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Copy of order and facts 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7563 OF 2011

NATIONAL COUNCIL OF EDUL.RES.& TRAIN.&ANR ……………………………………………….....APPELLANT(S)

VERSUS

SURENDRA NATH & ANR …………………………………………………………………………………………....RESPONDENT(S)

O R D E R

Heard.

1. Only question for consideration in this appeal is whether order of dismissal of Respondent No. 1 has  been passed by the competent authority.

2. Respondent No. 1 was appointed as a Lecturer with the appellant-National Council of Educational Research & Training on 22.09.1964 and was later confirmed in service. He was sought to be transferred vide order dated 27.09.1978. Since he did not join the new place where he was transferred, he was charge-sheeted for misconduct and dismissed from service on 11.08.1982, after enquiry. He filed a suit challenging the order of dismissal which was decreed on 13.02.1989 against which the appeal was dismissed on 18.02.1991. The Second Appeal filed by the appellant was dismissed by the High Court on 04.06.2010.

3. The Courts below consistently held that the Director of the Council who passed the order of dismissal was not the appointing Authority and on that ground, the dismissal order was void.

4. Our attention has been drawn to the Resolution of the Governing Body of the appellant- National Council of Educational Research & Training dated 11.02.1966 which document is Exhibit D-10 on record and it is the admitted case of the parties that the said document defines the Appointing Authority.

5. The Courts below proceeded on the footing that while the Appointing Authority is the Director for all class I posts other than the Heads of Departments, the Disciplinary Authority is the President i.e. the Minister. We, however, find that there is no authority specified to impose major penalty in respect of class I posts, other than the Heads of Departments, in which category the respondent falls. The relevant provision is as follows:

   Sl. No.      Nature of Power         Extent of Delegation     Authority to which Delegated              Remarks

IMPOSTION OF PENALTIES

6. In absence of any specific provision about the Authority to impose penalty in cases of the category of

Respondent No.1, it is the Appointing Authority which is competent to act as Disciplinary Authority. Thus, we do not find any error in the order of dismissal. The view taken in the impugned order cannot be sustained. Accordingly, the impugned order of the High Court is set aside.

7. However, having regard to the nature of misconduct alleged against Respondent No. 1, and having regard to the fact that he had already served for 18 years, we are of the view that instead of order of dismissal, the same ought to be substituted by an order of compulsory retirement from the said date and whatever benefits are payable to the respondent on that basis, may be worked out and paid within a period of four months from today, after deducting any payment which may have been made to Respondent No.1, beyond his entitlement after the order of dismissal.

8. The appeal is allowed in the above terms. No costs.

…..................J.

[ADARSH KUMAR GOEL]

NEW DELHI                                                                                                                                             …..................J.

25TH JANUARY, 2017                                                                                                               [UDAY UMESH LALIT]

Reasons why the judgment of the Supreme Court bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit  is prima facie unlawful; illegal and in violation of statutory Rules and Regulations of NCERT

1. In para 1 of the judgment, the Court has formulated and decided a Question Of Law that is different from the Questions of law decided by High Court of Delhi that addressed the issue raised before the Trial Court for starting litigation in Trial Court, and Legal issues raised by appellants in the CA. The Court has not addressed the Questions of law decided by High Court of Delhi and Legal issues raised by appellants in CA and also the issue for starting litigation in Trial Court.
2. The Supreme Court bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit has created false judicial records of facts of the matter decided by the courts below by creating and deciding a issue that was never raised before the courts below.

Questions of law decided by High Court of Delhi:

1. Whether the Director is the competent authority to initiate disciplinary action and pass the suspension and dismissal order against the respondent No. 1?
2. Whether the dismissal/termination order passed by the Director against the respondent No.1 is legal and valid?

Legal issues raised by appellants in CA

Legal issue No.1

1. “ The lower Courts below have not only failed to appreciate but  have completely misread and misinterpreted the Document(Extract of minutes of Governing Body meeting dated 31/08//1961) (ANNEXURE-P/1), provisions in Schedule of delegation of powers ( Annexure-P/7) (Exh -D/10 in the lower Trial Court), which clearly show the Director as the competent appointing as well as the disciplinary authority for posts  of Lecturers.”
2.  

C.

 D.    

Legal issue No.2

1. The reasoning of the learned Single judge, which formed the basis of the impugned order is wholly flawed and suffers from legal infirmities.   ….  The learned Single Judge has erroneously concluded that the respondent-Lecturer is a “Civil servant” and entitled to protection of Art 311.  “

Legal issue No.3

             The DB of Delhi High Court in another identical matter in LPA No. 140/1985 vide detail judgment dated 24.12.1999, after  reading the same documents containing the Service Regulations and Schedule of Delegated powers(referred to as Exh-D/10 in the suit and Annexure-P/7 herein) held that the Director is the competent appointing as well as the dismissing Authority ….”

FACTS

1. The text of the Schedule of Delegated powers(referred to as Exh-D/10 in the suit and Annexure-P/7)  placed by Appellants before the DB of Delhi High Court in LPA No. 140/1985 was different from the text of Delegated powers in Exh-D/10 and showed powers delegated differently. 
2. Trial Court, 1st appellate Court and High Court arrived at consistent findings that documents on record and decisions of the Governing Body made in its meetings indicate that Director had no power of Disciplinary Authority to suspend Respondent No.1 or dismiss him from services. The Court has set aside the consistent findings by the Trial Court, 1st appellate Court, High Court without giving a reason. 
3. The Supreme Court order confers power of Disciplinary Authority on Director in violation of Law and statutory Rules and Regulations of NCERT viz.
4. NCERT Rules 41 that specifies the Executive Committee as Appointing Authority for all NCERT employees. The law quoted by the court in para 6 of judgment is applicable on the Executive Committee being the Appointing Authority is also the Disciplinary Authority. The law quoted by the court in para 6 of judgment is not applicable on Director who has been delegated powers of appointing authority in Exh-D/10. The court has not recorded any reason for not considering NCERT Rule 41 for conferring power of Disciplinary Authority.
5. NCERT Rule 46 that empowers Executive Committee to delegate is powers to officers of NCERT. Executive Committee has not delegated  powers of Disciplinary Authority for imposing penalties on Lecturers.
6. NCERT Rule 53 that specifies powers of Director NCERT AS:

“The Director shall, in all matters under his charge, have the powers and duties assigned to him in these Rules and the Regulations or such powers and duties as may be delegated or entrusted to him by the Council or the Executive Committee or the Programmer Advisory Committee.” The court has not recorded any reason/justification for not considering NCERT Rule 53 for conferring powers on Director in violation of Rule 53.

1. Law of delegation of powers  specifies that a delegate can exercise powers only within the limits of  power  delegated. The powers of Appointing authority recorded in in Exh-D/10 are powers delegated to Director by Executive committee/Governing Body in exercise of powers conferred by Rule 46. No other authority   can confer powers on the delegatee.   
2. After arriving at findings consistent with the findings of the lower courts in para5 of the judgment that there is no evidence or any kind of document on record to show that Director was specifically empowered to exercise powers of Disciplinary Authority qua lecturers; The Supreme Court bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit  has amended  NCERT Rules in violation of NCERT Rule 73 that specifies that

Rule 73.   The Rules of the Council except Rule 72 may be altered at any time with the sanction of the Government of India by a Resolution passed by a majority of the members of the Council present at any meeting of the Council which shall have been duly convened for the purpose.

c. In  paras 3 and 5 of  the judgment the Court has made false allegations against the High Court of Delhi by recording incorrect and contrary observations, allegedly, from the judgments of the courts below that are not there in the judgments of the courts below viz..

Para 3 :   The Courts below consistently held that the Director of the Council who passed the order of dismissal was not the appointing Authority and on that ground, the dismissal order was void.

Para 5 : The Courts below proceeded on the footing that

    a.   while the Appointing Authority is the Director for all class I posts other than the Heads of Departments, the Disciplinary Authority is the President i.e. the Minister

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