The provision of Regulation 24-A of the Regulation ibid categorically provides that all the powers and functions which are vested in the President i.e. local government, Ministries or Departments of Government of India under the various Central Governments Rules shall be exercised by the Standing Committee of the ESIC and in view of the proviso of Rule of Regulation 8(6), the Standing Committee, with the approval of the Central Government, can decide not to adopt any such modification or as the case may be beside to adopt them with various variations as the Standing Committee may deem fit. Pension Rules of the Central Government shall apply either without or any modification or as the case may be with such variations as may be made.
The Hon’ble Apex Court in the case of Sahni Silk Mills (P) Ltd. Vs. ESI Corpn., reported in 1994 SCC (5) 346, (supra), in paras 13 and 18 has ruled as:-
It cannot be disputed that by the impugned resolution dated 28-2-1976 the Corporation not only delegated its power under Section 85-B(1) of the Act to the Director General, but also left it to the Director General to authorise any other officer to exercise the power under Section 85-B(1).
From Section 94-A it does not appear that Parliament vested power in the Corporation to delegate its power on any officer or authority subordinate to. the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85-B(1). If Section 94-A had a provision enabling the Corporation, not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of M. p.7 and Barium Chemicals Ltd. v. Company Law Board’. As such it has to be held that the part of the resolution dated 28-2-1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B(1) of the Act is ultra vires Section 94-A.
- These appeals and special leave petitions have been filed on behalf of the Employees’ State Insurance Corporation for setting aside the judgments of the different High Courts holding that in exercise of the power under Section 94-Aof the Act, the Corporation could not have delegated its power under Section85-B(1) by the aforesaid resolution dated 28-2-1976 to the Director General of the Corporation empowering him to authorise any other officer, to exercise the power under Section 85-B(1)of the Act.”
- Similarly, the Hon’ble Apex Court in the case of Varinder Mehta Vs. UOI and Ors.(supra) has ruled as under:-
“43. Accepting the submission of Ms. Indira Jaising would run counter to the well known maxim delegatus non protest delegare (or delegari). The principle is summed up in “Judicial Review of Administrative Action” De Smith, Woolf and Jowell (Fifth Edition) as follows:- “The rule against delegation A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is (OA No.3468-2015) being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another.” The same principle has been described in “Administrative Law” H.W.R. Wade & C.F. Forsyth (Ninth Edition), Chapter 10, as follows:-
“Inalienable discretionary power An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub- committees or delegates, however expressly authorized by the authority endowed with the power.”
On perusal of the provisions of the Regulations 1959, as quoted hereinabove, it is apparent that for imposition of major penalty in the case of Inspector/Manager, the competent authority is the Commissioner. So far as the reliance made on provisions of Rule 13 of the aforesaid Regulations is concerned, it is apparent that the Hon’ble High Court of Delhi has already considered the identical issue in the case of S.P. Vashisth (supra) as is apparent from para 23 of the said judgment and reproduced hereinabove.
The provision of Regulation 24-A of the Regulation ibid categorically provides that all the powers and functions which are vested in the President i.e. local government, Ministries or Departments of Government of India under the various Central Governments Rules shall be exercised by the Standing Committee of the ESIC and in view of the proviso of Rule of Regulation 8(6), the Standing Committee, with the approval of the Central Government, can decide not to adopt any such modification or as the case may be beside to adopt them with various variations as the Standing Committee may deem fit. Pension Rules of the Central Government shall apply either without or any modification or as the case may be with such variations as may be made.
The Ld. Tribunal in OA No. OA No.3468-2015 held that :-
For delegation of the powers through the DG, ESIC or the Chairman of the Standing Committee, the Standing Committee has never taken approval of the Central Government and, therefore, in view of the judgments of the Hon’ble Apex Court, referred to hereinabove, the delegation being claimed in favour of the Director General, ESIC or the Chairman of the ESIC is no delegation in the eyes of law. Thus, in view of the aforesaid facts, Regulation, Law and discussion, we are of the opinion that the impugned orders deserve to be set aside.”
- In the instant case, we find that the Appellate Authority was the Standing Committee, which is headed by the Secretary of the Department. However, the Standing Committee had not taken an approval of the Central Government to delegate such powers of dismissing the appeal in the capacity of Appellate Authority to the Chairman of the ESIC. On this account, especially in view of the regulation and law, the impugned order was not in consonance with the regulation and hence the same deserves to be set aside.
