Central Administrative Tribunal - Delhi
Deepak vs M/O Finance on 3 October, 2016
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-33/2016
MA-21/2016
New Delhi this the 3rd day of October, 2016.
Hon'ble Sh. Shekhar Agarwal, Member (A)
Sh. Deepak,
Age: 38 years (Approx.)
S/o Sh. Jagdish Prasad,
R/o C-8/8406,
Vasant Kunj, New Delhi. .... Applicant
(through Sh. R.N. Singh, Advocate)
Versus
1. Union of India,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi-110001.
(Through : its Secretary)
2. Central Board of Excise & Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi-110001.
(through : its Chairman)
3. The Chief Commissioner of Central Excise,
Customs & Service Tax,
NER, Shillong Zone,
3rd Floor, Crescens Building,
M.G. Road, Shillong-793001.
4. The Chief Commissioner of Central Excise,
Delhi Zone, C.R. Building,
I.P. Estate, New Delhi-110109.
5. The Additional Director General,
Directorate General of Central Excise Intelligence,
Delhi Zonal Unit, West Block-VIII,
Wing No.III, Sector-I, R.K. Puram,
New Delhi-110066. .... Respondents
(through Sh. S.N. Verma, Advocate)
2 OA-33/2016, MA-21/2016
ORDER (ORAL)
The applicant joined as Inspector under the respondents on 02.09.2005 and was allocated Shillong Zone. On 01.11.2011, he submitted an application for Inter-Commissionerate transfer (ICT) to Chief Commissioner, Central Excise, Delhi Zone. His request was allowed by respondent No. 4 vide Establishment Order No. 157/2013 dated 04.10.2013. His name figured at Serial No. 42 of the list. He was directed to report to the office of respondent No. 4 by 31.10.2013 after getting relieved from his parent Commissionerate. In the meanwhile, the applicant had been selected to work as Intelligence Officer on deputation basis under respondent No.5 and had been working there. He made an application on 15.10.2013 requesting respondent No. 5 to relieve him to enable him to join parent Commissionerate i.e. Shillong Zone and get relieved from there before 31.10.2013 to report to Delhi Zone. The respondent No. 5, however, vide letter dated 29.10.2013 requested the respondent No.3 not to insist on applicant's joining Shillong Zone as he was engaged in certain important matters concerning the revenue of the Government. Respondent No.5 requested that the applicant instead may be relieved in absentia and permitted to join the office of respondent No. 4 on ICT basis. Respondent No. 3, however, did not agree to this request. Further, vide impugned letter dated 20.11.2013, the applicant was informed that his NOC for transfer from 3 OA-33/2016, MA-21/2016 Shillong Zone was not being extended any further after August, 2012 due to acute shortage of officers and his request for ICT was not being accepted. The applicant submitted several representations on 04.10.2014 and 14.10.2014. However, the applicant was not relieved from Shillong. Hence, he has now approached this Tribunal by filing this O.A.
2. Learned counsel for the applicant argued that it was the respondents themselves, who did not relieve the applicant due to exigencies of work. This is evident from letter dated 29.10.2013 (page-55 of the paper-book) wherein Directorate General Central Excise Intelligence had requested Chief Commissioner, Customs & Central Excise, NER, Shillong not to insist on the technicality of the applicant first joining Shillong before being relieved to join Delhi Zone on ICT. He further submitted that the applicant was not at liberty to relinquish charge of his post in Directorate General Central Excise without the consent of his superiors and cannot be blamed for not reporting to Shillong for getting relieved for ICT to Delhi Zone.
3. Learned counsel submitted that certain similarly placed officers had approached the Ernakulam Bench of this Tribunal by filing OA- 959/2014 (Omshankar Gupta Vs. UOI & Ors.) along with certain other connected OAs. These OAs were allowed on 18.03.2015 and the following order was passed:-
4 OA-33/2016, MA-21/2016 "8. Taking stock of the facts and circumstance in these cases, this Tribunal is of the view that the applicants should be relieved from the Kerala zone at the earliest. Respondents are directed to relieve the applicants within 40 days from the date of receipt/presentation of a copy of this order. Ordered accordingly. Parties shall suffer their costs.
9. Incorporate a copy each of this order in the case files of O.A.No. 959/2014, O.A.No.960/2014, O.A. No. 974/2014, O.A.No. 975/2014, O.A. No. 976/2014, O.A. No. 1002/2014 & O.A. No. 1015/2014."
4. Thereafter, the respondents challenged the aforesaid order before Hon'ble High Court of Kerala. The Writ Petition of the respondents was, however, dismissed by Hon'ble High Court on 14.09.2015. While dismissing the Writ Petition, Hon'ble High Court allowed another 45 days time to the petitioners to relieve the respondents therein. These orders have since been complied with by the respondents. Learned counsel argued that some similarly placed persons had filed OA-648/2015 and OA-4107/2014 before the Principal Bench of this Tribunal. These were disposed of on 05.05.2015 and 20.11.2014 respectively with a direction to the respondents to examine the cases of the applicants therein and in case they are found to be covered by the judgment of the Ernakulam Bench of this Tribunal in OA-959/2014 then they be extended the same benefit. Learned counsel for the applicant submitted that these orders have also been implemented by the respondents. He argued that the applicant was similarly placed. Even the applicants of OA-648/2015, namely, Nirmal Kumar, 5 OA-33/2016, MA-21/2016 Sandeep Kumar and Sh. Vinay Kumar were also on deputation like the applicant. Further, one Sh. Ram Kishore, who was junior to the applicant and who was also granted ICT to Delhi Zone was also relieved by the respondents though his case was similar to that of the applicant. However, the respondents have discriminated against the applicant.
5. In their reply, the respondents have filed an affidavit on 06.05.2016 and an additional affidavit on 16.09.2016. In these affidavits, the respondents have stated that as per the scope of ICT, the applicant who was on deputation to DGCEI should have first reverted back to his parent Commissionerate and then apply for ICT afresh. In this regard, the respondents have drawn my attention to their letter dated 27.10.2011 (pages-133-134 of the paper-book), in clause-vii of which the following is stated:-
" Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/Directorate and are willing to avail of the ICT in future will have to revert back to their parent Commissionerates first and apply afresh for ICT. The officers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate."
5.1 The respondents have also stated that the benefit of the judgment of the Ernakulam Bench of this Tribunal as well as Principal 6 OA-33/2016, MA-21/2016 Bench in OAs mentioned above cannot be extended to the applicant as he was not a party in those cases.
6. I have heard both sides and have perused the material placed on record. In my opinion, the respondents have been grossly unfair to the applicant and have acted in a manner, which can only be termed as discriminatory. It is not disputed that the respondents themselves had acceded to the request of ICT of the applicant and had included him in the list of those, who were granted ICT. If the Rules demanded that those on deputation should first revert to their parent Commissionerate before applying for ICT, the respondents themselves should not have included the applicant in the list of those granted ICT as it is not in dispute that the applicant was on deputation to DGCEI at the time when his ICT was granted. The respondents insistence that the applicant should first join at Shillong also displays their hyper technical view. The Directorate General of Central Excise Intelligence had themselves written to the respondents not to insist on the applicant reporting to Shillong first as he was engaged in important work involving revenue of the Government. Under these circumstances, it was not expected of the applicant to act against the directions of his own superior and report to Shillong for getting relieved to avail of ICT. The applicant cannot be penalized for acting in a disciplined manner and obeying the orders of his own superiors. Further, the ground taken by the 7 OA-33/2016, MA-21/2016 respondents that the applicant cannot be granted ICT now as there is acute shortage of officers in Shillong is also baseless. This is because the applicant was not working in Shillong Zone at all. Rather, he was working on deputation with DGCEI and, therefore, shortage of officers in Shillong Zone would not make any difference as far as relieving the applicant for ICT was concerned. Lastly, I do not agree with the reasoning given by the respondents that since the applicant was not a party to the OAs mentioned above, he cannot be extended the benefit of those OAs. In catena of cases, Hon'ble Supreme Court has laid down that if similarly placed persons should be extended the benefit of Courts judgments and should not be forced to approach the Courts again thereby wasting precious judicial time.
7. In view of the above, I am inclined to allow this O.A. and set aside the impugned letter dated 20.11.2013 of the respondents. I further hold that the applicant is entitled for being extended the benefits of the judgment of this Tribunal in OA-648/2015 and OA- 4107/2014 as well as Hon'ble High Court of Kerala. I further direct that the applicant be relieved and allowed to avail ICT with all consequential benefits within a period of 30 days from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) Member (A) /Vinita/