Central Administrative Tribunal - Delhi
Munishwar Nath Bhandari vs Union Of India Through Secretary on 19 December, 2024
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Item No. 40/C-IV OA No. 1860/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1860/2024
Reserved on: 13.12.2024
Pronounced on: 19.12.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Munishwar Nath Bhandari,
S/o Shri U. N. Bhandari, Age 63 year,
R/o 27, Rahim Khan, Nizamuddin East,
New Delhi.
...Applicant
(By Advocate: Mr. Abhishek Tripathi)
Versus
Union of India, Through Secretary,
Ministry of Finance,
Department of Revenue,
Room No. 136 A, First Floor,
North Block, New Delhi.
...Respondent
(By Advocates: Mr. Jalaj Agarwal)
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Item No. 40/C-IV OA No. 1860/2024
ORDER
Hon'ble Mr. Manish Garg, Member (J):
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"(i) Allow the instant OA and quash and set aside the impugned letter/order dated 18.03.2024 (Annexure A-1)
(ii) Allow the instant OA and quash and set aside the impugned letter/order dated 05.04.2024 (Annexure A-2)
(iii) Direct the Respondent herein to acknowledge the nomination of the Applicant as the Ombudsman & Ethics Officer in Uttarakhand Cricket Association (UKCA);
(iv) issue any such and further order and directions the Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. Narrating the facts of the case, learned counsel for the applicant submitted that the applicant is retired Chief Justice of Hon'ble Madras High Court and is currently serving as Chairperson, Appellate Tribunal SAFEMA and PMLA since his appointment w.e.f. 08.09.2022. 2.1 Learned counsel further submitted that the applicant has approached this Tribunal by virtue of the present OA seeking quashing and setting aside of impugned orders dated 18.03.2024 and 05.04.2024 issued by the respondent whereby the respondent has illegally and unfairly declared that his taking up of the assignment of Ombudsman & Ethics Officer in Uttarakhand Cricket 3 Item No. 40/C-IV OA No. 1860/2024 Association (UKCA) is not being agreed to by the 'Competent Authority' and has further advised him to resign from the post of Ombudsman & Ethics Officer in (UKCA), if already joined and submit a compliance report in this regard.
2.2. Adding to his submissions, learned counsel submitted that the applicant herein also seeks directions to the respondent to acknowledge his nomination as the Ombudsman & Ethics Officer in Uttarakhand Cricket Association (UKCA).
3. Learned counsel for the applicant contended that the Rules governing the applicant herein are Central Civil Service (Conduct) Rules, 1964 (in particular Rule 15 of the said Rules) and Tribunal (Conditions of Service) Rules, 2021 (in particular Rule 16 of the said Rules). Together Rule 15 of the Rules, 1964 and Rule 16 of the Rule, 2021 lay down the legal regime governing the conditions mandated in case a Member/Chairperson of a Tribunal accepts an assignment outside his official duties. He submitted that in the instant case the assignment undertaken by the applicant is purely for the purpose of promotion of sports and the UKCA is a registered association devoted to promotion of sports and, therefore, there is no need to seek sanction/permission from 4 Item No. 40/C-IV OA No. 1860/2024 respondent; still the respondent has undertaken the exercise of scrutiny and illegally issued the impugned orders. Learned counsel added that the only embargo provided by the Tribunal (Conditions of Service) Rules, 2021 on serving Members/Chairperson is for taking assignments outside their duties such as "arbitration assignment".
3.1 Learned counsel emphatically contended that neither of the aforesaid Rules place any embargo on the applicant herein to accept assignment of Ombudsman & Ethics Officer in UKCA and even the Rules do not require the applicant herein to seek prior permission of the respondent before accepting the assignment of Ombudsman & Ethics Officer in UKCA. The applicant merely wrote to the respondent requesting it to acknowledge the said acceptance of assignment, however, the respondent without any basis or legal foundation has passed the impugned orders.
3.2. Learned counsel for the applicant further contended that the respondent has wrongly concluded that the acceptance of the assignment in question by the applicant would affect and/or undermine his official duties as the Chairman, Appellate Tribunal. In this regard, learned counsel submitted that the assignment of Ombudsman & 5 Item No. 40/C-IV OA No. 1860/2024 Ethics Officer of UKCA is not a full time engagement, therefore, would not affect the functioning of the applicant as Chairperson of the Appellate Tribunal and in fact, in terms of Article 41 (2) of the Constitution of Cricket Association of Uttarakhand, the Ombudsman & Ethics Officer of the UKCA is free to decide the place of hearing and, therefore, there is no compulsion or requirement on the part of the applicant to leave the place of functioning of the Appellate Tribunal to cater to the functioning of Ombudsman & Ethics Officer of UKCA.
3.3. Learned counsel argued that the respondent has gravely erred while concluding that the amount paid by the UKCA to the applicant on accepting the assignment of Ombudsman & Ethics Officer of the Cricket Association of Uttarakhand is fee/salary and thus requires permission of the Government. He submitted that the amount being paid by the UKCA to the Applicant on accepting the assignment of Ombudsman & Ethics Officer of the UKCA is merely in the nature of an honorarium which is different from fee and/or salary in its texture, trappings and consequences. Therefore, the provisions of Rule 15(2) requiring permission of the Government before accepting assignment with fee/salary will not be applicable in the instant case at all. 6
Item No. 40/C-IV OA No. 1860/2024
4. Learned counsel for the respondent opposed the reliefs sought in the present OA and relied upon the following averments made in the counter affidavit:
4.1 Learned counsel submitted that the present case is out of the preview of the service matters because in the present OA, the applicant is seeking permission to join an additional post which does not come under the definition of service matter as per section 3(q) and 3(r) of Administrative Tribunal Act, 1985.
4.2 Further, learned counsel submitted that the conditions of service of Chairman, Appellate Tribunal (SAFEMA) are governed by the Tribunal (Conditions of Service) Rules, 2021 which state, "The terms and conditions of service of a Chairperson, or Member with respect to which no express provision has been made in these rules, shall be such as are admissible to a Government of India officer holding Group 'A' post carrying the same pay. As per Tribunal Rules, the Chairperson, shall, be paid a salary of Rs. Two lakh fifty thousand (fixed) per month. Therefore, in this matter CCS (Conduct) Rules 1964 shall be applicable.
4.3 Learned counsel further submitted that Rule 15(2) of the Conduct Rules states, "A Government servant may, without the previous sanction of the Government take part 7 Item No. 40/C-IV OA No. 1860/2024 in the registration, promotion management of a literary, scientific or charitable society or of a club or similar organization, the aims or objects of which relate to promotion of sports, cultural or recreational activities, registered under the Societies Registration Act 1860 or any other law for the time being in force.
Provided that
i) he shall discontinue taking part in such activities, if so directed by the Government;
(ii) his official duties shall no suffer thereby and he shall, within a period of 1 month of his taking part in such activity, report to the Government giving details of the nature of his participation.
(iii) unless otherwise provided by general or special orders of the Government, no Government Servant may accept any fee for any work done by him for any private or public body or any private person without the sanction of the prescribed authority."
4.4 Learned counsel argued that as per the letter dated 31.07.2023 from the Cricket Association of Uttarakhand addressed to the applicant confirming his appointment as Ombudsman & Ethics Officer of Cricket Association of Uttarakhand, there is a provision for amount of Rs. 2,50,000/- per month to be paid for serving as Ombudsman.
4.5 Learned counsel added that as per FR 46, the Central Government may grant or permit a government servant to receive an honorarium as remuneration for work performed which is occasional or intermittent in character and either 8 Item No. 40/C-IV OA No. 1860/2024 so laborious or of such special merit as to justify a special award. Except when special reasons which should be recorded in writing, exist for a departure from this Provision, sanction to the grant of acceptance of an honorarium should not be given unless the work has been undertaken with the prior consent of the Central Government and its amount has been settled in advance. 4.6 Highlighting the MHA OM No. 9/2/65 Ests (B) dated 30.04.1965 learned counsel submitted that "an honorary worker should be employed in the true sense of the term and should not normally be allowed a substantial amount by way of honorarium Therefore, the amount of Rs 2,50,000/- per month being paid to the applicant may be considered as fee.
4.7 Learned counsel argued that as per FR 9 (6 A), "fee" means recurring or non-recurring payment to a government servant from a source other than the Consolidated Fund of India or the Consolidated Fund of State whether made directly to the Government Servant or indirectly through the intermediary of government. Therefore, considering the above mentioned facts and circumstances the present OA. is liable to be dismissed with exemplary cost for wasting precious time of this Tribunal.
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Item No. 40/C-IV OA No. 1860/2024 4.8 Learned counsel invited our attention to the
provisions of the Tribunal (Conditions of Service) Rules, 2021 and, especially, Rule 16 therein which states that the Chairperson or Member of the Tribunal is not entitled to undertake any arbitration assignment while functioning in the Tribunal.
4.9 Learned counsel further drew our attention to the Administrative Tribunals Act, 1985 and, especially, Section 2(c) therein which states that any officer or servant of Supreme Court or any High Court shall not be subject to jurisdiction of this Tribunal.
5. In rejoinder to the submissions put forth by the learned counsel for the respondent, learned counsel for the applicant drew our attention to Rule 15(2) of the CCS (Conduct) Rules, 1964. It is further submitted that by accepting the assignment of Ombudsman and Ethics Officer, the applicant's official duties as Chairman of the Appellate Tribunal would not suffer.
6 We have heard learned counsel for the parties and perused the records of the case. Learned counsel for both the parties have also filed their written synopsis.
7. ANALYSIS :
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Item No. 40/C-IV OA No. 1860/2024 7.1 Fulcrum on which the adjudication of the present matter hinges is, as to whether, nomination as
"Ombudsman" can be regarded as "arbitration assignment"
vis-a-vis the meaning and scope of Rule 16(3) of the Tribunal (Conditions of Service) Rules, 2021?"
UNDERLYING CONCEPT OF "Ombudsman" and "Arbitration"
7.2 Concerning the contextual reference to the present case, we need to highlight the background under which the applicant was nominated as "Ombudsman" to Uttarakhand Cricket Association.
7.3. Vide order dated 22nd January, 2015 in BCCI vs. Cricket Association of Bihar and Ors. (2015) 3 SCC 251, the Hon'ble Supreme Court held that even when the Board of Control for Cricket in India was not "State" within the meaning of Article 12, it was amenable to the writ jurisdiction of the Court under Article 226 of the Constitution of India as it was discharging important public functions. Building further on that finding, the Hon'ble Supreme Court had set up a Committee comprising Justice R.M. Lodha, former Chief Justice of India as Chairman with Justice Ashok Bhan and Justice R.V. Raveendran, former Judges of the Hon'ble Apex Court.The Committee said:11
Item No. 40/C-IV OA No. 1860/2024 "At a time when the nation's highest court has been compelled to find that the game has fallen into disrepute, only extraordinary steps will bring it back from this chasm.
We are conscious that some of our proposals may evoke varied responses, but the collective conscience of this Committee is clear that tough measures are called for to restore Indian cricket to its pinnacle of glory. Individual interest will have to be sacrificed for the sake of the institution, and no exigency of convenience or convention shall stand in the way of a whole scale structural overhaul. The current governance structure of the BCCI and its Member Associations is far from satisfactory and it needs to be suitably restructured. Strict terms and tenures have to be imposed on administrators, oversight and audit of member associations need to be carried out, professional management deserves to be introduced in the administration of the game, all States require an equal say in the affairs of the BCCI, financial prudence has to be exercised, independent views in Governance are imperative and cricketers have to be protected and given a free hand in cricketing affairs. There also ought to be an Ombudsman, an Ethics Officer and an Electoral Officer who can provide institutional resolution while principles of transparency and conflict of interest need to be infused without further delay.
The report that follows is the Committee's effort to restore Indian to its deserved status by putting in place good governance structures and best practices."
7.4 The concept and need for Ombudsman in BCCI and State Associations stems from reference by the Apex Court in BCCI vs. Cricket Association of Bihar and Ors. (supra). Relevant para readsas under :-
"23. In Chapter Seven, the Committee has dealt with need for Ombudsman, Ethics and Electoral Officer. The Committee notes that several disputes that exist within the BCCI are born out of years of apathy in governance and gross mismanagement. The Committee has found that the relationship between the Associations, on the one hand, and the BCCI, on the other, has rarely been equitable and balanced, with the latter exercising its hegemony over the former. The Committee has therefore recommended moderation of such relationship in an objective manner. The Committee has referred to the problems of disgruntlement and litigation in the States of Bihar, Rajasthan, Delhi and Jammu and Kashmir. The 12 Item No. 40/C-IV OA No. 1860/2024 Committee has found that absence of suitable dispute resolution mechanism has compounded the situation. Even the arbitration system that has hitherto existed has been found to be insufficient and palpably inappropriate when two un-equals are pitted against each other, especially with the State associations remaining beholden to the Board for matches, grants and revenues. In order to reduce the judicial role and the burdening of the courts and to expedite dispute resolution, the Committee has recommended the appointment of a retired Judge of the Supreme Court or a former Chief Justice of a High Court as the Ombudsman of the BCCI, to be appointed once a year at the Annual General Meeting to investigate any complaint received by him/her or suo motu and to resolve any dispute between the Board and any of the above entities or among themselves by following the principles of natural justice, production of evidence and fair hearing. So also the Committee has recommended an Ethics Officer for monitoring adherence to the principles governing avoidance of Conflict of Interest. The Committee has recommended that Ethics Officer shall have powers inter alia of laying down of additional guidelines or bye-laws on ethics, initiation of investigation or adjudicatory proceedings and the award of warnings, fines, reprimands, suspensions or other action as may be recommended to the BCCI. According to the recommendation all non-IPL ethics issues shall be administered and adjudicated by the Ethics Officer who shall be a former Judge of the High Court to be appointed by the Board. Recommendation for appointment of an Electoral Officer for conducting elections of the Committee under the Rules has also been made by the Committee. The Committee has recommended that in order to ensure competence and to distance the entity from any suspicion or bias, a former Election Commissioner for India could be appointed as the Electoral Officer for the BCCI, whose decision on any subject relating to elections shall be final and conclusive."
7.5 In Cricket Association of Bihar and Ors. (supra) it was further recorded that In chapter 10 of the Report, Solutions relevant to present case are extracted as under in terms of the above decision :-
The policies of BCCI regarding dispute resolution and Conflict of Interest, as well as the norms for Agents' Registration will have to apply to the State Associations as well. In order to administer this, the associations may also appoint an Ombudsman-cum-Ethics Officer. It 13 Item No. 40/C-IV OA No. 1860/2024 would be open to multiple States to have a single Ombudsman / Ethics Officer so as to reduce expenditure. The person so appointed shall be an eminent person well versed in adjudicatory processes and it will be his/her task to decide all disputes between the Association and any of its constituents (Districts, Clubs, etc.), or between the constituents, or complaints of any player or member of the public, by following the principles of natural justice before rendering a decision. As Ethics Officer, it shall be his duty to administer the principles of Conflict of Interest and recommend such action as may be deemed fit as far as an Office Bearer, Employee, Player, Team Official or other individual connected to the State Association is concerned. Needless to say, if it is an issue that concerns the BCCI as well, the Ethics Officer of the BCCI shall proceed to decide the issue. The Ethics Officer shall also decide all issues concerning the violation of the Agents' Registration norms as far as players of the State are concerned.
Each State Association will necessarily have a website that carries the following minimum details:
The Constitution, Memorandum of Association and Rules & Regulations, Bye-Laws and Office Orders and directions that govern the functioning of the Association, its Committees, the Ombudsman and the Ethics Officer."
7.6 The word "ombudsman" comes from the Swedish word "ombud", which means "officer" or "commissioner". Ombudsman is an external agency
appointed by the Government to probe into administrative lapses. It is a mechanism by which an aggrieved party can claim relief against abuse of discretionary power by Government authority or body. Sweden was the first country to adopt this Institution in 1809 followed by Finland, Denmark, Norway, New Zealand, Australia and the Scandinavian countries. The Government of India has designated several Ombudsmen (sometimes called Chief 14 Item No. 40/C-IV OA No. 1860/2024 Vigilance Officer or CVO) for redressal of grievances and complaints from individuals in banking, insurance and other sectors being serviced by both private and public bodies and corporations. The CVC (Central Vigilance Commission) was set-up on the recommendations of Santhanam Committee. In India, Ombudsman is called Lokpal or Lokayukta. An Administrative Reforms Commission (ARC) was set up on 5 January, 1966 under the chairmanship of Morarji Desai. It recommended two-
tier machinery: Lokpal at the Centre (Parliamentary commissioner as in New Zealand) and one Lokayukta each at the State level for redressal of people's grievances. However, the jurisdiction of the Lokpal is not extended to judiciary like in New Zealand.
7.7 Though both the concepts, i.e., "Ombudsman" and "Arbitration" originate from Alternative Dispute Redressal (ADR), however, neither of them are inter-changeable. The scope of two is entirely different. There is fine distinction between "Ombudsman" and "Arbitration", which can be depicted by way of following chart:-
"Ombudsman" "Arbitration"
Origin Originates from Arbitration
complaint. Can be agreement.
Honorary Not an honorary
Mechanism Body or Appointment by
Association or invocation of
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Item No. 40/C-IV OA No. 1860/2024
Corporate or arbitration clause
Government by by reference.
nomination.
Accessibility Aggrieved Party. Between two or
more parties
under agreement.
Cost- Less Expensive. Expensive.
Effective
Scope To look into Inter-se disputes
complaint or between parties to
grievances. the contract.
Participation Open ended. Closed or confined
to parties to the
dispute.
Legal power Advisory in Enforceable in
nature. Lack of court of law.
legal power.
Problem Less time Time consuming.
solving consuming.
NOMINATION OF APPLICANT AS "Ombudsman"-
HONRARY IN NATURE
8. Appointment and nomination are quite distinct and separate action(s) altogether. The process of nomination precedes the process of appointment. The nomination can mean 'suggesting' or 'recommending' and appointment can mean 'selecting' or 'electing'. The words do not carry same meaning. 'To nominate', as may be seen from any dictionary, means, to name or designate by name for office or place. Webster's New 20th Century Dictionary gives the word "nomination" among other meanings, "the naming or appointing a person to an office; the naming of a person as a candidate for election or appointment to an office". A meaning of the word "nominate" is 'to propose for office'. 16
Item No. 40/C-IV OA No. 1860/2024 8.1 In 1144 Nepean Highway Pty Ltd v Leigh Mardon
Australasia Pty Ltd [2009] VSC 317per Pagone J, the court stated, by reference to the House of Lords authority, (Tradax Export SA v Volkswagenwerk AG,[1971] QB 537Lord Denning MR, Salmon and Edmund-Davies L.JJ at 546) that the word 'appoint' may vary in meaning according to the context in which it is used. It noted that in some cases 'appoint' may be no more than a synonym for 'nominate' but in others, the power of appointment may include power to set terms and functions of the expert, but in others the power of appointment may include power to set terms and functions of the expert. The use of the expression 'appoint' must be construed as precluding any objection by a party to the expert appointed by the President. If it were not so, the mechanism provided for in the agreement could be rendered useless where a party refused to accept the nomination for whatever reason. The court stated that it is unlikely that the parties having agreed to a mechanism to achieve the independent appointment of an expert would permit frustration of this by either of them being able to continually reject an appointed expert.
8.2 The primary Rule of interpretation of Statutes is to give every word in a statute its ordinary and natural 17 Item No. 40/C-IV OA No. 1860/2024 meaning. The only recognized exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. The other important rule of interpretation is that the court cannot rewrite, recast or re-frame the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there in it. Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission - Union of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323] and Shyam Kishori Devi v. Patna Municipal Corpn.(AIR 1966 SC 1678).
8.3 In Sri Jeyaram Educational Trust & Ors., v. A.G.Syed Mohideen & Ors. reported in AIR 2010 Supreme Court 671, the Hon'ble Supreme Court held as under:-
"6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when 18 Item No. 40/C-IV OA No. 1860/2024 there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be."
8.4 The rule 'Expressio unius est exclusio alterius' means that, the express mention of one thing is the exclusion of other. The general meaning of "expression of one thing is the exclusion of another" is also known as the negative implication rule. This rule assumes that the legislature intentionally specified one set of criteria. The "arbitration assignment" spelt out in Rule 16(3) cannot be by any stretch of imagination construed to be of same nature to that of "Ombudsman" .
8.5 The nomination of the applicant as "Ombudsman" can neither be construed to be an incapacity of a Chairman or member to the Tribunal nor contrary to Rule 16(3) of the Tribunal (Conditions of Service) Rules, 2021 and to be equated with that of "arbitration assignment" or substitute or synonymous. In fact, the respondent themselves relied upon the well recognized concept in chapter X-employment of Honorary Workers, Clause (2) which postulates "Honorary employment should be offered only to such persons as have rendered meritorious services or are eminent in public life and have a striking reputation for integrity". Further-more, Clause 3 postulates "Services of 19 Item No. 40/C-IV OA No. 1860/2024 an honorary worker should be utilized only in an advisory capacity. The work to be entrusted to him should not be such as would involve exercise of executive, administrative or judicial powers as the holder of a civil post or exercise of authority in the name, or on behalf, of Government. It may not be necessary to enforce the requirements of this clause in the case of persons who have previously held a high office under Government."
8.6 The "honorarium" which has been accorded to applicant vide Communication dated 31.7.2023 cannot be equated to that of salary/ fee(s) and not in nature of "fee" in view of FR 9 (6A) but within realm and discretion of the nominating agency which may or may not be commensurate to persons who have held a high office. The applicant's case cannot be merely addressed solely on the basis of quantum of "honorarium" which stated to be higher side. The continuation to act as "Ombudsman" is solely at the discretion of Association, which is extended on yearly basis.
8.7 The respondent's contention appears to be that a prior consent /sanction ought to have been taken before seeking nomination. The said presupposition cannot be accepted as the reliance placed on FR 46 (b) is based on incorrect interpretation. We also draw reference to the fact that Rule 20 Item No. 40/C-IV OA No. 1860/2024 15(2) of the Conduct Rules which stipulates, "A Government servant may, without the previous sanction of the Government take part in the registration, promotion management of a literary, scientific or charitable society or of a club or similar organization, the aims or objects of which relate to promotion of sports, cultural or recreational activities, registered under the Societies Registration Act 1860 or any other law for the time being in force." It is apparent from said Rule 15(2) that there is no bar or prohibition for taking part in promotional activities in the nature of sports, cultural or recreational. The nomination of the applicant as "Ombudsman" was made on 31.7.2023 which sub-serves the said purpose and as such is in- consonance with the Rule 15(2), if they were to be applied in case of the applicant, therefore, question of prior consent of Central Government for settlement of amount in advance does not arise at all.
8.8 We find that there is no embargo or prohibition under any law, Rule or Statute which prohibits the nomination of the applicant as Ombudsman, UKCA, which can be demonstrated as under:
(i) Respondents have incorrectly relied upon Rule 15 of the Central Civil Services (Conduct) Rules, 1964, whereas the applicable Rules is Tribunal (Condition of Service) Rules, 21 Item No. 40/C-IV OA No. 1860/2024 2021 (in particular Rule 16) and there is no bar to alternative engagement.
(ii) The condition & service of the Chairman and Members of Tribunal are primarily governed by the Tribunal (Condition of Service) Rule, 2021 framed under the Tribunal Reforms Act, 2021. The question of applicability of the CCS (Conduct) Rules is only permissible if there are no "express provisions" provided under the Rules, 2021. The Rules of 2021 have an overriding effect on the CCS (Conduct) Rules as per Rules 16 (1) of the Rules, 2021. The Rules, 2021 is self contained under Rule 16(2) to 16(4)of the Rules, 2021.
(iii) The embargo is case upon Chairman/Members of Tribunal to take assignment post retirement whereas Rule 16 (3) provides for only embargo applicable on alternative assignment during the tenure of service, i.e. assignment of an "arbitrator".
(iv) Chairman/ Members of the Tribunal are a class distinct from other government servant covered under CCS (Conduct) Rules and therefore a separate act and corresponding rule (Rules, 2021) have been enacted to cater to them. CCS (Conduct) Rules only has residuary application.
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Item No. 40/C-IV OA No. 1860/2024
(v) Reliance placed by the respondents on Rule 15 (4) of the CCS (Conduct) Rules to claim that the remuneration involved with the office of Ombudsman CAU is completely misplaced and incorrect. The remuneration linked to assignment of Ombudsman CAU is not in the nature of fees as the same is neither condition precedent to accepting the offer nor can be claimed as a matter of right after accepting the offer by the Applicant. More importantly the assignment of Ombudsman of CAU is not an assignment of permanent nature, in fact Article 41 (2) of the Constitution of CAU, the Ombudsman CAU is free to decide the place of hearing and therefore there is no compulsion or requirement to leave the place of functioning of the Appellate Tribunal to cater to the functioning of Ombudsman CAU as and when required. 8.9 The communication dated 02.08.2023 sent by the applicant as intimation about nomination as "Ombudsman" is distinct from "arbitration assignment" in terms of Rule 16, wherein no prior sanction is required. There is no "conflict of interest" or same would be an impediment in performance of duties as Chairman, Appellate Tribunal or otherwise. Moreover, the nomination is having force of acceptance of recommendation of Committee as observed in BCCI case (supra). 23
Item No. 40/C-IV OA No. 1860/2024 8.10 Even going by the submissions made on behalf of the respondents, in terms of Rule 15(2) of CCS Conduct Rules, 1964, which has been overlooked, it can only be emphasized that entire objective and intent of Rule 15(2) of the Conduct Rules, 1964 is that the entire time of the Government servant should be available to the Government and that no activities unconnected with his or her official duties should be allowed to interfere with the efficient discharge of such duties. Therefore, all Ministries have been requested to ensure that the participation of Government servants in the activities of societies conform to the above provisions and does not interfere with the discharge of their official duties which ought to be examined keeping in view the provisions of the relevant Act and bye'-Iaws governing the activities of such societies apart from the aforesaid provisions of rule 15(1) &(2) of the CCS(Conduct) Rules, 1964. ( Ref :- OM No. F.No.11013M/2007-Estt.(A) dated 13th November, 2007 Government of IndiaMinistry of Personnel, Public Grievances &Pensions (Department of Personnel &Training) 8.11. We take note of the fact, the impugned orders so issued have ignored the aforesaid aspect as no material is available on record to establish that acting as 24 Item No. 40/C-IV OA No. 1860/2024 "Ombudsman" has in any manner resulted or interfered with the efficient discharge of duties and functioning of the applicant as the Chairman, Appellate Tribunal. In absence of such finding or observations, the impugned communication orders dated 18.03.2024 and 05.04.2024 cannot be sustained in facts as well as on law. "To say the least, the nature of work performed not the quantum of the honorarium is decisive factor".
9. CONCLUSION :
9.1. In view of above analysis, we allow the present Original Application thereby setting aside the impugned communication orders dated 18.03.2024 and 05.04.2024.
9.2. In terms of the interim order passed on 13.5.2024, the nomination of the applicant as Ombudsman is made absolute. Pending MAs, if any, shall stand disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /as/