Central Administrative Tribunal - Mumbai
Vijaykumar Sharma vs M/O Urban Development on 18 October, 2017
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/C I 1, c OA N0. 607/201 7 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI N BENCH , MUMBAi MA5:4tI£&'h N O.A.2l0/00607/2017 Date of decision 3 October 18, 2017 |' Coram: Hon'ble Shri Arvind J. Rohee, Member (J). QK'- .
Shri Vijaykumer Sharma, Executive Engineer (Electrical), Central Public Works Department, Nagpur Central Exectrical Circle, 3! 3! ,5 1! ii C.G.O. Complex, B Block, 3"-Floor, _"E Seminary Hills, Nagpur. - - R/o. Quarter No.l02, Type IV, CPWD Quarters, Seminary Hills Nagpur. ' I .. Applicant. K ( By Advocate Smt.R.g'. Sirpurkar ).
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. ' Versus -
I. a
1. 'Union of India, N
' Ministry of Urban Development,- _ Works Division, Central.Public Works Department, through its .
Secretary, Nirman Bhawan, New Delhi+1100l1. ' '
2. Under Secretary (EW--l), Govt. Of-India, ' '.Ministry of Urban Development, Nirman Bhawan, New_Delhi¥llOOll.
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3. _Superintending Engineer, - i E.2 (Electrical), , E1;:
ii ii Nagpur Central Electrical. E 11
- Circle, CPWD, " CGO Complex, B Block, ,;rzaw 3" Floor, Seminary Hills, Nagpur -- 440'OO6. l
-Email eeencec.gmail.com. .
_Respondente.
( By Advocate Shri R.R. Shetty y.-
E 2 \ \ E '.0-r ._.,._.,/.:.-|_,-.M..-.-,.-.-.)-v~>_: ------ -- ..__ ._;-..--...:--\")--,. <_;.'--K------------\\ - 2 OA No. 607/2017 » Qr<:1sr , , ,,-1.Qrsl ' i _ The_ matter is" taken up today' during Diwali Vacation, since ifima notices issued.kmz_the order dated 11.10.2017 were made returnable on . 1 -
18.10.2017; _ -
2. Smt. R.S. Sirpurkar, learned Advocate appeared for the applicant.' .
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3.- - _ On notice Shri. R.RL Shetty, learned
s __ .
Advocate appeared for the respondents. 'He has
filed short reply to the O.A- covering the prayer
for grant of interim relief and opposed it. It is
also .stated in- para 7 thereof 7 that the
representation submitted by the applicant is being processed by the= Representation Committee for taking a decision on it." ' _ ll -
4. ' The applicant who is presently working as Executive Engineer (Electrical), Central Public Works Department' (CPWD), Nagpur under , the respondents' has =grievance regarding time impugned order/communicaticml dated i?1.06.2017 (Annexure Ek-
1) passed by Respondent No.1 by which a decision is taken to retire him prematurely / compulsorily with effect from. the date of expiry of three months computed following the rnnma of service of cm?
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3 0A No. 607/2017
the notice. It is stated that the said notice was served cni the applicant cni 24.07.2017. .As such' _three.months time will expire on 24.10.2017.
5. In this O.A. the applicant has sought the following reliefs:~ - l | N . I - _
- "l) ' Call for the records and
-proceedings _to the order No.28018/5/2015--EW>1, 'dated .21"-
"June .2017 -LAnnexure pA~1) whereby' the respondent no.2 has issued an"
order of' compulsory} retirement under Rule _56(j)' .of the fundamental rights, effectuating compulsory retirement- of __the applicant from the service on the . forenoon of the date following the In date cu? _expiry cu? .3 months, computed from the date following- date <1f service <1f notice/order, on him i.e. 25.10.2017;.
. 2) "quash and set aside order No.Z8018/5/201--EW--1, dated' Z1"
- June 2017 (Annexure A-1) issued by the respondent no.2--the Under
- Secretary (EW--1)., Govt. Of India, Ministry of Urban Development.
3) -grant any other order or
_ re1ief' which' this- Hon'ble Court
may deem fi?iand_proper."- _
6. ll have heard kxnfii the learned Advocates for the parties on the issue of interim relief. -
7. The learned Advocate for- the_ applicant has. placed reliance on decision {rendered "by concurrent Benches of this Tribunal in similar \t
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- - 4 0A. N0. 607/2017 _ matters 111 which interim relief iifi granted.
Whereas the learned Advocate for the respondents
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referred' the recent decision rendered by this
Tribunal 1J1 O.A.No.529/2017 dated. 28.09.2017, in"
which similar- issue _was involved and O.A. was
disposed off' without granting interim relief
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against the order of compulsory retirement. It is
obvious from-perusal of said decision that this
Tribunal has disposed off the said O.A. with the-
following directions:-- 1
"9. Thematter has" been carefully ' ' considered and in the interest of the - applicant, it "would be appropriate to issue directions to the respondent No.1 ' to give= necessary H instructions to the " Representation Committee to convene its meeting and_ to have the representation of the applicant considered prior to his retirement - as far as _possible and to _pass orders on his representation within a period of two weeks from the date cm? receipt ¢u* certified_<mx3X fot-
- his order and to communicate.it to the' applicant. It is further directed that if his representation is accepted and lm2.is reinstated, he shall not be penalized for any
-loss of service that may have been occassioned inf the issue <1f this notice. - ~ . -
10. In view of the above, the _prayer for interim relief" is rejected. The - OA also stands disposed of vmfifii the consent of 23% Z/ .. .. ---------------------------- -:- .. ...__..__:._._:; , . . . . . .... .. . . . . ,. .. -''''' ''' ' ' ' '' ' ,.... ... ..\ »\~... » . . . . . .. _......_....._.______.....
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..... ........ ..... .. . . . . W y 5 0A No; so7/2017 both the learned Advocates for the parties, edii1 directions am; above
- to the Respondent No. 1. -
ll. iMna' applicant will lxa at liberty to approach the appropriate forum '_of- R--1/Representation Committee, in idrnfli event 1&2 will be at liberty to challenge both the .orders that -are passed by the Respondent 'ma. ,1..and the order - passed by the Representation Committee on his representation.l L2. ln the facts and circumstances of the case, no order as to costs. Registry ;ms directed ix) expedite issuance of certified copy of this orders for both the parties."
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8. It _is obvious from record that by the
impugned order dated 21.06.2017 three months
notice.1mma issued.ix> the applicant cmi expiry of
which Ina will stand. retire from. service an: the
forenoon} That period vmjj. expire <m1"24.10.2017
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as stated. ear1ier."IU: is obvious that ifimi-said
decision has been taken in view of the provisions of F.R.56(j), thereby prematurally/compulsorily retiring the applicant after he rendered 30 years of service. This period expired way back in 2011, since the date of applicant's entry in the service im1 the cadre zxf Junior" Engineer 1£3 07.08.1981. Under F.R.56(j) review is permissible after .the
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.-=-\.\§'?[§.:$-' -§.*i:)-' 0 6 , 0A No. 607/2017 employee completes 50 or 55' years of age or renders 30 years of service.
9. _ Under the rules statutory remedy of submissirui a representation -against. the :decision to. retire the employee" "prematurally" or compulsorilyr is :made anui the -applicant. has exhausted that ' remedy by submitting .the representation, which is yet to be decided by the Representation Committee. ' " "
10. During -the course ~of_ arguments, the learned Advocate for the applicant submitted that further tinmarmmy be granted.ix> the Representation Committee to decide the pending representation and till then the applicant's service be protected by keeping the_ impugned -order in abeyance. 1n support of this contention, reliance is placed on interim order dated 07.09.2017 passed by Hyderabad Bench <xf_CAT 1J1 OA DML 629/2017 ill case"<xf N. 1 _ . § El . /, _ Karunanidhi- Vs. CPWD, in which _the respondents therein are directed to examine the representation submitted Iby Tina-applicant enni pass appropriate order in accordance with law within a period of 15 days. It is further dircted not to give effect to n - ?
the impugned order dated 21.06.2017 by which he ~e-.Are»\%»e?-=>*"
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was compulsorily retired, untill further"orders of said .Court. Similalr order. passed at" interim I | stage"in O.A.No.629/2017 by the same Bench is also relied upona _ l ' I '
11. Another order dated 21.09.2017 passed by the Calcutta Bench" of 'this Tribunal on MA for extension <mf time ims also .relied "inwn1 by 1' _ applicant, kn? which iflna-respondents vmnme granted further time to consider and pass the order 'on representation -made agianst- the order "of compulsory "retirement and till then it is directed that _the, respondents shall maintain status guo. . _ 12; ' Considering time peculiar facts of' the present chase and since-" this Tribunal has already taken a view in O;A.No.526/2017 while disposing it of kn; holding that inns OLA. itself':Ms premature, since ijna statutory remedy tn? the representation has not_been exhausted, as provided under Section 20(1) of tins Administrative Tmibunals inn; 1985, and since no prejudice will be 'caused to the applicant, since he will be reinstated in service with full back wages in case his representation is allowed; In this behalf the learned Advocate for \ emrdi _ . ... . . . . . , ,. . . . . , .............
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C 8 - 0A Na. 607/2017
the applicant submitted that 1J1 case the interim
relief as sought is not"granted it will adversely
affect the .applicant, since on _expiry" of three
months, he will be treated as retired from.service
who has unblemish- record.' However this
consequence iii bound ix) occur, although iii case
I.
the applicant succeeds iJ1Ihis representation, the
respondents vmjj. have ix: reinstate lmmi with full
backwages and all other benefits and till the the applicant will have to wait. '
13. . Since the Division Bench is not available during" Vacation ifimms matter ii} taken inn before Single IBench anmi since rm: comments are rmnka on ' 1- merits of the claim and O.A; can be disposed of with time directions ix; the respondents inn decide the pending representations, this Tribunal is.of the considered view that there will kw2.no breach I rd? the "judicial. discipline i11_not following" the interim order ,passed by- concurrent Benches and relying imxwi the final"decision rendered by tmds Tribunal i11 .O.A.529/2017_ cni 28.09.20l7._ It appears that the OAs referred. by_ applicant are ' :5-
still pending"before concurrent Benches for final
adjudication. u . ' l
er
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_ 9 y 0,4 No. 607/201.7
14. . Further, learned" Advocate for the
respondents submitted that In; interbn relief can
be granted ix; the applicant, since iii granted it
will amount to restraining the Representation
Committee to consider and pass the order on it in view cmf_the following instructions issued in; the |-
Government of 1ndia:-- " '
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"6. Representation - from .
Government employee who have been served with a 'notice / order of premature retirement, but have obtained" stay order (s) _from -a ~Court against the order/ notice of premature retirement, .need not be considered- by- the _Administrative Ministry / Department or Office nor I' sent qto the Committee until the disposal of the Court case.
Thereafter the cases may be
examined as outlined above, also '"
.taking into account any material of a substantive _nature" that' may
- feature in the Court judgment." - -
15. _ In view of above in case an interim relief is granted. to _the _applicant keeping- the impugned order im1 .abeyance or .staying' its J .
implementation even for some period, it may amount
to encroaching upon the- "diretion of 'the
Representation. Committee ix) consider enni pass a
rm .
reasoned "order on the pending representation;
This is so because thereafter the 'only course
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- " 10 OA N0. 607/201 7
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available to the applicant will be to proceed with the O.A. on filing detail reply by the respondents disclosing grounds on which the.decision was taken \-
to -retire- the applicant prematurely/compulsorily kg? extending iflma interbn order. It its obvious that the concurrent Benches while granting interim relief has not considered this aspect of the case nor the provisions of Sectioni 20 of the Administrative Tribunals Act 111 which it is ?
specifically stated that the O.A. will not be
entertained if filed.without fully exhausting the
-ml
statutory remedies. For this~ reason also the
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applicant is not entitled to the interim relief.
16. - In view of above, it will be appropriate ;" .- ' 4 and in fitness' of' case to <iispose _of the WOHA. without granting any interim relief to applicant, but by issuing"appropriate'directions.' '
17. - The respondent No.1 and 2 are, therefore, directed"ix> apprise inns RepresentatLm2_Committee to . decide the pending representation dated 24.07.2017 submitted kn; the applicant, within. a period of three weeks from the date of receipt of certified copy of this order by passing a reasoned and speaking order thereon in accordance with law, is <-~=--"-
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was taken to retire the applicant prematurely/compulsorily.
18.- The decision so taken taken shall then be communicated to the_applicant at the earliest, who will be at liberty" to approach the appropriate forum in case his grievance still persists. -'
19. _ (M1 the request mmnka Steno <xnnr of this a order duly authenticated, shall he supplied to the -
applicant/his learned' Advocate and also to the
In ;
learned Advocate for respondents today itself, for
taking appropriate steps in the matter.
20. The O.A.-stands dispoaai off with above \-
directions, after_ hearing" both the parties and without making any comments on merit of the claim. - I ' 1
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