Central Administrative Tribunal - Delhi
A.K.Padhy vs Government Of Nct Of Delhi on 2 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3305 of 2013 New Delhi, this the 2nd day of July, 2015 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMMBER . A.K.Padhy, Ex-Chief Prosecutor, Govt.of NCT of Delhi, Presently at: Advocates Chamber No.84, Patiala House Courts, New Delhi 110001 . Applicant (In person) Vs. 1. Government of NCT of Delhi, Through its Chief Secretary, GNCT of Delhi, Delhi Govt. Secretariat, 5th Floor, I.P.Estate, New Delhi 110002 2. Government of NCT of Delhi, [Through Shri Arvind Ray, Principal Secretary (Home)], 5th Level, Delhi Govt. Secretariat, I.P.Estate, New Delhi 110002 3. Directorate of Prosecution, GNCT of Delhi, (Through B.S.Joon, Director), 1st Floor, Tis Hazari, Delhi 54 .Respondents (By Advocate: Shri Amit Anand) .. ORDER
Shorn of unnecessary details, brief facts of the applicants case, as projected in the O.A., are as follows:
1.1 The posts of Assistant Public Prosecutor (Group B Gagzetted), Senior/Additional Public Prosecutor, Chief Prosecutor, and Public Prosecutor (Group A Gazetted) are borne on the cadre of Public Prosecutors of Directorate of Prosecution, Government of NCT of Delhi. The Principal Secretary, Home Department, GNCT of Delhi, being the Administrative Secretary and Head of Department, is the cadre controlling authority of the cadre of Public Prosecutors of Directorate of Prosecution.
1.2 An Assistant Public Prosecutor is not transferred out of the Directorate of Prosecution as there is no such post in any other Department of the Government of NCT of Delhi, whereas Senior/Additional Public Prosecutors and Chief Prosecutors are transferred out of the Directorate of Prosecution to similar posts in various other Departments. Those posts are (i) Chief Prosecutor in Anti Corruption Department under the Directorate of Vigilance, GNCT of Delhi; (2) Legal Advisor to Commissioner of Police, Delhi Police Headquarters; (3) Chief Prosecutor, Crime &Railways Department; (4) Senior PP, Chief Prosecutor and Deputy Legal Advisor, Prevention of Food Adulteration (Commissionerate of Food Safety) in the Health & Family Welfare Department of the GNCT of Delhi. All the said four Departments are independent and separate Departments and governed by their own Directors or Commissioners, as the case may be, and are not under the Directorate of Prosecution. The Prevention of Food Adulteration Department is under the Commissionerate of Food Safety. The Principal Secretary, Health Department, GNCT of Delhi, is the Head of Department of the Commissionerate of Food Safety.
1.3 As per the Transfer Policy, the Principal Secretary, Home Department, GNCT of Delhi, or any other authority higher than the said Principal Secretary, is only competent to order intra-departmental and inter-departmental transfers in respect of Addl./Senior Public Prosecutors and Chief Prosecutors. Such power to transfer is not delegated to the Director of Prosecution.
1.4 The applicant, while holding the post of Senior Public Prosecutor, was transferred to the Prevention of Food Adulteration Department, GNCT of Delhi, by an order issued by the Principal Secretary, Home Department, GNCT of Delhi.
1.5 The Commissioner (Food Safety), GNCT of Delhi, vide order dated 25.10.2011 (Annexure 6), directed him to function as Deputy Legal Advisor (PFA).
1.6 The Director, Prosecution, GNCT of Delhi, in clear violation of the Transfer Policy and the Standing Orders issued by the GNCT of Delhi, transferred the applicant, vide order dated 19.11.2011. Thereafter, the relieving order dated 30.11.2011 was issued. His repeated representations questioning the said transfer order and relieving order having fallen on deaf ears of the respondent-departmental authorities, the applicant filed O.A.No.1432 of 2012. The Tribunal, while disposing of the said O.A, vide order dated 1.5.2012 (Annexure 8), directed the respondent-departmental authorities to take a decision on the applicants representations.
1.7 In compliance with the Tribunals order dated 1.5.2012 ibid, the Principal Secretary, Home Department, GNCT of Delhi, passed a speaking order dated 21.6.2012, rejecting the applicants representations.
1.8 On further representation being made by the applicant, the Additional Secretary, Home Department, GNCT of Delhi, vide his letter dated 21.1.2013, conveyed the displeasure of the Principal Secretary, Home Department, GNCT of Delhi, to the Director of Prosecution, GNCT of Delhi, about the issuance of the order of transfer of the applicant, vide order dated 19.11.2011.
1.9 When it was reported that the applicant was attending Patiala House Courts in disregard to all official orders, the Additional Secretary, Home Department, GNCT of Delhi, issued an order dated 21.1.2013, directing the applicant to report for duty as Chief Prosecutor, District North, Tis Hazari, New Delhi.
1.10 The competent authority, vide order dated 22.3.2013, placed the applicant under suspension with immediate effect. The competent authority, vide another order dated 22.3.2013, treated the applicants unauthorized absence from 30.11.2011 till 22.3.2013 as dies non for all purposes.
1.11 Thereafter, order dated 28.6.2013 was issued by the Additional Secretary, Home Department, GNCT of Delhi, to the following effect:
The order of the Honble Lt.Governor, Delhi dated 24th June,2013 is hereby conveyed for revocation of suspension order in respect of Mr.A.K.Padhy, Chief Prosecutor under Sub Rule 5C of Rule 10 of CCS (CCA) Rules, 1965 and recalling the order declaring the period 30.11.2011 to 22.3.2013 as dies non. Further, the entire period i.e. the period declared as dies non (30.11.2011 to 22.3.2013) and the period under suspension will be treated as period spent on duty for all purposes.
Consequent upon above order of the Honble Lt.Governor and in supersession of all previous orders, Mr.A.K.Padhy, Chief Prosecutor is posted at the headquarters of Directorate of Prosecution w.e.f. 30/11.2011 i.e. the date of his relieving from the Department of Prevention of Food Adulteration. He is directed to submit his joining report to the Director of Prosecution w.e.f. 30/11/2011 for the purpose of pay, pension and all other service matters, incompliance of this order.
This issues with the prior approval of the Competent Authority. 1.12 Hence, the applicant filed the present Original Application on 16.9.2013 seeking the following relief(s):
8. In the facts and circumstances of the case, it is humbly prayed to this Honble Tribunal to:
a. Rectify/Amend/Correct the Order dated 28/6/13 by quashing and setting aside the Transfer Order dated 19/11/2011 and the subsequent Relieving Order dated 30/11/2011 issued by the Respondents impugned herein being void and illegal with all its consequences.
b. Direct the Respondent to pay the cost of litigation to the Applicant.
c. Any other order or direction which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Opposing the O.A. the respondents have filed a counter reply. It is, inter alia, stated by the respondents that the Prosecutors appointed in the Directorate of Prosecution are primarily deputed to conduct criminal cases on behalf of the State in subordinate courts and unlike employees of other Government Departments, the prosecuting officers are not transferred to any other Department except to Prevention of Food Adulteration Department (now Food Safety Department) and Police Training College. Even when a prosecuting officer is deputed to any of these two Departments, their services are regulated by the Home Department, i.e., the Administrative Department, under which the Directorate of Prosecution functions. The only difference is that the officers deputed to Food Safety Department or Police Training College reports directly to that Departments and draw salary from the said Departments. As such the O.M. dated 8.4.2010 issued by the Government of India is not applicable in the case of officers of the Directorate of Prosecution working in the Food Safety Department or the Police Training College. It is evident from the fact that despite having his posting to Prevention of Food Adulteration Department as Addl. Public Prosecutor, the applicant was promoted to the post of Chief Prosecutor by the Cadre Controlling Authority, i.e., Home Department. Upon his joining the Directorate of Prosecution on 29.6.2013, just one day before his retirement, he was requested to submit his pension papers and other relevant documents, etc., followed by three letters to the applicant requesting him to submit his pension papers/documents, etc., for processing his case for payment of due retirement benefits, but the applicant failed to comply with the same, and in the absence of non-availability of relevant documents, the Directorate of Prosecution is not in a position to process and finalize the payment of his retirement benefits. Instead of submitting the requisite pension papers and other relevant documents even after repeated requests, the applicant approached the Tribunal in the present O.A. The Director, Directorate of Prosecution, was declared as Head of Department, vide order dated 12.7.2010, and thereafter, by Home Departments order dated 27.1.2012, the Director of Prosecution was also delegated the power of transfer and posting of the officer/officials working in the Directorate of Prosecution. As such before 27.1.2012, the Head of Department of the Directorate of Prosecution was competent to transfer Addl. P.P. and the Chief Prosecutors with the approval of the Principal Secretary, Home Department.
3. No rejoinder reply has been filed by the applicant.
3. I have perused the records and have heard the applicant in person and Shri Amit Anand, learned counsel appearing for the respondents.
4. A perusal of the pleadings reveals that the applicant was appointed as Assistant Public Prosecutor in the Directorate of Prosecution, Government of NCT of Delhi, on 25.4.1984. While working as Senior Public Prosecutor, he was transferred to the Prevention of Food Adulteration Department, GNCT of Delhi, vide order dated 4.2.2003 issued by the Home Department, GNCT of Delhi. He joined the Prevention of Food Adulteration Department on 6.2.2003. By order dated 10.10.2007 issued by the Home Department, GNCT of Delhi, the applicant was promoted to the post of Chief Prosecutor in the pre-revised pay scale of Rs.10000-325-15200/- (corresponding to 6th CPC PB of Rs.15600-39100 with Grade Pay Rs.6600/-). The applicant was not permanently transferred from the cadre of Public Prosecutors of Directorate of Prosecution to any cadre of the Prevention of Food Adulteration Department, GNCT of Delhi. The applicant has not produced before this Tribunal his transfer order issued in 2003 or any other contemporaneous document showing that he was permanently absorbed in any cadre of the Food Adulteration Department, GNCT of Delhi, subsequent to the order dated 10.10.2007 ibid. The order dated 18.3.2003 (Annexure 1), which states that the applicant is hereby taken on strength of this department w.e.f. 6.2.03 (F.N.) was apparently issued by the Joint Director (PFA) when the applicant joined the P.F.A. Department on his transfer, as is done in every case of an officer when he joins an office on transfer. In the absence of clear order of permanent transfer of the applicant from the cadre of the Public Prosecutors of Directorate of Prosecution to the Prevention of Food Adulteration Department being issued by the competent authority, it cannot be said that the applicant was permanently transferred to the Prevention of Food Adulteration Department. By the order dated 25.10.2011 (Annexure 6) issued by the Commissioner (Food Safety), Department of Prevention of Food Adulteration, GNCT of Delhi, the applicant was directed to perform the duties of Deputy Legal Advisor (PFA) & Incharge Care Taking in addition to his own duties with immediate effect and that No extra remuneration shall be admissible for the performance of above duties. This order cannot be construed to be an order issued by the Department of Prevention of Food Adulteration promoting him to any higher post in the said Department. It is, thus, clear that all through he remained in the cadre of Public Prosecutors of Directorate of Prosecution, Government of NCT of Delhi. In views of this, I do not find any substance in the contention of the applicant that he was never on deputation in the Prevention of Food Adulteration Department, GNCT of Delhi, and that he was permanently transferred from the cadre of Public Prosecutors of Directorate of Prosecution, GNCT of Delhi to the Prevention of Food Adulteration Department. I do not see any provision contained in Rules 56 to 71 of the CCS (Pension) Rules, 1972, which forbids the cadre controlling authority from transferring an officer from one place to the other, when he is left with less than two years of service to retire on attaining the age of superannuation. By order dated 19.11.2011 ibid, the applicant was transferred from the Prevention of Food Adulteration Department to work as Chief Prosecutor (North), Tis Hazari Courts, Delhi, with immediate effect. Had the applicant complied with the order of his transfer, there would have been sufficient time for completion of the procedures laid down in Rules 56 to 71 of the CCS (Pension) Rules, 1972. As regards his grievance about pecuniary loss, the applicant has not produced before this Tribunal any materials showing that while working as Chief Prosecutor in the Prevention of Food Adulteration Department, he was getting higher pay scale than that of the Chief Prosecutor borne on his own cadre. The irregularity and/or illegality, if any, alleged to have been committed by the Director of Prosecution, while issuing the order dated 19.11.2011 ibid, has been removed by the cadre controlling authority, i.e., Home Department, vide order dated 28.6.2013 ibid, with due approval of the Honble Lt.Governor, Delhi. The orders placing the applicant under suspension and treating the unauthorized absence of the applicant from 30.11.2011 to 22.3.2013 as dies non for all purposes have also been cancelled by his cadre controlling authority, vide order dated 28.6.2013 ibid. Furthermore, the transfer order dated 19.11.2011 ibid has also been modified by the Home Department, vide order dated 28.6.2013 ibid, by allowing the applicant to submit his joining report to the Director of Prosecution for the purpose of pay, pension and all other service matters. It also transpires that the applicant joined his duty in the Directorate of Prosecution on 29.6.2013 and retired from service on 30.06.2013 on attaining the age of superannuation. On the facts and in the circumstances of the case, I do not find any merit in the applicants prayer for issuing an order to Rectify/Amend/Correct the Order dated 28/6/13 by quashing and setting aside the Transfer Order dated 19/11/2011 and the subsequent Relieving Order dated 30/11/2011 issued by the respondents impugned herein being void and illegal with all its consequences.
5. In the result, the O.A. being devoid of merit is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN