Central Administrative Tribunal - Mumbai
Harihar Anandrao Lambodari vs Cgst on 1 March, 2023
1
OA No.789 /2021.
Central Administrative Tribunal
Mumbai Bench.
O.A. No. 789/2021.
Order Reserved on 24th January, 2023
Order Pronounced on 1st March, 2023
Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
Hon'ble Dr. Bhagwan Sahai, Member (A)
Shri. Harihar Anandrao Lambodari,
Age 60 years, Ex-Superintendent,
CGST & C. Ex., Audit-II, Mumbai.
R/at: Flat No. 602/A Bldg., No. 7/,
Amrut Park, Khadakpada, Kalyan
(W)-421301. Mobile:9029600266.
Email:[email protected].
...Applicant
(By Mr. V.A. Nagrani, Advocate)
Versus
1. Union of India, Through its Secretary, Ministry of
Finance, North Block, New Delhi-110001.
2. The Principal Chief Commissioner, CGST & Central
Excise, Mumbai Zone, 4TH Floor, GST Bhawan,
Maharashi Karve Road, Opp. Churchgate Railway
Station, Mumbai-400022.
3. The Secretary, Central Board of Excise & Customs,
North Block, New Delhi-110001.
4. The Commissioner, CGST & Central Excise, Audit-II
Mumbai, 30th Floor, Centre-1, Bldg., World Trade
Centre, Cuffe Parade, Mumbai-400005.
5. Shri. Satish V. Shitole, Deputy Commissioner, Inquiry
Officer, Office of The Assistant/Deputy
Commissioner, Central GST & Central Excise, Vasai
Division, Palghar Commissionerate, 2nd Floor,
2
OA No.789 /2021.
Khodiyar Bhavan, Above ICICI Bank, Manikpur
Road, Vasai (West), District Palghar-401202.
...Respondents
(By Mr. R.R. Shetty, Advocate)
ORDER
Per: Hon'ble Mr. Justice M.G. Sewlikar In this application, the applicant is seeking the relief of quashing the charge sheet dated 31st May, 2021.
Relevant facts can be stated briefly thus:
1. The applicant belongs to Halba Community which is notified as Scheduled Tribe at Sr no. 19 in the list of Scheduled Tribe of Maharashtra State vide Scheduled Caste/ Scheduled Tribe (Amendment) Act, 1976 dated 18th September 1976 published in the Gazette of India dated 20 September, 1976.
2. On the basis of the Caste Certificate of Halba Community, the applicant came to be appointed as Upper Division Clerk (UDC) on 20th August, 1990 in the Central Excise Department and was promoted as Tax Assistant in the year 1993. The applicant was further promoted to the post of Inspector in the year 1995. He was promoted to the post of Superintendent in the year 2015.
3. It is the case of the applicant that he belongs to Halba Community and not to Halba Koshti.
4. The respondents started demanding Caste Certificate Validity from the applicant for his claim of belonging to Halba 3 OA No.789 /2021.
Community. The respondents issued several letters to the applicant calling upon him to produce the Caste Certificate Validity. The applicant replied to these letters contending therein that there was no provision to ask for Caste Certificate Validity in Central Government and only requirement was to get the Certificate verified as per Department of Personnel and Training (DOPT) Office Memorandum. The applicant had intimated the respondents that he would not like to avail any future promotional benefits on the basis of his Caste. Therefore, there was no question of calling upon him to get the Caste Certificate Validity. It is further alleged that the respondents before 5 days of the retirement of the applicant issued a letter to the applicant calling upon him to produce Caste Certificate Validity immediately failing which disciplinary action would be initiated against him.
5. It is the case of the applicant that he superannuated on 31st May, 2021 A.N and accordingly release order dated 31 st May, 2021 was issued. After release, a function was organized and after the function was over and the applicant was about to leave, he was served with chargesheet dated 31st May, 2021 at about 06:00 P.M in which it was alleged that the applicant had failed to maintain absolute integrity violating the law and failed to maintain high ethical standards and morality by falsely availing of reservation meant for Scheduled Tribes. On 19th July, 2021 Disciplinary Authority appointed Enquiry Officer and Presenting Officer pursuant to the said chargesheet. Enquiry Officer and Presenting Officer came to be appointed in violation of the rules. On 19th October, 2021 applicant pleaded not guilty and requested for inspection of 4 OA No.789 /2021.
documents. According to the applicant since the applicant had retired, enquiry cannot be initiated under Rule 14 of Classification, Control and Appeal (CCA) Rules, 1965 instead of Rule 9 of Central Civil Services Benefit Rules (CCA Benefit Rules). He contended that the applicant had sought time. Initially time was granted. On the next date also, he sought time for filing reply. The applicant on 13th July, 2021 had requested grant of 15 days time to submit his written statement. Instead of considering the request of extention of time, the respondents appointed the Enquiry Officer and Presenting Officer which is in violation of the CCA Rules. He further contended that it is improper for the respondents to ask the applicant to produce Caste Certificate Validity after 30 years. There is no provision to get the Caste Certificate validated in Central Government. It is the responsibility of the department to apply to Caste Scrutiny Committee for validation of the Caste. The applicant is being unnecessarily harassed for not producing the Caste Certificate Validity. On these allegations he has sought to quash the chargesheet.
6. The respondents filed their reply. In reply it is contended that the applicant obtained the employment claiming himself to be a person belonging to Halba Scheduled Tribe. By availing of the reservation as ST category, he obtained promotions to the posts of Tax Assistant, Inspector and Superintendent on various dates. The applicant was called upon 11 times to get his Caste Certificate duly verified by the Caste Scrutiny Committee during the period from 16th June, 2018 to 25th May, 2021.On 25th May, 2021 another letter was given to the applicant calling upon him to produce Caste Certificate Validity. The applicant 5 OA No.789 /2021.
answered and claimed that the he is not liable to get the Caste Certificate validated and he does not wish to take any further reservation. The applicant has thus, admitted that he belongs to Halba ST Community. The chargesheet was served on the applicant well before 6 P.M on 31st May, 2021. Chargesheet on account of non-production of Caste Certificate Validity was served on the applicant. The applicant did not raise this question before the Enquiry Officer. For the first time this issue is being raised in the OA which is not permissible. The applicant had informed vide letter dated 7th October, 2014 that he did not want to avail of the benefit of Caste for the promotion any further. 11 letters have been addressed to the applicant calling upon him to produce Caste Certificate Validity and was informed that if Caste Certificate Validity is not produced, disciplinary action would be initiated against him. The applicant kept on avoiding these letters and did not produce the Caste Certificate Validity. The applicant was reminded 11 times to produce Caste Certificate Validity but he did not do so. Chargesheet was served upon the applicant well before 06:00 P.M. A Government servant remains in Government service till the last date of his service before` retirement. The applicant was on duty till he was not relieved on 31st May, 2021. The applicant during the course of the enquiry had addressed 4 letters to the Enquiry Officer and sought extention of time. In none of these letters he claimed that chargesheet was served on him after 06:00 P.M. The officers who served the chargesheet on the applicant are ready to file affidavit to that effect. It was served on the applicant at 04:30 P.M. In terms of The Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes 6 OA No.789 /2021.
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, the applicant ought to have applied to the Caste Scrutiny Committee for validating his caste. It is not the responsibility of the employer but is the responsibility of the employee himself. The applicant did not make any application to the Caste Scrutiny Committee and failed to produce his Caste Certificate Validity. Therefore, enquiry had been ordered against him. The applicant had been asked for verification of his Caste Certificate by filing online application. He failed to complete the same as he did not upload documents for the period prior to 1st June, 2015 to Scrutiny Committee. The onus to get the certificate verified from the Caste Scrutiny Committee is on the applicant but he did not discharge his burden. The applicant is falsely claiming that the onus of getting the caste verified is on the appointing authority and not on the employee. Respondents, therefore, prayed for dismissal of the application.
7. Applicant has filed rejoinder. In the rejoinder, the applicant contends that on 7th October, 2014 he had intimated the respondents that he would not want to avail of any promotional benefits of reservation. Therefore, action of the respondents calling upon him to produce Caste Certificate Validity is wholly unwarranted. He further contended that in terms of Rule 56(a) a Government servant retires with effect from the afternoon of the last day of the month in which his date of retirement falls. In terms of the release order, the applicant retired on 31st May, 2021 (A.N). According to the applicant after 12 noon he was no longer in Central 7 OA No.789 /2021.
Government service. Therefore, service of the chargesheet on him after 12 noon is not a good service as he did not remain a Government servant after 12:00 P.M. Therefore, service of chargesheet before 06:00 P.M on 31st May,2021 is not a good service because after retirement enquiry can be initiated only with the approval of the President of India.
8. According to the applicant in terms of the Rules, the employer has to get the certificate of Validity from the Caste Scrutiny Committee. Onus is on the respondents to obtain the Caste Certificate Validity from the Caste Scrutiny Committee. He further contended in the rejoinder that from the letters annexed by the respondents it is clear that up to 8th December, 2020 the respondents had always insisted on the applicant to submit the application i.e. E & F Form for completing Caste Certificate Validity process. For the first time on 9th December, 2020 the respondents called upon the applicant to submit Caste Certificate Validity immediately failing which disciplinary action would be taken against him. It is further contended that the issue of application of provisions of the Act to the Central Government employees is pending before the Bombay High Court and, therefore, it is not proper to proceed with the enquiry till a decision is rendered by the Bombay High Court.
9. In the reply to rejoinder, the respondents contended that the applicant has misinterpreted the term 'Afternoon' by restricting it to the time '12:00 P.M'. The term 'Afternoon' has not been defined in Fundamental Rules. As per Merriam- Webster Dictionary, the definition of 'Afternoon' is the period that starts at about twelve o'clock or after the meal in the 8 OA No.789 /2021.
middle of the day and ends at six o'clock or when the sun goes down. The applicant was on active Government duty till he was not released by a release order dated 31st May, 2021.
10. We have heard Mr. Vicky Nagrani, learned counsel for the applicant and Mr. R.R. Shetty, learned counsel for the respondents.
11. Mr. Vicky Nagrani, learned counsel for the applicant submitted that the applicant retired on 31st May, 2021. He was served with the release order which shows that the applicant stood retired with effect from afternoon of 31st May, 2021. Afternoon means after 12:00 P.M. He submitted that in terms of Fundamental Rules 56 (A) of Government of India and as per the release order dated 31st May, 2021, the applicant stood retired on superannuation with effect from 12:00 noon on 31st May, 2021. Therefore, after the clock stuck 12 noon, the applicant stood retired. He was not a government servant thereafter and, therefore in terms of Rule 14 of CCS(CCA) Rules, 1965 chargesheet can be served only on Government Servant. If he was not a government servant after 12:00 P.M. chargesheet can be issued under Rule 9 of CCS (CCA) Rules only with the approval of the Hon'ble President of India. Since no sanction from the Hon'ble President of India was taken, initiation of enquiry under Rule 14 of CCS (CCA) Rules is by incompetent authority. On this very ground the chargesheet deserves to be quashed.
12. He further submitted that the applicant was called upon to furnish Caste Certificate Validity after a period of 28 years. He had intimated his department on 31st May, 2018 that he would not like to avail of any promotional benefits on the basis 9 OA No.789 /2021.
of his caste. Since the applicant did not take benefit of his Caste, the action of the respondents calling upon him to produce Caste Certificate Validity was unwarranted. Moreover, in terms The Act, 2000 ( for short), it is not the duty of the applicant to apply for Caste Certificate Validity but it is the duty of the respondents to apply to the Caste Scrutiny Committee for getting the Caste Certificate Validity. Therefore, asking the applicant to produce Caste Certificate Validity is against the provisions of the Rules. Therefore, chargesheet served in violation of the provisions of the Act, 2000 cannot be sustained. He further submitted that the applicant was a Central Government servant. A Central Government servant does not come within the ambit of The Act, 2000 ( for short). This issue has been pending before the Bombay High Court. Till a decision is rendered by the Bombay High Court, respondents are not competent to initiate enquiry against the applicant.
13. The learned counsel placed reliance on the case of Rajendra Shivaji Sonkusale Vs. Union of India and ors. Writ Petition No. 10618 of 2019, Bombay High Court decided on 21st November, 2019 to submit that the onus is on the respondents i.e. the employer to apply to the Caste Scrutiny Committee. He further submitted that on 8th December, 2022 Department of Atomic Energy has issued Office Memorandum that the issue of non- submission of Caste Certificate Validity by an employee, Constituent Units/PSUs and Aided Institutions of this Department are advised to keep any termination proceedings, if initiated, 'on' hold pending receipt of clarification from DOPT. He submitted that in view 10 OA No.789 /2021.
of this memorandum, the enquiry deserves to be stayed till the receipt of opinions from the Department of Legal affairs.
14. Mr. R.R. Shetty, learned counsel for the respondents submitted in terms of 56(a) of Fundamental Rules, a Central Government servant stands retired on the last day of his service on afternoon. The interpretation placed by the Learned counsel for the applicant does not hold any water. The period of afternoon begins from 12 noon and ends at 6:00 P.M. in the evening and in some cases till midnight. Therefore, service of chargesheet on the applicant at 4:30 P.M was service on the government servant. Till 6:00 P.M., the applicant was a government servant.
15. He further submitted that the applicant was called upon multiple times to apply to Caste Scrutiny Committee for producing the Caste Certificate Validity. 11 such letters were addressed to the applicant. However, applicant did not take cognizance of the same and did neither apply nor did he submit the Caste Certificate Validity. The applicant was being asked to produce the certificate since the year 2018. He submitted that the Caste Scrutiny Committee applies to Central Government employees also. Rule 6(3) contemplates that any Central, State or Local Authority servant shall apply to the Caste Scrutiny Committee for getting Caste Certificate Validity . This issue is pending before the Bombay High Court. However, that does not mean that the enquiry shall be kept on hold till the decision of Bombay High Court.
16. According to Mr. R.R. Shetty, learned counsel for the respondents it is the duty of the applicant to apply to the Caste Scrutiny Committee for getting the Caste Certificate Validity.
11OA No.789 /2021.
Even otherwise he was asked to furnish information in E&F Form so as to enable the department to apply for Caste Certificate Validity but the applicant did not respond. According to him, therefore, the enquiry cannot be stayed. He submitted that the Office Memorandum which has been relied upon by the learned counsel for the applicant cannot be looked into.
17. We have given thoughtful consideration to the submissions made by learned counsel on both the sides. It is not in dispute that the last date of service of the applicant was 31st May, 2021. Release order is placed on record. It is produced herein for facility of reference:
''In pursuance of Memorandum dated 24.05.2021 under the provision of F.R. 56 (a) of Government of India F.R. 1972 as amended by notification No. 25012/2/97-Estt. (a) dated 13.05.1988, Shri. H.A. Lambodari, (D.O.B-
12.05.1961) Superintendent, GST (Audit-
II) Mumbai is retiring on Superannuation w.e.f. 31.05.2021 A/N. He is hereby relieved on 31.05.2021 A.N. He is directed to surrender Identity Card, CGHS Card if any, on the date of release i.e. 31.05.2021 A.N. Any equipment officially allotted to them, must be surrendered on 31.05.2021. This issues with the approval of Commissioner.''
18. F.R. 56(a) Reads thus:
''Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of 12 OA No.789 /2021.
the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.
Provided further that a Government servant who has attained the age of fifty-
eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service.
Or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years.
(b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
(bb) The age of superannuation in respect of specialists included in the Teaching, Non-Teaching and Public Health Subcadres of Central Health Service shall be 62 years."
19. Thus, F.R. 56 (a) states that a Government servant shall stand retired on the afternoon on the day of the month in which he attains the age of 60 years. The word 'afternoon' has not been defined anywhere. Therefore, aid from law dictionary will have to be taken to understand the meaning of word 'afternoon'. When this word is used in a statute its meaning must be determined by the context and the circumstances of the subject matter. In the case at hand "afternoon" is used in a 13 OA No.789 /2021.
statute i.e. Fundamental Rules. In Mitra's Legal and Commercial Dictionary afternoon is defined thus:
"It may mean the whole time from noon to midnight or it may mean the earlier part of that time, as distinguished from the evening. The meaning must be determined by the context"
20. In Law Lexicon, 1985 edition 'afternoon' has been defined as that part of the day which follows noon, between noon and evening. In view of the above, afternoon covers the entire period from 12:00 noon to 6:00 P.M. The working hours of the Central Government are from 09:30 A.M. to 6:00 P.M. So the afternoon covers the period from noon to the end of the working hours i.e. from 12:00 to 6:00 P.M. If the interpretation as is contended by the learned counsel for the applicant is placed, it will lead to absurd results. If it is Accepted that an employee stands retired on the afternoon i.e. when the clock strikes 12: 00 P.M, it would mean that the employee was working for a part of the day and for the remaining part of the day he did not work as he had retired. Therefore, the word afternoon has to be interpreted as 12:00 noon till the end of the working hours. It cannot be countenanced that an employee will work for a part of the day and for the remaining part of the day, he has retired. Therefore, interpretation as contended by the applicant cannot be accepted.
21. Mr. V.A. Nagrani, learned counsel for the applicant placed reliance on the case of Union of India & Ors. Vs. Sri. Babu Joseph S/0 Sree Late V.O. Joseph, Writ Petition No. 51898/2015(S-CAT), Karnataka High 14 OA No.789 /2021.
Court Dated 4th January, 2016 for the proposition that after retirement a government servant does not remain a government servant and service of chargesheet on him is not a service on government servant. This decision of the Karnataka High Court has no application to the facts of the case in hand. In that case the Government servant retired on 31st March, 2013 and chargesheet was served on him at 23:25 hours i.e. after 6:00 P.M. This is not the factual position in the case at hand. Chargesheet was served on the applicant before 6:00 P.M. at 4:30 P.M. i.e. when he was still a Government servant.
22. According to the applicant it is the responsibility of the respondents to apply to the Caste Scrutiny Committee for the Caste Certificate Validity. Reliance was placed on Rule 6 (3) of The Act, 2000. It states that the appointing authority of the Central Government, State Government, local authority shall make an application to the Caste Scrutiny Committee for the verification of the Caste Certificate and issue of Caste Certificate Validity in case a person selected for the appointment with the Government, local authority, etc has not obtained such certificate. It is worth noting that the respondents had called upon the applicant to submit Form E & F for Caste Certificate verification to the office of the respondents. This letter was issued on 26th April, 2018 and again on 17th August, 2018. It is not the case of the applicant that he has submitted Form E &F to the respondents. Form E & F are annexed by the respondents. It contains some personal information which only the applicant can furnish. Since applicant did not furnish the information required in Form E & F, naturally respondents could not forward the information to 15 OA No.789 /2021.
the Caste Scrutiny Committee. The responsibility of the competent authority comes into picture only when the employee i.e. the applicant discharges his burden of supplying the information required in Form E & F. Hence if the applicant does not furnish the required information, the competent authority cannot forward the application to the Caste Scrutiny Committee for the verification of Caste Certificate Validity. Therefore, even if the arguments of Mr. Vicky Nagrani, learned counsel for the applicant are accepted that the responsibility is of the competent authority/employer to apply to the Caste Scrutiny Committee, it has to be rejected as the applicant did not provide the information sought by the competent authority. The conduct of the respondents would have been blameworthy if the applicant had furnished the information to the respondents and they thereafter had failed to make application to the Caste Scrutiny Committee. In the case at hand the competent authority was unable to make application to the Caste Scrutiny Committee for want of information contained in form E & F. Nothing is placed on record to show that the applicant had furnished the required information for filling Form E & F. Therefore, no fault can be found with the respondents for not making application to the competent authority.
23. The respondents have contended in their reply that the applicant had made application to the Caste Scrutiny Committee but that application came to be rejected as he applicant did not provide the necessary documents. The statement of article of charge also indicates that the applicant had submitted online application to the Caste Scrutiny 16 OA No.789 /2021.
Committee and had also annexed copy of the same. The applicant has not denied these allegations in his rejoinder. Therefore, these allegations are deemed to have been admitted Therefore, the irresistible conclusion is that the applicant did not provide Caste Certificate Validity despite giving him several opportunities.
24. True it is that the applicant had informed the respondents that he was not seeking any benefit in promotion by communication dated 07th October, 2014. However, the applicant had obtained the employment on the basis of his caste. He got promotion on the basis of his caste. Therefore, there is no force in the contention of the learned counsel for the applicant that the applicant did not derive any benefit on the basis of his caste and therefore, it was not necessary for him to provide Caste Certificate Validity.
25. It is not in dispute that the issue whether the The Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 is applicable to the Central Government employees is pending before the Bombay High Court. The applicant has placed reliance on the Judgement in the case of Adivasi Samaj Kruti Samiti & Ors. Vs. Union of India, through the Secretary & Ors, W.P. No. 7036/2012, Bombay High Court, dated 23rd October, 2013 in which following observations are made:
''Thereafter, a legislation in the form of The Maharashtra Scheduled Castes, 17 OA No.789 /2021.
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as "the said act") was brought into force in the state with effect from 18th October, 2001. Even the said act provides that the caste certificates issued by the competent authority in accordance with section 4(1) thereof are not conclusive and the same are subject to verification by the Scrutiny Committee. It will be necessary to make a reference to Section 6 of the said Act. Sub-section (3) is relevant for all purposes which read thus:
"6. (1).............
(2).............
(3) The appointing authority of the Central or State Government local authority, public sector undertakings, educational institutions, Co-operative societies or any other Government aided institutions shall make an application in such form and in such manner as may be prescribed by the Scrutiny Committee for the verification of the Caste Certificate and issue of a Validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions who has not obtain such certificate."
Sub-section (3) is applicable even to the Union of India. In view of Sub-section (3) of Section 6, the appointing authority of the Central Government is under an obligation to make an application in appropriate form to the Scrutiny 18 OA No.789 /2021.
Committees for verification of the caste certificates of the persons selected for appointment. Thus, the appointing authority of Union of India will have to follow the mandate under Sub-section (3) of Section 6. In case claim of the concerned employee is found to be false by the Caste Scrutiny Committee.
Section 10 of the said Act provides for mandatory consequences. The consequences are such as termination of employment, return of benefits received etc.''
26. From these observations it is clear that Sub-section (3) of Section-6 is applicable even to the Union of India authorities. The appointing authority is under an obligation to make an application in appropriate form to the Caste Scrutiny Committee for verification of the Caste Certificate for the person selected for appointment. The responsibility of the Union of India comes into picture only when the applicant/employee furnishes the information as required in Form E & F. So long as this information is not furnished, employer cannot make application to the Caste Scrutiny Committee.
27. In view of what is discussed hereinabove, it is clear that the applicant did not furnish the Caste Certificate Validity. Therefore, the chargesheet cannot be quashed. Application is, therefore, devoid of any substance. Hence, OA No. 789/2021 is dismissed.
28. MA Nos. 459/2022 & 546/2022 stand closed.
(Dr. Bhagwan Sahai) (Justice M.G. Sewlikar)
Member (A) Member (J)
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OA No.789 /2021.
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