Delegation of power by competent authority to commandant to impose penalty of removal - Repeal of rules - Delegation of powers by Director EM and E on 17.2.67 could not be availed of as the provision under which it was made was not retroactive in operation.

( 1 ) C. C. S. (C. C A.) Rules, 1965 which repealed the Civilians in Defence Services (C. C. A.) Rules of 1952 and did not contain any provision for delegation of functions by Competent Authority (Director of E. M. and E.) no more authorised Commandant, a delegate of the Director to impose penalty of removal and heace show cause notice and charge sheet issued by the commandant was not legal. Delegation of powers by the Director EM and E on 17. 2. 67 could not be availed of as the provision under which it was made was not retroactive in operation. Constitution of India, Art. 226. An interim order (show cause notice and charge-sheet) can be challenged if it goes to the root of the matter. The petitioner was appointed as Tin and Copper Smith (Class-111 post) in the grade of Rs. 100-130 in 1960 in Ministry of Defence. The appointment letter of the petitioner was issued by the Commandant who was delegated the power by the appointing authority. Since the petitioner was alleged to have violated Rule 3 (ii) of the C. C. S (Conduct) Rules, 1964 because of his habitual absence without leave, an inquiry was instituted by respondent 2 and a charge-sheet was issued on 11. 11. 71. After the Inquiry Report was available a show cause notice dated 12. 7. 72 was issued to the petitioner who has challenged this notice and charge-sheet in this writ petition u/art. 226 and 227 of the Constitution of India.

( 2 ) A preliminary objection was taken by the counsel for the respondent that the petition is premature inasmuch as only a show cause notice had been issued when petition was filed and no final order had been passed by the respondent. There is no force in this contention because the point raised by the petitioner goes to the root of the matter and once that point is decided no disciplinary proceedings can proceed. Dismissing the petition on the preliminary objection may only lead to multiplicity of proceedings and further delay. The preliminary objection, therefore, deserves to be rejected.

( 3 ) THE main point urged by the counsel for the petitioner was that the show cause notice and the charge-sheet were not issued by the competent authority since both were issued by an officer subordinate in rank to the appointing authority. It was contended that though the appointment of the petitioner was made by the Commandant who was validly delegated powers u/s 10 of Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 however in view of the coming into force of the Central Civil Services (CCA) Rules, 1965 (the 1965 Rules), the appointing authority of the petitioner was Director of Electrical, Mechanical and Engineering as provided in the Schedule. It was contended that in the Schedule to Rule 9 the appointing authority of an employee in Class- Ill would be the Director of E. M and E and since the Director of E. M. andewas higher in rank than the Commandant the show cause notice and the charge-sheet could have been issued only by the Director of E. M. and E and not the Commandant. It was contended that since the proviso to Rule 9 of 1965 Rules which gave the power to delegate was inserted only on 1. 7. 66 during the period of intergnum the petitioner got a vested right which could not be taken away by a subsequent amendment and delegation. It was contended that u/r 2 (a) of the 1965 Rules the power to remove could be exercised by whoever is the higher authority at the time when the order of removal is made. It was submitted that since the Director E. M. and E was an officer higher in rank though he got the power to delegate his functions after the amendment of Rule 9 by addition of the proviso, he could not delegate the powers in respect of those employees who were appointed prior to the date the proviso was added. Learned counsel for the petitioner referred to The judgement in : Dharam Dev v. UOI (1980)2 SCC 205

( 4 ) ON the other hand, learned counsel for the respondent contended that since by addition of the provi