Central Administrative Tribunal - Delhi
Ashutosh Gautam vs Indian Council Of Agricultural ... on 27 January, 2022
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Item No. 5 O.A. No. 179/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 179/2022
MA No.185/2022
This the 27th day of January, 2022
Through Video Conferencing
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Ashutosh Gautam
Working as Asstt. Legal Adviser (Group-B),
Aged about 44 years,
s/o Late Ramkripal Singh,
R/o B-6, Krishi Vihar,
J.B.Tito Marg,
New Delhi-110048.
...Applicant
(By Advocate: Mr. M.K.Bhardwaj)
Versus
1. Indian Council of Agricultural Research (ICAR),
Through its Secretary
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi - 110001.
2. Indian Council of Agricultural Research (ICAR),
Through its Director,
IARI Directorate, Pusa Campus,
New Delhi-110012.
3. Santosh Kumar Singh,
Director (Law), ICAR,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi - 110001.
4. Shaleen Agrawal (in person),
Chief Vigilance Officer, ICAR,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi - 110001.
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Item No. 5 O.A. No. 179/2022
5. Ravi K. Dobriyal (in person),
Under Secretary (Vig.), ICAR,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi - 110001.
...Respondents
(By Advocate: Mr. S.K.Gupta)
ORDER (ORAL)
Hon'ble Ms. Manjula Das, Chairman MA No.185/2022 This application has been filed by the applicants seeking exemption from filing typed copies of dim annexures.
2. Since we are disposing of the OA, this MA is disposed of as having become infructuous. OA No.179/2022
3. This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:-
"(a) Quash the order dated 12.07.2021 whereby the Disciplinary Authority of the applicant has been selectively and arbitrarily changed by ICAR,
(b) Declare the order dated 12.07.2021 as bad in law and accordingly quash other consequential actions connected with and related to the order dated 12.07.2021 including OM/Show Cause Notice dated 15.12.2016, 05.01.2017, 11.11.2019 and 20.10.2021 issued against the applicant.3 Item No. 5 O.A. No. 179/2022
(c) summon the entire record of respondents w.r.t.
subject ma tter of this OA.
(d) direct for investigation by any independent agency in all matters referred in this OA.
(e) Pass any such order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
4. The applicant was appointed as Assistant Legal Adviser (ALA) and working in that capacity since 01.02.2010. He was transferred along with the post of ALA from ICAR Headquarter to IARI, New Delhi vide office order dated 03.05.2017 and since then he is continuing there. It is submitted that soon after his appointment as ALA in ICAR he applied for the post of Legal Adviser (LA), ICAR on 05.02.2010. Sh. S.K.Singh, respondent No.3 herein, who was reporting officer of applicant also applied for the said post. Both of them were not eligible for the post of LA for want of essential qualification, i.e., 10 years' active practice as an Advocate. It is alleged that respondent No.3 despite not possessing essential qualification for the post of LA, was appointed, as such, illegally on 08.12.2010. It is submitted that the applicant had applied for the post of LA and also sought relaxation in qualification keeping in view his higher educational qualification, i.e., LLM. It is stated that respondent No.3 after his appointment as LA started harassing 4 Item No. 5 O.A. No. 179/2022 and humiliating applicant on one pretext or the other. Applicant further submitted that he has sufficient written documentary evidence to suggest and prove the humiliation and harassment caused by respondent No.3. It is further submitted that respondent No.3 lodged false and malafide complaints against applicant by using his undue influence on his subordinates. There are various other incidents where respondent No.3 allegedly humiliated and wrote malafide adverse remarks against the applicant. Simultaneously respondent No.3 being personally biased and having malafide intention to humiliate applicant on record was also entering adverse remarks in his APARs. It is further submitted that the endless humiliation and harassment which started on 04.05.2010 at the hands of respondent No.3 is continuing till date. The respondents No.4 & 5 are alleged to be in collusion with respondent No.3, which is evident from the fact that the said two officials have been instrumental in issuing the impugned orders and covering up all misdeeds of respondent No.3. It is further alleged that respondent No.3 was appointed as JLO, thereafter promoted as ALA and as LA and LO and within this short period he got himself illegally 5 Item No. 5 O.A. No. 179/2022 appointed as LA. He also got further promotion as Director and even attempted to become Joint Secretary but he did not succeed in his said attempt due to intervention of Hon'ble High Court where PIL was filed challenging his alleged fraudulent appointment as LA. When the applicant did not come under pressure of respondent No.3, he kept harassing the applicant in collusion with respondents No.4 & 5 and ultimately respondent No.3 issued memo dated 18.04.2011 to applicant vide which it was inter alia directed that negligence on the part of Assistants, UDCs has to be brought on record by the ALAs for appropriate actions. Said direction was followed by applicant and negligence on the part of Assistant, UDCs was brought on record, but no action has been taken by respondents No.3. Rather, respondent No.3 in collusion with one Sh. Sanjay Rastogi, Section Officer exploited the situation and provoked the officials and invited from them complaint against applicant. It is alleged by the applicant that all the aforesaid officers including respondent No.3 were involved in various matters of irregularities and corrupt practices. It is submitted that total 12 6 Item No. 5 O.A. No. 179/2022 memoranda were issued by respondent No.3 at his own level but he could not succeed in his objective.
5. It is further submitted that respondent No.3 in complicity with the then Director of ICAR got a draft charge sheet prepared to be issued to applicant. However, later on said draft charge sheet could not be issued due to intervention from appropriate level, and in place of said proposed charge sheet, a memorandum dated 15.12.2016 was issued seeking explanation on certain issues. It is further submitted that immediately after issuance of memo dated 15.12.2016, another memo dated 22.12.2016 was issued by respondent No.3 himself and this respondent in collusion with Sh. Rajan Agarwal, the then CVO, ICAR got a show cause notice issued to the applicant.
6. Feeling aggrieved, applicant filed OA No.3746/2016 seeking direction for his promotion to the post of Law Officer. This Tribunal directed ICAR on 08.11.2016 to take decision in the matter within two months but the respondent instead of complying with the order of the Tribunal arbitrarily issued memoranda/show cause notices dated 15.12.2016, 7 Item No. 5 O.A. No. 179/2022 22.12.2016 and 05.01.2017 so that disciplinary proceedings could be initiated against the applicant. However, when no action was taken in compliance of the Tribunal's order dated 08.11.2016, the applicant filed contempt petition which resulted in applicant's transfer vide order dated 03.05.2017 from ICAR Headquarter to IARI. Apprehending the wrong doing and bias, the applicant submitted a confidential note requesting the Joint Director to delink for the sake of impartial examination of issues raised in aforesaid OM read with show cause notice dated 11.11.2019, certain biased and interested officers of IARI from the matter. It is stated that the said request was accepted and those biased and interested officers of IARI were delinked from the matter. In response to show cause notice dated 11.11.2019, the applicant sought some documents for submitting reply to the said issues but the same were not supplied. The applicant submitted reply dated 30.05.2020 to aforesaid show cause notice dated 11.11.2019. It is stated that after thorough examination nothing adverse was found against him. Applicant further submitted that a PIL has also been filed before the Hon'ble High court of Delhi relating to illegal appointment of respondent No.3 as LA, which is 8 Item No. 5 O.A. No. 179/2022 pending adjudication. It is further submitted that shockingly the ICAR vide order dated 12.07.2021 arbitrarily changed the disciplinary authority of applicant in violation of instructions of Govt. of India and ICAR which action on the part of ICAR is completely de hors the rules. The applicant represented against this vide letter dated 12.10.2021 followed by reminders seeking clarification about the unilateral and arbitrary change in the disciplinary authority. Immediately after submission of this letter, applicant was served with an office memorandum dated 20.10.2021. It is submitted that respondents are adamant and pre-motivated to punish the applicant. Hence the OA.
7. We heard Sh. M.K.Bhardwaj, learned counsel for the applicant and Sh. S.K.Gupta, learned counsel for respondents.
8. We find that applicant is challenging the memorandum dated 15.12.2016 and 05.01.2017 without giving any explanation as to the delay in approaching the Tribunal. No MA seeking condonation of delay has been filed either. It is well 9 Item No. 5 O.A. No. 179/2022 settled that an applicant has to explain each day's delay in approaching the Tribunal.
9. Section 21 of the Administrative Tribunals Act, 1985 deals with limitation, which, for the sake of convenience, is reproduced below :
―21. Limitation.--
(1) A Tribunal shall not admit an application--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-
section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified 10 Item No. 5 O.A. No. 179/2022 in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.‖
10. From the perusal of the aforesaid section, it is abundantly clear that limitation prescribed for filing O.A. before this Tribunal is one year from the date of accrual of the cause of action. The same can be extended by another six months from the date of filing of appeal, if the same is not decided. It has further been stated that if the application is not filed within time as stipulated in Section 21 of the A.T. Act, then the applicant has to move a Misc. Application for seeking condonation of delay by explaining the delay of each day in not filing the Original Application within the limitation. Section 21 of the Administrative Tribunal Act 1985 came up for consideration before the Hon'ble Apex Court in a catena of cases including the following cases:-
(a) S.S. Rathore v. State of M.P. (AIR 1990 SC 10);
(b) Administrator of Union Territory of Daman and Diu and others Vs. R.D. Valand - 1995 Supp(4) SC.C. 593;
(c) State of Karnataka & Ors. Vs. S.M.Kotrayya & Ors.(1996 (6) S.L.R. S.C. Page 664);
(d) P.K.Ramachandran versus State of Kerala & Another (J.T. 1997(8) S.C. 189);
(e) Karnataka Power Corporation Limited through its CMD & Another vs. K.Thangappan & Another (2006(4) S.C.C. 322);11 Item No. 5 O.A. No. 179/2022
(f) U.P.Jal Nigam vs. Jaswant Singh & Ors. (2007(1) S.C.T. 225;
(g) C. Jacob vs. Director Geology & Mining (2008 (10) S.C.C 115) ;
(h) Union of India & Ors. v. M.K. Sarkar reported in (2010)2 Supreme Court Cases 59; and
(i) Union of India & Ors. Versus A.Duairaj (J.T. 2011(3) S.C. Page 254).
11. In S.S. Rathore v. State of M.P. (supra) the Hon'ble Supreme Court while dealing with the issue of delay and laches held as follows:
―We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.
The question for consideration is whether it should be disposal of one appeal or 'the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of sub-ss. (2) and (3) of s. 20 of the Administrative Tribunals Act. There, it has been laid down:
"20(2). For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievances; or
(b) where no final order has been made by tee Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.12 Item No. 5 O.A. No. 179/2022
(3) For the purposes of sub-sections (1) and (2), any remedy available to an appli- cant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. It is appropriate to notice the provision regarding limitation under s. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub- section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article' 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue.
Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.
12. We also find that the applicant has made personal allegations against respondents No.3 to 5 but 13 Item No. 5 O.A. No. 179/2022 he has not been able to substantiate the same. It appears that the applicant in order to cover his own shortcomings has levelled false and baseless allegations against the aforesaid officials without any supporting document by merely alleging bias which cannot be taken cognizance by the Tribunal. No case is made out for interference by the Tribunal.
13. In view of the above facts and circumstances of the case, we do not find any merit in this OA. Accordingly, the same is dismissed being devoid of merit besides being barred by limitation. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
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