Central Administrative Tribunal - Kolkata
Jantara Pant vs M/O Human Resource Development on 20 September, 2019
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•Auf, r r 1 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. O.A. 5 of 2016 Reserved on : 9.9.2019 M.A. 272 of 2019 Date of order: &G, G|, ^ CPC. 84 of 2019 i Present HonTole Ms. Bidisha Banerjee, Judicial Member h HonTole Dr. Nandita Chatterjee, Administrative Member Smt. Jantara Pant, Child Development Project Officer (now Mukhya SeVika), Wife of Sh|iAks|a^Pant, Re.sidlnll^ ^oti{liitoi& > .-j » ^ ^Skcfipur Post Office, % % % €% Port Blair -744,106.
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4. Shri Ajay Saxena, Government of India, Ministry of Environment & Forest, Paryavaran Bhawan, CGO Complex » Lodhi Road > ! New Delhi - 110 001.
5. The Secretary, Ministry of Home Affairs, A X 2 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 North Block, New Delhi - 110 001.
6. The Joint Secretaiy (UTS) > Ministry of Home Affairs, >i :: North Block, New Delhi - 110 001.
... Respondents
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For the Applicant Mr. B.R. Das, Counsel
For the Respondents Mr. R. Haider, Counsel
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Therapptetet has apprdSMeSpi^fetanal un i \ / % ■ J&\ | I I Adminiltrafeye; TribundCf%:pt, ^91^%^following#|lie% ! ¥ ::T ceedin'g^id tb allow ■a I- ■ m ' 1 ; aJSis H^nTile I (b)fmiIssuance SSyofllrection | Tribians31 may fy 3 mi both LdS.orfnilfCi&kiiiti^Mfe^&'gwdocuments^Qn 2- 1H record i m. JP* I I I 1. \ ^ 5r ■ i fc as wgll arious citatilins nffeiredi tolby^hewcl. Counsel in^fppprt of \ 1;
their liespective^lims, Siisifis# argumpnts^haye been filed by
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3.1. The %ubnilssions ©"Mhe as^articulated through her Ld.
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Counsel, m bnef^are ^follows:- ? ?r iig**'
(i) The applicant hal^spught relief for quashing of chargesheet dated
; 20.2.2009 alleging that she has acquired assets disproportionate to her
known sources of income to the tune of Rs. 40,31,387/- during the period 6.9.1984 to 10.2.2009, and, that, a CBI case bearing No. 4.4.2005 has also been filed against the applicant under Section 13(2) of Prevention of Corruption Act, T988, which remains pending before the Court of the Special Judge, CBI Court at Port Blair at the stage of examination of witnesses.
3 o.a. 5 of 2016 with m.a. 272,2019 with cpc. 84.2019
(ii) The charge memorandum issued by the disciplinary authority, however, allege that the applicant had acted in a manner unbecoming of a government servant contravening Rule 18(2) of CCS (Conduct) Rules, a 1964. The rules stipulated that except with the previous knowledge of the ■w/ / authority, no government servant should acquire or dispose of any immovable property.
The disciplinary authority, after having obtained the enquiry report in which the applicant had denied the allegations, imposed a major '*■ J penalty vide order dated%2|,/i'3|'4^£4L^i®spte:s as#fpllows:
"Smti. J&ntra^ftajnr, CDPO is reduced to the mihimmir of the time-scale of pay/grade^otyST "MukhyaJgg|p^thJmmediate e^tS for period of five years, whijbfPshall be a barfd%he ^romStioh^pf the govtf servant '('Smt, Jantra. Pant) durmg the g^\sai| five kyeap^feod to theiftmli scale of pay/gfede/post of frlm whi|h Jh^was^%uced an# ^promotion on Aji) HerSay.sCTl^bpl^sr'OTldidnd^^ll be^plbwed first|®:rement on f sueGwd^tbc^tc of restoration^of^pa^gmte^en-Wstage^anglthereafterghe wiJll earn ,„ ^ ^ JL ^ ■h.
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(m) |T|e applicant th^#ter4)r#e|:e| * ap^P dated 5.9.® 4 more i w 111 %Jr I the appellate aut^^i^^^^l&^affeldated 2.3p015.
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alleging| seri^|f^pri^edmkl lapses on th^gaft q^tng dis^plinary authority%Th^app€tls rer^hii^pending^fof^considfthtio^atjiiie level of % \^ir ■'* f rr;>r^V'T ^9- ^h-
the appellate ^iithon-ty.
''■r The applicarit^ias aSvIihced^prAmSfi^, the^fffiowing grounds in 4 ***** "C support of her claim:-
I i (a) That, the disciplinary authority issued the chargesheet !' without application of his mind as to the commission of the offence, that he was primarily influenced by the CBI case 0 filed against the applicant, and, being bereft of any c-
documents or statement of witnesses, the authority failed to conclude independently on the allegations against the
4 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 applicant. In support, the Ld. Counsel for the applicant would refer to the ratio in Union of India v. B.N. Jha, 2003 SCC (L&S) 488, which rules that the disciplinary authority should apply his independent mind to the materials on / record.
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(b) That, there is no provision of CCS (Conduct) Rules, 1964 that provides for departmental chargesheet for acquisition of disproportionate assets. ■y~>
(c) The DA andJQ.Mlfed-itSulj^jSlt Jf witrJe;sses of and copies of do,^Wfents to the applicant, whichl'Snqunfe|,to denial of % reMdhable ■* % ^tural j^icK \ l I I /' *** \ y Mission + o standlquashedkon grfeund & ■ £ f I Son'bW Apex Cduft iiS the ■MJ-
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❖ % Bi/^arilsv. Uhjlqii of India & ors. i0^<0&>S) 9m ❖ Anahta R. KUikarnt^Yt.Pl!1Edu^Uon S^iet/ 20m4 (2) SCC (L&S) 593 X \\ v ❖ P.V. Mahadevan v. Boam (200S) 6 SCC 636.
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(e) That, the applicant had represented on 27.8.2012 to the disciplinary authority alleging bias and violation of principles of natural justice.
3.3. In her appeal preferred before the appellate authority, the applicant has advanced the following grounds:- ■
(i) The disciplinary authority failed to consult the CVC as mandated vide CVC circular dated 28.9.2000.
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(ii) The disciplinary authority failed to consult the UPSC under ;.
Article 320(3) (c) before imposing punishment.
r (iii) The proceedings suffer from infirmity in the absence of V ■// f general examination of the applicant / appellant under
provisions of Rule 14(18) of CCS (CCA) Rules, 1965.
(iv) That, the disciplinary authority, having misconstrued the orders of the appellate authority, directed a denovo proceeding by appointing a new enquiry officer.
The newly app m I enquiiyl ' r iP'o|hpe^held %iiquiry on revised
(v) charge#^ificorporating additional ofe, misconduct mSI ur^^Rul e 13|jj^^iiijth| rr^n^^Wum of ch^gb|s.
W %. 1 ,4| sh#:efbne ^ra^rfh^fcppeal d^fejdx^6-2014 ;<K 3 iife-ad with th^4iemih^'rM^t%|i/2^2QX5^1ii, treate wed, ff:r behalfiir der on m d%jas m. nullity dl the %
3)' • clm&ei^eOT by the deb m-ifental Stand jquashed .it irkfollo'ydng 4he decision^,arriyed*5'^ Nqf351fl48/2015 % V datehl olhspiVlBi^i^SShhSS^dnion^Indii & ors.|
4. The responderits%have cBffirovertisd^fiie c^m^Sf the applicant . The primary arguments of the respondents are as follows:-
(i) That, the applicant had participated fully in the enquiry without raising any question of setting aside the proceedings before any competent court of law and/or any Tribunal and it is only after declaration of the penalty that the applicant had approached the Tribunal in O.A. No. 5 of 2016, which is presently under adjudication.
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6 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019
(ii) Three departmental proceedings and two criminal proceedings for different causes were initiated against the applicant.
(iii) Two of the departmental proceedings have concluded. In the first case, vide order No. 462 dated 7.2.2011, a penalty of withholding of increment for a period of three years was imposed upon the applicant. In the second case, a penalty of withholding of one increment for two years was imposed upon the applicant vide ■» "t.y.
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.V. order No. 2183 dat^dlS.i.SSl li fh&apljlicanl^has preferred an . - ,*Aisv. ; ' .
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I (H# FIR Aberdee«6r l<|s of |ahj^p°rtant Fil^labMg|o|"l|cfimtirfRules for^.p^t of "Welfare the ap^icant.
Fmrther^ qA haS^fil A a charge sheet ^^i4t tirli applicai^ under \ .^>y / ■ Prevention;of fcorruption~^AGt..11988y?af amen&fl frdm tiEffe to time.
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(v) The third^isci^linary prhfe^lngs^hi'ch had^nt^ied in a major penalty order Bated 22723^07^2@W^against^the applicant/charged rr. _ ..
officer as follows "Smti. Jantra Pant, CDPO is reduced to the minimum of the time-scale of pay/grade/post of "Mukhya Sevika" with immediate effect for a period of five years, which shall be a bar to the promotion of the govt, servant (Smt. Jantra Pant) during the above said ; five years period to the time scale of pay/grade/post of CDPO from Which she was reduced and on promotion on expiry of the said five years period,
(i) Her pay shall be restored and will be allowed first increment on such restoration from the date immediately succeeding the date of restoration of pay from current stage and thereafter she will earn her increment every year and
(ii) She shall not regain her original seniority in the higher scale of pay/grade/post or service of CDPO."
7 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 ! Thereafter, on her having preferred an appeal, the appellate authority •is ■■A ! /■ ■ remitted the case to the disciplinary authority with the advice to li • complete the disciplinary proceedings in terms of Rule 14(18) of CCS mi w (CCA) Rules, 1965. The disciplinary authority, in compliance with I such advice, concluded the proceedings after having appointed a new enquiry officer, upon the transfer of the earlier IO and the third disciplinary proceedings has attained finality vide Order no. 555 dated 20th / 22nd February, 2019. The following penalty was imposed on the & A. -
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"Smti. dantarf^it, CDPO is imposed with the majbfijenaltj%of reduction to the mMimum%#the time-scal^^|^grade post of 'M-ffehya \evika' in pay LeveKS (Scfl^of Pay Rs.i:x2-9^fe- qj'dte'f^^immediafe effect^wHich shall be a t>ar to he%promotionj|§Wl£e time sealelbf ^^^^ade/post of^B%0%pm which # "^^^ced. ^fherlrorls.lhf^f her'p^rad|/post of 'k ir before tMfe gp.pe'll®^fetMa^BawJA||2019 an(i»kno|ving I' til SI fully pfe|ing| the *■ T ?
"applicant h^sgm^ros^hed the by filing m^pitfesent % %%:
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(vi% In%es:^©fise fo^the issue as to whetMr UP^C^s^required to be \';tr ■ y / .r % / if % if befj, ord^at stage the respdndenr^have referred to the^Constitutional Bench judgment of Uttar EmdWm v. M.L. Srivastava 1975 AIR 912 that ruled that the provisions of Article 323 (C) are not mandatory and non-compliance of these provisions does not confer a cause of action to the respondents in a court of law. The respondents would highlight that the same ratio was relied upon by the Honhle Apex Court in Union of India v. T.V. Patel (2007) 4 SCC
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(viii) The respondents have relied on the ratio of the HonTole Apex Court in Prahlad Raut v. All India Institute of Medical : i Sciences Civil Appeal No, 6640 of 2019 @ SLP (C) No. 1 si 30046 of 2017, in State of HP & ors. v. Gujarat Ambuja Cement Ltd. & anr. (2005) 6 SCO 499 as well as upon a catena of judgments in, G. Veerappa Pilla v. Raman & Raman Ltd. AIR (1952) SC 192; »■ r ✓ Assistant^Cmf&tir^f kint&liEx^lMWw.. Dunlop India Ud.ikjk'flSSS) SC 330; ' ' *"^4^ AIR
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IjC H^5. Gctndhi v. Vs^Gppindfh and §ons,$199j?) SuppL 2 \ V ." # ^ SGC 3%12; '* t^S|VJ ' 2!^ ■Xt airfPirs# ■"£ S Whirlpool CoTpdration-vi^Registrarsof Trade Marks and ors. AIR (1999) SC 22;
s Tin Plate Co of India Ltd. v. State of Bihar & ors. AIR (1999) SC 74;
S Sheela Deiti v. Jaspal Singh, (1999) 1 SCC 209;
S Punjab National Bank v. O.C. Krishnan & ors. (2001) 6 SCC 569 9 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 wherein it was held that where the hierarchy of appeal is provided by the statute, the party must exhaust the statutory remedies before resorting to Writ Jurisdiction.
The respondents would, particularly, refer to the decision in I Prahlad Rout (supra) wherein it was held as follows:-
n Even assuming that the appeal was never decided, the cause of action for filing an application before the Tribunal would have arisen on expiry of six i months from the date of filing the appeal, in view of Section 20(2)(b) of the l;
Administrative Tribunals Act, 1985 set out herein below:-
"20. Application not to be admitted unless other remedies exhausted."
(ix) The respondents have^ls|> ^defended ^^ie decision of the r i |t js:
% *»; ! appellate authOT|1^ ^ in remitting ' tbM jfifea.tter^without any / '5^ modificattori^bT the orderi®^^B&I^Ciplinaiy authority with specific / 'Y* I flPlk .
difections^to conclSde fhelprlceldings a|lter complying v%h Rule |14(ll&Df CC^^®AT^te|||M5^i<#tt4take arf^ppr^priate .1 • Jjl:
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5. | The'issue before f should taxe cognizance fi^^ijuddcafe fee li|parLt ^O.A. on merit v|ien a statutdjy app^m i^emfmh^pending before the ^p€lMte authority. £ \ / ./i%i ^ /C\ \ # 6.1. Thit Trite.un4lf|has^eejn created, intp&mia, jf^J^u^cial^review of administrative action/om%i;s^&Unless ,rffee% Sdministi-atiye "order" is . ^ h. r%..
*r<rmi, if available, or, tini^lapsl^i.;^ sufficient leadmg#t#fea^fmble presumption ^ of a negative decision by^dmipigg^n^fe^ause of action does not arise and Tribunal shall not try a case without a cause of action.
Exhaustion of alternative remedy also ensures a cause of action brining forth a prima facie case before the Tribunal.
Therefore, one of the threshold checks that the courts apply before it undertakes judicial review is whether the litigant has availed of the !;
alternative remedy provided in the statute. It is the general principle of j ■i l 10 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 j r: ■ / j /• law that judicial review is available only when the petitioner remains /.
dissatisfied even after availing of the alternative remedy statutorily provided [Union of India Vs, Tulsiram Patel, AIR 1985 SC 1416], also relied upon by the respondents. // ' 6.2. In U,P. State Bridge Corpn, Ltd, Vs, U.P. Rajya Setu Nirman S.Karmachari Sangh, (2004) 4 SCC 268, it was held that, except where a strong case has been made out for making a departure, the High Court should not deviate from |hg^g&;neral view^and refuse to interfere under Art. 226sof thel5©^|sliSlbn [Rudii iMNs..%State of Bihar, AIR ilk Cour||bbse^d % "But normally, the High Court should not entertain writ £*gss.
petitions unless it is shown that there is something more I km in a case, something going to the root of the jurisdiction of the officer, something which would show that it would & 1 0; % be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the i 'statute * * 8* * ® >r- & 'si;
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we sanie%ey7 was^iterated in Uttaranchal Mo rsF Development X A Corpn, Vs%Jab&r Sing$f*(20d?fW*SCC li2j%vhere^the HonTole Court ■ X "X -ram " x "In the instant case, the workmen have not made out any exceptional circumstances to knock the door of the High Court straightaway without availing the effective alternative remedy available under the Industrial Disputes Act But the dispute relates to enforcement of a right or obligation under the statute and a specific remedy is, therefore, provided under the statute the High Court should not deviate from the general view and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure."
11 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 6.3. There are contingencies where the bar is not applicable. It has { ■ 4 consistently been held that at least in three contingencies alternative :Wt ■ if/ remedy does not operate as a bar; they are (i) where there has been a violation of fundamental rights, (ii) where principles of natural justice have been violated rendering the proceedings wanting in jurisdiction and
(iii) where the vires of an Act is challenged. [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai, (1998) 8 SCO 1J.
Although it is true that <he_power to admit an application for adjudication, where^rf^rhati^e remek^ ■% exhausted, is fi..
discretionary Tribuiml this pow^to sire a litigant from padjDable linjustice-^^^prillcime Jha# ;®^stated bynhe mipreme if \ 11;' Courtfin tt?P. Stat^Ugr^^ridii^fftesf Dfielp^Lent Corpn. Std. Vs Jah§n ^n, ^ ft a-
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tI % "There is no gainsaying that in a given case, the High
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226 of the Constitution on the ground of availability of %-ii i. tJ 'I. % an alternative remedy, but the said rule cannot be said to be of universal application. Rule of exclusion of writ it% ✓ ^jurisdiction due to availability of an alternative remedy / is a rule of discretion and not one of compulsion. In an % ^appropriate case, in spite of the availability of an %& \ ' alternative remedy, a writ court may still exercise its % ^discretionary jurisdiction of judicial review, in at least % %% ■% three contingencies, namely, (i) where the writ petition \ seeks enforcement of any of the fundamental rights; (ii) ^'where there is failure of natural justice; or (iii) where the order or proceedings are wholly without jurisdiction or the vires of the Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. * 6.4. The honTole Apex Court, in Bengal Immunity Co. Vs. State of . Bihar, AIR 1955 SC 661, reiterated that the principle of refusal of writ jurisdiction for availability of alternative remedy has no universal application. If the provision is a part of an Act which is ultra vires the power of the legislature which enacted it, the provision becomes useless.
The Court observed:
12 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019 power of the legislature which enacted it, the provision becomes useless.
The Court observed:
i;-' "Another plea advanced by the respondent State is that the appellant company is not entitled to take proceedings praying for the issue of prerogative writs / under Article 226 as it has adequate alternative '4 remedy under the impugned Act by way of appeal or revision. The answer to this plea is short and simple.
The remedy under the Act cannot be said to be adequate and is, indeed, nugatory or useless if the Act which provides for such remedy is itself 'ultra vires' and void and the principle relied upon can, therefore, have no application where a party comes to Court with an 1 allegation that his right has been or is being threatened ■f«b-..to be infringed by a law which is ultra vires the powers Sir of legislature which enacted it and as such void and ?■ % * prays for appropriate relief under Article 226. % / \ %'4l.
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7. d/fiie jluiicial ratio Havirtg considered Ae ma^fiMl*bn rec^td and r i referred to by both parties, we find-that although not/disclosed by the t applicant in the O.A., the. applicant has, in coiranuation to her appeal dated 5.9.2014 and application dated 2.3.2015, preferred a statutory appeal dated 19.3.2019 against orders no.ff55 dated 20/22nd February, 2019.
In her appeal dated 19.3.2019, (annexed as Annexure R to the written notes of arguments of the respondents in O.A. No. 5/2016), the applicant/appellant, has referred to:
(a) Vigilance clearance in her favour placed before DPC of 1992;1
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(b) Likely impact of the results of the disciplinary proceedings on the pending case filed by CBI;
(c) Procedural injustice.
d Accordingly, following the ratio of Prahlad Raut (supra) as well as i / other judicial pronouncements, that have earlier decided on the self K same ratio, we would refrain from entering into adjudication on merit at this stage but would rather dispose of the O.A. with a direction on the respondent No. 5, namely, the. Secretary to the Government of India, 1. Ministry of Home Affair.s,, New'ibil§^or.^ySthtr^conipetent respondent f '■% authority, to obtailk the orders of the appellate authority %-s stipulated • v**}*1' ^ \ under Rule 27^df"CCS (C^jfRillesI 19^5^^d^as laid dow^ii^.Jtf. No. 39/42/70^t.(A) ^f^ithin Ariol of 16 weeks frlm the W1cheler is £ I m awesS; 1 a earlier. 'him i I pi -w-jane;.
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alter having^ d€?liber^ted/^upon each of the ^issues^ raised#by the \ W/.. ^ .^i>y ./ applicant/appellant therein. The^ap^ellate^rders should be .dBnveyed to the applicant forthwith^ther^afterN1 c| Jt' •'Wc rii. & iSF The respondehts^have 1frough#mfriife«)rd.jii^ the applicant has ' • ^yZy^'' joined her duties in the lower post ofTdukhya Sevika at Port Blair on 27.3.2019, without prejudice to her rights and subject to the result of the O.A. pending before the Tribunal as well as her pending appeal before the appellate authority. The applicant should be allowed to continue in the said post till disposal of the appeal.
7. With these directions, the O.A. is disposed of.
14 o.a. 5 of 2016 with m.a. 272.2019 with cpc. 84.2019
8. M.A. No. 272 of 2019 praying for recall of disciplinary authority's order dated 20/22.2.2019, along with CPC. 84 of 2019, alleging violation L ■ / of orders dated 8.4.2019, also stands disposed of accordingly.
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(Dr. Nandita Chatterjee) (Bidisha Banerjee)
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