Central Administrative Tribunal - Delhi
Manoj Kumar Rastogi vs M/O Culture on 12 March, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1859/2016
Reserved on: 12.02.2025
Pronounced on: 12.03.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Manoj Kumar Rastogi
(aged about 54 yrs.)
Technical Officer 'A' (Electrical)
S/o late Sh. B.B.L. Rastogi,
R/o E30, 3rd Floor, Jawahar Park,
Luxmi Ngar, Delhi-110092
- Applicant
(By Advocates: Mr. Mohan Lal Sharma with Ms. Reena
Gupta)
VERSUS
1. President-and-reviewing authority,
National Council of Science Museum,
Through Dy. Secretary,
Ministry of Culture,
Shastri Bhawan,
New Delhi-15
2. President-and-revisionary authority,
National Council of Science Museum,
Through Dy. Secretary,
Ministry of Culture,
Shastri Bhawan,
New Delhi-15
3. Director General-and-appellate authority,
National Council of Science Museums,
Block GN, Sector V, Bidhan Nagar,
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Kokata 700092
4. Director-in-charge,
National Science Centre, Delhi and
Curator, Nehru Science Centre, Mumbai,
Pragati Maidan, New Delhi-110001
- Respondents
-
(By Advocate: Mr. H.C. Kundra)
ORDER
Hon'ble Mr. B.Anand, Member (A):
By way of this OA, the applicant has sought the following reliefs under Section 19 of the Administrative Tribunals Act, 1985:-
(i) That by an appropriate order direction, instruction the disciplinary authority's order dated 02.04.2011 (annexure A-1.a) may kindly be quashed and set aside and applicant be re-instated to his post.
(ii) By an appropriate order direction, instruction the respondents be directed to make the payment and allowances minus amount paid from the date of impugned order dated 26.09.2011 (annexure A-1.b).
(iii) Humble applicant be allowed all benefits attached to the post without any break or loss with all consequential benefits as if he has been in continuous service, as if no adverse order have been passed against him.
(iv) To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."3
2. The brief facts of the case, as could be gleaned from the study of the files and based on the arguments of the learned counsels, are that the applicant, who was initially recruited as Technical Assistant 'B' (Electrical) at National Council of Science Museum (NCSM), Calcutta, on 04.04.1994, while working in a subsequently promoted post as Technical Officer 'A' (Electrical) in the National Science Centre Delhi (NSCD), Delhi, was subjected to disciplinary proceedings under Section 14 of the CCS(CCA) Rules, 1965. There were 9 Articles of Charge running to more than 10 pages, which we do not consider necessary to reproduce here in our order. A perusal of the charges reveals that the respondents were peeved with the in-subordinate nature of the applicant and also they allege lack of financial integrity on the part of the applicant on account of having stayed in the respondents' guest house without paying the accommodation charges despite being told to do so and eventually, the respondents had to recover the accommodation charges from his salary.
3. Suffice it to say that, the respondents initiated the disciplinary inquiry by filing a charge-sheet dated 31.01.2009 containing 9 Articles of Charge along with 4 the detailed Statement of Imputation of Misconduct, and after a detailed inquiry in which the Inquiring Authority held all the 9 charges as proved, issued the impugned order dated 02.04.2011 wherein the disciplinary authority, i.e., Director-in-charge, NSCD (respondent no.2) invoking the powers conferred on him by Appendix 'C' of Bye-laws of NCSM read with sub-rule 4 of Rule 15 of the CCS(CCA) Rules, 1965 as adopted by the NCSM, ordered removal of the applicant from the service.
4. Aggrieved by the order of the disciplinary authority, the applicant filed an appeal dated 14.06.2011 to the Appellate Authority, namely Director General, NCSM (Respondent No.3). The Appellate Authority considered the appeal of the applicant and passed his order dated 26.09.2011 wherein he confirmed the penalty of removal from service on the applicant awarded by the disciplinary authority. However, considering the fact that the applicant has a family consisting of wife and two unmarried daughters and taking a sympathetic and humanitarian view, the Appellate Authority ordered that the applicant be granted compassionate allowance in the form of pension of Rs.5700/- per month plus D.R. and 5 gratuity as admissible in terms of sub-rule(1) of Rule 41 of CCS(Pension) Rules, 1972 as adopted by the NCSM. The applicant was not satisfied with the order of the appellate authority and filed a revision petition dated 27.06.2012 and thereafter a review petition dated 10.08.2015 before the President of the Governing Society of NCSM who is also the Hon'ble Minister for Culture who considered and affirmed the orders passed by the disciplinary authority.
5. Learned counsel for the applicant commenced his arguments and drew our attention to a number of grounds based on which he has challenged the impugned orders of the respondents. However, during the course of his arguments, he relied on his chief ground of argument which is that the order of removal passed on the applicant is by an authority who is incompetent and who has no jurisdiction over his matter. In support of his claim, the applicant drew our attention to his Revision Petition dated 27.06.2012, submitted to the Revision Authority and President NCSM which states as under:-
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"(1)Initially, Shri D. Rama Sarma was deputed to the National Science Centre, New Delhi, on tour to hold temporary charge of Director for a period of three months from 01.2011 or until a regular incumbent to the office is placed, whichever is earlier, vide Office Order dated 21.12.2010 (copy at Annex-XXI, obtained under RTI). The fact of his being on tour is mentioned in the copy marked to NSCM. Shri D. Rama Sarma was delegated the powers of the Director for the above period, vide Office Order dated 7.1.2011 (copy at Annex-XXII, obtained under RTI). It sounds strange that an office on tour was delegated the powers of the Director, without posting him, even temporarily, to the NSC, New Delhi.
Presumably, the intention was to give him the benefit of TA and DA.
(2) The tour of Shri D. Rama Sarma to the National Science Centre, New Delhi, was extended for the period up to 4.4.2012, vide Office Order dated 31.3.2011 (copy at Annex- XXIII, obtained under RTI), but it shows that -
-There was no extension of the charge or temporary charge of Director, National Science Centre, New Delhi, during the period from 1.4.2011 to 4.4.2011.
-There was no delegation of the powers of Director, NSC, New Delhi, during the period from 1.4.2011 to 4.4.2011, as had been done for the preceding period from 1.1.2011 to 31.3.2011 vide Office Order dated 7.1.2011 (copy at Annex-XXII, obtained under RTI).
The purpose of extending the tour up to 4.4.2011 is mentioned in para 2 of the above referred Office Order dated 31.3.2011 (copy at Annex-XXIII, obtained under RTI), that is, to enable him attend the Directors' Conference at NCSM Hqrs. at Kolkata on 4.4.2011.
9.1 In view of what is stated at (1) and (2) above, it is fully established that Shri D. Rama Sarma, while on tour at the National Science Centre, New Delhi, 7 during the period from 1.4.2011 to 4.4.2011 did not enjoy the powers of the Director and thus had no powers or competence or jurisdiction to pass the penalty order dated 2.4.2011 (copy at Annex-III) against me. Hence, the said penalty order is incompetent, non-jurisdictional and hence illegal and it deserved to be quashed forthwith."
6. Learned counsel for the applicant also drew our attention to MHA OM No. 7/14/61-Ests(A) dated 24.01.1963, according to which no statutory powers can be further delegated to a subordinate authority and the same reads as under:-
"The Law Ministry has advised that an officer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers, whether those powers are derived direct from the Act of Parliament (i.e., Income Tax Act) or Rules, Regulations and ByLaws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules, etc.)"
7. In support of his contentions made in para 5 of this order, the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Krishna Kumar vs. Divisional Assistant Electrical Engineer Central Railway, 1979 AIR 1912, specifically to the following paras:-
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"...Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the appellant's appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.
Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts has been delegated to him.
Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant's appointment, it must be held the respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution."
8. In support of his contention that the applicant was not provided the defence assistant during the disciplinary proceedings, learned counsel for the applicant has also placed reliance upon the case in the 9 matter of B.P. Sinha v. Union of India, 2008(153)DLT 15, the relevant para of which reads as under:-
"The said circular has in fact cited the reasons for its issuance as non-acceptance by the Courts of the plea based on Rule 27 of the CRPF Rules for not providing such defence assistants as disciplinary proceedings being quasi judicial in nature attract the principles of natural justice as the order in the proceedings involve civil consequences. The Apex Court has also held in a catena of judgments that deprivation of livelihood by an order of dismissal has to be just, fair and reasonable and principles of natural justice cannot be denied. Once this principle has fortunately been incorporated in the circular of the respondent itself, there can be hardly any reason not to extend the same in the pending litigation which has yet not attained finality."
9. Learned counsel for the respondents vehemently opposed the contentions of the applicant's counsel and elaborated upon his detailed written submissions, wherein among various grounds for opposing the claim of the applicant, he has dwelt upon the following two arguments:-
(i) The applicant had exhibited lack of financial integrity by staying in the NCSM guest house at Delhi and despite being asked to pay rental charges, he did not pay so and finally, the respondents had to deduct that amount from his pay; and 10
(ii) with regard to the applicant's claim that the Disciplinary Authority is not the competent authority to pass the order of removal, the respondents have taken the stand that the Director-in-charge, NSC, Delhi, i.e. respondent no.4 (Disciplinary Authority) has been delegated with the powers by the Director General and in support thereof, they have drawn our attention to order dated 07.01.2011 delegating all the powers of Director of a National level Science Centre as enumerated in Appendices 'A' and 'C' to the NCSM Bye-laws in respect of NSC, Delhi w.e.f.
January 07, 2011.
10. The respondents also state that the then Director in Charge of NSC, Delhi, who passed the order of removal was duly appointed by the Director General of the NCSM who is vested with such powers in terms of the Sections 12 and 13 of the Memorandum of Association Rules & Regulations Bye-Laws, which is reproduced hereunder:-
"12. (a) The Director General shall have full powers of the Head of a Department of the Government of India, under the delegation of 11 Financial Power Rules, 1958 as amended from time to time and under the Fundamental and Supplementary Rules. The Director General shall also have powers as defined in the 'Delegation of Powers to the Director General, NCSM' in appendix A and appendix C.
(b) The Director General shall have powers to declare such officer as Director of Museum/Centre, who will hold charge of an individual museum/centre having a separate Executive Committee and who will be in a grade not below Curator Eā, acting as such for some time.
13. (a) The officers who will be declared as Directors by the Director General, NCSM, shall exercise all the powers of a Head of Department as prescribed by the Government of India from time to time, and shall have powers as defined in the 'Delegation of Powers to the Directors in appendix A and appendix C.
(b) Other subordinate officers may be empowered by the Director General or Director of Museum/Centre to exercise financial powers as defined in 'Delegation of powers to subordinate officers in NCSM' in appendix B."
11. Therefore, they submit that the order passed by the Disciplinary Authority is well within his competency.
12. Learned counsel for the respondents has further contended that the applicant has no case in the eyes of law and all the provisions as mentioned in the CCS(CCA) Rules have been taken into consideration while holding the enquiry proceedings by the 12 Disciplinary Authority and ultimately the penalty of removal of the applicant vide order dated 02.04.2011 and in support thereof, has relied upon the following judgments:-
(i) Union of India v. Parma Nanda, AIR 1989SC 1185, the relevant para of which reads as under:-
"A. Constitution of India Articles 226 and 311(2) Administrative Tribunals Act, 1985 Section 14, 15, 16, 27, 28 and 29 Jurisdiction/Punishment - Tribunal has no jurisdiction to interfere with the penalty lawfully imposed by competent authority unless it is malafide-Tribunal can interfere only in the case filing under Clause (a) second proviso to render substantial justice."
(ii) PVS Sastry & Ors. v. Controller and Auditor General of India & Ors., ILLJ(SCC)1993 pg. 824:-
"Constitution of India-31(2) Departmental Proceedings need not be initiated only by the appointing authority - in the absence of rules another authority subordinate to the appointing authority can initiate proceedings.
(iii) Bank of India v. Apurba Kumar Saha, (1994)2 SCC, relevant para of which reads as under:-
"A service Law-Departmental enquiry - Natural Justice - refusal to participate in enquiry without any valid reason - Held violation of natural justice cannot be pleaded at a later stage - Administrative Law - Natural justice - Bank Employee.13
B. Service Law - Departmental Enquiry - Evidence before Enquiry Officer - Cross Examination of oral evidence - Deferment till examination-in-chief of all witnesses produced by prosecution was completed- Such request made by the charged employee not entertained by the enquiry officer - Held there was no violation of natural justice - Administrative law - natural justice - Bank Employee."
(iv) State Bank of India & Ors. v. Narendra Kumar Pandey, AIR 2013 SCC 1904:-
"The charge sheet need not contain the details of the documents or the names of the witnesses proposed to be examined to prove the charges or a list to that effect unless there is a specific provision to that effect. Charge sheet, in other words, is not expected to be a record of evidence. Fair procedure does not mean giving of copies of the documents or list of witnesses alongwith the charge sheet. Of course, statement of allegation has to accompany the charge sheet when required by the Service Rules (Para 18)."
(v) Deputy Commissioenr KVS & Ors. V. J.
Hussain, AIR 2014 It is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to 14 the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist (para 6).
(E) Constitution of India, Article 311, 226 Punishment - Judicial Interference, Punishment of Removal, dismissal or compulsory retirement
- result in hardship - That cannot be ground for court to interdict with penalty (Para 11).
13. We have given a patient hearing to both the learned counsels for the parties and after having perused the record with their assistance, we find that the MHA OM cited by the applicant is of no assistance to him because the MHA OM dated 24.01.1963 speaks about not delegating powers vested in a statutory post to any other subordinate whereas the respondent organization NCSM has been created newly as a society registered only on 04.04.1978 as a National Council of Science Museums and therefore, the DG NCSM, who delegates powers to Director vide Sections 12 and 13 of the Memorandum of Association Rules & Regulations Bye-Laws. The activities of the said NCSM are governed by the Memorandum of Association Rules & Regulations Bye-laws and not by any act of Parliament as it is not a Statutory Body. It is also seen that the Director 15 General shall have powers as defined under Rule 12(b) to declare such officer as Director of Museum/Centre who will hold charge of an individual museum/centre, having a separate executive committee and who will be in a grade not below Curator E, acting as such for some time. It is seen from the records that Shri D. Rama Sarma was functioning as Curator 'E' in NSC, Mumbai at the time when he was initially sent on tour from Mumbai to Delhi to look after day to day affairs of the Director, National Science Centre, Delhi for a period of three months vide order dated 21.12.2010. The said order dated 21.10.2010 reads as under:-
"Office Order No.32/2010
Director General, NCSM has been pleased to order that Shri D. Rama Sarma, Curator 'E', Nehru Science Centre, Mumbai, shall hold temporary charge of the office of Director, National Science Centre, Delhi for a period of three months from January 01, 2011 (F/N) or until a regular incumbent to the office is placed, whichever is earlier.
The arrangement hereinabove shall, however, not confer on Shri Rama Sarma seniority over others or any financial benefit.
This issues with the approval of Director General, NCSM."
It is also seen that from the records that the Director 16 General, vide his order dated 07.01.2011, has delegated all the powers of Director of a National level Science Centre as enumerated in Appendices 'A' and 'C' to the NCSM Bye-laws and during this time, the order of removal was passed on 02.04.2011. As such, the contentions of the applicant that while on tour at National Science Centre, New Delhi, during the period 01.04.2011 to 04.04.2011, the said Shri D. Rama Sarma, Director i/c National Science Centre did not enjoy the power of the Director and thus, had no powers or competence or jurisdiction to pass the penalty order dated 02.04.2011 is untenable.
Therefore, the decision relied upon by the applicant in the case of Krishna Kumar (supra) is not applicable to the present case.
14. However, as regards the contention of the learned counsel for the applicant that even if any power is delegated by the DG, NCSM to Director, NSC, such delegation of powers requires approval of the Chairman/President of the Society who is also the Minister for Culture, he has not been able to support such an assertion with documents. However, he has nowhere shown that the Memorandum of Association 17 Rules & Regulations Bye-laws meant for governing the day to day affairs of this society has not been approved by the Chairman/President of the Society. Once the respondents have stated that this Memorandum of Association Rules & Regulations Bye-laws have been duly brought into existence with the approval of the competent authority, we have no reason to doubt them in the absence of any proof furnished by the applicant.
15. We have also gone through the judgment relied upon the applicant in the case of B.P. Sinha (supra) which, however, speaks about quashing of the order passed by the quasi judicial authority on the grounds that principles of natural justice could not be followed while conducting the disciplinary proceedings by not providing defence assistant to aid the charged official by the authorities which is not relevant to the present case as the chief ground that applicant has taken in the course of his arguments is only that the competent authority has not passed the orders of removal from service. The decisions relied upon by the respondents enumerated in para 12 of this order are of no assistance to them as these judgments are not talking about the 18 competency or lack of competency for the disciplinary authority to pass the final orders which is the chief ground of the applicant to contest the OA.
16. In view of the above discussion, we do not find any merit in the OA and the same is dismissed. However, there shall be no order as to costs.
(B. Anand) (R.N. Singh) Member (A) Member(J) /lg/