Central Administrative Tribunal - Delhi
Kailash Chander Godia S/O Khem Chand ... vs Chief Controller Of Accounts on 9 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1788/2009 This the 9th day of September, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Kailash Chander Godia S/o Khem Chand Godia, R/o 1 UF, Safdar Hashmi Marg, Mandi House, New Delhi-110001. Applicant ( By Ms. Amita Kalkal Chaudhary with Ms. Aditi Gupta, Advocates) Versus 1. Chief Controller of Accounts, Principal Accounts Office, Ministry of Urban development, F Wing, Second Floor, Nirman Bhawan, New Delhi-110011. 2. Superintending Engineer (CPWD), Parliament Library Project, CPWD, New Delhi. Respondents ( By Shri Amit Anand and Shri Rajesh Katyal, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Proved on records is the stark fact that the applicant who is an Assistant Accounts Officer, on promotion of Shri Ashok Kumar Karwal, was given additional charge of the post held by him. Shri Karwal, vide office order dated 29.4.2008 issued by Executive Engineer, Parliament Library Building Division-I, CPWD, on promotion was relieved w.e.f. 29.4.2008 (A/N) and was directed to report his presence to Principal Accounts Office, Ministry of HRD. In the endorsement at serial number 8, it has been mentioned that Shri Karwal would handover his charge to the applicant, AAO. In the view of the first respondent, the posting orders could not be passed by the Executive Engineer; such orders could only be passed on the recommendations of the postings/transfers committee consisting of CCA and OA. The applicant held the dual charge from 29.4.2008 to 9.7.2008, for which he was issued a show cause notice, to which the applicant filed reply as well, but has been warned to desist from such activities and to be careful in future. It is further ordered that copy of show cause notice dated 17.6.2008 and memorandum dated 1.8.2008 be placed in his ACR dossier. Vide a separate order, the applicant has been transferred from Parliament Works Division-II, New Delhi to Pay & Accounts Officer (NZ), R.K. Puram, New Delhi, mentioning in the remarks column that he would be debarred from posting to CPWD Divisions till further orders. These are the orders which have been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, styling the same to be unwarranted, totally arbitrary, against the proved facts of the case and an outcome of legal, if not factual, mala fides of the Chief Controller of Accounts, the first respondent arrayed in the present Application. A trivial issue on which the applicant, by no circumstances, can be held guilty, it is urged by the learned counsel representing the applicant, has been blown out of proportions only because of the tussle between the Chief Controller of Accounts and the Superintending Engineer of CPWD with regard to posting of Assistant Accounts Officer. As to whether the applicant is right and the impugned orders are unjustified and actuated out of malice or ego of the first respondent has to be answered from the facts as may emanate from the pleadings of the parties, which we note in all their necessary details.
2. The applicant, as mentioned above, is presently working as Assistant Accounts Officer (AAO). It is his case that the terms, conditions/guidelines applicable to the working/ functioning of the office of Comptroller and auditor General are compiled in the Manual of Standing Orders (Administrative). Rule 17, which is relevant, reads thus:
Divisional Accountants
17. The transfers of Divisional Accountants/SAS Accountants on the recommendations of a posting/transfers committee consisting of the CCA and OA. The Superintending engineers concerned in special cases may take up the matter with the CCA regarding the transfers of Divisional Accountants working in the Divisions under them as required vide para 269 of the Auditor Generals Manual of Standing Orders. From the rule as mentioned above as also extracts of Manual-I of the CPWD, it is the case of the applicant that the Superintending Engineer, the second respondent, has been given power to take up the matter regarding transfers with the first respondent in special cases. It is further his case that on promotion of Shri Ashok Kumar Karwal to the post of Pay & Accounts Officer, an office order was issued by the 2nd respondent on 29.4.2008 reliving him from the charge of AAO, Parliament Library division with further direction to handover the charge of his office to the applicant. In view of the order aforesaid, the applicant was assigned the additional charge of AAO Parliament Works Division-I as he was posted in the same circle. A letter dated 19.5.2008 was written by the Executive Engineer, Parliament Library Building, CPWD to the 1st respondent to assign the dual charge as PAWD-I would fall under the same circle and it would be administratively easier to manage it till full time AAO joins, as otherwise it would be a security hassle. Copy of the letter dated 19.5.2008 is annexed with the OA as Annexure P/4. A further communication was sent by the 2nd respondent to the 1st respondent stating that the applicant be allowed to have additional charge of AAO in PLBD-I Division till regular AAO was posted. It is the case of the applicant that the communication aforesaid appears to have annoyed the 1st respondent, and for no fault of the applicant, the said respondent issued a memorandum dated 17.6.2008 seeking explanation from him as to why action be not initiated against him for taking additional charge of PBLD-I without any order of the 1st respondent. The applicant responded to the show cause referred to above vide his explanation dated 27.6.2008. He mentioned in his reply that he was directed to take over the additional charge as field assistant to his seniors considering the importance of the workload of the unit, as the work involved was important requiring immediate attention involving work relating to RTI cases, Parliament Questions, zonal and circle level returns, Lok Sabha TV Studio construction queries and budgetary details, which were required to be attended within a fixed time. In the circumstances, the applicant temporarily assumed the charge as assistance to field unit seniors, i.e., Superintending Engineer, Executive engineer, etc. only, and actions in this regard were with due approval from the Controller of Accounts who granted permission. The applicant pleads that he was required to obey the orders of seniors and under their orders only he took over the additional charge of PLBD-I without any deficiency on his part, and in compliance with the directions of concerned head of CPWD Division as he was working under the administrative control and charge of CPWD. The 2nd respondent vide letter dated 27.6.2008 brought the entire facts and circumstances to the knowledge of the 1st respondent as to why the applicant was directed to take the additional charge of the post in question. The additional charge was initially given to Shri J. K. Vyas who did not take over the same. Thereafter on 12.5.2008 the said charge was given to Shri M. M. Gautam, who also did not join, and ultimately on 29.4.2008, keeping in view the urgency as the Parliament Session was on, the applicant was directed by the 2nd respondent to take over the additional charge. It is the case of the applicant that the 1st respondent translated his annoyance by issuing order dated 1.8.2008 by completely ignoring the explanation of the applicant. All that was recorded in the order was that the reply submitted by him had not been found to be satisfactory. The order dated 1.8.2008 reads as follows:
Reference is invited to this Office Memorandum vide dated 17.06.2008 issued under reference No. A-32116/Pr.AO/UD/Admn.II/Dual Charge/S-5/2018 dated 17.06.2008, wherein you had been directed to submit your reply for holding the unauthorized charge of Parliament Library Division-I, CPWD, New Delhi without any orders of the CCA who is the competent authority to transfer/post Divisional Accountants to CPWD Divisions. The reply dated 27.06.2008 furnished by you has not been found to be satisfactory.
You are hereby warned to desist from such type of activities and be careful in future.
A copy of memorandum dated 17.06.2008 and this letter is being placed in your ACR dossiers.
This issues with the approval of Chief Controller of Accounts. Not satisfied with the order dated 1.8.2008, yet another order dated 8.8.2008 came to be issued transferring the applicant from Parliament Works Division-II, CPWD where the applicant had not completed even four months tenure, to PAO (NZ) R. K. Puram, against an existing vacancy and also debarring him from posting in the CPWD Division until further orders. Aggrieved by the orders dated 1.8.2008 and 8.8.2008 referred to above, the applicant filed OA No.2014/2008 before this Tribunal, wherein the prayer was to quash the said orders on the ground that the applicant had assumed the additional charge only on the orders of the 2nd respondent, which was with prior approval of the 1st respondent. Initially, reply was filed on behalf of both the respondents by the 1st respondent only defending the orders impugned in the OA. The stand of the 1st respondent was that the additional charge was assigned to Shri M. M. Gautam, AAO of Parliament Library Building Division-I and that the applicant assumed the same without any orders of the 1st respondent. The 1st respondent did not state that there was an order of the 2nd respondent whereby the applicant was asked to take over the charge from Shri Ashok Kumar Karwal. In para 4(g) of the reply, it, however, came to be admitted that it was the Executive Engineer who assigned the additional charge to the applicant. Inasmuch as, the plea raised by the applicant could be authenticated by the 2nd respondent, the applicant took an objection in his rejoinder that the 2nd respondent should be directed to file a separate reply, as the endeavour of the 1st respondent was only that its orders be upheld. It is the case of the applicant that appreciating the facts of the case, the Bench then seized of the matter directed the 2nd respondent to file separate reply, which was filed, stating clearly therein that the applicant had assumed the additional charge of the post in question only on the orders of the 2nd respondent and explaining the entire factual matrix. The respondent, however, raised a preliminary objection that the applicant had not exhausted the alternative remedies. The Tribunal after mentioning the facts of the case, vide order dated 4.2.2009 directed the Additional Controller General of Accounts to treat the Original Application itself as representation against the impugned orders and to decide the same, after considering all the facts and the affidavit filed by the 2nd respondent, by passing a detailed and reasoned order within six weeks. The Tribunal first noted the contentions raised by the counsel representing the parties. After noting the strenuous plea raised by the counsel representing the applicant that the applicant had only obeyed the orders of his superior officer and did not assume the additional charge of his own, the Tribunal noted the plea raised by the 1st and 2nd respondents. The 2nd respondent fully supported the plea raised by the applicant. The Tribunal recorded the contents of the reply filed by the 2nd respondent in para 7 of its order as follows:
7. Respondent No.2 i.e. Superintending Engineer, CPWD, Parliament Library Project has filed a separate affidavit justifying the need to give additional charge of AAO, Parliament Library Project, to the applicant Sh. K. C. Godia. He has also stated that he had written number of letters to the CCA to either post a regular AAO or allow the additional charge of AAO in Parliament Library Building Project to be given to Sh. Godia who is already posted as AAO, PAW, Division-II. He has further stated that Controller of Accounts had agreed to continue dual charge of Sh. K.C. Godia till 12.6.2008. He has explained that the applicant was given dual charge keeping in view the sensitivity of Parliament work. However, he has requested for discharging his name from the array of parties as neither any order passed by him is challenged nor any relief is sought against him. The pertinent observations made by this Tribunal read as follows:
8. I have heard both the counsel. From the letters annexed with the OA it is abundantly clear that applicant had taken over charge of AAO Parliament Library Division-I as he was directed to take charge from Shri Karwal which is evident from order dated 29.4.2008 issued by the Executive Engineer, Parliament Library Building (page 18) wherein Shri Ashok Kumar Karwal was requested to handover his charge to Shri K. C. Godia, AAO. It is also evident from the letter dated 19.5.2008 (page 10) that the Executive Engineer, PLB had requested the chief Controller of Accounts to allow Shri K. C. Godia to have dual charge of PLB because PAWD-II falls under the same circle and looking at the sensitivity of work and security hassles, it will be administratively easier to manage the work. Similar letter was written by the Superintending Engineer also on 5.6.2008. Perusal of these letters read with the reply filed by respondent no.2 shows that applicant had taken the charge of AAO, PLB not on his own but as he was directed by the Executive Engineer or Superintending Engineer, CPWD who were superior to him in field unit. It is correct that the Competent Authority for posting the applicant was CCA but simply because there was a tussle going on between CCA and the Superintending Engineer of CPWD with regard to posting of AAO, I think applicant should not have been penalized. However since respondents have stated applicant has alternate remedy, I am not expressing any definite views at this stage. It would be appropriate that the grievance of applicant is looked into by the next authority. The OA is accordingly disposed off at the admission stage itself by directing the Additional Controller General of Accounts to treat this OA itself as a representation against the impugned orders and to decide the same, after considering all the facts and the affidavit filed by respondent no.2, i.e., the Superintending Engineer by passing a detailed and reasoned order under intimation to the applicant. Pursuant to directions issued by this Tribunal, the impugned order dated 2.4.2009 has been passed, wherein, after making a mention of the case till disposal of the OA referred to above, the Addl. Controller General of Accounts, arrived at the following findings:
(1) That, as per the provisions of para 4.2.1 of the CPWA code read with para 17 of the CPWD Manual Volume-I which provides that, 17. The transfers of Divisional Accountants/SAS Accountants are ordered by the Chief Controller of Accounts on the recommendations of a postings/transfers committee consisting of the CCA and DA. Therefore the cadre controlling authority i.e. the competent authority to make postings and transfers of the Divisional Accountants in UD Ministry is the Chief Controller of Accounts (CCA).
(2) That, no orders directing Sh. Godia to take additional charge of the Parliament Library Building Division-I (here-in-after referred to as PLBD-I), CPWD, New Delhi was ever issued by the CCA.
(3) That, Sh. M M. Gautam, AAO was directed by an order dated 12.5.2008 to take additional charge of the PLBD-I. However, Sh. Gautam could not take the said charge due to non-cooperation of the Executive Engineer of PLBD-I. (4) That, Sh. Godia did not take prior approval of the CCA before taking additional charge of PLBD-I on the direction of the Executive Engineer.
(5) That, posts of JAOs/AAOs/Divisional Accountants in the CPWD Divisions are declared as sensitive seats as per Ministry of Urban development and Poverty alleviation OM dated 16.8.2001.
(6) That, contents of the affidavit of the Superintending Engineer deals with his perception of PLBD-I divisions importance and his perceived need for giving additional charge to Sh. Godia. However, this cannot allow the Superintending Engineer to take over the functions of the CCA who is the sole competent authority to issue a posting/ transfer order to a JAO/AAO/Divisional Accountant, whether on full-time basis or as additional charge and any attempt to do so cannot be acceptable.
(7) The sole reason provided by Sh. Godia to take the additional charge of PLBD-I Division is the direction of the Executive Engineer and he has also made references to the correspondence made by the Executive Engineer with the CCA for posting of a regular AAO.
(8) That, the JAO/AAO/Divisional Accountant posted in the Division is required to work in consultation with, and to follow the orders of the Executive Engineer/Superintending Engineer, wherever provided in the CPWA code ONLY insofar as it relates to the day to day functioning in the work of the Division, in which they are posted by the CCA.
(9) That, Sh. Godia did not have any locus standi to take additional charge of another division (PLBD-I Division) except under orders of the competent authority viz. CCA, Ministry of UD.
(10) That, in the event government servants suo moto take charge of and perform work in other posts/offices (other than those to which they are ordered to by their competent authority) then it will create utter chaos and lead to complete failure of administrative machinery.
(11) That, holding an additional post without orders of competent authority is tantamount to conduct which is unbecoming of a government servant. Further, holding of such post by Sh. Godia in the aforesaid manner especially when the post has been categorized as sensitive by the Ministry makes the conduct of Sh. Godia even more serious. In the operative part of the order, the Addl. Controller General of Accounts observed that the applicant had held unauthorized additional charge of the PLBD-I Division during the period from 29.4.2008 to 9.7.2008. The concerned authority was of the view that rather a lenient view has been taken in the matter and in his opinion the conduct of the applicant warranted stricter action.
3. When this matter came up before us on 4.3.2010, we recorded the following order:
From the facts of the case, it appears that respondents No.1 & 2 should have filed separate replies. However, reply has been filed on behalf of respondent No.1 stating therein that the said respondent has the authority and competence to file reply on behalf of all the respondents. We may only mention that the case of the applicant is that Superintending Engineer, CPWD had given him the charge of Parliament Library division whereas the allegation against the applicant is that he was not authorized to perform the work of any other division. As to whether the charge had actually been undertaken by the applicant as per the directions of the Superintending Engineer, CPWD, can be verified by the second respondent only. Therefore, in the peculiar facts and circumstances of this case, we direct second respondent to file a separate reply. List on 8.4.2010. In obedience of the orders passed by this Tribunal as reproduced above, the 2nd respondent has filed the reply. On 14.7.2010, during the course of arguments, counsel for the 1st respondent sought to place on record letter dated 1.8.2008 written by Shri A. K. Ralhan, Assistant Controller of Accounts (Admn.). We may mention here that during the course of arguments, on a question put to the counsel for the 1st respondent as to whether any action was taken against the 2nd respondent who had given additional charge to the applicant, it was urged that action has been suggested against the Executive Engineer on whose orders the applicant took the additional charge. The counsel was permitted to place relevant material on records.
4. Pursuant to notice issued by this Tribunal, two replies, as mentioned above, by 1st and 2nd respondents have been filed. The 2nd respondent has reiterated the stand taken by it in the first OA filed by the applicant and fully supported the cause of the applicant. We shall refer to the reply filed by the 2nd respondent later. We may first make a mention of the reply filed by the 1st respondent on its behalf and on behalf of the 2nd respondent, wherein, while giving brief facts of the case, it has been pleaded that as per para 17 of CPWD Manual Volume-I read with para 4.2.1 of CPWA Code the transfer of Divisional Accountant/SAS Accountant are ordered by the Chief Controller of Accounts, Ministry of Urban Development on the recommendation of posting/transfer Committee consisting of the CCA and DA. The posting of AAO etc. to the posts of Divisional Accountants in the CPWD Divisions are declared as sensitive seats as per the instructions of the Central Vigilance Commission. It is further pleaded that after promotion of Shri A. K. Karwal, AAO as PAO, he was relieved from the Parliament Library Building Division-I by the office of Executive Engineer concerned in pursuance of transfer/promotion orders issued by the 1st respondent vide order dated 19/20.3.2008 and the said post was lying vacant in the said Division. As an interim measure, the dual charge of the Parliament Library Building Division-I was assigned to Shri J. K. Vyas, Sr. DAO of President Estate (E) Division vide order dated 30.4.2008. Later, on his request the additional charge of PLBD-I was assigned to Shri M. M. Gautam, AAO by the 1st respondent vide order dated 12.5.2008. The main cause of action started when the applicant while working as Divisional Accountant in Parliament Works Division-II took over the additional charge of other Division, i.e., Parliament Library Building Division-I, without the orders/knowledge of the 1st respondent. It is pleaded that the applicant was well aware that the dual charge of Parliament Library Building Division-I could be assigned/had been assigned to Shri M. M. Gautam, AAO by the 1st respondent vide office order dated 12.5.2008 and that transfer/posting orders are issued by the 1st respondent, and also that the posts of divisional Accountant in the Divisions are already declared as sensitive. Due to holding of unauthorized charge of PLBD-I by the applicant, it is further pleaded, his explanation was sought by the 1st respondent for such serious lapses on his part vide memorandum dated 17.6.2008. In response to the said memorandum the applicant submitted his explanation on the points raised in the memorandum vide his letter dated 27.6.2008. The competent authority after examining the reply of the applicant, did not find it satisfactory and communicated a warning to the applicant vide memorandum dated 1.8.2008. Reference is then made to the OA filed by the applicant and orders passed thereon. It is then pleaded that the Addl. Controller General of Accounts vide order dated 2.4.2009 had reached the conclusion that the applicant had taken and held unauthorized additional charge of PLBD-I Division and there were no grounds to interfere with the orders dated 1.8.2008 and 8.8.2008 passed by the CCA (UD). The reply filed on merits is no different than mentioned in the brief facts of the case. We may, however, mention that it is pleaded in para 4(ii) that on promotion of Shri A. K. Karwal to the post of P&AO, he was relieved from PLBD-I vide order dated 19/20.3.2008. In pursuance of the order aforesaid he was relieved by the office of Executive Engineer, PLBD-I Division with the direction to hand over the charge of the said Division to the applicant, AAO vide order dated 29.4.2008, whereas no instructions regarding handing over the charge of PLBD-I to the applicant were there in the office order dated 19/20.3.2008 issued by the 1st respondent. Insofar as, the request of the Executive Engineer for handing over the charge to the applicant is concerned, it is stated that the said request was not acceded to by the 1st respondent. It is also pleaded that the applicant should not have taken over the additional charge without the orders of the 1st respondent, and when it came to the notice of the 1st respondent that he had taken the additional charge, action was taken. It is further pleaded that initially the additional charge of PLBD-I was assigned to Shri J. K. Vyas, Senior DAO, and since he was due for retirement within a month, his request was considered and the additional charge of the said Division was given to Shri M. M. Gautam, AAO of Central Secretariat Division vide order dated 29.4.2008, who was not allowed to take over the charge on one pretext or the other, and he was denied issue of entry pass even after his visits on 16.5.2008, 19.5.2008 and 2.6.2008. Insofar as, transfer of the applicant is concerned, it is pleaded that as per CVC guidelines the maximum period of posting on sensitive seat is three years. However, no minimum period is prescribed. It is pleadd that there are cases where an AAO is not at all posted in the Divisions during his entire tenure of four years in the Ministry of Urban Development. The applicant was debarred from posting in CPWD Divisions as per orders of the competent authority for the reason of suo moto taking over charge of PLBD-I without any orders of the competent authority, i.e., CCA. Insofar as, placing the copy of memorandum dated 17.6.2008 in the ACR dossier of the applicant is concerned, it is stated that though the reporting officer in case of Divisional Accountant/AAO is Executive Engineer, the reviewing officer is the 1st respondent, and that his ACR dossier is also maintained by the 1st respondent who is the competent disciplinary authority in case of AAOs, as per Schedule Part-II, Central Civil Services, Group B CCS (CCA) Rules, 1965.
5. The 2nd respondent in the reply filed by him has pleaded that Shri A. K. Karwal, AAO, was promoted to the post of PAO vide order dated 13.3.2008 issued by the Principal Accounts Office, Ministry of HRD, New Delhi. A direction was issued from PAO, Ministry of UD vide order dated 19.3.2008 to relieve him immediately. However, no substitute was posted against him. It is pleaded that the Parliament was in session and financial year was approaching towards end, and it was not possible for the CPWD authorities to carry out the works in such a sensitive place in absence of AAO, therefore, Shri Karwal was requested to be in place till his substitute joined. He agreed to be in place up to 31.3.2008. It was intimated to Principal Accounts Office vide letter dated 7.4.2008 to post an AAO signifying the nature of the Division at the earliest. In pursuance of the office order dated 19.3.2008 Shri Karwal was relieved from PLBD-I on 29.4.2008 and the additional charge of the said Division was given to the applicant, which was the only solution available as no other AAO was available in the Circle and Parliament was in session. The applicant had permanent pass and I-card of Parliament House as he was in-charge of accounts office of PAWD-II, which was the additional charge of EE, PLBD-I also. Thus, seeing the administrative requirement and in public interest, order was issued on 29.4.2008 for the applicant to carry out the works of PLBD-I as additional charge which was just a temporary arrangement till the regular AAO joined. Vide order dated 30.4.2008 of Principal Accounts Office which was received on 3.5.2008, Shri J. K. Vyas, AAO President Estate Electrical division was directed to take the additional charge of AAO, PLBD-I. He, however, did not take the additional charge. Vide another order dated 12.5.2008 of the Principal Accounts Office, which was received on 16.5.2008, order regarding additional charge of Shri Vyas was cancelled and Shri M. M. Gautam was directed to take over the additional charge of PLBD-I. The EE, PLBD-I requested the office of the 1st respondent to give a full time AAO. He emphasized the sensitivity involved and also explained that AAO, does not only see the work of AAO, PLBD-I but he also has to carry out work of AAO, PWED-IV and because of the project nature of zone, he has to compile accounts and also carry out budgeting work at circle and zonal level. It was stated that during Parliament session, RTI and Parliament Questions also arise, so a full time AAO was utmost. It was further requested that it was not possible for a person from outside to come and carry out the work in smooth fashion on additional charge in the circumstances and security scenario. For this purpose, EE, PLBD-I went to meet the Chief Controller of Accounts (CCA), but as CCA was on leave, he met Controller of Accounts (CA), who allowed to continue status quo till CCA joined (12.6.2008) and asked to request the CCA again on his joining. The Superintending Engineer, PLP wrote again a letter to CCA on 5.6.2008 elaborating the sensitivity involved in Parliament especially during Session. He again requested the 2nd respondent to either post a full time AAO or visualizing the administrative and work requirements, the applicant be kept under additional charge. No denial of these requests came to his office. In pursuance of order dated 11.8.2008, Shri M. M. Gautam took additional charge on 28.8.2008 from the applicant.
6. The applicant has filed rejoinder but there would be no need to make a mention of the contents thereof as the same are by and large reiteration of the pleadings made in the OA. We may, however, refer to the two letters placed on records by the 1st respondent, which came on records pursuant to permission sought by the counsel representing the 1st respondent on 14.7.2010 referred to above. The first letter dated 1.8.2008 has been written by Assistant Controller of Accounts (Admn.), Principal Accounts Office, Ministry of UD to Chief Engineer, Parliament Library Project, CPWD. In the first relevant para, mention is of the applicant having been assigned additional charge by the Executive Engineer without any orders from the Principal Accounts Office, besides knowing the fact that the additional charge of PLBD-I had been assigned to Shri M. M. Gautam, AAO by the 1st respondent. In the second relevant para, mention is of not allowing Shri Gautam to take the charge. The third para deals with memorandum issued to the applicant directing him to explain as to why disciplinary proceedings be not initiated against him for taking the additional charge. There may be reference of giving the charge to Executive Engineer of giving the charge without orders from the 1st respondent to the applicant and not permitting Shri Gautam to take the charge, but there is no suggestion that any action should be taken against the Executive Engineer, even though, in the para it has been mentioned that the 1st respondent had expressed his displeasure due to assignment of charge of the post of Divisional Accountant of PLBD-I, CPWD by the Executive Engineer to the applicant. The second letter dated 17.6.2008, again written by the Assistant Controller of Accounts (Admn.) to the Executive Engineer, PLBD-I, appears to be in connection with the letter written on 19.5.2008 by the Executive Engineer. It is mentioned that on going through the contents of the said letter, it was noticed that the Executive Engineer had assigned the additional charge of the Division to the applicant, which was not in order. Reference is then made to para 17 of CPWD Manual (Vol-I) read with para 4.2.1 of CPWA Code. It is mentioned that the Executive Engineer would have no power to do so. It is mentioned that the CCA had already given dual charge of PLBD-I to Shri M. M. Gautam vide order dated 12.5.2008, who reported for duty but he was not allowed to perform the work of the Division. The two acts of the Executive Engineer as mentioned above have been described as not being in order and in contravention of the rules/authority, to which, it is stated, the CCA had taken a serious view and desired that the orders issued by him be complied with and the additional charge given to the applicant be withdrawn immediately, and that the action taken report in that regard may be furnished to the Principal Accounts Office within seven days. No action has been suggested against the Executive engineer in this letter as well.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The facts on which there may appear to be no dispute, would reveal that Shri A. K. Karwal was promoted to the post of PAO vide order dated 13.3.2008. A direction was issued on 19.3.2008 from the Principal Accounts Office to relieve him immediately. No substitute was, however, posted against him. That being so, Shri Karwal was requested to be in place till his substitute joined. He agreed to be in place up to 31.3.2008. He was, however, relieved on 29.4.2008 and, as mentioned above, in the same very order the Executive Engineer ordered that Shri Karwal would handover his charge to the applicant. The applicant, it appears, in obedience of the orders passed by the Executive Engineer, took over the charge. Intimation was sent to the Principal Accounts Office vide letter dated 7.4.2008 to post an AAO signifying the nature of the Division at the earliest. Vide order dated 30.4.2008, even though Shri J. K. Vyas was directed to take over the additional charge, but he did not take the same. Vide order dated 12.5.2008, order regarding additional charge of Shri Vyas was cancelled and Shri Gautam was directed to take over the additional charge, who ultimately took the charge on 28.8.2008. Shri Gautam, it is the case of the respondents, as per the counter reply filed by the 1st respondent and the findings returned by him in the impugned order, was not allowed to take charge by the Executive Engineer. It is pleaded in para 4 (viii) that additional charge was given to Shri Gautam, but he was not allowed to take charge by the Executive Engineer, and that he was denied issue of entry passes even after his visits on 16.5.2008, 19.5.2008 and 2.6.2008. The letter written by Shri Gautam has been annexed as Annexure R-14, which indeed mentions that he, i.e., Shri Gautam, was reporting for taking additional charge but was not being allowed to do so. He was told while he had gone to take the charge by the Executive Engineer that the CCA had been asked to post an independent Divisional Accountant and that he was assured that an independent AAO would be posted within few days and, therefore, there appeared no reason to let him join duties for few days. On 2.6.2008, he again approached the said Division, but the Executive Engineer was busy in some meetings. He had given his joining report to the concerned officials with request to submit it to the Executive Engineer for further orders. Next day, i.e., 3.6.2008, he again tried to contact the Executive Engineer for further development in the matter, but he was busy in some other work. Therefore, he contacted the concerned official for issue of entry pass, but the official in turn told him that the matter had been referred to WG Department, Parliament for necessary approval and that he would be informed accordingly. It would appear from the letter dated 19.5.2008 addressed to the CCA by the Executive Engineer (Annexure R-12) that a request was made to the CCA to keep the applicant under dual charge and post a full-time AAO. The justification to do so has also been given in the letter aforesaid. As mentioned above, Shri Gautam ultimately took over the charge on 28.8.2008. It appears to us that the orders passed by the CCA for Shri Gautam to have dual charge and the Executive Engineer not permitting to do so for reasons as may have been given by him, infuriated the CCA. It further appears to us that inasmuch as, the CCA could not take any action against the Executive Engineer, as we are told during the course of arguments that the CCA is not the controlling authority of Executive Engineer, the whole burden fell upon the applicant. It appears rather to be a clash between the authority of the CCA to make order of posting and the stand taken by the Executive Engineer for sending a permanent incumbent to the post, instead of giving dual charge, and meanwhile to allow the applicant to have dual charge, belonging to the same Division and having no hassles as regards entry passes. The applicant appears to be a scapegoat of a clash between the CCA and the Executive Engineer, as mentioned above. What we have observed above can be supported by reasons apparent on the face of records. It may be recalled that in the show cause notice that came to be served upon the applicant, there is not a word mentioned that Shri Gautam was not allowed to take the charge. This is not even now the case of the respondents. If at all, Gautam was not allowed to take the charge, it was at the instance of the Executive Engineer and not the applicant. The only allegation against the applicant was that he had taken the charge unauthorizedly, to which he replied and stated that he was directed to do so by his immediate boss. In the impugned order dated 1.8.2008 not a word with regard to the explanation furnished by the applicant has been mentioned. The concerned authority has only referred to the allegations against the applicant and the reply filed by the applicant, which was not found to be satisfactory. Even the contents of the reply, and in particular that the applicant had taken the charge under directions of the Executive Engineer, have not even been mentioned. It clearly reflects a pre-determined mind to punish the applicant, whatever be his explanation. It is too well settled a proposition of law by now that even executive or administrative orders, which may adversely affect a party, have to be based upon reasons, after giving adequate opportunity to the concerned person. We are unable to accept that the 1st respondent, holding such a high position, would not know this elementary requirement of law. The applicant, as mentioned above, filed an OA with the result already mentioned above, wherein the Honble Bench then dealing with the matter had opined on facts that the applicant had taken the charge of AAO, PLB not on his own but as he was directed by the Executive Engineer or Superintending Engineer, who were superior to him in the field unit. It was also observed that simply because there was a tussle going on between the CCA and the Superintending Engineer of CPWD with regard to posting of AAO, the applicant could not have been penalized. Inasmuch as, a direction was issued to the respondents to reconsider the matter, the findings as mentioned above, were not said to be final. However, even if the said findings were tentative, some regard to the same ought to have been had while re-considering the case of the applicant pursuant to directions issued by this Tribunal. We have already enumerated the findings returned by the concerned authority in reiterating the order of punishment inflicted upon the applicant. The applicant never denied that no orders were issued by the CCA for his taking dual charge, nor it was ever his case that he had taken prior approval of the CCA before taking the additional charge. His simple case was that he had been directed to take the additional charge by his immediate boss. In the context of the facts of the case, as mentioned above, it is only the explanation of the applicant which had to be considered. We have already reproduced the findings recorded by the concerned authority in the order dated 2.4.2009. The same can be analyzed one by one to find out as to whether the defence projected by the applicant was taken into consideration. The first finding recorded in the impugned order only deals with rules and instructions dealing with transfers of Divisional Accountants/SAS Accountants, and the competent authority to pass such orders. We would make our comments with regard to this hereinafter, but suffice, however, to mention at this stage that the said finding does not deal with the explanation furnished by the applicant. The findings enumerated at serial numbers 2, 3 and 4 reflect the factual position, which was never in dispute. Surely, the same do not deal with the explanation of the applicant. Insofar as, the finding at serial number 5 is concerned, this again is a factual position and may not be much in dispute, but the same, once again, is wholly unrelated to the explanation given by the applicant. The finding at serial number 6 is with regard to the perception of the Superintending Engineer as regards his power to make working arrangement. It is mentioned that his perception for giving additional charge to the applicant was not correct. We will make our comments as regards this finding as well hereinafter, but once again we may mention that this again has nothing to do with the explanation given by the applicant. The finding at serial number 7 only reflects the stand or the explanation furnished by the applicant and the reference made by the applicant in that regard to the correspondence made by the Executive Engineer with the 1st respondent. Only the defence has been noted, but as to whether the same was satisfactory or not, there are no comments. The finding recorded at serial number 8 would again be a position as may emanate from the rules and instructions. The finding recorded at number 9 has once again nothing to do with the explanation furnished by the applicant. Insofar as the finding at number 10 is concerned, the same is factually incorrect. The applicant had not taken suo moto charge. In fact, as admitted at all ends, he was directed by the Superintending Engineer to do so. The finding at serial number 11 is the conclusion of misconduct of the applicant of holding additional charge without order of the competent authority. The explanation given by the applicant, it appears, has gone abegging, even though the matter after passing the orders by this Tribunal came to be decided by the authority next to the 1st respondent. There is no mention that in the circumstances as mentioned above, what would have happened if the applicant was to refuse to obey the orders of the Executive Engineer/Superintending Engineer. The choice for the applicant was between the devil and deep sea. There is no finding that the applicant was not obliged to obey the commands of his superiors as the superior officer was not the competent to pass the order. This was the real issue which ought to have been taken into consideration, but the same does not appear to have been properly addressed, which fortifies our view that a decision had already been taken to punish the applicant, whatever be his explanation. Our opinion as mentioned above is further strengthened from some other findings recorded in the impugned orders, which may be wholly irrelevant. If Shri Gautam was directed to take the additional charge and he was not allowed to do so by the Executive Engineer, the applicant could not be blamed for the same. The applicant also could not be blamed for the perception of the Executive Engineer which is styled to be perceived need of giving additional charge to the applicant. If this was a perceived and incorrect notion of the Executive Engineer, once again, the applicant could not be blamed for the same. From the order that has now been passed, it would again appear that it is the action of the Executive Engineer in not permitting Shri Gautam to take over the charge that triggered the issue. We had heard arguments in this case on 4.8.2010 when judgment was reserved. While, however, preparing the judgment, we thought that one of the issues that has been raised is as regards the powers of the Chief Controller of Accounts, the 1st respondent, to issue transfer orders. It is the case of the applicant that the Superintending Engineer, as per relevant rules and instructions, would have power to make working arrangement, and giving dual charge to the applicant was only a working arrangement, whereas it is the case of the contesting respondents that giving dual charge would amount to posting and transfer. Since this aspect of the case was not adverted to by the learned counsel representing the parties in sufficient details, we recorded the following order on 17.8.2010, and fixed the matter for re-hearing on 23.8.2010:
Arguments in this case were heard on 4.8.2010 when judgment was reserved. One of the issues that has been raised is as regards powers of the Chief Controller of Accounts, the 1st respondent, to issue transfer orders. The applicant has placed reliance upon para 17 of CPWD Manual Volume-I, which reads as follows:
17. The transfers of Divisional Accountants/SAS Accountants are ordered by the Chief Controller of Accounts on the recommendations of a Postings/Transfers Committee consisting of the CCA and DA. The Superintending Engineers concerned in special cases may take up the matter with the CCA regarding the transfer of Divisional Accountants working in the Divisions under them as required vide para 269 of the Auditor Generals Manual of standing orders. The respondents have relied upon para 4.2.1 of Central Public Works Account Code (CPWA Code) as also para 17 of the CPWD Manual Volume-I. They have placed on records extracts of para 4.2.1 of the CPWA Code and para 17 of the CPWD Manual as Annexure R-2 (colly). Para 17 of the CPWD Manual reads as reproduced above. Whereas in the impugned order only part of the said para has been reproduced, the sentence that The Superintending Engineers concerned in special cases may take up the matter with the CCA regarding the transfer of Divisional Accountants working in the Divisions under them as required vide para 269 of the Auditor Generals Manual of standing orders has not been referred to in the impugned order. Whether dual charge to the applicant or Shri M. M. Gautam would be a transfer, and if so, whether the Superintending Engineer too would have power to order the same, are the questions which arise, and to which the learned counsel representing the parties have not adverted to in sufficient details. We would like the learned counsel for parties to elaborate their contentions based upon para 4.2.1 of the CPWA Code and para 17 of the CPWD Manual. Let a copy of this order be given to counsel for parties forthwith.
List the matter for re-hearing on 23.8.2010.
8. Having heard the learned counsel representing the parties on the issue as framed in the order reproduced above, we are of the opinion that the kind of arrangement that the Superintending Engineer had made, i.e., of giving dual charge to the applicant, particularly at a time when there was no one in position, no substitute having been sent when A. K. Karwal who stood promoted vide orders dated 13.3.2008 was relieved on 29.4.2008, cannot be found fault with. Even though orders were passed for Shri J. K. Vyas to take the dual charge vide order dated 30.4.2008, it is admitted position that he had not taken the charge. Orders as regards taking of the charge by Shri Vyas were cancelled on 12.5.2008, and Shri M. M. Gautam was then to take over the charge. Even though for a brief period, there were no orders as to who would carry out the work as was being done by Shri Karwal, who stood relieved on 29.4.2008. The Superintending Engineer made the arrangement of giving dual charge of the post held by Shri Karwal to the applicant and intimated the CCA, 1st respondent. It is the case of the applicant supported by the 2nd respondent that this was a working arrangement, and the second respondent could do so as per provisions contained in para 17 of the CPWD Manual. The 1st respondent would, however, take the stand that it is a case of posting/transfer, which could be ordered only by him. Joining by substitute of Shri Karwal, in the present case, does not appear to be a case of posting/transfer. Whether the arrangement was to be made by the 1st or 2nd respondent, it was of giving dual charge only. No order was passed by the 1st respondent of posting of anyone. It is no doubt true that for this kind of working arrangement as well, as may emanate from para 17 of the CPWD Manual, the Superintending Engineer had to consult the CCA. If this was a special case, the Superintending Engineer had to take up the matter with the CCA. Even if it was to be a case of transfer, para 17 of the Manual, in special cases, clothes the superintending Engineer with the power to make arrangement, even though, as mentioned above, the matter has to be taken up with the CCA. Be it a case of transfer/posting or working arrangement, one thing is clear that the primary jurisdiction or power in that regard is indeed with the CCA and DA, but in special cases, the Superintending Engineer could take up the matter with the CCA. The Superintending Engineer had indeed taken up the matter with the CCA by pleading, for the reasons as already mentioned above, that the post in question required substitution by a permanent incumbent and not by one who may have only dual charge, and if at all the dual charge was to be given, the applicant would be the most suited. In the impugned order, contents of para 4.2.1 of CPWA Code have not been disclosed at all. A copy of the same has, however, been annexed with the reply. The same is reproduced below:
4.2 Divisional Accountant 4.2.1 To assist Divisional Officers in the discharge of their responsibilities referred to in paragraph 4.1.1, the head of the accounting organisation will post a Divisional Accountant, who has either been recruited through initial recruitment examination conducted by INAD or Qualified in SAS/JAO(C) Examination conducted by INAD/Civil Accounts Organisation with Public Works as compulsory paper to each Divisional Office. The emphasis in the para aforesaid is more on posting of Divisional Accountant, who may have either been recruited through initial recruitment examination conducted by INAD or qualified in SAS/JAO(C) examination conducted by INAD/Civil Accounts Organisation with Public Works as compulsory paper to each divisional office. No doubt, the power to post a Divisional Accountant rests with the head of the accounting organisation. Para 17 of the CPWD Manual is specific and would confer jurisdiction upon the CCA and DA to order postings/transfers of Divisional Accountants/SAS Accountants, but as mentioned above, the Superintending Engineer concerned, in special cases, may take up the matter with the CCA regarding transfer of Divisional Accountants working in the division under him. Para 17 of the CPWD Manual volume-I reads as follows:
17. The transfers of Divisional Accountants/SAS Accountants are ordered by the Chief Controller of Accounts on the recommendations of a Postings/Transfers Committee consisting of the CCA and DA. The Superintending Engineers concerned in special cases may take up the matter with the CCA regarding the transfer of Divisional Accountants working in the Divisions under them as required vide para 269 of the Auditor Generals Manual of standing orders. We are distressed to note that in the impugned order only a part of para 17 of the Manual has been reproduced and the part of the said para which clearly states that Superintending Engineers concerned in special cases may take up the matter with the CCA regarding the transfer of Divisional Accountants working in the Divisions under them as required vide para 269 of the Auditor Generals Manual of standing orders, has been omitted. The quotes have been closed with the word DA while quoting para 17, and thereafter what is mentioned is not part of either para 4.2.1 or para 17. The sentence competent authority to make posting and transfers of the Divisional Accountants in UD Ministry is the Chief Controller of Accounts (CCA), is the stand of the 1st respondent. It is not, we may reiterate, a part of para 4.2.1 of the Code or para 17 of the Manual. The part of para 17 which may support the case of the applicant at least to make it arguable as to whether the Superintending Engineer, in the facts and circumstances of the case, had the power to make arrangement of the kind he had made, has been omitted. Instead, it is the view of the concerned authority only, after reproducing part of para 17, that has been mentioned.
9. From the facts and circumstances of the case, we are of the firm view that the tussle between the 1st and 2nd respondents of their respective powers in the facts of the present case, it would appear, was on account of giving dual charge to the applicant. It may be recalled that A. K. Karwal was relieved on 29.4.2008 and on his being relieved the applicant had taken charge of his post as well immediately. Intimation in that regard was given to the Principal Accounts Office vide letter dated 7.4.2008 and a request was made to post an AAO signifying the nature of the division at the earliest. The order of Shri J. K. Vyas to take over was passed on 30.4.2008 itself, but he did not take the charge. On 12.5.2008, order regarding additional charge to him was cancelled and Shri Gautam was directed to take over the additional charge. He took charge on 28.8.2008. Meanwhile, he was trying to take over the charge, but was not permitted to do so by the Executive Engineer. This appears to be a flash point. The applicant, it may be recalled, was given a show cause notice on 17.6.2008. He had taken over the dual charge on 30.4.2008, which was known to the 1st respondent. Shri Gautam was not allowed to take charge and was denied issue of entry passes even after his visits on 16.5.2008, 19.5.2008 and 2.6.2008. He was reporting for taking additional charge but was not being allowed to do so. He was told while he had gone to take the charge by the Executive Engineer that the CCA had been asked to post an independent Divisional Accountant and that it was assured that an independent AAO would be posted within few days and, therefore, there appeared no reason to let Gautam join duties for few days. Gautam approached the division again on 2.6.2008, but the Executive Engineer was busy in some meetings. He gave his joining report to the concerned officials with request to submit it to the Executive Engineer for further orders. Next day, i.e., 3.6.2008, he again tried to contact the Executive Engineer for further development in the matter, but he was busy in some other work. He, therefore, contacted the concerned official for issue of entry pass, but the official in turn told him that the matter had been referred to WG Department, Parliament for necessary approval and that he would be informed accordingly. It is on the heels of these developments that a show cause notice came to be issued to the applicant on 17.6.2008. By that time, the applicant had already worked on dual charge for about a month and half. It is thus clear that it is the order passed by the 1st respondent for Shri Gautam to take over the charge and the Superintending Engineer not permitting him to do so, which triggered the issue. It was indeed a clash between the 1st and 2nd respondents, the fall out of which has come upon the applicant. Surely and admittedly, the 1st respondent not being the controlling authority of the 2nd respondent to take any action against him, the applicant became the scapegoat. As referred to above, we enquired from the learned counsel representing the respondents as to whether any action was taken against the Superintending Engineer, on which he has placed two letters on records, which have already been referred to by us hereinbefore. We may reiterate, no action has been suggested against the 2nd respondent, even though something may have been mentioned against him, and displeasure of the 1st respondent has been conveyed. The person, if at all responsible for this mess, was the 2nd respondent, but as mentioned above, no action has been suggested against him by the 1st respondent.
10. From the facts and circumstances of the case as fully detailed above, we are left with the undeniable impression that the applicant has been given a harsh treatment, which cannot be justified on any cogent grounds. The applicant has been a victim of complete arbitrariness. Even though, it is the case of the applicant that the 1st respondent passed orders actuated by legal malice, if not personal, we leave the matter at that. Shri Amit Anand, learned counsel representing the respondents has placed reliance upon a judgment of Division Bench of the Allahabad High Court in Kunwar Pal Singh Rathi v State of Uttar Pradesh [AIR 2002 Allahabad 27] to contend that the applicant ought to have refused to accept the illegal orders passed by the Superintending Engineer asking him to take the dual charge. This is not the reason recorded in the impugned order. We also do not find the cited precedent to be relevant in the facts of the present case. The facts of the case as relied upon by the learned counsel reveal that the bureaucrats were carrying out wholly illegal orders passed by the Minister without bringing to his notice that the same were illegal.
11. We have no hesitation whatsoever in thus setting aside the impugned order dated 2.4.2009 as also memorandum dated 1.8.2008 (Annexure P-1 colly.). This Application is allowed with costs quantified at Rupees two thousand, which shall, however, not be paid by the 2nd respondent.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/