Central Administrative Tribunal - Ernakulam
Krishnadas A.K vs The Comptroller & Auditor General Of ... on 15 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 768 of 2010
Original Application No. 779 of 2010
Original Application No. 780 of 2010
Monday, this the 15th day of November, 2010
CORAM:
Hon'ble Ms. K. Noorjehan, Administrative Member
Hon'ble Dr. K.B. Suresh, Judicial Member
1. Original Application No. 768 of 2010 -
Krishnadas A.K., aged 48 years,
S/o Ramachandran Nair M, Section Officer
(Ad-hoc) (Assistant Accounts Officer), Office of the
Accountant General (A&E) Kerala, Kozhikode Branch,
Residing at : Kaitheri House, Kokkanisseri, Payyannur P.O.,
Kannur, Pin: 670 307. ..... Applicant
2. Original Application No. 779 of 2010 -
Sivadasan K.K., aged 47 years, S/o. (late) E.V. Narayana Kurup,
Section Officer (Ad-hoc) (Assistant Accounts Officer),
Office of the Accountant General (A&E) Kerala, Kozhikode Branch,
Residing at : Kripa, Netumbrom, Chokli P.O., Thalassery,
Kannur-670 672. ..... Applicant
3. Original Application No. 780 of 2010 -
Nandakumar K, aged 51 years, S/o. Damodaran Nair O.P.,
Sr. Accountant, Office of the Accountant General (A&E) Kerala,
Kozhikode Branch, Residing at : Nandapriya, Perumanna P.O.,
Koshikode-26. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy in all the OAs)
V e r s u s
1. The Comptroller & Auditor General of India,
Government of India, New Delhi.
2. The Deputy Accountant General (A&E), Office of the
Accountant General (A&E) Kerala, Branch: Kozhikode.
3. The Accountant General (A&E) Kerala, Thiruvananthapuram.
4. Shri V. Ravindran, Principal Accountant General (A&E),
Andhra Pradesh, Hyderabad.
5. The Deputy Comptroller and Auditor General,
Office of the Comptroller & Auditor General of India,
Government of India, New Delhi. ..... Respondents
in OAs 768 &
779 of 2010
1. The Sr. Deputy Accountant General (Admn), Office of the
Accountant General (A&E) Kerala, Thiruvananthapuram.
2. The Accountant General (A&E) Kerala, Thiruvananthapuram.
4. Shri V. Ravindran, Principal Accountant General (A&E),
Andhra Pradesh, Hyderabad.
5. The Comptroller and Auditor General of India,
Government of India, New Delhi. ..... Respondents
in OA/780/10
(By Advocates - Mr. V.V. Asokan in all the OAs)
These applications having been heard on 26.10.2010, the Tribunal on
15.11.2010 delivered the following:
O R D E R
By Hon'ble Dr. K.B. Suresh, Judicial Member -
The extent to which collective demonstration can be resorted to by the employees under the constitutional process and procedures and how far their rights as a citizen gets diminished on their becoming a government servant would be the crux of the issue.
2. The applicant is a senior officer against whom an allegation is now made to the effect that as part of the demand of their staff association he had participated on various days in a dharna and agitation and his active participation marked by marching enmasse through the buildings during duty hours, disturbing the work of other employees and shouting slogans at high pitch, by vacating one's place of duty is administrative violation of concerned rules and therefore the disciplinary authority held that the charges levelled against the official have been amply proved through reports of the responsible officers. Apparently the disciplinary authority has found it sufficient with responsible officer's report that should and would pave and create the only foundation of penalty to be imposed on a government servant. The appellate authority vide Annexure A-2 had considered this matter and held that the only charge in statement of imputation is that the applicant participated in the demonstration which is prejudicial to the public order and the demonstration is a facility for trade union activities. The applicant participated in the demonstration as part of the organizational action. The appellate authority held that holding dharna/demonstration during office hours within the office premises blocking the passage and acting is a manner subversive of office decorum and discipline were not legitimate association activities. Viewed through the prisim of constitutional mandate which is available to both to the employer and the employees this must appear to be correct as the theory of collective demonstration do not canvass any comparative perspective other than strking of work voluntarily, making another person to strike working by coercion and compulsion is therefore not part of legitimate trade union activity. Vide recognized service association rules 1993 he would say that the association shall not espouse or start the cause of individual government servants relating to governemnt service but the Constitution of India permits a citizen to seek help from others if it may be in the larger prespective of constitutional process. This view of the appellate authority and rules which may have supported this view cannot be correct. We are not at this point striking down the rules but will hope that in course of time sufficient compliance of constitutional provisions will be made. The appellate authority held that vacating one's place of duty and holding a dharna during office hours is prejudicial to public order. There canot be a dispute to this. On the basis of Ministy of Home Affairs letter dated 11.8.1952 the appellate authority espouses that the relation between the individual and civil servants is on contractual basis but any such contract is compliant to constitutional provisions. No one can contract in or contract out of their rights as a citizen. The only difference will the mandate of right of the citizen when he becomes a government servant to the extent that it cannot be seen to be taking away the right of dignity and life and all these saluatory influences which permeates the constituional process. The appellate authority had modified the punishment to withholding of one incremnet for two years without cumulawtive effect.
3. But the crux of the matter is that no opportunity was ever afforded to the applicant to contest the charges against him. The ruling of the Hon'ble Apex Court reported in O.P. Bharadwaj's case now become operational in the fuller sense even though the discretion is granted to the administrative authorities to hold that whether to hold an inquiry or not when the charges are denied and an explanation given sufficient oppotunity must be granted to the employee to contest the charges against him. Therefore, the premise of holding that responsible officers had given statements which must be accepted without challege is oppossed to best practices and staturory formations. Therefore, Annexure A-1 order is quashed as is not based on a factual foundation compliant with equality before law. Consequently Annexure A-2 is also quashed. But the respondents are given an opportunity of devising a future course of action if at all postulated, as against the applicant within three months next staring from the issuance of charge sheet but in the meanwhile all consequential benefits including arrears of pay and allowances shall be paid to the applicant. But it will not preclude the respondents from initiating any departmental action and continuing it from the stage of issuance of charge sheet, if so advised.
4. OA is allowed to the extent noticed above. No order as to costs.
(DR. K.B. SURESH) (K. NOORJEHAN) JUDICIAL MEMBER ADMINISTRATIVE MEMBER "SA"