the

discovery or production of documents, forward, the same or copies

thereof to the authority in whose custody or possession the

documents are kept, with a requisition for the production of the

documents by such date as may be specified in such requisition:

Provided that the inquiring authority may, for reasons to be recorded by it

in writing, refuse to requisition such of the documents as are, in its

opinion, not relevant to the case.

(13) On receipt of the requisition referred to in such-rule (12), every

authority having the custody or possession of the requisitioned

documents shall produce the same before the inquiring authority:

LPA 313/2024 & LPA 1045/2024 Page 38 of 52

Provided that if the authority having the custody or possession of the

requisitioned documents is satisfied for reasons to be recoded by it in

writing that the production of all or any of such documents would be

against the Agency’s interest or public interest or security of the state, it

shall inform the inquiring authority accordingly and the inquiring

authority shall on being so informed, communicate the information to the

Agency employee and withdraw the requisition made by it for the

production or discovery of such documents.

(14) On the date fixed for the inquiry, the oral and documentary

evidence by which the articles of charge are proposed to be proved

shall be produced by or on behalf of the disciplinary authority. The

witnesses shall be examined by or on behalf of the Presenting

Officer and may be cross-examined by or on behalf of the Agency

employee. The Presenting Officer shall be entitled to re-examine

the witness on any points on which they have been cross-examined,

but not on any new matter, without the leave of the inquiring

authority. The inquiring authority may also put such questions to

the witnesses as it think fit.

(15) If it shall appear necessary before the close of the case on behalf of

the disciplinary authority, the inquiring authority may, in its

discretion, allow the Presenting Officer to produce evidence not

included in the list given to the Agency employee or may itself call

for new evidence or recall and re-examine any witness and in such

case the Agency employee shall be entitled to have, if he demands

it, a copy of the list of further evidence proposed to be produced

and an adjournment of the inquiry for three clear days before the

production of such new evidence, exclusive of the day of

adjournment and the day to which the inquiry is adjourned. The

inquiring authority shall give the Agency employee an opportunity

of inspecting such documents before they are taken on the record.

The inquiring authority may also allow the Agency employee to

produce new evidence, if it is of the opinion that the production of

such evidence is necessary in the interest of justice.

NOTE: - New evidence shall not be permitted or called for or any witness

shall not be recalled to fill up any gap in the evidence. Such evidence may

be called for only when there is an inherent lacuna or defect in the

evidence which has been produced originally.

(16) When the case for the disciplinary authority is closed the Agency

employee shall be required to state his defence, orally or in

writing, as he may prefer. If the defence is made orally, it shall be

recorded and the Agency employee shall be required to sign the

record. In either case, a copy of the statement of defence shall be

given to the Presenting Officer, if any, appointed.

LPA 313/2024 & LPA 1045/2024 Page 39 of 52

(17) The evidence on behalf of the Agency employee shall then be

produced. The agency employee may examine himself in his own

behalf if he so prefers. The witnesses produced by the Agency

employee shall then be examined and shall be liable to cross-

examination, re-examination and examination by the inquiring

authority according to the provisions applicable to the witnesses

for the disciplinary authority.

(18) The inquiring authority may, after the Agency employee closes his

case, and shall, if the Agency employee has not examined himself,

generally question him on the circumstances appearing against him

in the evidence for the purpose of enabling the Agency employee to

explain any circumstances appearing in the evidence against him.

(19) The inquiring authority may, after the completion of the production

of evidence, hear the Presenting Officer, if any, appointed and the

Agency employee, or permit them to file written briefs of their

respective case, if they so desire.

(20) If the Agency employee to whom a copy of the articles of charge

has been delivered, does not submit the written statement of

defence on or before the date specific for the purpose or does not

appear in person before the inquiring authority or otherwise fails

or refuses to comply with the provision of this rule, the inquiring

authority may hold the inquiry ex-parte.

(21) (a) Where a disciplinary authority competent to impose any of

the penalties specified in clauses (i) to (iv) of Rule 8 but not

competent to impose any of the penalties specified in

clauses (v) to (ix) of Rule 8, has itself inquired into or

caused to be inquired into the articles of any charge and

that authority, having regard to its own findings or having

regard to its decision on any of the findings of any inquiring

authority appointed by it, is of the opinion that the penalties

specified in clauses (v) to (ix) of Rule 8 should be imposed

on the Agency employee, that authority shall forward the

records of the inquiry to such disciplinary authority as is

competent to impose the last mentioned penalties.

(b) The disciplinary authority to which the records are so

forwarded may act on the evidence on the records or may, if

it is of the opinion that further examination of any of the

witnesses is necessary in the interest of justice, recall the

witness and examine, cross-examine and re-examine the

witness and may impose on the Agency employee such

penalty as it may deem fit in accordance with these rules.

(22) Whenever any inquiry authority, after having heard and recorded

the whole or any part of the evidence in an inquiry, ceases to

LPA 313/2024 & LPA 1045/2024 Page 40 of 52

exercise jurisdiction therein, and is succeeded by another inquiring

authority which has, and which exercises such jurisdiction, the

inquiring authority so succeeding may act on the evidence so

recorded by its predecessor, or partly recorded by its predecessor

and partly recorded by itself.

Provided that if the succeeding inquiry authority is of the opinion that

further examination of any of the witnesses whose evidence has already

been recorded is necessary in the interest of justice, it may recall, examine,

cross-examine and re-examine any such witnesses as hereinbefore

provided.

(23) (i) After the conclusion of the inquiry, a report shall be

prepared and it shall contain:

(a) the articles of charge and the statement of the

imputations of misconduct or misbehavior;

(b) the defence of the Agency employee in respect of each

article of charge;

(c) an assessment of the evidence in respect of each article

of charge;

(d) the findings on each article of charge and the reasons

therefor.

Explanation: If in the opinion of the inquiry authority the proceedings of

the inquiry establish any article of charge different from the original

articles of charge, it may record its findings on such article of charge.

Provided that the findings on such article of charge shall not be recorded

unless the Agency employee has either admitted die facts on which such

article of charge is based or has had a reasonable opportunity of

defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the

disciplinary authority, shall forward to the disciplinary

authority the records of inquiry which shall include:

(a) the report prepared by it under clause (i);

(b) the written statement of defence, if any, submitted by the

Agency employee;

(c) the oral and documentary evidence produced in the

course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer or

the Agency employee or both during the course of the

inquiry; and

LPA 313/2024 & LPA 1045/2024 Page 41 of 52

(e) The orders, if any, made by the disciplinary authority

and the inquiring authority in regard to the inquiry.”

RULE – 12

“12. (1) The disciplinary authority, if it is not itself the inquiring

authority may, for reasons to be recorded by it in writing,

remit the case to the inquiring authority for further inquiry

and report and the inquiring authority shall thereupon

proceed to hold the further inquiry according to the

provisions of Rule 11 as far as may be applicable.

(2) 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.

(3) If the disciplinary authority having regard to its finding on

all or any of the articles of charge is of the opinion that any

of the penalties specified in clauses (i) to (iv) of Rule 8

should be imposed on the Agency employee, it shall,

notwithstanding anything contained in Rule 13, make an

order imposing such penalty.

(4) If the disciplinary authority having regard to its findings on

all or any of the articles of charge and on the basis of the

evidence adduced during the inquiry is of the opinion that

any of the penalties specified in clauses (v) to(ix) of Rule 8

should be imposed on the Agency employee, it shall make

an order imposing such penalty and it shall not be

necessary to give the Agency employee any opportunity of

making representation on the penalty proposed to be

imposed.

Provided that where an enquiry has been held in accordance with the

provisions of Rule11 for any of the penalties specified in clause (v) to (ix)

of Rule 8, the Disciplinary Authority, if it is different from the Inquiring

Authority, shall before making any final order of imposing such penalty,

forward a copy of the inquiry report to the Agency employee concerned

giving him an opportunity of making any representation or submission in

writing to the Disciplinary Authority.”

LPA 313/2024 & LPA 1045/2024 Page 42 of 52

57.Rule 8 of the EIA Rules provides for two types of penalties which can

be imposed on the employees of the respondent, namely, minor and major

penalties. In this case, we are concerned with penalty of reduction in rank

which is a major penalty as described in Rule 8(v) of the above quoted rules.

58.Rule 11(1) of the EIA Rules mandates that no major penalty as

defined in clause (v) to (ix) of Rule 8 can be imposed except after an inquiry,

as far as may be, in the manner provided in the said rules. Rule 11(3)

provides that if it is proposed to hold an inquiry against an employee, the

Disciplinary Authority shall draw or cause to be draw a charge sheet or the

substance of imputation of his misconduct or misbehavior which shall

contain a statement of all relevant facts, list of documents and a list of

witnesses by which and by whom the Article of Charges are proposed to be

proved.

59.Sub-rule 4 of Rule 11 provides that once the charge sheet is drawn, the

Disciplinary Authority shall serve or cause to be served such charge sheet

upon the delinquent employee which will contain the article of charges,

statement of imputations of misconduct or misbehavior and list of documents

and witnesses. It further provides that the charged officer/official, on service

of charge sheet, shall be required to submit written statement of his defence

and to state whether he desires to be heard in person or not. In our opinion,

sub-rule 4 of Rule 11 mandates two acts, (i) service of the charge sheet, and

(ii) requiring the employee to submit his written statement of defence and to

state whether he desires to be head in person. The actual connotation of the

expression, ‘he desires to be heard in person’ has to be understood in the

light of the stage of the disciplinary proceedings at which it has been

mandated that the Disciplinary Authority shall require the delinquent

LPA 313/2024 & LPA 1045/2024 Page 43 of 52

employee to state as to whether he desires to be heard in person or not. Sub-

rule 4 of Rule 11 comes into play once the charge sheet is drawn and is

served upon the delinquent employee. It provides that apart from serving the

charge sheet, the delinquent employee will have to be given an opportunity

to submit his written statement of defence and also to indicate as to whether

he desires to be heard in person.

60.Considering the stage of disciplinary proceedings at which Rule 11(4)

of the EIA Rules operates, in our considered opinion, the expression ‘he

desires to be heard in person’ occurring therein would mean providing

opportunity of hearing to the delinquent employee during the course of

inquiry to be conducted pursuant to the service of charge sheet and not at any

other stage. In the instant case, in terms of Rule 11(2) of the EIA Rules, the

Disciplinary Authority decided not to conduct the inquiry himself rather an

Inquiring Authority was appointed and therefore, in our opinion, what is

meant by the expression ‘he desires to be heard in person’ occurring in Sub-

rule 4 of Rule 11 is that the delinquent official was to be provided

opportunity of being heard in person during the course of inquiry conducted

by the Inquiring Authority.

61.The learned Single Judge, however, in the impugned judgment and

order, though quotes Rule 11(4) of the EIA Rules, it is, however, concluded

that the said rule prescribes the procedure as to how the Disciplinary

Authority would proceed “post receipt of proceedings concluding with the

Inquiring Authority’s report”. In our opinion, application of Rule 11(4) of

the EIA Rules has to be made immediately after service of the charge sheet

and not “post receipt of the proceedings by the Disciplinary Authority on

conclusion of the inquiry” conducted by the Inquiring Authority.

LPA 313/2024 & LPA 1045/2024 Page 44 of 52

62.The learned Single Judge has referred to the letter dated 12.05.2014,

vide which the petitioner had submitted his written statement of defence. It

is to be noticed, as is borne out from the records available before us on these

two appeals, that the letter dated 12.05.2014 was submitted by the petitioner

in reference to the charge sheet dated 27.03.2014, wherein it was stated inter

alia, by the petitioner that the charge sheet was a culmination of his stand

taken against “onslaughts of Director, EIC” and that the Director had

become a symbol of deriving sadistic pleasure in harassing and running

down honest officers of the organization notwithstanding the fact that he

realizes his incompetence to the position which he holds by virtue of fluke.

In the said letter, the petitioner also stated that allegations against him in the

charge sheet are preposterous, misconceived and without any substance. He

further denied the said charges unequivocally and expresses his desire to be

heard in person.

63.We have already noticed that initially instead of participating in the

proceedings, the petitioner had challenged the charge sheet dated 27.03.2014

by way of instituting W.P.(C) 2458/2014 before this Court, which was

dismissed as withdrawn with certain directions. Thus, the stage at which the

petitioner had submitted the letter dated 12.05.2014 expressing his desire to

be heard in person, was not the stage “post culmination of the proceedings at

the end of the Inquiring Authority”; rather it was at the stage where he

denied the charges leveled against him in the charge sheet and expressed his

desire to be heard in person. It is not the case of the petitioner that during

the course of the inquiry held by the Inquiring Authority, he was not heard

personally or was prohibited from participation in the inquiry. In our

opinion, what is meant by the expression, ‘he desires to be heard in person’

occurring in Rule 11(4) of the EIA Rules, is that in case after service of the

LPA 313/2024 & LPA 1045/2024 Page 45 of 52

charge sheet while the delinquent employee furnishes his written statement

of defence and desires to be heard in person, he shall be provided

opportunity to be heard in person during the course of inquiry conducted by

the Inquiring Authority and that he shall be given the opportunity to

participate in the proceedings conducted by the Inquiring Authority in

accordance with the rules. The provision of Rule 11(4) of the EIA Rules, in

our opinion, does not contemplate any opportunity of personal hearing “post

receipt of the proceedings concluding with the Inquiring Authority’s report”,

as has wrongly been concluded by the learned Single Judge in paragraph 45

of the impugned judgment and order.

64.As a matter of fact, once the proceedings conclude at the end of the

Inquiring Authority, he, under the EIA Rules, is mandated to forward the

Inquiry Report to the Disciplinary Authority and further action follows at the

end of the Disciplinary Authority. As per the scheme of Part-VI

(PROCEDURE FOR IMPOSING PENALTIES) of the EIA Rules, once the

inquiry proceedings are concluded by the Inquiring Authority, he is required

to prepare a report which is generally called an Inquiry Report, as per Rule

11(23) of the EIA Rules and such report shall contain articles of charge,

statement of imputations of misconduct or misbehavior, defence of the

employee concerned, assessment of the evidence in respect of each article of

charge and the findings on each article of charge and the reasons thereof.

65.Rule 11(23)(ii) of the EIA Rules mandates that the Inquiring

Authority, where it is not itself the Disciplinary Authority, shall forward the

records of the inquiry to the Disciplinary Authority, which shall include the

Inquiry Report prepared under Rule 11(23)(i) of the EIA Rules, the written

statement of defence submitted by the employee, the oral and documentary

LPA 313/2024 & LPA 1045/2024 Page 46 of 52

evidence produced in the course of the inquiry, written briefs, if any,

submitted by the Presenting Officer or the employee and the orders made by

the Disciplinary Authority and Inquiring Authority in regard to inquiry.

Thus, Rule 11(23)(ii) of the EIA Rules requires the entire proceedings of the

inquiry conducted by the Inquiring Authority to be forwarded to the

Disciplinary Authority.

66.As per Rule 12(1) of the EIA Rules, once the Disciplinary Authority

receives the record of the inquiry including the Inquiry Report from the

Inquiring Authority, in case the Disciplinary Authority is not the Inquiring

Authority itself, it may remit the case to the Inquiring Authority for further

inquiry for reasons to be recorded in writing thereupon the Inquiring

Authority shall proceed to hold further inquiry in accordance with the

provisions of Rule 11 of the EIA Rules. Rule 12(2) of the EIA Rules

provides that if the Disciplinary Authority disagrees with the findings of the

Inquiring Authority on any article on charge, he shall record his reason for

such disagreement and record his own findings on each charge whereupon in

terms of Rule 12(4), if the Disciplinary Authority forms an opinion that any

of the major penalties should be imposed on the employee concerned, the

Disciplinary Authority shall make an order imposing such penalty, and in

that eventuality it shall not be necessary to give the employee any

opportunity of making representation on the penalty proposed to be imposed.

67.Thus, what we find from a close scrutiny of the scheme of the EIA

Rules is that the only requirement of providing opportunity to the delinquent

employee, post submission of the Inquiry Report by the Inquiring Authority

for the purposes of imposing any of the major penalties as described in Rule

8(v) to (ix) EIA Rules, is that before imposing such major penalty, the

LPA 313/2024 & LPA 1045/2024 Page 47 of 52

Disciplinary Authority shall forward a copy of the Inquiry Report to the

employee concerned giving him opportunity to make representation or

submissions in writing against the findings recorded by the Inquiring

Authority in the Inquiry Report, to the Disciplinary Authority. Thus, a close

examination of the scheme of the rules relating to procedure for imposing

penalties occurring in Part-VI of the EIA Rules, suggests that the rules do

not contemplate any opportunity of being personally heard to the delinquent

employee after submission of the Inquiry Report by the Inquiring Authority

except for serving upon the delinquent employee a copy of the Inquiry

Report and requiring him to submit his submissions to the findings recorded

by the Inquiring Authority. Thus, all what is required under the said rules is

that if it is a case of imposition of major penalty, the Inquiry Report

submitted by the Inquiring Authority has to be forwarded to the delinquent

employee giving him an opportunity to make representation or his

submission in writing against such an Inquiry Report and such representation

or submission is to be made to the Disciplinary Authority.

68.Indisputably, in the instant case the Disciplinary Authority did not

differ with the findings recorded by the Inquiring Authority in the inquiry

conducted against the petitioner, who found all the three articles of charge

proved against the petitioner and therefore, in terms of the scheme of the

EIA Rules, all what was required was that the petitioner would be given the

copy of the Inquiry Report along with an opportunity to submit his

representation or submission in respect of the findings recorded by the

Inquiring Authority. Such opportunity of making representation to the

Disciplinary Authority was given in this case to the petitioner against the

findings in the Inquiry Report. This is not denied by the petitioner.

LPA 313/2024 & LPA 1045/2024 Page 48 of 52

69.We have already noticed that vide letter dated 10.09.2015, the Inquiry

Report submitted by the Inquiring Authority was furnished to the petitioner

and by the said letter itself he was provided an opportunity to submit his

comments/representation, if any, on the findings of the Inquiring Authority’s

report within 15 days. Pursuant to which, the petitioner submitted his

representation against the findings recorded by the Inquiring Authority in his

Inquiry Report, whereupon the punishment order dated 17.02.2016 was

passed by the Disciplinary Authority.

70.We, therefore, find that the disciplinary proceedings against the

petitioner in the instant case were conducted in strict adherence to the EIA

Rules. The petitioner has utterly failed, in our opinion, to establish

infringement of any rule including that of Rule 11(4) of the EIA Rules.

71.As far as the findings recorded by learned Single Judge in the

impugned judgment and order to the effect that language of Rule 11(4) of the

EIA Rules provides for the procedure to be followed “post receipt of the

proceedings concluded with the Inquiring Authority’s report”, we may only

observe that the said finding is based on a complete misreading of the

provisions of Rule 11(4) of the EIA Rules. In our opinion, learned Single

Judge has completely ignored the stage of applicability of Rule 11(4) of the

EIA Rules which in terms of the scheme of the rules, cannot be a stage

which may arise post receipt of the conclusion of the proceedings by the

Inquiring Authority.

72.As observed above, all what is meant by expression, ‘he desires to be

heard in person’ would mean in case the delinquent official desires hearing

during the course of inquiry before the Inquiring Authority after submission

of the written statement of defence, he cannot be denied such opportunity.

LPA 313/2024 & LPA 1045/2024 Page 49 of 52

73.We have already concluded, as the records reveal in this case, that it is

not the case of the petitioner that he was denied opportunity of any sort

during the course of the inquiry before the Inquiring Authority; neither his

case is that he was not provided with the copy of the Inquiry Report and the

opportunity to make his representation/submission in writing against the

findings recorded by the Inquiring Authority was denied to him. Thus, we

do not find ourselves in agreement with the learned Single Judge, where he

has found that the disciplinary proceedings were vitiated on account of non-

observance of Rule 11(4) of the EIA Rules.

74.Regarding the findings of fact, as concluded by the Inquiring

Authority which have been accepted by the Disciplinary Authority while

passing the order of punishment of reduction in rank, we note that learned

Single Judge has found that the said findings are not liable to be interfered

with. Further, so far as the power of judicial review of orders passed in the

disciplinary proceedings is concerned, it is confined to reviewing as to

whether the disciplinary proceedings were conducted in accordance with

rules and the procedures regulating such proceedings. The Court, as is

settled, need not go into the findings of fact recorded by the Inquiring

Authority or Disciplinary Authority unless they are found to be absolutely

perverse.

75.We do not see any perversity in the findings recorded by the

authorities in the instant case and also note that both, the Inquiring Authority

and the Disciplinary Authority, have elaborately considered the evidence

available on record and have returned the findings conclusively based on the

evidence, finding that all the Article of Charges against the petitioner are

proved, which do not require any interference by the Court.

LPA 313/2024 & LPA 1045/2024 Page 50 of 52

76.It is, thus, not a case based on no evidence in the sense that the

Disciplinary Authority has not recorded its finding of guilt without there

being any evidence on record and accordingly, the judgment cited by the

petitioner in Bhupenderpal Singh Gill (supra)is of no avail to him. To the

contrary, it helps the cause of the respondent. In paragraph 33 of the report

in Bhupenderpal Singh Gill (supra), Hon’ble Supreme Court has reiterated

the settled law that an administrative order punishing a delinquent employee

is not ordinarily subject to correction in judicial review because the

Disciplinary Authority is the sole judge of the facts and further that if there is

some legal evidence on which findings can be based, then adequacy or even

reliability of that evidence is not a matter for canvassing before the High

Court in a writ petition filed under Article 226 of the Constitution of India.

77.The Hon’ble Supreme Court has held in the said case that if on

consideration of the material on record, the Court is satisfied that there has

been violation of principles of natural justice, or inquiry proceedings have

been conducted contrary to the statutory regulations, or the ultimate decision

of the Disciplinary Authority is vitiated by considerations extraneous to the

evidence and merits of the case, or the Disciplinary Authority has ex-facie

acted arbitrarily or capriciously so much so that no reasonable person could

have arrived at such a conclusion, the High Court may in exercise of its

discretion interfere in such punishment orders. Para 33 of the judgment in

Bhupenderpal Singh Gill (supra)is extracted hereunder:

“33. Certain generic principles governing interference with orders of

punishment that are passed following inquiry proceedings have evolved

over a period of time. Law is well settled that an administrative order

punishing a delinquent employee is not ordinarily subject to correction in

judicial review because the disciplinary authority is the sole judge of facts.

If there is some legal evidence on which the findings can be based, then

adequacy or even reliability of that evidence is not a matter for canvassing

before the high court in a writ petition filed under Article 226 of the

LPA 313/2024 & LPA 1045/2024 Page 51 of 52

Constitution. However, should on consideration of the materials on record,

the court be satisfied that there has been a violation of the principles of

natural justice, or that the inquiry proceedings have been conducted

contrary to statutory regulations prescribing the mode of such inquiry, or

that the ultimate decision of the disciplinary authority is vitiated by

considerations extraneous to the evidence and merits of the case, or that

the conclusion of the disciplinary authority is ex facie arbitrary or

capricious, so much so that no reasonable person could have arrived at

such conclusion, or there is any other ground very similar to the above, the

high court may in the exercise of its discretion interfere to set things right.

After all, public servants to whom Article 311 of the Constitution apply do

enjoy certain procedural safeguards, enforcement of which by the high

court can legitimately be urged by such servants depending upon the

extent of breach that is manifestly demonstrated.”

78.As far as the manner in which the disciplinary proceedings in the

instant case have been conducted, we have already arrived at a conclusion

that the proceedings were conducted in accordance with the requirements of

EIA Rules and that at every stage where the rules required, the petitioner was

given opportunity of being heard or making representation. We do not find

that the respondent in any manner has violated the principles of natural

justice so that it can be held guilty of non-observance of the procedural

fairness contrary to the requirements of the EIA rules. It is also not a case of

no evidence as is apparent from a perusal of the records including the order

passed by the Disciplinary Authority, which is well elaborated and discussed

and is based on the detailed discussion on the evidence available on record

and the Inquiry Report submitted by the Inquiring Authority as also the

representation made by the petitioner against the findings in the Inquiry

Report.

79.As far as the reliance placed by the petitioner on Kunj Behari Mishra

(supra) and Yoginath D. Bagde (supra) is concerned, it is noteworthy that in

the said cases, after submission of the Inquiry Report by the Inquiring

Authority, the Disciplinary Authority had taken a view different from the

LPA 313/2024 & LPA 1045/2024 Page 52 of 52

view taken by the Inquiring Authority with regard to the charges leveled

against the delinquent employee and it is in this background it has been held,

that in case the Disciplinary Authority takes a view different from the view

taken by the Inquiring Authority, the delinquent employee has to be given an

opportunity and he should also be supplied with the reasons of different view

taken by the Disciplinary Authority. So far as the facts in the instant case are

concerned, the Disciplinary Authority had not taken a view different from

the view taken by the Inquiring Authority as regards the findings on charge

against the petitioner in as much as that both these authorities have found the

charges to be proved. Accordingly, these judgments do not have any

application to the facts of the instant case.

80.For the aforesaid reasons, it is difficult for us to maintain the judgment

and order passed by learned Single Judge.

81.Resultantly, LPA No. 1045/2024 filed by the respondent is allowed

and LPA No. 313/2024 is hereby dismissed. The impugned judgment and

order dated 06.03.2024 passed by learned Single Judge in W.P.(C) No.

3940/2017 is also set aside.

82.However, there will be no order as to costs.

(DEVENDRA KUMAR UPADHYAYA)

CHIEF JUSTICE

(TEJAS KARIA)

JUDGE

JANUARY 22, 2026

N.Khanna/“shailndra”