Central Administrative Tribunal - Allahabad
Sanjay Kumar Singh Aged About 42 Years ... vs Union Of India Through Secretary on 21 October, 2013
Reserved on 26.09.2013 CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD Original Application No. 1075 of 2013 Allahabad this the, 21st day of October, 2013 Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Honble Ms. Jayati Chandra, Member (A) Sanjay Kumar Singh aged about 42 years S/o Shri Dharam Raj Singh, R/o 66A/1B Bari Bagia, Allahabad. Applicant By Advocate: Sri Bhagirathi Tiwari Versus 1. Union of India through Secretary, Department of Personnel and Training and Public Grievances, New Delhi. 2. The Comptroller & Auditor General of India, 10 Bahadur Shah Zafar Marg, New Delhi. 3. Ad-hoc Disciplinary Authority (Sri Sarad Chaturvedi), Accountant General (A&E)-II, U.P. Allahabad. 4. Deputy Accountant General (Admn.) O/o A.G. (A.E.-II) U.P., Allahabad. Respondents By Advocate: Sri Rajnish Kumar Rai O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD The applicant has prayed for the following relief(s): -
(1) To issue a writ/directions/orders in the nature of certiorari quashing the impugned orders dated 18.06.12 (Annexure A-1) and all subsequent orders (03.07.2012, 22.04.2013 and 24.06.2013) thereafter, without jurisdiction and with mala-fide.
(2) To issue a writ/directions/orders in the nature of Mandamus commanding the respondents to set a side the impugned orders dated 18.06.2012 and all subsequent orders passed by irregular Ad-hoc Disciplinary Authority who is Appellate Authority.
(3) To issue a writ/directions/orders in the nature of Mandamus commanding the respondents to decide the pending representations (A-2) filed against appointment of Ad-hoc Disciplinary Authority.
(4) To consider any other relief which the Honble Tribunal may deem fit in the facts and circumstances of the case.
(5) To award the cost of the application throughout.
2. Learned counsel for the applicant has submitted that the instant O.A. has been filed against the irregular designation/assignment of ad hoc Disciplinary Authority in holding disciplinary proceedings, taking action on the inquiry report and thereafter imposing major penalty on the applicant violating the provisions of Rules 11 and 12 of CCS (CCA) Rules, 1965. Accordingly, prayer has been made to quash all the consequential orders including actions vitiated and taken by the said irregularly appointed ad hoc Disciplinary Authority who is the Appellate Authority as per CCS (CCA) Rules, 1965. The pending representations in the matter, moved by the applicant before the authorities, have also not been decided so far.
3. Sri R.K. Rai, learned counsel for the respondents was also present at the time of hearing of the O.A. on the point of admission. He contended that this O.A. is not maintainable as the order impugned by the applicant is an inter-departmental order which does not confer any legal right on the applicant. He has further contended that in this case after holding a detailed inquiry against the applicant, final order imposing penalty has been passed by the competent Disciplinary Authority on 24.06.2013. The applicant has got legal remedy of Appeal hence, he should have preferred an Appeal before the competent Appellate Authority but without availing that legal remedy, available to him, he has approached this Tribunal which is not justified and the O.A. should be dismissed at the stage of admission itself.
4. Learned counsel for the applicant has challenged the confidential letter which is in the form of D.O. No. 100-Staff (Disc.I) 5-2012, and was sent by the Assistant Comptroller & Auditor General (N) to the Accountant General (A&E)-II, U.P., Allahabad on 18th June, 2012 in connection with initiating disciplinary proceedings against certain employees (37 in number) including applicant. Our attention has been drawn by learned counsel for the respondents towards the observations made by the Honble Supreme Court in the case of Union of India and others Vs. Vartak Labour Union (2011) 4 SCC 200. In that case, the dispute was regarding an office memorandum dated 02.02.2001 which according to the respondents (in that case) was an approved scheme for absorption and for regularization of casual workers. It was contended by the appellants in that case that it was merely in the nature of an inter-departmental communication between the Border Roads Development Board Headquarters and its officials. The Honble Apex Court after examining the entire matter observed that it is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right. In Sethi Auto Service Station & Another Vs. Delhi Development Authority & Others (2009) 1 SCC 180, the Honble Supreme Court has observed, as follows: -
Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned. Similar view was taken by the Honble Supreme Court in the case of Jasbir Singh Chhabra & Ors. Vs. State of Punjab & Ors. (2010) 4 SCC 192, in which it was observed, as under: -
It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. On the strength of the aforesaid observations of the Honble Supreme Court, learned counsel for the respondents has argued that it was an internal-confidential letter of the department to the A.G., U.P., Allahabad for initiating disciplinary proceedings against some officials who were found prima facie responsible for creating troubles in the smooth functioning of the Office of A.G., U.P., Allahabad. It is also submitted that no fundamental right of appeal has been taken away from the applicant by the respondents by passing the impugned order. He has been given legal right to prefer Appeal against the order passed by the Disciplinary Authority, and whether the copy of notification of the Order passed by the President of India is communicated to the applicant or not is not very material for the purpose of initiating the inquiry proceedings. Thus, it is contended by the respondents counsel that the applicant has come before this Tribunal against an inter-departmental order i.e. annexure A-1 and accordingly the O.A. is not maintainable.
5. Respondents counsel has further submitted that admittedly the inquiry proceedings against the applicant have been completed and the Disciplinary Authority by a detailed and reasoned order dated 24.06.2013 has imposed the punishment on the applicant and last paragraph of this order informs the applicant regarding his legal right to prefer an appeal against the order within a period of 45 days from the date of receipt of the order in terms of Rule 23 of CCS (CCA) Rules, 1965.
6. It apparently shows that the applicant has got a legal right to prefer an appeal against the order of penalty passed by the respondents but instead of preferring an appeal to the Appellate Authority, he has approached this Tribunal. Section 20 of the Administrative Tribunals Act, 1985 clearly provides that normally the applicant can approach the Tribunal only against the final order passed by the respondents. In other words, unless it is proved on record that the applicant has availed of all the remedies available to him under the relevant service rules for redressal of his grievance, the Tribunal shall not ordinarily admit an application. In the present case, as already discussed above, there is legal remedy available to the applicant to prefer an Appeal against the penalty order passed by the respondents (Disciplinary Authority). The respondents are competent to decide the representations of the applicant, as per rules, and simply because the representation submitted by the applicant on 17.05.2013 has not been decided and communicated to the applicant, it does not give any legal right to the applicant to approach this Tribunal.
7. Thus, after hearing the learned counsel for the parties and after perusal of papers on record, we are of the view that this O.A. is premature and not maintainable at this stage. Hence, the O.A. is hereby dismissed at the admission stage itself. No order as to costs.
(Ms. Jayati Chandra) {Justice S.S. Tiwari}
Member A Member J
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