Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs M/O Statistics on 24 May, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
MA No.1643/2018 in
MA No.748/2018 in
OA No.25/2018
AND
MA No.748/2018 in
OA No.25/2018
Reserved on : 21.05.2018
Pronounced on : 24.05.2018
Hon'ble Mr. Justice Dinesh Gupta, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
MA No.1643/2018
Tushar Ranjan Mohanty S/o Rabi Narayan Mohanty,
SAG Officer of the Indian Statistical Service,
Deputy Director General,
Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment,
[Under Repatriation to
Ministry of Statistics and Programme Implementation]
Now residing at:
G-31-, HUDCO Place Extension,
New Delhi-110049. ... Applicant
( In person )
Versus
Shri Naveen Kumar,
Under Secretary,
Ministry of Statistics and Programme Implementation,
4th Floor, Sardar Patel Bhawan,
New Delhi-110001. ... Respondent
( By Advocate: Mr. R. N. Singh )
MA No.748/2018
Union of India through
Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001. ... Applicant/Respondent No.1 in OA
( By Advocate: Mr. R. N. Singh )
2
MA-1643 & 748/2018
Versus
1. Tushar Ranjan Mohanty S/o Rabi Narayan Mohanty,
SAG Officer of the Indian Statistical Service,
Deputy Director General,
Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment,
[Under Repatriation to
Ministry of Statistics and Programme Implementation]
Currently residing at,
G-31-, HUDCO Place Extension,
New Delhi-110049. ... Applicant in OA/
Respondent No.1 in MA
2. Rajeev Lochan
3. Ravi Kant Bhatnagar
4. Shalini Ashok Bhoyar
5. Debi Prasad Mondal ... Respondents 2 to 5 in OA/
Respondents 2 to 5 in MA
( In person )
ORDER
Justice Dinesh Gupta, Chairman :
MA No.1643/2018 The applicant in OA No.25/2018 has filed this misc. application under Section 340 Cr.PC read with rule 8(3) and rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987.
2. It is stated that the respondent herein Shri Naveen Kumar, is posted as Under Secretary in the section of Indian Statistical Service Cadre Controlling Authority and/or Vigilance Division of the Ministry of Statistics and Programme Implementation. The respondent is also the deponent in MA No.748/2018 in OA No.25/2018 seeking vacation of interim order dated 03.01.2018 passed by this Tribunal. It is submitted that the 3 MA-1643 & 748/2018 respondent has stated the following in the last sentence of paragraph 6 of MA No.748/2018: "It is respectfully submitted that at present no post of HAG Plus is vacant."
The above statement of the respondent is stated to be false. It is submitted that the respondent has committed perjury by making this false statement on oath, and that MA No.748/2018 is premised on this false statement and is designed to mislead this Tribunal in order to secure an order from the Tribunal to which the respondent is not entitled to in law. The applicant has pointed towards the seniority list dated 23.08.2016 of certain categories of officers of the Indian Statistical Service, placed in the OA as Annexure A-3. In the aforesaid seniority list the name of Ms. Shalini Ashok Bhoyar appears at serial number 17, and her date of birth is shown as 10.01.1958, hence she would superannuate on 31.01.2018. It is alleged that as on 01.02.2018, i.e., the date on which the respondent had sworn the affidavit, at least one post in the grade of HAG Plus, previously heldf by Ms. Bhoyar, was vacant. It is further submitted that MA No.748/2018 is part of the official record of the respondent Ministry, and the same having been prepared in such a manner as to cause injury and annoyance to the applicant and to furnish false information to this Tribunal, is a case of offences u/s 177, 182, 209 and 218 of the Indian Penal Code, 1860. It is alleged that the MA is 4 MA-1643 & 748/2018 case of forgery for purposes of cheating this Tribunal, and the same having been prepared in a manner as to cause deceit, it would be a case of offence u/s 463, 465, 470 and 471 IPC. The alleged act of the respondent is also stated to be an offence punishable in accordance with the provisions of sections 192/193/196/197/199/200/209 IPC. In view the above the applicant has prayed that this Tribunal may allow the present MA and make such written complaint to the competent criminal court against the respondents in terms of section 195(1)(b) Cr.PC, or to pass appropriate orders enabling the applicant to move the competent court of criminal jurisdiction against the respondent to effectively protect his rights and defend his honour.
3. Notice was issued to the respondent, who in turn filed a reply affidavit. It is stated in the reply affidavit that the respondent had signed and verified the contents of the counter reply to OA No.25/2018 as well as MA No.748/2018. It is further stated that the respondent had done so in his official capacity and not in personal capacity. As per the established procedure followed in the Ministries, reply on behalf of the Union of India in court cases, after approval of the competent authority, is normally signed and filed by the officers of Under Secretary level in the concerned Ministry, and that since the reply in such cases is the reply of the Union of India, it would not be appropriate to infer that it is the reply of the concerned 5 MA-1643 & 748/2018 officer signing the affidavit inasmuch as the same is signed and verified on the basis of the drafts approved by the competent authority. It is further stated that the draft of MA No.748/2018 was submitted on 23.01.2018 for obtaining approval of the Secretary (MoS&PI). It is then stated that as per available facts at that point of time, no post of HAG Plus of ISS cadre was vacant. One Shri M.V.S. Ranganadham was promoted to the post of HAG Plus after retirement of Shri Davendra Verma on 31.12.2017 and the Tribunal vide its order dated 03.01.2018 in OA No.25/2018 has directed to keep one post of HAG Plus vacant. It is further submitted that no post of HAG Plus was vacant either on the date of submission of the file, i.e., 23.01.2018, or on the date of the order dated 03.01.2018 of this Tribunal. The draft MA was approved by the Secretary (MoS&PI) on 29.01.2018 and the file was received back in the ISS Section on 30.01.2018. The file was re-submitted on 01.02.2018 for signature of Under Secretary as deponent in the MA. However, the factual position had undergone a change on 01.02.2018 as one vacancy in HAG Plus occurred on 01.02.2018 due to retirement of Smt. Shalini Ashok Bhoyar on 31.01.2018. It is submitted that this development did not come to the notice of the respondent as the work relating to retirement, etc. is being dealt with by another officer, and the respondent did not have any reason to vary from the approved draft of MA No.748/2018 filed on behalf of the respondent No.1 in the OA. 6
MA-1643 & 748/2018 It is then submitted that the error of facts which crept in was inadvertent and unintentional and the question of misleading the Tribunal does not arise.
4. It is further submitted that after superannuation of Smt. Shalini Ashok Bhoyar, DG, on 31.01.2018, one post of HAG Plus fell vacant, which fact could not be incorporated inadvertently and unintentionally in the MA. As regards the statement made in para 6 of MA No.748/2018 referred to hereinabove, it is stated that the same was incorporated inadvertently without any intention to cause wrongful loss to the applicant by way of vacation of the interim order by this Tribunal. It is stated that one post in HAG Plus has been kept vacant after the retirement of Smt. Shalini Ashok Bhoyar in compliance of the order dated 03.01.2018 of the Tribunal, and that the post shall be kept vacant till further order of the Tribunal, hence the career prospects of the applicant are not likely to be adversely affected. It is then submitted that the HAG Plus is the promotional post for HAG level and since the applicant is not holding the post of HAG level, he is not even eligible to be considered to the post of HAG Plus. The respondent further submits that as on 03.01.2018, i.e., the date on which the Tribunal had ordered one post of HAG Plus to be kept vacant, there was no vacant post of HAG Plus, and, therefore, the vacancy which arose on 01.02.2018 due to the retirement of the incumbent on 30.01.2018 has been kept vacant in compliance of the 7 MA-1643 & 748/2018 interim order passed by the Tribunal on 03.01.2018. It is accordingly submitted that the respondent neither had or has any intention nor made any fraudulent or dishonest statement with an intent to injure or annoy the applicant, and, therefore, the contentions of the applicant are misconceived and misleading.
5. The applicant has also filed a rejoinder affidavit. By way of preliminary submissions, it is stated that the respondent has committed perjury inasmuch as he has made a false statement in MA No.748/2018 that there was no vacancy in HAG Plus as on 01.02.2018. It is further stated that though the respondent has admitted to have committed perjury, but has tried impress upon the Tribunal that the same was done inadvertently and unintentionally, and that once the respondent has admitted to have committed perjury, whatever may be the reason, the matter has to be referred to the competent court of criminal jurisdiction for adjudication of the issue. The applicant has also relied upon various judgments of the Hon'ble Supreme Court.
6. It is also stated that the respondent has to take responsibility for his actions and cannot go scot free for the crime he has committed, and that as a senior officer it was his duty to have ensured that the truth was to be filed before the Tribunal. It is alleged that the respondent has tried to mislead the Tribunal by at 8 MA-1643 & 748/2018 least not providing the complete information, as had his crime been really inadvertent, the complete picture that a post was falling vacant on 01.02.2018 would have been part of the MA.
7. Heard the applicant in person and Shri R. N. Singh, learned counsel appearing on behalf of the respondent.
8. The applicant has reiterated the facts as alleged by him in the MA in his rejoinder affidavit, and submitted that since the respondent has admitted in his reply that the fact mentioned in MA No.748/2018 that at present no post in HAG Plus is vacant, was wrong, hence the respondent has committed perjury and gave a false statement and, therefore, he should be prosecuted under Section 195 Cr.PC, for which the procedure is prescribed under Section 340 Cr.PC, for which the court may itself file a complaint or direct the applicant to file such compliant.
9. Learned counsel for the respondent, on the other hand, submitted that when the affidavit in MA No.748/2018 was prepared and sent for vetting, there was no vacant post in HAG Plus, and it was only on 31.01.2018 when Smt. Shalini Ashok Bhoyar superannuated, that one vacancy of HAG Plus occurred. It is stated that the affidavit in MA No.748/2018 was sworn by the respondent on 01.02.2018, and on that date it was not in the knowledge of the respondent that Smt. Shalini Ashok Bhoyar had retired, since the 9 MA-1643 & 748/2018 matter or retirement is dealt with by a separate section, and thus there is no intention on the part of the respondent to make any false averment in the affidavit; it was only due to inadvertence that the above fact came to be mentioned, and thus no perjury is caused by the respondent.
10. We are unable to accept the contention raised by the applicant who appeared in person. For better appreciation of the facts of the case, it is necessary to quote relevant portion of Section 195 of the Code of Criminal Procedure, 1973, thus:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or 10 MA-1643 & 748/2018
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-
clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."
The procedure in cases mentioned in Section 195 is laid down in Section 340, which reads as under:
"340. Procedure in cases mentioned in section
195. - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause
(b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case 11 MA-1643 & 748/2018 where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section 195."
11. A bare perusal of Section 195 (b)(i) makes it clear that no court shall take cognizance of any offence punishable under any Section(s) provided in the said sub-section, when such offence is alleged to have been committed, or in relation to, any proceeding in any court, except on the complaint in writing of that court or by such officer of the court as that court may authorise in writing in this behalf, or of some other court to which that court is subordinate. In order to constitute an offence under Section 195 (b)(i), it is necessary that a person commits an offence knowingly and purposely in order to play fraud upon the court by producing any document or aver any statement in the proceedings, only then the provisions of this Section can be invoked. Section 340 simply lays down the procedure in such cases.
12
MA-1643 & 748/2018
12. On a careful reading of the averments and the pleadings of the rival parties, we are of the opinion that the respondent has clearly explained the reason for making the averment that no post in HAG Plus level was vacant. From the submissions of the respondent, it is clear that the draft of MA No.748/2018 was prepared on 23.01.2018. The same was approved by the Secretary on 29.01.2018, and re-submitted on 01.02.2018. As per the submission, one post of HAG Plus fell vacant on 01.02.2018 consequent upon retirement of one Smt. Shalini Ashok Bhoyar on 31.01.2018, and in all fairness, the submission of the respondent that this fact was not in his knowledge on 01.02.2018, appears to be genuine and correct. Further, there was no intention on the part of the respondent to make such a false statement to gain any benefit from the court or to play any fraud upon the court. MA No.748/2018 was moved on behalf of the respondent for vacation of interim order by which the Tribunal had directed that one post of HAG Plus be kept vacant, and the contention of the respondent is that on the date of moving this application the applicant was not within the zone of consideration for promotion to HAG Plus level, as he is not holding a post in HAG level which is the feeder grade for promotion to HAG Plus level posts, and the post in HAG Plus level is such a higher level post that only an officer of very senior rank on the verge of retirement may be eligible for the post of HAG Plus, and in case one post is kept vacant 13 MA-1643 & 748/2018 same will cause undue hardship to those aspiring and eligible officers.
13. The issue in MA No.748/2018 was only for vacation of the interim order. It was not the controversy in the said MA whether the post of HAG Plus level is lying vacant or not. Hence, there was no question of giving any false information by stating that no post of HAG Plus is lying vacant. It is also made clear that every omission mention of any fact which may or may not be correct, will not constitute an offence under Section 195 Cr.PC every time. The court before proceeding under this Section must ensure the intention of the parties committing such act of omission or commission.
14. Thus, from the bare reading of the reply filed by the respondent, it is clear that the fact averred in the affidavit was not an intentional act to cause any perjury or to make any false statement in the court proceedings. It was an inadvertent mistake, hence we are of the view that no offence under Section 195 Cr.PC is made out, and, therefore, the application is liable to be rejected. It is accordingly rejected.
MA No.748/2018
15. This application is preferred by the respondent No.1 in OA No.25/2018 praying for vacation/modification of interim order dated 03.01.2018.
14
MA-1643 & 748/2018
16. It is submitted that the applicant in the OA No.25/2018 (respondent No.1 herein) filed the aforesaid OA for quashing the impugned promotion order dated 29.12.2017 of the private respondents as violative of the extant law and the statutory rules, as also an interim direction directing the respondent No.1 to place on record the file wherein the proposal for relaxation was submitted, including all correspondence with UPSC and the DOP&T, the agenda for DPC and the minutes of the DPC meeting. By way of interim relief, the applicant also sought stay of the operation of the impugned promotion order dated 29.12.2017.
17. At the time of admission, the Tribunal while issuing notice to the respondents also passed an order that in the meantime it is directed that one post of HAG Plus grade shall be kept vacant. The respondent No.1 in the OA has filed this application for vacation/modification of the said interim order. It is stated in the application that the applicant in the OA who is presently holding the post of Deputy Director General (SAG level) of the Indian Statistical Service after repatriation in the applicant-Ministry, and is not even in the zone of consideration for promotion to the post of HAG Plus. The applicant in the OA has challenged the order of promotion of HAG level officers to the HAG Plus grade of the Service, whereas the applicant is presently an SAG level officer and does not fall within the zone of consideration for promotion to HAG Plus level inasmuch 15 MA-1643 & 748/2018 as he is yet to be promoted to the HAG level, which is the feeder level post for promotion to the HAG Plus grade. Therefore, no cause of action is stated to have accrued to the applicant to file the OA.
18. When the aforesaid OA came up for admission, the Tribunal directed vide order dated 03.01.2018 to keep one post vacant in the HAG Plus grade. It is further submitted that the posts in HAG Plus grade being the highest level in ISS, are of utmost importance in terms of monitoring and advising the official statistical system across the nation and acts as a crucial link for providing inputs for informed decision-making in policy and planning purposes, hence keeping the highest level post of ISS vacant will not be in public interest. It is further submitted that the interim relief prayed for in the OA is indirectly the main relief itself and, therefore, this Tribunal may not continue the interim order dated 03.01.2018. The respondent (applicant herein) has already filed a counter reply in the OA and seeks leave of the Tribunal to read and refer the contents thereof as part and parcel of the present MA. It is also prayed that the Tribunal may vacate/suitably modify the order dated 03.01.2018.
19. Notice was issued to the applicant in the OA who has filed his reply. It is stated that the applicant is senior to the private respondents as per seniority list dated 22.08.2016, and the entire edifice of the case of the applicant is that the private respondents are 16 MA-1643 & 748/2018 not eligible to be promoted to the HAG Plus grade of the Service. Reliance is also placed on the judgment of the Hon'ble Supreme Court in R. Prabha Devi v Government of India [(1988) 2 SCC 233], wherein the Apex Court held that the rule-making authority is competent to frame rules laying down eligibility conditions for promotion to higher post, and prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. In the said case the Hon'ble Supreme Court further held that seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules, and that seniority will be relevant only amongst persons eligible. It is further stated that even if it is assumed that the private respondents are senior to the applicant, the seniority would not matter, as the private respondents are not eligible to be promoted to HAG Plus grade. It is also submitted that the applicant has not been declared unfit by any DPC; his case has been merely deferred by the DPC, and, therefore, the so called seniority of the private respondents has been artificially created by the respondent No.1. It is stated that five posts in the HAG Plus grade of the Service were created on 07.06.2016 and were filled up more than one and a half year later on 27.12.2017, therefore, the statement of the respondents that they need to fill up the posts is not true. The applicant has also relied upon the 17 MA-1643 & 748/2018 judgment of the Apex Court in Zenit Mataplast P. Ltd. v State of Maharashtra [(2009) 10 SCC 388] wherein circumstances are laid down for granting interim relief. It is stated that interim order is passed on the basis of prima facie findings, which are tentative, and such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing; the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. It is further stated that grant of temporary injunction is governed by three basic principles, i.e., prima facie case; balance of convenience, and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case, but it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction. Besides, the applicant has relied upon a catena of judgments mentioned in paragraph 23 onward of his reply. Lastly, the applicant submits that the MA is liable to be dismissed.
20. Heard the learned counsel for the respondent No.1 in the OA (applicant in the MA) and the applicant in the OA in person. The respondent has reiterated the facts and submitted the applicant who 18 MA-1643 & 748/2018 is an SAG level officer is not even in the zone of consideration for promotion to the HAG Plus level, for which the feeder grade for promotion is HAG level, and in the OA the applicant has not even prayed for keeping one post of HAG Plus level vacant. The learned counsel further submitted that the post of HAG Plus is a very important post and keeping one post vacant would adversely affect the functioning of the respondent Ministry which is a very important organization, and as such whenever the post lies vacant, the respondents always try to fill up the same as expeditiously as possible. In case one post in HAG Plus is kept vacant upon directions of this Tribunal, the respondents are bound to face acute problem, and as such they have moved this application for vacation/modification of the interim order passed by the Tribunal.
21. The applicant also reiterated the facts and submitted that the respondents in their applications have made false averment that no post of HAG Plus is lying vacant and the applicant has already moved an application for prosecution of the deponent of that affidavit, viz., Shri Naveen Kumar, and as such this application lacks merit and deserves to be dismissed on this count alone. He further submitted that the court after hearing the applicant passed interim order and now there is no question of its vacation. 19
MA-1643 & 748/2018
22. We are unable to accept the contention of the original applicant who appeared in person. It is not disputed that the applicant is an SAG level officer. The applicant has himself admitted in the reply that he is an SAG level officer. It is also not disputed that for HAG Plus level post the feeder cadre is HAG and the applicant is not in the HAG grade. In the OA also the applicant challenged the promotion order dated 29.12.2017 in respect of the private respondents. Even as an interim measure he has only prayed for stay of the order dated 29.12.2017. He has nowhere prayed for keeping one post in HAG Plus level vacant. It is also not disputed that HAG Plus post is a very high level post and the same is likely to be filled by eligible officer and the tenure of the eligible officers is very less. Therefore, no useful purpose would be served in keeping one post of HAG Plus level vacant as the applicant is not in the zone of consideration, and not even in the feeder cadre. At the best, the applicant's interest can be protected by modifying the interim order to the extent that any promotion made to the HAG Plus grade shall be subject to the outcome of this OA, and the respondent cannot deny promotion to the applicant on the post of HAG Plus if he is found eligible, on the ground that the post is not available. It is also not out of place to mention that the grant of interim order or temporary injunction is governed by three factors - (i) prima facie case; (ii) balance of convenience; and (iii) irreparable loss to either party. In 20 MA-1643 & 748/2018 the present case, even if it is presumed that the applicant has any prima facie case, the balance of convenience is not in his favour. Further, he is not going to suffer any irreparable loss as he is not in the zone of consideration to promotion to the HAG Plus level; in fact, he is not even in the feeder cadre. On the other hand, the respondents are facing problem in keeping one post in HAG Plus grade vacant unnecessarily for all time during the pendency of the OA.
23. In view of the above, we are of the opinion that the interim order dated 03.01.2018 be modified to the extent that any promotion to the HAG Plus grade shall be subject to the outcome of OA No.25/2018, and in case the applicant is found suitable for the said post he cannot be denied his right on the ground that vacancy in the said grade is not available.
24. The MA accordingly stands disposed of.
( K. N. Shrivastava ) ( Justice Dinesh Gupta ) Member (A) Chairman /as/