Central Administrative Tribunal - Mumbai
Ganesh Shankarrao Mhalankar vs Board Of Apprenticeship Training on 20 October, 2023
I O4 No 430! 2023 MUMBA BENCH, MUMBAI ORIGINAL APPLICATION No.436/2023 re nr dy Dated this friday the Le day of October, 2023. > oc GRAS : MS. RARVINDSR KRAUS OSEROL, MEMBER (J) Ganesh Shankarraa Mhalankar, Aged 46 Serving as Assistant Director of Training in Board of Apprenticeship Training (Western Region), NSTI Campus, VIN. Puray Marg, Sion-Chunabhatti Road, Mumbai 400 022 Réat Flat No.20, Fifth Floor BW: ing, Shubham C.BLS, CTS No.599 & 600, Rasta Peth, Pune 400 011, 4... Applicant (in Person} fon a" bs U3 Versus. Board of Apprenticeship Training (Western Region), Mumbai, An autonomous Organization of Ministry of Education, Department of Higher Education, Government of India, NSTI Campus, V.N. Purav Marg, Sion-Chunabhatti Road, Si On, Mumbai 400 022 through Chairman. Pr amod Narayanrao Jumie, Director of Training, Board of Apprenticeship Training (Western Region), NSTI Campus, VN. Purav Mare, Sion-Chunabhatti Road, . Sion, Mumbai 400 022, eee Respondent No.2 NUN. Wadode, Deputy Director of Traming, Board of Apprenticeship (Western Region), NSTI Campus, V.N. Purav Marg, Sion-Chunabhatti Road, Sion, Mumbai 400 022. eee Respondent No.3 PK. Saha, Administrative cum Accounts Officer, Board of APE Training (Western Region), NST Campus, VN. Purav Marg, Sion-C runabhatti Read, Respondent No.) bo G4 No.4362023 Sion, Mumbai 400.022. - . Respondent No.4 M.S. Pawar, Office Superintendent, Board of Apprenticeship Training (Western Region), NSTI Campus, VN. Purav Mare, Sion-Chunabhatti Road, Sian, Mumbai 400 022, exe Respondent No.5 S.P. Pande, Jimior Accountant, Board of Apprenticeship Training (Western Region} NSTY Campus, V.N. Purav Marg, Sion-Chunabhatti Read, Sion, Mumbai 400 022, eae Respondent No.6 Union of India, through Secretary (Higher Education), Department of Higher Education, Ministry of Education, Government of India, I27-C, Shastri Bhawan, New Defhi~110 001, 1... Respondent No.7 Director General of Audit (Central), Indian Audit and Accounts Department, C25, Audit Bhavan, Bandra ~ Kurla Complex, Bandra (East), Mumbai 400 051. nes Respondent No. 8 Sitaram Kandi, Chairman, Board of Governors and Appellate Authority, Board of Apprenticeship Training (Western Region), NSTI Campus, V.N. Purav Mare, Sion- Mumbai 400 022. ate Respondent No.9 (Added as per order dt. 07.09.2023) (By Advocate Shri R.R. Shetty along with Advocate Shri V.B. Joshi} Reserved on : 11.10.2023, Pronounced on : 20.10.2023. ORDER
The present OA has been received from the Hon'ble High Court of Bombay as the same had been filed as a Writ Petition which has been transferred to this Tribunal by the Hon' ble High Court vide: its order dated 03.05.2023 3 O24 No s36/2023 and has been numbered as OA No.436/2023.
2 The OA has been filed and following reliefs have been sought:-
"a to direet the respondents to produce all the records of the case along with their reply for perusal by this Hon'ble Court;
db. to quash and set aside the impugned Office Memorandum dated (19.09.2021 {Exhibit OQ) as it is 08 self-contained, speaking and reasoned. The impugned Office Memorandum dated (79.09.2021 does not contain -- the reasons on . the . basis whereof the decisions communicated by that Office Memorandums were reached. The reasons in support of the decision do not ensure that the decision is reached according to law and is a result of caprice, whim, foncy, reached on graund of policy, expediency the impugned Office Memorandum dated 09.09.2021 does not conform to legal requirements;
rem fo quash and set aside the impugned Order of the Appellate Authority (Exhibit T) as it is not self-contained, speaking and reasaned -- and not. issued. over the signature of Appellate Authority. The impugned Order of the Appellate Authority does not contain the reasons on the basis whereof the decisions conununicated by that Office Memorandums were reached The reasons in support of ihe decision doa not ensure that the decision is reached acearding to law and is a result of caprice, whim, fancy, reached on ground of poliev, expediency malice. The impugned Order of the Appellate Authority does nat conform to legal requirements;
a. to order and declare that the findines or conclusions which heave been stated in the impugned Office Memorandwn dated 09.09.2021 are not werraned f supportedt by the evidence on the record; The conclusion or 4 OA No 36/2023 jinding stated in the uapuegned Office Memorandum dated 09.09.2021 is -- such that #O man acting reasonably and with objectivity cauld have arrived ent the conelusion OF finding (Exhibit Q): | é. to order and declare that Petitioner was on duty during the period From 23.03.2020 to
03.05.2020 in terms of Fundamental Rule ER. WE) (Exhibie XY) DoP&T OM aated 28.07.2020 (Exhibit AU, during which Petitioner has worked from hante during COVID- 19 pandemic lockdown in accordance with orders for work jrom home (Exhibit C), f te order and declare that Petitioner is entitled fo pay and allowances for the pertad from 23.03.2020 ta 03.05.2020 in accordance with ERI? (1) (Exhibit 4A and the Constitution, particularly the Articles 14 ¢ equality before law), 19 (right fo carry on apy occupation) and 21 (right to Hfe) of the Constitution: a g to order and declare that allowing all the employees of the B.O.A.T(WR.) to work jfrom home and lreating thew a aduty except Petitioner during -- the period from 23.03.2020 fo 83.05.2020 is violative -- of the Constitution... particularly the Articles Ja fequality§ before law), 19 (right to carry on aHy occupation) and 2] (right to life) of the ~--- Constitution (Exhibit -- C and Exhibit Q);
h, to order ta not debit leave jor the period from 04.05.2020 to 09.06.2020 fo the leave account of the Petitioner as Petitioner was communicated neither sanction nar rejection of Petitioner's application jor the earned leave until 09.09.2021 (Exhibit L and Exhibit Q), and during the period Petitioner worked Jron home in accordance with arders for wark Jrom home (Exhibit C). .
th 5 Od No. $3 6/2023 i to order and declare that treating the period af sanctioned earned leave from 23.03.2020 to 3£.03.2020 (Exhibit. B) as da unauthorized absence (Exhibit, QO) is highly arbitrary and discretionary, whimsical, fanciful, capricious, mala fide, harassing, violative af the Constiniion, particularly the Articles 14 (equality before law), 19 (right fo carry an any vccupation) and 21 (right to Ufe) of 1 Constitution:
7 to order and declare that Petitioner is not liable to disciplinary action:
kK. to order and declare that treating Petitioner absent from duty without any authority for the period from 23.03.2020 to 03.05.2020 during which Petitioner has worked from home during COVID-19 pandemic lockdown in accordance with orders for work from home and recovery of Rs. 141,504.00 (Rs, One Lakh Farty One Thousand Five Hundred and -- Four) made from the salaries. of the Petitioner is wyust, against the principle of natural justice, illegal, unfain wrongful, improper, unreasonable, wewarranied., highly arbitrary, highly diseretionary, fanciful, whinisical, invalid, wilfted, prejudicial, malafide, misuse of official . position, reckless, contrary to the rules, INIGHHOUS, punitive, _ irrational, . partial | and therefore, violative of the Constitution, particularly the Articles 14 (equality before law), 19 (right to carry on ary ocexpation) and 2] fright ta fife) of the Constitution and entitles Petitioner to payback a sum of Rs. J, 41, 308.00 (Rs, One Lakh Forty One Thousand Five Hundred and Four) . towards salaries of Petitioner for the months -- of September 2021] and October 2021 (Exhibit U and Exhibit ¥);
£ to order and declare that Office Order dated S98 OF 2020 (Exhibit J) ordering Petitioner ana three other clerical staff members to attend office on 30.04.2020, without the exigency arisen PEquiring Petitioner's physical presence in the affice of B.OATOVR) ta dispose of 6 OA No.436/2023 such xrgent nature of official work, staying self (the official passing such arder) and higher officials at home, is mala fide, umvarranted and not in conformity with the Ministry of Home Affairs (MHA) order dated 15.4,.2620 extending the nationwide lockdown till 3rd May 2020 te contain the spread of coronavirus in the country and the consolidated revised guidelines issued (Exhibit 1); and the Government of Maharashtra Order dated 13th April, 2020 to extend the lockdown measures upto Jrd May, 2020 and revised consolidated guidelines issued vide Order dated 17th April 2020 to contain the spread of COVID-19 (Exhibit D);
mi to order and declare that even in the absence of any Statutory Rules or Administrative instructions with regard to the interest, Petitioner is entitled to interest under Article {4,19 and 21 of the Constitution of India, for a sun of Rs. 70732.00 (Rs. Seventy thousand seven hundred fifty twa) being the salary of Petitioner for the month of September 2021(Exhibit U) and R»s.70752.00 Rs.
Seventy thousand seven hundred fifty ovo being the salary of Petitioner jor the month of October 202] ; (Exhibit VY), at appropriate rate of interest, 8 per cent pe aHnUM, compounded, jrom the respective due dates for payments of salaries, 30.09.2021 and 30.10.2021, ull date af actual payment, a 0 order and declare that the concerned officials and authorities of BLOATOWR) misused their official position, abated comiived at improper and illegal ----aets and, therefore, the concerned officials and authorities of BOATOVR) are liable for disciplinary action for violation of Rule 3 of the CCS (Conduct) Rules, 1964 (Exhibit AT and Exhibit A U}.
Oo. to order and declare that the present case on service matters is due to Ron-implementation or incorrect implementation of laid dawn policies and rules by the concerned autherities of wy for hearing.
7 . Oa No. €36/2023BOA TUR). The actiow of the concerned officials and authorities of B.O.4.T (WR) are in violation of the Central Civil Services (Conduct) Rules and, therefore, the concerned officials and authorities of BOATLOVR) are liable for disciplinary action for vioration of Rule 3 of the CCS (Conduct) Rules, 1964 (Exhibit AT and Exhibit AV).
Pp. . to fix the responsibility in this case of default and dereliction of duty and fake appropriate action against concerned personnel for CAUSING mental aeony to the Petitioner;
g¢. Pending the hearing and final orders on the petition, grant interim reliefs to the Petitioner; to direct Respondent No. 1 ta pay back ai sum of Rs. 141,304.00 towards the salaries of the Petitioner jor the MOHLAS of September 2021 and October 2021 (Exhibit QO. Exhibit 1) Exhibit U ane Exhibit ¥).
® fo allow exemplary costs of the Petition; and BR to pass such other orders and further orders as may be deemed necessary on the faets and in the circumstances oF f the case."
Pleadings being complete the matter was take nup At the very outset, counsel for the respondents submitted that the present OA is not maintainable for the reason that applicant had been served with a Charge Memorandum dated 09.09.2021.
Departmental inquiry in pursuance to the said Charge Memorandum was conducted and vide order dated 23.06.2033, punishment of removal from service was issued to the applicant. iL is also a matter 8 | Od No.$36/2023 of fact that the applicant has preferred appeal against. the said order of penalty which Appeal is pending before the Appellate Authority. He, therefore, submits that the issue raised by the applicant in present OA is covered by Article IT of the Charge Memorandum, which is subject matter of the Appeal pending before the Appellate Authority. Article U1 of the Charge Memorandum is as follows:-_ "ARTICLE HT in view af the decision taken by local authorities, and decision taken by Ministry of Railways to cancel the suburban trains from -- 2400 hours of 22/03/2020, BOAT{WR} vide its Office Order No. BOAT WR/00/2020/277 dated 20/03/2020, informed all employees to work from home. On 23/03/ 2020, Shn. G. fs. Mhalankar, whe was on Eamed Leave, with effect from 18/03/2020, sent an email to BOAT(WR} stating that he is reporting for duty from the same day, creating an impression. that he was present in the headquarters. Further, Shri. G. S. Mhalankar had also informed that he shall attend the office in the event of exigencies ta dispose of urgent nature of official work.
Shirt. G. S. Mhalankar, was directed to report for duty on 30/04/2020 vide Office Order No. BOAT WR/00/2020/10 dated 29/04/2020 to attend official work in the BOAT{WR) office. fiowever, he informed vide his email dated 29/04/2020 sent at 8.18 pm to BOATIWR) stating that the local police station is not allowing him to perform inter-district travel; He had further informed that the BOAT WR) authorities may talk to the concerned police' station in-charge. Thereafter, there was an exchange of emails at WE 9 OA No.436/2023 8.57 pm, 9.17 pm, 9.52 pm, 10.14 pm, 10.41 pm, 10.42 pm, and 10.59 pm on 29/04/2020, which revealed that the concerned police station viz. . sSamarth Police Station is located in Pune. Thus he made an aitempt to conceal the fact that he was in Pune an 23/03/2020, and thereafter till 29/04/2020, when his residential address on record was GEA 04027, Flat no 27, Building No 4, Sector E, Shubha Gruha, Village - Khativalt, Tal - Shahapur,. Dist - Thane as submitted by him and thereby unauthorigedly left his headquarters without permission and also tried to suppress this fact from the BOAT/{WR) administration, On realising the above mentioned circumstances, Shri. G. S. Mhalankar suo-mato applied for Earned Leave from 04/05/2020 to. 31/07/2020, vide his email dated 01/05/2020, to cover the misrepresentation as stated. above. He resumed his duties in BOAT{WR) unth effect from 22/06/2020. He has thus behaved in a manner which is dishonest, has shown lack of integrity and devotion ta duty, failed to follow the lawful orders duly communicated toa him and failed to perform his duties with highest degree of professionaism and -- dedication thereby contravening the Rules 3{1}fi, 3{1}fti), 3{1) iti), 3/1)
(vi), S{l xvii}, ST )ixix}, and Sf{i exit) of the Central Civil Services" (Conduct) Ruies, 1964, as made applicable te the BOAT/{WR)- employees."
ae Respondents, therefore, submit that the applicant has thus behaved in a manner which is dishonest, has shown lack of integrity and devotion to duty, failed to follow . the lawful orders duly communicated to him and failed to neribim this duties with highest degree of professionalism and dedication. The above mentioned article of charge 10 Od No 4362023 pertains to this misconduct and as the matter is pending before the Appellate Authority, the OA is not maintainable.
5. | | Applicant, who appears in person denies this submission of the respondents and submits that the article of Charge clause Tl is different from the prayers in the present OA as he has been charged with misconduct in the said article whereas in the prayers he is secking wages fora -- period from Sept 2021 alongwith interest. The respondents | submit that until and unless the final decision is arrived at by the Appellate Authority going inte this aspect would be an exercise in futility as. the main issue is still pending before the respondents' authority. fat the vonthasion of the Disciplinary proceedings stand of the applicant is found to be correct then it is | within the realm of the Appellate - Authori ity to order for the re- fund of the amount which has been deducted from his salary.
6. | l am in agreement with this submission and in view of the same, I feel that OA is not maintainable at this stage, The final result of the enquiry would have a bearing on the decision of the respondents. The misconduct, negheence and lack of devotion to duty as proved by the 'Disciplinary Authority has resulted in the punishment of ae OA No 36/2023 removal as such the respondents cannot be directed to make good the recovered amount to the applicant till the applicant is acquitted of the charge.
Pe : Needless to say, applicant would be at liberty to challenge any order passed by the respondent authorities in pursuance to the disciplinary proceedings, if so required in future.
&. In wiew of the above discussion, the OA is dismissed, Pending MAs, ifany, stand closed. No costs.
(Harviniler Kaur Oberoi) Member (3)