Bijoy K.C. v. The Chairman, F.C.R.I. Governing Council, Fluid Control Research Institute, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** ## **WP(C) NO. 22578 OF 2021** ## **PETITIONER/S:** BIJOY K.C., AGED 48 YEARS S/O.K.C.SREEDHARAN(LATE), EXECUTIVE ASSISTANT (UNDER SUSPENSION), FLUID CONTROL RESEARCH INSTITUTE (F.C.R.I.), KANJIKKODE SEST, PALAKKAD-678 623, RESIDING TYPE III STAFF QUARTERS, FCRI CAMPUS, KANJIKKODE, PALAKKAD-676 623. BY ADV U.BALAGANGADHARAN ## **RESPONDENT/S:** 1 THE CHAIRMAN, F.C.R.I. GOVERNING COUNCIL, (JOINT SECRETARY), DEPARTMENT OF HEAVY INDUSTRIES), UDYOG BHAVAN, NEW DELHI-110 011. 2 FLUID CONTROL RESEARCH INSTITUTE, REPRESENTED BY ITS DIRECTOR, KANJIKODE, PALAKAKD-678 623. 3 THE DEPUTY DIRECTOR (DIRECTOR IN CHARGE), FLUID CONTROL RESEARCH INSTITUTE, KANJIKODE, PALAKKAD-678 623. 4 THE DIRECTOR, FLUID CONTROL RESEARCH INSTITUTE, KANJIKKODE, PALAKKAD-678 628. 5 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEAVY INDUSTRIES, UDYOG BHAVAN, NEW DELHI-110 011. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI KURYAN THOMAS PAULOSE C. ABRAHAM JOSON MANAVALAN ## **OTHER PRESENT:** ASGI S.MANU;SC FOR FCRI V.JAYAPRADEEP ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** ## **08.03.2022, THE COURT ON 02.06.22 DELIVERED THE FOLLOWING:** W.P.(C) No.22578 of 2021 -2- ## **JUDGMENT** Dated this the 02[nd] day of June, 2022 The petitioner is working as Executive Assistant in the Fluid Control Research Institute, Palakkad. He is aggrieved by the disciplinary proceedings initiated against him pursuant to Ext.P2 memo dated 31.08.2021. The allegations upon which the disciplinary proceedings initiated, as stated in Ext.P2 are as under; The petitioner submitted Ext.P3 detailed reply to Ext.P2, refuting the allegations as false and ill-motivated. Not being satisfied with the reply, the petitioner was issued Ext.P4 show cause notice. The petitioner submitted Ext.P5 reply followed by Ext.P6 pointing out that the documents relied on in the show-cause notice should be made available to him. Thereupon, W.P.(C) No.22578 of 2021 -3- Ext.P7 was issued providing an opportunity to the petitioner to peruse the documents at the office. Not being satisfied, the petitioner submitted Ext.P8 demanding that the copies should be made available to him. While so, the petitioner was placed under suspension as per Ext.P9 order and issued with Ext.P10 memorandum of charges and statement of imputations. This writ petition was thereupon filed seeking to set aside Ext.P10 and for a declaration that the petitioner was not liable to be proceeded under the Fluid Control Research Institute (Conduct, Discipline and Appeal) Rules (“FCRI (CDA) Rules), based on Ext.P10. 2. Although various contentions are urged by the learned Counsel for the petitioner assailing the factual foundation for initiating the disciplinary action, I do not propose to consider those factual contentions at this intermediary stage, being fully aware of the ## W.P.(C) No.22578 of 2021 -4- limited scope for interference into the disciplinary proceedings in exercise of the jurisdiction under Article 226. 3. The seminal legal contention urged by the learned Counsel for the petitioner is regarding the lack of competence of the third respondent to initiate disciplinary action against the petitioner. The basis for such contention is that the third respondent is not the full time Director, but only the Director-in- charge. The incumbent Director retired on 31.05.2020 and thereupon, the third respondent was assigned additional charge of the post of Director with effect from 01.06.2020. The specific contention is that, being a person holding additional charge, the third respondent can only handle the day-to-day affairs of the Director and cannot exercise disciplinary powers, for which only the full time Director has authority. In support of the contention, learned ## W.P.(C) No.22578 of 2021 -5- Counsel placed reliance on Ext.P15 minutes of the Governing Council of the FCRI as per which the third respondent was made the Director-in-charge for performing the functions and duties of the post of Director for a period of six months or till the appointment of a regular incumbent or until further orders, whichever is earlier. Based on Ext.P15 decision, Ext.P12 Office Order was issued by the incumbent Director, stating that the competent authority had assigned additional charge of the post of Director to the third respondent with effect from 01.06.2020. Simultaneously, Department of Heavy Industry issued Ext.P14 order acknowledging the entrustment of additional charge of Director to the third respondent. In order to lend support to the contention that, having been assigned additional charge of Director, the third respondent is not vested with the power to initiate disciplinary action, reliance is placed W.P.(C) No.22578 of 2021 -6- on the decisions in _**Marathwada University v. Seshrao Balwant Rao Chavan [1989 (3) SCC 132], Maridev (M.) (M.Mariyappa) v. State of Mysore and others [ILR 1968 Kar 270] and B.N.Dhotrad v. - Board of Directors/Cum Appellate Authority, Karnataka Land Army [2006 (5) AIR (Kar)(R) 395].**_ Learned Counsel also drew attention to the Government of India Guidelines regarding Board Level appointments in Central Public Sector Enterprise to contend that, for the assignment of charge to the third respondent to be legitimate, the same has to be approved by the Appointments Committee of the Cabinet (ACC). 4. Learned Standing Counsel for the FCRI contended that the factual assertions of the petitioner are baseless and the legal contentions without merit. It is argued that having been assigned additional charge of the post of Director, the third respondent has every W.P.(C) No.22578 of 2021 -7- authority to exercise the functions and duties of the Director, including disciplinary action against erring employees. It is pointed out that in Ext.P15 decision, the Governing Council entrusted the Director-in-charge with the authority to all functions and duties of the post. The decision of the Governing Council has been approved and consequential order issued by the parent department. It is pointed out that as per Clause 51 of the Memorandum of Association of the FCRI, the Director shall exercise the power of supervision and disciplinary control on all officers and staff. As such, there is absolutely no legal basis for the contention regarding lack of competency of the third respondent. 4. In the nature of the contentions urged, it is appropriate to have a close scrutiny of the Ext.P15 minutes of the Governing Council of the first respondent. Therein, after referring to Rule 16(a) of the Rules and Regulations of FCRI, ## W.P.(C) No.22578 of 2021 -8- which is to the effect that the Director shall be the principal executive officer of the Society and also that, all or any of the functions of the Director may be exercised by such officer or officers of the Society as may be delegated, the Governing Council resolved that the Director-incharge will perform the functions and duties of the post with effect from 01.06.2020. In turn, the Ministry and Department of Heavy Industry issued Ext.P14 order assigning the additional charge of the post of Director to the third respondent. The essential difference between an officer appointed to hold current duties of another post and an officer assigned additional charge of another post is clearly spelt out in the guidelines regarding Board Level appointments issued by the Department of Personnel and Training. The clarification is to the effect that, when an officer is assigned additional charge of another post, he is required to ## W.P.(C) No.22578 of 2021 -9- discharge all duties including statutory functions. However, when an officer is appointed to hold current duties of another post, he is required to attend to the usual routine day-today work of non-statutory nature attached to the post. Under Exts.P12, P14 and P15, the third respondent has been assigned the additional charge of the post of Director. Being so, the officer is entitled to discharge all duties including statutory functions. In _**B.N.Dhotrad** (supra)_ , the High Court of Karnataka reached the same conclusion based on the dictum in _**Maridev** (M.) (supra),_ the relevant portion of which reads as under; _“When an officer is appointed to officiate in a higher appointment, he is invested with the powers of the higher post, but when he isplaced in charge of the current duties of vacant post in a higher appointment, whether in additional to his own duties or independently, he cannot exercise any of the statutory powers of the office: he_ ## W.P.(C) No.22578 of 2021 -10- _can merely perform the day-to-day office duties.”_ The legal position being unambiguous, the contention that, being a Deputy Director assigned with the additional charge of the post of Director, the third respondent cannot take disciplinary action against the petitioner is liable to be rejected. In _**Marathwada University,**_ the officer concerned was not assigned the charge of a post, but was only appointed to hold current duties of another post. As such, the dictum laid down in that decision has no application to the case at hand. The other precedents cited are all rendered on different act of facts and having no application to the case at hand. The fact that the petitioner has filed Ext.R2(a) statutory appeal against his order of suspension and no contention regarding competency of the third respondent is raised in that appeal also assumes relevance. ## W.P.(C) No.22578 of 2021 -11- 5. The contention that the assignment of charge to the third respondent has not been approved by the ACC is no reason for this Court to interfere with the disciplinary proceedings, inasmuch as the orders extending the charge arrangement is seen issued by the concerned Ministry and Department. The factual contentions and allegations regarding violation of the principles of natural justice cannot be entertained at this intermediary stage. For the aforementioned reasons, the writ petition is dismissed, without prejudice to the petitioner's right to raise all other contentions before the appropriate authority. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.22578 of 2021 -12- ## **APPENDIX OF WP(C) 22578/2021** ## PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE OFFICE ORDER| |---|---| ||NO.23/21 DATED 12.08.2021 ISSUED BY| ||THE THIRD RESPONDENT TO THE| ||PETITIONER.| |Exhibit P2|A TRUE COPY OF MEMO DATED 31.08.2021| ||ISSUED BY THE THIRD RESPONDENT.| |Exhibit P3|A TRUE COPY OF EXPLANATION LETTER| ||DATED 06.09.2021 SUBMITTED BY THE| ||PETITIONER TO THE 3RD RESPONDENT.| |Exhibit P4|A TRUE COPY OF SHOW CAUSE NOTICE DATED| ||13.09.2021 ISSUED BY THE THIRD| ||RESPONDENT.| |Exhibit P5|A TRUE COPY OF REPLY SUBMITTED BY THE| ||PETITIONER DATED 17.09.2021 TO THE| ||THIRD RESPONDENT.| |Exhibit P6|A TRUE COPY OF LETTER SUBMITTED BY THE| ||PETITIONER DATED 17.09.2021 TO THE| ||THIRD RESPONDENT.| |Exhibit P7|A TRUE COPY OF SHOW CAUSE NOTICE DATED| ||20.09.2021 ISSUED BY THE THIRD| ||RESPONDENT TO THE PETITIONER.| |Exhibit P8|A TRUE COPY OF EXPLANATION LETTER| ||SUBMITTED BY THE PETITIONER TO THE 3RD| ||RESPONDENT DATED 20.09.2021.| |Exhibit P9|A TRUE COPY OF SUSPENSION ORDER DATED| ||11.10.2021 ISSUED BY THE THIRD| ||RESPONDENT TO THE PETITIONER.| |Exhibit P10|A TRUE COPY OF THE MEMORANDUM| ||ENDORSING THEREWITH ARTICLE OF CHARGES| ||AND STATEMENT OF IMPUTATIONS DATED| ||11.10.2021 ISSUED BY THE THIRD| ||RESPONDENT TO THE PETITIONER.| |Exhibit P11|A TRUE COPY OF RELEVANT PAGES OF FCRI| ||(CONDUCT, DISCIPLINE AND APPEAL)| ||RULES.| |Exhibit P12|A TRUE COPY OF OFFICE ORDER DATED| ||30.05.2021 ISSUED BY THE 4TH| ||RESPONDENT.| -13- ## W.P.(C) No.22578 of 2021 Exhibit P13 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 25/10/2021 Exhibit P14 TRUE COPY OF THE ORDER DATED 29/05/2020 ISSUED BY THE 5TH RESPONDENT Exhibit P15 TRUE COPY OF THE RELEVANT PAGE OF MINUTES OF THE 88TH GC MEETING HELD ON 27/05/2020 Exhibit P16 A TRUE COPY OF NOTING SHEET DATED 25.6.2019. Exhibit P17 A TRUE COPY OF THE INQUIRY REPORT OF INTERNAL COMPLAINTS COMMITTEE DATED 22.10.2021. Exhibit P18 A TRUE COPY OF THE OFFICE ORDER (26/2020) ISSUED BY THE 4TH RESPONDENT DATED 30.05.2020. Exhibit P19 A TRUE COPY OF ORDER DATED 01.06.2021 1ST RESPONDENT (WITH TYPED COPY).