Central Administrative Tribunal - Lucknow
Dr. P.V. Jaganmohan vs Union Of India Through Secretary on 25 April, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. Original Application No. 215 of 2012 Reserved on 29.3.2016 Pronounced on 25.4.2016 Honble Mr. Navneet Kumar, Member-J Honble Ms. Jayati Chandra, Member-A Dr. P.V. Jaganmohan, aged about 53 years,S/o Sri P.C. Vishwanathan, R/o B-201, CSIR Tower, Gomti Nagar, Lucknow .Applicant By Advocate : Sri A.P. Singh Versus. 1. Union of India through Secretary, Ministry of Personnel, Public Grievances &pensions (Department of Personnel & Training), New Delhi. 2. Joint Secretary in the Ministry of Commerce & Industry, Department of Commerce, New Delhi. 3. Under Secretary, Ministry of personnel, Public Grievances & Pensions (Department of Personnel & Training), New Delhi. 4. State of U.P. through the Principal Secretary in the department of Appointment, Civil Secretariat, Lucknow. .Respondents. By Advocate: Sri H.G. Upadhayay for R-1 to R-3 and Sri Himanshu Gupta for Sri S. Seth for R-4 O R D E R
By Ms. Jayati Chandra, Member-A The applicant has filed this O.A. under Section 19 of Administrative Tribunals Act, 1985 seeking following relief(s):-
(i) to quash/set-aside the Memorandum dated 28.11.2011 issued by Government of India contained in Annexure no.1 including entire disciplinary proceedings on the basis thereof with all benefits of service namely promotion to the post of above Super Time Scale of service and empanelment as Joint Secretary to Government of India without reference to the order/Memorandum contained in Annexure no.1.
(ii) issue direction to the respondents to open the sealed cover/declare result containing the recommendations of Departmental Promotion Committee/Selection Committee relating to promotion of the applicant to the post above Super Time Scale (Principal Secretary to U.P. Government) without reference to the chargesheet and act accordingly and to consider empanel the name of the applicant to the post of Joint Secretary to Government of India without reference to the order/ Memorandum impugned in the Application, with all benefits of service.
(iii) Issue such other writ, order or direction, which may be deemed just and proper in the circumstances of the case and ;
(iv) Allow the Original Application with costs.
2. The facts, as averred by the applicant, are that he belongs to 1987 batch of Indian Administrative Service (IAS) borne on U.P. cadre. He was approved for Central deputation for a period of five years by order dated 11.10.2004 on the post of Joint Development Commissioner (JDC) in the Special Economic Zone (SEZ), Chennai. The said post is a Director level post under the Ministry of Commerce and Industries (Department of Commerce). He joined the said post on 30.3.2005. Thus, his deputation period of five years was counted from 30.3.2005 to 29.3.2010. He applied to Ministry of Commerce (respondent no.2) through his letter dated May, 2007 for pre-mature repatriation to his parent cadre as his batch mates had been promoted for posting at Joint Secretary level at the Centre. He was, therefore, incurring financial loss on continuing at a Director level post at SEZ, Chennai. Meanwhile, new Government came power in U.P. and his services were urgently required. He joined as Divisional Commissioner, Jhansi on 28.6.2007 as he had been asked by the State Government to do so in view of emergent drought situation there. The respondent no.2 had accepted his request for pre-mature repatriation in principle and by their letter dated 27.6.2007 (Annexure no.2) sought formal approval of the competent authority from the respondent no.1 i.e. DoP&T. The Ex-post facto approval of Appointment Committee of Cabinet (ACC) for pre-mature repatriation w.e.f. 5.6.2007 i.e. the date from which he stopped attending the office at SEZ, Chennai was accorded to him by letter dated 13.3.2008. Despite that, Ministry of Commerce sought his explanation for reverting to the State Government without formal order. He explained the State Government which had directed him to join at Commissioner, Jhansi as there was severe drought. Being satisfied, the respondent no.2 vide his order dated 25.2.2009 (Annexure no.4) accepted his explanation and simply issued him with an advisory for being more careful in future. Now five years after the alleged lapse on his part, he has been charge-sheeted vide impugned order dated 28.11.2011 for the same cause of action, which stands finalized through order dated 26.2.2009. Further, this action on the part of the respondent no.1 is not tenable in view of the fact that the chargesheet has not been approved by the competent authority i.e. Minister In-charge/Prime Minister. As a consequence of this impugned order, the case of the applicant for promotion to above Super Time Scale of Rs. 67000-79000/- had been kept in sealed cover for two successive DPCs held in the year 2012 and 2013. Consequently, his juniors have been promoted vide order dated 11.5.2012. He was also not considered for empanelment by the Centre for deputation to Joint Secretary level post.
3. Vide interim order dated 23.7.2012 sealed cover envelop was directed to be opened. The sealed cover envelop was opened only after contempt petition was filed and he has been promoted to the post of Principal Secretary in the pay scale of Rs. 67000-79000/- vide order dated 31.7.2015.
4. The respondent nos. 1 to 3 have filed their Counter Reply contesting the claim of the applicant through which they have stated that the applicant was approved for Central deputation by ACC for a fixed period of five years from the date of joining i.e. 30.3.2005 to 29.3.2010. The applicant could have been repatriated pre-maturely anytime within the deputation period only after the approval of ACC as laid down in DoP&T O.M. dated 15.10.1997. Admittedly, the applicant had given an application dated 31.3.2007 seeking pre-mature repatriation to his parent cadre. This application was received by the respondent no.2 i.e. Ministry of Commerce on 5.6.2007. The applicant met his superior i.e. Controller of SEZ, Chennai on 4.6.2007 and expressed his desire to be repatriated. On his own, the applicant stopped coming to the office from 5.6.2007. It is only when the applicant applied for issue of Last Pay Certificate (LPC) and salary for the month of June, 2007 and met the Controller, SEZ, Chennai on 27.9.2007 that he informed the Controller that he had already joined the State Government and has been posted as Divisional Commissioner, Jhansi w.e.f. 28.6.2007. The application of the applicant for pre-mature repatriation had been forwarded to DoP&T by letter dated 27.6.2007. The matter was put up to ACC and ex-post facto approval for repatriation of the applicant to State Government from the date the applicant had stopped attending the office i.e. 5.6.2007 was accorded vide letter dated 13.3.2008. The ACC while giving its approval had directed that suitable disciplinary action be taken against the applicant for not attending his office without being formally relieved and also take suitable action against erring officers in the SEZ, Chennai, who had failed to bring the matter of the applicant for not attending his office to the notice of respondent no.2. The respondent no.2 sought explanation of the applicant vide letter dated 24.4.2008 (Annexure CA-2). The applicant submitted his reply (Annexure CA-3) in which he explained that he had been contracted the new Government and was informed that his services are urgently required and he was advised by U.P. Government to immediately join at Jhansi. He also apologized for and regretted any negligence on his part. It is to be noted that the respondent no.4 i.e. State Government never gave any written requisition for the services of the applicant nor even endorsed the explanation submitted by the applicant.
5. The respondent no.2 accepted the explanation and issued an advisory letter dated 26.6.2009. However, when the ACC was advised of the action so taken by the respondent no.2 in compliance of the decision and direction to take disciplinary action against the applicant, the ACC was not satisfied with the action taken accorded directed that disciplinary action be initiated against the applicant. The said direction is incorporated in the Memo dated 31.1.2010 (Annexure CA-4). Thereafter, DoP&T (respondent no.1) sought the recommendation of respondent no.2 i.e. Ministry of Commerce as to the nature of disciplinary action be taken (minor or major) with the approval of competent authority i.e. Minister of Commerce. They also required the draft charge memo from respondent no.2. All these formalities took some time. Finally, the decision to initiate minor penalty proceedings was approved by the Minister of Commerce and the same was approved by the Prime Minister as Minister In-charge and the O.M. dated 28.11.2011 was issued to the applicant. Further, it is stated that the applicant has already given his reply to the charge memo by letter dated 26.11.2012 and the disciplinary authority has referred the matter to UPSC for its advice regarding quantum of punishment. A reference was made on 25.4.2012. As per advice of UPSC, Department of Commerce (respondent no.2) vide its letter dated 2.7.2013 (not annexed) has already withdrawn its advisory letter dated 26.6.2009.
6. Further, the respondents have relied upon catena of decisions of Honble Supreme Court namely in the case of Union of India & Another Vs. Kunisetty Satyanarayana reported in AIR 2007 14 SC 906 in which it has been held that mere a chargesheet or show cause notice does not give rise to any cause of action because it does not amount an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. In the cases of Executive Engineer, Bihar State Housing Board Vs. Ramdesh Kuamr Singh & Others (JT 1995) 8 SC 331, Special Director & Another Vs. Mohd. Ghulam Ghouse & Another (AIR 2004 SC 1467), Ulagappa & Others Vs. Division Commissioner, Mysore & Others (2001) 10 SCC 639), State of U.P. Vs. Brahm Dutt Sharma & Another (AIR 1987 SC 943) the Honble Supreme Court has held that ordinarily no writ petition should be entertained against a mere show cause notice. The judicial intervention in disciplinary case is warranted only after the entire proceedings have been concluded and charged officer has been awarded minor or major penalty.
7. The respondent nos. 1 to 3 have stated that keeping of recommendations of DPC in the case of an officer, who has been charge-sheeted once again is not in the nature of denial of legitimate dues. The policy for adopting sealed cover procedure is laid down in Rule 11 of IAS (Promotion) Rules. The said Rules provide that on completion of disciplinary proceedings if an officer is found to be exonerated from all charges, his promotion is governed by the recommendations of the committee and incase he has been found fit for promotion, the same is accorded to him from due date and he is given the benefit of promotion to the higher scale as accorded to his next immediate junior. In any case, in the instant case, in view of interim order dated 23.7.2012, the sealed cover envelop had already been opened and the applicant has been given the benefit of his promotion. Thus, in view of the fact that the approval of the competent authority has been obtained on each stages of the proceedings and the O.A. merits to be dismissed.
8. The respondent no.4 has filed his Counter Reply wherein he has stated only with regard to factum of sealed cover proceedings and on opening of the same. Consequent upon the advice obtained from DoP&T (respondent no.1), the applicant has been promoted in above Super Time Scale.
9. The applicant has field Rejoinder Reply denying the contention so raised by the respondents in their Counter Replies and has reiterated the averments already made in the O.A.
10. Learned counsel for the applicant has placed reliance the following case laws in support of his case:
(i) Union of India & Others Vs. B.V. Gopinath reported in JT 2013 (12) SC 392.
(ii) Vijay Shanker Pandey Vs. Union of India & Another reported in JT 2014 (10) SC 541.
(iii) Chhedi Lal Vs. Union of India & Others (CAT PB in O.A. No. 1377/2008 decided on 26th February, 2009)
11. In the case of B.V. Gopinath (supra), the Honble Supreme Court has held that under CCS (CCA) Rules, 1965 a chargesheet is required to be approved by the Minister In-charge being the appointing authority.
12. In the case of Vijay Shanker Pandey (supra) the Honble Supreme Court has held that there can be only one enquiry and second enquiry can be possible under the certain circumstances only. In the instant case, once the matter has been concluded with advisory letter issued to him vide order dated 26.2.2009, there is no further cause of action initiating the second disciplinary proceedings.
13. In the case of Chhedi Lal (supra), the Principal Bench of the Tribunal after relying upon the various decisions of Honble Supreme Court had quashed the chargesheet.
14. We have heard the learned counsel for the parties and have also perused the pleadings available on record.
15. From the rival submissions of the parties, it is clear that the applicant was under fixed period of deputation to the Central Government from 30.3.2005 to 29.3.2010. The formal approval for Central deputation in the case of I.A.S. requires to be approved by ACC. It is also clear that in case of any reversion to State within the period of deputation on whatsoever ground, as the case may be, the same is to be accorded approval of ACC. In the instant case, the applicant stopped coming to office w.e.f. 5.6.2007 and went back to State Government without formal approval or without formally having been relieved by the Controlling Officer. It is remarkable that the officer was allowed to give his rejoining to State Government and was taken back on duty without formal approval of Government of India or the relieving order of Controlling officer. Be that as it may, it is an admitted fact that the applicant had acted entirely on his own. The matter was regularized through an order dated 13.3.2008 whereby ex-post facto approval to the pre-mature repatriation of the applicant to State Government was regularized. However, cadre controlling authority i.e. Centre (Ministry of DoP&T), headed by Prime Minister through its instrumentality of ACC through Office Memorandum dated 31.1.2010 required that strict disciplinary action be taken. This was a decision taken at the level of ACC headed by Prime Minister with Home Minister being one of the Member and impugned charge-sheet was issued thereafter. In the meanwhile, the respondent no.2 had sought explanation of the officer and had finalized the matter by issuing the advisory letter dated 26.2.2009. It has not been clarified that this advisory was issued by the competent authority i.e. cadre controlling authority or even the Minister In-charge of Ministry of Commerce.
16. In general, we are conscious of catena of decisions passed by Honble Supreme Court as well as various Honble High Courts (as quoted by respondents counsel), that a chargesheet is an intermediary stage in a disciplinary proceedings and as such it does not lend itself to judicial scrutiny unless it is challenged on the ground of patent illegalities including procedural irregularity. In the instant case, the irregularities or illegalities averred by the applicant are: (a) delay of five years; (b) a person cannot be proceeded for an offence twice since his action had already been looked into by the respondent no.2 and the matter was concluded after issuing advisory dated 26.2.2009. Thus, it was no longer open for the respondents to initiate a second set of disciplinary action; and (c) chargesheet itself was required to be approved by the competent authority in person of Minister In-charge/Prime Minister.
17. In so far as the ground of delay is concerned, the applicant has not drawn our attention towards any statutory rule or regulation or ratio laid down by Honble Supreme Court or Honble High Court which vitiates present proceedings on the ground of delay especially as the various stages of action to be concluded have been adequately explained by the respondents in their Counter Reply. Therefore, no benefit can be given to the applicant on his plea of delay.
18. On the second count of double jeopardy, the respondents have, in their Counter Reply, stated that under the advise of UPSC, the advisory memorandum dated 26.2.2009 has been withdrawn by letter dated 2.7.2013 although no copy of descending order has been provided. The ACC gave its ex-post facto approval to pre-mature repatriation of the applicant to State Government w.e.f. the date from which he did not come to the office i.e. 5.6.2007; while according to this ex-post facto approval, the ACC gave direction that suitable disciplinary action be taken against the officer. In pursuance thereof, the Ministry of Commerce issued advisory to the applicant. It is correct that ACC did not approve of the action taken as not being commensurated with the gravity of the misconduct of the applicant. It was, therefore, required that advisory dated 26.2.2009 be cancelled before fresh action is initiated in keeping with the direction of the ACC. No-doubt, Ministry of Commerce under the advice of UPSC has since withdrawn its order dated 26.2.2009 vide order dated 2.7.2013. This action appears to be in the nature of a face-saving device. The applicant could legitimately expect that his case has been closed once the order dated 26.2.2009 had been passed and nothing was heard about it for more than two years.
19. Coming to the issue whether or not the impugned chargesheet was after approval of the competent authority, the Honble Supreme Court in its order dated 5.9.2013 had examined, in detail, the issue of technicalities involved not only in principle, decision of taking disciplinary action against the officer, but also the procedure to be followed in the case of B.V. Gopinath (supra). Although the case under examination was with regard to case under CCS (CCA) Rules and competent authority was the Minister Finance, the principle in the cited case will hold good in the case of procedure adopted in All India Service as the various rules determining minor or major penalties etc. or imposing penalties are the same as CCS (CCA) Rules, 1965. In this case, although the decision to issue minor penalty chargesheet was taken at the level of Minister Commerce, the charge memo itself was not approved by him. Therefore, the impugned chargesheet is liable to be quashed.
20. In view of the above, the O.A. succeeds. The impugned chargesheet dated 28.11.2011 is quashed. No costs.
(Ms. Jayati Chandra) (Navneet Kumar)
Member-A Member-J
Girish/-
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