Central Administrative Tribunal - Delhi
Sh. Amar Singh vs Govt. Of Nct Of Delhi & Ors. Through on 12 August, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
MA No.1414/2014
In
OA No.1045/2012
Reserved on:18.07.2014
Pronounced on:12:08.2014
Honble Shri G.George Paracken, Member (J)
Honble Shri Shekhar Agarwal, Member (A)
Sh. Amar Singh
Post Graduate Teacher-Delhi
r/o C-1/137, Yamuna Vihar
Delhi-110 053. Respondent in MA/Applicant in
OA
(By Advocate: Sh. Bani Singh)
Versus
Govt. of NCT of Delhi & Ors. through
1. The Chief Secretary,
Govt. of National Capital Territory of Delhi,
I.P.Estate, New Delhi-110 054.
2. The Pr. Secretary (Education),
Govt. of National Capital Territory of Delhi,
Old Secretariat
Delhi-110 054.
3. The Director of Education,
Govt. of National Capital
Territory of Delhi,
Old Secretariat
Delhi-110 054. ..Applicants in
MA/Respondents in OA
(By Advocate: Mr. K.M. Singh)
O R D E R
By G.George Paracken, Member (J):
MA No.1414/2014 This Miscellaneous Application has been filed by the Respondents in OA No.1045/2012 on 05.05.2014 seeking grant of extension of time for 5 months from the date of filing of it so as to enable the competent authority to pass appropriate orders in compliance of the order dated 02.11.2012 passed therein, in the interest of justice. The operative part of the said reads as under:-
5. We have heard the learned counsel for the applicant Shri Bani Singh and the learned counsel for the respondents Mrs. Sumedha Sharma. It is seen that this Tribunal remitted the matter to the respondents way back on 27.07.2010. Thereafter, the disciplinary authority has thereafter appointed an Inquiry Officer only on 04.04.2011, i.e., after 8 months. The inquiry officer also took another almost 8 months to submit his report to the disciplinary authority. However, the disciplinary authority has found certain procedural irregularities/discrepancies in the said report and remitted the matter to the Inquiry Officer. The position as on date is that the Inquiry Officer has not yet even finalized the report in spite of the fact that the applicant has already retired from service on 31.03.2012.
6. No doubt, the inordinate delay on the part of the respondents has caused great prejudice to the applicant. His retirement dues are still not settled. In the above facts and circumstances of the case and in the interest of justice, we grant further time of three months to the inquiry officer to finalize his report and submit the same to the disciplinary authority. On receipt of the inquiry officers report the disciplinary authority shall complete the necessary statutory requirements as per law and pass appropriate orders within next three months. The applicant may submit his appeal on the same, if so advised, and the appellate authority, on receipt of the same, shall consider and dispose of it within a period of two months thereafter. We also direct that, the applicant shall fully cooperate in the remaining part of the inquiry. In case the authorities concerned fails to comply with the aforesaid time schedule for finalization of the inquiry report, in spite of full cooperation extended by the applicant, this inquiry proceedings itself will abate from the expiry of the said date and the respondents will be liable to finally settle all the retirement dues of the applicant within two months thereafter.
7. With the aforesaid directions, this OA is disposed of. There shall be no order as to costs.
2. According to the Miscellaneous Applicant (Respondents in the OA), after the receipt of the aforesaid order dated 02.12.2012, the enquiry was got completed on 31.12.2012 and, vide letter dated 28.03.2013, the copy of the enquiry report was supplied to the Applicant for his comments/representation. Besides, they have made payment of provisional pension and other dues admissible under the rules. Thereafter, the Director of Education, vide his letter dated 28.10.2013, forwarded the case of the Applicant to the M/o Home Affairs, Government of India for passing Presidential Order under Rule 9 of the CCS(CCA) Rules, 1965. But the Ministry of Home Affairs, vide its letter dated 30.10.2013, returned it, with the direction to route the same through Director of Vigilance who would examine the same before referring the matter to them. Thereafter, a number of letters were exchanged between the Ministry of Home Affairs and the Respondent-Director of Education. Lastly on 13.03.2014, the Principal Secretary (Education) in his letter to the Home Secretary informed them that the Applicant had filed a Contempt Petition No.512/2013 before this Tribunal and a final decision in the matter regarding Presidential Order has to be taken immediately. Thereafter, the Ministry of Home Affairs, vide its letter dated 01.04.2014, informed the Department that the Applicants case will be examined first by them and then it will be referred to the UPSC for its advice and the UPSC alone would take at least 3 months in the matter. Thus, a total of 5 more months are required to finalize the case.
3. The Respondent (Applicant in OA) has filed his reply opposing any such extension of time. In this regard the learned counsel for the Respondent has relied upon the judgment of the Apex Court in Three-Judge Bench in Balwant Singh & Ors. vs. Anand Kumar Sharma & Ors. (2003) 3 SCC 433 wherein it has explained in what circumstances the duty cast upon a private party can be said to be mandatory or directory. The relevant part of the said judgment reads as under:
7. Yet there is another aspect of the matter which cannot be lost sight of. It is a well settled principle that if a thing is required to be done by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland, Statutory Construction, 3rd edition, Vol. 3 at p. 107, it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At page 111 it is stated as follows:
"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."
4. We have heard the learned counsel for the Miscellaneous Applicant Shri K.M. Singh and the learned counsel for the Respondent Shri Bani Singh. It is seen that the order of this Tribunal dated 02.11.2012 was to be implemented by the Respondents in a time bound manner as the retirement dues of the Applicant were not settled by the Respondents. We have, therefore, granted 3 months time to the Enquiry Officer to finalize his report and to submit the same to the Disciplinary Authority and the Disciplinary Authority to pass its orders within next 3 months and thereafter, the Appellate Authority to pass its orders within 2 months. But the Enquiry Officer, in violation of the aforesaid direction, took more than 8 months to submit his report. The Disciplinary Authority has not even passed its orders so far. Thus the period prescribed for implementation of the aforesaid order has expired by June, 2013. But this MA for extension of time has been filed only on 05.05.2014, that is, much after the expiry of the prescribed period. If the Application for extension of time for implementation of the order of this Tribunal is not filed before the expiry of the prescribed period, there is no question of entertaining such an application.
5. The same issue has been considered by a co-ordinate Bench of this Tribunal in TA No.66/2013 Prabha Devi Vs. U.O.I. through the Chairman, Railway Board and Another decided on 18.07.2014. The relevant part of the said order reads as under:-
8. We agree with the learned counsel for the Applicant that the Applicants case is squarely covered by the judgment of the Bombay High Court in the case of Smt. Shashikala A. Kisan Awad (supra) wherein it has been held that when the court has issued the Succession Certificate, the Railway authorities were bound to comply with the same. The Accounts Officer has no business to question its validity. In its judgment in S. Nagaraj & Others Vs. State of Karnataka and Others 1993 Supp4 SCC 595, the Apex Court held: Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper.
9. In view of the above facts and circumstances of the case, we allow this OA and direct the Respondent No.2 to settle the Applicants claims for pension and all other terminal benefits on the basis of the Succession Certificate produced by her within a period of 2 months from the date of receipt of a copy of this order. For the avoidable delay caused by Respondent No.2, it is also liable to pay interest at the rate of 10% to the Applicant on all the dues from the date of issuance of the Succession Certificate, i.e., 08.02.2012. In the above facts and circumstances of the case, the Applicant is also entitled for a cost of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses which shall also be paid to her within the aforesaid period. Later, the Respondent No.2 may recover the said amount from the concerned officer(s) who is/are responsible for not making the payments to the Applicant despite the production of Succession Certificate.
6. In view of the above position, this MA is dismissed. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh