Central Administrative Tribunal - Mumbai
Balwant Ramashankar Singh vs M/O Finance on 11 November, 2024
1 OA No.429/2019
ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.429/2019
Date this Monday, the 11th day of November, 2024.
CORAM: Justice M.G. Sewlikar, Member (J)
Shri Santosh Mehra, Member (A)
BALWANT RAMASHANKAR SINGH
(Son of Late Shri Ramashankar Rajaram Singh),
Date of birth: 08.06.1969, age 50 years,
Working as: Inspector (Examiner) on Adhoc basis
(Group "B" Non-gazetted Post),
Under Commissioner of Customs (Gen),
New Customs House, Ballard Estate,
Mumbai 400001, R/at: Block "A", 3rd Floor,
Shantibhavan, 135, Parmar Guruji Marg,
Parel (East), State of Maharashtra 400012. ... Applicant
(By Advocate Shri R.G. Walia)
VERSUS
1. Union of India
Through - Chief Commissioner of Customs
(Appellate Authority)Mumbai Zone-1,
2nd Floor, Old Building, New Customs House,
Ballard Estate, Mumbai 400001.
2. Commissioner of Customs (General)
(Disciplinary Authority), 2nd Floor, Old Building,
New Customs House, Ballard Estate, Mumbai 400001.
... Respondents
(By Advocate Shri B.K. Rishi a/w Shri Rishi)
Reserved on :17th September, 2024.
Pronouncement on: 11th November, 2024.
2 OA No.429/2019
ORDER
Per: Shri Santosh Mehra, Member (A)
By this application, the applicant is seeking setting aside the order dated 11th November, 2016 passed by the Disciplinary Authority confirmed by the Appellate Authority dated 11th/12th September, 2018 and charge-sheet dated 15th December, 2010.
2. Facts leading to this application are that; 2.1. The applicant was appointed as Lower Division Clerk (LDC) in the respondents' Department. He was promoted as Upper Division Clerk (UDC) in the month of October 1995. Between the year 2000 & 2002, the applicant was posted in Personnel and Establishment (P&E) Department and was looking after affairs of Ministerial cadre. 2.2 It is alleged by the applicant, that in the year 2002, cadre restructuring was undertaken at the Board level. In the year 2002, the applicant was working as Upper Division Clerk in P&E department and to implement the Cadre Re-structuring a Committee/Cell was constituted 3 OA No.429/2019 which was headed by the Chief Commissioner of Customs and the Members were;
1) Commissioner of Customs (General)
2) Joint Commissioner (P&E)
3) Dy. Commissioner (P&E)
4) Administrative Officer (P&E)
5) Superintendent (PO)
6) Examiner and UDC (Upper Division Clerk.
The applicant was made a Member of the Cadre Restructuring Cell, being the UDC and being lowest in the hierarchy.
2.3 It is averred that prior to the restructuring of the cadre, the post of Examiner was filled-up by way of direct recruitment as well as promotion. From the post of UDC an official can be promoted either to the post of Preventive Officer or Examiner in Executive cadre or Deputy Superintendent (DoS) in Ministerial cadre. This Committee was constituted for promotion to the post of Inspector, the feeder post was UDC. Accordingly, the vacancies were 4 OA No.429/2019 determined. Promotions were effected. Applicant was also promoted to the post of Inspector Examiner on adhoc basis. 2.4 One Lionel A. D'souza had filed a complaint to the Assistant Commissioner of Customs (Vigilance) alleging that the applicant had misreported number of vacancies to the DPC for the post of Inspector Examiner. Investigation was conducted by the Vigilance Department and it was found that the applicant had communicated less number of vacancies. Accordingly, he was served with the Charge Memorandum on th 05 December, 2010 in which following charge was levelled against him:-
"Article of Charge I:-
That the said Shri Balwant R. Singh, Inspector (EO), while functioning as Upper Division Clerk, in the Personnel & Establishment Department, during the year 2002, falsified the number of vacancies available for promotion to the grade of Inspector (EO) before the Departmental Promotion Committee, held on 26.12.2002, for his personal advantage. This resulted in the non- consideration and thereby, denial of promotion to the eligible candidates of the feeder cadres to the said grade, at the relevant time. Being fully aware of the availability of the vacancies in the grade of Examiner suppressed by him and that these would have been considered on a later date, in spite of being qualified in the physical standard test for 5 OA No.429/2019 promotion to the grade of Inspector(PO/EO), he abstained from the Personal Interview. Shri Balwant R. Singh, and many other candidates of the feeder cadres, who were otherwise not eligible for promotion to the grade of Inspector (EO) then, as per their position in the inter-se seniority of the feeder cadre, thus became beneficiary for promotion to the grade of Inspector (ΕΟ).
Thus, Shri Balwant R. Singh, Inspector (EO), (the then UDC), committed gross misconduct and failed to maintain absolute integrity; maintain devotion to duty and behaved in a manner which is unbecoming of a Government servant."
2.5 Investigation was conducted on following points;
1) Whether the vacancies available were intimated correctly.
2) And if not what was the role of the concerned officials who were responsible for intimating the incorrect vacancy position.
2.6 In the Statement of Imputation, it is alleged that there were 21 promotee quota vacancies, 24 cadre restructuring vacancies, 44 direct recruit vacancies and 74 direct adhoc Appraisers promotion vacancies, in total there were 163 vacancies available for promotion to the grade of th Inspector (E.O.) as on 26 December, 2002. The applicant reported only 163 vacancies for promotion to the grade of 6 OA No.429/2019 Inspector. But the applicant reported availability of vacancies of only 45.
2.7 Inquiry was conducted. The Inquiry Officer gave the report observing that the applicant had correctly carved out the vacancies. He did not misreport the vacancies and thereby exonerated the applicant.
2.8 The Disciplinary Authority did not agree with the findings of the Inquiry Officer and he gave disagreement note to the applicant. The applicant tendered his reply to the disagreement note. The Disciplinary Authority on consideration of entire evidence before him and the reply of the applicant to disagreement note, found the applicant guilty and imposed punishment of reduction of pay by two stages st w.e.f. 01 December, 2016 for a period of two years without cumulative effect and not adversely affecting his pension. 2.9 The applicant preferred appeal against this order which was dismissed. These two orders are impugned in this OA.
3. Respondents filed reply. In the reply, respondents contended that the applicant misreported the vacancies. He 7 OA No.429/2019 was fully aware of the availability of the vacancies in the grade of Examiner. He suppressed it and deliberately misguided the DPC. The applicant himself had initiated the note for holding of DPC and the number of vacancies. It is contended that CBEC had given specific directions vide letter th dated 19 July, 2001 that no direct recruitment may be made to the various grades for the year 2001-2002 without the approval of Ministry/Department as the Cabinet has approved a one time relaxation for filling of all vacancies by way of promotion in all cadres. For direct quota, there were 44 vacancies. There were 74 vacancies on account of promotion of adhoc Appraisers, so the applicant under reported 118 vacancies. The number of vacancies should have been reported is 163 but the applicant reported only 45 vacancies.
4. This OA was allowed by this Tribunal vide order dated 04th May, 2023. The respondents challenged this decision by filling WP No.11117/2024. This order was set aside and the matter was remanded to this Tribunal. The 8 OA No.429/2019 High Court recorded following observations and directed this Tribunal to decide the matter afresh in accordance with law:
"....9. Having considered the respective submissions made by the learned counsel representing the competing parties, what we find is that the Tribunal has completely failed to give any reason whatsoever for arriving at its conclusion in the impugned judgment. The Tribunal, after recording the submissions of the respondent in paragraphs 2 to 8.5 of the judgment, further records the submissions of the petitioners in paragraphs 9 to 12 and thereafter notices certain judgments and abruptly draws its conclusion in paragraph 15 of the impugned judgment. In 907- WP.11117.2024 paragraph 15 of the impugned judgment, the Tribunal records that the Disciplinary Authority, while disagreeing with the Inquiry Officer, has recorded a finding which was not supported by any evidence. However, as to what evidence was available on the record of the inquiry proceedings and in what manner the evidence was considered and conclusions were arrived at by the Inquiry Officer and Disciplinary Authority respectively and the reason for the Disciplinary Authority to have differed from the Inquiry Officer, have not been discussed at all by the Tribunal.
10. It is a case where the Disciplinary Authority, on conclusion of the inquiry, took a view different from the view taken by the Inquiry Officer and accordingly, recorded his disagreement on the disagreement note dated 8th June 2016. If the Tribunal was of the opinion that the reasons accorded by the Disciplinary Authority for recording his disagreement in the disagreement note dated 8th June 2016 were not tenable, the Tribunal was expected to give reason therefor after weighing the evidence available and gathered during the course of the inquiry. Merely by saying that the findings recorded by the Disciplinary Authority are not supported by evidence does not suffice. Any adjudicating authority or Court or Tribunal has to record findings giving reasons, especially when the findings recorded by the subordinate Tribunal/Court/authorities are being overturned.9 OA No.429/2019
11. When we peruse the impugned judgment and order passed by the Tribunal, we find that no such reason has been recorded by the Tribunal to arrive at its conclusion as to how the inference drawn by the Disciplinary Authority, whereby he had taken a view different from the view taken by the Inquiry 907-WP.11117.2024 Officer, was perverse. For arriving at a conclusion of perversity in findings, it is necessary for the Court/Tribunal to discuss and weigh the evidence and after application of mind, draw a conclusion as to how and in what manner there is perversity in the findings recorded by the Subordinate Court/Tribunal/Authority.
12. Since the impugned judgment and order passed by the Tribunal is bereft of any such reasoning, in our opinion, the same is liable to be struck down.
13. Accordingly, the petition is allowed and the impugned judgment and order dated 4th May 2023 passed by the Tribunal in Original Application No. 429 of 2019 is hereby quashed.
14. The Tribunal is directed to restore the Original Application No. 429 of 2019 on its file and decide the same afresh in accordance with law and the observations made herein-above in this pronouncement."
5. We have heard the learned counsel for the applicant. Learned counsel for the respondents has filed written notes of arguments. Read the written notes of arguments.
10 OA No.429/2019
6. Learned counsel for the applicant submitted that the applicant had correctly reported the vacancies to be 45. First of all, it was not his job to report the vacancies to the DPC. It was the job of Shri G. Sairam and Kalpesh Desai. In their statements, they admitted that it was their responsibility to ascertain the number of vacancies. He submitted that there were no 74 vacancies in the grade of Examiner as those 74 were promoted on adhoc basis. He further submitted that the th instructions contained in letter dated 19 July, 2001 and th 05 June, 2002 clearly indicate that the 44 vacancies for direct quota were not to be considered for promotion to the post of Examiner. Therefore, 45 vacancies were the correct number of vacancies.
7. It is contended in the written notes of arguments of the respondents that provision of revision is made in the rules. The applicant has not exhausted that remedy and, therefore, the OA is not maintainable in terms of Section 20 of the Administrative Tribunals Act. It is contended in written notes of argument that there is nothing on record to show that a fair and unbiased inquiry was not conducted. The applicant 11 OA No.429/2019 was provided with necessary documents and was allowed to cross-examine the witnesses and was also granted an opportunity of hearing after the Disciplinary Authority issued a disagreement note against the report of the Inquiry Officer. Tribunal is not an Appellate Authority to look into the fairness of the departmental inquiry unless strong malice and unfairness is brought on record. The applicant was given fair and proper opportunity to defend his case. The applicant was awarded lenient punishment.
8. It is further contended in the written arguments rd that the vacancies statement dated 23 December, 2002 was signed by G. Sairam, Kalpesh Desai. The said statement had reported the following vacancies; direct 44, Promotee 21, cadre restructuring 29 and adhoc vacancies 74. The applicant in his th rd note dated 17 December, 2023 and 23 December, 2023 made a mention of only 45 vacancies. The Disciplinary Authority observed that the applicant did not furnish any explanation for deviating from the vacancy statement dated rd 23 December, 2002. It is further contended that the 12 OA No.429/2019 th Disciplinary Authority had relied on Circulars dated 19 July, th 2001, CBEC letter dated 05 June, 2002 and CBEC letter dated th 15 November, 2002. It is contended that in the letter dated th 19 July, 2001 it was specifically directed that no direct recruitment may be made to the various grades for the year 2001-2002 without approval of Ministries/Department as the Cabinet as approved a one-time relaxation for filling of all vacancies by promotion in all cadres. It is further contended th that letter dated 05 June, 2002 states that the ban on direct th recruitment imposed vide letter dated 19 July 2001 was st extended upto 31 December, 2002. It is further contended th that in the letter dated 15 November, 2002 it was directed as under;
".....It is further clarified that all the consequential vacancies arising as a result of the Cadre Restructuring may be filled up as already stated in para-3 of this deptt's letter of even numbder dated th 19 July, 2001. All the vacancies in the direct recruitment quota in each grade may not be filled- up till further instructions are issued by the Ministry".13 OA No.429/2019
9. The applicant cannot contend that he is lowest level functionary and, therefore, his role is minimal. It is not permissible for him to contend that vacancy position was to be determined by other individuals. This Tribunal by order dated th 12 January, 2015 in OA 05/2011 while rejecting the OA for quashing of charge-sheet observed that the note for holding of DPC and the number of vacancies was initiated by the applicant himself. He argued that on all these counts, the OA deserves to be dismissed.
10. We have given serious consideration to the submissions made by the learned counsel for both the sides. We have gone through the pleadings of the parties, the Inquiry Report, Disagreement Note, the order of the Disciplinary Authority and the order of the Appellate Authority.
"Disagreement on Article of Charge I:- That the said Shri Balwant R. Singh, Inspector (EO), while functioning as Upper Division Clerk, in the Personnel & Establishment Department, during the year 2002, falsified the number of vacancies available for promotion to the grade of Inspector (EO) before the Departmental Promotion Committee, held on 26.12.2002, for his personal advantage. This resulted in the 14 OA No.429/2019 non-consideration and thereby, denial of promotion to the eligible candidates of the feeder cadres to the said grade, at the relevant time. Being fully aware of the availability of the vacancies in the grade of Examiner suppressed by him and that these would have been considered on a later date, in spite of being qualified in the physical standard test for promotion to the grade of Inspector(EO), he abstained from the Personal Interview. Shri Balwant R. Singh, and many other candidates of the feeder cadres, who were otherwise not eligible for promotion to the grade of Inspector (EO) then, as per their position in the inter-se seniority of the feeder cadre, thus became beneficiary for promotion to the grade of Inspector (ΕΟ).
Thus, Shri Balwant R. Singh, Inspector (EO), (the then UDC), committed gross misconduct and failed to maintain absolute integrity; maintain devotion to duty and behaved in a manner which is unbecoming of a Government servant and has violated Rule 3 (1) (i), (ii) & (iii) of the CCS(Conduct) Rules, 1964.
Thus, the CO Shri Balwant R. Singh, Inspector (EO), was charge sheeted vide Memorandum dated 15.12.2010 for his acts of omission and commission, while functioning as UDC in the Cadre Restructuring Cell in P&E Section. The Inquiry Officer however held the charges framed, as not substantiated during the Inquiry Proceedings and has thus held the same to be 'Not Proved."
11. The observations of the Disciplinary Authority regarding disagreement are as follows:-
"5.1........Thus, taking into consideration the directions of the then JC, P&E, it was the basic responsibility of the CO to correctly counter- check all the DPC details received from P&E Section, including vacancy position and he 15 OA No.429/2019 should have been rather more alert and attentive while putting up the vacancy position in the DPC file to the Commissioner (G), being part of Cadre Restructuring Cell.
He was rather duty bound to submit clear vacancy position to the then Commissioner (G), which was free from any kind of ambiguity and vagueness.
5.2 The CO in his note on N/s.VIII dated 17.12.2002 in F.No.S/5-719/2002 P&E, had apparently himself worked out the vacancy position and put up his note for holding the DPC as per the vacancy position explained therein by him. It is further found that S/Shri G.Sairam & Kalpesh Desai, both UDC's had not given any vacancy position to the CO, as on 17.12.2002, but the CO in his note dated 17.12.2002 had himself worked out the vacancy position given therein, as the note doesn't contain any reference, from where the said vacancy position received and put up by him. Even for putting up the issue about regularization of 37 Adhoc Examiners, which was handled by the CO in his note dated 17.12.2002, the CO cannot categorically put up the said issue in the file, without conclusively knowing the vacancy position as on 17.12.2002. However since vacancy position as on 17.12.2002 was not given by S/Shri G.Sairam & Kalpesh Desai, both UDC's, there is ground to hold that the CO was somehow instrumental in calculating and determining the vacancy position and he himself had worked out the vacancy position for the DPC in the said note.
Thus, CO's note dated 17.12.2002, therefore, nullifies his claim that he was never assigned the job of calculation & determination of vacancies of Examiner cadre for the DPC and the IO has also failed to point out the same.
16 OA No.429/20195.3 The CO vide para-III of his note dated 17.12.2002 on N/s.VIII of the file No.S/5-719/2002 has provided the detailed calculation showing available vacancies for Examiner for DPC as 13 and further in his subsequent note dated 23.12.2002 on N/s.IX, he has modified the vacancy position and without assigning any reasons, had shown available vacancies in Examiner's grade for DPC as 08. Further, in the said note dated 17.12.2002 on N/s.VIII, the CO has also mentioned the existing vacancy earmarked for promotee as 08 and in his subsequent note dated 23.12.2002 on N/s.IX, without mentioning supporting clarifications, has mentioned vacancies earmarked for promotee as 21. It therefore shows while projecting vacancy position, CO was found to have very casual approach.
The said two notes dated 17.12.2002 and 23.12.2002 contradicts the claim of CO that the vacancies have been reported by him as per note received from concerned table of P&E Section and directions received from higher authorities. Thus, it proves that the claim repeatedly made by CO in the course of Inquiry proceedings, which was also held by the IO that he was never assigned the job of calculation & determination of vacancies of Examiner cadre for the DPC, is unacceptable and it is nothing but an afterthought.
5.4 The CO was also found to have not at all taken cognizance of the vacancies reported under various heads in the vacancy statement dated 23.12.2002 which was received from P&E Section, in his note dated 23.12.2002 and thus it nullifies the claim of the Inquiry Officer wherein he mentioned that, "The CO processed only duly approved & signed vacancy statement of Examiner grade dated 23.12.2002 in the F.No.S/5-719/2002 Estt. and placed his 'Note of Proposal' dated 23.12.2002."
17 OA No.429/2019
12. The above observations of the Disciplinary Authority are based on conjectures and surmises. It is wholly incorrect for the Disciplinary Authority to hold the Charged Officer responsible for the calculation of vacancies and their falsification etc. This is borne out from the following facts which are all supported by documentary evidence. A. In the Inquiry Report, the EA has clearly brought on record that it was Shri G Sairam and Kalpesh Desai who were responsible for the calculation of vacancies. This was also evident from the statements of both, which were recorded during the course of the inquiry.
In the statements given by Shri G. Sairam (PW1), Shri Kalpesh Desai (PW2) and Shri C.S. Gupta (DW1) before the Inquiry Officer during the Inquiry Proceedings, they have nowhere indicted the Charged officer but infact have categorically stated that it was for them and them alone to ascertain the correct vacancy position and convey the same to the Cadre Restructuring Cell.
The calculation of the vacancies as done by KALPESH DESAI AND G. SAIRAM was approved right up till the level of Commissioner after passing atleast 4 Superior 18 OA No.429/2019 Authorities i.e. Appraisers, Assistant Commissioner, Joint Commissioner and Commissioner. Hence, laying the blame on Charged officer is not correct.
B. There were atleast six level of officers above the level of UDC charged with the responsibilities of carrying out this work. Infact, the Charged Officer was the Junior most officer of the Committee which was comprised of the following:
1) Chief Commissioner of Customs
2) Commissioner of Customs (General)
3) Joint Commissioner (P&E) (Personnel &
Establishment).
4) Dy. Commissioner (P&E)(Personnel &
Establishment)
5) Administrative Officer (P&E) (Personnel &
Establishment)
6) Superintendent (PO)
7) Examiner
8) UDC.
Sr. No.1 to 4 above were Group 'A' officers. Chief Commissioner of Customs was Cadre Controlling Authority i.e. Head of Mumbai Zone. Sr. No.5 to 7 above were Group "B" Officers and Sr. No.8 i.e. UDC (Charged Officer) was a Group "C" Employee. The above Committee was specifically meant for implementing the restructuring of cadre as a whole and was not specific to any post.
19 OA No.429/2019C. The Inquiry Officer clearly established that CO was not even assigned the said job of 'Calculation & Determination of Vacancies of 'Examiner Cadre' for the DPC dated 26.12.2002. He further established that a team comprised as discussed above calculated & determined the vacancies and upon due approval of DC (P&E) forwarded the same.
13. After detailed deliberations, Inquiry Officer has concluded that the job of Calculation and Determination of vacancies in the Grade of Examiners as on 23/26.12.2002 was assigned to Shri G Sairam (LDC) and Shri Kalpesh Desai (UDC) PW-1 and PW 2 respectively. Besides, this was "Team Assignment'. He has clearly proved that the 'Job of Calculation and Determination of Vacancies in the Grade of Examiners as on 23/26.12.2002' was carried out by a "Team comprising of Shri. G Sairam (LDC) and Shri Kalpesh Desai (UDC) PW-1 and PW-2 respectively and Shri N. Vidyadharan (Administrative Officer) and Shri C.S.Gupta (Appraiser) headed by Shri P Balakrishnan (DC, P&E).
14. Chronicling the sequence of events, the Inquiry Officer held that a team as mentioned above, calculated & 20 OA No.429/2019 determined the vacancies and upon due approval of DC(P&E), forwarded it to CO. The CO processed those approved vacancies in the file S/5-719/ 2002 Estt. CO, thereafter placed his 'Note of Proposal' dated 23.12.2002 and submitted to his immediate senior officer i.e. N.Vidyadharan (Administrative Officer) and Shri P Balakrishnan DC(P&E). While, proposing his 'said note' he also 'PLACED OPPOSITE' the 'Duly Approved and Signed Vacancy Statement of Examiner Grade dated 23.12.2002'. Thus, IO clearly established that the CO was never instrumental in the 'Process of Determining, Drafting and Drawing Vacancy Position' vide said 'Duly Approved and Signed Vacancy Statement of Examiner Grade dated 23.12.2002'. Inquiry Officer further held that, CO's note was vetted and forwarded by Shri N. Vidyadharan (Administrative Officer) & Shri P Balakrishnan (DC P&E), who themselves with the help of PW-1 & PW-2 approved the said 'Duly Approved and Signed Vacancy Statement of Examiner Grade dated 23.12.2002.' The Charged Officer's note was eventually approved by Shri Hemant Bhatt (JC, P&E) and Shri K.K. Agarwal Commissioner (G).
21 OA No.429/2019
15. As per the charge, the break-up of vacancy is as under:-
Direct 44, Re-structuring of cadre 24, Promotee - 21, Adhoc Appraiser - 74.
16. The main thrust of the respondents as is evident from arguments of learned counsel for the respondents is on th th the letter dated 19 July, 21, 05 June, 2002 and th th 15 November, 2002. The letter dated 19 July, 2001 is at page 395. The subject of this letter is Restructuring of Customs and Central Excise Department. In para 3 of the said letter, it is stated that "No direct recruitment may be made to the various grades for the year 2001-2002 without approval of Ministry/Department as the Cabinet has approved one time relaxation for filling of all vacancies by promotion in all cadres". Another letter was issued by CBEC dated th 05 June, 2002 at page 401 (Annexure A-8). Following directions have been issued by CBEC:
".......7. It has been decided to extend the ban on direct recruitment imposed, in terms of para 3 of 22 OA No.429/2019 Deptt's letter. F. No. A-11019/72/99. Ad.IV dated 19/07/2001 upto 31/12/2002. However, the ban would be applicable only to the posts that have been included in the cadre restructuring. It has also been decided that the ban on direct recruitment would not apply to compassionate ground appointments made with the approval of the Board."
(underlining is ours)
17. From this letter, it is seen that the ban on direct recruitment imposed in terms of para 3 of Deptt's letter. F. No. A-11019/72/99. Ad.IV dated 19/07/2001 was extended upto 31/12/2002. However the ban would be applicable only to the post that have been included in the cadre restructuring. It had also been decided that the ban on direct recruitment would not apply to compassionate ground appointments made with the approval of the Board. This letter makes it amply clear that ban on direct recruitment was only to the post those were included in the cadre restructuring. This clearly goes to show that the ban was not on the direct quota of 44 posts. Meaning thereby that these 44 posts were not to be filled by promotion they were to be filled by direct recruitment only. This is what the Inquiry Officer had held. The Disciplinary Authority did not touch this aspect of the matter. It proceeded on the lines that the contention of the 23 OA No.429/2019 applicant that he was not responsible for reporting vacancies was not correct. The Disciplinary Authority found that the applicant was not responsible for reporting of the vacancies. This letter clearly shows that the ban for direct recruit was on the post those were included in the cadre restructuring and not of 44 which were for direct quota. Therefore, the applicant was right in not reporting 44 vacancies which were meant for direct recruitments.
18. The usage of the phrases by DA such as that the Charged Officer has "apparently himself calculated the vacancy position" 'as per the vacancy position explained to him' clearly indicate that the Disciplinary Authority was not very sure of his assertions. Again the Disciplinary Authority's statement that the CO was 'somehow instrumental in calculating and determining the vacancy position' is also very nebulous and is not backed by any evidence by him. In para 5.4, the assertions of the Disciplinary Authority that the Charged officer did not take cognizance of the vacancies reported under various heads in the vacancy statement dated 23rd December, 2002 is very categorically negated in the 24 OA No.429/2019 Inquiry Report which clearly established that the selection was a limited process and was not to be extended to direct recruit officers. Furthermore, letter No.A-11019/72/99-Ad IV dated 19th July, 2001 of CBEC Approval of Cabinet for Cadre Restructuring clearly gave directions not to fill up Direct Recruitment Vacancies for the year 2001-02, as Cabinet had given one time relaxation to fill up the post by promotion in all cadres.
19. The Inquiry Officer concluded and rightly said that the 'Number of Vacancies' for DPC considering promotion to the Grade of Examiner as scheduled on 26.12.2002, were available at '45' as "True & Correct" and that there was no concealment of any vacancy in the Grade of Examiner as calculated and determined by P&E department, as on 23.12.2002. Therefore, the calculation of DA that, "as on 23/26.12.2002, the charged officer did 'Wrong Calculation & Determination of Vacancies in the Grade of Examiners at '45' against 'allegedly at 163' done by P&E Department' is not correct.
20. It is pertinent to mention that in a similar case pertaining to the same Restructuring of Cadre involving the 25 OA No.429/2019 cadre of Appraiser, the cadre strength of 409 was reported as
274. This mistake was recognized and came to be rectified in the year 2014 by the Board itself. No Charge-sheet or responsibility was fixed on any Officer for the said under reporting or wrong reporting. In contrast, the Applicant who was working as a UDC (Upper Divisional Clerk) and was the junior most employee. Hence, by no stretch of imagination, can he be considered to be Competent Authority to either determine the vacancy position/cadre strength or direct determination of the same. It is obvious from above that he was wrongly indicted with falsifying the number of vacancies.
21. It is also pertinent to reiterate that the Charged officer was lowest in hierarchy in the Cadre Restructuring Cell and there were many officers above him. Furthermore, it is clearly established on record that it was the duty of the Customs Houses to give correct vacancy position/cadre strength and to maintain the Quota as provided under the Rules for Direct Recruits and Promotee Officers. It is clearly brought on record that in all the three Custom Houses, a STANDARD POLICY was adopted and all procedures were uniform and consistent, regarding determination of regular 26 OA No.429/2019 vacancies. Infact, for the post of Appraisers all Direct Recruits vacancies which have arisen prior to 1.4.2001 were not included for promotion under Cadre Restructuring in Bombay Customs House itself. The conscious decision was taken for all posts by the Superior Authorities, not to include the BACKLOG of Direct Recruits vacancies which had arisen prior to 1st April, 2001. Thus, the Charged Officer cannot be considered to be responsible for such an important calculation.
22. To conclude, the assertions of the Disciplinary Authority mentioned at 5.1 to 5.4 are comprehensively negated by the above facts established during the course of the inquiry by the Inquiry Authority.
23. Regarding imputation that the Charged Officer influenced other officers of P&E Department, it is well established that the Charged Officer was a very junior officer of Grade 'C'. It is very difficult to believe that such a junior level officer can exercise even minimal level influence on 'Promotion Process', a process which has far reaching implications and which is closely watched by all connected people and cannot leave effect on others promotion. It is 27 OA No.429/2019 beyond imagination that an 'Officer of Rank of UDC (Grade 'C') can be decision maker for (i) Number of Vacancies, (ii) Determination of Nature of Vacancies, (iii) Influencing DPC Proceedings, (iv) Getting himself promoted without being eligible and (v) Depriving other eligible candidates with due their promotion.
24. The Inquiry Officer had very clearly established the above and it was beyond doubt. It was also established by the Inquiry Officer that the 'Functioning of Whole P&E Department including CO at the Material Time, was on proper lines. The Inquiry Officer had scrutinized the calculations of 'Zone of Consideration' and 'Seniority Position' of Charged Officer with respect to other officers and found that, if Charged Officer wished to get promoted vide DPC dated 26.12.2002, he would need 92 vacancies. Thus, the conclusion of the DA that a low level functionary like the Charged Officer who had many senior level officers above him and was also bound by laid down systems and procedures could influence the entire hierarchy and subvert the entire protocols, is totally far fetched and not at all supported by any evidence. 28 OA No.429/2019
25. It is pertinent to reiterate that So far as vacancies of 74 adhoc vacancies are concerned, they were promoted from the post of Examiner to Appraiser. These were adhoc promotions, therefore, the applicant was right in not reporting the vacancies because they were adhoc promotions. It is elementary principle that because of adhoc promotion, there is no clear vacancy because the employees who are promoted on adhoc basis can be reverted at any time. Thus, the Inquiry Officer had correctly held that those 118 vacancies (44 direct quota, 74 adhoc were not available). The Disciplinary Authority has misread these letters and has come to a conclusion which an ordinary prudent man would never draw. Therefore, the order of Disciplinary Authority in this respect is perverse. We are conscious of the fact that the Tribunal is not a Court of appeal. In a judicial review, the process of decision making is to be examined and not the decision. However, in judicial review it is permissible for the Tribunal to interfere in the order of Disciplinary Authority if it is found to be perverse. As indicated above, we find the order to be perverse. In addition to this, the employees who were complaining that proper vacancies were not reported 29 OA No.429/2019 had filed OA bearing No.249/2014 (Lionel A. D'souza & 2 Ors. Vs Union of India & Ors.). In that OA, the respondents i.e. the Department had taken a stand that 45 vacancies were correctly reported. Thus the stand taken by the respondents in that OA is diagonally opposite of the stand taken in this OA. Moreover, this OA.No.249/2014 has been dismissed by this Tribunal which means that the vacancies as contended by the applicants were held not be correct. In this view of the matter, we find that the order of the Disciplinary Authority is perverse and needs interference.
26. It is contended that the revision was not preferred by the applicant. Our attention was drawn to the provisions for revision under Rule 29 of CCS (CCA) Rules, 1965, pointing out that the same has been provided under the said rule, and argued that the OA without exhausting the remedy of revision is premature. It was pointed out that revision is not mandatory and that the OA without preferring the revision is maintainable. He referred to Sub Section 2 and 3 of Section 20 of A.T. Act. which is reproduced for ready reference: 30 OA No.429/2019
"20. Application not to be admitted unless other remedies exhausted -
(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purpose of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievance,-
(a) If a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) Where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
27. Referring to Section 20 (1) (2) (a) of the A.T. Act, it was argued that as the appeal of the applicant had been 31 OA No.429/2019 rejected, he was deemed to have availed the statutory remedy and therefore the OA could not be said to be premature. He also pointed out that as applicant had availed remedy of appeal, he could not have filed a revision, as under Section 29 of the CCS CCA Rules, 1965, remedy of revision is available against an order from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed. From this provision, it is clear that once appeal is preferred, applicant is deemed to have availed of the statutory remedy. In these circumstances, to relegate the matter on this ground after five years is travesty of justice.
28. In this view of the above, the OA is allowed. Orders dated 11th November, 2016, 11/12th September, 2018 and 15th December, 2010 are set aside with all consequential benefits which would have otherwise been admissible to the applicant but for the issuance of the impugned orders should be granted to him. This exercise shall be done within a period of four months from the date of receipt of certified copy of this order. Pending MAs, if any, stand closed. No costs.
(Santosh Mehra) (Justice M.G. Sewlikar)
Member (A) Member (J)
dm.
Digitally signed by Deepti Ganesh Munarshi
Deepti DN: C=IN, O=Personal, OID.2.5.4.65=
dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a59 1f4547843867fc06f0095732d99, PostalCode= Ganesh 400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f471e 3c55c542947568cc8f7d6a4f4, CN=Deepti Ganesh Munarshi Reason: I am the author of this document Munarshi Location:
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