Central Administrative Tribunal - Delhi
Subhas vs Union Of India Through on 9 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.46/2009 with O.A. NO.1745/2009 This the 9th day of March, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) O.A. No.46/2009 Subhas, Sepoy, Secretariat Security Organization, Ministry of Home Affairs, Jaisalmer House, New Delhi-110003. Applicant ( By Dr. D. P. Sharma, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi-110001. 2. Central Industrial Security Force through its Director General, CISF, CGO Complex, Lodhi Road, New Delhi-110003. Respondents ( By Shri Rajender Nischal, Advocate ) O.A. No.1745/2009 Ram Chander, Sepoy, Secretariat Security Organization, Ministry of Home Affairs, Jaisalmer House, New Delhi-110003. Applicant ( By Dr. D. P. Sharma, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi-110001. 2. Central Industrial Security Force through its Director General, CISF, CGO Complex, Lodhi Road, New Delhi-110003. Respondents ( By Shri Tiger Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
By this common order we propose to dispose of two connected matters as the same questions of law and facts are involved therein. Learned counsel representing the parties also suggest likewise. For facts, however, the learned counsel referred to the pleadings made in OA No.46/2009 in the matter of Subhash v Union of India, and, therefore, the facts have been extracted from the said OA only.
2. Subhash, a Sepoy in the Secretariat Security Organization of the Ministry of Home Affairs, sequel to a departmental enquiry, has been visited with the penalty of reduction in his pay by one stage from Rs.3575/- to Rs.3500/- in the time scale of pay for a period of one year with effect from 28.9.2007, with the stipulation that he would not earn increment of pay during the period of reduction and that on expiry of the said period, the reduction would not have the effect of postponing his future increments of pay, vide order dated 28.9.2007. His appeal dated 22.11.2007 against the order aforesaid came to be rejected vide order dated 2.6.2008. These are the two orders which are challenged in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985. The allegations against the applicant subject matter of charge are that whereas he was detailed on duty on 23.2.2004 from 1900 hrs to 0700 hrs on 24.2.2004 at 16, Akbar Road, New Delhi, Gate No.1, for security duty, and that while he was expected to be alert and active on duty, during checking by the Assistant Commandant at 0030 hrs on 24.2.2004 he was found under sound sleep on the floor of reception room by arranging a bed and covering himself with a blanket after leaving his place of duty. On the direction of the checking officer, the present SSF Sepoy Sispal, Sepoy Raghunath, CISF HC (Driver) B. L. Meena and Const. Jaswant Singh, after their efforts made by way of calling, pulling hands, shaking body etc., the applicant woke up at about 0040 hrs from sleep. It is this act of the applicant which was stated to be unbecoming of a government servant. There would be no need to give facts in details, as the orders in question have been challenged only on two grounds. The first ground seeking setting aside of the order is that the applicant being employee of the Secretariat Security Organization would be governed by the Ministry of Home Affairs (Secretariat Security Organization) (Group C and D Posts) Recruitment Rules, 1978 (hereinafter to be referred as the Rules of 1978), and not by the CISF Act and Rules, in the matter of disciplinary proceedings, and, therefore, the order inflicting punishment upon him would be illegal and without jurisdiction; and secondly, Shri S. D. Sharma, Assistant Commandant, CISF, who acted as the presenting officer in the departmental enquiry held against the applicant, later became the enquiry officer and submitted report against the applicant. Before we may further proceed in the matter, we may mention that this matter had come up before us for hearing on an earlier occasion on 23.11.2009, when after hearing the arguments, judgment was reserved. Since the points raised needed more elaboration, we recorded the following order on 3.12.2009:
In these two connected OAs the only point raised during the course of arguments is that the applicants being employees of Secretariat Security Organization would be governed by the Ministry of Home Affairs (Secretariat Security Organization) (Group C and D Posts) Recruitment Rules, 1978, and not by the CISF Act and Rules, and that having been dealt with under the provisions of CISF Rules in the matter of departmental proceedings, the orders inflicting punishment would be illegal and without jurisdiction. The respondents have urged that the controversy raised by the applicants stands clinched by the decision of a Division Bench of the High Court of Delhi dated 26.5.2008 in WP (C) Nos.6171/2001 and 7831/2002. While preparing the judgment, we do not find adequate pleadings on the issue as referred to above, and from the decision relied upon by the respondents it is not clear that the same came to be passed either on petitions filed by the applicants or someone else. The issue does not appear to have been debated before the High Court as well. On the statement made by the counsel for the respondents, counsel for the petitioners, it appears, had stated that the grievance of the petitioners did not survive. The matter would need further elaboration/clarification.
List again on 11.12.2009. We inter alia mentioned in the order reproduced above that the pleadings on the issue referred to above were inadequate and hence, the matter needed further elaboration/clarification, and yet, no further pleadings have been made by the parties. The existing pleadings made by the parties on the first issue reveal that the applicant is working in the Secretariat Security Organization of the Ministry of Home Affairs and belongs to the Ministry of Home Affairs. He was appointed as Sepoy vide office order dated 28.4.1992 with effect from 27.4.1992 and was confirmed in the said post on 27.4.1994. As per the case set up by the applicant in para 4.1 of the Application, he was governed by the Rules of 1978 as notified in Part II, Section 3(I) of the Gazette of India dated 6.1.1979, which were further amended and published in Part II, Section 3(I) of the Gazette of India dated 15.6.1999. In para 4.15 one of the broad issues stated to have been raised before different inquiry officers is as follows:
(a) The Officers are directly working under the Claiming Disciplinary Authority, who issued the charge sheet to the applicant and there is every likelihood of biased attitude under the influence of the Authority (Representation dated 26.5.2004 Annexure P-13). In para 5 wherein grounds with legal provisions seeking setting aside of the impugned orders have been taken, it is mentioned in ground (E) as follows:
Because the applicant cannot be governed by the CISF Act and Rules. In para 8 dealing with the relief, it is stated that This Honble Tribunal may also be pleased to declare the Charge Sheet and orders issued by the CISF being not the competent Disciplinary Authority do not represent the correct factual and legal position in the matter of holding inquiry, passing orders for imposing penalty.
3. In the counter reply filed on behalf of the respondents in para 4.1 thereof it is mentioned that the command and control of the Secretariat Security Organization Force (SSF) has been transferred to CISF by the Ministry of Home Affairs by issuing a valid and formal order vide letter dated 2.1.2001 to provide security for government buildings, and that the disciplinary powers have also been given to CISF vide order dated 24.7.2002 to initiate disciplinary proceedings in case of indiscipline reports of SSF personnel from the rank of Constable to Inspector/Subedar Major. The applicant has filed rejoinder wherein, in reply to para 4.1 of the counter reply, it has been pleaded that the letter dated 2.1.2001 is illegal and is bad in law as the same is in the form of a letter to CISF, and that while such a decision for transferring the command and control of the Secretariat Security Organization to CISF, the matter could have been notified through notification for information of all concerned, rather than keeping the matter hidden between the Ministry of Home Affairs and CISF. Order dated 24.7.2004 is also stated to be illegal and bad in law. It is pleaded that there is no provision under law which would enable the respondents to issue such letter/order without amending the parent recruitment rules, i.e., the Rules of 1978, as amended from time to time, as also the other relevant provisions of various statutes and the Central Industrial Security Force Act and Rules. It is further pleaded that the above said communication does not transfer the administrative control of the Secretariat Security Organization to the alleged competent disciplinary authority/CISF, and that there is no provision in the CISF Act and Rules for any control over the personnel of the Secretariat Security Organization. The Ministry of Home Affairs, it is then pleaded, also failed to obtain the willingness/option of the officials of the Secretariat Security Organization before issue of the abovesaid letter/order or placing the matter before the union of the officials of Secretariat Security Organization, or placing the same before the Joint Consultative Machinery, and that the discretion, if any, cannot be abused ignoring the interest of the large number of the officials.
4. At this stage, we may refer to an order dated 26.5.2008 passed by a Division Bench of the Honble High Court of Delhi in WP(C) Nos.6171/2001 and 7831/2002. Challenge in the writ petitions aforesaid, it appears, was to order dated 2.1.2001 of the Ministry of Home Affairs to provide security for government buildings (already adverted to while dealing with the reply filed on behalf of the respondents). Challenge, it further appears, was also to subsequent order dated 25.7.2001 vide which options were invited from the employees serving in Secretariat Security Organization, like the applicant, for merger with CISF. The High Court has made reference to letter dated 30.4.2001 as per which the command and control of the Secretariat Security Organization had been transferred to CISF to provide security to government buildings presently under the security cover of Ministry of Home Affairs, and to merge Secretariat Security Organization with CISF on the terms and conditions specified in the said letter. The subsequent order dated 25.7.2001 provided inter alia that the promotion prospects of those Secretariat Security Organization personnel, who would not opt for merger with CISF would be maintained strictly as the same existed before the merger. The petitioners before the High Court were those who had not exercised the option to merge with CISF. The apprehension of the petitioners, as expressed by the counsel representing them, was that they were sought to be compulsorily governed by the CISF Act and Rules. The counsel representing the respondents before the High Court obtained instructions and on the basis thereof stated that options were invited and inasmuch as, the petitioners had exercised their option to continue in Secretariat Security Organization, they would be governed by the CCS (CCA) Rules, 1965 and not the CISF Act and Rules, even though they may be under the command and control of CISF. The said statement of the counsel was taken on record and the matter was closed.
5. From the records, and in particular, the impugned orders, it would appear that the applicant had raised the issue as mentioned above before the disciplinary and appellate authorities. The disciplinary authority dealt with the issue and rejected the same by observing as follows:
The objection raised by Charged Officer questioning the Command and Control and appointment of disciplinary authority are not sustainable because of the fact that SSF as well as CISF works under the directions of MHA, government of India. The Command and Control of SSF was transferred to CISF vide MHA Order No.8102 Dir(A&V) 2000 dated 01.01.2001 in which it was clear that w.e.f. 08.01.2001 the Command and control of SSF stand transferred to CISF who will also be responsible for providing security to the Government Buildings in Delhi.
Similarly vide MHA Order No.12020/24/2001/ VC dated 24 July 2002 the disciplinary authority has been categorized in respect of SSF personnel in which the disciplinary authority in respect of constable, Head Constable will be Commandant CISF. The appellate authority as well dealt with the issue but rejected the appeal of the applicant by observing as follows:
The 2nd plea of the appellant is that the CISF is not competent to initiate disciplinary action against the SSF personnel. The contention of the appellant is not acceptable as the documentary evidence held in the case file confirms that the CISF is competent to take disciplinary action against SSF personnel under CCS (CCA) Rules 1965. The appellant was dealt with under CCS (CCA) Rules in the present case. The pleadings, in our view, to determine the issue are inadequate. What, however, appears is that vide order dated 2.1.2001 the command and control of the Secretariat Security Organization was transferred to CISF by the Ministry of Home Affairs, and further that the disciplinary powers have also been given to CISF vide order dated 24.7.2002 to initiate disciplinary proceedings in cases of reports of indiscipline of SSF personnel from the rank of Constable to Inspector/Subedar Major. These two orders have been annexed with the counter reply as Annexure R-I (colly.) From the order of the High Court, it appears that there is a letter dated 30.4.2001 as per which the command and control of Secretariat Security Organization had been transferred to CISF to provide security to government buildings presently under the security cover of Ministry of Home Affairs, and to merge Secretariat Security Organization with CISF on terms and conditions specified in the said letter. This letter has not been placed on records by either of the parties. This letter obviously came into being after the order dated 2.1.2001 adverted to earlier. There also appears to be an order dated 25.7.2001 referred to by the Honble High Court, providing inter alia that the promotional prospects of those Secretariat Security Organization personnel, who would not opt for merger with CISF would be maintained strictly as the same existed before the merger. This order is also not available on records. What further appears from the order of the High Court is that options were invited from those employed with SSF to continue with SSF, and in the event of their exercising such option, they were to be governed by the CCS (CCA) Rules, 1965 and not the CISF Act and Rules. There are no pleadings by either of the parties with regard to option of the applicant and his response thereto. As to when the options were invited is also not known.
6. We have pondered over the issue as to the manner in which we would deal with these two cases, when practically no assistance is coming from the parties. We, however, find a way to dispose of these Applications emanating from the pleadings made by the respondents. By way of preliminary objections, it is pleaded that the applicant had the alternative remedy of filing a revision, which, if filed, would be decided by the competent authority, i.e., Inspector General/APS, New Delhi. The prayer is in fact to dismiss the Application for the applicant having not exhausted the departmental remedy. In the rejoinder the applicant states that the provision of revision may be there, but the same is discretionary.
7. In the facts and circumstances as mentioned above, we direct that the present Applications be treated as revision against the impugned orders dated 28.9.2007 and 2.6.2008 passed by the disciplinary and appellate authorities respectively, and be dealt with by the Inspector General/APS, New Delhi, who would obviously go into the question as mentioned above, as also the controversy on merits, be it with regard to the enquiry officer and the presenting officer being same for some time, or any other issue that the applicants may like to press. The respondents would not take objection with regard to maintainability of the revision as being barred by time. The revisional authority would deal with the matter as expeditiously as possible and pass final order thereon preferably within a period of six weeks when the parties may appear before him. The parties are directed to appear before the said authority on 29th March, 2010 at 11.00 a.m. The Registry shall forthwith transmit copies of the Original Applications with all accompanying documents to Inspector General/APS, New Delhi.
8. These Applications stand disposed of in the manner fully indicated above. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/