Central Administrative Tribunal - Mumbai
Mrs. Kala W/O Bhaiyaji Pandit vs Union Of India Through The Department on 1 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, CAMP: AT NAGPUR
O.A.No. 2104/2012
Date of decision: 1.05.2013
CORAM: HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J)
HON'BLE SHRI R.C.JOSHI, MEMBER (A)
Mrs. Kala w/o Bhaiyaji Pandit
Aged about 61 years,
Occ: Presently Housewife,
R/o. Plot No. 20, Advasi Society,
Netaji Nagar, Purana Pardi Naka,
Kalmana Road, Nagpur 440 035. ... Applicant
(Applicant by Shri N.P.Lambat, Advocate)
vs.
1. Union of India through the Department
of Post, Dak Bhavan, Sansad marg,
New Delhi.
2. Chief Post Master General,
Department of Post,
Maharashtra Circle, Mumbai 400 001.
3. Director of Accounts (Postal)
Rabidranath Tagore Road,
Akashwani Chowk, Nagpur. ... Respondents
(Respondents by Smt. Usha Tanna, Advocate)
O R D E R (ORAL)
Per: Justice A.K.Basheer, Member (J):
Applicant has retired from service on September 30, 2011 while she was working as Senior Accountant in the Department of Posts. She has filed this Original Application with a prayer to quash and set aide the Memorandum of charge issued to her by respondent No.3 directing her to face a Departmental Inquiry on the charges indicated therein.
2. Gravamen of the charge in the Memorandum dated September 22, 2011 is that applicant had produced a Caste Certificate obtained from Executive Magistrate,Nagpur claiming to belong to Halba community which is a Scheduled Tribe. She was given appointment in 1984 as Lower Division Clerk against a post reserved for a Scheduled Tribe candidate on the basis of the said Caste Certificate. Even though, by communication dated July 17, 2001 the applicant was directed to produce the Original Caste Certificate and other relevant documents required for the purpose of submission before the Caste Scrutiny Committee, she had failed to do so. Several reminders issued thereafter also did not evoke any response. Memorandum of Charge further states that at the time of her appointment she had given a declaration that the information furnished by her was true and that she would be liable for penal action if the information was found to be false later on.
3. Admittedly, the applicant had not submitted any response/representation to Annexure A.I Memorandum of charge. It is contended by the learned counsel that the respondents are not entitled to proceed against the applicant Departmentally in view of the decision of the Supreme Court in the case of State of Maharashtra vs. Milind and Ors. (2001)1 SCC 4 and also in view of the Office Memorandum dated August 10, 2010 issued by the Department of Personnel and Training.
4. Per contra, it is contended by the respondents that the Department had decided to issue Annexure I Memorandum of Charge since the applicant had deliberately and willfully refused to comply with several reminders issued to her instructing her to produce the Original Caste Certificate and other related documents as undertaken by her at the time of her appointment. The original certificate had to be produced before the Caste Scrutiny Committee as mandated by orders issued by the Department. The consistent stand taken by the applicant was that she had produced all the documents at the time of her appointment. This was not found to be true. Several reminders issued to her right from 2001 did not yield any result. It was in the above circumstances that the department wanted to hold an enquiry on the basis of Annexure I Chargesheet, since the conduct of the applicant was unbecoming of a Government servant.
5. Learned counsel for the applicant vehemently contended before us that the applicant is not liable to face any departmental enquiry in view of the Office Memorandum issued by the Department of Personnel and Training referred to above. In this context learned counsel also invited our attention to the judgement of their Lordships of the Supreme Court in State of Maharashtra vs. Milind and Ors (supra)and also of the Bombay High Court in Writ Petition No.W.P.No.5029/2010 in Jagan Taklikar vs. UOI. Learned counsel contends that the Office Memorandum issued by the DOPT had clearly spelt out the position as hereunder:
The matter has been examined in consultation with the Department of Legal Affairs and it has been decided that the persons belonging to the 'Halba Koshti/Koshti' caste who got appointment against vacancies reserved for the Scheduled Tribes on the basis of Scheduled Tribe certificates, issued to them by the competent authority, under the Constitution (Scheduled Tribes) Order, 1950 (as amended from time to time) relating to the State of Maharashtra and whose appointments had become final on or before 28.11.2000 shall not be affected. However, they shall not get any benefit of reservation after 28.11.2000.
6. Heavy reliance has been placed by the learned counsel on the above paragraph in the Office Memorandum referred to above. However, it is to be noticed that the respondents have a specific case that the applicant had not produced the Original Caste Certificate at the time of her initial appointment. There was nothing on record to show that the Certificate produced by her was genuine. At the time of her appointment she had undertaken that she will produce the original Certificate later. In these circumstances the applicant was directed to produce the original Caste Certificate for sending the same to the Scrutiny Committee which had been repeatedly directing the respondents right from 2001 to make available the same. The enquiry was ordered when the applicant defiantly refused to abide by the direction issued in this regard. There is considerable force in the above contention.
7. In our view the applicant has to necessarily appear before the Departmental Authorities and face the enquiry in which she can raise all her contentions and produce all the relevant materials available with her while answering the charges. The question whether the Caste Certificate issued to her was genuine has to be decided by the authority which is constituted for the said purpose. Similarly the question whether she had produced the original Certificate at the time of her appointment has to be considered by the Departmental authorities on the basis of evidence that may be adduced.
8. A perusal of the letter issued by the D.O.P.T. referred to above will show only that appointments made on the basis of Scheduled Tribe Certificates issued by the competent authority under the Constitution (Scheduled Tribes) Order, 1950 would get the benefit of the above Office Memorandum. The question whether the Caste Certificate in favour of the applicant was issued by a competent authority, it appears, is yet to be decided. Applicant has got a case that she had produced it at the time of her appointment. But the Department says it was not. This ticklish issue can be decided in the Departmental Enquiry. Still further the above letter issued by the DOPT refers to Halba Koshti/Koshti caste. Here the case of the applicant is that she belongs to Halba Caste. She does not have a case that she belongs to Halba Koshti/Koshti Caste. Any how in our view, these issues are not relevant at this stage.
9. In any view of the matter, we do not find any reason to interfere with the decision of the department to institute a Departmental Enquiry on the basis of the Memorandum of charge issued to the applicant. It is trite that no Court or Tribunal shall interfere with Departmental Proceeding at its threshold since undoubtedly the delinquent employee will be entitled to take up all contentions available to him/or her before the Enquiry officer.
11. We are satisfied that the respondents have to be allowed to continue with the Departmental Proceedings. We make it clear that we have not considered the merit or demerit of any of the contentions raised by the applicant. It will be open to her to raise all her contentions before the Departmental Authorities.
12. At this stage, it is pointed out by the learned counsel that the applicant is not being paid any pension even though she has retired from service. Her other retiral benefits are also withheld. While admitting this Original Application on May 4, 2012, an interim order was passed staying further proceedings in the departmental enquiry pursuant to Annexure A.I chargesheet. A further direction was issued to the respondents to complete the process of finalising the pension papers of the applicant.
13. Keeping in view the entire facts and circumstances of the case, respondents are directed to complete the Disciplinary Proceedings against the applicant as expeditiously as possible at any rate, within four months from the date of receipt of a copy of this order.
14. Original Application is disposed of in the above terms. Misc. Application No. 2178 of 2012 is closed. No costs.
(R.C.Joshi) (Justice A.K. Basheer) Member (A) Member (J) sj*