Central Administrative Tribunal - Mumbai
Harikishan Chandrakant Koli vs M/O Health And Family Welfare on 14 February, 2024
\ , OATOAZOL9 Central Administrative Tribunal, Mumbai Bench, Miumbal. O.A.794/2019 Dated this © iy the 6 day of February, 2024, Coram: Ms.Harvinder Kaur Qhberal, Member (Judicial) Mr.Shri Krishna, Member (Administrative). Kishan Chandrakant Kol, Aged 48 years, Lastly working as Field Worker, Airport Health Organization, Ministryof Health & Family Wellare, Thirectorate General Health Services, Chhatrapati Shivaji Intemational Airport Approach Road, Next to Ambassador Sicy Chef, Sahar, Andheri East, Mumbai ~ 400 099 and residing at Chandu Seth House, Near B.M.c. School, Trombay Koliwada, Trombay, Mumbai -- 400 088. . Applicant. (By Advocate Shri Sai Kumar Ramamurthy) Yersus +. Union of India, through the Secretary, Ministry of Health & Family Welfare, Government of India, Nirman Bhavan, New Delhi - 110 001. The Director General of Health Services, Directorate General of Health Services, Ministry of Health & Family Welfare, Government of India, Nirman Bhavan, New Delhi -- 110 001. 3. The Airport Health Officer, Airport Health Organization, Mumbai, Ministry of Health and Family Welfare, TNrectorate General Health Services, Chhatrapati Shivaji International Airport Approach Road, Next te Ambassador Sky Chef, Sahar, Andheri East, Mumbai -- 400 099. Respondents. ( By Advocate Shri N.K. Rajpurehit ). Onder reserved on: 08.02.2024 Order pronounced on il 02.2024. na 2 OA. TOAPROLY ORDER Per: Harvinder Kaur Oberoi, Member (J)
By way of this O.A. the applicant is challenging order dated 05,07.2019 passed by Respondent No.2 / Appellate Authority, whereby the said authority has recalled its earlier order dated 17.02.2019. The same authority ic. Appellate Authority had earlier vide order dated -- 17.02.2019, on the appeal preferred by the applicant in the departmental proceedings, had allowed the said appeal. By the impugned order the said order was recalled, hence the O.A. has been filed secking the = following reliefs:
"(a) That this Hon'ble Tribunal be pleased to quash and set aside the impugned order dated 7" July, 2019 (Annexure "A-1") and order dated 208 December, 9017 (Annexure "A-2");
(b) That this Hon'ble Tribunal in pursuance of prayer clause (a) direct the Respondents and.
Respondent No.2 and 3 in particular to reinstate the Applicant in service as field worker under Respondent No.3 and grant him all consequential service benefits including continuity of service, fixation of pay, seniority, payment of arrears of emoluments from 1% June, 2016 till reinstatement along with interest at the rale af 18% per annim on the arrears of pay from the due date till payment.
(c) That this Hon'ble Tribunal be pleased to hold and declare that the entire action to terminate the services of the Applicant by the Respondent No.2 on the ground of alleged incorrect caste certificate is not correct and proper and that the Applicant is entitled to be continued in service throughout till his normal age of superannuation with attendant service benefits flowing therefrom:
3. OA. F94/2019(4) that such other and further order or orders be passed as the facts and circumstances of this Original Application may require;
(e} That costs af this Original Application be provided for" .
3 The ease has a chequered history. Applicant, on a requisition sent by respondents, was sponsored by the Employment Exchange. Applicant came to bs appointed on a post which was known a Rat Catcher and stands renamed as Field Worker. Applicant is alleged to have been appointed on the basis of his caste status Le Mahadeo Koli caste, which is a Scheduled Tribe, in the State of Maharashtra. At the time of appointment applicant submitted a caste certificate dated 26.06.1978 issued by the spo, Murad Janjira, Mangaon, District Raigad. He entered the service on 13.04.1994 and he continued as such il Jane, 2016 when the applicant's services were terminated for the first time. The said termination was without notice and without issuance of any charge-sheet to the applicant. The services were terminated on the around that the applicant had allegedly produced a bogus Caste certificate at the time of his initial appointment.
3. Applicant preferred an appeal against the termination order dated 01.06.2016, the Respondent No.2 as Appellate Authority passed an order on 27.02.2017 remanding the matter back to the Disciplinary Authority with direction to complete the proceedings strictly in accordance with the procedure as laid down in Rule 14 of the CCS (CCA) Rules, 1965.
4 OA.T94/20194, | Thereafter the respondent no.3 issued a charge-memorandum dated 08.03.2017 charging the applicant with the sole charge that applicant's appointment was made against the ST category vacancy as Rat Catcher / Field Worker on the basis of a caste certificate produced by applicant which was bogus. The enquiry under the said charge-sheet was conducted on 3 dates and was concluded in a hasty manner. The - Inquiry Officer submitted his report on 18.09.2017 ultimately, the Disciplinary Authority vide its order dated 20.12.2017, imposed punishment of removal from service. Applicant was removed from service retrospectively with effect from 01.06.2016.
5. Once again applicant preferred an appeal dated 03.07.2018, before Respondent No.2/Appellate Authority, against order of removal of 20.12.2017. On this appeal, order dated 17.02.2019, was passed by Appellate Authority, whereby it was pleased to set aside the order of removal passed by Disciplinary Authority dated 20.12.2017, and the case was remanded to Disciplinary Authority with direction to conduct the disciplinary enquiry strictly as per the provisions of the CCS (CCA) Rules, 1965.
6. In pursuance to this order the applicant was reinstated In service on 07.03.2019. The intervening period was directed to be treated as suspension. On 11.03.2019, the applicant was placed under suspension.
On 24.03.2019, an order was passed by Respondent No.3 whereby the OA.794/2019 tds order of reinstatement of the applicant with effect from 07.03.2019, was kept on hold, Three months later the impugned order dated 05.07.2019 was issued by Respondent No.2 / Appellate Authority whereby he was pleased to cancel and withdraw the original Appellate Authority order dated 17.04.2019. Hence the O.A. 4 Counsel appearing on behalf of the applicant at the outset submitted that there is no provision available under the CCS (CCA) Rules, 1965 for the Appellate Authority to review its own order or withdraw or cancel the same once he has taken final decision on the appeal. The counsel for the respondents has contested this stand of the applicant and referred to Rule 29 of the CCS (CCA) Rules. For casy reference the same is being quoted below:-
"39, Revision (i Notwithstanding anything contained in these rules-
(i) the President, or (ij) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department, or
(ii) the Member (Personal) Postal Services Board in the case af 4 Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving if oF under the Telecommunications Board; or (ivy) the Head of a Department directly wader the Central Government, in the case of a Government servant serving In a department ot office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a 6 OA.794/2019 Department; or
(v) the appellate authority, within six months of the date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or itg own motion or otherwise call for the records of any inquiry and revise any order made wader these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may~
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed: or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; OF
(d) pass such other orders as itreay deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making 4. representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v)} to Gx) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after on inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary and the Government servant has been given an. opportunity of representing against the advice of the Commission within the time limit specified in clause (b) of sub-rule (3) of rule 15, Seed OA.794/2019 Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personal), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department,
- as the case may be, unless-
(@) the authority which made the order in appeal, or
(i) the authority to which an appeal would le, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced wotil afer- G) the expiry of the period of limitation for an appeal, or Gi) the disposal of the appeal, where any such appeal has been preferred, (3) An application for revision shall be dealt with in the manner as if it were an appeal under these rules.
According to respondent appellate authority has power under Rule 29 (1) (x), of the rules to revise any order, Counsel for the applicant on the other had submitted that the Appellate Authority has the pawers under Rule 29( (vw) of CCS (CCA), Rules, 1965, however the same is revisionary power meant to revise any order passed by a lower authority. Rule 29(1)(v) af CCS (CCA), Rules, 1965 is not for the purpose to revise its own order. We are in.
agreement with the counsel for the applicant.
8. We have gone throngh the impugned order, the appellate authority has not specified that it is exercising its power of revision as enshrined in Rule 29¢1) of CCS (CCA), Rules, 1965, rather it has withdrawn jis sarlier order on appeal of the applicant, passed fresh order and rejected the appeal. In fact respondent no. 2 has exercised its power of deciding the appeal of the g OA.794/2019 applicant. Under no cannons of service jurisprudence can this flip flop be permitted.
9, We noted that Rule 29(1) of CCS (CCA), Rules, 1965 also provides that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concemed has been given reasonable opportunity of making a representation against the penalty proposed, In this case, no show cause notice was issued to the applicant by the Appellate Authority, before recalling its earlier order. Therefore, the Appellate Authority has not followed the procedure under the Rules also. Thus, the defence put up by the counsel for the respondents that power under Rule 29 (1) was exercised falls flat.
19. In view of the above discussion, the O.A. is allowed. Order dated 05.07.2019 is quashed and set aside. The original Appellate Authority order dated 17.04.2019 is restored. We make it clear that we have not expressed any opinion of the charge levelled against the applicant and or the departmental enquiry. Needless to say that all contentions of the applicant with respect to the disciplinary proceedings shall remain epen. O.A. is allowed to the above extent.
ti. There shall be no order as to costs, (Stiri Krishna) | (Harvitiddr Kaur Oberoi) Member (A) Member (J).
Ay H. Re gl Aco