Central Administrative Tribunal - Delhi
Gulshan Kumar S/O Sh. Dev Raj vs Union Of India (Uoi), Ministry Of ... on 16 January, 2008
ORDER Meera Chhibber, Member (J)
1. By this OA applicant has sought following reliefs:
Quashing and setting aside the impugned orders dated 16.02.2006 (Annexure-A), Memo dated 11.11.2002 (Annexure-A1), Memo dated 10.01.1997 (Annexure-A2), Memo dated 24.07.1996/06.01.1997 (Annexure-A3) and appellate order dated 18.01.2007 (Annexure-1A) Direct the respondents to pay all arrears of pay and allowances in respect of the increments lessened in accordance with the impugned order dated 16.02.2006 (Annexure-A) along with interest @ 24% p.a. since the day date his pay is reduced as per impugned order till the payment is made and fix his pay as per his entitlement.
Issuance of directions to the respondents to the effect that the applicant be immediately promoted to the next higher post of DE (Group-A) with all ancillary benefits since the day and date his Juniors have been promoted without any further delay.
2. It is stated by applicant that he was charge-sheeted vide memorandum dated 10.1.1997 on the allegations that:
while functioning as SDE (RLU), Shakti Nagar, New Delhi during the period 1992-95, has shown excess consumption of diesel for the engine alternators being maintained by him. During the aforesaid period the RLUs of Narela, Badli, Alipur Rohini etc. were being maintained by the said Shri Gulshan Kumar. During the aforesaid period the diesel consumption for 63 KVA engine alternators and for 30 KVA of RLU was shown as 16 ltrs. per hour and 10 ltr. per hour respectively. The average consumption of the engine alternators was checked by a team and also the average consumption of the same type of engine alternators were taken from SDE (Nangloi) and SDE (Janakpuri) Exchange and average consumption is calculated which is 8 Ltr. per hour for 63 KVA engine alternator and 5 ltr. / hour for 30 KVA engine alternator. The excess consumption of diesel in three years (1992-93, 93-94 & 94-95) amounts to Rs. 9,26,053/- as per details given below:
(A) AVERAGE CONSUMPTION
1. Average consumption taken by Shri Gulshan Kumar, SDE RLU in the calculation of Diesel Consumption for the RLUs under the control.
16 ltr/Hour for 63 KVA Engine Alternator 10 ltr/per hour for 30 KVA Engine Alternator
2. Average consumption measured by the Vigilance in a joint inspection with Shri Shivnandan Sharma SDE (RLU and Power Plant) Shaktinagar.
a. Badli exchange 8 ltr per hour for 63 KVA E/A b. Rohini Sector-3 7.5 ltr per hour for 63 KVA E/A c. Rohini Sector-9 6 ltr per hour for 63 KVA E/A d. Allipur Exchange 4.5 ltr per hour for 63 KVA E/A e. Narela Exchange 9 ltr per hour for 63 KVA E/A
3. Average consumption of 63 KVA E/A in Nangloi exchange as intimated by SDE Shri R.D. Sharma as - 8 ltr./hour and for 30 KVA E/A as 6 ltr. per hour.
Average consumption intimated by SDE (RLU) Janakpuri is as follows:
Najafgarh 32 KVA 4 ltr./hour
Smalkha RLU 30 KVA 5 ltr./Hour
62 KVA 6 ltr./Hour
D/Cantt. 62 KVA 7 ltr./Hour
4. Average consumption of 63 KVA E/A by keeping into account 2 and 3 above as
8 + 7.5 + 6 + 9 + 6 +
Badli Rohini Rohini Narela Smalkha
7 + = 43.5
D/Cantt. 6
5. Average consumption of 30 KVA E/A by keeping into account 2 and 3 above
4.5 + 4 + 5 + =13.5
Alipur Najafgarh Smalkha 3
Therefore average consumption for 63 KVA and 30 KVA E/A should be taken as 8 ltr. per hour and 5 ltr. per hour respectively.
(B) IMPREST/TY ADVANCES The total expenditure for imprest/temporary advance during 92-93, 93-94 and 94-95 by Shri Gulshan Kumar was Rs. 30,05,637 out of which Rs. 18,52,107 was spent on the purchase of diesel. The consumption of diesel in the Engine Alternators taken by Shri Gulshan Kumar is double that of actually found in the inspection and being taken in other exchanges. Therefore, the loss caused to the MTNL due to showing of excess consumption of diesel is Rs. 18,52,107/2=9,26,053.
Thus, by his above acts, the said Shri Gulshan Kumar committed grave misconduct, failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant, thereby contravening Rule 3 (1) (i) & (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE-II That during the aforesaid period and while working in the aforesaid Office, the said Shri Gulshan Kumar SDE (RLU), Shakti Nagar, New Delhi committed serious irregularities in connection with the running of diesel Engine alternators under his jurisdiction provided at Narela, Badli, Alipur, Rohini etc. In the said RLUs in the aforesaid period he did not maintain proper records of power failure and corresponding running of engine alternators in these exchanges. He neither verified the diesel consumption in RLUs maintained by him nor maintained proper records of power failures. On a sample check by the vigilance team for the period from 21.1.95 to 26.3.95, the Engine Alternator of Narela RLU was shown run but the records of D.E.S.U. office of Narela indicate that no complaint was booked from the Narela RLU exchange for power failure nor any records were maintained in RLU about the complaints booked with DESU. Thus the said Shri Gulshan Kumar did not take all possible steps to ensure the integrity and devotion to duty of the officials under his control and Authority and gave the scope for misappropriation of Government money on account of diesel consumption.
Thus by his above acts, the said Shri Gulshan Kumar committed grave misconduct, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant, and failed to ensure the integrity and devotion to duty of all the Govt. servants for the time being under his control thereby contravening Rule 3(1)(i), (ii) and (iii) and 3(2)(i) of CCS (Conduct) Rules, 1964.
3. A detailed enquiry was held and enquiry report was submitted on 16.8.2000 (page-71 at 96) holding therein the charge against CO is not proved for lack of evidence. The Disciplinary Authority however gave disagreement note after over two years on 11.11.2002 by simply relying on specifications of said KVA engine alternator consumption (page-39). Applicant gave his reply. The Disciplinary Authority imposed penalty of reduction of pay by two stages in the time scale of pay for a period of two years with immediate effect vide memorandum dated 16.2.2006 (page-35 at 38). Being aggrieved a detailed appeal addressed to the Chairman and Secretary, Department of Telecommunications under Rule 23 of CCS (CCA) Rules, 1965 was filed on 20.3.2006 (page-54) taking therein a number of legal points but since the same was not decided and applicant's name had been put in the sealed cover for next promotion, he filed OA No. 2307/2006, which was disposed of vide order dated 08.11.2006 by directing the respondent No. 4 therein to dispose of applicant's statutory appeal, if any pending, within a period of three months from the date of communication of this order (page-64B).
4. It is stated by counsel for applicant that though directions were given specifically to the Chairman and Secretary, Department of Telecommunications, Ministry of Communication and Information Technology by this Tribunal in the above said OA yet his appeal was wrongly rejected by MTNL vide order dated 18.1.2007 (page-31).
5. Counsel for applicant was taking a number of grounds to challenge the above said order. However, it may not be relevant to refer to all those grounds at this stage because while counsel for applicant was still on his legs, counsel for Union of India and MTNL intervened in the matter and suggested that since in the earlier OA direction was given to the Secretary, Department of Telecommunications, Ministry of Communication and Information Technology to decide applicant's appeal, this OA could be disposed of and the appeal would be decided by the Secretary, Department of Telecommunications, Ministry of Communication and Information Technology. Similarly, counsel for MTNL also submitted that at the time of issuing order dated 03.6.2006 for absorption of Shri Gulshan Kumar, there was a note written thereunder, wherein it was clearly mentioned that if there is any government servant: (i) under suspension; (ii) charge-sheet has been issued and disciplinary proceedings are pending; (iii) prosecution for a criminal charge is pending; (iv) working in the substantive cadre on 30.9.2000 and resigned from the service thereafter; (v) is not working in the above mentioned substantive cadre on 30.9.2000, the Presidential Order should not be given effect. In the instant case, since chargesheet was issued to the applicant and disciplinary proceedings were pending, applicant would still be continued to be the employee of Ministry of Communications. Counsel for respondents No. 1-2, in fact, invited our attention to the reply filed by them to state that even though this Court had directed fourth respondent to dispose of applicant's appeal but since applicant stood absorbed in MTNL and his administrative control was transferred to the said office, the appeal and court order was forwarded to MTNL for disposal of appeal. Accordingly, MTNL had decided applicant's appeal (page-6 of counter affidavit). Similarly, on page-2 of counter affidavit filed by MTNL in para-4, it is mentioned that the appeal filed by applicant was forwarded to Department of Telecommunications, who vide their communication dated 18.5.2006 intimated that since the officer is absorbed in MTNL, case may be decided by MTNL. Both the counsel submitted that the case could be disposed of by permitting the Ministry to decide applicant's appeal without going into the merits of the case at this stage, whereas counsel for the applicant vehemently opposed this suggestion by submitting that he has already been prejudiced in the matter as respondents have taken sufficient time in deciding his appeal and that too in spite of court's directions, a wrong authority has passed the order, therefore, he cannot be made to suffer for it therefore OA may be decided on merits.
6. We have considered all the contentions. From the facts as narrated above, it is seen we are faced with a very tricky situation because though Disciplinary Authority order has been passed by the Ministry concerned, which comes within Tribunal's jurisdiction but appellate order has been passed by MTNL. Admittedly, MTNL does not come within our jurisdiction as no notification under Section 14(2) of Administrative Tribunals Act, 1985 has been issued to bring it within the purview of this Tribunal, therefore, in normal course, we could not have decided the case but in view of the submissions made by counsel for Union of India as well as MTNL, it can safely be stated that since both the counsel themselves agreed that the appeal should not have been decided by MTNL and were willing even now that applicant's appeal could be decided by the Secretary, Department of Telecommunications, Ministry of Communication and Information and Technolgy, it can safely be concluded that the order passed by MTNL is not sustainable in law. Firstly, because a definite direction was given by this Tribunal to respondent No. 4 in the first OA to decide the statutory appeal of applicant vide order dated 08.11.2006 and respondent No. 4 was the Chairman and Secretary, Department of Telecommunications, Ministry of Communication and Information Technolgy. It is relevant to note that MTNL was also a party in the above said OA but specific direction was given only to respondent No. 4, therefore, even if there was some genuine difficulty faced by respondent No. 4 and there was any confusion as to who should pass the final order in the appeal, the least that was expected from the respondents was to bring those facts to the notice of this Tribunal and to seek clarification / modification of the order. Not having done so, it was not proper for the Department of Telecommunications to refer the matter to MTNL on their own. It goes without saying that once a specific direction is given by the Tribunal, it is required to be implemented in its letter and spirit. Secondly, counsel for respondents themselves came forward to say that even now appeal could be decided by the Secretary, Department of Telecommunications, Ministry of Communication and Information Technology. This clearly shows that they themselves were of the view that order passed by MTNL was not sustainable in law, therefore, the same is without any jurisdiction. It is settled law that any order, which is passed by an authority without jurisdiction, is nullity in the eyes of law. Therefore, it can also be stated that the appellate order does not exist.
7. In this backdrop suggestion given by respondents can be accepted because direction had already been given in OA 2307/2006 to the Chairman and Secretary, Department of Telecommunications, Ministry of Communication and Information Technology to decide applicant's appeal. Accordingly, this OA is disposed of by reiterating same directions making it clear that statutory appeal should be disposed of by respondent No. 4 herein within a period of six weeks from the date of receipt of a copy of this order by passing a reasoned and speaking order under intimation to the applicant. Since applicant is being deprived of his promotion and matter is getting further delayed due to fault of respondent No. 4, therefore, we impose a cost of Rs. 5,000/- on respondent No. 4 and also give liberty to the applicant to revive this OA, in case he is still aggrieved by the orders of respondent No. 4 on his appeal.
8. With above directions, present OA stands disposed of with a cost of Rs. 5,000/- against respondent No. 4 and in favour of applicant.