Central Administrative Tribunal - Chandigarh
Dinesh Chand Goyal vs Union Of India on 6 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No. 773/PB/2013 Date of Decision : 06.10.2015 Reserved on: 24.09.2015 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Dinesh Chand Goyal, s/o late Shri Rehtu Lal Goyal, CL01142 and at present working as a Technician-E in Semi-Conductor Laboratory (SCL), Sector 72, Phase-VIII, Mohali, District SAS Nagar, (Mohali), Punjab-160071. Applicant Versus 1. Union of India, through its Secretary, Department of Space (DOS), Antariksh Bhavan, New BEL Road, Bangalore-560094, Karnataka. 2. Semi-Conductor Laboratory (SCL), Sector 72, Phase-VIII, SAS Nagar (Mohali), Punjab-160071, through its Director. 3. Director, Semi-Conductor Laboratory (SCL), Sector 72, Phase-VIII, SAS Nagar, (Mohali), Punjab-160071. 4. Ravinder Saxena, Head, SAD, Semi-Conductor Laboratory(SCL), Sector 72, Phase-VIII, SAS Nagar (Mohali), Punjab-160071. . Respondents Present: Mr. Daman Dhir, counsel for the applicant Mr. Ram Lal Gupta, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (2) The impugned order dated 23.01.2012 (Annexure A-1) imposing the penalty of stoppage of one increment may be set aside and the appellate order dated 05.03.2012 (Annexure A-2) may also be set aside.
(3) To issue a writ of mandamus or directions to the respondents to specify as to on what basis the interview is to be conducted and also how the marks is to be given for the interview.
(4) To issue a writ of certiorari quashing the weightage of the interview as the same has been given excessive weightage and purely based on the subjective analysis of the superiors.
(5) To grant the applicant the promotion in the higher scale as he has been discriminated throughout by the respondents on account of his Trade Union activities.
2. MA No.748/2013 has been filed by the applicant under Section 5 of the Limitation Act for condonation of delay of 85 days in filing the OA, on the ground that his counsel had misplaced the documents provided to him by the applicant for filing the OA and the same could not be traced till 25.05.2013.
3. Averment has been made in the OA that the applicant who belongs to a Technical Cadre of Semi Conductor Laboratory (SCL) is eligible for being considered for promotion to a higher grade in accordance with the rules. For promotion, an eligible candidate is required to clear the written test related to his work and field for which the total marks are 50, then there is an interview of 30 marks and 20 marks for the APAR. As far as interview is concerned, there are no guidelines regarding assessment to be made about the candidate vis-`-vis his professional knowledge, his personality, his general knowledge etc. The applicant is appearing before the Departmental Promotion Committee (DPC) since 01.04.2007. On 01.04.2007, the applicant secured 35 marks in a Trade Test out of 50 which is 70% but in the interview out of 30 marks, he was granted 13.33 which is less than 50 marks. Similarly, on 01.04.2008, the applicant secured 35 marks in Trade Test but in the interview only 10 marks were granted to him. Even in the year 2009, the applicant secured 37.75 marks in Trade Test which is almost 75% but in the interview he was granted 0 marks and in ACR he was granted 8.62 marks. The applicant sought this information through RTI. The letters of the CPIO dated 25.09.2008 and 22.01.2010 are annexed as Annexure A-5 and A-6 respectively.
4. It is further stated that in 2011 also the applicant was called for interview. Despite the fact that even at this stage he secured good marks in the Trade Test, in the interview he was granted no marks and was served charge sheet vide Memo dated 03.12.2011 (Annexure P-3). The applicant made a representation seeking clarification vide letter dated 17.12.2011 (Annexure A-7) and the clarification was received on 22.12.2011 (Annexure A-8). After the receipt of the clarification, the applicant submitted a detailed reply vide letter dated 31.12.2011 (Annexure A-9) and apart from the technical preliminary objections, he also replied on merits in detail. However, respondent no.4 instead of ordering an enquiry into the matter issued a punishment order dated 23.01.2012 (Annexure A-1) stating that the misconduct on the part of the applicant was proved beyond doubt and consequently a minor penalty of stoppage of one increment with non-cumulative effect was imposed upon the applicant. Against this order, the applicant filed an appeal on 22.02.2012 (Annexure A-10), but again without affording an opportunity of personal hearing the appeal was dismissed vide order dated 05.03.2012 (Annexure A-2). Thus, the applicant was not only denied the promotion to the higher grade but also a punishment of stoppage of one increment was also imposed upon him. Hence this OA.
5. In the written statement filed on behalf of the respondents, the MA for condonation of delay has been strongly opposed. It is further stated that no representation had ever been received from the applicant regarding the relief sought under sub paras 3, 4 and 5 of para 8 of the OA. As per C.A.T. Act, an employee can approach the C.A.T. only when no orders have been passed by his employer on the representation made by him within the stipulated time. Therefore, raising these issues in the OA without representing them before the employer and exhausting this channel was against the CAT Act. Hence, the OA be dismissed.
6. Reference has been made in the written statement that it was incorrect on the part of the applicant to say that he had not been promoted only on account of less marks in the interview. In fact, he also did not have even 50% marks in ACR / APAR score out of 20 marks in any DPC of 2007, 2008 and 2009 and therefore, he did not qualify for promotion. Moreover, the marks referred by the applicant to be disclosed under RTI by the CPIO are those obtained by the applicant in the DPC of 2010 and not 2009. The marks obtained by the applicant in the three referred DPC of 2007, 2008 and 2009 are as under:-
DPC for promotion w.e.f. Date of Interview (A) Trade Test of 50 marks (B) ACR / APAR grading of 20 marks (C) Interview of 30 marks (D) Total out of 100 marks Remarks 1.4.2007 2.8.07 35
7.30 13.33 55.63 Not qualified for promotion due to less than 50% marks in B and C as well as overall less than 60% marks.
1.4.2008 4.7.08 35 9.33 12 56.33
-do-
1.1.2009 19.2.09 35 9.30 0 44.30
-do-
As regards, marks in the interview, it is the assessment of the Departmental Promotion Committee (DPC), which had 10 Members including 3 from other DOS / ISRO Centres in 2007 and 11 members including 5 members from other DOS/ISRO Centres in 2008 and 2009. Since the employee refused to answer any questions put by the Committee including briefing of his work to the Committee and instead resorted to abusive language, he can hardly be given any marks. In fact, the applicant conducted himself in this manner before the interview Committee as per the minutes of SCL DPC Review Committee in 2009 (Annexure R-2). The report of the DPC Members quoting the utterances made by the applicant during his interview before DPC on 17.11.2011 are also annexed as Annexure R-3. It is under these circumstances that he was granted zero marks in the interview by the DPC Members in 2009 and disciplinary action initiated for his alleged act of misconduct as per rules.
7. It is further stated that charge sheet memo was issued to the applicant on 03.12.2011 regarding his conduct when he appeared before the DPC for interview on 17.11.2011. After considering the reply of the applicant, the facts and circumstances as brought out in the complaint dated 17.11.2011 by the 10 Members of the DPC, the Disciplinary Authority was satisfied that the complaint made by the DPC Members against the applicant was factually correct. Hence, the need to initiate Internal Disciplinary Enquiry was dispensed with in terms of Rule 13 (1) (b) of DOS Employees (CCA) Rules, 1976 applicable to the applicant (Annexure R-4).
8. Arguments advanced by the learned counsel for the parties were heard, when they reiterated the content of the OA, replication and the written statement respectively. Material available on record has been perused, Rule 13 (1) (b) of Department Of Space Employees (CCA) Rules, 1976 (Annexure R-4) reads as follows:-
13. PROCEDURE FOR IMPOSING MINOR PENALTIES:
(i) Subject to the provisions of the Sub-rule (8) of Rule 12, no order imposing on an employee any of the penalties specified in Clauses (i) to (iv) of Rule 8 shall be made except after-
(a) Informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehavior on which it is proposed to be taken and giving him a reasonable opportunity of making such, representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in Sub-rule (3) to (23) of Rule 11 in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the employee under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary. The respondents have placed reliance on Clause 13 (1) (b) of the DOS Employees (CCA) Rules, 1976, and taken the view that holding an enquiry in the matter of the charge sheet issued to the applicant through Memo dated 03.12.2011 was not necessary as the charge against him stood proved.
9. We are unable to agree with this view taken by the respondents natural justice demands that before any penalty is imposed upon an employee he should have adequate opportunity to defend himself. Since the applicant had contested the charge sheet Memo dated 03.12.2011, the respondents should in all fairness have appointed an Enquiry Officer to enquire into the charge against the applicant and proceeded further in the matter as per the DOS Employees (Classification Control and Appeal) Rules, 1976. Hence the impugned order dated 23.01.2012 is set aside and the respondents are directed to hold an enquiry into the charge sheet issued to the applicant vide Memo dated 03.12.2011 as per the prescribed procedure.
10. Since multiple relief has been sought through the present OA as claim has also been made regarding promotion, we are confining ourselves to adjudicating only on relief as per para 8 (2) of the OA. On the other issues the applicant may submit his representation to the respondent SCL, since it is clear from the written statement filed on behalf of the respondents that no representation has been filed by the applicant regarding claims made in para 8 (3), (4) and (5).
11. OA is disposed of with these directions. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 06.10.2015 sv:
8(OA.No.773/PB/2013) titled (DINESH CHAND GOYAL VS. UOI & ORS.)