Central Administrative Tribunal - Delhi
S.K. Srivastava vs Union Of India on 29 June, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.2094/2014
With
MA No.2632/2014 and
MA No. 3470/2014
Reserved On:25.05.2015
Pronounced On:29.06.2015
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
S.K. Srivastava, IRS,
Commissioner of Income Tax,
Aged about 50 years
S/o Late B.S. Bhaskar,
CRD C-II/9, Pandara Park,
New Delhi-110 003. Applicant
By Advocate: Shri S.K. Gupta.
Versus
1. Union of India
Through Secretary,
Department of Revenue,
North Block,
New Delhi-110001.
2. Secretary,
Ministry of Home Affairs,
North Block,
New Delhi-110001.
3. The Central Board of Direct Taxes,
Through its Chairman,
North Block,
New Delhi-110001.
4. The Central Bureau of Investigation,
Through its Joint Director,
Policy,
CBI Headquarters,
CGO Complex,
Lodhi Estate,
New Delhi-110001.
5. The Ambassador of India in France
(Being the Controlling Supervisor of
Ms. Ashima Neb [IRS 99010], First Secretary
In the Embassy of India in France at Paris)
C/o Ms. Sunitha Singh, IFS,
Foreign Secretary, MEA,
South Block,
New Delhi-110004.
6. The DGIT (HRD), Delhi,
2nd Floor, ICADR Bldg., 6, Institutional Area,
Vasant Kunj,
New Delhi-110070.
7. Sri P. Chidambaram
16, Pycroft Garden Road,
Chennai, Tamilnadu-600034.
8. Ms. Deepa Krishan, IRS,
Now working as Member (P), CBDT,
C/o US, Ad-I, Department of Revenue,
North Block,
New Delhi-110001.
9. Sri S.M. Nigam, IRS,
Now working as DGIT [(Vig.) & CV],
CBDT,
C/o US, Ad-I, Department of Revenue,
North Block,
New Delhi-110001.
10. Sri T. Jena, IRS
Now working as DGIT (HRD), CBDT,
C/o US, AD-VI, Department of Revenue,
North Block,
New Delhi-110001.
11. Sri B.K. Jha, IRS,
Now working as CIT, Delhi-III,
C/o US, AD-VI, Department of Revenue,
North Block,
New Delhi-110001.
12. Sri N.N. Kumar, IRS
Deputy Chairman, JLNPT,
C/o Secretary, Ministry of
Shipping and Road Transport,
Transport Bhawan,
Sansad Marg,
New Delhi-110001.
13. Sri Virendra Singh, IRS
C/o US, AD-VI, Department of Revenue,
North Block,
New Delhi-110001.
14. Sri Rajesh Kumar Kedia, IRS
C/o US, AD-VI, Department of Revenue,
North Block,
New Delhi-110001.
15. Ms. Ashima Neb (IRS 99010)
C/o Ms. Sangitha Singh, IFS,
Foreign Secretary,
MEA, South Block,
New Delhi-110004.
16. Ms. Sumana Sen (IRS 99005)
C/o Ms. Neena Nigam, IRS,
CIT Delhi-VI, C.R. Building,
I.P. Estate, New Delhi-110002.
17. Sri S.N. Kau, IRS,
C/o US, AD-VI, Department of Revenue,
North Block,
New Delhi-110001. ..Respondents
By Advocate: Shri Rajesh Katyal for Respondents No.1,3 &
6.
Shri Amit Chawla for Shri H.K. Gangwani
for Private Respondents.
ORDER
G. George Paracken, Member(J) This Original Application has been filed by the Applicant seeking a direction from this Tribunal to the Respondents to pay him Pay and Allowances and to reimburse expenses incurred by him on traveling on official duty amounting to Rs.5 lakhs which have not been done since April, 2013 despite his representations to the Chairman, CBDT and to the CCIT(CCA), Bihar and Jharkhand. The reliefs and interim relief sought by him in this Original Application are as under:-
Reliefs (i) To direct Respondents No.1 & 3 to pay to Applicant his Pay & Allowances due since April, 2013 and reimburse expenses incurred by him on traveling on official duty with interest @ 14% per annum and also to pay him arrears of his Pay & Allowances not being paid to him since April, 2013.
(ii) To award the cost of present proceedings.
(iii) To pass such other and further order/s with this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
Interim Relief Applicant humbly prays that pending final consideration of OA, Respondent No.3 may be directed to start paying to Applicant his salary from June, 2014 onwards and for that purposes attach him to the Pr.CCIT (CCA), Delhi as has been done by Respondents in the case of Ms. Ashima Neb (IRS 99010) and others vide its Orders dated 10.01.2014, F.No.A-23012/4/2007-AD.VI.
2. Brief facts: The Applicant is an Indian Revenue Service (IRS for short) Officer of 1987 batch. He has been kept on compulsory wait since 06.03.2013. According to him, the Respondents No.1, 3 and 6, namely, Union of India, through Secretary, Department of Revenue, the Central Board of Direct Taxes, through its Chairman and the DGIT (HRD), New Delhi respectively are directly responsible for arbitrarily and without the due authority in the law denying him the Pay and Allowances and non-reimbursement of his other dues from May, 2013. In this regard, he made a representation to the CCIT (CCA), Bihar & Jharkhand on 03.02.2014 stating that he has not been paid his Salary and Allowances since April, 2013 and is being forced to undergo unlawful deprivations. As no action was taken in the matter, he again made representation to the 3rd Respondent on 31.05.2014 requesting him to release his uptodate Pay and Allowances and reimburse the expenses of about Rs.5 lakhs incurred by him on traveling to various places on official duties. He has also pointed out in the said representation that even the suspended employee is entitled to get the subsistence allowance and since he had no money even to look after himself and his family, he was literally surviving on the mercy of others. However, according to him, no action was taken by the CBDT and its functionaries and he was still kept on compulsory wait without any Pay and Allowances. Again, he made a representation to the Ist Respondent on 12.12.2014 stating that the aforesaid functionaries are illegally asking him informally to go and stay in Patna, if at all he wants a posting and salary. However, according to him, as per the DOPT Instructions, his headquarters during the compulsory wait is at Delhi as during the period of compulsory wait, he is attached with the Establishment Officer in the DOPT while his salary, etc. is to be borne out by the last establishment from where he was sent on compulsory wait. In this regard, he has referred to para 18.2 of the Office Memorandum No.36/77/94-EO(SM-I) dated 05.01.1996 regarding the Central Staffing Scheme Procedure for selection and appointment of officers to Secretariat posts of and above the rank of Under Secretary to the Government of India and to certain important non-Secretarial post, which reads as follows:-
COMPULSORY WAITING 18.2 Where an officer is to be appointed to a post different from the one held previously on account of return from training, or abolition of post etc. he/she shall continue to be borne on the establishments of the organization in which he/she previously held the post and his/her pay and allowances shall be met by that organization, till such time he/she assumes charge of a new post. The services of such an officer during the period of his/her compulsory wait can be utilized by the Establishment Officer or by the organization concerned with the approval of the Establishment Officer, for any specific assignment.
3. The Applicant has also referred to the judgment of the Honble Supreme Court in the case of Shri N.K. Singh Vs. Union of India 1994 SCC (6) 98 in his favour. In the said judgment, the Apex Court was considering the legality of the petitioners transfer from CBI to BSF. Though the Supreme Court dismissed the appeal but appreciated the track record of the appellant. The Supreme Court observed as under:-
24. We do hope that this would be a passing phase in the service career of the appellant and his crusader's zeal would be confined to the sphere of his official activity for improving the image and quality of public service of the police force, in which he holds a high office. By achieving that purpose, he would render much greater public service. These observations are apposite in the present context.
4. The Applicant has also annexed a copy of the Respondents Office Order No.10/2014 dated 20.01.2014 by which the concerned CCA were directed to pay the salary and other allowances of two officers during their training/orientation programme in MEA before their posting to Indian Missions abroad. The said order reads as under:-
F.No.23012/4/2007-Ad.VI Government of India Ministry of Finance Department of Revenue (Central Board of Direct Taxes) New Delhi, dated the 20th January, 2014 ORDER NO.10 OF 2014 Consequent upon their posting as First Secretary, ITOU in Indian Missions abroad vide Office Order F.No.A-23012/4/2007-Ad.VI dated 06/01/2014 and relieving from CCIT (CCA), Delhi, for attending the 2-day training/orientation programme in MEA, the officers mentioned hereunder are posted as OSDs in CCIT (CCA) Charge, Delhi w.e.f. 11.01.2014 (F/N) until further orders:-
Sl.No CODE NO.
NAME OF THE OFFICER & DESIGNATION TO CCA CONCERNED
1.
99010 MS. ASHIMA NEB CCIT (CCA) DELHI
2. 01016 Sh. V. VIZAY BABU CCIT (CCA) DELHI
2. During the period of their posting as OSD, the salary and other allowances of the above officers shall be drawn and disbursed by the CCIT (CCA) concerned as mentioned against their names.
Sd/-
(Anand Upadhyay) Under Secretary to the Government of India.
5. However, during the pendency of this OA, the Principal CCIT, Patna has issued letter No.F.PR.CCIT/Pat/Estt./II-1/Vol.-II/2014-15/9462 dated 14.10.2014 to the Applicant seeking his explanation for not reporting to that office after having been relieved as CIT (A), Ranchi. The Applicant has filed a copy of the same vide MA No.3470/2014 for taking it on record. The said letter is reproduced as under:-
GOVERNMENT OF INDIA OFFICE OF THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, (BIHAR & JHARKHAND REGION) BIR CHAND PATEL PATH, PATNA-800 001 2504347, EPABX-2504040-22, 2504024-25, 2504580-88 FAX:0612-2504556 F.No.Pr.CCIT/Pat/Estt./II-1/Vol.II/2014-15/9462 Dated, Patna, October 14, 2014 To Shri S.K. Srivastava, Commissioner of Income-tax (OSD) O/o Pr. Chief Commissioner of Income-tax, Bihar & Jharkhand, Patna.
R/o CRD II/9, Pandara Park, New Delhi-110003.
Sir, Sub: Non reporting to duty as CIT (OSD) in the O/o CCIT (CCA), Patna Reg.
Kindly refer to above.
In this regard, I am directed to state that in compliance of Honble High Court of Delhi order dated 01.03.2013 in Cont. App (C )1/2013 and CM No.854/2013 (stay), Shri S.K. Srivastava (87052), CIT(A), Ranchi was placed on Compulsory Wait as CIT (OSD) in the O/o CCIT (CCA), Patna vide Boards order No.45 of 2013 dated 06.03.2013 and CIT(A), Jamshedpur was directed to hold the additional charge of CIT (A), Ranchi. Later, Sri Srivastava was deemed relieved on 12.03.2013 as CIT (A), Ranchi vide this office order dated 29.04.2013 (copy enclosed).
I am directed to state that you have not reported to this office upon being relieved till date consequently no salary has been paid to you from this office.
I am further directed to inform that the Principal, CCIT, Patna desires you to join this office forthwith. I am also directed to convey that the Principal CCIT, Patna has sought your explanation for not complying with the Boards order No.45 of 2013 dated 06.03.2013 by 29/10/2014 failing which appropriate action under relevant rules would be taken.
Yours faithfully, Encl: As above.
(Sandeep Raj) Addl. Commissioner of Income Tax (Hqrs.) Admn.
For: Principal Chief Commissioner of Income-tax,Patna.
6. The Respondents No.1, 3 and 6 in their reply have submitted that the prayer of the Applicant for payment of salary to him from April, 2013 onwards is based on gross misrepresentation and false claims. Further according to them, the said prayer is not only patently illegal but is also a mischievous attempt to legitimize his unauthorized absence from his station of posting since March, 2013.
7. As regards the facts of the case are concerned, they have stated that the Applicant was transferred out of Delhi in 2011 on his promotion as Commissioner of Income Tax and posted as CIT (Appeals), Ranchi. He challenged the said order vide OA No.2600/2011 before this Tribunal but it was dismissed vide order dated 23.11.2011. He challenged the said order before the Honble High Court of Delhi vide W.P. ( C) No.8324/2011 and it was also dismissed, vide order dated 22.12.2011. He challenged the order of the High Court before the Honble Supreme Court where his SLP was dismissed as withdrawn. His further applications for review before this Tribunal have also been dismissed. Thereafter, he was relieved by the Cadre Controlling Chief Commissioner, Delhi to enable him to report as CIT (Appeals), Ranchi on 27.12.2011. However, he reported as CIT (Appeals), Ranchi only on 21.06.2012, after almost 6 months. On 04.01.2013 he was convicted to 15 days civil imprisonment by the Honble High Court of Delhi in CONT CAS (C ) 330/2012. He challenged his conviction before the Division Bench of High Court vide CONT APP (C ) 1/2013. During the course of the hearing, he claimed that his conduct was the result of going through psychological trauma and agreed to being examined by VIMHANS, Delhi. Accordingly, the High Court directed that report of his examination be submitted to the Court in sealed cover. On 01.03.2013, the High Court, after considering the report submitted by the VIMHANS, observed, vide order dated 01.03.2013, that there are serious issues arising from the report of VIMHANS and issued interim directions as under:-
(i) No communication addressed by the petitioner qua any issue should be given any cognizance or be taken into consideration.
(ii) The petitioner should not be entrusted with any work in the Department as it may affect the public at large, an aspect we have emphasized to the learned counsel for UO. This would necessitate making alternative arrangements as the appellate proceedings would be required to be completed before the end of the financial year.
8. In compliance of the above court orders, vide order dated 06.03.2013, he was placed on compulsory wait as CIT (OSD) in the O/o CCIT, CCA, Patna with immediate effect and until further orders. Consequent upon the said order, CIT (A) Jamshedpur was given additional charge of CIT (A), Ranchi. Thereafter, the office of the Chief Commissioner of Income Tax, (Bihar and Jharkhand Region) issued another order dated 29.04.2013 stating that Shri B.K. Singh, Commissioner of Income Tax (Appeal), Jamshedpur has assumed the additional charge of the Commissioner of Income Tax (Appeal), Ranchi in the afternoon of 12.03.2013 and as such Shri S.K. Srivastava (87502), CIT (A), Ranchi is deemed to be relieved on 12.03.2013 in the afternoon to join on Compulsory Wait as CIT (OSD) in the O/o CCIT(CCA), Patna. As he did not report to the office of the Cadre Controlling Principal Chief Commissioner at Patna so far in compliance of the aforesaid order of the CBDT dated 06.03.2013, his pay and emoluments could not be drawn by the office of the Pr. CCIT Patna as the salary and emoluments of any Government servant can be drawn only after he reports to his place of posting. They have also stated that while he did not proceed to Ranchi either for handing over the charge of CIT (A) Ranchi, or report to CCIT (CCA), Patna on compulsory wait, he had filed an affidavit in the course of proceedings in CONT APP ( C) 1/2013 in the Delhi High Court stating that he had not been able to hand over charge in Ranchi because of court orders dated 01.03.2013 which would prevent him from signing any papers, as no cognizance would be taken of his communications.
9. We have heard the learned counsel for the Applicant Shri S.K. Gupta, learned counsel for Respondents No.1, 3 and 6 Shri Rajesh Katyal and the learned counsel for the Private Respondents Shri Amit Chawla for Shri H.K. Gangwani. In our considered view, the denial of the monthly Pay and Allowances and other benefits admissible to the Applicant by the Respondent-CBDT and the Pr.CCIT, Patna is wholly unjustifiable. It is not only unreasonable but it is also illegal and unwarranted. The Supreme Court in its judgment in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others AIR 1989 SC 1607 and the Punjab & Haryana High Court in its judgment in the case of Jarnail Singh Science Master and Another Vs. Khalsa High School, Ambala City and Others 2005 (5) SLR 158(P&H-DB) considered such cases of non-payment of salary and allowances and held that it would amount to violation of Article 21 of the Constitution.
10. The directions of the Honble High Court to the Respondents in its order dated 01.03.2013 were only that the Applicant should not be entrusted with any work in the Department as it may affect the public at large and to make alternative arrangements as the appellate proceedings would be required to be completed before the end of the financial year. However, the Respondent-Ministry of Finance, Department of Revenue (CBDT), New Delhi, vide order dated 06.03.2013, on its own decided to place him on compulsory wait as CIT (OSD) in the O/o CCIT (CCA), Patna with immediate effect and until further orders. The expression Compulsory Wait in service jurisprudence has not been defined in any of the laws or rules. However, the said expression finds its place in the Office Memorandum No.36/77/94-EO(SM-I) dated 05.01.1996 regarding the Central Staffing Scheme Procedure for selection and appointment of officers to Secretariat posts of and above the rank of Under Secretary to the Government of India and to certain important non-Secretarial post issued by the Department of Personnel, Public Grievances and Pension, Department of Personnel and Training. According to the said OM, the Central Staffing Scheme provides a systematic arrangement for the selection and appointment of officers to senior administrative posts at Centre, excluding posts which are specifically encadred within the organized Group A services or filled by recruitment through the Union Public Service Commission. Some posts of Deputy Secretary and Under Secretary under the Central Government are shown as numbers, without specifying individual posts, in the cadre strength of the Central Secretariat Service. These posts are filled in accordance with the rules of the CSS, and when so filled, stand outside the Central Staffing Scheme. Appointments to all other posts of the rank of Under Secretary and above in the Government of India are filled under the Central Staffing Scheme, by borrowing officer from the All India Services and participating Group A services; the cardinal principle being that all officers who are so borrowed will serve the Government of India for a stipulated tenure on deputation and, thereafter, return to their parent cadre. Their growth, development and career prospects will be mainly in their own Service. The expression Compulsory Waiting has been used in the context of the aforesaid Central Staffing Scheme. According to para 18.2 of the said Scheme Where an officer is to be appointed to a post different from the one held previously on account of return from training, or abolition of post etc. he/she shall continue to be borne on the establishments of the organization in which he/she previously held the post and his/her pay and allowances shall be met by that organization, till such time he/she assumes charge of a new post. The services of such an officer during the period of his/her compulsory wait can be utilized by the Establishment Officer or by the organization concerned with the approval of the Establishment Officer, for any specific assignment. According to the said Scheme, the Department of Personnel & Training is the nodal Department which will make further postings to an officer on Compulsory Wait. The Applicant is an Indian Revenue Service Officer and admittedly, he is not governed by the Central Staffing Scheme. However, since the Respondent-CBDT, New Delhi in its wisdom, applied the aforesaid scheme in the case of the Applicant and kept him under Compulsory Wait, on the same analogy, he shall be on Compulsory Wait with his cadre controlling authority (CBDT) but he shall continue to be borne on the establishment of the organization in which he previously held the post, namely, the O/o Pr.CCIT, Patna and his Pay and Allowances shall be met by that organization, till he assumes charge of a new post on the orders of his aforesaid cadre controlling authority. Therefore, the insistence of Respondents that the Applicant shall be reporting to office of the Pr. CCIT, Patna daily or he shall be living in Patna alone for drawing his Pay and Allowances is absolutely whimsical, illogical and arbitrary.
11. We, therefore, allow this OA and direct the Respondents No.1, 2 and the Pr.CCIT, Patna to ensure the uptodate payment of the Applicants pay and allowances from April, 2013 with 12% interest per annum and the same is credited to his bank account within 15 days from the date of receipt of a copy of this order. He shall also be reimbursed other expenses incurred and claimed by him within the aforesaid period, if they are permissible under the rules. His pay and allowances for the subsequent months shall also be drawn and credited to his account as in the case of other employees working under the Pr.CCIT, Patna. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh