Calcutta High Court
Kolkata Customs Ministrial Officers ... vs Chief Commissioner Of Cumstoms And Ors on 24 September, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP No.250 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
KOLKATA CUSTOMS MINISTRIAL OFFICERS ASSOCIATION & ANR.
Versus
CHIEF COMMISSIONER OF CUMSTOMS AND ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 24th September, 2014.
Mr.Samit Talukdar, Sr. Adv.
Mr.A. Mitra, Adv.
Ms. A.Das, Adv.
..for the petitioners.
Mr.Shekhar B. Saraf, Adv.
..for the respondent nos.1 to 5.
Mr.Asit Kr. Banerji, Adv.
Mr.S.N.Chatterjee, Adv, Mr.R.P.Motilal, Adv.
..for the respondent no.6 The Court: The writ petitioner challenges the decision made by the Commissioner of Customs (Airport and Administration) as the Appellate Authority dated December 30, 2013.
The petitioner no.1 is an Association of Officers of Customs. The petitioner no.2 is the General Secretary of the writ petitioner no.1. The writ petitioner contends that, Officers of Customs exercised option to migrate from the 2 respondent no.6 to the petitioner no.1 in April, 2013. Such applications were forwarded to the Drawing and Disbursing Officer of the Customs Authorities by June, 2013. In accordance with the Central Civil Service (Recognition of Service Association) Rules 1993, the Customs Authorities ought to have allowed the switch over. In fact, the Customs Authorities accepted the switch over. The respondent no.6 complained with regard to such switch over, which resulted in the order dated July 15, 2013, passed by the Chief Accounts Officer, Customs House, Kolkata. An appeal was preferred by the respondent no.6 which was allowed by the impugned order dated December 20, 2013.
This order is the subject matter of the present writ petition. The writ petition is heard after completion of affidavits. Customs Authorities have taken a stand that, the Appellate Authority rightly allowed the appeal since interpreting clauses 2.1 to 3 of the C.C.S.(R.S.A) Rules, 1993. The conclusion arrived at by the Appellate Authority, is correct. Applications for migration must be with the DDO within April of every year. It is submitted that the Annexure -II of the CCS(RSA) Rules cannot be taken to mean that the applications of all employees should reach the DD by the end of June, 1994 of every year. On behalf of the respondent no.6, it is submitted that, the correct interpretation of Rules 2.1 to 2.4 is that, the application for migration should be with the DDO by the month of April every year for the department to consider the same and to make it effective from July of that year. Reliance is also placed on a circular dated February 25, 2014 issued by the Customs Authorities. Relying on such circular, it is submitted that, the Customs Authorities 3 considered the existing CCS (RSA) Rules, 1993 and is of the view that the applications for migration must reach the office of the DDO in the month of April each year.
In reply, the petitioner contends that, the circular dated February 25, 2014 cannot bind the writ petitioner as the circular was issued subsequent to the concerned financial year. It is pointed out that if the Appellate Authority order impugned herein is upheld, there will be some difficulty in the functioning of the writ petitioner no.1. 87 members migrated in 2013 being the financial year involved. Some of such 87 members were elected and were made part of the decision making body of the petitioner no.1. Moreover, the subscription fees have to be refunded by the petitioner no.1 to the respondent no.6 for such financial year.
I have heard the rival contentions of the parties and have considered the materials on record. 87 officers of Customs Authorities wanted to migrate from the respondent no.6 to petitioner no.1. They exercised their powers of migration granted to them under the CCS (RSA) Rules 1993. It is not disputed that, such applications for migration were with the petitioner no.1 within April of that year. In the facts of this case, such applications for migration reached the DDO within June, of that year. The contention of the respondents is that, in terms of Regulations 2.1 to 3 of CCS (RSA) Rules 1993, the same was beyond time and, therefore, cannot be processed.
For better appreciation of the rival contentions Rule 2.1 to 3 of the CCS (RSA) Rules, 93 are set out herein below:-
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"2.1. In terms of Rule 7 of the above-mentioned Rules, the verification of membership for the purpose of recognition of a Service Association shall be done by the check-off system in payrolls.
2.2 Check-off system is a means to verify the membership of an Association on the basis of deduction of subscription from the payrolls. Under this system each Government employee, who is a member of an association is required to apply, in writing, to the DDO or any other designated authority, his consent, for the deduction of annual subscription for the financial year, from the payroll in favour of a particular Association. A specimen of the application is enclosed at Annexure-I. On receipt of the application, the Association is required to confirm the membership and thereafter pass on the application to the DDO for effecting recoveries.
2.3. Consent for deduction of annual subscription shall remain valid till altered or withdrawn. The revised option for deduction, if any, can be exercised only in the month of April each year to be effective from July of that year. 2.4 Under the check-off system, a Government servant may subscribe to only ONE association. For the purpose of fulfilment of the requirement of minimum membership under Rule 5(d)(i) of the CCS (RSA) Rules, 1993, only such of the members who have paid the subscription through the check-off system shall be taken into account.
2.5 Recoveries of annual subscription from payroll in favour of a particular Association shall be made by the DDO once a year in the month of July.
3. Broad guidelines for the conduct of the verification of Membership to be completed by 30th September, 1994, is enclosed as Annexure-II. This procedure is to be adopted for recognition of Associations at the initial stage. 5
The guidelines are by no means exhaustive and Ministries / Departments may make such changes as they deem fit, provided the changes do not infringe any of the provisions of CCS (RSA) Rules, 1993."
Rule 3 refers to Annexure II. Rule 3 relates to the order of 1994. Annexure II has to be read in such contention. CCS (RSA) Rules, 1993, was promulgated on November 9, 1993. Therefore, it was tackling the situation that will arise for 1994. In such context, Annexure-II provided that, the applications for all employees should reach the DDO by the end of June, 1994. In my view, Annexure-II cannot be read to mean that the union will have time till June of every year to send the applications for migration to the DDO for consideration. Rule 2.2 requires that a Government employee who is a member of an association is to apply in writing to the DDO for migration. Rule 2.3 requires the option for deduction to be exercised in the month of April each year to be effective from July of that year. Rule 2.4 allows a Government servant to subscribe to only one association.
In my view, CCS (RSA) Rules,1993, should be read to mean that a Government servant will be entitled to exercise his option to migrate within April of a year and that such application for migration should be with the DDO or the designated authority within April of that year only for the authorities to consider such application.
There is another aspect in the challenge to the present writ petition. The challenge is directed against the order dated December 20, 2013 passed by the Appellate Authority. It is nobody's case that the Appellate Authority did not give 6 the writ petitioner an opportunity of hearing. In a writ petition I am not to sit in appeal or to consider a decision of an authority as an appeal Court. I am to look at the decision making process of the deciding authority. I find no material irregularity in the decision making process of the Appellate Authority whose order is presently under challenge.
The administrative difficulties of the writ petitioner no.1 will also not assist the writ petitioner in assailing the order impugned.
In such circumstances, I find no merit in the writ petition. WP No. 250 of 2014 is dismissed.
There will be no order as to costs.
(DEBANGSU BASAK, J.) dg2