Central Administrative Tribunal - Delhi
Sh. D.K. Rangra vs Union Of India Through on 4 March, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4327/2012
Reserved on : 26.02.2013.
Pronounced on :04.03.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. D.K. Rangra,
S/o sh. J.R. Rangra,
Working as Director Residence
NIFT Campus,
Cheb Kangra Himachal Pradesh. .. Applicant
(through Sh. U. Srivastava, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Textiles,
Udyog Bhavan,
New Delhi.
2. The Director General,
National Institute of Fashion Technology,
(Establishment Section Head Office)
Hauz Khas New Delhi.
3. The Registrar,
National Institute of Fashion Technology,
(Establishment Section Head Office)
Hauz Khas New Delhi. .. Respondents
(through Sh. K.B. Upadhyay, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(a) Direct the respondents to place the relevant records pertaining to the present O.A. before the Honble Tribunal for the proper adjudication in the matter.
(b) Quash and set aside the impugned orders dated 06.09.12 issued by the respondents with all other consequential benefits after declaring the same is as illegal, unjust, arbitrary, malafide, unconstitutional, against the principles of natural justice, discriminatory, violative of articles 14 & 16 of the constitution of India and in violation of the mandatory provisions of law.
2. Facts of the case are that the applicant joined the respondents as Deputy Registrar on 24.11.1992. He was promoted and confirmed as Registrar w.e.f. 2005. In 2008 an advertisement was issued for appointment to the post of Director in the grade of Rs.14300-400-18300 for which the applicant applied. He was selected and posted to National Institute of Fashion Technology (NIFT), Patna on contract basis. On 24.06.2009, he was transferred to Kangra. On 06.09.2012, by the impugned order, the contract of the applicant for the post of Director was terminated and he was reverted as Joint Director and posted at NIFT, Bhubaneswar with immediate effect. On the same date, the applicant was also served a show cause notice asking him to show cause why proceedings under CCS (CCA) Rules be not initiated against him, regarding unauthorizedly releasing Rs. 6 crores to DSIDC. The show cause notice was served on the applicant on 13.09.2012. Being aggrieved by the action of the respondents, the applicant gave a legal notice through his counsel on 12.10.2012. The reply to the notice was received on 22.12.2012. Not satisfied by the same, the applicant has preferred this O.A. before us.
3. The applicant has contended that under Article 311(2) no person can be reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard. However, in the instant case, no such procedure has been followed and in fact a show cause notice asking him to show cause why proceedings under Rule-14 of the CCS(CCA) Rules, 1965 should not be initiated against him was issued on the same day as the termination order i.e. 06.09.2012. The said notice was actually served on him on 13.09.2012. Thus, this amounts to post decisional hearing and is, therefore, illegal and unjust and violative of constitutional provisions. The applicant has cited this Tribunals judgment dated 10.12.2008 in OA-1135/2008 titled as Abid Ali Vs. UOI and judgment dated 11.12.2010 in TA-1246/2009 CP Rao Vs. National Building Construction Corporation Limited & Ors. in his favour. The applicant has further contended that as per law laid down by Honble Supreme Court in case of UOI Vs. V. Rama Krishnan & Ors., 2005 SCC (L&S) 1150 if the tenure of deputation is specified ordinarily the term deputation should not be curtailed except on just grounds as unsuitability or unsatisfactory performance. The applicant has also quoted Honble Supreme Courts judgment in the case of Ram Ujarey Vs. UOI & Ors., 1999(2) SLJ 43 in which it has been held that promotion once given should not be cancelled without giving opportunity of being heard.
4. The respondents in their reply have disputed the contentions of the applicant and stated that the applicant has already accepted Rs. 53361/- as the difference amount in lieu of three months notice period. They have contended that the applicant was appointed to the post of Director on contract basis for a period of 5 years and that this was not a promotion but only a contractual appointment. According to the respondents the applicant committed various irregularities for which show cause notices were also issued to him. The details are as follows:-
(i) He released Rs. 6 crores to the construction agency without approval of the Competent Authority whereas his authority as Director was only upto Rs. 5 lakhs. A memorandum was issued on 23.12.2011. A copy of the Show Cause Notice dated 23.12.2011 is annexed herewith and marked as ANNEXURE-R/4. Sh. Rangra shared this internal communication was shared with the State Government.
(ii) A bus was purchased without following proper procedure. A preliminary inquiry initiated in April 2012, revealed lapses for which a Show Cause Notice was issued on 16.7.2012. A copy of the Show Cause Notice dated 16.07.2012 is annexed herewith and marked as ANNEXURE-R/5.
(iii) NIFTs financial interests were compromised, when fixed deposits of Rs. 2.00 crores were made at rates below available rates. A Show Cause Notice was issued on 30.8.2012. A copy of the Show Cause Notice dated 30.08.12 is annexed herewith and marked as ANNEXURE-R/6.
(iv) For financial imprudence and insubordination, a show cause notice was issued on 6.9.2012. A copy of the Show Cause Notice dated 6.9.2012 is annexed herewith and marked as ANNEXURE-R/7. Respondents have further stated that the applicant replied to the show cause notices and the same were not found satisfactory. Since his acts of omission, irregularities and insubordination were found to be serious in nature, they could not be ignored. In view of the same his contract for the post of Director was terminated and he was reverted to his substantive post of Joint Director. However, the respondents have stated that the applicant had never been promoted and was holding the post of Director only on contract basis.
5. We have heard the learned counsel for the parties and perused the material placed on record.
6. The applicant was appointed as Director on contractual terms vide the appointment letter issued to him on 17.06.2008. In the aforesaid letter the terms and conditions of this contractual appointment are also laid down. The letter is reproduced below:-
No.NIFT/HO/Director/2006 17th June, 2008 Shri D.K. Ranga, Registrar (A&A), NIFT Head Office Subject : Appointment to the post of Director (Rs.14300-18300_ in NIFT.
Dear Sh. Ranga, With reference to your application for the post of Director in National Institute of Fashion Technology and after due selection process, DG-NIFT is pleased to offer youre the post of Director at NIFT Centre Patna in the pay scale of Rs.14300-400-18300/- on contract basis.
The appointment will be subject to the following terms and conditions :
Yours services have been engaged to carry out the responsibilities of Administration, Academic, Finance, Personnel Management, Protocol, Public Relations, etc. of the Institute in accordance with the rules, regulations, instructions and guidelines of the Institute under the overall superintendence of the administrative control and supervision of the Centre Director, who shall report to the Director General, NIFT.
Your place of duty will be at NIFT Centre Patna. However, your services can be transferred to any other Centres based on the administrative exigencies.
You will continue to hold the additional charge of Controller of Examinations, NIFT and hence will function from NIFT Head Office, New Delhi till further orders.
During your employment, you will not undertake any other work/assignment, honorary or with remuneration or do any other business, since you will be a whole time employee of the Institute except with the prior approval of Competent Authority.
Your employment will be for a period of five years beginning from the date of assumption of charge of the post of Director on contract basis. The performance shall be evaluated after completion of one year and subject to the outcome of the evaluation of your services, the appointment shall be continued for the remaining contract period. You will be allowed to retain lien to the substantive post of Registrar in NIFT.
You will be placed in the pay scale of Rs.14300-400-18300/- from the date you assume the charge of the post. You will also be entitled to DA, HRA, CCA and TAQ as per GOI rules. The Institute will grant annual increment as prescribed in the scale on completion of each year of your satisfactory service.
The institute shall subscribe to the CPF account the employers share as per statutory requirement.
You will be eligible for LTC facility as per GOI rules.
The Institute will reimburse upto an amount of Rs.8000/- (Rupees Eight thousand only) per annum towards any minor ailment of yours or your family members on production of necessary vouchers and certificates as may be prescribed by the Institute.
You shall be entitled to a Medi-claim policy for an amount of Rs.2.5 lakh per year for which the Institute will reimburse you the payment of premium.
You shall be entitled for leave as per the Govt. of India rules.
It shall be your endeavor to safeguard the financial interest of NIFT and to strictly observe the code of conduct as prescribed by NIFT.
The present terms govern the conditions of service of the Employee and the Employee shall not be entitled to any benefit or rights available to permanent/ regular employees including benefits and rights available under Rules & Policies. The appointment shall not entail any right whatsoever to the permanent employment/regularization/ absorption in NIFT, at any of its Centres.
Your appointment can be terminated by either side without assigning any reasons, after giving three months notice or three months remuneration in lieu thereof. After expiry of the contract term, your contract employment shall stand terminated automatically unless the same is extended in writing by NIFT.
During the term of contract appointment you may be extended certain advances in respect of your official duties including seminars, fashion shows and/or projects and also personal loans/advances for which you undertake to furnish proper account of such advances and loans and deposit the unspent amount in NIFT account as and when the event is over. If at the expiry of your contract appointment there remain certain advances unsettled, NIFT shall be authorized to deduct/recover such unspent advances from the final payment to be made to you from any of the heads. You will also ensure that for any major decision taken in the interest of Institute, prior approval of the Competent Authority is obtained before such decision is taken.
If any declaration given by you is proved to be false, or if you violate any condition of the present contract appointment, NIFT reserves its right to terminate the present contract.
In case the above terms and conditions are acceptable to you, you are requested to assume charge of the Director, NIFT Patna Centre immediately and submit charge assumption report. Yours faithfully, ( Munish Girdhar ) Registrar (Establishment ) Copy to : PS to DG, NIFT. It is important to note that Clause-12 of the above letter which casts a duty on the applicant to safeguard the financial interest of NIFT and to strictly follow the code of conduct as prescribed by NIFT. Clause-15 lays down that proper account of all the advances taken has to be furnished and unspent amount has to be deposited in the NIFT account. Clause-16 lays down that the contract can be terminated if it is found that the applicant has violated any condition of the contractual appointment. The most important clause-14 of the contract is as follows:-
Your appointment can be terminated by either side without assigning any reasons, after giving three months notice or three months remuneration in lieu thereof. After expiry of the contract term, your contract employment shall stand terminated automatically unless the same is extended in writing by NIFT. The order of termination of the contract which is the impugned order reads as follows:-
No.15/G/212/NIFT-Vol.III 6th September, 2012 ORDER Whereas Sh. D.K. Rangra was appointed as Director vide appointment letter No.NIFT/HO/Director/2006 dated 17.6.2008 on contract basis for a period of five years subject to certain terms and conditions in the said appointment letter.
And whereas Clause 12 of the said appointment states It shall be your endeavor to safeguard the financial interest of NIFT and to strictly observe the code of conduct as prescribed by NIFT.
Further Clause 15 interalia states You will also ensure that for any major decision take in the interest of institute, prior approval of the Competent Authority is obtained before such decision is taken.
And whereas, undersigned having gone through the records of performance of Sh. D.K. Rangra has noticed that he has failed in discharging his responsibilities and has violated rules and regulations of NIFT and CVC guidelines. The following instances clearly reveal that he has failed to safeguard the financial interest of the NIFT:
Preventive vigilance inspection of NIFT Kangra reveals that proper tendering process was not followed in contracts like (a) Housekeeping, (b) Security services, (c) Canteen services.
Proper procedure was not followed in purchase of mini bus causing a loss to NIFT of Rs.1.00 lakh approximately.
Rs.6.00 crores were released to DSIIDC without authority to do so.
The above lapses and blatant violation of established rules and practices has been viewed adversely and are found in contradiction to the terms of contract specially Clause 12 and 15.
The Clause 14 of the contract states that your appointment can be terminated by either side without assigning any reasons, after giving three months notice or three months remuneration in lieu thereof. After expiry of the contract term, your contract employment shall stand terminated automatically unless the same is extended in writing by NIFT.
The Competent Authority by invoking clause 14 of the aforesaid appointment letter has decided to terminate the above offer of appointment as Director and you are reverted to the post of Joint Director with immediate effect. Further as per Clause 14 of the appointment letter, Sh. D.K. Rangra may be paid the difference of pay of the Director (existing) and Joint Director, in lieu of 3 months notice period. Accordingly, a cheque of Rs.53361/- (Rupees Fifty three thousand three hundred and sixty one only) is being sent.
Sh. D.K. Rangra is hereby reverted to the post of Joint Director and posted as Joint Director at NIFT Bhubaneswar with immediate effect.
This issues with the approval of DG NIFT.
7. Without going into further details of the case we focused our attention on the aforesaid order and noted that the applicant has been found to have been guilty of committing certain acts which were in violation of the Clauses 12 and 15 of the contract. A reading of this order makes it clear that these charges have been taken to have been proved against the applicant without giving him an opportunity to defend himself which is a clear violation of the principles of natural justice. The respondents have stated in their reply that they had issued show cause notices for each one of these lapses on the part of applicant and had found the reply of the applicant unsatisfactory. However, no where it is mentioned in the impugned order that such notices were issued and reply of the applicant thereon was considered. Moreover, it is also not elaborated either in the impugned order or in the pleadings of the respondents as to what the reply of the applicant was and why it was found to be unsatisfactory. In fact, on the third charge of releasing Rs.6 crores unauthorizedly to construction agency, the respondents are admittedly considering to hold further enquiry under CSS Rules for which they have issued another show cause notice on 06.09.2012 i.e. on the same date on which the termination order has been issued.
8. In our opinion, if the respondents intended to terminate the contract for violation of Clauses-12 & 15 of the contract the proper course of action would have been to issue a detailed and speaking order giving the lapses committed by the applicant, the show cause notice issued to him, his reply thereto and the reasons why his reply was found to be unsatisfactory. By not doing so, the respondents have held the charges against the applicant as proved without considering his defence which is a clear violation of the principles of natural justice. Moreover, Clause-16 of the contract which provides for termination of the contract in case of violation of any of the conditions of the contract should have been invoked for terminating the Directors contract.
9. However, this was not done and in fact the contract of the applicant has been terminated by invoking Clause-14. This clause provides for termination of contract without assigning any reasons after giving three months notice. However, in the instant case this clause has been invoked after giving in details the reasons for terminating the appointment i.e. violation of Clauses 12 and 15 of the contract. Thus the very terms of the clause have been violated. In fact, in our opinion, Clause-14 should not have been used at all when termination was being done on grounds of misconduct. This clause could have been used if the services of the applicant to be terminated on the grounds that the post was no longer required or the workload did not exist etc.
10. The impugned termination order issued by the respondents is, therefore, not sustainable in the eyes oflaw and we quash the same. As a consequence of quashing of the order, the applicant will have to be reinstated on the post of Director for the remaining period of his contract. This shall be done within a period of six weeks from the date of receipt of a certified copy of the order. However, the respondents will be at liberty to proceed afresh against the applicant in accordance with law. The O.A. is accordingly disposed of. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/