Central Administrative Tribunal - Bangalore
Cpwd Engineer Association By R N ... vs Ministry Of Housing And Urban Affairs on 30 July, 2019
1 OA.No.170/00586/2019/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00586/2019
DATED THIS THE 30TH DAY OF JULY, 2019
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI C.V. SANKAR, MEMBER (A)
1. Central Public Works Department
Engineers Association, Bengaluru Zone,
Represented by its Zonal Secretary,
Sri A. Mallikarjun Reddy,
S/o Late Sri. A. Venkata Reddy,
Occn: Assistant Engineer,
O/o Executive Engineer,
BCD-3, Kendriya Sadan 'C' Wing,
3rd Floor, Bengaluru: 560 034
2. Sri Manjunath R.N.,
Aged 46 years,
S/o Sri R. Natarajan,
Occn: Assistant Engineer,
O/o Executive Engineer,
HAL Project Division-I,
4th Floor, Sri Visvesvaraya Kendriya Bhawan,
Domlur, Next to CPWD Quarters
Bengaluru 560 071 ..... Applicants
(By Advocate Shri P.A. Kulkarni)
Vs.
1. Union of India
To be represented by its Secretary,
Ministry of Housing and Urban Affairs,
Nirman Bhavan,
New Delhi: 110 011
2. Director General,
CPWD, Nirman Bhavan,
New Delhi 110 011
2 OA.No.170/00586/2019/CAT/BANGALORE
3. Sri Prabhakar Singh
Working as Director General CPWD
On re-employment basis
Nirman Bhavan,
New Delhi 110 011 ....Respondents
(By Shri V.N. Holla, Counsel for the Respondents)
O R D E R (ORAL)
(HON'BLE DR. K.B. SURESH, MEMBER (J) Heard. The challenge in this matter is against the restructuring of the CPWD following a report in this regard by a multinational firm called Ernst and Young. But unfortunately they seem to be mired in several criminal cases involving moral turpitude across the globe. Besides, the matter of restructuring was taken up for consideration in the 47th Meeting of the National level JCM under the Chairmanship of the Cabinet Secretary Shri P.K. Sinha which comprised 35 senior officers of the government and 32 leaders of various staff union and had decided to study its implications in detail. The officers included the Joint Secretary of the urban ministry as well.
Therefore, the applicants contend that the introduction of restructuring was untimely. They also point out that the Transaction of Business rules have been given an indecent burial in its haste by the Director General. But the Director General, on the other hand, claims that he was only obeying the dictates of the Ministry. Since the restructuring involves huge expenditure the Ministry of Finance ought to have had an exposure to it, they point out.
But the Director General maintains that the decision was taken at the level of the Ministry. The applicant produces two apparently pertinent letters after serving on the respondent relating to JCM which we quote:
3 OA.No.170/00586/2019/CAT/BANGALORENational Council (Staff Side) Joint Consultative Machinery For Central Government Employees 13-C, Ferozshah Road, New Delhi - 110 001 E Mail: [email protected] No. NC-JCM-2019/(DC) July 22, 2019 The Secretary, Ministry of Housing and Urban Affairs, Nirman Bhawan, New Delhi 110 011 Sub:- Issues relating to the proposed restructuring of CPWD and Printing and Stationery Department Ref:- Minutes of the 47th Meeting of National Council (JCM) held on 13th April, 2019 Dear Sir, Your kind attention is invited to the above subject. The Staff Side of National Council (JCM) in the meeting held on 13/04/2019 raised the issue of the proposed restructuring/downsizing the activities of CPWD and also the Printing and Stationary Department under the Ministry of Housing and Urban Affairs. After discussion the Cabinet Secretary as Chairman of the National Council - (JCM) has given the following direction:-
The Chairman directed the official side to look into employee-specific grievances likely to arise due to implementation of decision of the Government to restructure the Printing and Stationery Department and Central Public Works Department.
The same has been recorded in the minutes of the meeting circulated vide DOPT OM No. 3/1/2019-JCA date 13.6.2019.
In view of the above the action taken by your Ministry in this regard may please be inform to us and a meeting with the representatives of National Council - JCM and CPWD/Printing and Stationery Employee Unions may please be arranged at the earliest to discuss the concerns of the employees and to reach an amicable settlement.
Thanking you.
Yours faithfully, Sd/-
(Shiva Gopal Mishra) Secretary 4 OA.No.170/00586/2019/CAT/BANGALORE F. No. 11010/4/2019-CRD Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel and Training (Cadre Review Division) *** 3rd Floor, Lok Nayak Bhawan, Khan Market, New Delhi - 03 Dated: 3rd June, 2019 OFFICE MEMORANDUM Subject: Representations from officers of CPWD Service Associations - reg The undersigned is directed to forward herewith CPWD Service Associations' representation dated 06.05.2019 referring to CPWD Directorate's OM No. DG/CAD/391 dated 25.03.19 regarding revised organizational structure of CPWD and alleged violation of rules and norms by CPWD for necessary action.
2. In this regard it is stated that the last cadre review of CPWD was approved in 2012. As per calendar for cadre review issued by this Department vide OM dated 25.05.18, MoHUA was asked to submit the cadre review proposals of Central Engineering Service (CPWD), Central Architect Service (CPWD) and Central Mechanical and Electrical Engineering Service (CPWD) in October, 2018. A meeting in this regard was held on 29.10.18 with the officials of MoHUA, who informed that various policy decisions on the fate of the cadre are under examination, hence, it may not be possible to submit the proposal by March, 2019. However, the cadre review proposal has still not been submitted by MoHUA.
3. M/o HUA is therefore requested to submit the cadre review proposal at the earliest and also to furnish a report/clarifications on the allegations levelled in the above mentioned representations immediately in the matter.
Sd/-
(M S Subramanya Rao) Director (CRD) Secretary (HUA) Ministry of Housing and Urban Affairs, Nirman Bhawan, New Delhi 5 OA.No.170/00586/2019/CAT/BANGALORE
2. Therefore, the applicant maintains that the Union government is examining the matter, when the 2nd respondent is trying to implement it. Also then the applicants point out that the Transaction of Business rules will prevail over any input of any individual Ministry. This point is not seen vigorously attended to by the respondent even when we recorded the testimony of 2nd respondent in the CP.
3. Also, the Hon'ble High Court of Delhi, in a Writ Petition has taken up a corollary and consequential matter and apparently is still in seisin of it. The Director General admitted that he had already implemented the interim orders of the Hon'ble Delhi High Court.
4. But, normally, adjudicatory bodies do not intervene in a policy matter unless it is hit by violation of constitutional provisions, arbitrariness, illegality or vitiation by any negative elements. The respondent claims that even if some lacunae may be attached to it, it is still a policy decision. The applicants submit that the viability of the restructuring system is opposed by them only on the ground that it will be against greater public interest. They say that as stakeholders in the matter they have a right and a duty to point it out and that is why the National level JCM decided to study it further. They say that by making this process a mockery; the Director General has commenced implementing this scheme. They say that to achieve this the Director General had repeatedly violated the interim order passed by this Court on 4th of June, 2019. They point out to the strictures passed by the Hon'ble High Court of Delhi in two instances in corollary matters.
6 OA.No.170/00586/2019/CAT/BANGALORE5. When the matter was taken up first, we had granted an interim stay of further proceeding. The respondent had seen it fit to challenge it in WP No. 27519/2019 and the Hon'ble High Court passed the following order, which we quote:
"ORDER The office memorandum regarding Revised Orginazational Structure of Central Public Works Department has been challenged before the Central Administrative Tribunal (for short `the Tribunal') in OA No.586/2019, in which, the Tribunal has permitted both the parties to file written arguments along with rulings on which they rely, with relevant portions marked with marker ink.
2. The Tribunal issued notice to respondents and also directed them to file objections and in the meanwhile, granted interim order staying the operation of Annexure-A6 dated 25.3.2019 and posted the matter for further hearing.
3. The petitioners contended that the Tribunal should have dismissed the application at the threshold itself, since the applicants- respondents are not aggrieved persons in view of Section 19 of the Administrative Tribunals Act, 1985 and they have no locus standi to question the order dated 25.3.2019. The Tribunal virtually stayed the said order, which resulted in stoppage of all the works and the entire machinery of CPWD has come to a standstill. Under these circumstances, the Tribunal committed an error in granting the interim order and while granting the said interim order, the Tribunal should have examined its jurisdiction under the Administrative Tribunals Act.
4. Learned counsel for the respondents submits that the Tribunal after hearing both the parties passed the order impugned in this petition. The applicants are in a position to apprise the Tribunal about locus standi and also jurisdiction. Under these circumstances, learned counsel submits to dispose of this matter without expressing any opinion on merits and without prejudice to the parties.
5. We have heard the learned counsel appearing on both the parties.
6. The respondent/applicants have approached the Tribunal with a prayer to quash the office memorandum dated 25.3.2019 relating to Revised Organisation Structure of CPWD directing the revised structure to come into force from 1.4.2019. Before granting any interim order, the Tribunal has to look into its jurisdiction and locus standi. Unless and until, these preliminary points are satisfied, the Tribunal cannot grant an interim order.7 OA.No.170/00586/2019/CAT/BANGALORE
7. We have gone through the pleadings and the interim prayer made before the Tribunal. The fact remains that when the application is filed before the Tribunal, the Tribunal will go into the matter and appreciate the various questions raised therein with reference to law on the point. Under these circumstances, we hold that it is appropriate to request the Tribunal to hear both the parties particularly mainly on jurisdiction and pass an order in accordance with law.
Accordingly, the writ petition stands disposed of. The Tribunal is directed to dispose of the main application itself since the entire activity of CPWD all over the country is stated to have come to a standstill as expeditiously as possible."
6. When the matter was next taken up, the applicant had filed an argument note and was ready. But Shri V.N. Holla, learned counsel for the respondents, requested for time to file an argument note and to get ready for hearing. So we had passed the following order which we quote:
"Learned counsel for both parties are present. Shri V.N. Holla, learned counsel for the respondents, files an interim reply. He seeks one more week's time to file a detailed reply. Allowed. Two more weeks granted to file rejoinder. Both parties are allowed to file written argument note along with the rulings on which they rely with the significant portions marked with marker ink. Post for disposal on 23.07.2019. Interim order to continue till then."
Even though we have given opportunities, no details of any work stoppage is seen detailed. Even before restructuring, the CPWD was functional and apparently it continues on at least the same functional level. Therefore, the contention that the whole work of the CPWD from 04.06.2019 has come to a standstill seems to be grossly exaggerated if not totally untrue.
7. In the meanwhile, the applicant had filed a contempt application CP No. 41/2019 and notices were issued. Since the respondent omitted to file a 8 OA.No.170/00586/2019/CAT/BANGALORE reply, we decided to summon the 2nd respondent. He appeared before us and we put a series of questions for him to answer to bring out the truth. He was initially itself allowed to contact his superiors and get instructions as the documents produced before us led us to think that prima facie, contempt appeared to taint the actions of the respondents.
8. After the questioning, Shri Prabhakar Singh, Director General, wanted to correct some of the answers in consultation with his officers and counsels and this was also allowed. We quote from it:
"QUESTIONS POSED BY THE HON'BLE BENCH CONSISTING OF HON'BLE DR. K.B. SURESH AND HON'BLE SHRI C.V. SANKAR AND ANSWERS GIVEN BY THE CONTEMNER, SHRI PRABHAKAR SINGH.
Q. What is your good name?
Ans. Prabhakar Singh Q. What is your age?
Ans. I am 61 Q. What is the name of your father?
Ans. Late Shri Shrikant Singh Q. What is your residential address?
Ans. C-4, Tower 8, New Moti Bagh, New Delhi Q. Are you aware of the interim order passed by this Court on 04.06.2019?
Ans. Yes, sir. I am aware.
Q. You have produced one document today F. No. 10/10/2019- S&D/159 dated 11.06.2019 in which you have said that all are enjoined to comply with the order. Is that so? Ans. Yes, sir.
Q. Thereafter how many orders have you issued on transfers and postings?
Ans. I have no control over the promotions and transfers and postings.9 OA.No.170/00586/2019/CAT/BANGALORE
Q. Are you aware of the case in the Hon'ble High Court of Delhi in Writ Petition (C) No. 5422/2019 in which on 26.06.2019 in CM Application No. 28283/2019 Hon'ble Mrs. Justice Jyoti Singh and Hon'ble Mr. Manoj Kumar Ohri had passed an order in respect to the similar matters already aforesaid?
Ans. This is regarding transfer and posting of somebody. Q. Is he in your department?
Ans. Shri Raj pal Chopra. Yes, sir.
Q. Are you aware that severe strictures have been passed against you in that matter by the Hon'ble High Court of Delhi in that case?
Ans. Yes.
Q. Are you aware that on 08.07.2019 yet another Bench at Hon'ble High Court of Delhi comprising of Hon'ble Mr. Justice Vipin Sanghi and Hon'ble Mr. Justice Rajnish Bhatnagar passed an order in CM No. 28283/2019 (in WP (C) 5422/2019).
Ans. Raj pal Chopra had stayed in Delhi for a long while and he had been posted to IIT, Palakkad and that he objected and he went to Court for redressal on the count that he should be considered on compassionate grounds and should be given some other posting. Instead of challenging it we considered it on compassionate ground. Q. Did the Court had an occasion to say that you have violated orders of the Court passed on 22.05.2019?
Ans. I do not think we have violated anything. Q. Has the Hon'ble High Court at Delhi passed heavy strictures on you?
Ans. These things are not related with this. I do not remember clearly on this.
Q. How many orders have been passed by you after 04.06.2019 in relation to the matters involved in the case? Ans. On restructuring, not a single order has been issued. Restructuring is already implemented on 01.04.2019 and because of stay we have not done any further restructuring. We have not taken any action on further restructuring so far. We have followed the stay order strictly.
Q. What is your opinion on Annexure-C10 and C12 orders passed by you?
(Learned counsel for the respondents is permitted to assist the respondent) 10 OA.No.170/00586/2019/CAT/BANGALORE Ans. Association has been trying to confuse the issue. The further restructuring have not been done after the stay order. We have not altered the restructuring after the stay. They are harping on the issue on promotion, transfer, postings on which there was no stay. Every year we do the annual transfer postings but actually because of elections, and model code of conduct. Most of the transfer postings and promotions are not connected to the restructuring. We have not done further restructuring as there is a stay on it. Restructuring has already been implemented on 1st April, 2019. Q. Are you aware in the 47th meeting of the National Council (JCM) under the Chairmanship of P.K. Sinha, Cabinet Secretary, it has been decided to keep the restructuring in abeyance?
Ans. No, we have not been given any order like that. Q. It is put to you that on that day, other than 35 other senior officials of the Government of India, the Joint Secretary to the Urban Development also participated.
Ans. I am not aware.
Q. On 10.06.2019, did you pass an order on Shri Jyoti Prakash Jena, SE (E) who was relieved with a direction to report for duty at Bhubaneshwar created due to restructuring of organization? Ans. Sir, these units were already created on 1st April, 2019. These are only transfer postings. All transfer postings are like that only. Q. On 20th June did you pass an order indicating that date of submitting of representation for posting and transfer in the grade of Assistant Administrative Officer had been extended upto 28.06.2019. However, other contents in the said OM shall remain the same? Ans. This is a routine process in our organization that annual transfer postings are done and we seek options of the people where they want to get posted and we try to post them in those places. Q. Are you aware that these are in violation of interim order? Ans. No, sir. It is not in violation of the interim order. The order was only for stay on the restructuring. Restructuring was already implemented so we have not altered anything in the restructuring. These are merely transfer postings and asking for options for transfer posting. We have strictly followed the stay order. Q. Have you issued an order on 25.06.2019 in the promotion and posting of Shashi Kant, Shri Ajay Kumar Agrawal, Shri Bharat Bhushan Makkar, Shri Satish Chandra Bharadwaj and Shri Rajesh K. Kaushal and several others?
Ans. These are the higher level promotions. They are approved by ACC it goes to ACC level. DPC is done by the UPSC and 11 OA.No.170/00586/2019/CAT/BANGALORE posting approved by the Hon'ble Minister and postings are also done at the level of Ministry. This is an order of Ministry of Housing and Urban Affairs and we have implemented the same. These are promotion and transfer posting which has been done. This is not against the stay order.
Q. In short, your explanation is that it is done at the direct orders of the Minister.
Ans. At higher level promotions, the proposal goes to UPSC and ACC and then finally approved by the Ministry and ACC. Q. Have you passed an Office Order No. 34/2019 dated 15.07.2019 in respect of several officers (Learned counsel for the respondents is permitted to assist him) Ans. Transfer posting orders have been issued. There is no stay on the promotion, transfer and posting. Stay is only on the further restructuring.
Q. Did you issue another office order in relation to Krishna Kant Saxena and others on 15.07.2019?
Ans. Yes, sir. They are all transfer posting orders and they are not against the stay. It is the routine transfer posting. Q. Did you issue another Office Order F. No. 28/11/2019-EC-IX-EW-I dated 17.07.2019?
Ans. This has been issued by Ministry of Housing and Urban Affairs. Q. Did you issue office order No. 38/2019 dated 18.07.2019? Ans. Again, these are all routine transfer which has been done. They are not against the stay order.
Q. Did you issue office order F. No. 28/07/2019-EC-IX-EW-I dated 22.07.2019?
Ans. This has been issued by the Ministry of Housing and Urban Affairs, (Works Division) with the approval of the Hon'ble Minister. This also is not against the stay order.
Q. Did you issue an office memorandum File No. 28/11/2019-EC-IX dated 23.07.2019?
Ans. It is a routine order, sir.
Q. Was it issued with your approval?
Ans. This has been issued in my office. If it is issued in my department, it is with my approval. This is not against the stay. It is only routine transfer posting.
12 OA.No.170/00586/2019/CAT/BANGALOREQ. Have you issued office memorandum No. 10/1/2019-20 CWBD/Pt/767 dated 10.07.2019?
Ans. We have formed a committee for study.
Q. Are all these orders are issued under the restructuring process? Ans. Sir, restructuring order has been implemented on 1st April, 2019. So, there is no other system available in the organization now. It is already implemented and the said order has been issued subsequently accordingly. We have not tinkered with the structure which is already in place since 01.04.2019. We have abided by the stay order and all the transfer postings and promotion orders have nothing to do with the restructuring order which is already in place. This is the status which I am trying to explain to and the Association have been trying to stall the entire process. I plead before the Hon'ble Court to kindly look into it and kindly allow us to function. The organization is not able to function now. I request your goodself to kindly allow the department to function. We are maintaining critical infrastructure and security sensitive infrastructure and the department has to function properly. I plead before the court to kindly facilitate the department to function properly.
Q. So, your explanation is that Mr. X has been functioning in a particular post who had been removed and Mr. Y placed there. Do you think that had Mr. X continued in that post there would be any diminishment in the productivity of work?
Ans. In many places for restructuring there is a delayering. Because of delayering posts have gone to other places. Accordingly we have to post people there for the department to function.
Q. Is delayering a part of restructuring? Delayering was done on the advise of M/s. Ernst & Young?
Ans. Ministry had instituted one study for improving the functioning of the department. Ernst & Young did the entire study and in that study for efficiency and function of the department it was suggested that delayering should be done so that decision making becomes faster for the better performance of the organization and we have implemented that. Q. Are you aware that several criminal cases are pending against M/s Ernst & Young all across the world?
Ans. I just heard about it but I do not have any confirmed report about that. This already was got done by the Ministry and I have to abide by the order of Ministry.
Q. Do you think that all these transfers and postings that you have made in the routine normal character.
13 OA.No.170/00586/2019/CAT/BANGALOREAns. Yes, sir.
Q. Since they are routine transfers and postings, even if it is delayed a little nothing pertinent would have happened. Ans. This is an all India organization and leaving the post vacant for very long time is hampering the progress of critical works. The Director, Finance has stated that Rs. 200 crores are unspent and we are not able to perform because the organization is at a standstill due to stay order. Some people have completed their tenure of 3 years at one place so they have to be shifted from one location to another. There is a guideline from probity that nobody should continue at one place for more than 3 years. So, this we have to abide. Q. But you have not answered our question. Nothing pertinent would have happened even if these routine transfers were kept in abeyance. Ans. Annual postings/transfers are done annually at the end of the academic year which is already delayed. Mr. Raj pal Chopra which you just now quoted we wanted to go to Supreme Court for that. But we were well within the right to do it out as per the transfer posting policy if the applicant asks for 2 or 3 positions and those 2 or 3 positions are not there. We took compassionate view and tried to give him the posting. If we delay transfer/posting further the chance of implementing and compliance is getting difficult. The Cabinet Secretary already issued an order that nobody should be there at one place of posting for more than 3 years. About 750 orders are to be issued. This is a huge organization and for complying all these things we have to make lots of efforts. That we have done. We have tried to go by the order of the Hon'ble Court. We have not violated the instructions of Court. All are a routine transfer. If the timely transfers are not done, admissions of school going children becomes difficult.
Sd/-
(Prabhakar Singh) Director General, CPWD"
9. Since Shri Prabhakar Singh admitted to his committing contempt, even though he claimed that he was acting on the directions of the Ministry, we had dictated an order in open court convicting and then after giving him opportunity of being heard on mitigating circumstances, we had declared the sentence. We quote:
"(HON'BLE DR. K.B. SURESH, MEMBER (J) 14 OA.No.170/00586/2019/CAT/BANGALORE We have heard this matter today and given an opportunity to ShriPrabhakar Singh, currently Director General of CPWD to refute the charges against him. We had questioned him on elements of things and had taken it down in open Court. Having done so, we had also brought to his notice that there had been similar instances wherein the Hon'ble High Court at Delhi had to intervene and pass strictures against the very same. We quote the order in WP (C) No. 5422/2019 in CM Application No. 28283/2019 dated 26.06.2019. We had also gone through order in WP (C) No. 5422/2019 and CM Application No. 28283/2019 dated 08.07.2019. We quote from it:
C.M. Appl. No. 28283/2019 (for stay)
1. The present application has been filed by the respondent seeking stay of the order passed by the petitioner/Central Public Works Department (CPWD) on 31st May, 2019 whereby the respondent has been posted to Palakkad and it is alleged that the said order is in violation of the judgment passed by this Court on 22nd May, 2019.
2. The respondent who is working as an Executive Engineer (Electrical) in CPWD, was transferred from PWD Delhi to IIT, Palakkad Project by the petitioners on 15th January, 2019. The said order was impugned by the respondent before the Central Administrative Tribunal by way of an O.A. No. 628/2019. Vide order dated 26th February, 2019 the learned Tribunal had passed the following directions:-
"i. Within week one from today, the respondents shall furnish a list of places where the posts of Executive Engineer (Electrical) are vacant or are available. ii. Within three days from the date of furnishing of list, the applicant shall choose three of such places. iii. Within one week from that date, the respondents shall pass order transferring the applicant to one of three places chosen by him. iv. Within two weeks therefrom, the applicant shall be under obligation to join place, to which he is transferred."
3. The petitioners herein did not implement the order and instead challenged the same before this Court by filing a writ petition bearing W.P.(C) No. 5422/2019. This Court disposed of the said writ petition vide order dated 22nd May, 2019 and passed a detailed order, the operative portion of which is extracted hereinunder:
"We, accordingly, dispose of this writ petition modifying the impugned order to the extent that the petitioner shall strictly comply with the O.M. dated 25.05.2016. Accordingly, the petitioner shall forthwith proceed to call for options from the respondent for his 15 OA.No.170/00586/2019/CAT/BANGALORE transfer/posting by informing him of the vacancy position in different stations. Once the respondent gives his options, the petitioner shall consider the issue with regard to the transfer/posting of the respondent in terms of the O.M. dated 25.05.2016.
The entire exercise should be completed within the next 10 days.
The petition stands disposed of in the aforesaid terms."
4. Pursuant to the said order of this Court, the petitioners passed a speaking order dated 31st May, 2019 and have again posted the respondent at IIT, Palakkat Division, reiterating the initial transfer order. The operative part of the order dated 31st May, 2019 is reproduced hereinunder:-
"AND NOW THEREFORE, the option submitted by Sh. Raj Pal Chopra, EE (Elect.) has been considered into this Directorate by the competent authority but could not be acceded to owning to reasons mentioned in foregoing paras. Therefore, the posting order of Sh. Raj Pal Chopra from PWD, Delhi to IIT, Palakkad Project Electrical Division stands.
The issues with the approval of Director General, CPWD."
5. Having received the said speaking order dated 31st May, 2019, the respondent has filed the present application being C.M. No. 28283/2019 with the following prayer:-
a) direct the petitioner to implement the order of this Hon'ble Court dated 22.5.2019 and stay the operation of impugned order dated 31.5.2019 passed by the petitioners; and"
6. Learned counsel for the respondent contends that the speaking order dated 31st May, 2019 is a mere reiteration of the initial transfer order dated 15th January, 2009 and only shows the vindictiveness and the malafide intent of the petitioners in reiterating their stand despite the fact that two Courts have held in favor of the respondent. He next contends that the present impugned order is in complete willful violation of the orders of this Court as well as order of the learned Tribunal. He submits that when the present Director General (DG) was appointed there were some objections raised to his appointment and the respondent was the Vice President of the All India CPWD Engineers Association and was naturally a part of the Associations protesting against the appointment of the 16 OA.No.170/00586/2019/CAT/BANGALORE DG. He submits that this resulted in the current DG having a vindictive attitude against the employees, more particularly the office bearers of the Associations. He further submits that on taking over, the DG had immediately issued an order on 2nd November, 2019 constituting a Committee for transfers and postings, with himself as a Chairman and issued several posting orders to teach the employees, a lesson. He submits that the present posting order is nothing but the fallout of this vendetta of the DG.
7. The learned counsel further contends that the respondent has only one year and ten months service remaining as he has to retire on 31st March, 2021 and therefore under Clause 8 (vii) of the OM dated 25.5.2016 he has to be given a choice posting as he has less than two years of residual service. It is also contended that the petitioners have not gone behind the letter and spirit of the judgment of this Court whereby they were directed to supply a list of stations where vacancies were available and the respondent had to give a choice of three stations. On receipt of the three choices from the respondent, the petitioners were directed to decide the issue strictly in accordance with the OM dated 25.5.2016. He submits that the various clauses of the OM have not been considered in the right spirit and merely exigency, without any basis, has been cited as a reason to transfer the respondent, which is completely illegal and arbitrary.
8. Per contra, learned counsel for the petitioner submits that there has been no violation of the orders of the Courts. He submits that the learned Tribunal had directed the petitioners to transfer the respondent to any one of the three places of the choice of the respondent, but this Court had modified the order and had only directed that the case of the respondent be considered as per the OM dated 25th May, 2016. He submits that the case was accordingly considered in light of the OM and also taking into account the three choices given by the respondent. After considering everything it was decided that the respondent was required to be posted at IIT, Palakkad Division. Drawing the attention of the Court to the speaking order, more particularly the last three paragraphs, learned counsel submits that in fact the work of the Division at IIT, Palakkad project is of a prestigious nature and of great national importance. The post of EE (Electrical) is lying vacant for the last three month and there is a critical requirement to fill this vacancy. The respondent has a vast experience of 38 years and has working in several Divisions and has dealt with many such contracts. His performance has been constantly outstanding and the project at this stage requires a well experienced and an outstanding officer and in the view of the department, respondent is a fit 17 OA.No.170/00586/2019/CAT/BANGALORE choice for this posting. He thus submits that the posting has been ordered in public interest due to administrative exigencies and there is no malafide intent or any vendetta against the respondent.
9. We had called for the records of the petitioner wherein the decision had been taken, before passing the speaking order dated 31st May, 2019 and have perused the file notings. We have heard the learned counsels for the parties and examined their submissions.
10. The Division Bench while disposing of the writ petition had clearly directed that the petitioners would call for the options from the respondent, after ascertaining the vacancy position in different stations. The respondent was given the right to provide three options to the petitioners and on receipt of the said options the petitioners had to decide the issue of transfer of the respondent, strictly in terms of the OM dated 25th May, 2016. The respondent had admittedly given three options, namely, Delhi, Chandigarh and Jaipur. We do agree with the counsel for the petitioner that this Court had modified the operative part of the order of the learned Tribunal to a certain extent but we cannot agree that by doing so the letter and spirit of the judgment had changed. The main plank of the argument of the respondent consistently was that he had less than two years of residual service before his retirement and therefore he became eligible for a choice posting under Clause 8(vii) of the O.M. dated 25th May, 2016 as well as Clause 8(iv). He had also claimed the benefit of Clause 8(iv) on account of working spouse. We reproduce the two clauses for ready reference hereinunder:-
"8(iv)In case of working spouse, the case will be dealt as per DoPT guidelines issued by vide O.M. No. 28034/9/2009- Estt(A) dated 30.9.2009/departmental instructions and amendments thereof. However, such longest stayee EEs appearing in Readiness List should submit their option for choice posting. Due weightage will be given while considering their case for posting them in adjoining States where spouses is working.
XXX XXX XXX 8(vii).Officers having 2 years residual service may opt either for retention in the station of posting for residual period or may opt for posting to a station of their choice where they propose to settle down after retirement. The request will be considered subject to availability of 18 OA.No.170/00586/2019/CAT/BANGALORE vacancy at the station chosen and administrative exigency."
11. A reading of Clause 8(vii) clearly shows that officers with two years' residual service can opt for retention in the station of posting for residual period or for a station of their choice where they propose to settle after retirement. The concept of last leg posting is prevalent in almost every Government service. The rationale is not far to seek. During the last fag end of the retirement, the employee naturally wants to make arrangements for settlement post-retirement and being posted at that place makes it easier to give effect to the post retirement plans. Similarly, Clause (iv) provides for a choice posting of a Government servant along with the spouse or in the adjoining areas, in case of a working spouse.
12. The direction of this Court was crystal clear that the decision of the petitioner was to be based on the provisions of the said OM. However, a perusal of the speaking order shows that none of the two provisions, and more particularly 8 (vii) which was the main plank of the respondent has not been considered. Last paragraph of the first page of the order dated 31st May, 2019, clearly indicates that there is only a reference to the said provision and an observation that the choices had been given by the respondent as per the said OM, but there is no consideration. In fact, a reading of the last para in the second page shows that the petitioners have considered the residual service of the respondent as on the date of his initial transfer order and since he had more than two years of service as on 15th January, 2019, no further consideration has been given to this provision. There is nothing in the order or the file where there is any consideration as to why the respondent is not entitled to his choice posting having less than two years residual service. We had raised a pointed query to the counsel for the petitioner to point out if this aspect has been considered, either in the file or in the speaking order, but the counsel was unable to point out any such consideration on record.
13. The contents of the speaking order as well as the notings of the appeal leave no manner of doubt in our minds that the orders of the Division Bench have not been complied with in the letter and spirit. We thus find merit in the contention of the respondent that there was a pre-meditated intent to reiterate the transfer order, despite observations of two Courts in his favour.
14. We are of the prima facie view that the petitioners have made every attempt to over reach the orders of the Court as 19 OA.No.170/00586/2019/CAT/BANGALORE well as to ensure that the respondent does not reap the fruits of the judgments in his favour.
15. Having considered the facts and circumstances, we are of the opinion that the impugned order dated 31st May, 2019 deserves to be stayed. We thus direct that the operation of the impugned order dated 31st May, 2019 shall remain stayed till the next date of hearing. The petitioners have filed a reply to the present application. Rejoinder be filed by the respondent.
16. The files which have been given to us by the petitioners are stated to contain print outs from the e-files. The same are being returned to the petitioners.
17. List on 8thJuly, 2019 before the Regular Bench."
"CM No.28283/20191. This Court while passing the order dated 26.06.2019 has examined the case in depth and has also perused the record produced by the petitioner in relation to the order dated 31.05.2019 passed by the petitioner and found prima facie that the petitioner tried to overreach the order passed by this Court.
2. This Court had disposed of the writ petition on 22.05.2019 preferred by the petitioner-Union of India to assail the order of the Tribunal, whereby the Tribunal had directed the petitioner to adhere to their own policy of transfer and fix the schedule to be followed by the petitioner in terms of that policy. Before this Court, it was stated on 22.05.2019 that the petitioner shall strictly comply with OM dated 25.04.2016, which lays down the guidelines of transfer and postings of Executive Engineers in the CPWD. On that premise, the writ petition was disposed of with direction to the petitioner to complete the process of calling for options from the respondent and issuance of transfer/posting orders in terms of the OM dated 25.05.2016 within the next ten days.
3. We may observe that the case of the respondent is that his transfer to IIT, Palakkad division was motivated, inasmuch as he is an office bearer of the Association of Executive Engineers which had opposed the appointment of the present Director General.
4. During the course of arguments, we have been informed that the respondent has not been paid salary since February, 2018. The reason given for the same by the petitioner is that the respondent went on leave when his initial transfer order was issued. Merely because the respondent may have gone on leave is no reason to deny his salary. It is not the petitioner's 20 OA.No.170/00586/2019/CAT/BANGALORE case that the respondent was not entitled to any leave of the kind due, or that his leave was treated as leave without pay.
5. Learned counsel for the petitioner submits that the respondent has not made any representation on account of his salary not being paid. We do not find any merit in the submission. It was obligation of the petitioner to make payment of the salary to the respondent month to month, and it was not for the respondent to either beg for it or make a representation in that regard. It is for the petitioner to explain as to why, in the first place, the salary of the respondent was stopped from February, 2019.
6. In the aforesaid circumstances, the conduct of petitioner of stopping the respondent's salary appears to be actuated by malice. We, therefore, entirely agree with the reasoning adopted in the order dated 26.02.2019, that there is no application of mind to the respondent's options exercised by the respondent. We, therefore, quash the order dated 31.05.2019 transferring the respondent to IIT, Palakkad division.
7. The application stands disposed of."
2. The issue in a nutshell is that we had passed an interim order on 04.06.2019 which we quote:
"Apparently the case of the applicant is that without power resting on him, 3rd respondent had issued Annexure A-6 restructuring the Organization structure of the CPWD. We wish to hear all the parties more on this.
Therefore, issue notice to the respondents by Dasti. The applicant shall take out notice and have it served on the respondents within 7 days next and providence evidence for having done so.
The respondents to file a short affidavit and produce necessary files for our perusal in a sealed cover.
In the interregnum, there will be a stay of Annexure A-6. Post the matter on 18.06.2019 for further hearing."
3. Thereafter, Shri P.A. Kulkarni, learned counsel for the original applicant, would submit that deliberately and with intent and continuously the interim order was violated and during the interregnum of these proceedings also, even though specifically pointed out to the respondents, it continued. We had heard ShriPrabhakarSingh in great detail and recorded his testimony. It appears that his view is that the restructuring which he feels is the 21 OA.No.170/00586/2019/CAT/BANGALORE basis of the violation of the interim order had been promulgated in 1st day of April, 2019. We had asked him whether in the 47th Meeting of the National Council (JCM) which has been chaired by the Cabinet Secretary Shri P.K. Sinha and attended by 35 government officials it was decided to look into the representations in relation to the grievance of the employees afresh. If that is so, then restructuring as such may not be very relevant.
4. But ShriPrabhakar Singh would contend that in fact it is the order of the Hon'ble Ministry which he was implementing even though some of the orders have had its genesis to him alone. He would say only among those orders he has any control as the other orders had been dictated by the Ministry. Under the Transaction of Business Rules this may be otherwise but then that issue may not be very relevant in a contempt matter. We will annex herewith a photocopy of the statement voluntarily given by ShriPrabhakar Singh and thereafter corrected by himself and signed by him as an annexure for a better elucidation which will also be signed on all pages by the Registrar of the Court.
5. Now the question only remains as to the future course of action as already the violation of the orders in several instances had been admitted. Whether it be on his own motion or on the intervention of external pressure, still it is violation.
6. When an adjudicator passes an order, it must be complied with. Otherwise the system as a whole will lose its relevance and worth even though personally we may have difficulties in condemning a person the duty to uphold the values in adjudication come forth as of primary importance. Since the violation is admitted on some instances as of from his own motion and some instances on the directions of the Ministry, we will now hold that ShriPrabhakar Singh, currently Director General, CPWD and before us today, as guilty of contempt of Court coming under Section 12 of the Contempt of Court Act. We, therefore, hereby convict him. Before sentencing him, we need to ascertain the views of ShriPrabhakar Singh on it. Question: Are you having any illness?
Answer: Age related issues are there.
Question: Are you taking any medication?
Answer: I am on medication for BP and Diabetes. I also had a slip disc.
Question: Do you want to point out any mitigating factors? Answer: I am innocent.
7. We have heard Shri Prabhakar Singh on the sentence to be passed. His case seems to be that he is innocent. In fact, we had given him time enough in the course of the day to consult anyone of 22 OA.No.170/00586/2019/CAT/BANGALORE his choice from morning till about 3 PM when we had reconvened. So, therefore, we may have to conclude that probably the violation was not of his choice at least in some cases but because of direction from the Ministry but that will not absolve him of all responsibility. Therefore, we hereby sentence him to undergo simple imprisonment for one month. There will be an order to the Registry to prepare the necessary warrant in order to bring the order of conviction and sentence into fruition. A free copy of this order will be served on ShriPrabhakar Singh and he is eligible to approach the Hon'ble Apex Court on appeal on furnishing the jail certificate. There will be a direction to the concerned Superintendent of jail to provide him with the jail certificate on his being admitted to the jail."
10. At this time, Shri Prabhakar Singh proffered an apology and an undertaking to cancel all the illegal orders which he had passed (which he claimed was on directions from the Ministry) which we quote:
"Undertaking given by Respondent No. 2 Shri Prabhakar Singh, DG, CPWD May it please your lordships to consider my following submissions and dismiss the Contempt Petition in the interest of justice (I) That certain transfer and posting orders were issued subsequently to 04.06.2019 i.e. the day on which an interim order of stay was granted in OA No. 170/586/2019.
(II) I most humbly submit that those orders were passed as a routine administrative orders and would not violate to interim orders. (III) I most humbly submit that now I realize being present before Hon'ble Court, those orders have violated the interim orders. (IV) I sincerely regret for the same and undertake to cancel those orders passed subsequent to 04.06.2019 and as enumerated in the CP as also in the affidavit of the applicant dated 25.07.2019.
Wherefore I humbly pray the Court to exonerate me from the proposed charge and dismiss the CP in the interest justice and equity.
Sd/-
(Prabhakar Singh) DG, CPWD"
11. We had accepted it and had closed the proceedings.
23 OA.No.170/00586/2019/CAT/BANGALORE12. Today we have heard the matter in compliance with the directions issued by the Hon'ble High Court of Karnataka and pass the following order.
13. Some elements seems to be of importance in this issue:
1) M/s Ernst and Young, the author of the report which led to a restructuring seems to be facing several criminal cases in many countries and severe sentences seems to be passed against them.
Shri Prabhakar Singh admits that he is aware of this. But it is also pointed out that they may have done good work also.
2) The nature and productivity of the projects does not seem to have been considered while restructuring.
3) But Shri Prabhakar Singh explained to us, over lunch, the hopes he had of making CPWD leaner, meaner and more effective. There cannot be any doubt that he has sincere wishes of a re genesis of CPWD.
4) But at the same time as pointed out by Shri Kulkarni, learned counsel for the applicant, the restructuring plan does not seem to have taken into account many pertinent issues.
5) The restructuring plan was discussed in the 47th National level (JCM) meeting under the Chairmanship of Cabinet Secretary Shri P.K. Sinha and the meeting which was attended by 35 senior government officials and 32 staff leaders seems to have decided to look into this matter of hardships of employees which may follow restructuring especially since a cadre review was already held.
24 OA.No.170/00586/2019/CAT/BANGALORE14. The applicants claim that their Fundamental Right of decent existence with at least reasonable dignity is being violated by the Director General while he claims that he had only gone by the dictates of the Ministry. But he explained, during lunch, and after a detailed consultation as to what he planned to achieve by this restructuring. After hearing him in detail, we also thought that there is some merit at least in the process and public interest is of paramount importance.
15. Shri P.A. Kulkarni very graciously admitted that they are not questioning the intentions of the Ministry in restructuring but the haphazard implementation by the Director General and in fact they say that consequences on public exchequer was very deep and this is only a half baked scheme which had not taken into account many a pertinent issue.
16. Reference can be made of the following decision of the Hon'ble Apex Court of India:
1) Kesavananda Bharati Vs. State of Kerala reported in AIR 1973 (SC) 1461
2) Royappa Vs. State of Tamil Nadu reported in AIR 1974 SC 555
3) Chintaman Rao Vs. State of Madhya Pradesh reported in 1950 SCR 759
4) State of Maharashtra Vs. Himmatbhai reported in AIR 1970 SC 1157
5) Jilubhai Vs. State of Gujarat reported in AIR 1995 SC 142
6) Minerva Mills Vs. Union of India reported in AIR 1980 SC 1789
7) Union of India Vs. Manudev Arya reported in (2004) 5 SCC 232 25 OA.No.170/00586/2019/CAT/BANGALORE
8) Census Commissioner and Others Vs. R. Krishna Murthy reported in (2015) 2 SCC 796
9) K. Rajendran and others Vs. State of Tamil Nadu reported in (1982) 2 SCC 273
17. Therefore, what is the duty of an Adjudicator?
1) He is the anxious sentinel of democratic polity, supporter of morality and dignity in governance, infuser of Directive Principles into interpretorial exercise, and is the protector of all basic features of constitutional governance.
2) He is the fair and just intervenor, who steps in to equalize might and right.
3) He is also the protector of discretions of governance systems, of course within the ambit of constitutional provisions.
18. In the above situation, as the government itself had decided to have a relook into the matter, we feel that we will remit the matter to the Cabinet Secretary, for him to convene another National level (JCM) meeting within the next three months to look into the grievances of the employees after calling for inputs from all stakeholders and take an appropriate decision.
Needless to say, we reserve liberty to both sides as we have not passed any orders on the intrinsic merit of the restructuring.
19. While we permit the department to take such emergency remedial measures as they deem fit, generally, the restructuring and all its consequences are to be kept in abeyance in the interregnum.
26 OA.No.170/00586/2019/CAT/BANGALORE20. If both the parties require any clarification, they are permitted to file such applications as they wish.
21. With the above directions, we close this matter for now. No order as to costs.
(C.V. SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ksk/
27 OA.No.170/00586/2019/CAT/BANGALORE
Annexures referred to by the applicant in OA No. 170/00586/2019 Annexure-A1: Copy of the office order dated 01.08.2018 Annexure-A2: Copy of the Recruitment Rules for DG, CPWD notified on 25.05.2018 Annexure-A3: Copy of the notification dated 16.05.2018 Annexure-A4: Copy of the office order dated 29.06.2018 Annexure-A5: Copy of the DoPT order dated 01.08.2018 Annexure-A6: Copy of the DG, CPWD order dated 25.03.2019 Annexure-A7: Copy of the Ministry's letter dated 05.03.2019 Annexure-A8: Copy of the study report prepared by M/s Ernst and Young Annexures referred in MA No. 285/2019 for vacation of stay Annexure-R1: Copy of the MoUHA order dated 26.09.2017 Annexure-R2: Copy of the Central Administrative Tribunal, Principal Bench order dated 02.04.2019 in OA No. 900/2019 Annexure-R3: Copy of the CPWD, New Delhi OM dated 01.03.2019 Annexure-R4: Copy of the meeting notice dated 12.03.2019 Annexure-R5: Copy of the MoUHA office order dated 23.04.2019 Annexure-R6: Copy of the MoUHA office order dated 28.05.2019 Annexures referred in reply Annexure-R1: Copy of the MoUHA order dated 26.09.2017 Annexure-R2: Copy of the recognition of CPEA letter dated 27.07.2004 Annexure-R3: Copy of the recognition of various service associations dated 09.01.2019 Annexure-R4: Copy of the recognition of AICATOA dated 10.01.2019 Annexure-R5: Copy of the transfer order dated 11.01.2019 Annexure-R6-R10: Copy of the posters, banners and other letters of joint front Annexure-R11: Copy of the approval of ACC on appoint of DG dated 01.08.2018 Annexure-R12: Copy of the approval of secretary (HUA) for restructuring Annexure-R13: Copy of the constitution of implementation committee OM dated 01.03.2019 Annexure-R14: Copy of the meeting of implementation committee dated 13.03.2019 Annexure-R15: Copy of the transfer posting order of SDG Annexure-R16: Copy of the transfer posting order of Chief Engineers dated 09.05.2019 Annexure-R17: Copy of the constitution of implementation committee of E&Y report dated 26.09.2017 Annexure-R18: Copy of the Central Administrative Tribunal, Principal Bench order dated 02.03.2019 28 OA.No.170/00586/2019/CAT/BANGALORE Documents referred in written arguments filed by the applicants Document No. 1: Copy of the order dated 12.07.2019 in WP No. 27519/2019 Document No. 2: Copy of the communication dated 17.11.2011 Document No. 3: Copy of the communication dated 15.03.2017 Document No. 4: Copy of the OM dated 09.01.2019 Document No. 5: Copy of the OM dated 04.04.2019 Document No. 6: Copy of the letter dated 22.01.2019 Document No. 7: Copy of the letter dated 05.04.2019 Document No. 8: Copy of the CCS (RSA) Rules 1993 Document No. 9: Copy of the Hon'ble Apex Court judgment dated 19.07.2019 in Civil Appeal No. 5444/2019 Document No. 10: Copy of the Hon'ble Apex Court judgment dated 08.11.2012 reported in (2013) 4 SCC 465 *****