Central Administrative Tribunal - Delhi
Shashi Mohan vs M/O Rural Development on 2 February, 2024
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Item No. 30/C-II O.A. No.2293/2019
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.2293/2019
This the 02nd day of February, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K Gupta, Member (J)
Shashi Mohan,
S/o Late Shri Lal Nim,
Deputy Director (U.S),
Council for Advancement of People's Action and Rural
Technology (CAPART),
R/o LIG Flat No. 193-A, Pocket-12,
Jasola Vihar, New Delhi- 110 025.
Age : 52 Years,
Group A
...Applicant
( By Advocate : Mr. Yogesh Sharma)
Versus
1. Union of India
Through Ministry of Rural Development,
Krishi Bhawan, New Delhi - 110001
2. Executive Committee,
Council for Advancement of People's Action
And Rural Technology (CAPART),
2nd Floor, Zone 5A (Core-C),
India Habitat Centre, Lodhi Road,
New Delhi - 110003
3. The Director General,
Council for Advancement of People's Action
And Rural Technology (CAPART),
2nd Floor, Zone 5A (Core-C),
India Habitat Centre, Lodhi Road,
New Delhi - 110003
4. The Deputy Director (AED),
Council for Advancement of People's Action
And Rural Technology (CAPART),
2nd Floor, Zone 5A (Core-C),
India Habitat Centre, Lodhi Road,
New Delhi - 110003
...Respondents
(By Advocate : Mr. A.K. Singh)
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Item No. 30/C-II O.A. No.2293/2019
ORDER (ORAL)
By Hon'ble Mr. Tarun Shridhar, Member (A) Aggrieved by disciplinary proceedings initiated against him under Rule 14 of the CCS (CCA) Rules vide memorandum dated 06.10.2017 and a subsequent memorandum dated 20.01.2019, the applicant has filed the instant Original Application seeking the following reliefs :
"(i) Set aside and quash the Memorandum dated 06.10.2017 vide File No. CCC/09/2017-2018.
(ii) Set aside and quash the Memorandum dated 21.02.2019 issued vide File No. 2-4/2019-AED.
(iii) Set aside and quash the Suspension order dated 11.01.2019 passed in File No. 2-4/2019-AED;
(iv) Direct the Respondents to reinstate the Applicant with full back wages and consequential benefits; and
(v) Pass any other and further orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
2. As para 8 of the OA quoted above would reveal, the applicant was also placed under suspension in connection with the disciplinary proceedings vide order dated 11.01.2019. He agitates his grievance with the respect to the suspension in the present OA.
3. Although quite a few grounds have been outlined in the OA while assailing the action of the respondents in initiating the disciplinary proceedings 3 Item No. 30/C-II O.A. No.2293/2019 against the applicant, the arguments as put forth by Mr. Yogesh Sharma, learned counsel for the applicant have centered around a single ground i.e. the entire action is vitiated as the proceedings have been ordered by an authority who was not competent in terms of the provisions of the CCS (CCA) Rules.
4. Learned counsel has argued that since, ab initio, the proceedings are not maintainable, little purpose would be served on dwelling upon the merits of the charges which have been levelled against the applicant.
5. Pursuant to notice, the respondents have filed a detailed counter reply strongly contesting the Original Application, and further, relying upon the relevant rules and notifications, have argued that the disciplinary proceedings against the applicant have been initiated on the orders of the Director General (CAPART), who is the notified disciplinary authority of the position the applicant was holding.
6. The respondents in the said counter reply and as further explained by Mr. A.K. Singh, their learned counsel have also described the specific circumstances against which the disciplinary 4 Item No. 30/C-II O.A. No.2293/2019 proceedings against the applicant were initiated and also highlighted the fact that at the relevant time, a decision had been taken to wind up the organisation that is CAPART and accordingly, its Executive Committee meetings were not being held, however, in the alternative, necessary approvals were obtained from the minister in-charge in his capacity as Chairman of CAPART. Hence, the entire exercise of initiating the disciplinary proceedings has been within the powers of the competent authority viz. DG (CAPART) and the minister as Chairman.
7. The subject of this Original Application has had a chequered history. This OA has been heard and decided on an earlier occasion vide order dated 06.08.2023. The said order was put to challenge by the applicant in the Hon'ble High Court and the Hon'ble High Court vide order dated 15.05.2023 in Writ Petition (Civil) No. 1308 of 2020 has remanded the matter back for fresh consideration and adjudication. The observations of the Hon'ble High Court in its said order in the Writ Petition No. 1308 of 2020 are as under :
28. The issue which falls for consideration is whether Dr. Nagesh Singh and Mr. Sanjeev Kumar working as 5 Item No. 30/C-II O.A. No.2293/2019 Additional Secretaries in the erstwhile RD having been given the look after charge of the post of Director General, CAPART could exercise the statutory functions under the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
29. From perusal of the impugned order, we find that one of the issue which has been decided by the Tribunal is with regard to Clause 36 (c) of Memorandum of Association. The submission in that regard was that the Director General is only a delegatee of the Executive Committee of the CAPART and as per Clause 36 (c) of the Memorandum of Association, the Executive Committee can delegate its power to the Chairman, Standing Committee, Director General or any other Officer, but the action taken by such authorities shall be subject to a confirmation at the next meeting of the Executive Committee. The Tribunal has rightly concluded that the powers to act as a disciplinary authority and impose major penalty have been rightly conferred upon the Director General by way of an amendment. It had also concluded that the occasion for a delegatee to seek approval of the Executive Committee arises only when an action is taken by the Director General as a delegatee. As in the disciplinary proceedings, the action can be said to have been taken only when the proceedings are dropped or punishment is imposed. Therefore, the contention of the Dr. Chauhan in that behalf was not accepted.
30. On the aspect that the action taken by Director General, CAPART was not in terms of the Judgment in B.V. Gopinath (supra), the Tribunal has in paragraph 8 noted as under:6
Item No. 30/C-II O.A. No.2293/2019
"8. The second contention urged by the
applicant is that the action taken by the 3rd respondent is not in accordance with the judgment of Supreme Court in B.V. Gopinath's case (supra). That was a case in which the Appointing Authority was Finance Minister and the various steps were being taken by an authority under him. The Supreme Court held that the approval of the Appointing Authority is necessary at the stages of initiation of disciplinary proceedings, framing of the charge sheet and imposition of punishment. In the instant case, the disciplinary authority himself is taking various steps. Therefore, the question for getting approval of any other authority does not arise."
31. What is pertinent here is despite specific ground taken by the petitioner herein in ground (b) of O.A. 2293/2019, which reads as under, the Tribunal failed to consider the same:
"BECAUSE as per Article 311(1) of the Constitution of India no person shall be dismissed or removed by an authority subordinate to the Appointing Authority.
However, in the case of the Applicant the charge-sheets and the suspension order have been issued by the Respondent No.3 that is the officiating Director General who is subordinate to the Appointing Authority that is Executive Committee (Respondent No.2) and hence the charge-sheets and the suspension letter are without authority of law and therefore non-est in the eyes of law."7
Item No. 30/C-II O.A. No.2293/2019
32. The ground (b) in substance is that Dr. Nagesh Singh and Mr. Sanjeev Kumar who had issued the charge sheets / suspension order were substantively holding the post of Additional Secretary, in the Ministry of Rural Development and were given the look-after charge, hence, they could not have issued the charge sheets or the suspension order. We find that the Tribunal has not dealt with this issue.
Though, Dr. Chauhan has relied upon Annexure A-2 (filed along with the application seeking permission to file additional documents on record) which is the instruction issued by the Government of India, concerning the issue. It may be necessary to state here, the same was not on the record of the Tribunal in the O.A. The issue raised by the petitioner about the competency of functionaries, such an Additional Secretaries, having been given a look after charge, could have exercised the statutory function under the provisions of CCS (CCA) Rules, 1965 is an important issue, on which we are of the view, should necessarily be first decided by the Tribunal as such an issue would go to the root of the maintainability of the charge sheets / order of suspension issued against the petitioner.
33. Appropriate shall be that the matter is remanded back to the Tribunal by reviving the O.A. 2293/2019 on the board of the Tribunal for a fresh decision on the above issue. We also grant liberty to the counsel for the petitioner and also the counsel for the respondents to file additional documents before the Tribunal in support of their case on the aforesaid issue.
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34. While we remand back the matter we do not disturb the finding of the Tribunal on the two issues. The Tribunal, whilst deciding the aforesaid issue, shall consider the challenge of the petitioner and effect of the issue on the prayers made by the petitioner in the O.A. Since, there is an interim order passed by us directing the Inquiry Officer to defer the proceedings of the inquiry to a date beyond the date fixed by this Court in these proceedings, we deem it appropriate to direct that till the Tribunal decides the issue for the purpose we are remanding the matter back to the Tribunal, the Inquiry Officer shall not conduct the proceedings till a decision by the Tribunal. The Tribunal shall decide the issue within a period of three months from today as an outer limit. The petition is disposed of on the aforesaid terms.
35. No costs.
8. In view of the observations and directions of the Hon'ble High Court, while reconsidering the OA for fresh adjudication, we consciously confine ourselves to the issue of competence of the relevant authority in passing orders in the disciplinary proceedings. The two memorandums impugned in the present Original Application have been issued by Dr. Nagesh Singh and Mr. Sanjeev Kumar respectively. It is not in dispute that at the relevant time, both these officers were holding the post of Additional Secretary in the Ministry of Rural Development and Panchayati Raj. It 9 Item No. 30/C-II O.A. No.2293/2019 was on account of the retirement of the incumbent holding the post of DG (CAPART) that an order was issued that these officers shall "look after" the charge of DG (CAPART).
9. It would be pertinent to quote the orders vide which these charges were assigned to them : 10
Item No. 30/C-II O.A. No.2293/2019
10. It is, unambiguously, apparent that the charge assigned was only to "look after", and in addition to 11 Item No. 30/C-II O.A. No.2293/2019 their existing assignment. Further, this charge was assigned with the approval of the Minister of Rural Development and Panchayati Raj.
11. Mr. Yogesh Sharma, learned counsel for the applicant has drawn attention to the documents annexed by the respondents themselves with their short reply/written statement dated 26/7/2013. One of the said documents is the rules and regulations of CAPART and with respect to the appointment of Director General, the relevant regulations read as under :
DIRECTOR GENERAL (amendment - 13-May-2013) The Director General shall be the principal Executive Officer of the Society. He shall be appointed by the Executive Committee, with the prior approval of the Government of India. He shall receive such salary and emoluments and emoluments and will be governed by such terms and conditions of service as the Executive Committee may determine from time to time with the approval of the Government of India.
II. In the absence of the Director General on long leave, deputation in India or abroad or at the time of laying down office, arrangements to look after his duties may be made by the Chairman of the Executive Committee.
12. We have no doubt that these rules and regulations carrying statutory force require that the appointment is to be made by the Executive 12 Item No. 30/C-II O.A. No.2293/2019 Committee. The Chairman can approve arrangements to "look after" the duties of the DG in his absence. The key rider is "look after". Although we also take note of the submissions made by the learned counsel for the respondents that ACC approval is also required for appointment to the post of DG (CAPART). Even if it is so, ACC approval has to be necessarily followed by appointment by the Executive Committee. We note that in the instant case, neither Dr. Nagesh Singh, nor Mr. Sanjeev Kumar were as such appointed to the post of DG (CAPART), and were merely ordered to "look after" the charge of the said post in addition to their existing assignment.
13. The limited issue is whether could they have exercised the statutory powers conferred under specific rules while holding this charge on a "look after" basis, without having been formally appointed to the said post. Our attention has been drawn to the instructions governing this subject issued by the DoP&T vide memorandum No. GI, M.P.O.M. No.F.12(2)-EII (A)/60, dated the 15th October, 1960].
14. The relevant instructions reads as under :
(2) Officers performing current duties of a post cannot exercise Statutory powers under the Rules:-13
Item No. 30/C-II O.A. No.2293/2019 An officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax Act) or Rules, Regulations and Bye-Laws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules etc.) [MHA OM No. 7/14/61-Ests. (A) dated 24th January, 1963].
It has been decided that an order appointing an officer to hold the current charge of the duties of a post should, in the absence of any specific direction to the contrary, be deemed to clothe the officer with all the powers vested in the full-fledged incumbent of that post. Such an officer should not, however, modify or overrule the orders of the regular incumbent of the post except in an emergency without obtaining the orders of the next higher authority. Where the appointment to hold the current duties of a post involves the exercise of statutory or such other power conferred on the holders of the post, the appointment should also be notified in the gazette.
15. We can read no other meaning to these instructions except that statutory powers under CCS (CCA) Rules could not have been exercised by Dr. Nagesh Singh and Mr. Sanjeev Kumar in the absence of a specific authorisation to this effect duly notified. No such notification has been shown to us. 14
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16. In view of what has been detailed and discussed above, we do not deem it necessary to go into the impugned memorandum issuing Articles of Charge to the applicant as these have been issued in contravention to the statutory provisions and in the exercise of powers which were not vested in the authorities who have issued the memorandum.
17. Accordingly, we have no hesitation in allowing the Original Application. While allowing so, we quash the impugned memoranda dated 06.10.2017 and 21.02.2019 as also the order dated 11.01.2019 vide which the applicant was placed under suspension.
18. The applicant shall be entitled for all consequential benefits as a corollary to this order. The aforesaid directions shall be complied with by the respondents as expeditiously as possible, preferably within a period of 4 weeks from the date of receipt of a certified copy of this order.
19. However, the respondents shall be at liberty to proceed against the applicant, if they so decide, of course, strictly in accordance with law and the relevant rules on the subject.
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Item No. 30/C-II O.A. No.2293/2019
20. In the facts and circumstances, there shall be no orders as to costs.
(Pratima K Gupta) (Tarun Shridhar) Member (J) Member (A) /NK/