Central Administrative Tribunal - Lucknow
Suresh Chandra Yadav vs Union Of India on 30 January, 2023
CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No: 332/0024/2018
Order Reserved on: 10/11/2022
Order Pronounced on: 30/01/2023
CORAM
HON'BLE SHRI JUSTICE ANIL KUMAR OJHA, M-(J)
HON'BLE MR. DEVENDRA CHAUDHRY, M- (A)
Suresh Chandra Yadav, aged about 51 years, S/o Shri
Kanhai Lal VIII & Post Pure Barjor Betaura, PS: Fursatganj,
District Rae Bareli.
....Applicant
By Advocate: Applicant in Person
Versus
1. Union of India through Secretary, Ministry of Civil
Aviation, Chairman, IGRUA Governing Council, Rajiv
Gandhi Bhawan, , Safdarjung Airport, New Delh-110003.
2. Director, Indira Gandhi Rashtriya Uran Akademi,
Fursatganj Airfield, Amethi 229 302(U.P.)
.....Respondents
By Advocate: Shri Y. C. Bhatt, Shri Anurag Srivastava
ORDER
HON'BLE SHRI DEVENDRA CHAUDHRY, MEMBER (A) Page 1 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
The present O.A has sought quashing of the order dated 27.05.2014 by which the applicant has been removed from service of Assistant Grate-A in the Indira Gandhi Rashtriya Uran Akademi, Fursatganj Airfield, Amethi ('IGRUA' in short hereinafter) as also quashing of the order dated 24.09.2014 passed by the Appellate Authority and order dated 27.01.2016 passed by the Chairman, IGRUA who being Secretary, Ministry of Civil Aviation, Government of India, is ex-officio Chairman IGRUA. In consequence, the applicant has sought payment of all benefits relating to services as the impugned orders are unlawful.
2. Brief facts are that the applicant was -
(a) appointed initially as a Cleaner/Helper in the pay scale of Rs. 750-940 at IGRUA under respondent No.2 vide appointment order dated 01.10.1990 and later promoted as Assistant- Grade A on 25.09.2006 with retrospective effect as from 05.01.2000 vide order of Hon'ble High Court Allahabad [Annexure A-6].
(b) Subsequently disciplinary proceedings were initiated against him vide charge sheet dated 24/03/2011 [Annexure
-11] on grounds of misconduct and indiscipline per IGRUA Conduct and Disciplinary Rules ('CDR' in short hereinafter).
2.1 It is the contention of the applicant that disciplinary proceedings and the subsequent imposition of punishment Page 2 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. are unlawful because:
(i) the Charge sheet and the removal from service order of 27.05.2014 has been passed by an incompetent authority inasmuch that it is issued by a so-called Manager- HR (Shri V. K. Johny) even though there is no lawfully sanctioned post of Manager, HR per the Ministry of Civil Aviation approved rules, regulations and guidelines with respect to sanction of posts in the IGRUA and, since the post itself is not sanctioned lawfully, therefore, any order passed bya person holding such a post under his/her seal and signature is non-est in the eyes of law;
(ii) the order of the Appellate Authority is also passed by the incompetent authority because it is passed by one Shri V. K. Verma, as Director of IGRUA even though he is not a lawful employee of IGRUA per the IGRUA regulations and is actuallyon secondment from a private foreign Canadian firm - CAE Aviation Training B.V.{in short 'CAE' hereinafter], and hence any order passed by him is also non est in eyes of law;
(iii) the order dated 21.07.2016 by the Chairman IGRUA is not lawful because it has relied on the inquiry report dated 25/3/2014 and has not taken into account the re- inquiry ordered by the Chairman himself vide letters dated 17/11/2014 and 05/01/2015 [Annexure -16] on Page 3 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. applicant's request dated 09/7/2014 [Annexure-A-15].
3. Counter Affidavits have been filed on behalf of Respondents 1 and 2, in which, it is basically asserted that:
(i) the impugned orders of punishment and the appellate authority are passed by competent authorities as per the CDR and the IGRUA regulations;
(ii) the authorities whose competency is challenged qua their appointment are lawfully appointed per the Agreement signed between IGRUA and the private firm CAE which has been approved by the Union Cabinet, the Governing Council of IGRUA and the Central Government;
(iii) the impugned order of 27/1/2016 [Annexure -3 of O.A] is also as per CDR and IGRUA regulations because it has been passed by the Chairman / Secretary Ministry of Civil Aviation ('MCA' in short hereinafter) on the representation dated 09/7/2014 of the applicant.
It is accordingly asserted that the O.A has no merits and is worthy of being dismissed.
4. The applicant has filed Rejoinder affidavit rebutting the points averred in both the CAs - vizof Respondent Page 4 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. No.1 and Respondent No.2 respectively, as also supplementary affidavits. The respondents have also filed supplementary counter replies as well as written arguments. This is apart from some other pleadings and documents filed by both the parties.
5. Heard the ld. counsels for the parties at length and perused the pleadings filed carefully. The key issues which fall for consideration are:
(i) the legality of the punishment order dated 27/5/2014 order passed by the stated Manager-HR on grounds of his competence to do so qua his appointment as the Disciplinary Authority;
(ii) the legality of the order dated 24/09/2014 passed by the stated Appellate authority - the Director of IGRUA on grounds of his competence to do so qua his appointment as Director per the IGRUA regulations and other rules applicable;
(iii) the legality of the order of Chairman IGRUA /MCA dated 27/1/2016 along with the validity of the punishment order which has allegedly relied on an earlier inquiry report and has therefore, failed to take into account the re-inquiry ordered by Chairman IGRUA / Secretary Ministry of Civil Aviation by two orders of 17/11/2014 and Page 5 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
05/01/2015;
6. As regards the first issue, regarding legality of the 27/5/2014 order being passed allegedly by an incompetent authority, the applicable regulations, rules and guidelines concerning IGRUA need examination. Accordingly, it is important to examine the: (i) IGRUA Memorandum of Association [MOA] as a Society under the Societies Registration Act 1860; (ii) the Rules and Regulations of the IGRUA as Society; (iii) the IGRUA Employees Conduct and Discipline Rules for disciplinary matters(iv) the Instrument of Delegation of Administrative and Financial Powers [IDAP] along with the competency of the authority which imposed the punishment order of 25/7/2014 in the first place; (v) the stated approval of the Union Cabinet regarding the Agreement between IGRUA and CAE as also related decisions of the Governing Council and the Director IGRUA and finally (vi) a host of rival circulars cited by the parties.
7.0 Per the Memorandum of Association ('MoA') (Annexure-5], the Indira Gandhi Rashtirya Uran Akademi was established in 1986 as a Society under the 'Societies Registration Act, 1860' in order to impart training in flying of Aircrafts. Per para-7 of this MoA, there is a Chairman who is the ex-officio Secretary, Ministry of Civil Page 6 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Aviation and who heads a Governing Council (referred to as 'GC' in short hereinafter) comprising some 09 members. The Objects of the IGRUA as Society are laid down in Para-4 of the MoA and in Para-4 (2)(m) of the MOA therein, IGRUA has the power for framing rules and regulations for the conduct of affairs of the Society but with theapproval of the Central Government. Same is reproduced below along with some other important paras of the MoA:
Paras 1-3
1. Name of the Society: The name of the Society shall be Indira Gandhi Rashtria Uran Society. (hereinafter called the Society).
2. Locations: The registered office of the Society shall be at Fursatganj, District Rae Bareli in the State of Uttar Pradesh.
3. Definitions: In this Memorandum, unless the context otherwise signifies:
(a) 'Akademi' means the Indirea Gandhi Rashtriya Uran Akademi or Akademies (and includes regional Centers if any) established by the Society.
(b) 'Central Government' means the Administrative Ministry in respect of the Civil Aviation Department.
(c) 'Director' means the Director of the Indira Gandhi Rashtriya Uran Akademi.
4. (1) Objects: The Object of the Society are:-
(a) ....
(b)......
(h)......
(2) With a view to promoting the foregoing objects the Society shall have the following powers: [EMPHASIS SUPPLIED]
(a)....Page 7 of 81
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(b)....
....
(m)...
Para-4 (2)(m) of the MOA "..........(m) To make rules and regulations for the conduct of the affairs of the society and to add, to amend, vary or rescind them for time to time with the approval of the Central Government." [EMPHASIS SUPPLIED] The IGRUA has accordingly framed the Rules and Regulations - The IGRUA 'RULES AND REGULATIONS'. Same are extracted below [Annexure -5 colly]:
"...INDIRA GANDHI RASHTRIYA URAN SOCIETY RULES AND REGULATIONS
1. Short Title : These Rules and regulations may be called the Rules and Regulations of the Indira Gandhi Rashtriya Uran Society (hereinafter briefly called "the society")
2. Definitions : In these Rules and Regulations, the following words and abbreviations shall have the meaning given against them unless the context otherwise signifies :
(a) "Akademi" The Indira Gandhi Rashtriya Uran Akademi (and the regional centers, if any) established and set up by the society.
(b) "Central Government" The Administrative Ministry in respect of the Civil Aviation Department.
(c) "Chairman" Chairman of the Governing Council
(d) 'Council" The Governing Council of the society i.eMgnt Board.
(e) "Director" Director of the Akademi.
(f) "Rules"Any of the Rules and Regulations of the Society
3. Authorities of the Society:-
The following shall be authorities of the society
(a) The Governing council
(b) The Director
(c) Such other authorities (including but not limited to Committee of Committees) appointed or notified by the Council
4.Governing Council The Council of the Society shall consist of the following Members Page 8 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
(1) Secretary, Ministry of Tourism and Civil Aviation (Deptt. Of Civil Aviation), -Ex-officio Chairman.
(2) Chief Secretary, U.P. Shasan Lucknow- Ex-Officio, Member (3) Joint Secretary (Administration ), Ministry of Tourism and Civil Aviation (Department of Civil Aviation)- Ex-Office Member (4) Financial Advisor, Ministry of Tourism and Civil Aviation (Department of Civil Aviation)-Ex-Officio Finance Member (5) Managing Director, Indian Airlines- Ex-Officio Member (6) Managing Director , Air India - Ex-Officio Member.
(7) Director General of Civil Aviation -ex officio member
(8) A representative of Indian Air force-ex officio member
(9) President Aero Club - member
(10) Director of the Akademi - ex officio member
8. Function and Powers of the Council:-
8.1 The Council shall be the highest executive body of the Society including the Akademi. It shall be the function of the Council generally to carry out the objects of the society as set forth in the Memorandum of Association, including establishment/maintenances and operations of the Akademi. 8.2 The Council shall be responsible for the organization, general superintendence, direction and control of the activities of the Akademi and shall exercise all the powers of the Akademi not otherwise provided for in these Rules and Regulations. The Council shall also have the power to review, rescind or modify any decision taken by any other authority of the society specified in Rule 3.[EMPHASIS SUPPLIED] 8.3 In the discharge of its functions, the Council shall be guided by such directives on questions of policy as may be given to it by the Central Government. The decision of the Central Government as to whether a question is of policy shall be final. [EMPHASIS SUPPLIED] 8.4 The Council shall, inter-alia exercise the following powers:-
(1) Take decisions on questions of policy relating to the administration and working of the Akademi.
(2) Consider and approve the programmes of the Akademi within the scope of the objective of the society and within the scope of its budget. (3) To consider and approve the eligibility conditions, duration, selection process and course content for the training programmes. (4) Frame Rules & Regulations and Bye-laws for the conduct of the affairs of the Akademi, and to add to, amend or repeal them from time to time with the approval of the Central Government. [EMPHASIS SUPPLIED] (5) Consider, approve and authorize operation of the funds of the Society including the Akademi.
(6) Consider and pass resolution on the Annual Report, the Annual Accounts and the Budget estimates of the society and submit them to the Central Government.Page 9 of 81
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(7) Draw up development plans of the Society for consideration of the Central Government.
(8) Appoint Committee for the disposal of any of its business or for tendering advice on any matter pertaining to the administration and management of the Akademi (9) Institute and award following scholarships, period and modals. (10) Create technical administrative and other posts for the Akademi provided that proposals relating to emoluments structure i.e. adoption of pay scales, allowances and revision thereof and creation of posts of and above the pay scale of Rs. 1500-2000 would need the prior approval of the Government of India in consultation with the Ministry of Finance (Dept. of Expenditure). The Council while creating posts under its delegated powers, shall be guided by the economy instructions issued by the Central Government from time to time. [EMPHASIS SUPPLIED] (15) ....
(17) .....
(18) .....
(19) .....
(20) .....
7.1 On examining the above we find that, Regulation-2 specifies the position of a Chairman, Governing Council and a Director of the Akademi. Regulation-3 defines the authorities under the Society as comprising the Governing Council ('GC' in short hereinafter), the Director and such other authorities appointed by the GC. Regulation-4 gives the constitution of the members of the GC wherein apart from the Chairman, being the ex-officio Secretary of the Ministry of Civil Aviation there are 09 other members. Regulation-8 lays down the functioning and powers of the GC. Under Regulation-8.1, the GC is the highest executive body of the Society and under Regulation-8.2 the GC shall be responsible for the organization and control of all Page 10 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. activities of the Akadmei including as provided in the Regulations and regulations and as per Regulation-8.3. Regulation-8.3 provides that the Council is to be guided by such directives on questions of policy as may be given to it by the Central Government in its multifarious functioning.Regulation-8.4(4) empowers the Council to frame Regulations and Regulations and Bye-laws for the conduct of the affairs of the Akademi and to add, to amend or repeal them from time to time with the approval of the Central Government.Regulation- 8.4(10) allows the Council to create posts of and above the pay-scale of Rs. 1500-2000 with prior approval of the Government of India in consultation with the Ministry of Finance (Department of Expenditure). Under Regulation-8.4(15) the Council is empowered to delegate its powers to the Director, and, through him or directly to other Members of Staff of the Akademi or to any Committee appointed by it. Regulation-9 lays down who will be the Director, how he shall be appointed, whereas Regulation 10 lays down the functions and powers of the Director.Regulation-12 enables the Council to ensure smooth running and to delegate such powers vested in it, as may be necessary to the Director, and through him or directly, to other Members of Staff of the Akademi or to Committee appointed by it. Page 11 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Regulation-18 lays down that all selections and appointments of the staff of the Akademi save that of the Director, shall be made in accordance with the procedure laid down in the Regulations and Regulations, by; (a) the Council, if the appointment is made in the grade equivalent to Grade 'A' and above in Central Government. In other cases, the Directormay do so but as per Bye-laws. What the Bye-laws would provide for are laid down inRegulation- 19which inter-alia empower the Council under sanction of the Central Government, to frame, amend or repeal Regulations and Regulations not in consistent with these Regulations, for the administration and management of the affairs of the Akademi, and in particular to provide for the matters mentioned therein including the terms and tenure of appointment, Regulations of discipline and other conditions of service of the officers and staff of the Akademi. Per Regulation-20, any alteration in the Bye-laws is only possible with the approval of the Central Government. Per Regulation-21 any change in the purpose of the Society is done with the approval of the Central Government only. 7.2 Based on above, IGRUA has accordingly notified various posts [Annexure -10colly.]. The same are:
Annexure-10:
"List of posts and pay-scales of various employees of IGRUA Page 12 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
which is as under (Annexure -10 colly.of O.A):
"SCALE OF PAY AND ALLOWANCES SCALE OF PAY
1. Director Rs. 3500-125-4000
2. Chief Instructor Rs. 2250-100-2750-125-3000
3. Chief Engineer Chief Flying Instructor ) Rs. 2250-125-3000 Chief Ground Instructor)
4. Chief Administrative and Finance Officer Rs. 1800-100-2000- 125-2250
5. ................
6. ................
7. ................
8. ...............
9. ................
10. ...............
11. ...............
12. Senior Assistant Rs 425-15-500-EB-15-560-20- 700-EB-25-800
13. ...............
14. Assistant, Fitter...- Rs. 330-10-380- EB-12-EB-15-560
15. ..........."
As per above, the applicant being on the post of 'Assistant' is the employee categorized at Sl.14 above.
7.3 Further, IGRUA has framed the IGRUA Conduct and Disciplinary Regulations ('CDR' in short) with the approval of the Central Government dated 29.10.1987 [Annexure -10 of O.A and Annexure CA-6 of Counter R-2]. Regulation- 27 and 28 of the CDR are important which read as under:
Regulation -27 of the CDR:
".....PENALTIES
(a)..........
(b) ..........
(f) Removal from the service of the Akademi Since the applicant has been removed from service, hence the punishment falls under category 'f' above.Page 13 of 81
CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Regulation -28 of the CDR "28. The authority competent to impose the punishments mentioned in Regulation 27 and the corresponding appellate authority are shown in Schedule 1.[Emphasis supplied] The competent authority may at any time administer a warning to an employee for a minor misdemeanor. No formal proceedings shall be necessary in such cases." The above referred Schedule -I [Annexure CA-6colly is latest and is per the O.M. dated 29/4/1999. It is also referred to in the supplementary affidavit of the respondents MP No. 2106. It is different from the one cited by the applicant vide Annexure -10 which is an earlier version and so for discussion herein, the latest version of April 1999 filed by respondents is taken up as the applicant has not filed the covering letter of the Schedule-1 filed by him as Annexure- 10colly.] Version filed by the applicant - as Annexure-10colly:
"SCHEDULE-I INDIRA GANDHI RASHTRIYA URAN AKADEMI Statement showing Competent and Appellate Authorities Class of employees Penalties as per Competent Authority Appellate Authority Employees at Sl. No. (a) Chief Admin.& Finance Chief 15, 14 13 Officer/Chief Flying Instructor/Chief Ground Instructor Instructor/Chief Engineer Employees at Sl. No. (b) To (g) Chief Instructor Director 12,11,10,9 and 8 Employees at Sl. No. (a) To (f) Chief Instructor Director 7,6 and 5
(g) Director Executive Committee Page 14 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Employees at Sl. No. (a) To (f) Chief Instructor Director 4
(g) Director Executive Committee Employees at Sl No. (a) & (b) Director Executive 3 and 2 Committee
(b) To (g) Executive Committee Governing Council Version Vide O.M. 29/4/1999 CA-6 Colly. filed by Respondents:
No.AV. 28060/035/98-VE Government of India Ministry of Civil Aviation Rajiv GandhiBhawan, Safdarjung Airport, New Delhi, Dated 29.04.1999.
To, Air Cmde.(Retd.) P. Badhwar, Director, IGRUA, Fursatganj.
Subject: Revision of competent and appellate authority under Conduct and Discipliner Rules of IGRUA.
Sir, I am directed to refer to your letter No. IGRUA, CDR: MIN:99:1071 dated the 26th of February, 1999 on the subject cited above and to convey the approval of the Government for modification in Schedule-I of Regulation 28 of the Indiara Gandhi RashtriyaUranAkademi Employees conduct& Discipline Rules. A copy of the modified Schedule-I is enclosed.
Yours faithfully, (S. K. Singhal) Under Secretary to the Government of India Schedule-I:
"........APPENDIX-A SCHEDULE-I INDIRA GANDHI RASHTRIYA URAN AKADEMI Statement showing Competent and Appellate Authority Class of employees Penalties as per Competent Appellate Regulation 27 Authority Authority Employees at S.No. (a) to (d) Dy. Departmental Departmental 12.13.14. and 15 Head Head
(e) to (g) Departmental Head Chief Instructor Page 15 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Employees at Sl. (a) to (d) Departmental Chief Instructor No. 8,9,10 & 11 Head
(e) to (g) Director Chief Instructor Employees at (a) to (d) Chief Instructor Director Sl.No. 7, 6 and 5
(e) to (g) Director Chairman, Governing Council Employees at Sl. (a) to (d) Director Chairman, No. 2, 3 and 4 Governing Council Chairman,
(e) to (g) Governing Council Governing Council [ N.B. Departmental Head - (As defined in the Instrument of Delegation of Administrative Dy. Departmental Head] Powers)"
As may be noted, while the earlier version specified the actual designation of the authority concerned, the later version specifies the more generic nature at some places -
such as 'Departmental Head' instead of Chief Administrative and Finance Officer /Chief Flying Officer - and so on.
However, the later version in which the disciplinary authority is specified as a generic nomenclature, it has therefore, specified a delegation of powers provision called as the "Instrument of Delegation of Administrative and Financial Powers" ('IDAFP' in short hereinafter) [Annexure RCA-2 filed by the applicant] in which the position of Departmental Head is specified in the context of the Schedule-I. The IDAFP reads as under:
".....INSTRUMENT OF DELEGATION OF ADMINISTRATIVE & FINANCIAL POWERS.
ADMINISTRATIVE POWERS.:The Governing Council of the Indira Gandhi Rashtriya Uran Society (hereinafter referred to as Council) deems it necessary for the efficient running of the day-to-day administration of the Akademi and in exercise of the powers conferred upon it under Regulation 12 of the Page 16 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Regulations and Regulations of the Indira Gandhi Rashtriya Uran Society do hereby by this general order direct that the officers mentioned in this order may exercise the functions and powers hereby delegated:
1. Delegation of Powers under this Instrument shall be exercised by the Officers named hereunder to exercise the functions and powers delegated hereby to each of the said officers subject to the provisions of Regulations, regulations and instructions in force from time to time:-
A. Director B. Chief Instructor C. Departmental Heads Chief Engineer Chief Flying Instructor Chief Ground Instructor Chief Administrative and Finance Officer 7.4 Therefore, if the Schedule -I of 1999 version is read with the IDAFP introduced qua the 1999 version and CDR Regulation -27 [specifying the punishment types] which is not yet amended (the respondents also accept same and have not filed any amendment document with regards to CDR), we find that in the case of the applicant, it seems to be the Officer specified in the Chief Administrative and Finance Officer because that is a designation inter alia mentioned in the applicant's version of competent authority for an employee of level of Sl.14 and is also a Departmental Head per the IDAFP classification. In any case the designation of Manager-HR is at least not specified even in the version of the IDAFP submitted by the respondents.
However, as seen in the order impugned, the punishment order is passed by a person designated as Manager-HR. Therefore, per the 1999 circular filed by the respondents Page 17 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. themselves Manager-HR cannot be said to be the 'Departmental Head' and the respondents have failed to file any document which would show and prove this. We will shortly discuss this point more. However, in the meanwhile, it is prima facie clear that there is a mismatch and it is this assertion by the applicant that as the designated authority for imposition of the punishment per the punishment order is nowhere specified as Manager-HR therefore, the order impugned having been signed and issued by the Manager- HR is an order passed by an incompetent authority.
8. The respondents have rebutted the above assertion by submitting that when the punishment order was issued it was the Manager-HR who was the competent authorityand this competence was derived from the Agreement between IGRUA and a foreign firm the CAE Aviation Training B.V. ('CAE' in short hereinafter). The argument of the respondents in this context runs as follows:
(i) that the Union Cabinet had approved a
Management Service Agreement ('MSA' in short
hereinafter) vide meeting held on 08/11/2007
[Annexure CA-1] in which under Paragraph-12 the MSA was taken up;
(ii) the MSA authorized IGRUA to enter to Agreement with a Canadian firm CAE.
Page 18 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
(iii) that - per para-7 of the MSA there could be 'Functional managers'
(iv) that the MSA authorized setting up of a 'Steering Committee' to implement the MSA by the Governing Council of IGRUA and further that a Jt Steering Committee was set up to assist in the implementation of the MSA by the Governing Council vide the 58th Governing Council meeting of 07/2/2008.
(v) that the Jt Steering Committee was given the powers to create posts in the IGRUA per the MSA and so based on the need, a post of Manager-HR was created vide the 2nd meeting of the Jt. Steering Committee headed by Jt Secretary MCA set up.
(vi) that accordingly, Director IGRUA (Mr VK Verma (Air Marshall retd.) vide order dated 30/3/2011 [Annexure CA-4] appointed Mr V.K. Johny as Manager-HR and by virtue of this order MrJohny was also conferred all disciplinary powers over Group 'C' and 'D' employees of IGRUA and by virtue of this authority the Manager-HR - Mr Johny issued the charge sheet and the punishment order of 27/5/2014 as the applicant belongs to category of personnel against which Manager-HR can take disciplinary action per the IGRUA CDR. Therefore, the impugned Page 19 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
punishment order was passed by the competent authority.
8.1 In support, the respondents have filed the following documents:
i. Annexure CA-1: Minutes of the meeting of the Union Cabinet dated 08/11/2007 and Para-12 of the Agenda Note for the Cabinet meeting;
ii. Annexure CA-3 Copy: Minutes of the 57th and 58th meeting of the Governing Council of IGRUA;
iii. Annexure CA-4: Minutes of the 2nd Steering Committee dated 15/4/2008 iv. Annexure CA-2: Copy of the MSA v. Annexure CA-5: order of appointment of Manager-HR The same read as under:
Ref: IGRUA DO:11:1283 March 3/ 2011
OFFICE ORDER
Maj. Vineet K Johny, Manager-HR is appointed as competent disciplinary authority/Departmental Head under Conduct and Discipline Rules of IGRUA for Group C and D employees till further orders.
(V.K.Verma) Air Marshal (Retd.) Director.
Annexure CA-1:
SECRET Copy, No. No.42/CM/2007 CABINET SECRETARIAT Page 20 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
EXTRACTS FROM THE MINUTES OF THE MEETING OF THE CABINET HELD AT 1200 HOURS, ON THURSDAY, 8TH NOVEMBER, 2007, IN THE CONFERENCE ROOM (NO. 155), SOUTH, BLOCK, NEW DELHI.
Case No.365/42/2007 Long-Term measures to meet the shortage of pilots: Contracting out of management of Indira Gandhi Rashtriya Uran Akademi and Establishment of flying training institute at Gondia, Maharashtra.
The Cabinet considered the note dated 05.11.2007 from the Ministry of Civil Aviation. (Nagar Vimanan Mantralaya) and approved the proposals contained in paragraph 12 thereof with the direction that any concerns of the Ministry of Defence be addressed suitably.
SECRET In accordance with the Rules of Procedure in Regard to Proceedings of the Cabinet (Rule 10); progress of action to implement the decision may be included in the Ministry's Monthly Summary for the information of the Members of the Council of Ministers.
Action taken to implement the decision may be communicated to the. Secretariat with reference to the implementation Schedule attached to Na note Paragraph-12: Agenda Note of the Cabinet meeting referred to:
12. Proposal :
12.1. In terms of provisions under Rule 7 and Para (h) of the second Schedule of the Government of India (Transaction of Business) Rules, 1961, formation of subsidiaries by PSUS has to be approved by the Cabinet. In this background, approval of the Cabinet is solicited for the following:
(i) entering into a management contract, agreement with M/s CAE Inc. Canada for management of IGRUA.
(ü) setting up of a subsidiary company by AAI for establishing a flying training institute at Gondia in Maharashtra as a JV Enterprise with M/s CAB Inc., Canada as the JV Partner."
-----------------
57th meeting of the Governing Council "2. b) Governing Council (GC) will remain as Apex Body. There will be a Steering Committee comprising CAE and GC representatives. The Director will be nominated by the CAE and appointed by unanimous decision of the Steering Committee. He will report to Steering Committee and will have all administrative, legal and financial powers of the Director, IGRUA.
c) CAE will maintain all 211 permanent employees at existing service conditions and not lay-off any personnel. It will be free to bring about changes in employee service rules and regulations including changes to Page 21 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
pay-scales, conduct and discipline rule in a transparent and fair manner subject to necessary consents and approvals by the competent authority as per the regulation. They will be free to employ any other personnel on contract on their terms.
Annexure CA 3 IGR.U.A Sr. 521 Date 26/02/2008 No.AV.23060/004/2008 - VE Government of India Ministry of Civil Aviation B-Wing, Rajiv Gandhi Bhawan, Safdanjung Airport, New Delhi Dated the 25 of February, 2008 th To The Director, Indira Gandhi RashtriyaUranAkademiFursatganj Airfield, Rae Bareli Dt (UP) (Kind Attn: AVM (Retd.) S.C. Malhan, Director) Subject: Approved Minutes of the 58" meeting of the Governing Council. * Sir, I am directed to refer to your Note No. IGRUA:58GC:144 dated subject cited above and to forward herewith a copy of the Minutes of the 58 Meeting of the Governing Council of IGRUA duly approved by Chairman for information and further necessary action.
Yours faithfully (S.R. Parasher) Under Secretary to the Govt. of India 24618526
11. Government subsidy: The DGCA briefed that the total subsidy from the Government, Air India & Indian Airlines would be Rs. 4.20 Crores in the first year. In the second year it would reduce to Rs. 3.00 Crores from the airlines and subsequently less than Rs.3.00 Crores in the third year. The Chairman, Indian Airlines stated that in return of their contribution, the airlines were offered "First right of selection". Since there will be many pilots available in the market, the first right of selection will not have any importance. The council was of the view that since the training imparted at IGRUA is on top of the line aircraft and of very high standard, demand for IGRUA trained pilots will continue.
ITEM NO 2 ---- 3(a) 3(a) Removal of restriction on promotion: Director, IGRUA informed that promotion policy has been worked out by Indian Institute of Page 22 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Management, Lucknow. However, it was yet to be finalized as CAE wanted to be associated with the same.
ITEM NO 3 ---- Para 4
4. Director, IGRUA made a presentation on the salient features of the Management contract. He informed that a Steering Committee (Members of CAE/Government) will work under the Governing Council and look after the day to-day activities. To facilitate this most of the Governing Council's powers have been delegated to the Committee for smooth functioning of the Akademi. In case the Steering Committee is not able to arrive at a decision, the matter would be referred to the GC for consideration. However, there will be no change in the composition of the Governing Council. CAE would clear the backlog and would pass out 100 cadets even during the ramp-up phase. CAE will maintain ail the employees under existing service conditions. It will provide better prospects to the employees of the Akademi based on their performance. The Chairman pointed out that they shall not only adhere to existing service conditions, but also improve on them for better efficiency and progress on the Management Contract. On a query regarding reaction of the employees, Director, IGRUA informed that he has addressed and given clear picture f the contract to the employees many times. Page 75 OF CA FOR R-2: MINUTES OF THE 57TH MEETING OF THE GOVERNING COUNCIL ITEM NO 1.....
ITEM NO 2: ACTION TAKEN ON THE MINUTES OF THE 56TH MEETING OF THE GOVERNING COUNCIL
3...
(c) Removal of restriction on promotion : The Director, IGRUA informed that IGRUA had tasked Indian Institute of Management, Lucknow to prepare a viable promotion policy for employees of IGRUA. The Chairman inquired if there was any kind of disturbance amongst the employees as he had received some representations. The Director informed that although the employees have been assured that they would continue to serve at their existing employment, they continue apprehensions. JS(R) stated that they need to be reassured and he will visit the Akademi shortly.
Item No 3 Report Negotiation committee on Management Contract with CAE:
3. The DGCA, who is the Chairman Negotiation Committee, made a brief presentation on the committee's report. Hard-Copy of the slides is attached as Annexure-1. He highlighted the main Agreed and Not agreed points covering organizational, operational and financial aspects.Page 23 of 81
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The following discussion followed:-
(a) Organizational Aspects. Para-11 UNDER ITEM NO 3
11. Government subsidy: The DGCA briefed that the total subsidy from the Government, Air India & Indian Airlines would be Rs. 4.20 Crores in the first year. In the second year it would reduce to Rs. 3.00 Crores from the airlines and subsequently less than Rs.3.00 Crores in the third year. The Chairman, Indian Airlines stated that in return of their contribution, the airlines were offered "First right of selection". Since there will be many pilots available in the market, the first right of selection will not have any importance. The council was of the view that since the training imparted at IGRUA is on top of the line aircraft and of very high standard, demand for IGRUA trained pilots will continue. 58th meeting of the Governing Council TYPE PAGES 81 TO 82 INDIRA GANDHI RASHTRIYA URAN AKADEMI 58th MEETING OF THE GOVERNING COUNCIL 07 FEBRUARY 2008 AGENDA ITEM NO. 3 APPROVAL OF MANAGEMENT CONTRACT OF IGRUA WITH CAE
1. The 57th Governing Council had approved the report of the Negotiation Committee.
2. The Negotiation Committee had carried out further negotiations with CAE and forwarded the same to the Government. Finalised draft contract as agreed is placed as Annexure-1, for approval of the Governing Council. As directed the Government, the contract has been vetted by the Additional Solicitor-General of India. The highlight of the agreement on aspects concerning Regulatory, Organisational, Financial, Administrative are as follows :
(A)Regulatory Aspects :
a) Regulatory Aspects as projected by CAE have been agreed to by the DGCA.
(B) OrganizationalAspects :
a) The start date for CAE to take over IGRUA has been planned as 01 March 08. The interim phase would be from 01 March 08 to 31 March 08 and the Ramp-up phase will be for 13 months from 01 March 08 to 31 March 09.
b) Governing Council (GC) will remain as Apex Body. There will be a Steering Committee comprising CAE and GC representatives. Page 24 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. The Director will be nominated by the CAE and appointed by unanimous decision of the Steering Committee. He will report to Steering Committee and will have all administrative, legal and financial powers of the Director, IGRUA.
c) CAE will maintain all 211 permanent employees at existing service conditions and not lay-off any personnel. It will be free to bring about changes in employee service rules and regulations including changes to pay-scales, conduct and discipline rule in a transparent and fair manner subject to necessary consents and approvals by the competent authority as per the regulation. They will be free to employ any other personnel on contract on their terms.
d) CAE will maintain all infrastructure and assets.
e) The contract will be in operation for 10 years with an option for termination with due notice. It will be reviewed/ renegotiated after 5 years.
f) CAE will subject itself to Indian laws. Dispute, if any can be settled in New Delhi.
g) CAE will be free to train foreign cadets after 3 years, in case the local requirements have been met.
Financial Aspects
a) CAE has dropped its proposal about escalation of fixed compensation of Management fee during the first five years after the interim phase.
b) Variable Management fee termed as Management fee in the draft contract would be admissible to CAE in case IGRUA has achieved positive operating income. While calculating the variable management fee, weightage will be given to number of cadets trained in one ear, course duration, average course cost and feedback from airlines regarding quality of training. .......................................... Annexure CA-4: concerning minutes of the 2ndJt Steering Committee - Para 4:
4. PROPOSED HR ACTION PLAN : Mrs. Anita Bakhtani presented a proposed HR action plan to the steering committee (Annexure-2). The decisions were :
a)The proposed organization structure (Annexure-II) was approved.
b)Staffing proposal :
I.. Candidate for New Director's post to be presented to the Steering Committee, prior to appointment.
II.New Manager's:Page 25 of 81
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1) Posts for approved as per the approved organization structure. On query by the Chairman, it was explained by Director-HR, that the post of Manager-HR involves additional expenditure of Rs. 5.00 Lakhs per year.
Manager-HR & Student Counselor for the post of Manager
2) CV of Capt.R.M.Bitter Operations, was gone through and his appointment was confirmed for regularization.
3) Candidates for the Manager-Services position would be discussed in the next meeting. Chairman stated that an effort should be made to check, if any suitable candidates are available from within IGRUA. Secretary, Steering Committee informed that the interest of IGRUA employees were taken care of. However, nobody was found suitable for this post.
4) Appointment of Manager-Finance: The Chairman stated that while selecting outside person for Managerial position or as Quality Assurance Officer/Student Counselor the service contract of existing personnel should be studied carefully to avoid any legal implication. (III.I) All additional responsibilities as Officer-In-charge by the core members in the operations to be shifted to Manager-Services.
2)Transfer of all employee related matters from Chief Administrative Officer to Manager-Human Resources.
3)Appointment of Flying Instructors: Junior Flying Instructors may be appointed subject to minimum flying experience of 500 hours.
4)Transfer of all employee related matters from Chief Administrative Officer to Manager-Human Resources.
5)Compensation Scale for Flying Instructors was approved as projected. They would be expected to fly maximum authorized hours by DGCA on yearly basis.
6)Overall cost for hiring the expats is to be submitted to the Steering Committee.
Compensation for Ground Instructors :
7) Compensation for Ground Instructors :
(i) Chief Ground Instructor's pay-scale was approved as Rs.87,500/- and to be gradually progressed.
ii.Scale for Ground Instructors approved as proposed.
5. IGRUA-RULES & REGULATINS: AMENDEMNT: Director, IGRUA brought out that there was a need for slight change in IGRUA Rues & Regulations for smooth functioning and redefining that rules. The changes (Annexure-3) as proposed by CAE were handed over to the Steering Committee members for study ad discussions in the next steering committee meeting. "
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Annexure CA-2/R-2 Management Service Agreement:
Relevant paras:
"3. MANAGEMENT OF IGRUA 3.1 CAE hereby assumes, effectively as of the Start Date, the responsibility for the management of IGRUA's flight school activities in totality, which includes maintenance of aircraft, flying operations, air traffic control, runway operation and maintenance, navigation aids, fire fighting, security, captive power, medical facilities, mess and hostel facilities and on-ground transportation for staff and trainees.
3.2 To effectuate the above, CAE shall implement a management structure and organization as set. forth in Exhibit A within the timeframe as set forth in Exhibit B hereof. 1 3.3 CAE, as manager of IGRUA, shall at all times during the term of this Agreement comply with the laws and regulations applicable to the Society as well as with the Memorandum of Association and/or the Rules and By-laws. Furthermore CAE, as manager of IGRUA, shall honour and shall cause IGRUA to comply with all contracts valid and effective as on the Start Date and thereafter in accordance with their respective terms and conditions.
4.1 CAE will on the Start Date nominate a Director. The Director shall be appointed by unanimous decision of the Steering Committee for a term as to be defined by the Steering Committee however not exceeding the duration of this Agreement. In the event that the nominee is not reasonably acceptable to the Steering Committee, such decision to be notified to CAE and adequately substantiated within fourteen (14) days following the date of nomination, CAE shall nominate a new candidate Director within thirty (30) days thereof and the above procedure will analogously apply.
4.2 The Director shall either enter into an employment agreement with IGRUA or be-seconded by CAE to IGRUA at the latter's expense.
4.3 The Director may be dismissed at any time upon a majority decision of the Steering Committee. The dismissal shall become effective upon such decision taking effect or as otherwise determined in such decision. CAE shall nominate a new candidate within sixty (60) days after dismissal and the above procedure (clause 4.1) shall If at apply.
5.1 Ultimately on the Start Date, a Steering Committee shall be appointed by the Governing Council as a formal authority of the Society pursuant to clause 3 of the Rules and Regulations of IGRUA. The Steering Committee shall be subject to the relevant provisions of such Rules and Regulations and further to all applicable laws and regulations. The Steering Committee shall be accountable to the Governing Council and the powers, functions and duties of the Steering Committee shall ultimately be subject to the overall control and supervision of the Governing Council.
"7. FUNCTIONAL MANAGERS 7.1 IGRUA shall have three Functional Managers, namely a Manager Operations, a Manager Services and a Manager Finance. The Functional Page 27 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Managers shall either work for IGRUA on the basis of an (existing) employment agreement or by being seconded by CAE to IGRUA, at the latter's expense.
7.2 The Functional Managers are appointed by the Director in consultation with the Steering Committee. The Functional Managers shall report and be accountable to the Director. The Functional Managers shall comply with the policies formulated by and the resolutions taken by the Steering Committee.
7.3 The Manager Operations shall beresponsible for the overall quality and efficiency of training delivery and flight operations (including aircraft maintenance) of IGRUA. As part thereof, the Manager Operations will manage the planning, scheduling and delivery of training operations and be accountable for optimal utilization of instructors and training equipment (including aircraft) at the same time minimizing the operational cost per flight hour and maximizing the cadet success rate. With respect to the training equipment, the Manager Agreement CAE-IGRUA Management Contract Operations.will' be accountable for the serviceability thereof by maximizing availability, optimizing inventory and minimizing maintenance cost per flight hour. 7.4 The Manager Operations shall act as deputy to the Director. Therefore, he will the Director a general mandate to allow him up to the agreed levels of authority to represent IGRUA towards third parties and, as the case may be, to negotiate, approve and sign contracts and suppliers pertaining to his responsibilities. 7.5The Manager Services shall be responsible for the overall quality and efficiency of airport facilities and. infrastructure of the Training Center. As part thereof, the Manager Services will manage the planning and scheduling of airport and other facilities required for flight operations and be accountable for optimizing availability of the airport, ATC and navigational aids at the same time minimizing the cost per landing while ascertaining security and safety. In addition the Marrager Services will manage the accessory facilities to optimize the availability of the hostel, the mess, local transportation as well as school facilities. 7.6 The Manager Finance shall be responsible for the financial business administration and reporting. In this respect the Financial Manager shall maintain proper accounting, reporting and financial control systems (including systems for the preparation of annual operating plan and budgets) in a format mutually agreed by the Steering Committee and in compliance with the applicable statutory requirements. The Manager Finance will report to the Manager concerning the financial means of IGRUA in such a way that the required insight into the financial affairs of IGRUA can at all times be obtained and that the required level of liquidity is at all time guarded. The Manager Finance shall have responsibility for preparing proposals and quotations for customers and for reviewing 'same from suppliers. The Manager Finance shall also provide or arrange for the provision (through external counsel or through the support of the legal departments of the Stakeholder(s)) of legal support for preparing contracts or otherwise supporting the business of IGRUA where necessary or desirable.
7.7 The Director can at any time dismiss a Functional Manager from its function (duly taking into account applicable labour laws, if relevant) for a justified reason after having notified the Steering Committee.' Page 28 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. 7.8 The Director may decide, from time to time, having obtained the prior written consent of the Steering Committee, to appoint additional Functional Manager(s) and managers or to reduce the number of such functions.
"8. IGRUA STAFFING 8.1 IGRUA shall ascertain that CAE can make use of IGRUA's entire workforce. CAE will maintain the current staff of IGRUA on the basis of existing contractual and statutory conditions as well as the relevant Rules and By-laws. Notwithstanding the foregoing, CAE may introduce a system of performance objectives and metrics for IGRUA's staff, including associated bonuses and sanctions, as an integral part of the contemplated improvement in the overall performance of its organization, provided that sanctions can only be enforced in accordance with applicable laws and the Society's policies. 8.2 With regard to the functions identified in the Business Plan, personnel can work for IGRUA on the basis of an employment agreement, or by being seconded by CAE to IGRUA at the latter's expense. For any activities that shall be performed by or on behalf of CAE pursuant to clause 11.3 hereof, CAE shall not separately charge IGRUA for work or labour.
8.3 Depending on the capabilities of each individual, CAE may implement an internal training program to allow IGRUA's staff'the opportunity to qualify themselves for other positions so as to improve an efficient use of capabilities within IGRUA. In addition and without restricting CAE's rights and responsibilities in general, CAE may transfer employees within different departments in order to better match qualifications and capabilities with job profiles. 8.4 CAE may amend existing employee service rules and regulations, recruitment and promotion rules as well as the conduct and discipline rules, including changes to pay scales and salary bands, as long as such amendments are done in a reasonable and transparent manner and subject to the consents and approvals of the competent authority required under laws and regulations of the Society.
"9.1 CAE will as of the Start Date implement a performance-management system accountabilities, metrics and targets to measure performance by the Director and the Functional Managers as further set forth below. 9.2 The management services to be performed by CAE pursuant aimed at an increase in the number of students, a reduction in the throughput time of the ATPL course, a better utilization of equipment and, consequently, reduced cost per student. By conditions of this Agreement, the operations of the Society are to result in a positive Operating implementing the necessary measures to achieve the above and subject to the further terms, and in the forth year as from the Start Date. 9.3 CAE hereby guarantees, without prejudice to clause 26 hereof, that its performance pursuant to this agreement will comply with the following four key performance metrics.
9.3.1 During the Ramp-up Phase there will be at least forty (40) new registrations of students to increase to at least one hundred (100) new Page 29 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. registrations per year in each 80 'subsequent twelve (12) month periods during the remainder of the term of this 'Agreement; 9.3.2 After the Ramp-up Phase, the complete CPL/IR/MEE and ATPL theory course (from the first day of training until the date of the last exam) can be completed by students within twelve (12) months; 9.3.3 Taking into account clause 10.3 hereof, the average cost per student, based on '2007 economic conditions, will decrease to a maximum of as of the beginning of the second year after the 28 Interim Phase lacs as of the beginning of the third year after the Interim 26 Phase lacs as of the beginning of the fourth year after the 24 Interim Phase lacs 9.3.4 The fourth metric will be the quality of the pilots trained by IGRUA. Ultimately one year after the Start Date IGRUA shall to this effect issue questionnaires to relevant airlines on an annual basis to measure their satisfaction. A specimen of the questionnaire is attached hereto as Exhibit E as an example. Exhibit E identifies how the results from the questionnaires will be quantified to measure CAE's performance in this connection. This metric will only become effective for measuring CAE's performance as per the fourth (4) year after the Interim Phase. 9.4 the performance of CAE will be measured and reviewed in accordance with clause 10 below on the basis of the above metrics. for the training 9.5 CAE, as manager of IGRUA, shall adhere to the following maximum prices course referred to in clause 9.3.2 (excluding taxes, if any) Term Course price in Course price in INR USS Year 1 52,439 21,5 lacs Year 2 after the 60,000 24,6 lacs interim phase Year 3 after the 60,000 24,6lacs interim phase 9.6 As of January 2011, IGRUA will be allowed to accept trainees to train at its Training Center who do not have the Indian nationality. CAE agrees that it will only allow such nonindigenous trainees if and to the extent that it has capacity available without having to reject or postpone the admission of indigenous trainees.
9.7 In consideration of Air India and India Airlines continuing their contributions to cover operational expenses of IGRUA, CAE will allow these airlines to continue to have the right of first selection of students trained by IGRUA.
9.8 CAE agrees, at its own cost and on terms and conditions to be agreed upon, to make available or procure the availability of two Full Flight Simulators (one Airbus A320 and one Boeing B737) under the IGRUA umbrella. The Full Flight Simulators will be installed in New Delhi..." Page 30 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. ...............................
...............................
25.1.1 IGRUA shall ascertain that Ministry of Civil Aviation of India shall agree to the requird funds for IGRUA to invest in the matters identified in para A& B of Exhibit-H. 25.1. 2. IGRUA shall endeavor to get savings if any from funds allocated for aircraft for addition /up gradation of existing infrastructure including additional aircraft.
25.1.3 IGRUA shall ascertain that the Ministry of Civil Aviation of India shall continue to subsidize IGRA by supplementing the net losses to be incurred by IGRUA as of the date of execution of this Agreement up to an including 31 March 2011.
....................
Annexure CA-5/R-2: copy of appointment letter of Manager-HR :
"Office Order Maj. Vineet K Johny, Manager-HR is appointed as competent disciplinary authority/departmental , Head under Conduct and Discipliner Rules of IGRUA for Group C and D employees till further orders.
(V K VERMA)AIR MARSHAL (RETD) DIRECTOR .........................
Annexure SC-2 filed with Supplementary affidavit MA No. 2106/2022:
As stated earlier, this Annexure is same as Annexure CA-6.
........................ end of Annexures 8.2 As already discussed, the disciplinary authority for imposition of punishment order in the disciplinary proceedings against the applicant is the 'Departmental Head' per the Schedule-I under Regulation-28 as also additionally Page 31 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
re-iterated by the respondent-2 in para-9 of the supplementary affidavit[MP No. 2106/2019] for punishment involving removal from service vide Annexure SC-2 [erroneously typed as Annexure SC-1 in the para-9 of the supplementary affidavit, because Annexure SC-1 is the appointment letter of the Director IGRUA by the MCA dated 22/7/2009. The Schedule-I aforesaid is referred to also inAnnexure CA-6 Colly., in the CA for R-2.
Notwithstanding, in the supplementary affidavit in paras 9-11, it is asserted that the Government approved for modification of the Schedule-I of Regulation 28 and that the 'Departmental Head' was the disciplinary authority and as the Director IGRUA appointed Manager-HR as competent disciplinary authority / Departmental Head, therefore, he was competent to pass the punishment order with regards to the applicant.The important point to note is that no relation is established between what is stated in the Schedule-I and the IDAFP therein which has been omitted totally in reference and it is straight away said that as per the modification done, the Manager-HR was designated as the disciplinary authority. This is not justifiable as - firstly the Schedule- I is to be read along with the IDAFP and not in isolation, secondly, the Schedule-I only specifies that Page 32 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. 'Departmental Head' is the competent authority and the Departmental Head so specified is not the Manager-HR as per the IDAFP. So just because the stated Director IGRUA appointed the Manager-HR does not imply that the Manager-HR would automatically have the powers of Department Head qua the Schedule-I read with the IDAFP. Therefore this construction of the respondents is highly incongruent and not worthy of accepting. The respondents have not shown any document to show that Schedule-I or the IDAFP are amended to include the Manager-HR as Department head and so how can the Director authorize the Manager-HR to have the powers of Department head. The MSA per its Para 2.1.19 has specified that "..'Rules and By-laws' means the rules and regulations of IGRUA, including any by-laws promulgated on the basis threof, as they may be amended from time to time in accordance with applicable law."
What this implies is that the Rules and By laws of IGRUA are not amendable except in accordance with law. The Director IGRUA or the MSA can only have the amendment done per the applicable law. The applicable law is that the amendment is to be done with the approval of the Central Government and not by the Director or anybody else. What this means is that the Schedule-I, the IDAFP has to be Page 33 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. amended specifically by the Central Government through a notification which would override the provision and in the absence of any such amending notification, the Director IGRUA cannot amend and authorize any powers of disciplinary proceedings to anyone. Thus the assertion of the respondents qua the authorization of Manager-HR are an umbrella full of large holes and therefore, of no use to protect them against the hail and rain of truth on them.
9. Now, armed with various rival documents, we begin analyzing the rival contentions by first of all examining the Memorandum of Association of IGRUA, the IGRUA regulations, the CDR, the IDAFP apart from the approval of the Union Cabinet concerning the MSA and the connected assertions of the respondents.
10. To further add nails to the coffin of the arguments of the respondents, we may further analyse the Memorandum of Association of IGRUA, the IGRUA regulations, the CDR, the IDAFP which for the ease of reference are hereinafter also referred to collectively as 'Covenants'. 10.1 Going forward, it is clear that per Annexure-10 specifying the list of posts in IGRUA - reproduced earlier in this judgment, we see that in the list of posts, there is no post of Manager-HR specified. The respondents have also filed the same list of posts as Annexure in Supplementary Page 34 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. affidavit MP No.2106/2022.
10.2 Regulation 8.4 specifies that IGRUA would frame Rules and Regulations and Bye laws for conduct of affairs of IGRUA. Regulation 8.4(10) specifies that while the Governing Council has powers to create posts, but any post above the pay scale of Rs 1500-2000 would require the express approval of the Government of India in consultation with the Ministry of Finance specifically the Department of Expenditure. It is the contention of the applicant that as no approval of the Department of Expenditure has been taken for creation of the post of Manager-HR, therefore, the creation of post by the Governing Council of Manager-HR is de hors the IGRUA Regulations.
10.3 As regards the authorization of the Manager-HR to pass the punishment order it is asserted by the applicant that -
(i) the competent authority to impose the punishment of 'removal from service' under Rule- 27(f) of CDR, is the Departmental Head per Schedule-1 for an employee of S.No 14 category under Rule-28 of the CDR for an Assistant Grade-A read with the IDAFP
(ii)But the impugned punishment order is passed by a Manager-HR which designation is no-where listed in the list of posts sworn to also by the respondents. On Page 35 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the face of it therefore, the punishment order is by an incompetent authority and so liable to be quashed.
11. However, as the respondents have repelled this line of argument, it is important that we examine their version qua the MSA and other supportive documents.Accordingly, pertinent extracts of the minutes of the meeting of the Cabinet held on 08/11/2007 [Annexure CA-1] including Paragraph-12 of the Cabinet Note, and those of the Management and Service MSA dated 07/02/2008 [Annexure CA-2] reproduced above may be referred to.
12. Clearly, the Union Cabinet has indeed approved a certain paragraph-12 in its meeting of 08/11/2007. However, if the words and phrases of the Paragraph -12 are read carefully and not callously, the Cabinet has only approved the proposal of the Ministry of Defense for enabling IGRUA to only enter into an agreement with M/s CAE Inc. Canada for management of IGRUA. Nowhere is the MSA itself part of the Cabinet Note and so to construe that the Cabinet has approved the MSA also is therefore, misplaced. It is also to be noted that CA of R-2 {respondent- 2}, in para-14[c] states that the MSA was signed by the Joint Director per the authorization of the MCA. Perusal of Annexure CA-2 comprising the MSA does not anywhere give support to this contention of approval of the MCA for the Page 36 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. signing by the Joint Director. 50 pages of the MSA do not indicate anywhere with regards to this authorization by the Joint Director. In fact the MSA filed by the respondents as Annexure CA-2 is unsigned. [page-48 of CA/R-2 refers].
12.1 The applicant in his RA filed vide MP No. 1516/2019 has challenged in para-14 of his RA that there is no authorization to Jt Director if any (which post's existence itself is doubted by the applicant), by the competent authority to sign the MSA. The respondents have failed to show any document to contradict this assertion in any of the submissions. Moreso, there is no O.M. or document filed which would convey that the Secretary Ministry of Civil Aviation in the Ministry of Civil Aviation/Competent Authority has approved the contents of the MSA. 12.2 The Annexure CA-3 dated 25/2/2008 approving the minutes of the 58th meeting of the GC are not the approval of signing of MSA. The same is to be approved distinctly and separately by a specific order of the Central Government as an autonomous body cannot enter into any agreement with a foreign organization without such approval and there is nothing to show by the respondents that IGRUA can do so. The veil of the approval of the Union Cabinet has been discussed earlier wherein the conclusion reached was that Page 37 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the Cabinet had not approved the MSA specifically. 12.3 The respondent-1 was the best person to answer this gap. But the CA filed by R-1 fails to assert anything on this point.
12.4 This point is important because it is to be noted that only the intent action of signing of an agreement between IGRUA and CAE -a foreign firm was approved by the Cabinet, not the MSA itself, and there is nothing in the Paragraph-12 - agenda before the Cabinet which would help support any contention that the MSA was approved. Therefore, it would be logical to argue that any agreement draft would necessarily need to be separately approved by the Government as in the Central Government as in the Ministry of Civil Aviation. The MoApara 4(2)(m) extracted and referred to earlier in this judgment requires this approval and it is not filed by the respondents. The MSA in para-1 specifies that the MSA shall abide by the rules and by laws as applicable and no where is it said that the MSA has the powers to amend the rules, bye laws and any part of te 'Covenants' as defined in this judgment earlier - ease of reference for all the necessary rules and regulations concerning the case herein.
12.5 Even the MSA document as filed by the respondents does not in its end page - page-32 indicate as to who is Page 38 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the signatory of the MSA on either side as a person and as per designation. There is no sign at all. It is well-nigh blank. The document as filed does not meet the legal requirement of appropriate signature by an appropriate authority - even if the Jt Director - as we see no signature of any person in the MSA document filed by the respondents. 12.6 The respondents' submissions therefore, do not help our doubt on this and so straightway the validity of the MSA with regards to its content authorization itself becomes suspect, what to talk of the powers of the MSA itself to amend the IGRUA 'Covenants' and take up through the Governing Council or the Director or the Steering Committee for any action not specified in the rules and regulations.
12.7 To some extent one might argue that the MSA was discussed first in the 57th Governing Council ('GC' in short hereinafter) per the minutes filed by the respondents and approved in the 58th meeting of the Governing Council [Annexure CA-3 colly.]. At this juncture it is important to note that the applicant in his RA filed vide MP No 1516/2019 in para-14 stated that the minutes of the Governing Council of its 58th meeting as filed by the respondents are not signed by any member of the Governing Council. The respondents have failed to file any Page 39 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. signed copy of the minutes to rebut this assertion. As a result the applicant's assertion holds the field. Moreso, it is important to see what the MSA says about the authorization with regards to personnel on the employment roll of the CAE and given responsibilities with regards to IGRUA. Para-3 and Para-4 of the MSA concern the management of IGRUA and the role of a Director to be appointed by the CAE respectively. Same reproduced above would clearly indicate that as per para 3.3, the CAE is obliged to comply at all times the laws and regulations applicable to the Society
- which is the IGRUA -as well as the MoA and the Rules / Byelaws. So indisputably, nowhere does the MSA supersede the MoA, the IGRUA rules and regulations, the CDR and the Bye laws and any other rules existing in the IGRUA. Therefore, for the respondents to submit that the MSA empowered them to transcend the 'Covenants' is sheer blasphemy.
13. We see more evidence of this in the minutes of the 57th and the 58th meeting of the Governing Council and other related paras of the CA reproduced above.
14. As evident above, we fail to find any reference to superseding of the Covenants in any manner. Importantly -
(i) The assertion in para-14(d) of the CA of R-2 is misconstrued to the effect that Rule-3[c] of the Page 40 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Regulations while laying down authorization of authorities appointed by the Governing Council, it does not supersede para4-2(m) of the MoA under which the Regulations are made in the first place
(ii) The para 4.2(m) (reproduced in earlier part of th is judgment) lays down that any making of rules and regulations is with the approval of the Central Government only.
Hence the averments in para 14 of the CA of R-2 are highly misleading and misplaced. Therefore, the provisions regarding paras-7/8 of the MSA cannot oust the CDR as per the para-3.3 of the MSA itself. It is at best read as enabling appointment of functional managers - what the word 'functional' purports to is also dubious, - if it is purported to mean that managers of whatever nature appointed under Regulations and Bye laws of the IGRUA hitherto are of a different class of Managers which cannot be. Para-8.1 clearly mentions that the existing staff would be maintained on the basis of the extant rules and regulations. For clarity, paras 7-9 of the MSA reproduced earlier may be seen:
15. Clearly, the para-7 above mentions only three managers, viz - Manager-Operations, Manager-Services and Manager-Finance. It does not even mention any functional manager of the nomenclature of Manager-HR. So how come Page 41 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. a Manager-HR was appointed outside the MSA becomes a question which challenges the authority and legal competency of the designation and the person appointed as Manager-HR.
15.1 At this point it is also relevant to note that per the IGRUA Rules and Regulations reproduced and also discussed earlier that -
(i) Regulation-20 specifies that any alteration in the Regulations will have to need approval of the Central Government.
(ii) Regulation-18 of the IGRUA rules and regulations lays down that all appointments are to be made in orders issued by the Government of India from time to time;
(ii) para-(iii) and (iv) of the letter dated 25/3/2008 filed as RCA-3 by the applicant states as under:
"(ii) The Government had imposed a ban on promotions w.e.
15.4.98 and ordered discontinuation of the practice of permitting the promotion on completion of six years of service w.e.f. 6.1.2000.
(iii) The case of three other employees (presumable cook/canteen cooks) quoted by him is entirely different. Though the approved pay scales of cooks in IGRUA was 750-940(IV CPC) higher pay scales were awarded to some of them placed for ratification in the 32nd Governing Council Meeting. The three class IV employees who were already drawing pay-scale similar to the approved pay scale of cooks were selected as cook/canteen cooks through interview on 27/5/97 with the condition that they continue to draw their existing pay scales. unless the government approves for parity of pay scales with other cooks. were awarded the higher pay scale of Rs.950-1500 (IV CPC) w.e.f. the date of selection as cook/canteen, after obtaining Govt. approval. What she has been awarded promotion as Assistant Gr."A" w.e.f. the date of approval of the same by the Govt. though duties involving higher responsibilities of Assistant was taken from him only from the date of issue of Page 42 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
promotion letter. The three cook/canteen cooks were awarded the higher pay scale similar to other cooks only after obtaining govt. approval. Since Governing Council decision cannot be implemented without approval of the Govt., it is not possible to extend the benefit of higher pay scale of Assistant to Mr. Suresh Chandra Yadav on -- of the Governing Council.
(iv) The appropriate authority for approving adoption of pay scale/allowances, etc. of IGRUA employees is the Government of India, and decision taken in the Governing Council Meetings, as far as such matters are concerned need further ratification. No categorical instruction/direction has been issued by the Government to affect his promotion from a retrospective date. As such, there is no merit in his contention..."
What this implies is that the decisions of the Governing Council with regards to service conditions are required to be approved by the Central Government;
(iv) the RTI response by the MCA [Annexure RCA-4] in respect of point-20 states as under:
Annexure RCA-4 - Point-20:
Point 20. Status of employees on the rols of IGRUA is that they belong to an autonomous body under Ministry of Civil Aviation. Employees of CAE are not Govt. Employees.
What this implies that the applicant being an employee of IGRUA before the MSA has to be mandatorily governed with regards to his service matter under the IGRUA rules and regulations and as the MCA did not enter into any agreement with the CAE, therefore, the MCA did not abdicate its authority with regards to personnel matters of employees of the IGRUA with respect to their recruitment and disciplinary action rules and Regulations.Page 43 of 81
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16. If it is construed that the Cabinet approved the same per the 2007 meeting, then the same is highly misleading as nowhere is it contained in the para-12 of the Cabinet note that the contents of the MSA as signed that [it is to be noted that in the earlier part of this judgment we have questioned the very veracity of the MSA document filed by the respondents]. Further all that is referred to in the minutes of the Union Cabinet of 2007 is that the Cabinet considered the note dated 05/11/2007 from the Ministry of Civil Aviation and approved the proposals contained in paragraph 12 with the direction that any concerns of the Ministry of Defence be addressed suitably. The paragraph 12 itselfis with regards to seeking approval of the Cabinet for allowing IGRUA to enter into an agreement of management contract with M/s CAE. The para does not state anything regarding the draft of the actual agreement and so for the respondents to assert that the Cabinet approved the MSA signed by IGRUA and CAE is highly misleading and in fact mischievous.
16.1 Further the 58th Governing Council meeting [Annexure CA-3] clearly stipulated that - 'under the new management and the Council decided that there existing Service Regulations and Regulations shall be applicable". What this clearly implies is that even the new management qua Page 44 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the MSA decided to uphold and abide by the existing MoA, the IGRUA rules and regulations, the IGRUA CDR and the delegation of powers under the IDAFP.
17. Therefore, for the respondents to argue under affidavit that the MSA authorized appointment of personnel outside the recruitment rules and permitted grant of authority outside the CDR to any other person other than stated in the IGRUA rules and regulations and the IDAFP is highly misplaced and worthy of being shown the dustbin of unlawfulness.
18. Moreso, even the Secretary to the Union Ministry of Civil Aviation, who is ex-officio Chairman of the Governing Council ('GC' in short hereinafter) cannot change the IGRUA Covenants as Chairman of the GC and if any amendment is to be done it is to be an approval as Secretary to the Union Ministry of Civil Aviation, and not asChairman of the Governing Council because the Chairman of the GC is not the Government of the Union and is merely a Chairman of a Society even if under the Government / MCA. The Regulations of Business of the Government of India do not permit such transfer of authority from the Union Government to any bodysubordinate to it unless so specified per law. We see no proof of this being filed by the respondents. Actions if any would have to be taken by the Page 45 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Secretary with perhaps the approval of the Minister in- charge of the Ministry and a specific proposal in this regards to the Union Cabinet. The Cabinet proposal and the Minutes therefore, touted by the respondents does not anywhere state powers being given to the GC to amend, annul or in any where morph the Covenants and so any surmise by the respondents on this count is misconceived and born still.
19. In order to further argue it is to be noted that per Regulation 8.4(10) of the Regulations of the IGRUA Society the Director or the Governing Council cannot just create any post. The regulation extracted earlier reads as under:-
"8.4(10)Create technical administrative and other posts for the Akademi provided that proposals relating to emoluments structure i.e., adoption of pay scales, allowances and revision thereof and creation of posts of and above the pay scale of Rs. 1500-2000 would need the prior approval of the Government of India in consultation with the Ministry of Finance (Dept. of Expenditure), the Council, while creating posts under its delegated powers, shall be guided by the economy instructions issued by the Central Government from time to time"
From the above it is self-evident that in fact and reality even the Governing Council was not competent to create any post in the Akademi of and above the pay-scale of Rs. 1500- 2000/- on its own i.e. it could only create such post with the approval of the Government of India in consultation with the Ministry of Finance, Department of Expenditure. There is nothing to show by the Respondents that the Ministry of Finance, Department of Expenditure was ever consulted or Page 46 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. authorised creation of a MANAGER-HR post even for the GC or the Chairman in any-which manner. Thus, once again we find that, there is no material to establish a valid creation of MANAGER-HR's post in lieu or de-novo in addition to/of the earlier post of Chief Administrative and Finance Officer and so in terms of Regulation 8.4(10) the whole point of a valid post existing on which anyone could be posted as MANAGER-HR becomes de hors of the Society Regulations and Regulations. It follows consequentially that the orders per Circulars 04/03/1999 and 30/04/1999 the appointment and the authorization by the Director IGRUA are also illegal and irregular.
20. Now if we examine the CA filed by respondent-1 we find that nowhere has the CA supported the most crucial contention with regards to nexus of the minutes of the 57th and the 58th meeting of the GC with regards to competency of the GC to amend the Covenants. The Ministry's counter [CA-I] is deafeningly silent on this point when it is the single most important point concerning the O.A. There is no document shown by the respondent-2 which would support and buttress their case of the CAE / MSA having all the powers to amend the rules and regulations concerning disciplinary proceedings against the IGRUA employees of any category. There is also no circular or O.M. to show that the Page 47 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Covenants have been approved for amendment from the MCA.
21. Given the fact that the respondents do not have proof to support their assertion that Manager-HR had the powers to be the authorized lawful disciplinary authority, therefore, the punishment order of 2014 becomes without authority.
22. Thus there is no room for doubt that as the CDR, the IGRUA Rules and Regulations and the IDAFP are not superseded therefore, the MSA cannot throw them aside and so the stand of the respondents that the Manager-HR appointed per the MSA [para- 9 to 11 of supplementary affidavit filed by respondents vide MA No. 2106/2022 refers]
-would hold power of disciplinary action against the applicant appointed earlier by the Director vide order dated 01/10/1990 [Annexure -6 of O.A] becomes a stand in a swamp. The more the respondents try to defend their action the more they sink in the swamp of unsupported assertions.
22.1 To repeat, as the various rules and regulations are not amended by the MSA and cannot be as per the MSA para referred to earlier, and can only be done if at all, by Ministry of Civil Aviation as it is the Central Government as in the Ministry of Civil Aviation which is the competent authority to amend the 'rules and Regulations, in particular the MOA Page 48 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. and the Regulations contained in the IGRUA regulations, therefore, they hold the field and so any decision by the Governing Council under the cover of the Cabinet approval or by the Steering Committee is ultra vires of the extant provisions of the MoA, the IGRUA rules and regulations, the IGRUA CDR and the IDAFP.
22.2 Thus the assertion of the respondents in their CA are not legally sustainable and are patently de hors the applicable Rules and Regulations including the 'Covenants' as defined hereinabove.
23. Let it also be clearly said and held as per documents filed by Respondents, that till date there is no change in Schedule-I as amended in the year 1999 and Para 1(C) of the Instrument of Delegation. This would mean that it still stands and remains un-amended till date after 1999.
24. Therefore indisputably, the Manager-HR is definitely not the Departmental Head having authority to impose the punishment of removal from service of the Akademi, as referred in Regulation-27 on the applicant. 24.1 There is no mention of the post of Manager-HR in the aforesaid Schedule-I either as the Departmental Head or the authority competent to impose the punishment of removal or to proceed of such major punishment. For this reason the orders of 27/5/2014 are non est in eyes of law. Page 49 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. 24.2 Thus, on the basis of the above in-depth analysis we have no hesitation in holding that the impugned order has been passed by an incompetent authority and so it is non- est in law. Thus the first issue is settled against the respondents.
24.3What is also important is that once the order imposing the punishment 27/5/2014 is non-est in the eyes of law, the subsequent orders passed in appeal or revision loose their relevance and are ousted legally. So the appellate and the revisionary order so 24/9/2014 and 27/01/2016 also meet the fate of becoming non-est in the eyes of law.The first issue is accordingly settled against the respondents.Going to the second and third issue becomes superfluous but then since some arguments have been made by the respondents we shall deal with the same distinctly for whatever they are worth.
25. So, we may take up the second issue of legality of order by the appellate authority qua status of the person stated as Director of IGRUA. The appeal in respect of the impugned order - as the respondents themselves admit is to be decided per the CDR. The CDR as discussed earlier has Regulation-28 in which under the Schedule-I it specifies the authority who is competent to decide a particular stage of disciplinary proceedings for a particular level of employee Page 50 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. and as per a specified category of punishment. Accordingly, the appellate officer for punishment of removal from service of an employee of the level of applicant - viz - Assistant- Grade A, which the respondents also agree is specified at Sl- 14 of the list of posts [Annexure-10colly. Of OA also as Annexure SC-2 in supplementary affidavit filed by respondent-2] read with Schedule-I is the Chief Instructor. However, we find that the impugned order is passed by the stated person with the designation as Director IGRUA. Clearly Director IGRUA is not the specified appellate authority per the CDR which the respondents also hold as still applicable. Any assertion by the respondents that the MSA changed even this provision is still-born as they have themselves stated adherence to the same in the punishment order dated 27/5/2014. The para-9 of CA for R- 2 also states adherence to the IGRUA Conduct and Discipline Rules. Relevant portions of the para-9 and 14(g) of the CA for R-2 and the punishment order [Annexure-1] are extracted below:
Para-9 of CA for R-2:
" 9. That the contents of Para 4.3 of the origina application are denied as incorrect and wholly misconceived. The IGRUA is a society registered under the provisions of the Society Registration Act and is duly regulated by the Ministry of Civil Aviation in accordance with the bylaws of the society commonly known as Rules and Regulations. The IGRUA has also framed Conduct and Discipline Regulations contemplating the misconduct and the manner of initiating and concluding the disciplinary proceedings to Page 51 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
impose the penalties provided therein. These Regulations also contemplate....impose the punishment."
Para-14(g) of CA for R-2:
14(g). Under Rule-28 of the Conduct & Discipline Rules / Regulations the authority competent to impose the punishment mentioned in regulation-27 and the corresponding appellate authority has been given in terms of Schedule-1 attached with the said Discipline & per the Schedule the Departmental Head was the competent authority to impose the punishment of removal from service mentioned in Regulation-27(f). Accordingly the Manager HR being the departmental Head was fully competent to impose theAppeal Rules. The assistant was categorized at Sl. No. 14 and aspunishment of removal from service. A true copy of Conduct &Discipline Rules / Regulations is being filed herewith asAnnexureNo. CA-6 to this counter reply..."
.....................
Annexure-1 - punishment order dated 27/5/2014 "This has reference to the Charge sheet No. IGRUA :HR:PF:11:1431 dated 24th May 2011 issued to you in respect of the charges stated therein. You submitted your reply dated 05th April 2011 to the charge sheet and participating in the department enquiry instituted under IGRUA' Conduct & Discipline Rules vide this Office Memo No. IGRUA :HR:11:124 dated 19th April 2011 on the following charges"
If that is so, then the order of the Director is non-est in eyes of law as it is passed not by the authority specified in the Schedule-I under Regulation-28.
25.1 If it is argued that the Director is a level higher than the Chief Instructor and is therefore, competent to pass an order as appellate authority as a higher authority can always pass an order which a lower authority can pass - is baseless, because, per the CDR, there is no provision for the Director deciding an appeal or revision or any statutory Page 52 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
proceeding as higher authority relating to a disciplinary proceeding for an employee of the level of the applicant.
There is nothing in the CA filed nor in any of the documents filed by the respondents - which would help support the contention of the respondents. The precocious plea that the Director was the only available officer [para-26 of CA on behalf of R-2] is not justifiable inasmuch that just because the Director was the only available officer hence he had the authority under Schedule-I of Regulation-28 is blatant misreading of service jurisprudence tenets and cannot be upheld. Absence of a competent authority in a certain disciplinary proceedings does not automatically render authority to any officer not specified in any statutory power relating to the concerned disciplinary proceedings.
There is nothing in the MSA also which could support the respondents' contention. The Director IGRUA was not competent to pass any order as appellate authority in case of the applicant per Schedule-I under Regulation-28 read with the IDAFP. Hence we have no choice but to hold the appellate order as passed is by an incompetent authority on this ground itself.
25.2 It is further argued by the applicant that the order of Director IGRUA MR Verma is quashable because the Mr VK Verma as stated Director -is not technically a lawfully Page 53 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
appointed Director of IGRUA. This assertion is made on the following grounds:
(i) the Director is a contract employee first of all of the private firm CAE and has been sent on secondment by CAE to IGRUA.
(ii) Being a private firm employee he cannot have disciplinary proceedings powers on regular employees of IGRUA.
(iii) His appointment is de hors the notification of 29/10/2004 of the MCA [Annexure RA-4] which lays down the recruitment rules for appointment of Director IGRUA by the Ministry of Civil Aviation itself;
Hence any order passed by him in a disciplinary proceedings is an incompetent order.
25.3 The respondents have countered this by asserting that the Director has been appointed by the Central Government as in the Ministry of Civil Aviation under Rule 9.1 of the IGRUA Rules and Regulations vide order 22/7/2009 on approval of the Appointments Cabinet Committee {ACC in short hereinafter} [Annexure SC-1 filed as part of Supplementary affidavit by one Shri VK Singh on behalf of R-2] and so he is a lawfully appointed person and so derives powers for disciplinary proceedings against Page 54 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. employees of the IGRUA.
25.4 While in the relief para, there is no challenge to the appointment of Mr Verma, the same is disputed from the point of view of being a competent authority for deciding an appeal per the CDR. Only in this context, we take note here that Rule 9.1 of the IGRUA rules and regulations provides for appointment of Director of IGRUA by the Governing Council with the prior approval of the Central Government.
However, can the Central Government appoint a person outside the provisions laid down in its own notification of 29/10/2004 filed by the applicant ?. The applicant has asserted that the lawful appointment of the Director is to be done per the O.M. dated 29/10/2004 [Annexure RA-4 in the Rejoinder] issued by Government as Recruitment Rule for appointment of the Director IGRUA. That per the respondents averment, the said appointment does not meet the condition of maximum age of 55 years as specified in the notification because ShriVerma when appointed was a retired Air Marshall of the Indian Airforce and so beyond the prescribed maximum age of 55 years. 25.5 In order to decide this contra position, it would be useful to examine the appointment order and the O.M. of 29/10/2014 of the Ministry of Civil Aviation of the Central Page 55 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Government. The same read as under:
Annexure SC-1 No. AV.28012/001/2008-DG Government of India Ministry of Civil Aviation B Block, Raji Gandhi Bhavan, Safdarjung Airport, New Delhi 110003 Dated 22.0.2009 "ORDER In pursuance of Rule 9.1 of the Rules and Regulations of Indira Gandhi Rashtriya Uran Akademi and para 4.1 of the Management and services agreement between IGRUA and M/S CAE Aviation Training B.V., the Government hereby approves the appointment of Shri Vinod Kumar Verma, as Director Indira Gandhi Rashtriya UranAkademi (IGRUA) with the following salary , structure for a period of two years w.e.f the date of assumption of charge or until further orders, whichever is earlier:
Particulars Amount (in Rs. Remarks
Perannum
basic salary 4,000,000 50% of base salary
will be basic salary
and DA. The balance
amount will be
structured into flexible
allowances.
Sign on bonous 400,00 One time payout on
joining (105) of base
salary)
Bonus (performance 80,000
Incentive Scheme)
Food Coupons, 18000
Employees 240,000 12% of basic salary
contributions to PF and DA (Equivalent to
employee's
contribution)
Group Mediclaim and 16,250
Personal Accident
policy
Total 5,474,250
In terms of Para 4.2 of the Management and service agreement, ShriVinod KumarVerma has been seconded to IGRUA by M/s CAE Aviation Training B.V. (Ashok Kumar) (Under Secretary to the Govt. of India)
1. Chief Administrative Officer, Indira Gandhi Rashtriya UranAkademi, 4 Administrative Block Safdarjug Airport, New Delhi 11003.
2. Secretariat of the appointments of committee of the cabinet (Kind att. Mohd Moniaruzzan, Under Secretary), North Block,New Delhji W.R.T their OM No. 16/3/2--9 Eo (SMII) dated 20 July 2009, Page 56 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
3. PS to HMCA/Sr. PPS to Secretary/PPS to AS & FA/PS; to JS(S).
4. Ms Suzanne Ro, Regional Vice President, CAE, India, CAE Simulation Technology pvt. Ltd. Unit 1-2a, 4th Floor, NviGoter Block, ITRB, Whitefield Road , Bangaluru-66 All attached offices under Ministry of Civil Aviation All Officers/Section of this Ministry Annexure RA-4:
"TO BE PUBLISHED IN PART-II SECTION - 3 SUB SECTION (1) OF THE GAZETTE OF INDIA) GOVERNMENT OF INDIA MINISTRY OF CIVIL AVIATION RAJIV GANDHI BHAWAN, SAFDARJUNG ARIPORT, NOTIFICATION New Delhi -3, Dated the 29th of October, 2004 G.S.R. In exercise of powers conferred under Rule 9.1 of the Rules and Regulations of Indira Gandhi Rashtriya Uran Akademi (IGRUA), an autonomous organization under Ministry of Civil Aviation, and in supersession of the Director, Indira Gandhi Rashtriya Uran Akademi Recruitment Rules,2003 , the Central Government hereby makes the following rules regulating the method of recruitment to IGRUA, namely:
These rules may be called Director, Indira Gandhi Rashtriya Uran Akademi Recruitment Rules, 2004.
1. Short title and commencement:
(i) These rules may be called Director, Indira Gandhi Rashtriya UranAkademi Recruitment Rules, 2004.
(ii)They shall come into force on the date of their publication in the official Gazette.
2. Number of post, classification and scale of pay:
The number of the said post, its classification and the scale of pay attached thereto shall be as specified in columns 2 to 4 of the Schedule annexed to these rules.
3. Method of recruitment, age limit and other qualifications, etc.:
The method of recruitment to the said post, age limit, qualification and other matters relating thereto shall be as specified in columns 5 to 14 of the said Schedule.
4 Disqualification: No person, :
(i)Who has entered into or contracted a marriage with a person having a spouse living: or
(ii)Who, having a spouse living, has entered into or contracted a marriage with any person, Page 57 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Shall be eligible for appointment to the said post:
Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.
5. Power of relaxation: Where the Central Government is of the opinion that it is necessary or expedient so to do, it may by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.
Saving Nothing in these rules shall affect reservations, relaxation of age limit and other concession required to be provided for the Scheduled Castes, Scheduled Tribes, the Other Backward Classes, Ex - servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
(K.K.Pant) Under Secretary to the Govt. of India SCHEDULE PL REPRODUCE THE SCHEDULE GIVEN IN THE ANNEXURE Name of the No. of Post Classification Scale of pay Whether post Selectio of post or Non-
Selection
post
1 2 3 4 5
Director 1 Non- Rs. 18,400- Selection
Ministerial 500-22,400
plus Flying
and other
Allowance as
per rules of
the Akademi
Age Whether Educational and other Whether Period
limit for benefit of qualification required for age and of
direct added direct recruits education parobati
recruits years of al on, if
service qualificati any
admissibl ons
e under prescribe
rule 30 of d for
Central direct
Civil recruits
Service will apply
(Pension) in case of
Rules, promotes
1972
6 7 8 9 10
Betwee No Essential Not Not
n 45 (i) Holder of current Applicabl applicab
and 55 Airlines Transport e le
Page 58 of 81
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years Pilot's License
(iii) Instructional
experience on
aircraft for at least
3 years.
(iv) Knowledge of
latest aviation
technology around
the world.
(v) Administrative or
managerial
experience to be
able to run a
training institute
and liaise with the
professional and
Government
agencies.
Desirable
Graduate from a
recognized
University.
Method of Recruitment whether In case of Recruitment by
by direct recruitment or by Promotion/Deputation/Transfer
promotion or by deputation and grades from which
percentage of the vacancies to be Promotion/Deputation/Transfer to filled by various methods. be made.
11 12Page 59 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
Direct recruitment/deputation (i) Officers of Indian Air Force (including short term contract holding the rank of Group Captain and above; or Note The appointment either by direct recruitment or by
(ii) Officers of the Central deputation will initially be made Government/State Public Sector for a period of three years, which may be extended up five years. Undertakings/ Semi Autonomous or Statutory Organizations:
Governments/ Governments/
(a) (i) Holding Analogous post on regular basis: or
(ii) With 3 years regular service in posts in the pay scale of Rs.
16,400-450-20,900 or equivalent;
and
(b) Possessing the education qualifications and experience as indicated under column no. 8.
The upper age limit for appointment by deputation basis (including short-term contract) should not exceed 55 years on the closing date of receipt of applications.
Departmental Promotion Circumstances in which Union Committee exists -is composition. Public Service Commission is to be consulted in make in recruitment.
13 14Group A Departmental Promotion Not necessary as IGRUA is an Committee (for considering autonomous organization.
promotion)
1.Secretary, Civil Aviation
(Chairman of the Governing
Council of IGRUA) Chairman
2. Managing Director, Air India
Limited Member
3. Managing Director, Indian
Airlines Limited Member
(K.K. Pant)
Under Secretary to the Govt. of India
Clearly the OM of 2004 is a Recruitment Rule for recruitment and appointment of the Director of IGRUA. The Page 60 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. para-3 of the notification specifies that there is a Schedule to the notification - recruitment rule - and the appointment of the Director is to be under the terms and conditions specified in the Schedule. The Schedule specifies clearly in Col-4 that the scale of pay shall be Rs 18,400-500-22,400 plus some allowances and in Col-12 it specifies that the upper age limit shall be 55 years on the closing date of application even for a person appointed on contract. That ShriVerma has been appointed on a short term contract is evident from the letter of the appointment itself wherein it is specified that the appointment is for a period of two years. But it is also clear that on the date of appointment viz22/7/2009 [date of issue of appointment order by the MCA] Shri Verma was a retired Government employee having attained the age of superannuation although same is not written explicitly in the said appointment letter. Proof of his being a retired official is evident from - (i) the CA filed by the R-2 which is Shri Verma himself wherein in opening para just before para-1, it is written that Air Marshal (Retd) and there is a signature appended also and moreso, the age stated is about 69 years and given the fact that the CA is filed with affidavit vide date 17/3/2018, this statement by ShriVerma himself on oath before the Tribunal, would offer incriminating evidence that ShriVerma was actually a retired Page 61 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Air Marshal on date of appointment at least. There is no proof filed by the respondents as to what was the date of application of MrVerma which would help the respondents qua the age as specified in the Schedule to the 2004 notification. The said CA para reads as under:
Para before para-1 of the CA for R2 "1. That the deponent is presently functioning as Director, Indira Gandhi Rashtriya UdanAkademi, Fursatganj Airfield, Amethi who has been impleaded as respondent No. 2 in the above noted case. The deponent has gone through the contents of the original application and are relevant record and has understood the same and as such he is well acquainted with the facts deposed to hereunder."
25.6 Moreso, the Agreement signed between Mr. Verma and CAE [Annexure SA-3 filed by the respondent R-2 himself] which is also referred to in the MCA appointment letter above gives further proof that he was a retired official per the appointment letter issued by the MCA is dated reads as under:
Annexure SA-3 Air Marshal VK. Verma AVSM VM VSM (Reid) [EMPHASIS SUPPLIED] 11, BR Mehra Lane KG Marg, New Delhi-110001. India. Tel:23098006 Subject: Employment Agreement Dear Mr. VK Verma, Page 62 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
CAE Simulation Technologies Private Limited (hereinafter referred to as the "Company"! is pleased to offer you employment as Director IGRUA, at Indira Gandhi Rashtriya UranAkademi(IGRUA) located in Rae Bareli, Fursatganj, India. This offer is subject to the following terms and conditions: -
You will commence your employment contract on annual gross CTC of Rs. 54,74,250/- (Rupees Fifty Four Lakhs Seventy Four Thousand Two Hundred and Fifty only) (this amount includes all flexible benefits as detailed in the Salary Structure Annexure to this letter).
The job of Director, at IGRUA is of continuous responsibility, and does not entail payment of overtime. It is expected however that when required, you will work beyond the Regular Work Hours and on weekends and/or holidays.
You will commence your employment on Tuesday, 01st September 2009 at IGRUA, Fursatganj. The current contract is for a duration of 2 (two) Years, which is further extendable on mutual consent This also indicates that at least on 01/09/2009 Mr. Verma was a retired Government employee - of Air Marshal rank in the Air force. The respondents have not filed any document which would have helped us accept that a retired Government official can be appointed as Director IGRUA inspite of the notification of the MCA of 2004 above.
25.7 The reply of the respondents in the RTI reply dated 27.4.2011 filed as SA-4 by the respondent-2 also states in answer to point-10 that Mr. Verma is a retired Air Marshal. The RTI reply reads as under:
Annexure SA-4 File No.50/121/2011-RTI Cell Government of India Ministry of Civil Aviation "B" Block, Rajiv Gandhi Bhavan, Safdarjung Airport, Aurbindo Marg New Delhi, dated the 27.4.2011 Page 63 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
To, Shri Suresh Chander Yadav, Purai Birjore, Batore, Raibareli, Uttar Pradesh.
Subject: Request for information under the Right to Information Act, 2005.
Sir, In continuation of this Ministry's letter of even dated 7.4.2011, point wise information in respect of this Ministry is as under:
Points 1-2: Relevant extracts of file relating to appointment of Air Marshel(Retd.) V.K. Verma as Director, IGRUA. (contains 202 pages). These will be provided on receipt of payment as per the RTI Act.
Point 10: Air Marshal (Retd.) V.K. Verma is on the rolls of CAE, seconded to IGRU..with the approval of the Appointments Committee of the Cabinet. [EMPHASIS SUPPLIED] Point 11: The Recruitment Rules for the post of Director, IGRUA was repealed as per the directions of the Lok Sabha Secretariat. The appointment of IGRUA is made as per clause 4.1 of the Management Contract and Rule 9.1 of Rules and Regulations of IGRUA.
Point 12: There were no notified Recruitment Rules for the post of Director, IGRUA at the time of its establishment. The RRs for the post of Director, IGRUA was first notified in the year 1997, which was subsequently repealed.
Point 13-16: These do not fall under the category of information under the RTI Act, 2005.
Point 17: A copy of order dated 12.09.1986 regarding establishment of IGRUA along with the posts created ( contains 4 pages). These will be provided on receipt of payment as per the RTI Act.
Point 18: IGRUA is an autonomous body under the Ministry of Civil Aviation.
Point 19: Ministry of Civil Aviation did not enter into management contract with CAE. The same was signed between CAE and IGRUA. Hence the fulfillment of conditions of management contract has to be verified by IGRUA.
Point 20: Status of employees on the rolls of IGRUA is that they belong to an autonomous body under Ministry of Civil Aviation. Employees of CAE are not Govt. employees.
Point 21: Ministry has not delegated any such powers to CAE.
Point 22: This does not fall under the category of information under RTI Act, 2005.
Point 23-35: Ministry of Civil Aviation did not enter into management contract with CAE. The same was signed between CAE and IGRUA. As such CAE is not required to submit any such report to this Ministry.Page 64 of 81
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Point 36-37: No such complaint was received in this Ministry during the last month.
Point 38-39: No such letter was received in this Ministry.
Point 40: The tenure of present Director, IGRUA is upto 5.8.2011.
Points 41-42: As Points 1-9 above.
2. The information/documents in respect of points 1-9 & 17 containing 206 pages. You are, therefore, requested to kindly deposit Rs.412/- for obtaining the documents consists of 206 pages (@ Rs.2/- per copy) as per the rules made under RTI Act, 2005, either by Cash against proper receipt, or through Demand Draft, Indian Postal Order or Pankers Cheque favouring "Accounts Officer, Ministry of Civil Aviation, New Delhi"
The name and address of the Appellate Authority is given below:
Shri Syed Nasir Ali, Director, Ministry of Civil Aviation, Room No.253, B-Block, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi-110 003.
Tel: 24610359 Yours faithfully, (Ashok Kumar) Central Public Information Officer, Ministry of Civil Aviation"
Thus, there is no doubt that Mr. Verma was indeed a retired Government official in the capacity of Air Marshal [retd] on appointment and so the appointment order of 2009 above is in violation of the terms and conditions of appointment set out in the 2004 notification for recruitment and appointment of Director IGRUA.
25.8 The appointment order does not mention the O.M. of 2004 regulating the appointment of ShriVerma and the Page 65 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. respondents have not filed any document by which the Central Government may have superseded the 2004 recruitment rule notification of the MCA. Reference to the ACC per the endorsement in the appointment letter of the MCA does not prove anything qua any amendment to the 2004 notification. If not so, the notification of the recruitment rule still stands and holds the field. If that is so the MCA's reliance only on rule 9.1 of the IGRUA rules and regulations per the appointment order is only half baked and does not take into account the circular of 2004 issued by the Government itself while seeking to appoint the person affected by the notification. The 2004 notification is not a simple executive order. It is the promulgation of a Recruitment Rule for appointment of the Director to IGRUA. This cannot be just put under the carpet just because the MCA is approving an appointment. The MCA has not notified that any competent authority including the ACC or anyone if a competent authority has amended the 2004 notification. Therefore, even MCA has to amend the recruitment rule by a specific notification just as it had notified the 2004 notification ab initio and only then can an appointment be considered for a person in excess of the age specification stated in the notification. 25.9 This is apart from the standard DOPT O.M. Page 66 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. regarding recruitment in autonomous bodies filed as Annexure RA-5 by the applicant in his Rejoinder. The Annexure reads as under:
Annexure RA-5:
No. 25012/8/98-Estt. (A) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) New Delhi-11001.
Dated the 30th May, 1998 OFFICE MEMORANDUM Subject: Age of retirement in autonomous bodies/organizations - Raising of.
The undersigned is directed to say that the Fifth Central Pay Commission in para 128.16 of its report recommended for increase in age of retirement of Central Government employees from 58 years to 60 years. recommendation of the Fifth Central Pay Commission has been accepted by the Government and it has been decided to increase the age of retirement of Central Government employees from 58 years to 60 years. Accordingly; F.R. 56 has been amended vide this Department's Notifications No. 25012/2/97-Estt. (A) dated 13.5.1998 and 27.5.1998. The amended F.R. 56 (a) reads as under:
"(a) Except as otherwise provided in this rule, every Government servant shall retire from the service on the afternoon of 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".
(C) In respect of autonomous bodies/organization not covered by (a) &
(b) above, the Administrative Ministry concerned may examine the matter on merits and thereafter approach the Department of Personnel, if it proposed to extend the age of retirement in these autonomous bodies/organization. The usual conditions that the maximum age of retirement, shall not exceed 60 years and there shall, be a complete ban on extension in service beyond the age of superannuation except in case of medical and scientific specialists, who can be granted extension in service, on a case to case basis, upto the age of 62 years and the orders relating to increase in age of retirement shall not be applicable to the Page 67 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
persons on extension in service on the date of issue of orders shall apply.
3. Approvals in the cases covered by paras 2(a) and (b) above will be at the level of the Minister-in-Charge of the administrative Ministry.
sd/ (Harinder Singh) Joint Secretary to the Government of India. The respondents have shown nothing which show that this condition has been relaxed in case of appointment of Mr. Verma by any competent authority. Therefore, the appointment order is violative of this circular of the same Central Government of which MCA is also a part of. 25.10 The MCA could not have appointed Mr. Vermade hors the conditions stated in the notification of 2004 or the other circulars cited above without specifically waiving them off qua the appointment of Mr. Verma as Director IGRUA. As this is not shown to be done, we cannot but help conclude that the MCA seems to have faulted in approving the appointment of the Director without taking into account the notification of the Central Government even if MCA is within the Central Government. If not so, the respondents at least have failed to file any document which would help us confirm otherwise. Moreso, the pay package approved for Mr. Verma per the appointment order of MCA is not the one permissible by the 2004 recruitment rule Page 68 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. notification. The pay permissible is only per scale of Rs 18,400-22,400/- as against a pay package of more than Rs 54 lacs per annum stated in the appointment order. This also violates the pay condition stated in the 2004 notification. There is no document filed by the respondents stating that this condition has been waived off. After all any expenses at the IGRUA are paid from the public exchequer and this is also stated in the MSA [para of MSA-11, 25 refers] and so the respondent-1 has the responsibility for adhering to such financial conditions of appointment. The respondent-1 has said nothing on the above appointment in the CA and so the assertions of the applicant stand unrebutted and win the day. Thus, as no document is filed superseding the recruitment rule notification of 2004 of the Director IGRUA, it continues to hold force and so the appointment of ShriVerma becomes suspect and so any order passed by him as a disciplinary authority with regards to the applicant becomes liable to be struck down as not maintainable on grounds of being an order by an incompetent authority. Therefore, we cannot but hold thatthe order of stated Director ShriVermaAir Marshal (retd) passed as Appellate authority in the case at hand, is liable to be struck down. Therefore, the second issue is also decided against the respondents.
Page 69 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
26. Now we may advert to the third issue of legality of the order dated 27/1/2016 and the connected procedure adopted with regards to the disciplinary proceedings given the orders of re-enquiry issued vide date 17/11/2014 and 05/1/2015 by the MCA itself.
26.1 The applicant has challenged the 27/1/2016 order [2016 order in short hereinafter] and the connected disciplinary proceedings procedure on the following grounds:
(i) that the Chairman IGRUA/MCA directed re-enquiry in the disciplinary proceedings related to him vide orders dated 17/11/2014 and 05/1/2015, but the punishment order was passed without any re-enquiry and to the contrary, based itself on the earlier inquiry report of 25/3/2014 and so the punishment order itself became vitiated and so bad in law;
(ii) the order of 27/1/2016 of Chairman IGRUA is also vitiated because it has upheld the vitiated punishment order which had violated the order of the Chairman IGRUA directing re-enquiry and instead based itself on the earlier inquiry report and not conducting a re-enquiry per the order of the Chairman / MCA. The Chairman IGRUA is opaque to his own order of re-enquiry which is an order concerning a disciplinary proceedings impacted by CDR and not just any Government letter of miscellaneous nature. Per the tenets of Page 70 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
service jurisprudence, any letter or document directing an action in a disciplinary proceeding is of critical consequence in deciding whether the correct procedure is complied with during the course of disciplinary proceedings. 26.2 The respondent-1 in the CA has rebutted this assertion on the ground that on receipt of the representation dated 09/7/2014, the punishment order of 27/5/2014 was reconfirmed vide the impugned order as it was a fully justified order. No rationale is offered qua the re-enquiry order by the MCA itself and the lack of compliance of the same by the disciplinary authority.
26.3. In order to settle this issue it is relevant to examine the IGRUA CDR to which both parties subscribe. On doing so we find that procedure is laid down in Regulation -29 of the CDR. Relevant portions read as under:
Regulation -29 "29. PROCEDURE FOR IMPOSING PENALTIES (1) No order imposing any of the penalties specified at (e), (f). and (g) of Regulation 27 shall be made except after an inquiry is held in accordance with this Regulation.
(2) When any report of misconduct against an employee is received, a preliminary enquiry may be made, if considered necessary, by the disciplinary authority or by an officer nominated by him. (3)On the preliminary enquiry or otherwise if the facts of the case reveal that a prima facie case exists for initiation of proceedings for misconduct against any employee, the following procedure should be followed:
(a) A charge-sheet specifying the charges with sufficient particulars in order to enable the employee concerned to give an adequate Page 71 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
explanation, shall be laid by the competent authority on the employee requiring him to submit his written explanation within a prescribed period which will not be less than 7 days from the date of the service of the charge-sheet. The service includes communication by Registered A.D. or personal delivery at the last known address.
(b) On receipt of the written explanation, if it is found to be unsatisfactory, and enquiry should be held by the disciplinary authority by himself or through any person or persons including a public servant designated by him as the Enquiry Officer into the misconduct enumerated in the charge-sheet, after due notice in writing to the employee concerned. Provided that it may not be necessary to hold an enquiry in respect of charges admitted by the employee in writing.
(c) Disciplinary authority may nominate any person including a Public Servant to present the case on behalf of the Akademi in the enquiry wherein he considers such nomination necessary. ...................
.......................
.................
(i)In case any witness refuses to sign his statement or deposition, or the person charged refuses to sign the day's proceedings, the fact should be recorded by the Enquiry Officer in the Enquiry proceedings and in such a case, the proceedings/depositions would be deemed to have been signed by the person/persons concerned.
(j) After the completion of the production of the evidence,the employee and the Presenting Officer may file written briefs of their respective cases within 7(seven) days of the date of completion of the production of evidence.
..........
(m) Whenever any Enquiry Officer, after having heard and recorded the whole or any part of the evidence in an enquiry ceases to exercise jurisdiction there in, and is succeeded by another Enquiry Officer who has, and who exercises, such jurisdiction, the Enquiry Officer so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded corded b by himself.
Provided that if the succeeding Enquiry Officer is of the opinion that further examination of any of the witnesses ▸ whose evidence has already been recorded is necessary in the interest of justice, he may recall, examine, cross-examine and re-examine any such witnesses as herein before provided.
(n) (i) After the conclusion of the enquiry, a report shall be prepared and it shall contain:
(a) a gist of the articles of charges and the statement of the imputation of misconduct.
(b) a gist of the defence of the employee in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge;Page 72 of 81
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(d) the findings of each article of charge and to reasons therefore.
Explanation:
If in the opinion of the Enquiry Officer the proceedings of the Enquiry establish any article of charge different form the original article of charge, he may record Provided his findings on such article of charge. that the findings on such article of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The Enquiry Officer, where he is not himself the disciplinary authority, shall forward to the disciplinary authority the records of enquiry which shall include:
(a) the report of the enquiry prepared by him;
(b) the written statement of defence, if any, submitted by the employee;
(c)the oral and documentary evidence produced in the course of the enquiry;
(d)written briefs if any; and
(e)the orders, if any, made by the disciplinary authority and the enquiry officer in regard to the enquiry.
(4) The disciplinary authority shall pass final orders awarding such the punishments as may be justified in his opinion. If, however, the disciplinary authority is of the opinion that the case deserves punishment higher than that he is competent to award, he shall forward the case to the higher disciplinary authority for orders who shall dispose of the case as if the entire proceedings had been carried out by that authority.
(c) When the punishment proposed is dismissal, removal or reduction in rank/grade, a copy of the Enquiry Officer's Report shall be sent to the employee concerned, asking him to show cause within one week's time why the particular punishment should not be imposed on him. [EMPHASIS SUPPLIED]
(c) On receipt of his explanation or where no explanation is received within the stipulated time as in (c) above, the disciplinary authority should pass final orders after considering the explanation. The procedure detailed in clause (c) will not be necessary where an employee s dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge involving moral turpitude.
(e) Where an employee against whom disciplinary action is contemplated has absconded or where for any other reason it is not practicable to communicate with him, the disciplinary authority may, after ful scrutiny of all the available evidence bearing on the case, pass such orders as he may deem fit.Page 73 of 81
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(f) In so far as practicable, the enquiry for the penalties specified at (e),
(f) and (g) should be completed within a period of six months. ....................... "
Further Regulation -29(8) provides for Appeal and in 29(8)(iii) it is specified that where the circumstances warrant any authority higher than the appellate authority may review a case.
27. Clearly, there is provision for a preliminary enquiry followed by issue of charge sheet to which the delinquent employee is expected to respond by a written explanation and if the same is found unsatisfactory, then, the disciplinary authority himself or through an Enquiry officer shall get the enquiry done with regards to the charges contained in the charge sheet. Further steps are described in the Regulation 29 extracted above.
27.1 The point to be discerned is that the applicant filed a representation dated 09/7/2014 [Annexure-15] against the punishment order on grounds stated therein, to the Secretary MCA who is ex-officio Chairman IGRUA who in his wisdom ordered a re-enquiry vide order of November 2014. Later when the applicant drew the attention to the fact that while the re-enquiry has been ordered, the punishment order itself still stands and so the re-enquiry looses its Page 74 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. purpose and so rescinding the punishment order was pre- requiste to order of re-enquiry, and so a revised order needs to be issued on his representation of July 2014. To this objection, the Secretary MCA it seems ordered a fresh re- enquiry vide order dated 05/1/2015 [2015 re-enquiry in short] rescinding the earlier order of re-enquiry. Even this re-enquiry order did not contain rescinding of the punishment order of 2014. And so the applicant represented again but to no avail and finally the MCA issued the impugned order of 2016.
27.2 Examined with the lens of service jurisprudence to which any disciplinary proceedings is amenable, it is clear that per the CDR and the Schedule-I under Regulation-28 of the IGRUA rules and regulations -(i) we have a disciplinary proceedings against the applicant;(ii) the disciplinary authority for imposition of punishment order is the 'Departmental Head' as also additionally re-iterated by the respondent-2 in the supplementary affidavit for punishment involving removal from service vide Annexure SC-2 [erroneously typed as Annexure SC-1 because Annexure SC- 1 is the appointment letter of MCA dated 22/7/2009 - already discussed earlier which Annexure was also filed with the written arguments filed vide a supplementary affidavit vide date 15/3/2022 / 25.7.2022 as Annexure-1]; (iii) And Page 75 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the appellate authority per the same Schedule-1 is the Chief Instructor and not the Director IGRUA or the Chairman IGRUA or the Secretary MCA.
Thus, armed with these indisputable points, the question arises as to in what capacity did the Secretary MCA / MCA as Central Government / Chairman IGRUA pass the order of re-enquiry on two occasions and in what capacity did he pass the impugned order of 2016 ?. It can only fall under Regulation 29(8)(iii). If that is so, why was the re- enquiry not done and how could the authority passing order under Regulation 29(8)(iii) do so without taking into account the re-enquiry order made by itself - in both cases - the re- enquiry order and the 27/1/2016 order it is the MCA which is the ordering authority?.
27.3 There is no justifiable answer to these questions as there cannot be. The point is that the CDR to which the respondents are wont to swear upon, time and again,requires a certain procedure to be followed. The Chairman should have referred the representation of the applicant with regards to the punishment order to the Appellate authority / Disciplinary Authority for appropriate decision per the procedure laid down in the IGRUA CDR because the representation of the applicant against the Page 76 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. punishment order is dated 09/7/2014 against the punishment order of 27/5/2014 and the appellate order is of 24/9/2014 and per the appellate order the appeal was filed vide date 26/6/2014. But this did not happenand, instead, the Chairman / MCA himself / itself ordered a re-enquiry, not once but twice. Now when we examine the CDR Regulation 29 or for that matter the entire Regulation, we find that there is nothing mentioned with regards to re-enquiry although the various steps involved as stated in the Regulation would expectedly enable a charged employee to make his submissions for any aspect of the Enquiry which would be dealt with by the Enquiry officer or otherwise the disciplinary authority would have to take a decision per the requirement of giving full opportunity to the employee against whom Enquiry is being conducted - Regulation 29[3]{e-m}. It is the assertion of the respondents that the applicant did submit his reply dated 05/4/2011 as stated in the punishment order but did not participate in the other steps of the Enquiry process - para-20 of the CA for R- 1 refers. The same is extracted below:
Para-20 of the CA for R-2 "20. That the contents of para-4.8.1, 4.8.2, 4.8.3, 4.8.4, 4.8.5 and 4.8.6 of the original application are denied as stated. The enquiry was held by affording all reasonable and condign opportunities to the applicant in consonance with the principles of natural justice in accordance with the said Discipline & Appeal Rules / Regulations. The enquiry officer thereafter Page 77 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors.
submitted a detailed enquiry report and thereafter the matter was concluded in accordance with law. The disciplinary proceedings were culminated into the impugned order of removal from service. It is also worthwhile to mention that the applicant remained wholly non-cooperative and hostile during the entire enquiry proceedings. He left the enquiry proceedings without taking permission from the enquiry officer. However the enquiry officer fixed another date after recording the facts in the daily sheet. The date of enquiry was fixed as 20.02.2014 vide letter dated 12.02.2014. The applicant despite having information of the date of enquiry did not attend the enquiry on 20.02.2014 nor submitted any request expressing his inability to attend the enquiry. The applicant had been avoiding to receive letters / notices against the acknowledgement. On his refusal to receive the letters against the acknowledgement the same was sent by Post at his office as well as at his permanent address. On 01.03.2014 the applicant was called to receive the letter but he refused which was witnessed by 2persons and was mentioned in the letter No. I.G.R.U.A. HR-14 dated 01.03.2014." Therefore, the respondents assert that the applicant cannot now turn around and allege irregularity in the process when the Chairman upheld the punishment order. The applicant has repelled this contention of the respondents on the ground that as the entire disciplinary proceedings was vitiated right from the issue of the charge sheet stage - it being issued by an incompetent authority - hence he did not deem it lawful to participate in the Enquiry and to the extent that the Manager-HR who passed the punishment order is also not arrayed as respondent because that would be arraying an incompetent respondent-party in the lis. 27.4 Notwithstanding the rival contentions above, it is clear that the key point in the third issue is the vires and te force including compliance by all concerned of the order of the MCA / Secretary MCA - order issued by the Under Secretary but with the approval implied of the Secretary as Page 78 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. the representation was addressed to the Secretary MCA / Chairman IGRUA - per the authorities specified in the IGRUA CDR regulations more particularly the Schedule-I under Regulation -28. Here, the Chairman has no place and so any order passed by the Chairman is contestable. IGRUA CDR Regulation 29(8)(iii) provides orders by authority higher than appellate authority, but then should any such authority intervene - qua the re-enquiry ordered in this case on two occasions by the MCA - presumably on the approval of the Secretary MCA, therefore, while on one hand the order of re-enquiry on both occasions is not complied - presuming it derives force from Regulation 29(8)(iii), the applicant's challenge that the order of 2016 be set aside is also justifiable, because, once the re-enquiry order becomes not complied, the subsequent order upholding the punishment order becomes de hors the abintio order of re-enquiry by the same authority without any observation on the re-enquiry order by the same authority inspite of the provision if at all under Regulation 29(8)(iii). The Schedule-I does not specify any role for Chairman making any order with respect to the punishment imposed on the applicant per the CDR. Since the applicant had challenged the Disciplinary authority and the Director as per reasons already discussed in this judgment, he had no choice but to approach the MCA / Page 79 of 81 CAT, Lucknow O.A. 24/2018-Suresh Chandra Yadav Vs. U.O.I.& Ors. Secretary MCA ex-officio Chairman IGRUA but that does not mean that once the Chairman or the Secretary MCA intervened and ordered a re-enquiry, he/she should not see into its compliance and without rescinding the order of re- enquiry issued for the second time, could not have passed the order of 27/1/2016 and leave it to the applicant to read into it that the order of re-enquiry is also non-est by the order of 27/1/2016 because it upholds the punishment order of the Disciplinary authority. He/She should have referred the matter to the competent authority in his view which legally is the disciplinary authority or at best the appointing authority which is the Director in the case of the applicant or the appellate authority by designation. The Chairman is after all not the appointing authority of the applicant per the appointment letter dated 01/10/1990 [Annexure-6 of O.A ]. Thus the order of Chairman dated 27/1/2016 is non-est in the eyes of law from any angle of discussion and as it has not followed the procedure, it is quashable also.
28. It is accordingly directed that:
i. The punishment order of removal from service vide date 27/05/2014 and the Appellate order dated 24/09/2014 are quashed;Page 80 of 81
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ii. The order of 27/1/2016 is also non-est and quashed;
iii. Applicant shall be reinstated as from date of removal from Service;
iv. There will no back wages on the principle of no work no wages;
v. Increments due shall be counted notionally for pension purposes if payable as per service conditions only and not to be payed as arrears of pay;
vi. The directions herein shall be complied within one month of receipt of a certified copy of this order failing which it shall be deemed contempt unless and until this order is stayed by an order of higher court.
O.A. allowed as per above terms.
29. No costs.
DEVENDRA CHAUDHRY JUSTICE ANIL KUMAR OJHA
Member (A) Member (J)
vidya
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