Central Administrative Tribunal - Delhi
Sh.Deep Chand vs Uoi & Ors Through on 18 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1623 OF 2013 New Delhi, this the 18th day of March, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Sh.Deep Chand, s/o Sh.Laxmi Narain, 42/4897, Reghar Pura, Karol Bagh, New Delhi 110005 . Applicant (By Advocate: Mr.M.K.Bhardwaj) Vs. UOI & ors through 1. The Secretary, Ministry of Defence, South Block, New Delhil 2. The Director General Quality Assurance, Ministry of Defence, Department of Defence Production, Directorate General of Quality Assurance (DGQA), 234 South Block, New Delhi 110011 3. Directorate of Quality Assurance, Ministry of Defence (DGQA), Directorate of Quality Assurance (Naval), West Block V, R.K.Puram, New Delhi 66 . Respondents (By Advocate: Mr.Satish Kumar) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following reliefs:
(i) To quash and set aside the impugned order dated 01.10.2012.
(ii) to quash and set aside the impugned order dated 04.06.2010 and 10.11.2010 and further direct the respondents to treat the intervening period as spent on duty.
(iii) to direct the respondents to implement the punishment order dated 04.06.2010 from the date of order of compulsory retirement i.e. 21.09.2004 and release the annual increments to the applicant w.e.f. July 2007 with arrears of pay.
(iv) To pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
(v) to allow the OA with cost.
2. Opposing the O.A., the respondents have filed a counter reply. The applicant has also filed a rejoinder reply to the respondents counter reply.
3. We have perused the pleadings and have heard Mr.M.K.Bhardwaj, learned counsel appearing for the applicant, and Mr.Satish Kumar, learned counsel appearing for the respondents.
4. On a perusal of the records, we have found that the facts and circumstances of the case leading to the filing of the present O.A. have precisely been stated in the orders which are impugned by the applicant. Therefore, without narrating the detailed statement of facts contained in the O.A., counter reply, and rejoinder reply filed by the parties, we extensively quote the impugned orders for the purpose of considering the claims made by the applicant.
4.1 The order dated 4.6.2010 (Annexure A/2) reads thus:
ORDER Whereas major penalty proceedings were initiated against Shri Deep Chand, TA II vide chargesheet dated 20 Feb 2003 on two charges of habitually raising personal loans from the bank/financial institutions, failing to repay the loan partly and thereby indulging in habitual indebtedness, despite being penalized on this score in the past, and forging the signature of Shri MK Jain, ACSO (Retd.) and replicating his official stamp on the irrevocable letter of authority to raise loan of Rs.70,000/- from Union Bank of India, Safdarjung Development Area, New Delhi.
And whereas Shri Deep Chand, ex-Technical Assistant Grade II had been imposed penalty of Compulsory Retirement vide Order No.A/99672/238/DGQA (Vig Cell) dated 21 Sep 2004 under CCS (CCA) Rules,1965.
And whereas Shri Deep Chand, Ex-TA II had submitted an appeal dated 15 Oct 04 against the penalty order and the same was rejected by Appellate Authority vide Order No.A/99672/38/ DGQA(Vig Cell) dated 02 Dec 2004.
And whereas Shri Deep Chand, Ex-TA-II had submitted a revision petition dated 12 May 2005 against the penalty order and the same was rejected by Competent Authority vide Order No.C/99672/38/DGQA (Vig Cell)/93/D(QA) dated 24 Nov 2005.
And whereas Shri Deep Chand, ex-Technical Assistant Grade II, having been aggrieved, filed a Writ Petition No.8635/2008 in Honble High Court of Delhi. The Honble High Court vide its judgment dated 26 Mar 2009 directed the Department to consider representation to be submitted by Shri Deep Chand within four weeks to Revisionary Authority and the said authority may look into the matter once again in so far as quantum of punishment is concerned.
And whereas Shri Deep Chand has submitted his Mercy Petition dated 18 May 2009 seeking quashing of the punishment of Compulsory Retirement.
And whereas the said Shri Deep Chand vide his Mercy Petition dated 18 May 2009 inter alia contended the following:
(a) That he was compelled to take personal loan from various sources to meet exceptional contingency in the family. The loans were taken from nationalized banks, cooperative societies and other financial institutions when the family was in dire need and the whole exercise was done with their consent.
(b) That he has 15 years of unblemished service except for one incident of censure imposed for raising of loans beyond his means. He has contended that his version has been misunderstood and he was given compulsory retirement from service. He has further stated that the said compulsory retirement has snatched the livelihood of a poor family belonging to Scheduled Caste community.
(c ) That he while accepting that the provisions of CCS (Conduct) Rules, 1964 for indebtedness have been correctly applied, he has also stated that such acts were not against the interest of the Organization. He has further stated that the punishment meted out has led to shifting his children to low profile school and his wife to suffer psychological problem and trauma.
(d) That he concurs that the loans were raised from the banks by hiring the services of a local agent who completed the documents on the basis of information furnished by him. It has further been stated that the applicant has failed to honour commitments for repayments only after some time due to disturbance in the family.
(e) That he while elaborating the reasons considered by the Disciplinary Authority for imposing punishment of compulsory retirement has stated that the defaults were committed only after repaying some of the instalments. He has also given the present status of loans that were mentioned in the charge sheet.
(f) That he has also given additional information on the present status of liquidation of loans that were not covered in the charge sheet.
(g) That he while stating the liquidation of loans of UBI and PNB banks has said that the Govt. has not suffered any loss at any stage.
(h) That he has stated about the sufferings caused to him as all the doors for fresh employment in Govt. service have been closed. The tag of removal from Government service has also been bothering the appellant in seeking employment elsewhere. This has caused suffering to him as he is unable to meet the responsibility towards old parents, wife and two minor children.
(i) That he has finally requested for pardoning of the charges of misconduct.
And whereas the President after considering the aforesaid representation of Shri Deep Chand in the light of various mitigating factors, precedent cases and principle of equity and justice to re-examine the Penalty of Compulsory Retirement vis-`-vis of offence finds the following:
(a) That the salary in respect of Shri Deep Chand was never attached as a result of recovery proceedings by his lenders so long as he was in service prior to his compulsory retirement.
(b) That he has already liquidated the entire loan amount.
(c ) That as far as second charge of forging signature of Shri MK Jain on irrevocable letter of authority is concerned, it is on record that the individual contended that initial copy of irreovacable letter of authority dated 07 Feb 2002 does not bear the signature of the borrower at the left hand side at the bottom of the letter, but in the Xerox copy of the same letter signature of the borrower is reflected. It is indicated in Para 8 b(ii) of the Inquiry Report that the CO himself agreed that he has signed the irrevocable letter of authority blank and handed over to the bank agent but his inference of the Inquiring Authority accepted subsequently by the disciplinary action does not clarify as to whether original letter bore signatures of the borrower or not. However, it is a fact that this undertaking was unauthorized.
(d) That it is a fact that Shri Deep Chand is having liabilities towards his family consisting of his old mother, wife and two minor children.
And whereas the President, after having considered all the relevant facts and circumstances, decides that the ends of equity and justice would be met with the award of the punishment of reduction by three stages of pay from the pay drawn by him immediately before imposition of penalty of compulsory retirement on 21 Sep 2004 for a period of three years with further direction that he will not earn increments during this period of three years and the reduction will have the effect of postponing future increments of his pay. Consequently the punishment awarded vide order dated 21 Sep 2004 is cancelled. Shri Deep Chand is hereby reinstated in service with effect from the date of Compulsory Retirement. Since he has been found guilty of the charges and has not performed any duty during the period from Compulsory Retirement to the date of reinstatement, it is ordered that the period from the date of his compulsory retirement to the date of his reinstatement should be treated as dies non.
(By order and in the name of the President) Sd/ (Subhash Chand) Under Secretary to the Govt. of Inida 4.2 The order dated 10.11.2010 (Annexure A/2) reads thus:
DAILY ORDER PART II Sr.No.17/2010 10 Nov 10 (Last published DO Part II Sr.No.16/2010 dated 08 Nov 10) FIXATION OF PAY AS PER 6TH CPC Shri Deep Chand,TA Pay fixed at Rs.11860/- with Grade Pay of Rs.4200/- in the Pay Band II of Rs.9300-34800 with effect from 01-01-06. Date of next increment and pay after increment is as follows:
Date of increment Amount of increment Pay in the pay band/scale Grade Pay Total 01-01-06 11860 4200 16060 Date of next increment falls on 07 Jul 2014 No payment of arrears from 21 Sep 2004 to 11 Jul 2010 due to period DIES NON.
Authority:
PCDA/SO Pune letter No.P/3/2/T-3/QAE dated 09 Nov 10 4.3 The order dated 1.10.2012 (Annexure A-1) reads thus:
IMPLEMENTATION OF CAT (PB) DELHI ORDER DATED 12 APR 2012 IN O.A.NO.3512/2011 FILED BY SHIR DEEP CHAND, TA QAE (WE) PUNE.
1. Reference representation dated 25 Apr 12 submitted by Shri Deep Chand, TA of QAE (WE) Pune in consequent to CAT (PB) Delhi order dated 12 Apr 12 in OA No.3522/2011 filed by him against Presidential Order No.C/ 99672X/ 38/DGQA (Vig.Cell)/98/FTS/D(QA)/2010 dated 04 Jun 10.
2. Shri Deep Chand, TA was compulsorily retired from service vide order dated 21 Sep 2004 on account of penalty imposed after disciplinary action for indebtedness. His appeal dated 15 Oct 2004 was rejected by the Appellate Authority vide order dated 02 Dec 2004. The Revision Petition dated 12 May 2005 submitted by him was also rejected vide Presidential Order dated 24 Nov 2005.
3. Shri Deep Chand filed an OA 1237/2006 at CAT, PB, New Delhi, which was dismissed vide order dated 16 Nov 2007. The individual filed a WP No.8635/2005 in the High Court of Delhi which was dismissed vide order dated 26 Mar 2009 with the direction that it would be entirely within the discretion of the Revisionary Authority to vary the punishment or not and the order that would be passed by the Revisionary Authority in this behalf will not accord fresh cause of action to the petitioner. Shri Deep Chand preferred a mercy petition dated 18 May 2009 which was duly considered and by order No.C/99672/38/DGQA(Vig Cell)/98/ FTS/D(QA)/2010 04 Jun 2010 the penalty of compulsory retirement was cancelled and a fresh penalty of Reduction of his pay by three stages of pay from the pay drawn immediately before imposition with further direction that he will not earn increments during this period of three years and the reduction will have the effect of postponing future increments of his pay was imposed. It was also ordered that the period from the date of his compulsory reteirement to the date of his reinstatement should be treated as dies non.
4. Consequent to the order dated 04 Jun 2010 Shri Deep Chand was reinstated and joined QAE (WE) Pune wef 11 Jul 2010 and his pay was fixed after reduction by three stages to remain so far three years vide QAE (WE), Pune DO Pt. II order dated 10 Nov 2010. The period from 21 Sep 2004, date of compulsory retirement, to 11 Jul 2010, date of reinstatement was treated as dies non.
5. Shri Deep Chand, after joining QAE (WE) Pune filed OA No.3522/2011 in the CAT (PB) Delhi. The Tribunal by its order dated 12 Apr 2012 disposed off the OA permitting the applicant to withdraw the OA and make a representation against the respondents order dated 04 Jun 2010 within a period of one month, which the respondents shall decide within a period of three months by passing a reasoned and speaking order.
6. Shri Deep Chand, vide representation dated 25 Apr 12 has stated as follows:
(a) As per revised punishment three increments were taken away i.e., 2004, 2003 and 2002. As this penalty was for three years i.e. up to 2004, he should be given increment in the year 2005 itself.
(b) Since Honble High Court has found the punishment (compulsory retirement) excessive, intervening period should be treated as EOL or leave of kind due. The period has been treated as dies non without justification.
(c ) The intervening period from 21 Sep 2004 to 11 Jul 2010 be regularized for the purpose of fixation and next increment released from 2005 with consequential benefits.
7. The representation has been examined on the basis of facts of the case and relevant rules and position is as follows:
(a) Treatment of intervening period as dies non: As per FR 54, only where the authority competent to order re-instatement is of opinion that the Govt. servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Govt. servant shall be paid full pay and allowances and the period of absence treated as duty for all purposes. In other cases, i.e., where he has not been fully exonerated, the absence shall not been (sic) treated as duty unless directed by the re-instating authority. Shri Deep Chand has not been exonerated fully and his penalty has only been reduced. Further Presidential Order dated 04 Jun 2010 specifically holds that the period from 21 Sep 2004 to 11 Jul 2010 is to be treated as dies non. The Honble High Court, Delhi in its order dated 26 May 2009 in WP No. 8635/2008 had held that the order made by revisionary authority to vary the punishment will not accord fresh cause for appeal by the petitioner.
(b) Release of next increments: The penalty imposed vide order dated 04 Jun 2010 can take effect only after the date of issue and cannot be enforced retrospectively. Further the period from 21 Sep 2004 to 11 Jul 2010 is treated as dies non as per the order dated 04 Jun 2010 and as per FR 54 the period is not be counted as the qualifying service for the purpose of increment. The service qualifying for pay and increment to which the penalty can be applied commenced only on his reinstatement wef 12 Jul 2010. In this connection QAE (WE) Pune Part II order dated 10 Nov 2010 regarding pay fixation as approved by PCDA Pune also refers.
8. In view of the above the order dated 04 Jun 2010 holding the period of absence as dies non is as per FR 54 and cannot be assailed in view of specific condition laid down to this effect by the High Court, Delhi while directing the competent authority to reconsider the penalty.
9. The request made by Shri Deep Chand vide his representation dated 25 Apr 12 is not tenable and therefore not acceded to.
10. Shri Deep Chand, TA may be informed accordingly. Sd/ (Mahavir Prasad) Dy.Director (Pers) For Addl DGQAN
5. It was contended by the learned counsel appearing for the applicant that in the absence of any provision contained in FR 54 empowering the revisionary authority to pass an order as to how the intervening period from the date of compulsory retirement/dismissal/removal/termination till the date of reinstatement will be treated, the order dated 4.6.2010 passed by the revisionary authority treating the intervening period from the date of applicants compulsory retirement till the date of his reinstatement without affording a reasonable opportunity to the applicant of being heard, is unsustainable in the eyes of law. It was also contended by the learned counsel that the punishment as imposed on the applicant is not prescribed in Rule 11 of the CCS (CCA) Rules, 1965. It was further submitted by the learned counsel that the punishment of compulsory retirement dated 21.9.2004 having been set aside and, in lieu thereof, the punishment of reduction by 3 stages of pay from pay drawn by the applicant immediately before imposition of penalty of compulsory retirement for a period of 3 years with further direction that the applicant will not earn increments and the reduction will have the effect of postponing of future increments, having been awarded by the revisionary authority, the respondents ought to have released the annual increments to the applicant with effect from July 2007 and not from July 2014.
6. Admittedly, the applicants appeal and revision petition against the penalty order of compulsory retirement passed by the disciplinary authority were dismissed by the appellate and revisionary authorities. OA No.1237 of 2006 filed against the orders passed by the disciplinary, appellate and revisionary authorities was also dismissed by the Tribunal. W.P. ( C ) No. 6635 of 2008 filed by the applicant against the Tribunals order was also dismissed by the Honble High Court, vide order dated 29.3.2009. While dismissing the writ petition, the Honble High Court, however, observed as follows:
.At the same time, having regard to the aforesaid circumstances explained by the petitioner, we can only observe that the petitioner may make a representation to the Revisionary Authority within four weeks and the said authority may look into the matter once again in so far as quantum of punishment is concerned.
We, however, make it clear that it would be entirely within the discretion of the Revisionary Authority to vary the punishment or not and the order that would be passed by the Revisionary Authority in this behalf will not accord fresh cause of action to the petitioner. In pursuance of the aforesaid observation of the Honble High Court, the applicant made a mercy petition dated 18.5.2009, on which the order dated 4.6.2010 ibid was issued in the name of His Excellency the President of India. In terms of the observation of the Honble High Court contained in the judgment dated 29.3.2009, the order dated 4.6.2010 ibid did not accord a fresh cause of action to the applicant. In compliance with the order dated 4.6.2010 ibid, the applicant was reinstated in service on 12.7.2010. After his reinstatement, the applicant filed OA No.3522 of 2011 before this Tribunal. The Tribunal, vide order dated 12.4.12012, disposed of said O.A. with the following direction:
9. In the above facts and circumstances of the case and in the interest of justice, we dispose of this OA with liberty to the applicant to withdraw this OA and make a representation to the respondents against its aforesaid order dated 04.06.2010. If such a representation is made within a period of one month, the respondents shall decide the same within a period of three months by passing a reasoned and speaking order under intimation to the applicant. There shall be no order as to costs. Being armed with the Tribunals order dated 12.4.2012 ibid, the applicant made a representation to the respondent-Department against the order dated 4.6.2010 ibid. As the said representation was not decided within the stipulated period, the applicant filed Contempt Petition No.805 of 2012. When the said Contempt Petition was taken up for consideration on 1.3.2013, the respondents counsel submitted that the Tribunals order dated 12.4.2012 was implemented by the respondents. Accordingly, the Tribunal, vide order dated 1.3.2013 closed the Contempt Petition and granted liberty to the applicant to challenge the said order passed by the respondents. Hence, the applicant has filed the present O.A. praying for quashing the aforesaid orders dated 4.6.2010, 10.11.2010 and 1.10.2012.
7. After carefully going through the impugned orders passed by the departmental authorities, we have found that the contentions as raised in the present O.A. have been duly taken into consideration and findings have been arrived at by the respondent-departmental authorities thereon. On the facts and in the circumstances of the case, the applicant cannot be allowed to challenge the jurisdiction and power of the revisionary authority, i.e., His Excellency the President of India, to pass the order treating the intervening period of the applicant from the date of compulsory retirement till the date of reinstatement as dies non in terms of FR 54, more so when on his mercy petition the said decision was taken by the revisionary authority while setting aside the penalty of compulsory retirement and imposing a lesser punishment with direction for his reinstatement. When by the order dated 4.6.2010 ibid the applicant was awarded the penalty of reduction by three stages of pay from the pay drawn by him immediately before imposition of penalty of compulsory retirement on 21.9.2004, for a period of three years with further direction that he will not earn increments during this period of three years and the reduction will have the effect of postponing future increments of his pay and it was specifically stipulated that the period from the date of applicants compulsory retirement to the date of his reinstatement should be treated as dies non, and when the applicant was reinstated in service on 11.7.2010, he cannot be said to be entitled to annual increments during the period which was treated as dies non. As the applicant was not fully exonerated of the charges, the intervening period from the date of his compulsory retirement till the date reinstatement was rightly treated as dies non in terms of FR 54. Therefore, the modified punishment as imposed by the revisionary authority on the applicant has rightly been implemented by the respondent-departmental authorities only on his reinstatement in service in accordance with the order dated 4.6.2010 ibid. It is wrong to say that the punishment as awarded by the revisionary authority, vide order dated 4.6.2010, is not one of the penalties prescribed in Rule 11. In the above view of the matter, we find no substance in any of the contentions raised by the learned counsel for the applicant. There is, thus, no infirmity in any of the orders impugned in the O.A.
8. In the light of the above discussions, we hold that the O.A. being devoid of merit is liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN