Central Administrative Tribunal - Gauhati
P Hangsing vs M/O Labour on 3 January, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH Original Application No. 040/00214/2018 THE HON'BLE SMI. MANJULA DAS, JUDICIAL MEMBER THE HON'BLE MR. NEKKHOMANG NEIHSIAL, ADMINISTRATIVE MEMBER Shri P. Hangsing . Son of Sri Helkhulun Hangsing Regional Provident Fund Commissioner, Grade --|1 Employees Provident Fund Organisation, Zonal Office, NER, Bhagagarh Guwahaii, Pin -- 781005. . Applicant By Advocate: Mr.A.Ahmed, Ms.R.R.Rajkumari, Mrs.D.Goswami & Ms. A. Theyo -Versus- 1. The Union of India, h represented by the Secretary to the Government of India, Ministry of Labour & Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi -110001. 2. The Ceniral Provident Fund Commissioner, Employees' provident Fund Organisation, Bhavishya Nichi Bhavan, 14, Bhikaiji Cama place, New Delhi, Pin -- 110066. 3. The Additional Central Provident Fund Commissioner (NE Region}, Employees' Provident Fund Organization, Bhagagarh, Guwahati, Pin -- 781005. OA.040/002 14/2018 4, Shri. Ajay Kumar Mehra, Regional Provident Fund Commissioner, Grade -- | Employees' Provident Fund Organization, Regional office Indore, Pradhikaran Bhawan, 7 Race Course Road, Indore, Madhya Pradesh, Pin -- 452003. ... Respondents By Advocate: Mr.R.Hazarika, Addl. C.G.S8.C. | ay Date of hearing: 08.10.2018 Date of order: 03. ©! # 4 ORDER. MANJULA DAS, MEMBER (J):
By this OA, filed under Section 19 of the Administrative Tribunals, Act, 1985 the applicant prays for following relief(s}:-
"8.1 To set aside and quashed the impugned order bearing No. HRM --.1/A -- 10 (31) 97 dated 19.02.2018 and communication letier bearing No. EPFO/ACC/NER/ADM/1/2017/Misc/1 42 dated 13.03.2018 wherein Applicant's claim for Original Seniority on regular promotion fo the Post of Regional provident Fund Commissioner, Grade - Il and Grade --| has been rejecied.
8.2 To re-fixed the Original Seniority of the Applicant in the Post of Regional Provident Fund Commissioner, Grade -- || and Grade -- | above to his Junior fe. Private Respondent No. 4 as per Original Seniority in the entry grace i.e., the grade of Assistant Provident Funa Commissioner (1997 Batch).Page 2 of 10
QA.040/002 14/2018 8.3. To pass any other appropriate relief or reliefs to which the Applicant may be entitled and as may be deem fit and proper by the Hon'ble Tribunal.
8.4 To pay the costs of the application."
2. The facts, in brief, are that applicant is working as regional Provident Fund Commissioner, Grade-l, Employees' Provident Fund Organization, Zonal Office, NER, Guwahati. He was initially selected to the post of Assistant Provident Fund Commissioner through UPSC [1997 batch). A disciplinary proceeding was inilidted against him on 01.04.2002 under Rule 10 of the EPF Staff (CC&A)} Rule, 1971. During pendency of the said oroceeding, on the recommendation of the DPC, 14 Assistant Provident Fund Commissioners including juniors to the applicant were promoted to the post of Regional Provideni Fund Commissioners, Grade-ll on reqular basis vide order dated 26.12.2003 and applicant's case was kept in seal cover due to pendency of departmental proceedings and in culmination of the sdid proceeding, vide penalty order dated 16.09.2004, applicant was imposed penalty of reduction of his pay by one stage for a period of two years with direction that during the period he will not earn increment but the same not to effect of postponing his future increment. The appellate authority Page 3 of 10 6 4 i j | ai QA.040/002 14/2018 rejected his appeal dated 11.11.2004 vide order dated 08.08.2005. Applicant preferred revision petition on 19.09.2005. The revisional authority vide order dated 21.12.2005, the penalty was modified to that of 'censure'.
3. According to the applicant, subsequently, vide order dated 06/07.02.2006, the applicant along with 2 others were promoted to the post of Regional Provident Fund Commissioner Grade ll on ad hoc basis whereas 20 officers of 1999 batch had already been promoted as such on regular basis who are junior to him. Applicant preferred second review pelition on 03.05.2007 praying for nullifying all charges and allowing promotion on regular basis w.e.f. the date of the 1st DPC {i.e. October, 2003) in a manner that his inter se seniority is restored. He made another representation on 12.05.2009 praying for regularization of his promotion by resioration of his inter-se- seniority. According to the learned counsel, vide office order dated 14.02.2014, the respondents again promoted three officers from the Regional Provident Fund Commissioner Grade Il to The rank of Regional Provident Fund Commissioner Grade | in which private respondent no.4 who is junior to him was also promoted. Thereafter the final seniority list of Regional Provident (A i hes "le "y ! .
4Pare ae | Page 4 of 10 i ' t i | Te nk ' | el i "S:
OA.040/002 14/2018 Fund Commissioner Grade || ds on 01.11.2013 was publisned vide office order dated 09.05.2014 in which private respondent no.4 was shown senior at sl.no.8 to the applicant at sl. No.15. According to the applicant, in the seniority list of feeder cadre i.e., Assistant Provident Fund Commissioner applicant was senior at sl. No.98 to the private respondent no.4 at sl. No.99. Thus being aggrieved, applicant again made a representation dated 12.06.2014 prayed for restoration of his seniority, but to no avail.
4, Thereafter vide order dated 22.06.2015, the applicant along with 10 others were promoted to Regional Provident Fund Commissioner Grade | on regular basis. In the draft seniority list of Regional Provident Fund Commissioner, Grade -| published vide OM dated 09.06.2016, the applicant was placed much below at sl. No.44 than the private respondent no.4 at sl. no.37. Being aggrieved applicant another representation dated 25.09.2017 praying for restoration of his seniority, however, vide impugned order dated 19.02.2018, the respondents had rejected his claim. According to the applicant, where a Government servant has been awarded any of the Minor Penalty such Government Servant Page 5 of 10 QA.040/002 14/2018 shall, on the expiry of the said specified period of penalty, regain his original seniority in the higher time scale of pay, grade, post or service as a matier of course, however, the resoondenis have rejected his prayer in a mechanical manner.
5. No written statement has been filed in this case.
Mr.R.Hazarika, learned Addl. C.G.S.C. appearing for the official resoondents submits that he had writien two letters dated 22.06.2018 and 12.09.2018 to the respondent no.3, which had been received by the sdid respondents on 17.07.2018 and 26.09.2018 respectively, yet, he has not received any instructions from the respondents. Vide order dated 06.09.2018, this Tripbunal directed the respondents to produce the minutes of the DPC meeting held since 2003 jo 2010 for proper scrutiny of the case. Despite such direction, nothing has been placed on record.
6, Notice to private respondent no.4 was sent vide speed post on 22.06.2018. The same had been received by the said respondent and the acknowledgement has been received. No written statement has been filed by him nor was any representation made on behalf of him.
Page 6 of 10OA.040/002 14/2018
7. Mr.A.Ahmed, learned counsel for the applicant vehemently submits that the punishment imposed by the disciplinary authority had already been converted to 'censure'. According to the learned counsel, punisnment of censure is not a bar for promotion, therefore, applicant is entitled to retrospective promotion and his seniority is required to be fixed below Shri E.S.Sanjeeva Rao and immediately above Shri Ajay Mehra with consequential ante dating promotion to the next.
grade.
8. Learned counsel for the applicant relied on a decision of the Hon'ble High Court of Tripura rendered in WP(C) (CAT) No.1 of 2015 (UO! & Ors vs Nirmal Chakraborty) and submitted that if the applicant punisned with censure or recovery of pecuniary loss, the same will not be a bar for promotion if otherwise the DPC finds the applicant fit for promotion. The relevant portion of the order is extracted below:-
"4. The main ground raised is that since he was found guilty in the departmental proceedings he could not have been promoted. With regard to the same the Tripunal has relied upon the circular issued by the Depariment of Personal and training and Page 7 of 10 "Tt. 0~«:
é.
OA.040/002 14/2018 endorsed by the Postal Department itself which reads as follows:
"In the matter of -- disciplinary/penalty proceedings, grant of benefit under the MACPS shall be subject to rules governing normal! oromotion. Such cases shall, therefore, be reguiated under the provisions of the CCS(CCA) Rules, 1965 and instructions issued there under. Attention of the Circle is drawn to Department of Personnel and Training OM No.22011/2/78- Estt.{A} dated 16.02.1979 communicated in DGP&T letter no.35- 1/79-SPB- | dated 07.05.1979. According to these orders, the penalty of censure or recovery of pecuniary loss are not bar for penalty for promotion if the findings of the DPC are in favour of the employee."
These instructions clearly state that if the employee is only visited with the punishment of censure or recovery of pecuniary loss then that will noi be a bar for promotion if otherwise the DPC finds the petitioner fit for promotion.
5. In this view of the matter we find no error in the order passed by the Central Administrative Tribunal. The petition is, accordingly, dismissed. In case the order of the Central Administrative Tribunal has not been complied with till date the time for complying with the same is extended up to 30th June, 2015."
Learned counsel for the applicant also relied on a decision of the Hon'ble Andhra Pradesh High Court dated 20.07.2001 in the case of A. Verma Reddy vs CGDA, New Delhi & Ors (in WP No.17905 of 2000). According to the learned counsel, present 7 8 Page 8 of 10 OA.040/002 14/2018 case js similar to the aforesaid two decisions, and therefore, said decision is applicable in this case.
9. Learned Addl. C.G.S.C. for the respondents could not controvert the aforesaid decisions. No contrary decision has not been produced before us. in ihe case of Nirmal Chakraborty (supra), referring fo the DOPT circular dated 16.02.1979 the Hon'ble High Court of Tripura had held that punishment of censure is not a bar for promotion if the DPC find the employee fit for promotion. In the case of A Verma Reddy (supra), the Hon'ble Andhra Pradesh High Court had heid that an employee cannot be denied consideration for promotion on the ground that he was awarded the punishment of censure.
10. In view of the above and the decisions of the Hon'ble High Court of Tripura as well as the Hon'ble Andhra Pradesh High Court, as discussed above, we hold thai the impugned order dated 19.02.2018 rejecting the prayer of the applicant for antedating promotion and restoring seniority is not justified. Accordingly, impugned order dated 19.02.2018 is set aside and quashed. The respondents are direcied to re-fix Page 9 of 10 OA.040/002 14/2018 the seniority of the applicant in the post of Regional Provident Fund Commissioner Grade Il and | above his junior -- private resoondent no.4 as he was senior to respondent no.4 in the seniority list of Assistant Provident Fund Commissioner (1997 Batch).
11. The OA is disposed of with the above directions.
There shall be no order as to costs. pe ae _ 7 (NEKKHOMANG NEIHSIAL) (MANJULA DAS) ADMINISTRATIVE MEMBER JUDICAIL MEMBER /BB/ Page 10 of 10