Shashi Prabha Jindal (not applicable) 03 October 2017
Siddharth Srivastava (Advocate) 03 October 2017
You may file review petition in supreme court.
Shashi Prabha Jindal (not applicable) 03 October 2017
Review rejected on ground of no merits
R Trivedi (advocate.dma@gmail.com) 03 October 2017
R Trivedi (advocate.dma@gmail.com) 03 October 2017
Siddharth Srivastava (Advocate) 03 October 2017
Shashi Prabha Jindal (not applicable) 04 October 2017
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
8. |
Appointments |
For all other class I posts. |
Director on the recommendation of the appointments committees. |
|
IMPOSTION OF PENALTIES
Sl. No. |
Penalties that be imposed |
Class of employees |
Authority that can impose the penalty shown in Col. I on employees own in Col II. |
Appellate Authority |
15. |
All major Penalties |
Class I (Heads of Deptts. & Secretary, NCERT) |
President |
Governing Body |
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
Questions of law decided by High Court of Delhi:
Legal issues raised by appellants in CA
Legal issue No.1
C.
D.
Legal issue No.2
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
“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.
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
Shashi Prabha Jindal (not applicable) 04 October 2017
Can Curative petition be filed in person?