Appointing Authority in Relation To The Public Servants
Appointing Authority Of Railway Employees
The word ‘Appointing Authority’ plays very significant role in the life of Public Servants when a penalty of Compulsory Retirement, Removal From Service or Dismissal From Service is decided to be imposed on him for proven misconduct. The word ‘Appointing Authority’ also plays very significant role when the Concerned agencies seek previous sanction of Appointing Authority for prosecuting public servants.
Appointing Authority And Article 311(1) of the Constitution Of India:
In accordance with the provisions contained in Article 311(1) of the Constitution Of India No person who is a member of a Civil Service of the Union or an all India Service or a Civil Service of a State or holds a Civil Post under the Union or a state shall be Dismissed Or Removed by an authority subordinate to that by which he was appointed i.e. Appointing Authority.
Appointing Authority And Section 19 Chapter-V of The Prevention Of Corruption Act, 1988:
In accordance with the provisions contained in Section 19 Chapter-V of The Prevention Of Corruption Act, 1988 – (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act alleged to have been committed by a Public Servant, except with the previous sanction (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) When for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section-(1) should be given by the Central Government or the State Government or any other Authority which would have been competent to remove the Public Servant from his office at the time when the offence was alleged to have been committed. It is thus evidently clear from the above that in any case sanction for prosecution cannot be given by an authority subordinate to the Appointing Authority.
Appointing Authority And The Railway Servants (Discipline And Appeal) Rules, 1968:
In relation to the Indian Railways Employees governed by The Railway Servants (Discipline And Appeal) Rules, 1968 it is clearly mentioned in Note (1) appended to Schedule-II of the Rules that an Appointing Authority or an authority of equivalent rank or any Higher Authority shall be competent to impose penalties specified in Clause (vii) Compulsory Retirement, (viii) Removal From Service and (ix) Dismissal From Service of Rule 6.
The Railway Servants (Discipline And Appeal) Rules, 1968 are made by the President Of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
The Indian Railways Employees not governed by The Railway Servants (Discipline And Appeal) Rules, 1968 are mentioned in Rule 3 (Application) of the Rules.
Appointing Authority of Indian Railways Employees is defined in Rule 2 of The Railway Servants (Discipline And Appeal) Rules, 1968. The Rule (2) Definitions:- (1) In these rules, unless the context otherwise requires – (a) ‘Appointing Authority‘ in relation to a Railway servant means – (i) The authority empowered to make appointments to the Service of which the Railway servant is, for the time being, a member or to the grade of the Service in which the Railway servant is, for the time being, included, or (ii) The authority empowered to make appointments to the post which the Railway servant, for the time being holds, or (iii) The authority which appointed the Railway servant to such Service, grade or post, as the case may be, or (iv) Where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that Service or to any grade in that Service or to that post; Whichever authority is the highest authority.
From plane reading of all the above, it is significantly clear that penalties specified in Clause (vii) Compulsory Retirement, (viii) Removal From Service and (ix) Dismissal From Service of Rule 6 cannot be imposed by the authority subordinate to the Appointing Authority.
Still many of the Authorities on the Indian Railways, Indian Railways Employees, Defence Helpers (DH) / Assisting Railway Employees (ARE) and Lawyers may not be clear on the term of Appointing Authority.
Appointing Authority And Delegation Of Powers:
Many of us go by the ‘Delegation Of Powers / Schedule Of Powers (SOP)’ circulated on different Railway Zones without keeping in mind that function of Appointing Authority in relation to imposition of penalties of Compulsory Retirement, Removal From Service or Dismissal From Service on a Railway Employee specified in Statutory Rule 6 of The Railway Servants (Discipline And Appeal) Rules, 1968, is exercise of Quasi Judicial Powers vested in Appointing Authority and, delegation of powers referred above is mere delegation of administrative powers. Similarly sanction for prosecution by the Appointing Authority is a statutory requirement under the Law.
It is thus of utmost importance that action in the above circumstance are to be taken by the appropriate Appointing Authority only.
Hon’ble Courts, Government Of India and Ministry Of Railways (Railway Board) have repeatedly clarified mechanism to determine Appointing Authority of Indian Railways Employees. The mechanism to determination of Appointing Authority will be covered in next sequel on railwayrule.com. Till then from the team of railwayrule.com wish all of you a very happy new year, 2018.