Central Administrative Tribunal - Bangalore
S Shiva vs Geological Survey Of India on 30 March, 2023
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OA.No.170/00413/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00413/2020
ORDER RESERVED ON 16.03.2023
DATE OF ORDER: 30.03.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Shri S. Shiva,
S/o Sundaram,
Aged about 49 years,
Upper Division Clerk,
SU: K&G,
Geological Survey of India,
Vasudha Bhavan, K.S. Layout,
Bengaluru 560 111 .... Applicant
(By Shri P. Kamalesan, Advocate)
Vs.
1. Union of India
By its Secretary,
Ministry of Mines,
Shastry Bhavan,
New Delhi 110 001
2. Director General,
Geological Survey of India,
Ministry of Mines,
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OA.No.170/00413/2020/CAT/BANGALORE
27 JL Nehru Road,
New Kolkata 16
3. ADG & Head of Department,
Southern Region,
Geological Survey of India,
Ministry of Mines,
Bandlaguda GSI Post,
Hyderabad 500 068
4. DDG, State Unit:
Karnataka & Goa,
Geological Survey of India,
Ministry of Mines,
Kumaraswamy Layout,
Bengaluru 560 111
5. Inquiry Committee,
Office of the
DDG, State Unit:
Karnataka & Goa by its Chairman
Geological Survey of India,
Ministry of Mines,
Kumaraswamy Layout,
Bengaluru 560 111 ...Respondents
(By Shri S. Sugumaran, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
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OA.No.170/00413/2020/CAT/BANGALORE "(i) Issue an order, direction or writ of Certiorari to quash corrigendum Annexure-A13 dated 10.06.2019 made in No. 132/C.13016/1/2014/A. Vig. and order Annexure-A15 bearing No. 265 C.13016/1/2014/A. Vig dated 26/29-8-2019 passed by 3rd respondent and set aside the order Annexure-
A2 dated 13.08.2014 made in No. 188/C.13016/1/2014/A. Vig passed by 3rd respondent and set aside order Annexure-
A7 dated 24.05.2018 made in No. 3275/C-
13013/707/SS/Admn.Vig/CHQ/2017; passed by 2nd
respondent and declare that inquiry report Annexure-A16 dated 20.03.2014 is bad in law and said report cannot be inquiry report under rule 14 (a) of the CCA rules and inquiry is not valid in the eye of law. Grant consequential relief including salary, allowance continuity of service and promotion and 12% interest on back wages.
(ii) Grant such other relief deemed fit, having regard to the facts and circumstances of the case"
2. The facts in brief as stated by the applicant are that the applicant was appointed as Lower Division Clerk (LDC) in the year 1995. He was promoted as Upper Division Clerk (UDC) in the year 2005. On the basis of the complaint lodged by one Smt. T.N. Priya on 12.08.2014 against the applicant, sexual harassment committee was constituted by the department. An order dated 4 OA.No.170/00413/2020/CAT/BANGALORE 12/13.08.2014 was passed by the 3rd respondent imposing penalty of reversion to the post of LDC in the minimum pay scale of Rs. 5200-20200 with minimum grade pay of Rs. 1900 w.e.f. 12.08.2014 until the applicant is found fit by the competent authority to be restored to the post of UDC. It is the grievance of the applicant that the major penalty has been imposed on him without holding an inquiry and without issuing show cause notice. Thereafter, applicant submitted a representation and appeal to the Appellate Authority. The said appeal came to be dismissed by the Appellate Authority on 24.05.2018. Being aggrieved, the applicant gave representations against the said order to the Respondent No. 3 seeking restoration of pay. Respondent No. 3 passed an order dated 19/26.02.2019 restoring his pay scale holding that the applicant may be granted 2nd MACP. A corrigendum order dated 27.02.2019 was issued by the Respondent No. 3 to the order dated 26.02.2019 and the same reads thus:
"CORRIGENDUM ORDER In the order No. 46-49/C-13016/1/2014/A.Vig., date 26-02- 2019, the words "the Addl. Director General & Disciplinary Authority, 5 OA.No.170/00413/2020/CAT/BANGALORE SU:K&G, GSI, Bangalore".
May be read as "the Addl. Director General & Disciplinary Authority, GSI, SR, Bandlaguda, Hyderabad".
Other contents of order is remain unchanged." Thereafter, Respondent No. 3 issued another corrigendum dated 10.06.2019 to the order dated 26.02.2019 amending paras 10 and 11 of the order dated 26.02.2019, placing reliance on sub-rule (2) of Administrative Instructions issued under Rule FR 29 thereby changing the nature of quantum of punishment. Being aggrieved, the applicant has submitted the representation/appeal requesting for withdrawal of the corrigendum. The same has been rejected. Hence, this OA.
3. Learned counsel Shri P. Kamalesan representing the applicant submitted that the 3rd respondent had held that the applicant is entitled to be placed above Shri Gopal, his immediate junior and further it was made clear that the applicant is entitled to 2nd MACP. However, the respondents promoted Shri Gopal to the 6 OA.No.170/00413/2020/CAT/BANGALORE higher post and the applicant's case has not been considered. Surprisingly, the 3rd respondent has issued corrigendum dated 10.06.2019 reversing the earlier order dated 26.02.2019. Respondent No. 3 has no competency to reverse the order dated 26.02.2019. Unilateral reversal order passed by the Respondent No. 3 under the guise of corrigendum is wholly illegal, arbitrary and against the principles of natural justice. Benefit given to the applicant has been cancelled sans providing an opportunity of hearing. Moreover, no notice was issued for issuing the modified order thereby imposing the major penalty reversing the order earlier passed. Administrative Instructions issued under Rule FR 29 (2) are not applicable to the facts of the present case. FR 29 (2) has not been properly appreciated by the 3rd respondent. The rejection of the representation by the Respondent No. 3 is unjustifiable and the same deserves to be set aside. In support of his contentions, learned counsel has placed reliance on the judgment of the Hon'ble High Court of Punjab & Haryana in the case of Surender Singh Taxak vs Union of India & Ors. in Civil Writ Petition No. 6978/2016, DD 22.11.2019). 7
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4. Learned counsel Shri S. Sugumaran representing the respondents justifying the impugned orders submitted that the corrigendum was issued based on the Administrative Instructions to FR 29(2). The earlier order dated 26.02.2019 passed by the Respondent No. 3, not being in conformity with the said Administrative Instructions, it was necessary for the Respondent No. 3 to issue the corrigendum. Since the said corrigendum has been issued merely placing reliance on the Administrative Instructions, no injustice is caused to the applicant.
5. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
6. The crucial point that arises for our consideration is, whether the corrigendum dated 10.06.2019 issued to the order dated 19/26.02.2019, by the Respondent No. 3 is justifiable?
7. Firstly, it would be apt to understand the meaning of the word "corrigendum". The word "corrigendum" is stated to have been derived from a Latin word "corrigere" which means "to 8 OA.No.170/00413/2020/CAT/BANGALORE correct". In terms of Cambridge dictionary, "corrigendum" means "a mistake in a printed text that needs to be corrected." In "Oxford Advanced Learner's Dictionary" Seventh Edition at page 343 word "corrigendum" is defined "something to be corrected, especially a mistake in a printed book". In "The Concise English Dictionary", 1982 Edition, page 253 meaning of "corrigendum" is "an error needing correction, esp. in a book". In Black's Law Dictionary, Eighth Edition, at page 370, meaning of "corrigendum" is, "an error in a printed work discovered after the work has gone to press".
8. It is settled law that a corrigendum to an order can be issued only to correct a typographical/arithmetical error or omission. It can neither take away the vested right of a person nor can it have the effect of nullifying the rights of persons conferred under the original order.
9. The relevant paras of the order dated 26.02.2019 and the corrigendum issued to the same as per the order dated 10.06.2019 are extracted hereunder for ready reference: 9
OA.No.170/00413/2020/CAT/BANGALORE "Reference this Order No. 46-49/C-13016/1/2014/A.Vig., dt. 26.02.2019 & Corrigendum Order No. 50-53/C- 13016/1/2014/A.Vig, dt. 27.02.2019 in the name of Shri S. Shiva, LDC, SU:K&G, SR, GSI.
The following amendments in Para 10 & 11 of the aforesaid order is made:
FOR: Now therefore, ADG and Disciplinary Authority being competent authority decided that since the period of reduction from higher post to the post of LDC, is for an indefinite period, and that the official will be eligible to be placed in the higher grade on his subsequent eligibility, it will be appropriate to place the official above in the higher grade, where his immediate junior in the higher grade is now placed consequent upon the date of promotion. However, the substantive pay of the Govt. Servant will be notionally raised to the extent of the period of earning his increment, as if he has not been brought to the lower grade and will not have cumulative effect till the date of DPC for re-promotion. His pay actually on re-promotion will be from the date of re- promotion, including arrears after re-promotion. The seniority of the official shall be given in the higher grade, from the date where his immediate junior on the date of re- promotion of his eligibility i.e. above Shri Gopal, in the panel of re-promotion.
It is further ordered that his case for 2nd MACP may also be granted when he becomes eligible for 2nd MACP, in due 10 OA.No.170/00413/2020/CAT/BANGALORE course, after deducting the period of reduction of the official from higher to lower grade, for eligibility of residency of MACP-II.
READ: Now therefore, ADG and HOD being competent authority decided that since the period of reduction from higher post to the post of LDC, is for an indefinite period, and that the official will be eligible to be placed in the higher grade on his subsequent eligibility, it will be appropriate to place the official above in the higher grade, where his immediate junior in the higher grade is now placed consequent upon the date of promotion. However, the substantive pay of the Govt. Servant will be regulated in terms of Rule FR 29 GOI Orders No. 2 (b)
(i) respectively. In terms of sub-rule 2 of Administrative Instruction under Rule FR 29, the seniority of the official shall be determined by the date of re-promotion and the Government servant will entirely lose his original seniority in the higher service, grade or post. On re-promotion, his seniority should be determined by the date of re-promotion without regard to the service rendered by him in such service, grade or post prior to his reduction.
It is further ordered that his financial upgradation under the MACP scheme will be regulated in terms of rule in force.
All other contents mentioned in the said Orders will remain unchanged."
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10. A bare reading of this corrigendum indicates that it is not a mere correction of an error apparent but it changes the nature of the order. The quantum of punishment given under the order dated 26.02.2019 to the applicant has been modified to major penalty by this corrigendum placing reliance on the Administrative Instructions issued to FR 29 (2). In this background, it is beneficial to refer to the legislative history of FR 29 (2). FR 29 (2) was substituted vide G.I. Department of Personnel & Training OM No. 6/2/2013-Estt (Pay-I) dated the 10th December, 2013 published as G.S.R. No. 263 in the Gazette of India, dated the 27th October, 2013 and the same has come into effect from that date. The substituted provision reads thus:
"(2) If a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower scale, the authority ordering the reduction shall specify--
(a) the period for which the reduction shall be effective; and
(b) whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent 12 OA.No.170/00413/2020/CAT/BANGALORE (3) The Government servant shall regain his original seniority in the higher service, grade or post on his restoration to the service, grade or post from which he was reduced."
This provision was subsequently amended by Fundamental (Amendment) Rules, 2014 by issuing Notification No. F. No. 6/2/2013 Estt. (Pay-I) dated 02.01.2015 by the G.I. Department of Personnel and Training. These amended rules shall be deemed to have come into force on the 27th October 2013. In terms of this Amendment Rules, in the Fundamental Rules, 1922, in Rule 29, for clause (2), the following clause has been substituted namely:-
"(2) If a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower time-
scale, the authority ordering the reduction shall specify,--
(a) the period for which the reduction shall be effective;
(b) whether, on restoration, the period of reduction shall operate to postpone future increments and, if so, to what extent; and
(c) whether the Government servant shall regain his original seniority in the higher service, grade or post or time-scale on his restoration to the service, grade or post or time-scale from which he was reduced."
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OA.No.170/00413/2020/CAT/BANGALORE In the Explanatory Memorandum, it is stated as under:
"In the Fundamental (Amendment) Rules, 2013 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 263(E) dated the 27th October, 2013, sub-clause (c) of Clause (2) of Rule 29 of the Fundamental Rules, 1922 was wrongly mentioned as Clause (3) to that rule. Necessary amendment is required to be made retrospectively from the date of notification of the said rules. It is certified that none will be adversely affected by giving retrospective effect to the amendment."
Government of India's orders with respect to scope of Rule 29 as instructed in G.I. M.F. O.M. No. F.2 (1)-Estt. III/57 dated the 21st February, 1957 reads thus:
"(1) Scope of Rule 29. - Sub-rule (1) of this rule covers cases of restoration after a period of reduction to a lower stage in the time-scale, and sub-rule (2) relates to cases of restoration after a specified period of reduction to a lower grade or post. Under this rule, reduction to a lower stage in time-scale can be ordered only for a specified period. Hence the authority ordering such reduction is required to specify the period in the order of reduction. Reduction to a lower post or grade can be either for any specified period in which case the 14 OA.No.170/00413/2020/CAT/BANGALORE period has to be indicated in the order of reduction or for an unspecified or indefinite period. In the latter case, on re-
appointment to the higher post or grade, the pay of the Government servant will be regulated under the normal rules and not under F.R. 29."
11. It is apparent that the Respondent No. 3 has examined the penalty order passed by the Disciplinary Authority and the Appellate Authority and noticed that the period of reduction from the higher post (UDC) to the post of LDC is for an indefinite period, decided it to be appropriate to place the applicant in the higher grade, where his immediate junior in the higher grade is now placed consequent upon the date of promotion as per the original order dated 26.02.2019. The substantive pay of the applicant has been notionally raised to the extent of the period of earning his increment, as if he has not been brought to the lower grade and will not have cumulative effect till the date of DPC for re-promotion. The seniority of the applicant has been given in the higher grade from the date where his immediate junior on the date of re-promotion of his eligibility i.e. above Shri Gopal in the panel of re-promotion. 2nd MACP benefit is also granted. 15
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12. However, in the corrigendum it is stated that in terms of sub-rule 2 of Administrative Instructions under Rule FR 29, the seniority of the applicant shall be determined by the date of re- promotion and the applicant will entirely lose his original seniority in the higher service, grade or post. On re-promotion, his seniority should be determined by the date of re-promotion without regard to the service rendered by him in such service, grade or post prior to his reduction. This Administrative Instructions under Rule FR 29 was issued on 10th October, 1962 and 7th February, 1964 when the FR 29 was in a different form. Much legislative change has taken place in FR 29 subsequent to 1964. For the relevant period i.e. at the time of passing the penalty order dated 13.08.2014 (signed on 12.08.2014) FR 29 (3) was in existence. The said FR 29 (3) postulates that the government servant shall regain his original seniority in the higher service, grade or post on his restoration to the service, grade or post from which he was reduced. As such, it was not mandatory for the Disciplinary Authority to specify whether the applicant shall regain his original seniority in the higher service, grade or post or time-scale on his restoration to the service, grade or post or time-scale from which he was reduced in terms of this FR 29 (3).
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13. The amended FR 29 (2) (c) which has been amended by Amendment Rules 2014 has been given retrospective effect i.e. w.e.f. 27th October, 2013 though notified vide Notification dated 02.01.2015. The order passed on 26.02.2019 cannot be nullified/modified unilaterally, adversely affecting the rights of the applicant. Such unilateral modification of the substantive portion of the order i.e., imposing major penalty, is in violation of the fundamental principles of natural justice and is not sustainable. Be that as it may, the authority becomes functus officio after passing the orders. No different order could be passed while exercising the functions of quasi-judicial authority, in the guise of corrigendum. Even if 2014 amendment is made applicable to the present case, for non-specifying the condition of clause (c) of 29 (2), the order of the Disciplinary Authority suffers from infirmity and that benefit goes to the applicant. Thus, viewed from any angle, the corrigendum dated 10.06.2019 issued to the order dated 26.02.2019 cannot be upheld. Hence, liable to be set aside.
14. For the reasons aforesaid, we pass the following 17 OA.No.170/00413/2020/CAT/BANGALORE :ORDER:
1) The corrigendum dated 10.06.2019 (Annexure-A13) and order dated 26/29.08.2019 (Annexure-A15) passed by the 3rd respondent are set aside.
2) The order dated 19/26.02.2019 and the corrigendum order dated 27.02.2019 (Annexure-A10 and Annexure-
A11 respectively) are confirmed.
3) OA stands disposed of accordingly.
4) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/