Central Administrative Tribunal - Madras
S Siraj Khan vs M/O Commerce on 10 March, 2023
l QA 579/2021 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH OA NO.579/2021 . +h Dated Fr} day, the |Oday of March Two Thousand Twenty Three CORUM: HON'BLE MR, T.JACOB, ADMINISTRATIVE MEMBER & HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER S.Siraj Khan, S/o Sardar Khan, No.297, MKN Road, Alandur, Chennai 16 .. Applicant By Advocate M/s S.Harinyi Vs. 1. Unton of India, Rep., by Under Secretary, Ministry of Commerce and Industry, Department of Commerce, Udyog Bhawan, New Delhi 110 107. 2. The Development Commissioner, Office of the Development Commissioner, MEPZ Special Economic Zone, Department of Commerce, National Highways-45, Tambaram Chennai 600 045. 3.The Inquiry Officer-cum- Deputy Commissioner - Customs, Office of the Development Commissioner, MEPZ Special Economic Zone, Department of Commerce, National Highways-45, Tambaram Chennai 600 045. «a Respondents By Advocate Mr.K.Rajendran 2 OA 5379/2021 ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"(i\To -call for records relating te order No.d/25/2020-Admnil/2 dated 04.01.2021 passed by the 3:respondent and order No.1/25/2020-Adm.1/2 dated 21.01.2021 passed by the 3" respondent-and set aside the same and consequently direct the respondents to permit the applicant.to engage a legal practitioner as defence assistant.in the departmental proceedings Initiated against him and thus render justice."
2. The brief facts of the case as stated by the applicant is as follows:
The applicant who has joined as.a LDC In the office of the respondent on 24.02.1984 came to be transferred in the same capacity from New Delhi on 01.09.1987 and joined in the office of the Deputy Director, Save Grain Campaign office. By order dated 02.02.1998, the applicant came to be transferred to the office of the Development Commissioner, Madras, Export Processing Zone, on 06.05.2010, the applicant came to be promoted to the post of UDC, On 01.02.2019, the 4" respondent has Issued a note and sought for explanation from the applicant regarding his absence at the time of Flag Hoisting in the 70" Republic Day. Applicant has submitted a suitabie reply. Further on 06.12.2019, the 4" respondent has issued a memo seeking explanation from the applicant and his superior Assistant Development Commissioner questioning the delay in updation of SEZ online pertaining to the renewal of letter of approval with respect. of M/s. ATC Tyres Private Limited. On 11.12.2019 applicant has submitted his reply to the memo. On 12.02.2020 the 4" respondent issued a stern warning as to not to repeat such mistake. Although no lapse was specifically proved.3 OA 3579/2021
2.1 On 11.11.2019, an office order was issued by the 2°* respondent that the verification and certificate of the SOFTEX form being done by the Assistant Development Commissioner shall henceforth be carried out by the authorized officer posted from the Customs side at SEZ In respect of units under thelr jurisdiction. According to the applicant certain clarifications has been issued by the 2™ respondent in respect of implementation of the said orders. Though the applicant was following with the said orders, however on 20.07.2020, an office memorandum Is issued by the 3% respondent alleging that in spite of the office order dated 11.11.2019, some SOFTEX in SEZ online were verified in the name of applicant and call the explanation from the applicant to his position on 21.07.2020 at 13.05pm. Applicant has received the said memo on 21.07.2020 and preliminary enquiry was conducted and applicant was issued a suspension order on 08.09.2020 by 1* respondent.
2.2 Subsequently applicant has also received order of appointment of Inquiry officer as well as presenting officer in the disciplinary proceedings dated 08.09.2020. The applicant contended that the said order of suspension as well as appointing the inquiry officer and presenting officer in the matter without following Rule 14(3) and Rule 14(4) of CCS CCA Rules 1965. The 3" respondent without having any authority to initiate disciplinary proceedings and without any show cause conducted the said inquiry, The applicant contended that without providing the article of charge to the applicant the sald appointment of the IO and PO has been done thereby violating the principles. of natural justice and due process of law. Being aggrieved the applicant has challenged the suspension order as well as the appointment order of 10 dated 08.09.2020 and appointment of the PO dated 4 OA 579/2021 08,.09,2020 in OA 443/2020 and prayed for the quashing and setting aside of the impugned orders dated 08.09.2020. Pending the said OA the respondents have revoked the suspension order by order dated 01.01.2021 and also issued fresh charge memo dated 06.10.2020 to which the applicant has filed written submission on 27.10.2020. On 12.11.2020, corrigendum to the charge memo has been issued by the 1* respondent. Being aggrieved the applicant has challenged the fresh charge memo dated 06.10.2020 & corrigendum dated 12.11.2020 in the OA 578/2021 on the ground that the inquiry conducted without giving sufficient time to the applicant to recollect the events and that the charge memo has been issued without any application of mind and Inquiry is baseless without any evidence. In addition to that the applicant has requested to permit him to engage a legal practitioner as a Defence Assistant in the departmental proceedings initiated against him. However by order dated 04.01.2021 and by order dated 21.01.2021 the 3% respondent has rejected the requests of the applicant.
Belng aggrieved the applicant has filed the present OA for the above mentioned relief, 3, After notice the respondents have entered appearance through their counsel and filed their reply statement and opposed the rellef on the ground that as per Rule 14(8) of CCS(CCA) Rules 1965 which is extracted hereunder:
"(8) (a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits"
5 0A4.579/2021 a charged official is entitled for engaging a legal practitioner as his defence assistant only if the Presenting Officer(PO) himself is a Legal Practitioner. In the present case, the PO Shri S.Balasubramaniyam is neither graduated in Law nor he is legal practitloner. He is an Engineering graduate and has a Master degree in Business Administration specialised in Human Resource and Marketing and this Is his first case to handle as a Presenting officer in a disciplinary proceeding since his joining in Government service. Further the respondents contended that the applicant has failed to submit any proof to substantiate the contention that the PO handles court cases and criminal investigation and is well equipped to handle disciplinary proceedings. 3.1. The PO Shri S.Balasubramaniyam is only entrusted to coordinate for the review meetings to review the status of the various cases wherein the respondent office being a respondent or the petitioner and to update the status in the "Legal Information & Briefing System (LIMBS)" a legal dashboard of Ministry of Law & Justice. for monitoring the status of cases. Merely for the reason he coordinate to collect the information does not mean that he is a legal! practitioner. Also the Legal Practitioners Act, 1879 defines the "Legal Practitioner" in the interpretation clause; "means an advocate, vakil or attorney of any High Court, a pleader mukhtar or revenue-agent". This rule position makes it clear that a charged official is entitled for engaging a legal practitioner as his defence assistant only if the Presenting Officer himself is a legal practitioner which is not the position in the present case and hence they prayed for dismissal of the OA belng devoid of any merits.
4, Heard M/s.S.Harinyi for the applicant and Mrik.Rajendran for the respondents and perused the OA along with relevant records.
6 OA 579/20215. It is to be noted that according to the Rule 14(8) of CCS(CCA) Rules 1965 the Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the Inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits.
6. Itis to be noted that in the present case, it Is seen that the PO Shri S.Balasubramaniyam is neither graduated in Law nor he is legal practitioner, but an Engineering graduate with a Master degree in Business Administration specialised in Human Resource and Marketing and is only entrusted to coordinate for the review meetings to review the status of the various cases wherein the respondent office being a respondent or the petitioner and to update the status in the "Legal Information & Briefing System (LIMBS)" a legal dashboard of Ministry of Law & Justice for monitoring the status of cases. Merely for the reason he coordinate to collect the information does not mean that.he is a legal practitioner.
7. Therefore, in our considered opinion, the applicant cannot claim the said permission to appoint a legal practitioner as a matter of right which is impermissible under the rules. The applicant Js not eligible and entitled for the relief prayed for in the present OA. As we have directed In OA 578/2021 ta complete the inquiry proceedings within six weeks from teday since the applicant is due for retirement on 31.05.2023 and the applicant is also directed to cooperate in the inquiry according to the aforesaid rules, during the said inquiry, as and when such occasion arises the applicant may submit his request to the inquiry officer and if permissible under the rules, it is for 7 OA 579/2021 the inquiry officer to decide the same. However, in view of the settled rule position, we are not inclined to grant any rellef. OA Is dismissed. No order as to costs.
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