Central Administrative Tribunal - Delhi
Mr. M.D. Srivastava vs National Productivity Council on 23 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA 129/2009
New Delhi this the 23rd day of May, 2012
Honble Mrs. Manjulika Gautam, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Mr. M.D. Srivastava
Junior Accounts Officer, Finance Division,
National Productivity Council,
Head Quarter, Utpadakta Bhawan,
Lodhi Road, New Delhi .Applicant
(Through Mr. Jagjit Singh, Advocate)
VERSUS
1. National Productivity Council,
Through Director General,
Utpadakta Bhawan,
Lodhi Road, New Delhi-3
2. Union of India, through
Secretary, Ministry of Industries,
New Delhi .Respondents
(Through Mr. D.D. Lahiri, departmental representative, on behalf of respondents)
O R D E R
Mrs. Manjulika Gautam, Member (A):
Writ Petition No.3670/1994 was filed in the Honble High Court of Delhi and vide orders dated 6.01.2009, it was transferred to the Registrar, Central Administrative Tribunal, Principal Bench. In the same order, the Honble High Court of Delhi had clarified that the matter pertains to the National Productivity Council, which has been notified vide Notification No.GSR 730 (E) dated 22.04.2008 with effect from 1.05.2008 as an organization whose service matters will be heard by the Central Administrative Tribunal. When the case was transferred, Part `B of the file was not received by the Tribunal. The matter was taken up on 23.07.2009 but since none appeared, it was dismissed in default. MAs 364/2012 and 366/2012 were filed by the applicant. Vide orders of the Tribunal dated 29.03.2013, the TA was restored and listed for hearing on 3.05.2012. It was finally heard on 15.05.2012.
2. The applicant has been working with the National Productivity Council, which is an autonomous body under the Ministry of Commerce and Industries. He was posted as Technical Assistant (Accounts) from 18.09.1989 to 3.09.1993 in Regional Directorate at Kanpur and from 6.09.1993, the applicant has been working as Junior Accounts Officer at Delhi Head Quarters. The applicant received memo dated 21.12.1993 issued by the Director (Admn) in which it was stated that he was incharge of Accounts at RD Kanpur, where he had not signed the books of accounts while working as Technical Assistant. The applicant had checked accounts on 7.08.1992 when a sum of Rs.4000/- was drawn from the bank by the cashier but the cashier had accounted for Rs.3500/- only. The applicant failed to point out this discrepancy at that time and had he done so, the fraud could have been detected earlier. As such, he was held accountable for gross negligence in the discharge of his duties with dishonest motive and of having abetted the cashier in misappropriation. He was called upon to explain why disciplinary action should not be taken against him and directed to file explanation within ten days. Copy of the memo is annexed as Annexure `A. Vide letter dated 1.01.1994, the applicant gave his detailed explanation to the Director General (Annexure `C). Vide order dated 17.02.1994, the explanation given was rejected and it was held that the charges are proved against him. The order dated 17.02.1994 (Annexure `D) reads as follows:
A Memorandum No. CR/324 dated 21st Dec. 1993 was issued to Sh. M.B. Srivastava Jr. Accounts Officer, posted at Headquarters. His reply to the memorandum and other allied facts and circumstances of the case have been considered. The undersigned holds that the charges are proved. The undersigned has, therefore, decided to impose penalty of withholding of one increment for 24 months. This with holding of the said increment shall not have the effect of postponing future increments. The applicant filed a representation against the above order and later on 16.05.1994, an appeal under Rule 70 of the Service Rules before the Chairman. Copy of the appeal is annexed as Annexure `E. In his detailed appeal, the applicant has brought certain facts to the notice of the appellate authority and has also stated that action taken against him is violative of the provisions of the Service Rules. In particular, the applicant has referred to Rules 67 and 73, which read as follows:
67. In case of misconduct, a charge sheet shall be issued in writing to the employee detailing the allegations against him/her and he/she will be called upon to explain these allegations. If the explanation is not found satisfactory, a domestic enquiry will be held by a competent officer, and the employee shall be given full opportunity to defend himself and rebut the charges. The proceedings of the enquiry shall be recorded in writing and on request a copy will be supplied to the employee. The enquiry officer shall send his findings to the authority concerned, who shall have the rights to dismiss the employee or to award such lesser punishment as he may deem fit, taking into account his/her past record and any other extenuating or aggravating circumstances. 73. The appellate authority shall consider every appeal in such manner as it deems fit and pass such orders as it deems proper in the circumstances of the case.
3. The contention of the applicant is that no inquiry was ever held against him nor was he given an opportunity to defend himself. The appeal of the applicant was rejected vide letter dated 9.08.1994, received by the applicant on 11.08.1994. Copy of the memorandum dated 9.08.1994 is at Annexure `F. It reads as follows:
With reference to his appeal dated 16th May, 1994 followed by supplementary request dated 31st May, 1994, Shri M.D. Srivastava, presently posted as Jr. Accounts Officer at Headquarters, is informed that his appeal has been considered by the Chairman, NPC and the same has been rejected. Aggrieved by this, the Writ Petition was filed by the applicant praying for the following reliefs:
(a) issue appropriate writ, order or direction in the nature of certiorari quashing the impugned order No.CR/324 dated 17.2.1994 and No.CR/324/DI dated 9.8.1994 issued by respondent no. 1 being null and void as violative of provisions of Service Rules, Rules of natural justice and article 14 and 16 of the Constitution.
(b) issue appropriate writ, order or direction in the nature of mandamus directing respondent no.1 to give due increment to the petitioner on 1.9.1994, ignoring the impugned order dated 17.2.1994 and 9.8.1994 and also consider the petitioner for confirmation and further promotion on not with standing the impugned order of punishment.
) issue appropriate writ order or direction to respondents, as it deem fit in the facts and circumstances of the case and in the interest of justice, equity and fairplay.
4. In the counter affidavit filed by the respondents, mainly the question of jurisdiction has been taken up. According to the respondents, the National Productivity Council is not a `State within the meaning of Article 12 of the Constitution of India and thus the writ jurisdiction does not lie. According to the respondents, all the proceedings against the applicant have been held in accordance with rules and he has been given adequate opportunity to defend himself.
5 We have heard both the learned counsel and perused the record on file.
6. The question of jurisdiction in this matter has already been decided by the Honble High Court of Delhi in its order dated 6.01.2009, therefore, the case has to be considered on merits.
7. The contention of the applicant is that the action taken against him in the matter is against Rules 67 and 73 of the Service Rules which are applicable in the case of employees of the National Productivity Council. We have perused the impugned orders dated 17.02.1994 and 9.08.1994 i.e. the order passed by the disciplinary authority and the appellate authority. We observe that both are cryptic and non-speaking orders and do not refer to any of the issues raised by the applicant in his representations and in formal appeal. We also observe that no inquiry was held in the matter in accordance with Rule 67 of the Service Rules of National Productivity Council. Thus, we find that the impugned orders dated 17.02.1994 and 9.08.1994 are violative of the prevalent Service Rules and also of the principles of natural justice and as such, they cannot be sustained. Accordingly, they are quashed and set aside with a direction to the respondents to provide all consequential benefits to the applicant, who has since then retired, within a period of three months from the date of issue of this order. The OA is accordingly allowed.
( A.K. Bhardwaj ) (Manjulika Gautam) Member (J) Member (A) /dkm/