Retired Officer Cannot Be Termed As “Public Servant” Under Export Inspection Employees Rules, 1978: Delhi High Court

A single judge bench of the Delhi High Court comprising of Justice Tushar Rao Gedela while deciding a Civil Writ Petition in the case of Parveen Kumar vs Export Inspection Council & Ors has held that a retired officer appointed as Inquiry Officer does not fulfil the criteria of “public servant” under Rule 11(2) of the Export Inspection Employees (Classification, Control & Appeal) Rules, 1978 (EIA Rules).

Background Facts

Parveen Kumar (Petitioner) was working as a Technical Officer in Export Inspection Agency under the office of Export Inspection Council (Respondent). In 2013, the Petitioner was directed to proceed to sub-office (SO), Kanpur to hold charge but the Petitioner requested to not depute him on tour to SO Kanpur. The same was rejected and the Petitioner stood relieved from EIA Delhi Head Office. In 2014, the Respondent again directed the Petitioner to be deputed on tour to SO, Kanpur till further orders. However, Petitioner was unable to submit a proper tour programme due to which a charge memorandum was issued against the Petitioner alleging disobedience of the order of deputation.

A disciplinary enquiry was initiated against the Petitioner in which he made a representation against the illegal appointment of an ineligible person, being a retired public servant, as Inquiry Officer in contravention of Rule 11 of the EIA Rules. The aforesaid representation was rejected by the Respondent. The Disciplinary Authority passed an order of penalty of reduction in rank from Technical Officer to Lower Post of Junior Scientific Assistant against the petitioner. Thereafter, the Petitioner preferred a statutory appeal which was dismissed by the Appellate Authority. Aggrieved by the same, the Petitioner filed the present Civil Writ Petition, challenging the impugned orders of the Disciplinary Authority and the Appellate Authority.

The Petitioner contended that the order of Disciplinary Authority is violative of Principles of Natural Justice and EIA Rules as it is contrary to Rule 11 (2) of EIA Rules. Rule 11(2) prescribes the Inquiry Officer to be a “Public Servant” but the Inquiry Officer in the present case was a retired employee and was not in active duty. Thus, retired employees cannot be called a Public Servant. It was further contended that the Petitioner was not granted any opportunity of hearing by the Disciplinary Authority before passing the impugned order as according to Rule 11 (4) of the EIA Rules, after the written Statement of Defence is submitted, if the Charged Officer seeks hearing, the Disciplinary Authority must grant such hearing before passing the final order. However the Petitioner was never granted any Personal Hearing even though he had sought one.

On the other hand, it was contended, inter alia, by the Respondent that even the retired officers would remain public servants and as such, the Inquiry Officer was appointed is in accordance with the EIA Rules. The Inquiry Officer was paid remuneration for the purposes of conducting inquiry against the Petitioner who is a public servant and the disciplinary proceedings itself would fall within the public duty of the Respondent. It as further submitted that there was no defence raised by the Petitioner in the defence statement except making allegations except against the officers and authorities. Thus if personal hearing was granted, the Petitioner would've simply continued the tirade of baseless allegations.

Findings of the Court

The court observed that the plain language of Rule 11(2) of the EIA Rules signifies that the Inquiry Officer must be a servant of the public and not a person who 'was' a servant of the public. Thus, the Inquiry Officer who was appointed, admittedly being a retired officer of the respondent, did not fulfil the criteria of a 'public servant' and as such, the said appointment is violative of Rule 11 (2) of the EIA Rules.

The court further observed that the opportunity of personal hearing is not a mere formality. It is intrinsic and intertwined not only with the disciplinary proceedings but also with the principles of natural justice. The court relied on the case of Yoginath D. Bagde Vs. State of Maharastra & Anr wherein the Supreme Court had held that the right of personal hearing is an indelible right and ought to be afforded to the Charged Officer. It is a Constitutional right of the employee which cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution of India, 1950

With the aforesaid observations, the Civil Writ Petition was allowed in part and the matter was remitted back to the Disciplinary Authority.

Case No. : Civil Writ Petition No. 3940/2017

Case Name: Parveen Kumar vs Export Inspection Council & Ors

Citation: 2024 LiveLaw (Del) 405

Counsel for the Petitioner(s): Petitioner in person

Counsel for the Respondent(s) : Mr. L.R. Khatana, Advocate

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