Central Administrative Tribunal - Mumbai
S Ajit Kumar vs Education on 6 September, 2023
MU UMS AL BEN OL MUMBAL
ORIGINAL APPLICATION No. 151 & 153 of 2023.
Order Reserved on 13" July & 25° fuly, 2023.
Order Pronounced ong September, 2023
Hon'ble Justice Shri. M.G. Sewlikar, Member (1)
Hon' ble Dr. Bhagwan Sahai, Member (A)
OA Na, [31/2023
S.A}it Kumar, son of Late Sreedharan Nair aged about S2 years,
esiding at Ass 14 4. New Pala Beach, CLHLS, Lid, Sector-4, Ne-
nul Navi jumbai-4007 O6.
~Applicant
(Me. Saniay Singhvi /b Mr Rahil Fazelbhoy, Advocates)
VERSUS
i. Board of Apprenticeship Training, (Western Region) in shart
BOAT (WR), Murmbar, Ministry of HERD, Dept. of Higher
Education, Govt. of 'Indl ia, ACT. Campus, VN. Puray Marg,
Sion, Mumbard0co? 2.
2. The Director of Training, Board of Apppenliceship 'Traming
(Western Region), A, TL Carapus, VIN. Puray Marg. Sion,
Mumbai-d00022
tnt
The Union of India (Ministry of HRD, Dept. of Higher
Education, New Delhi.
-Respondents
fod
ha. No. 353 & 199 / sere.
(Mr R.R, Shetty a/ wiMn AVA. Garge, Advocates)
OA No. 1853/2023
Rajendra Kumar, son of Moal Chandra, aged about 45 vears,
Residing at Flat No.6, Plot No. 46, "Nishantdeep™, Sector-2
Nerul, Navi Murmbal-400706,
-Applicant
(Mr. Ramesh Ramamurthy, Advocate)
VERSUS
1. Board of Apprenticeship Training, {Western Region} in short
BOAT (WR), Mumbai, Ministry of HRD, Dept. of Higher
Education, Govt. of India, AT. Campus, VN. Puray Mare,
Sion, Murbai-400022,
2. The Director of Training, Board of Apprenticeship Training
(Western Region), AST. Campus, VIN. Pura Mare, Sian,
Mumbai-4Q0022.
3. The Union of India (Ministry of HRD, Dept. of Higher
Education, New Delhi.
-~Respondents
(Mr. R.R. Shetty afv Mr. A.A. Garege, Advocates)
we
EERE
OA, No. 192 & s59/e0us.
Per > Hon'ble Justice Shai. M.G. Sewlikar, Member (D
ORDER
Gath these GAs are being dispased of by a common order as Send issue involved in both these OAs is the same and allegations are almost 1.1, Allegations in OA No, {51/2023 are that the applicant iS holding deeree of Bachelor of Engineering and joined the first respond-
3ent Le. Board of Apprenticeship Training {in short BOAT) as Assistant Director on 26" August, 1988. The first respondent Board is under the Education, Government of India (Ministry of HRD). The applicant suc~ cessfully completed probation periad of two years, On 3 3" February, 2005 the staff of BOAT (WE) formed a union named and style led as BOAT Employee Union to redress their grievances and for ingroving service conditions. Applicant was elected as the : President of the Union. On 10% Februzry, 2005, intimation was given to the Ministry of HRD, Government of India and the BOAT shout formation of the Union, On 21° August, 2006, memorandum was received from the BOAT inquir-
i ing whether the applicant was associated with the said Union and ifsc GA. Now aga & i93/soan.
zn to intimate about the activities af the Union by 28° August, 2006. An- ; other Memorandum was received by him on 4" May, 2007 stating therein that he had been partic); pating in a number of activities af the Union viz. BOAT Eraplayees Union in the > capacity ofihe President alonewith G Group "C & DF employees, Being a Group "A' Officer Aine- tioning in a supervisory cadre, entrusted with legal powers of an Ap- prenticeship Advisor, he wag advised to refrain from participating in the Union. However, the applicant vide letter dated 2 November, 2006 communicated to the second respondent that he would continue to participate in the said union, This act of the ap plicant is subversive to disciphne and also amounts to insuberdination, He was, therefore, called upon to show cause as to why appropriate disciplinary action should not be initiated against hin. On 13" July, 2007, chargesheet was served upon him. On 7° September, 2007, the applicant submitted his reply and denied all the allegations. Thereafter two practicing advo- cates were appointed as Inquiry Officer and Presenting Officer which was against the existing rules as the petitioner's case did not involve any legal complication.
12. The applicant was not permitted to engage an advocate as his + Defence Assistant. He made a request to the Appellate Authority Le.
wet se O.A. Ne. ep & 1939/2023.
_ The Ch hairman of the BOAT (Western Region), Mumbai on 10" June, oy ke 2008, which was turned dawn on 31% July, 2008. On 2 2° March, 2009, the Inquiry Officer submitted a report holding that the charges against the anplieant were proved and, therefore, an 27° April, 2009 h x Wak a called upon to make a representation within a period of 15 days. The applicant requested to extend the time for submitting his written repre- entation up to 6 May, 2009 on account of some personal reasons which was refused by the Disciplinary Authority, Respondent No. 0c held that charges were proved and imposed the extreme @ pe snalty of re-
moval from service with immediate effect by his arder dated Sth May, 2000, On 30" May, 2009 the applicant filed an appeal before the Ap- nellate Authority Le. The Chairman of BOAT contending that penalty imposed by respondent No. 02 is highly disproportionate and that he had been victimized by the administration by removing him from ser vie and not giving Assured Career Progression. On 8" Judy, 2009, the Appellate Authority rejected the appeal and confinned the penalty of removal from service imposed by the Disciplinary Authority, fis con- tended that the applicant did not participate in the Inquiry as. he was not permitted to engage a professional lawyer as his Defence Assistant anc, therefore, the inquiry got vitiated. A private individual or a professional Oy.
* O.8. No. pyr 59/2033.
advocate cannot be appainted as Inguiry Officer under CCS (CC CA) | Rules, 1965. It js contended that the applicant had addressed letters te the Hon'ble President of India, Secretary to the Government of India in the Department of Higher Education, Ministry of HRD and Chair man of BOAT, wherein the applicant complained about the harassment meted out to him in the office. He contended that in none of the corre- spondence he used any abusive, acrimonious or intemperate language. Itis his duty being the area in-charge to ensure proper Implementation of Apprentices Act and to protect the misuse of Governmental funds. Therefore, being a lawful servant, the applicant complained about the misappropriation going on in Aurangabad District, Maharashtra, where some establishments were engaging apprentices beyond the quote al- lofted to them. The Inquiry Officer held the applicant guilty ofall the:
wharges levelled against him. Therefore, he was called upon to make representation, He had asked for ime, but that was not granted. The applicant was held guilty by the Inquiry Officer and the Disciplinary Authority imposed punishment of removal from service upon the ap- plicant by its order dated S° May, 2009. Applicant preferred appe axainst the said arder which was alse dismissed an 8° July, 2009. Hence, the applicant has fled this OA secking quashing and. setting QA NG ESE 199 fo08 dened arder dated OS® May, 2609, & 02. Respondents Aled their reply contending therein that the apall- cant was advised to refrain from participating in the union activities as + wae YORE Seed tik : Llores tye Desstaans ACSha ated ; oer OM dated 10" Cetober, 2006. He was the President of the said un- NS i ion. Another Group 'A' Officer wag the Vice-President of the union. From the correspondence made by the Union to various authorities it is evident that the union had engaged in anti-establishment activities Geing an Assistant Director, the applicant had an easy access to the various confidential information of the BOAT and, therefore, it was not advisable for him to play two conflicting roles simultaneously and the sare would be against the interest of the BOAT. 2.4. Leamed counsel Mr R. Singhvi contended that Rule 8 fo} of Recognition of Services Association Rules .1993 states that member-
ship of the service association has been resiricted to a distinct category of Goverment servants having common interests, all such Govern- ment servants being eligible for membership of the Service Associa- tion. He submitted that the respondents have not defined distinct cate-
gory. In the case of Government of india and Others Fs. ISRO Drivers Asseciation, 2020) 8 Supreme Conrt Cases 687, the OM dated 20° Cee oo CLA. No, ign & 19g feoos.
April, 1994 has been considered, in which a question was raised &] whether the term distinet category used in Rule 5 5 (c) means group-
ba 3 Wise caiegorization, The responsibility for defining the distinet cate- gory has been left to the Minis ty/Depariment concerned. He submitted that since distinct category has not been defined by the Ministry of oa HRD or BOAT, these rules de not become applicable to the applicants, 2.2, It is further contended that that the Central Civil Services (Recognition of Services Asst ociations) Rules, 1993 (hereinafier re ferred as Recog gnition of Service Rules) are clear that the member ship ofa service association is restricted to a distinct category of Govern- ment servants. Being a Group 'A' Officer, the applicant o1 UChE not to have represented the causes of Group "C & DY employees as the same would be against the interests c BOAT. BOAT is a small office, Therefore, it way the responsibility of the applicant to play amajorrole in maintaining the discipline. Therefore, activities of the applicant in his capacity being President of union were certain! y detrimental to the interests of the BOAT. They further contended that thers is no bar which prohibits the BOAT from appointing an Advocate as an Inquiry Officer. In fact, owing to the commlesity of the issue involyed because 1s DELS 4 % aa jeg via ioe of Group *C & $F employees, especially in a small o that ofthe BOAT. All this was considered by the Disciplinary Authority while making the appointment of an Advocate as Inquiry Authority, The petitioner wag also given an apportunity to engage an advowate as his Delence Assistant. In terms of the Rules, the Disciplinary Authority can appoint any person as an authority to inquire inte the trath of alle- Sauons, 23, The applicant violated the niles by sending varlaus communica tions directly to the higher authorities, The union formed | by the em moyees is not a recognized union, The Inquiry has been conducted by following all the Rules. They, therefore, prayed for the dismissal of the A.
24. The applicant Sled rejoinder. He contended that harassment started because he became the President of the unian and alse chal- lenged the selection procedure of Director of Training in the High Court in which respondent No, 02 was alsa one of the candidates, He was issued several warnings not to participate in the union activities.
Threats were given orally that he would have to face the consequences.
OLA. Novis & ase/seee, allegations made in
03. The allegations made by the applicant in this OA are identical to the allegations made in QA No. 151/2023 with the exception of pun- ishment imposed. IQA No, 153/2023, the punishment of compulsery retirement has been awarded ta the applicant.
3.4. The allegations in the affidavit are also identical to the allega- tions made in OA No. 1591/2623.
3.2, The applicants had initially filed Writ Petition No. 1714/2009 & U713/2009 in the High Court of Bombay. By order dated 23° Febraary, 2023, both these petitions were transferred to this Tribunal,
04. We have heard Mr. Sanjay Singhvi, learned counsel if Mr. Ra- hil Fazelbhoy, learned counsel for the applicant in OA No. 1591/2023, Mr Ramesh Ramamurthy, learned counsel for the applicant in OA No. 1532/2023, Mr. R.R. Shetiy aftw Mr. A.A, Garee, leamed course! for the respondents in both the CHAs.
4.1. Mr. Sanjay Singhvi, counsel for the applicant in QA No. NY §] lied. The applicant, therefore, became the member of the union. The applicant had also informed respondent No. 02 about the formation of the union, Therefore, becoming member of the union is not a miscon- duct. The charge against the applicant is not that he became the mem- ber of the union in contravention of the rules. The charge against the applicant is that beiig an Officer of BOAT, he is required to take all possible steps to ensure the devotion to duty to all staff members under his control and authority for smooth fluctioning of the organization. He is also charged for Indulging In activities which are subversive to discipline. He contended that applicani's union is a recognized union. Even if it isnot a recognized union, there is no bar for formation of the union. For this purpose, he placed reliance an the case of OLA Ghosh aad Anotier Vs. EX. Joseph, 2963 Supp (1) SCR 789: AER £963 SC 812: (2962) 2 LES 613, in which it is held that restriction of getting recognized would make right guarantee under Aruivle 19 (1}{c} ine! fective and illusory. He finther submitted that BOAT is an industry in terms of the judgment of Bombay High Court. He further submitted that the applicant was charged for making correspondence containing abusive, acrimonious and intemperate language. Ne contended that the OA. No. ryt (98/2029, intemperate language allegedly used is in the letters dated 21% April, 2005, 08" June, 2007 and 21"April, 2007. He submitted that on read- ing the letters, it is incomprehensible that the letters are intemperately worded or contained abusive language. The letters are about malad- ministration in the BOAT. It is r regarding the functioning of the BOAT and, therefore, i{ cannot be : said that the letters are intemperately worded. He further submitted that the wards used in the letter dated 8 June, 2007 cannot be called intemperate, abusive or acrimonious, 'Cal-
lous' is a word commonly used in legal Held. The word * Yellow Dog Contract" is not an intemperate one. Por this purpose, he Maced reliance on the case of Christian Medical College Hospital Employees vu ion And ; Another Fs. Christian Medical College Vellore Association and Others, (1987) 4 Supreme Court Cases 693, He further contended that the applicant had complained about the misappropriations going on in the Aurgangabad Region. The Inquiry Officer report clearly indicates that the allegations made by the respondents were baseless and Rew companies had miner problems which could have been solved by the concemed officer Le, by the respondent himself, He further submitted that the Disciplinary Authority granted him 15 days' time on the first occasion. The repert was submitted on S$ May, 2009 by the Inquiry | conducted properly and without giving the applicant the opportunity to make representation, report was submitted by the Inquiry Officer. He submitted that advocates were appointed as Inquiry Officer and Pre-
senting Oficer. Applicant was allowed to engage an advocate but the applicant requested the respondents to bear the cost of the advoeais to be engaged by him. This request was tumed down. He placed rellar ye on the case of Director, BCG Vaccine Laboratory, Madras Vs. S. Pan- Wen and Others (1997) 1] Supreme Court Cases 346, a4 Mr, BUR. Shetty, leamed counsel for the respondents in both the OAs submitted that the applicant had jomed as a direct reerult Group A' Olficer. Inquiry was held on 23 eccasions, The applicant was pre-
Sent only on 03 occasions, The applicant was duty-bound to participate in the inquiry. Ne submitted that there is no provision for naynient af fee by the Government for advocate engaged by the charged officer He contended that the Central Civil Services (Recognition of Services Associations) Rules, }993 contemplate recognition af service assccia- tions only after fulfilling conditions that are enumerated in Rule Sof thase rules. Ne submitted that the applicant while forming the union did nat get the association recagnized. It is not recogmined even now, fe Bx O.A. No. 1gt & iggy /20rg.
The respondents never received any application far recognition ef ser-
z} Vioe association of the applicant. The applicant did nat send the com-
munications through proper chanel, In terms of Rule 6 (d) of Recog- ation of Services Association Rules 1993, the representations of ser vice associations shall be submitted through proper channel and shall be addressed to the Secretary of the Government of India, Head of the organization or Head of the C ma e. Rule 6 (1) States that commumica-
tion addressed by the service associations or any office be arer on its behall te the Government shall not contain any abusive or intemperate language, He contended that the applicant's association is not a recog- nized association, Though the charge is not properly werded, the alle- gations unmistakably indicate that the applicant's asseciation was not & recognized association. He cantended that the Department of Posts had defined the distinct categories for the purpose of Recognition of Service Associations Rules, 1993 by which Group 'A' Officers cannat become members of other service associations. He further cantended that the applicant's union is not only not a recognized union but alse it engaged in activities subversive to disciplins. The Secretary of the un- ion had addressed a letter to Hurman Rights Comniission and other au-
.
"a tig?
org ttn, O.A. No. 54 & 1599/2029.
thorities using Intem perate language. The words used in this commur ' nleation are not only intemperate but also are abusive and acrimonious, He submitted that the applicants In OA No. 151/2023 and OA No. {33/2023 were Assistant Directors of BOAT. They cannot represent the causes of Group "C & D* emplovees. They are officers who are ex- pected fa insul discipline among the subordinate staff. On the contrary both the applicants encouraged indiscipline. Therefore, their conduct is reprehensible. He contended that the applicant Shri Alt Kumar had made a complaint wherein he mentioned that one placement agency called General Consultancy Services is almost running a parallel Apr rentice ship Scheme in Augrangabad , which is being run for some per sonal interests and students are being misused by these establishments, During the investigation, the applicant did not provide any specific in- formation about the said establishments. A team ef three officers made a combined visit to the said establishments in which irregularities were reported by the applicant dn GA No. 1S1/2023). The Committee did not find any lregularities. Because of the false report of the applicant, the contracts of the apprenticeship engaged by the establishments were kept pending. He contended that the applicant did not prowide the de- tails and, therefore, this charge was held to be proved. in aot ChA, Nev rsa & yaya, #3. Mr R.R Shetty has placed reliance an the following cases:
la Deekinandan Sharma Vs. Union of india and Others, (2001) S$ ! Supreme Court Cases 346, UD Syed Rahimuuldin Fs. Directos Ges reral, COIR aed Oilers, (2082) Supreme Couré Cases 378, Yessy iris} fn) Managing Direoron ECIL, Hyderabad and Others ts. B. Karu-
nakear and Others, (1993) 4 Supreme Court Cases 727.
(vy) Indra Bhanu Gaur Vs. Committee Management of MLA Degree College and Others, (2004) | Supreme Court Cases 281, (1) Bast fadian Coal Co. LTD Fs, Parbati Sankar Mukherjee, AIR L959 SC L232: € 1989) 2 LLG 227.
(ii) Major UR. Bhatt Ws. Union of India, AIR 1962 SC 1344: (1962) iLL 6356, 4.4. In reply, learned counsel! for the applicant submitted that charge No. 04 does not say that the applicant made misrepresantation knowing that it was false. He submitted that the provisions of Recognition of Services Association Rules 1993 cannot be pressed into service be- cause all the unrecognized associations are permitted in view of the judgment of Hon ble Supreme Court. Even otherwise Clause C of Rule 5 states that membership of the association has been restricted to a dis-
tinct category of Government servants having common interests, all such Government servants being eligible for membership ofthe service ad O.A No. ii & 196) e83, association. He sy ubnsitted that in the case of Government af India and | Others Ms. ISRO Drivers Association, (2020) & Supreme Cort Cases 65%, itis held that the responsibitity for defining distinct categories has been left to the Ministry/Department concerned . Ministry of HRD has nat framed the rules regarding distinet cate egories nor the BOAT has framed any such rales. He also contended that the complaints against maladministration cannot be a misconduct. Fer this purpose, he placed reliance on the case of Fifay Shankar Pandey Fs. Union of fadia and Another, 2014) 10 Supreme Court Cases 889 4.5. Mr Ramesh Ramamurthy, feared counsel for the applicant in OA No. 153/2023 adopted the arguments of learned counsel for the applicant in OA No, 1531/2023, He submitted that the punishment im-
posed on the applicant is of compulsory retirement, He had 18 years of iO £% my a yore 0 go when the punishment was imposed. Appeal was also dis. missed. He submitted that General Secretary Mr. B.S. Mule also faced similar charges. However, punishment of "stoppage of Increment was imposed on him. Therefore, the Disciplinary Authority heavily dis- criminated against the a apnlicant and on the same c charges, punishment ofcompulsory retirement was imposed on the appheant, Ne contended that the aforesaid association has been registered under the Soc Jety's fad psy OA, No. 141 & 1938/8029.
Registration Act. There efore, it is a recognized union. Alternatively, he contended that considering the charges levelled against the applicant, punishment is disproportionate to the charge and, therefore, the applic cant be reinstated and the punishment imposed on Mr. R.S. Mule be imposed on the applicant, 4.6. Mr. R.R. Shetty submitted the Mr B.S. Mule was a Lower Divi- sion Clerk. The applicants in both these OAs we: © Group "A' Officers. Mr. R.S. Mule acted at the be ehest of the President and the View-Prasi- dent of the union. He submitted that in both these DAs there is no chal- isnge to the provisions of Recognition of Services Association Rules, 1995,
05. We have thoughtfully considered the ar guments of all the learned counsels for the respective sides.
3.1, We deem it appropriate to repraduce the charges levelled against the applicant in both the OAs. In OA No, 15 1/2023, following were the changes against the applicant:
Artioly { with other start sHamMve ined Western Regt fon} 4 ing ar ullicer of the Boant of Aperentic hh in whin B PERS Gr Reta irvine ¢ Vesiera me of Appren sy
2.
Y Beard Bx JO8P ive tg Giselyh u oe Mumbai fe Lag ens A Set wet, a oo road % & ts os te bee) i -, ax OM} ri, rae oN Arhined! BS & os bai Neal At 3 & W pee eae s a end fo "a a oF wee od tA inte BYE rare a uf Directeur af Trane rey e MTN z MEDS ara:
SERS SOIAVENS Hd te the q dl can nely R ond. Maria, Pa ey Mah GLA No. 151 R 1ga fears a Nig SAR Sate x S FUPrsdiction allo.
sas ofthe et He yis-afiigial duges s slays in dis-
& ach harscenient hk Aporenticasiig: "Trai ints saws side He SY sfhoath imelementation, He mis- ppesniticaship » Training (Western Regian} 2 ifoymiatl fn in the qiatt raised wastage of ; have beetavelidadd, Shri S » AY UAT, Teng, Biard af Apsr hip Train in Lenoir me pace ae oe ae a . 5S soy if <i F B) NS aoe"
fears HY yey va oft posal arihe re ge the stake £8 Syd Scheme, basi we Shunk RETO
-. In OA No. 153/2023 only nwo charges were framed against the applicant. The two charges Le. Article 1 & Artic de Hl are identical te the charges framed against the applicant in OA No. 1591/2623 PY ae 5.3. Seo far as ch large No. 0] iS « concerned in both the OAs, it is clear that itis not a charge avainst the applicant that the association of which he was the President was nat recognized by the Government, SUL we would like to give findings on this isst '@ a8 arguments have been ad-_ vanced by both the si side sao this issue. Riekt to form an ¢ aasaclation: is granted under Article 19 1 (C) of the Constitution af India. The validity of Clause 4B of Central Civil Services (Cenduct) Rules was called in question in the case of OLA. Gash (supra). The said clause B was to the effect that no Government servant s shall join or cortinue to be mem- ber of any service association of Government ser vants > fa} which has feat ess OLA. Nov rs: & 199/200.
not, within a period of six months from its formation, obtamed the | recognition of the Government under the Rules preseribed in that be- ar (b) recognition in respect of which has been refused/withdrawn a L4 by the Government under the said Rules. In the case of OK. Ghost ~ (supra), Supreme Court in para 12 af its judgme nt held thus y Soe EME I BS oe cen een 8. SEMAN adiees gaol pew PERS ERY ot ti SOK fail & mar Rd, §.4. Sworeme Court declared Rule 4-B invalid. On the backdrop of this judgment, the decision on Rule 2 ¢ egulation of Service Assnei-
ations Rule is to be considered. Rule 3 of regulation of Service Asso-
elation Rule begins with the words 'service associations which fulfil the following conditions may be recogmaed by the Government §.5. This Rule requires that the service associations shall obtain recognition from the Government. This clause ts in direct violation of the fudgment in the case O.K. Ghosh (supra). In the case of Central PVD Engineers Association and Others Vs. Union of India and An wither, 2623 SCCC Online Del 3157, relied upon by the applicants, it Rea has' bee eg held in para 3 7 as under:
TRS : af harnsoni Rovermnent and empl 28 clades ira ny (Ul Coreg 2 4g Le oe E » -_ as nt LAY ol * baet, the wah t eat oeraties Se $ epee "4 eek aad Me Leengy et ti stank SEYE mmay mot Reow Auedanvengs fub dame neal fy ASSODI@iONS by 5.6. However, we cannot declare this rule invalid hecanse the re o spondents have not challenged its constitutional validity.
-?. He has placed rellance on the case of D. Manmohan And O1h- ers Vs, The State af Mysore And Others, The India Law Reports, £966 tor the proposition that entire rule must be held to be violative of Article 19 (1) (a) as if is not possible to dissect the Rule and remove the invalid portion from the valid portion. He has also placed reliance on the case of Gevernment Tool Roam and Training Centre's Super- visory and Officer's Association, Bangalore and another Vs. Assis- tant Labour Conunissinner and Deputy Registrar af Trade Unions, Bangalore Division-1, Bangalore and Others, 2001 SCC OnLine Kav 607, 3.8. In view of the mandate of these wo judgements, recognition QA No. isi ps4 /eoes, from Government is hot necessary, However, we cannot declare the id clause unconstitutional as these rules are not ¢ challenged by the splicants in both the OAs.
So far as charge No. 01 is concemed it states that the agplicant has become member of the BOAT Employees Union alongwith other stalf members who are subordinate to him. By becoming member of the said union, he behaved in a manner unbecoming of an officer of BOAT, The applicant has formed the association of Group °C & D* afheials, ft is the contention of the applicant that there are no such cat-
egories as Group "A, B,C & DY officers in BOAT.
OG. Even if we accept this contention of the applicants, still this com tention does not hold any water. The applicant undoubtedly is the su- perior officer to the other employees who are subordinate to him, Nat- urally both the applicants cannot form a union espousing the cause of their subordinates. The cause of their subordinates is to be represented by the member of that class. A superior officer cannot represent his subordinates before the management and, therefore, it was iInappropri-
bearers of the union.
OA, No. 97 & 1593/2029.
G1. Learmed counsel for the applicant submitted that the respondents ) have hot mentioned as to what activities were subversive to the disei- pline in which the applicant and the members of the union had en warped, Merely making a vague submission in this regard does not serve the purpose.
6.2. We shall deal with this aspect of the matter while dealing with Article 1 & Ml of the charges. Suffice it to say at this stage that such details are given in letter dated 21° April, 2005. It is pertinent to note that the interests of the appheant as Assistant Director and interests of his subordinates are con Hicting and he cannot play both the roles. Sim- ullancously, being an Assistant Director of 'BOAT, he cannot at the same time be the President of the union, taking up the problems of his subordinates 6.3. So far as Article No. 02 is cancemed, it isan allegation that ane plicant in the capacity of a member of the union, Sent a communication dated 218 April, 2007 direetly to the chairman, Board of Govemors of the Board ef Apprentice ship Tt raining (Western Region}, Mumbai, whereas, he is required to send all communic ations to such an authority only through proper channel.
ts.
tech 'hile making such comutunications and intemperate lan-
~ "Shes Heres yl Bs he cagt sees La ears. ey * 3 : OA "5 S.3. Thre respondents placed vellance on the letter dated 243 April, 2007, The applicant has contended that this letter is rex garding malad-
ministration, &&. In the case of Vijay Shavkar Pandey Vs. Union of India and Another, (2014) 10 supreme Cost Cases S89, it has been held that ay € x the above mentioned three categories. In Para 43 & 44 of its fers host Babee see if uy PEF PESTER yrange? arode rs Crit SEP ge aueicay aashoneny HEE EAS, Sree oPiviersyy <5 atotienh of 3 Hea? Ce Tea Ga anys MEP ATER ea nN ; " i : "i ao OA Wo. 19 & agg /faney.
Graver STATENS OR OSBES Baeruss be peda.
fore ar aioe PROF Sat he letter dated 21" April, 2008 is addressed to the Commis- sioner, National Human i ghts Commission, New Delhi. This letter is wer not regarding the maladministration but it is re garding the policies of By the Central Government. We would [ke to quote para 2 af the said ler ter to show that it is not regarding maladministration but it js a letter Fs
-eritivizing the policies of the Government, This letter was also marked to the Hon"ble Minister of HRD, Secreiary to the Government of India. Union Ministry ef Labor, Secretary to Government of India, Union Ministry of DoPT, Director General of Employment and Training, The Additional Secretary (Tech), Union Mini istry of HRD, Department of Secondary and Higher Education, Govemment of India. This letter z does not Indicate that the applicants are brit ning to the notice of these authorities the maladministration. The letter reads thus:
Bis ale ter crit-
f e hel % ow tat ft Dans seeen one bs fs) He se Qn Wy eh Se.
the att RET SS me ery touted the v s have § Covernor te.
tae o the Boer x.
TIA of HRD a * i w oa wet, Pea tz GA No. iga & iggfenes.
" Staff Service Rules of the BOAT". Phey have also used the words that ae .
fs Daity ; = + _ ; ® ~ . noe ; ra > ae
2) this department has become more of a trainin g@ centre for Directors, Os, Deputy Directors who are normally coming from outside market not knowing abed of the Apprenticeship Act. They have also used the words "it shows vested interests of the M inistry oP HRD and the Board of Gavernors". In the last para, they used the words "This is due to the lack of experience and knowledge of the head of the department'. In the same letter they have stated that the Parent Ministry, the Ministry of HRD and the Board of Governors totally isnered the Staff Service Rules for their convenience and also to fulfil their vested interests, 6.9. These werds clearly show that the applicants have not on! y used intemperate, acrimonious language but have also made accusations against the Ministry of HRD and the Board of Govemors of having vested interests. They not only used intemperate language but also challenged the competence of the Ministry of HRD and the Board of Governors, Moreover, this letter was not sent through proper chanmel but it was directly addressed to the Commissioner, National Human Rights Commission and other authorities.
O7. As indicated earlier it is the responsibility of the applicants ta O.A Ne. ist & py feoes.
insull discipline among the subordinate staff. Instead of that, the appli-
g) vants have indulged in writing letters, not enly using intemperate lan-
or en guage but also making accusations against the Ministry of HRD, the Soard of Governors and also questioned theit competence, This letter is self Indicative of the fact that the applicants are indulging in activ- ities subversive to discipline, If the letter had been regarding malad- ministration, one could have understand, but this letter is not regarding maiadministration but i is a letter crideizing the policies of the Gov- ernment and, therefore, challenging the policies ofthe Government that too in such an indecent language is nothing short of encouraging indis- cipline among the subordinate staff. In terms of Rule 6 (d) of Recag- - nition of Service Associations Rules, all representations by the Service Associations shall be submitted through proper channel and shall be addressed to the Secretary to the Government/Head of the Organization or Head of the Department or Office. Rule 5 (of Recagnition of Sex vice Associations Rules mandates that communications addressed by the Service Association or by any offies-bearer on its behalf to the:
Government or a Government authority shall net contain any disre- spectitd or impreper language, As discussed above, the applicants have used disrespectill and improper language, Therefore, they have GLA. No. 193 & 199 /2023.
Pree' violated this rule also. (Therefore, the Inquiry Officer rightly held that | the charges against the applicant were proved. Therefore, these twa charges are correctly held to be proved. 7 Fi, itis true that Ministry of HRD or BOAT has not explained the term distinct category but distinet category has been ¢ explained to be an association whase members have a commonality of interests and fune- tion as a homogeneous group. As indicated earlier, their cannot be som-~ monality of interests between a superior and a subordinate and they cannot function as a homogeneous group as their Interests are conflict ing and, therefore, it was unbecoming of the applicants to become members of the union. Criticizing the Government and its policies can- not be the objective of an association. Therefore, the applicants worked against the scheme of the union.
7.2. As regards charge No. 04, the respondents had constituted a committees of three members. Cansid ering the seriousness of the alle- gations, a committee under Mr. V. Kailasababu, Deputy Director of Training, BOAT, GVR) Mumbai with Mr. SK. Me! nig, Assistant Direc-
tor of Training, BOAT, (WR) Mumbal and Shri. S. Aiithumar ( apph-
SRA. Wee isp agg /Qaes, } were the members of it. This committee car-
wantin GA Na. 18 1/2023 ned out the investigation in the matter. The applicant did not provide * Specific information about the establishments. These three members paid a combined visit to seven establishments in which ireaularities were reported by the applicant. However, the committee's repert on its visilinapection of each of the seven establishments revealed that there Were ne irregularities of the nature which indicated misuse of the scheme ar involvement of any outside agency for sach misuse. The record of the petition shows that the committee held five meetings. In the first meeting held on 27" March, 2006, applicant was advised to identify 20-25 mediuma/small. establishments where problem exists. The Minutes of 2° meeting dated §" April, 2006 show that the infor-
mation provided was general in nature rather than specific to the prob-
lemsfatlegations and, therefare, applicant was advised to provide infor.
NM mation in the required format only. The minutes of the 03% meeting applicant were of routine nature and such problems were to he solved by the officer who looked after the aréa at his level by regular and con- stant eforts. Deputy Director Shri. V. Kailasababu asked the applicant fo give a specific Hist alongwith the complaints and problems and come | ee fad me LS forward with individual complaints and specific problems. The blaming him for all these allegations and ifthis happened, he did nat have any complaint against any of these establishments. The Minutes of the fourth meeting show that from the list of 30 industries, the ob- jections raised were of similar nature. Deputy Director advised that these objections should have been raised by the area in-charge officer as soon as he located excess engagement of apprentices and providing more man power for more quota. In the minutes of 5° meeting the ap-
~ plicant was directed to give the list of 05 establishments for visit, Thereafter, the committees submitted the report in which it was con- cluded that there was no irregularity. They concluded that there is no interference of any external agency. This clearly shows that the appli-
Bae a % cant himself misguided the superior authorities by giving false infor mation. This report has not been challenged by the applicant. There- fore, he was responsible for delay in registering contracts for appren- ticeship and was also responsible for wastage of resources and funds.
Thus, this charge has been correctly he ids to be ed, 7.3. The submission regarding declining to provide legal assistance far Set C.d. No. agt & ea f/soes.
tg the applicant has no force. The Inquiry Gificer as well as the Pre.
e) .
a senting Officer were advocates. It is not in dis spute that the applicant was also permitted to ngage advocate. However, the applicant wanted the advocate to be engaged at the state's expense. This request was turned down. Learned counsel for the applicant placed rellance on the a. Pondian and Others Vs. Director BCG. Vaccine Labora- tory, Madras, 1989 SCC Online CAT 259: (1989) 6 SLR 447 (CAP).
ot
4. The facts in the case of 8) Panadian (supra) are that the applicants were suspended. Preliminary inquiry was ordered in which they sought legal practitioner at state's expense, which was rejected by the Disci- plinary Authority stating that there fs no provision for payment of re- muncration and allowances to the advoeates engaged by them as their Defence Assistant. The question invalved in this case was whether the legal practitioner authorized by the disciplinary authority to assist the Government servant Lacing the inguiry is entitled to any renvuneration payable by the state and ifso, what should be the rate of that remuner ation. In this case at para 16, Chennai Bench af this THbunal held thus:
"ié, Secondly we may sie seate thet as per Clawse 13 of the Delegation af the Financial Powers and the rules contained bomeoje of Sets oy Ee pn Fe. Beyer ting eeaeey; ieerein, ihe concerned ofivers Reve ari SAOUSCH? CONE REOHE OA. Na igi & 193/2023, ONpeys lure ses foya Clouse £394 PONE OG a No os Sey at * ae Serene Pea at PPRED. 2 a Ge, Sernan' gar se Srere Aare to Jing wass ad pawany £0 ears eye ty River feie Maes gated a gh SeeYeRE Re oy AE ds abtigatians. The right ta fave e legal preciitloser ia donesile enquiry carries with ithe righ as have hi fn padded ane erwive if wwould be ge empy: righ"
x 7.3. This case has no application to the facts of the case in hand. In pan Ss % the case af S. Pandian fsupra}, the applicant e placed under sus- pension and they had no resources to pay for the fees of the advocates, This judgment was confirmed by the Apex Court in the case of Direc tor, BOG Faccine Laboratory, Madras Vs. 8. Pandian and Oth ers, ~ £& .
3(1997) U Supreme Court Cases 346. In para 3 of this udement of the Hon'ble Supreme Court it is held as under:
J. in ihe press! cass, Go swpondinre were tnder SHIGGHA AE, wore attendiuary, a ofres fh god Row dare phes re.
SOuMOEY £0 Gear fs fess of at legel mrectitloner who wes oy ry nad Oirciwnewinees, we ore hus as Hoy conuitieg! REP EPP OF g ry SA ee RE ye Pires GRA, Nocige& 199 /eoes.
af feaal ohn to gy FESS Rages hyo ceets. oF feeal chanres povede fo Migih govecats assisting ihe ore SORTER, BACT AS FOL GS Were . Loe bye we) Sy esesor fxs aeragen o Povedls jo the Preses Ser We IMS GaN O SaQEH Searels Sorte Pee ocstesertio So es fayes oe f ween esoteypa dpe fas 9ese Homes: Cae onpeals ghetetore fat und are soseuinati div- arkscd No crdery-aiciu ceisis, ~ 7.0. Mr S. Pandian was a class [V employee. They were also under suspension and, therefore, the order to pay for the legal expenses for the advocate of Mr. 8. Pandian and others was passed. In the case at hand the applicants were high ranking officers. They were not under Suspension. They were very much on duty. Therefore, this case has no application to the facts of the cass in hand. 7.2. Mr. Ramesh Ramamurthy, learned counsel for the applicant in OA No. [53/2023 submitted that the punishment imposed on the ap-
plicant is itself disproportionate to the misconduct.
78. We do not find any substance in these arguments, The letter dated 21" April, 2023 not only criticized the policies of the Govern- ment, but also used intemperate language apainst the Ministry of HRD and the Board of Governors. In a way the applicants were encouraging indiscipline in the department. If lenient view is taken, it will be an encouragement for the hke-minded people in the department. There-
fore, such type of conduct cannot be tolerated. Mr. Singhvi s submitted Ww pees is sa OA. No. agg & iga/anes, eae that the said letter was written by the Secretary of the union. Applicant We cannot accept this submission. Secretary of the union does not write the letter on his own, He always writes letter upon the directions of the President of the union.
7.9. The arguments of Mr. Ramesh Ramamurthy that the applicant in OA No, 153/2023 has been discriminated is to be rejected. Mr. RS. Mule was the Secretary and the applicant was the President of the un- ion. The Secretary did not write the letter on his own. He wrote the ister upon the order of the President and Vice-President of the union. We, therefore, don't find thar the applicant has been discriminated, OS. For the reasons discussed hereinabove, we do not find any sub. stance in these OAs. Roth these GAS are dismissed with no order as to (Dr. Bhagwan Sahalf* ~ idustice MG, Sewlikar) Member (A} Member GF)