Central Administrative Tribunal - Delhi
Coram vs Union Of India on 13 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2753 of 2013 New Delhi, this the 13th day of November, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Shri S.N.Banerjee, Son of late J.L.Banerjee, R/o BA/8-B, Janakpuri, New Delhi 110058 Applicant (By Advocates: Mrs. Jyoti Singh, Senior Advocate & Mrs.Tanu Bajwa) Vs. 1. Union of India, Through Secretary, Ministry of Defence, South Block, New Delhi 110011 2. Director General, Defence Estates, Raksha Sampada Bhawan, Ulaan Batar Marg, Delhi Cantt 110010 . Respondents (By Advocate: Shri M.S.Reen) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
(a) To quash the impugned Order dated 23.12.2011 of Respondent No.1 awarding Government Displeasure to the Applicant.
(b) To direct the Respondents to immediately release the retirement dues and benefits of the Applicant with arrears and interest @12% with effect from April 2007,i.e., since his retirement.
(c) To direct the Respondents to regularize the period of suspension of the Applicant from 19.03.1999 to 11.08.2000 as On Duty and to pay the arrears of pay & allowances for that period.
(d) To direct the Respondents to open the sealed cover of the recommendations of DPC in respect of the Applicants ACP and for fixation of his pay accordingly as he was entitled for this benefit with effect from August 1999.
(f) To direct the Respondents for grant of annual increments to the Applicant upon fixation of his pay in terms of ACP.
(g) To direct the Respondents to open the sealed cover of recommendations of the DPC in 2004, and if he was recommended for promotion therein, then to grant him that notional promotion retrospectively with all attendant benefits from the due date, along with fixation of his pay and grant of subsequent annual increments accordingly.
(h) To direct the Respondents for fixation of Applicants pay in terms of RPR 2006 and for grant of annual increments to him in the revised pay scales.
(i) To direct the Respondents for fixation of Applicants pension upon fixation of his pay in terms of RPR 2006 and to pay the arrears of his pension to him.
(j) To direct the Respondents to pay his gratuity and leave encashment benefits to him.
(k) To direct the Respondents to pay costs amounting to Rs. One lac to the Applicant for making him suffer untold hardships and miseries for an abnormally long period of 14 years for no fault of his.
(m) Any other order that this Honble Tribunal may deem fit and proper in the facts of the case.
2. Brief facts of the applicants case are as follows:
2.1 The applicant was working as Assistant Defence Estate Officer (ADEO) in the office of the Defence Estate Officer, Chandigarh Circle, Chandigarh, during the period from 28.8.1993 to 10.7.1998. Shri B.A.Dhayalan was working as Defence Estate Officer(DEO), and Shri J.L.Bishnoi was working as S.D.O.-I in the Defence Estate Office, Chandigarh Circle, Chandigarh, during 1997-98. When the applicant was posted and working as ADEO, Baramulla, J&K, he was placed under suspension with effect from 19.3.1999. On 23.3.1999 the Director, Defence Estates, Western Command, Chandigarh, filed an FIR before the Chandigarh Police alleging misappropriation and defalcation of Government funds by S/Shri Dhayalan & Bishnoi and the applicant. On 29.11.1999, a memo was issued to the applicant on the following charge:
Shri Banerjee, while posted and functioning as Assistant Defence Estate Officer (ADEO), Defence Estates Office, Chandigarh Circle, Chandigarh during the period 28.8.93 to 10.7.98 failed to perform his duties as Staff Officer in the release of Rs.38.25 lacs as service charges to four non-entitled Gram Panchayats of different villages in the District of Bhatinda and Patiala in gross violation of the instructions, issued by the Government of India, Ministry of Defence (DGDE) letter No.9/5/SC/C/DE dated 14.7.94 regarding payment of service charges to the Cantonment Boards and other local bodies and thus, caused a loss of Rs.38.25 lacs to the State.
By his above acts of omission and commission Shri S.N.Banerjee exhibited lack of absolute integrity and devotion to duty and thereby violated Rules 3(1)(i) & (ii) of CCS (Conduct) Rules, 1964. The departmental enquiry was concluded in March 2004. The applicant took voluntary retirement from service in April 2007. He was granted provisional pension, but no other retirement benefits were given to the applicant because of the departmental proceedings pending against him. The Inquiry Officer submitted enquiry report in September 2008. After about two years of submission of the enquiry report, the applicant was issued a Memo dated 21.5.2010, along with copies of the enquiry report and second stage advice of the Central Vigilance Commission. By the said Memo dated 21.5.2010, the applicant was informed that it was tentatively proposed for issuance of Government Displeasure to him on the conclusion of the disciplinary proceedings, and the applicant was given an opportunity to make representation against the findings of the Inquiry Officer and the advice of the Central Vigilance Commission within 15 days of receipt of the said Memo. According to the applicant, as the Government Displeasure was not considered as a penalty or punishment in terms of the CCS(CCA) Rules,1965 and would not affect any of his dues/claims, he chose not to make any representation against the findings of the Inquiry Officer and the advice of the Central Vigilance Commission. Thereafter, order dated 23.12.2011 (Annexure A/1) was issued by respondent no.1 in the name of the President of India, whereby and whereunder the Government Displeasure was communicated to the applicant. The operative part of the said order dated 23.12.2011 reads thus:
14. NOW THEREFORE, keeping in view the findings in the report of the IO, examination by disciplinary authority thereof, advice of CVC, submission of Shri S.N.Banerjee, evidence available on record relating to the Inquiry and all relevant factors pertaining to the case, the President after due application of mind, has come to the conclusion that the Article of Charge against Shri S.N.Banerjee is proved to the extent indicated supra and that ends of justice would be met if Govt. Displeasure is issued to Shri S.N.Banerjee. 2.2 Consequent upon conclusion of the departmental proceedings and passing of the final order by the competent authority, the applicant made representations dated 31.1.2012 (Annexure A/4 collectively) requesting the respondents to take necessary actions in the following matters:
(i) Open the Seal Cover of the Recommendations of the DPC in respect of ACP and fixation of pay accordingly. I am entitled to this benefit w.e.f. August 1999.
(ii) Grant of Increments consequent upon fixation of pay in terms of ACP.
(iii) I was under suspension from 19.3.1999 to 11.8.2000. Order to be issued regularizing this period as On Duty.
(iv) Payment of Arrears of Pay and Allowances for the period of suspension. The Due-Drawn statement for this period, duly verified by the Local Audit Officer, Srinagar is already procured to facilitate this action.
(v) I am not aware if DPC recommend my promotion as well when my juniors were promoted and I was superseded as the Disciplinary Cases were pending. In case they did, I would be entitled to Pro-forma Promotion and consequent fixation of Pay. Thereafter Grant of Increments in the Revised Pay.
(vi) Re-fixation of Pay under the RPR 2006 and grant of Increment in the Revised Pay Scale.
(vii) Payment of Arrear of Pay & Allowances till date of retirement in April 2007.
(viii) Re-fixation of Pension. I am presently being paid only Provisional Pension at pre-2006 rate of pay.
(ix) Payment of Gratuity and Leave Encashment.
(x) Any other claim and benefits admissible under Rules and Law. The applicant also made further representations dated 22.2.2012, 23.3.2012, 28.4.2012, 16.8.2012, 14.3.2013, 24.5.2013 and 24.6.2013 (Annexure A/4 collectively) requesting the respondents and the Honble Union Minister for Defence to take appropriate decisions in his case. There being no response, the applicant filed the present Original Application on 13.8.2013.
2.3 In the O.A. the applicant has mainly contended as follows:
(i) Chandigarh Police, after investigation, had submitted a report that the allegations contained in the FIR lodged against Shri B.A.Dhayalan, DEO and the applicant were bogus and frivolous and there was no misappropriation of Government funds. The competent Court had finally quashed the FIR on 12.7.2006.
(ii) There was delay of 12 years in conclusion of the departmental proceedings inasmuch as the charge memo was issued on 29.11.1999 and the final order communicating Government Displeasure was issued on 23.12.2011.
(iii) The charge memo and all subsequent proceedings initiated against Shri B.A.Dhalayan, the DEO, who was involved in the same incident, were quashed by the Tribunal, vide order dated 13.7.2010 passed in OA No.471/2010 (Annexure A/3). W.P. (C) No.8155 of 2010 filed against the Tribunals order dated 13.7.2010 was dismissed by the Honble High Court of Delhi. Therefore, the charge memo and all subsequent proceedings initiated against the applicant should be quashed.
(iv) As the Government Displeasure communicated to the applicant on the conclusion of the departmental proceedings is not a penalty within the meaning of the CCS (CCA) Rules, 1965, the respondents ought to have granted financial upgradation under ACP Scheme and promotion which were withheld because of the pending departmental proceedings.
3. Opposing the O.A. the respondents have filed a counter reply. It is stated by the respondents that the applicants prayer for quashing the order dated 23.12.2011 (Annexure A/1) is barred both by the principles of estoppel and waiver because the applicant had clearly and unequivocally stated in his letter dated 27.5.2010 (Annexure R/1) that he did not wish to make any representation against the Government Displeasure which was tentatively proposed to be communicated to him, vide letter dated 21.5.2010 (Annexure R/2). It is also stated by the respondents that the applicant did not make any representation against the said order dated 23.12.2011 (Annexure A/1). Therefore, the O.A. is hit by Section 20(1) of the Administrative Tribunals Act, 1985. It is also stated that the O.A. filed by the applicant on 13.8.2013 challenging the order dated 23.12.2011 is barred by limitation under the provisions of Section 21 of the Administrative Tribunals Act, 1985. It is further stated that two disciplinary proceedings were initiated against the applicant under Rule 14 of the CCS (CCA) Rules, 1965, vide memo dated 29.11.1999 and memo dated 11.11.2003. In the first disciplinary proceeding pertaining to the release of Rs.38.25 lakhs as service charges to the non-entitled Gram Panchayats, the Inquiry Officer found that the applicant had not fully performed his duties as staff officer and because of his act of omission the payment of service charges had been made to the Gram Panchayats in complete violation of the prescribed procedure. The applicants lapses in not rendering timely and proper advice to the DEO and not reporting the matter to higher authorities were held to have been established by the Inquiry Officer. Taking into consideration the findings of the Inquiry Officer and materials available on record, including the advice of the Central Vigilance Commission, the competent authority communicated the Government Displeasure, vide order dated 23.12.2011 (Annexure A/1). As regards the second disciplinary proceedings relating to cutting of trees in Ammunition Depot, Dappar, the competent authority, on the basis of the advice of the Central Vigilance Commission, exonerated the applicant of the charge, vide order dated 13.12.2011, since he had been allowed to voluntarily retire from service with effect from 18.4.2007, vide order dated 17.4.2007 (Annexure R/6). The respondents have stated that in FIR No.41/99 P.S.North Chandigarh against Shri B.A.Dhayalan, DEO and others, the case was sent up as untraced on 16.6.2000. On 17.5.2001 the then DEO, Chandigarh, appeared in the court on behalf of the complainant and requested for re-investigation. The court directed the Investigating Officer to submit re-investigation report. During re-investigation, the charge of misappropriation and embezzlement of Government funds was not established and the re-investigation report was submitted before the court on 21.2.2003. The respondents have further stated that allusion to the case of Shri B.A.Dhayalan, the then DEO, Chandigarh, which had a different and distinguishable trajectory pertaining to the disciplinary proceedings vis-`-vis that of the applicant, is not relevant in the instant case. In Shri Dhayalans case the Tribunal quashed the two charge-sheets dated 12.11.1999 and 11.10.2004, before the disciplinary proceedings were concluded, largely on the grounds of delay, whereas in the case of the applicant one of the two departmental proceedings was concluded with issuance of Government Displeasure to which he had acquiesced, vide his letter dated 27.5.2010. The respondents have further stated that after conclusion of the disciplinary proceedings against the applicant, vide orders dated 13.12.2011 and 23.12.2011, the competent authority, acting upon the advice of the Legal Advisor (Defence) and the Department of Personnel and Training, approved the proposal for opening of the sealed covers containing the recommendations of the DPC and DSC in respect of the applicant and accordingly, the recommendations contained in the sealed covers are under submission to the competent authority for approval to give effect to the same. The competent authority has also ordered that the period of suspension of the applicant be regularized as duty, and subject to the provisions of sub-rule (8) of Rule 54-B of the Fundamental Rules, 1922, the applicant shall be paid full pay and allowances to which he would have been entitled had he not been suspended. As regards the reliefs claimed by the applicant, vide paragraphs 8(b) to (m), it is stated by the respondents that they are already processing and pursuing the matters as per Rules and have since taken steps and that certain other actions and processes are at their hand and are likely to be finalized soon as per rules.
4. In the rejoinder reply, the applicant, while controverting the stand taken by the respondents, has more or less reiterated the same averments and contentions as in the O.A. Besides, the applicant has stated that in the case of Shri J.L.Bishnoi, the then S.D.O-I, Chandigarh Circle, the Tribunal, relying on the orders passed by it in B.A.Dhayalans case (supra), as upheld by the Honble High Court of Delhi in W.P. ( C ) No.8155 of 2010 (supra), allowed O.A.No.2159 of 2011 and quashed the orders dated 20.12.2007 and 29.10.2010 passed by the respondent-authorities. The Tribunal also granted all consequential benefits to the said Shri Bishnoi. Copy of the said order dated 6.9.2013 passed by the Tribunal in OA No.2159 of 2011 has also been filed by the applicant along with his rejoinder. In the rejoinder reply, the applicant has contended that since the senior and subordinate officers of the applicant have been let off, the communication of Government Displeasure by the respondent-authorities upon conclusion of the departmental proceedings is unsustainable and liable to be quashed and the respondent-authorities be directed to grant all consequential financial and service benefits to the applicant, as prayed for in the O.A.
5. We have perused the pleadings and heard Mrs.Jyoti Singh, learned Senior Advocate for the applicant, and Shri M.S.Reen, learned counsel appearing for the respondents. We have also gone through the written note of submissions filed by the learned counsel appearing for the applicant.
6. At the outset, we would like to consider the question of maintainability of the Original Application as raised by the respondents. It is contended by the respondents that in response to the memo dated 21.5.2010 (Annexure R/2) the applicant, vide his letter dated 27th May 2010 (Annexure R/1), having categorically expressed not to make any representation against the Government Displeasure as tentatively proposed to be communicated to him upon conclusion of the departmental proceedings and further having not made any representation to the competent authority against the order dated 23.12.2011 (Annexure A/1), he cannot be held to have exhausted the departmental remedy available to him before approaching the Tribunal in the present O.A. and therefore, the O.A. is hit by Section 20(1) of the Administrative Tribunals Act, 1985.
6.1 Referring to the representations dated 31.1.2012, 22.2.2012, 23.3.2012, 28.4.2012, 16.8.2012, 14.3.2013, 24.5.2013 and 24.6.2013 (Annexure A/4 collectively), the applicant has contended that he has exhausted all the departmental remedies available to him.
6.2 After carefully going through the representations, referred to by the applicant, we find that in none of the said the said representations the applicant has questioned the legality and validity of the order dated 23.12.2011 on any grounds whatsoever. What he has been claiming in the said representations is about opening of sealed covers containing the recommendations of the DSC and DPC in the matters of grant of financial upgradations under ACP Scheme and promotion to the next higher grade, and payment of financial/retirement benefits which were withheld on account of pendency of the departmental proceedings against him. In none of the said representations the applicant has also claimed to be exonerated of the charge levelled against him on the grounds of quashing of the charge sheets and the subsequent proceedings initiated against his higher authority, Shri B.A.Dhayalan, the then D.E.O., Chandigarh Circle, Chandigarh, by the Tribunal. Section 20(1) of the Administrative Tribunals Act, 1985 stipulates that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. In the case of D.C.S.Negi vs. Union of India and others, SLP ( C ) /CC No.3709/11, decided on 7.3.2011, the Honble Supreme Court held that the Tribunal cannot abdicate its duty to act in accordance with the provisions of the Administrative Tribunals Act, 1985 under which it is established. In view of the facts that the applicant did not wish to make any representation against the memo dated 24.5.2010 and that the applicant has also failed to make any representation against the order dated 23.11.2011, he cannot be allowed to agitate any grievance with regard to communication of the Government Displeasure and cannot also be said to have exhausted the departmental remedy available to him before approaching this Tribunal assailing the order dated 23.11.2011. Therefore, so far as the applicants challenge to the order dated 23.11.2011 is concerned, the O.A. is held to be not maintainable.
6.3 But as regards redressal of his grievances regarding opening of sealed covers containing the recommendations of the DSC and DPC and payment of retirement benefits, etc., the applicant having made representations and the authorities having failed to redress the said grievances, we are satisfied that the applicant has exhausted all the departmental remedies and hence the O.A. is held to be maintainable in relation thereto.
7. In the present O.A, the applicant has prayed for quashing the order dated 23.12.2011[vide relief 8(a)] and for direction to the respondents to grant him all other consequential service benefits and retirement benefits consequent upon conclusion of the departmental proceedings [vide reliefs 8(b) to (j)].
7.1 So far as the applicants challenge to the order dated 23.12.2011 (Annexure A/1) is concerned, the O.A. filed on 13.8.2013 is clearly barred by limitation. Section 21(1)(a) of the Administrative Tribunals Act, 1985 stipulates that a Tribunal shall not admit an application in a case where a final order has been made in connection with the grievance, unless the application is made within one year from the date on which such final order has been made. Sub-section (3) of Section 21 of the Administrative Tribunals Act, 1985, inter alia, stipulates that an application may be admitted by the Tribunal after the period of one year specified in clause(a) of sub-section (1) of Section 21, if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The present O.A. filed on 13.8.2013 challenging the order dated 23.12.2011 (Annexure A/1) is clearly barred by limitation. The applicant has not shown any cause either in the O.A. or in the rejoinder reply for not making the application within one year from 23.12.2011. Therefore, it is held that as regards the applicants challenge to the order dated 23.12.2011 (Annexure A/1), the O.A. is clearly barred by limitation.
7.2 So far as the reliefs claimed in paragraph 8(b) to (j) of the O.A., though no order has been made by the respondents on any of the representations made by the applicant on 31.1.2012, 22.2.2012, 23.3.2012, 28.4.2012, 16.8.2012, 14.3.2013, 24.5.2013 and 24.6.2013 (Annexure A/4 collectively) and the limitation started running from the date of expiry of the period of six months from the date of first representation, dated 31.1.2012, yet the delay in filing the present O.A. claiming the aforesaid reliefs is found to be very negligible. Besides, considering the fact that reliefs, vide paragraph 8(b) to (j) of the O.A, pertain to grant of retirement benefits and other service benefits consequent upon conclusion of the departmental proceedings and that right to claim pension and retirement dues is a recurring and continuous cause of action, we hold that as regards reliefs claimed by the applicant, vide paragraph 8(b) to (j) referred to above, the O.A. deserves to be considered on merits.
8. Admittedly, the second departmental proceedings culminated in exoneration of the applicant of the charge, vide order dated 13.12.2011, and the first departmental proceedings culminated in communication of Government Displeasure, vide order dated 23.12.2011. The respondents have not pointed out any other reason for not taking appropriate decisions in the case of the applicant with regard to grant of service and retirement benefits which were withheld because of the departmental proceedings. Therefore, immediately after conclusion of the departmental proceedings, the respondents ought to have taken appropriate decisions in the case of the applicant pertaining to his aforesaid claims. It is found that the applicants repeated representations dated 31.1.2012, 22.2.2012, 23.3.2012, 28.4.2012, 16.8.2012, 14.3.2013, 24.5.2013 and 24.6.2013 (Annexure A/4 collectively) have fallen on deaf ears of the respondents. Even as on the date of filing of the present O.A., i.e., 13.8.2013, the respondents did not take any decision in the matter. In their counter reply filed on 6.1.2014, the respondents have disclosed that after the conclusion of disciplinary proceedings against the applicant, vide orders dated 13.12.2011 and 23.12.2011 the competent authority, acting upon advice of the Legal Advisor (Defence) and the Department of Personnel & Training, approved a proposal for opening of the sealed covers of the recommendations of the D.P.C. and D.S.C. in respect of the applicant and that the sealed covers were opened and the recommendations in the sealed covers are under submission to the competent authority for approval to give effect to the same. In the counter reply, it is also stated that the respondent-authorities have already processed and pursued the matters as per Rules and have since taken steps and that certain other actions and processes are at hand as mentioned above and are likely to be finalized as per rules soon. We find that the averments made by the respondents are vague, as vagueness could be. They have not disclosed the details of the actions taken by them, the dates when those actions were initiated by them, and the reasons for delay in taking final decisions in all the aforesaid matters. Along with the counter reply, they have filed a copy of the order dated 27.12.2013 (Annexure R/7) regularizing the period of suspension of the applicant as on duty and payment of full pay and allowances as per rules. The said order has been issued by the respondents only in compliance with the Tribunals interim direction. It is, therefore, clear that the respondents have failed to take appropriate decisions in the case of the applicant consequent upon conclusion of the departmental proceedings and that though by now about three years have expired from the date of the final order dated 23.12.2011 passed in the departmental proceedings, the applicant is yet to get all his service dues and retirement benefits, as mentioned in paragraph 8(b) to (j) of the O.A.
9. Having given our anxious consideration to the facts and circumstances of the case, we find that this is a fit case where the respondents have to be directed to settle all the aforesaid claims of the applicant, including financial upgradation under ACP and promotion, and retirement benefits of the applicant, and to pay all the financial benefits to the applicant, as mentioned in paragraph 8(b) to (j) of the O.A. within a period three months from today. In the facts and circumstances of the case, we are not inclined to direct the respondents to pay any interest on the dues payable to the applicant. But, if the respondents fail to fully comply with the direction contained in this order within the period of three months from today, they shall pay interest at 12% per annum on the financial benefits from the date(s) the same became due till the date(s) of actual payment. It is made clear that no extension of time for implementation of this order shall be granted to the respondents under any circumstance. The Registry of the Tribunal shall communicate copies of this order to the learned counsel for the parties in course of the day. Ordered accordingly.
10. In the result, the O.A. is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN