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Karnataka High Court
Judges : S.Abdul Nazeer
B.N.DHOTRAD - Appellant
Versus
BOARD OF DIRECTORS/Cum-APPELLATE AUTHORITY, KARNATAKA LAND ARMY - Respondent
Writ Petition 1134 Of 2002
Decided On : 07/19/2006
Advocates Appeared :
B.V.Prakash Angadi, KRISHNA S.DIXIT, M.R.C.RAVI
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Karnataka Land Army Cadre and Recruitment Rules, 1996 -In-charge Managing Director -Rule 94 -In-charge Managing Director - Exercise of substantive powers by - An in-Charge Managing Director is not a substantive appointee - Hence, cannot exercise substantive powers of the post - Charge sheet issued by regular Managing Director - But, in-charge Managing Director Constituted departmental enquiry committee - Also acted as disciplinary authority - Held, the proceedings are illegal. [S. Abdul Nazeer, J]: A Government servant appointed to be in-charge of current duties of an office cannot exercise any substantive powers of the office. He cannot discharge the statutory functions assigned to the post. He can merely perform the day today office duties because the powers other than substantive powers do not adversely affect the interest or rights of others. In the instant case, though the charge sheet was issued by the regular Managing Director, the in-charge Managing Director has constituted the departmental enquiry committee and has acted as Disciplinary Authority. Therefore, the enquiry proceedings from the constitution of departmental enquiry committee is illegal and it requires to be quashed. Similarly, the appellate order is equally bad and it also requires to be set aside.
Karnataka Land Army Cadre and Recruitment Rules, 1996 -Preamble -Preamble - Adoption of Karnataka Civil Services Rules (KCSR) by Land Army Corporation - Effect - Held, adoption of KCSR was not a measure to abrogate existing rules - Wherever Corporation rules have made a provision, KCSR would have no application.
Constitution of India -Substantive power or substantive function -Article 309 -Substantive power or substantive function - Meaning. [S. Abdul Nazeer, J]: Although, it is difficult to define the terms "Substantive Power" or "Substantive Function ", still it is not uneasy to illustrate the concept. The policy decisions and the actions to implement them fall within the realm of "Substantive Functions". Generally, in service jurisprudence, all the powers which the service Rules vest in the Authority or Office, expressly or by necessary implication may be termed as substantive powers.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Service Jurisprudence -Applicability of general rules-Applicability of general rules -Rules made for governance of statutory body - To cover certain exigencies not covered by such rules, general rules were adopted - Held, Wherever the specific rules have made a provision, the general rules have no application.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Service Jurisprudence -In-charge officer -In-charge officer - Extent of exercise of powers by. Settled principle: Officiating appointments, and in charge arrangements are well understood terms in civil service. When an officer is appointed to officiate in a higher appointment, he is invested with the powers of the higher post, but when he is placed in charge of the current duties of a vacant post in a higher appointment, whether in addition to his own duties or independently, he cannot exercise any of the statutory powers of the office: he can merely perform the day to day office duties only [1968(1) Mys LJ 325]. From the decisions of the Supreme Court it follows that a person appointed permanently or to officiate on a post holds that rank, whereas a person who is placed only in current charge of duties of a post does not hold that rank. Accordingly, those functions or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post". "…An Officer appointed to hold the current change of the duties of a higher post cannot exercise the statutory powers attached to that post unless there is a statutory provision to this effect [AIR 1973 MP 104].
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Service Jurisprudence -Substantive power or substantive function -Substantive power or substantive function - Meaning. [S. Abdul Nazeer, J]: Although, it is difficult to define the terms "Substantive Power" or "Substantive Function ", still it is not uneasy to illustrate the concept. The policy decisions and the actions to implement them fall within the realm of "Substantive Functions". Generally, in service jurisprudence, all the powers which the service Rules vest in the Authority or Office, expressly or by necessary implication may be termed as substantive powers.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Labour and services -In-charge officer -In-charge officer - Extent of exercise of powers by. Settled principle: Officiating appointments, and in charge arrangements are well understood terms in civil service. When an officer is appointed to officiate in a higher appointment, he is invested with the powers of the higher post, but when he is placed in charge of the current duties of a vacant post in a higher appointment, whether in addition to his own duties or independently, he cannot exercise any of the statutory powers of the office: he can merely perform the day to day office duties only [1968(1) Mys LJ 325]. From the decisions of the Supreme Court it follows that a person appointed permanently or to officiate on a post holds that rank, whereas a person who is placed only in current charge of duties of a post does not hold that rank. Accordingly, those functions or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post". "…An Officer appointed to hold the current change of the duties of a higher post cannot exercise the statutory powers attached to that post unless there is a statutory provision to this effect [AIR 1973 MP 104]. B.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Karnataka Civil Services Rules, 1957 -Applicability -Applicability -Rules for governance of statutory bodies - KCSR was adopted inspite of specific rules covering certain exigencies - Held, wherever specific rules have provided, the rules have no application.
Karnataka Civil Services Rules, 1957 -In-charge officer -Rules 32 and 68 -In-charge officer - Placing an officer of lower cadre as charge of a post of a higher cadre- Effect. [S. Abdul Nazeer, J]: In-charge arrangements and promotion are well understood in Civil service. Posting an Officer in the lower post to discharge the duties of the higher post without promotion is only an in-charge arrangement. It is the exigencies of public service that will be the relevant consideration and not the consideration of seniority while making such arrangement. A person was posted on independent charge basis does not hold the post on promotion. Under Rule 32 of KCSR, any employee in the next below post/cadre can be placed in charge or independent charge of a higher post. Similarly, in accordance with Rule 68 of the K.C.S.R. a Government servant can be appointed to be in-charge of the current duties of an office in addition to his own duties. He need not be the senior most. Generally, such arrangements are made for a short period. In exercise of these powers he may mar the service career of all other employees who are likely to compete with him for promotion. Therefore, he is not supposed to discharge the substantive functions of the post/office which he holds on in-charge basis.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
Labour and Services -Substantive power or substantive function -Substantive power or substantive function - Meaning. [S. Abdul Nazeer, J]: Although, it is difficult to define the terms "Substantive Power" or "Substantive Function ", still it is not uneasy to illustrate the concept. The policy decisions and the actions to implement them fall within the realm of "Substantive Functions". Generally, in service jurisprudence, all the powers which the service Rules vest in the Authority or Office, expressly or by necessary implication may be termed as substantive powers.
Cases Referred: ILR 1996 Kar 1407; AIR 1991 SC 1145; 1968 (1) Mys. L. J. 325; AIR 1973 MP 104.
( 1 ) THE question for consideration in this writ petition is 'whether an Officer, holding a post on in-charge basis, can exercise the substantive powers of the post ?'
( 2 ) BRIEF facts of the case are as follows: petitioner was an Assistant Task Force Commander in the Karnataka Land Army Corporation limited (for short 'corporation'), a Government of Karnataka Public Sector Undertaking. When he was working in the office of the Assistant Director of the Corporation, Bijapur, certain charges of misuse of advance amount and materials and default in making payment to material suppliers were levelled against him. In this connection, the Managing Director who is also the disciplinary Authority had issued a show-cause notice on 16. 07. 1997. The Disciplinary authority passed an order dated 29. 03. 2000 (Annexure 'a') whereby three annual increments of the petitioner was with-held with cumulative effect and recovery of No. 4,72,892. 53 was directed against him. The petitioner preferred an appeal against the said order on 03. 05. 2000. The Board of Directors being the Appellate Authority by their Resolution dated 29. 12. 2000 (Annexure 'c'), rejected the appeal and an intimation dated 23/24. 04. 2001 was sent to the petitioner accordingly. The petitioner has challenged the orders of the Disciplinary Authority and the Appellate authority in this writ petition.
( 3 ) I have heard the learned Counsel for the parties and perused the materials placed on record. Learned Counsel for the Corporation has made available the original records for the perusal of this Court.
( 4 ) LEARNED Counsel for the petitioner would contend that the impugned order of penalty passed by the Disciplinary Authority is without jurisdiction. The Disciplinary Authority was not appointed in accordance with law and he does not possess the required qualification and eligibility to hold the post of Managing Director. He was only a Technical Director appointed on contract basis and he was placed in-charge of the post of the Managing Director. A post of the managing Director can be filled up with a person holding a post of a Senior. A. S. Officer or engineer-in-Chief in the Government of Karnataka. A person placed in-charge of Managing director cannot exercise any substantive powers of the Office. Therefore, the order impugned is totally without jurisdiction. It is further contended that the appellate order is also not in conformity with the law.
( 5 ) ON the other hand, learned Counsel for the Corporation would contend that the Trade Union of the employees of the Corporation of which the petitioner is a member had filed a writ petition in w. P. No. 29032/1999 challenging the appointment of Sr. V. R. Gudi as in-charge Managing director. In the said case, an interim order was passed by this Court on 12. 04. 2000, rejecting the prayer of the petitioners therein restraining Sr. V. R. Gudi from discharging the functions of a managing Director. Therefore, the order passed by the in-charge Managing Director is valid and enforceable in law. He has also justified the appellate order.
( 6 ) IN reply, learned Counsel for the petitioner contends that, no doubt, the Trade Union of the employees of the Corporation had challenged the order of appointment of Sr. V. R. Gudi as in-charge Managing Director in W. P. No. 29032/1999. This Court while passing the interim order has clearly observed that the interim prayer granted is subject to the validity of the order of appointment of the in-charge Managing Director. Statement of objections was filed by the State government to the said writ petition on 05. 02. 2000, wherein it was stated that the in-charge managing Director will be relieved from the position as soon as they find a suitable person for the said post. Subsequently, the in-charge Managing Director has retired. Therefore, the validity of his appointment was not considered by this Court and the writ petition was disposed of as having become unnecessary. It i
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