Central Administrative Tribunal - Lucknow
Ram Kali Mishra And Ors. vs Union Of India (Uoi) And Ors. on 21 February, 2001
ORDER D.C. Verma, Member (J)
1. By this O.A. the applicant has challenged the order of removal dated 23rd August, 1990 (Annexure-1 to the O.A).
2. A preliminary objection raised on behalf of the respondents is that the O.A is not maintainable before this Tribunal, the applicant being a member of General Reserve Engineering Force (in short G.R.E.F.), is a Member of Armed Forces of India. Reliance has been placed on the decision of the apex Court in the case of R. Viswan v. Union of India and Ors.. AIR 1983 SC 658.
3. During the pendency of the O.A. the applicant R.C. Mishra expired, hence his legal representatives have been impleaded. The legal representatives would be entitled to certain benefits in case the order of removal is quashed by this Tribunal, The word applicant hereinafter refers to the deceased employee.
4. The submission of the learned Counsel for the applicant is that the applicant was not a member of Armed Forces. The submission is that the applicant was only a civilian employee and was governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short Rules of 1965). Further submission is that as the removal order was passed by the respondents under Rules of 1965, the applicant was a civilian employee of the G.R.E.F. hence the present O.A. against the order of removal is maintainable before this Tribunal. In support of his contention the learned Counsel for the applicant has placed reliance on the following decisions:
1. Satish Chandra Omar v. Garison Engineer and Anr., (1995) 30 A.T.C. 763=1995(1) SLJ (CAT) 74.
2. Union of India v. S.B. Mishra, AIR 1986 SC 163=1996(1) SLJ 94 (SC).
3. Rahmatullah Khan v. Union of India and Ors., (1989) 10 A.T.C. 656 (Full Bench C.A.T.)=1989(2) SLJ 293 (PB-ND) (CAT).
4. Kartar Singh v. Union of India, 1996(32) A.T.C.323 (C.A.T.--Ahmedabad).
5. The learned Counsel for the parties have been heard at length on the question of maintainability.
6. The question whether members of G.R.E.F. are members of Armed forces was considered by the apex Court in the case of R. Viswan (supra). The Hon'ble apex Court examined the history of the G.R.E.F. and various provisons of Army Act, 1950 and thereafter held that the members of the G.R.E.F. are members of the Armed forces within Article 33 of the Constitution of India. With regard to the question of the persons recruited to G.R.E.F. through Union Public Service Commission, and covered by Rules of 1965, the Hon'ble Supreme Court observed as below :
"5. So far as the personnels of G.R.E.F. are concerned, they are partly drawn from the Army and partly from the direct recruitment. Army personnel are posted in G.R.E.F. according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of GREF as a force intended to support the Army in its operational requirements...... But quite apart from the Army personnel who form an important segment of GREF even the direct recruited personnel who do not come from the Army are subjected to strict Army discipline having regard to the special character of GREF and the highly important role it is called upon to play in support of the Army in its operational requirements. Since the capacity and efficiency of GREF units in the event of out break of hostilities depends on their all time capacity and efficiency they are subjected to rigorous discipline even during peace time, because it is elementary that they cannot be expected suddenly to rise to the occasion and provide necessary support to the Army during military operations unless they are properly disciplined and in fit condition at all times so as to be prepared for an eventuality."
After further discussions, the apex-Court held that :
"The result is that directly, recruited GREF personnel are governed by the provisions of Central Civil Service (Classification Control and Appeal) Rules, 1965 as amended from time to time but for purposes of discipline, they are subject to cetain provisions of the Army Act, 1950 and the Army Rules 1954 as laid down in SROs 329 and 330 dated 23rd September, 1960".
While considering whether the members of the GREF are members of the Armed Forces, the apex Court held as below:
"It is undoubtedly true that as stated by the Minister of Defence, GREF is a civilian construction force and the members of the GREF are civilian employees under the administrative control of the Border Roads Development Board and that the Engineering officers amongst them constitute what may be designed as "Central Civil Service" within GREF but that does not mean that they cannot at the sometime form an integral part of the Armed Forces. That fact that they are described as civilian employees and they have their own rules of recruitment and are governed by the Central Civil Services (Classification Control and Appeal) Rules, 1965 is not determinative to the question whether they are members of the Armed Forces".
"The question whether the members of GREF can be said to be members of Armed Forces for purposes of attracting the applicability of Article 33 must depend essentially on the character of GREF, its organisational set up, its functioning, the role it is called upon to play in relation to Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces and if judged by this criterion, they are found to be members of the Armed Forces, mere fact that they are non combatant civilian employees of the Central Civil Service (Classification Control and Appeal) Rules, 1965 cannot make any difference".
Finally the apex Court held :
"It is abandantly clear from these facts and circumstances that GREF is an integral part of Armed Forces and the members of the GREF can legitimately by said to be members of the Armed Forces within the meaning of Article 33".
7. From what has been extracted above from the decision of the Apex Court in the case of R. Viswan (supra) the applicant being a member of GREF is for purposes of discipline subjected to provisions of Army Act, 1950 and the Army Rules, 1954 as in SRO 329 and SRO 330 dated 23rd September, 1960. The validity of SRO 329 and 330 dated 23rd September, 1960 was challenged before the Apex Court in the case of R, Viswan but has not been condemned as invalid. On judging the applicant's case in the light of the decision of the Apex Court, the applicant is a member of Armed Forces within the meaning of Article 33.
8. After the decision of the Apex Court in the case of R. Viswan (supra) the President of India issued orders Annexure S.R.-1 dated 14.8.85 that G.R.E.F. is an integral part of Armed Forces for purposes of Article 33 of the Constitution of India. Section 4 of the Army Act, 1950 (in short Act of 1950) provides that the Central Government may. by notification apply, with or without modification all or any of the provisions of the Act of 1950 to any force raised and maintained in India under the authority of the Central Government and suspend the operation of any other enactment for the time being applicable to the said force. It was under this Section that 329 as amended by SRO 364 and 330 (Annexure S.R.-2) was issued. The S.R.O. says that it "applies to the G.R.E.F being a force raised and maintained in India under the authority of the Central Government, all the provisions of the said Act with the exception of those shown in Schedule A subject to the modifications set forth in Schedule B." (Emphasis laid). Schedule A provides exception in respect of various sections of the Act of 1950 which includes Section 71 which is for punishment awardable by Court martial which includes dismissal from service. Thus, to G.R.E.F. personnels raised under the authority of the Central Government, all the provisions of the Act of 1950 are not applicable. Exceptions are provided under S.R.O. The applicant's case comes within the exception clause, though for purpose of maintenance of discipline and to ensure proper discharge of duties, such G.R.E.F. personnels are covered by Article 33 of the Constitution of India. As has been observed by the Apex Court in para 5 of their judgment in R. Viswan (supra) quoted earlier, G.R.E.F. personnels are partly drawn from the Army and partly from direct recruitment. Apart from Army personnel who form an important segment of G.R.E.F. directly recruited personnels, though do not come from the Army, are subject to strict Army discipline and for that purpose, their certain rights have been restricted under Article 33 of the Constitution of India by issue of SROs, otherwise the directly recruited G.R.E.F. personnel are governed by the Rules of 1965 as amended from time to time. The applicant comes within this exception. It is not the case of the respondents that the applicant was drawn to G.R.E.F. from the Army.
9. From what has been discussed above, the applicant, who is a directly recruited personnel of G.R.E.F., is governed by Rules of 1965 except for those rights which are restricled by S.R.O. 329 as amended by SRO 364 and 330 issued under Section 4 of the Act of 1950 and read with Article 33 of the Constitution of India. In view of this, this Tribunal has jurisdiction to entertain the present O.A. filed against the order of removal passed against the applicant under Rules of 1965.
10. The facts of the case referred to by the learned Counsel for the applicant in the case of Satish Chandra Omar (supra) are different, as no notification under Sub-section 1(4) of Section 4 of the Army Act, 1950 had been issued in respect of the applicant of the said case.
11. The decision of the Apex Court in the case of Union of India v. S. B. Mishra (supra) cited by the learned Counsel for the applicant is also of no help to the applicant. In the cited case, the question was regarding supply of copy of enquiry report as Article 310(1) expressly excluded the applicability of provisions of rules to the defence personnel.
12. The case of Rahmalullah Khan (supra) also differs on facts as the question involved there was jurisdiction of the Tribunal in respect of a casual labour employee in the railway department,
13. Another preliminary objection has been taken by the respondents that the O.A is barred by limitation in view of Section 21 of the Administrative Tribunals Act, 1985. The order of punishment was passed in August, 1990. The same has been challenged by the applicant by filing the present O.A. in the year 1994. Section 21 of the A.T. Act provides one year's limitation. In case, however, any statutory representation is made and is not decided within six months, the period of one year limitation would get extended to six months. The present O.A. was filed in 1994 against the impugned order of August, 1990. There is nothing on record to show that any appeal was preferred, hence the O. A. is clearly barred by limitation.
14. The case of the applicant has also been examined on merit. The applicant was granted 60 days' leave w.e.f. 13.2.89 to 13.4.89. Though the applicant applied for extension of time of 30 days, but the same was not extended by the competent authority on account of exigency of service. The applicant was informed to resume duty on the due date vide communication dated 20th April, 1989. The applicant, however remained absent without leave. Consequently, the applicant as well as his wife Smt. Ram Kali were informed through telegrams requesting that the applicant be directed to report for duty. The applicant's son SatishChandra Mishra (now substituted in place of the deceased employee) was also informed about the unauthorised absence of the applicant. Satish Chandra Mishra informed the unit that the applicant would be reaching the unit upto 15.1.90. Even thereafter, the applicant failed to resume his duty. The unit sent a registered letter again to the applicant on his registered address to report for duty within 10 days, otherwise steps would be taken under C.C.S. (C.C.A.) Rules, 1965. The applicant again failed to appear, hence notice was published in the Newspaper in circulation in the applicant's home town/ district (copy Annexure C-7), All this shows that despite the above mentioned repeated messages, publication in the Newspaper, the applicant did not report for duty. Even after the applicant's son communicated that his father would report for duty, the deceased employee failed to report for duty. It was in these circumstances, that the charge sheet was sent to the applicant by registered post and after following due procedure, ex parte enquiry was initialed against the applicant and finally, the enquiry report alongwith show cause was sent to the applicant and thereafter the impugned order of dismissal was passed.
15. Counsel for parties have been heard on merit. No flaw in the procedure followed by the respondents before imposing the penalty has been pointed out. The submission of the learned Counsel for the applicant is that the applicant was not informed about the departmental proceedings and the departmental proceedings is ex parte. Further submission is that it is only by Annexure A-3 that the applicant could know about his dismissal order.
16. We have considered the submissions made on behalf of the Counsel for the applicant and we do not find any merit in the same. It is on record that registered notices were issued by the Unit. The applicant's son was informed, who on his turn informed the unit that the applicant would report for duty. This shows that the information about the unauthorised absence of the applicant and for proceedings against him had reached the applicant also in the year 1990. Publication was made in the Newspaper also. The process taken by the respondents to inform the applicant about his unauthorised absence is more than sufficient. The submission that the applicant could know about his dismissal order only through Annexure-3 dated 19th October, 1993 has no merit. In Annexure-3 where information was given to the applicant about the payment of dues, it was mentioned with reference to a petition sent by Ram Kali, the widow of the deceased employee to the Home Minister that the applicant has been already dismissed and the information thereof was already sent to Ram Kali earlier. Mere mention of this fact in Annexure-3 would not give rise further cause of action to extend the period of limitation. Thus, the submission of the learned Counsel for the applicant has no merit. It is also relevant to mention here that repeated representations provide no cause of action for limitation as has been observed by the 7 Judges decision of the Apex Court in the case of S.S. Rathore v. State of M.P, 1989(4) SCC 582=1990(1) SLJ 98 (SC). The relevant para 20 is quoted below :
"We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of a, six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle."
17. The learned Counsel for the applicant has placed reliance on the decision of Kartar Singh (supra) that removal from service due to unauthorised absence is disproportionate. The facts of the case of Kartar Singh are different from the facts of the present case, firstly because in the case of Kartar Singh the applicant therein who was serving at Railway Staff College, was absent for 41 days on 5 occasions and earlier period of absence was also taken into account, for which the applicant had been sanctioned leave. In the present case, the applicant, is in the service of the G.R.E.F. which is an integral part of the Armed Forces, for purpose of attracting the role he is called upon to play in relation to Armed Forces. The mere fact that the applicant was a non combatent civilian governed by the Central Civil Services (C.C. A.) Rules, 1965, would not put the applicant on a different footing, as regards the discipline of the Army is concerned. In our view, therefore, on merit also the O.A. fails.
18. In view of the above, the O.A. is dismissed. Costs easy.