Thursday, September 29, 2011

OA No.396 / 2007 on 01-04- 2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.396 OF 2007

THURSDAY, THIS THE 1st DAY OF APRIL, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


S.A. Bhupale,
S/o Late Anneppa,
Aged about 96 years,
Retired Assistant Engineer,
CPWD, Nasik,
R/at Shivaji Road,
Bijapur – 586 101.
(since deceased by his Lrs)

1. Dr. C.S. Bhupale,
S/o Late S.A. Bhupale,
Aged about 70 years,
R/at Near Kannur Hospital,
Shivaji Road,
Bijapur.

2. Sri Somashekar S. Bhupale,
S/o Late S.A. Bhupale,
Aged about 65 years,
R/at Near Kannur Hospital,
Shivaji Road,
Bijapur.

3. Sri Anna Rao S. Bhupale,
S/o Late S.A. Bhupale,
Aged about 57 years,
R/at H.No.-C-98, 1st Main,
III Cross, P.W.D. Quarters,
Kaval Byrasandra, R.T.Nagar Post,
Bangalore – 560 032. ... Applicants

(By Advocate Shri T. Narayanaswamy)

Vs.

1. The Union of India,
represented by its Secretary,
Ministry of Urban Development
Nirman Bhavan,
New Delhi – 110 001.

2. The Director General (E.C.111),
of Works, CPWD,
Nirman Bhavan,
New Delhi – 110 011.

3. The Executive Engineer,
Pune Central Division No.1,
CPWD, Nirman Bhavan,
Mukundnagar,
Pune – 411 037.

4. The Accountant General,
The Indian Audit & Accounts Department
(Accounts and Entitlements) – I,
Maharashtra,
101, Maharshi Karve Marg,
Mumbai – 400 020. ... Respondents

(By Advocate Shri V.N. Holla,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :
This matter arises out of non payment of adequate and due pensionary benefits to the applicant. Necessary paper work for the same has to be done by the Director General of Works, CPWD, New Delhi (Respondent No.1) and the Accountant General, Maharashtra, Mumbai (Respondent No.4). This OA was filed on 11.10.2007. Unfortuntely, the applicant died on 12.10.2007 and his LRs have come on record now to prosecute the case.

2. Admittedy, the case is as under:-
The applicant has retired as Assistant Engineer on 26.6.1967. No Pension Payment Order has been issued to him, although he was paid Pension through the Accountant General, Karnataka by P.P.O. No.1611. Further, his Pension was calculated by considering his service as 22 years, whereas he has actually put in 22 years 9 months and 27 days in the service which, for the purpose of Pension must be taken as 23 years. Thus, he has been deprived of his adequate and due pensionary benefits for the last 40 years. This, he claims, has happened even though he has been making references to the Director General of Works, CPWD, New Delhi (Respondent No.2) from time to time vide Annexures No.A/24, and A/26 to A/30.

3. Heard Shri T. Narayanaswamy, learned counsel for the applicant and Shri V.N. Holla, learned Additional Central Govt. Standing Counsel for respondents.

4. Both the counsels have argued and deliberated on the point whether such enormous delay of 40 years is time barred or not. The counsel for the applicant has relied on the judgment of the Punjab and Haryana High Court in the case of Niranjan Singh Vs. State of Haryana & Ors. - 1986(2) AISLJ 203, decided on 14.5.1986 wherein the Hon'ble High Court held :

"3. The petitioner has been opposed by the respondents. It has been contended that the petition has been filed 27 years after the date of retirement of the petitioner and, therefore, it suffers from delay and laches.

4. I have heard the learned counsel for the parties.The objection that the petition suffers from laches, in my view is wholly withuot merit. The right to pension to a retiree is a recurring right and he is entitled to receive pension every month. Where a superannuated employee is entitled to pension it does not behove the State Government to raise such a technical objection to the maintainability of the writ petition. I, therefore, overrule the same."


6. In view of the above, we have no doubt that the prayer of the applicant is justified and that Respondents No.1 and 3 are under obligation to take all the necessary measures to give the applicant all the pensionary benefits due to him by considering his service to be 23 years. He shall also be paid interest at the rate of 8% on the arrears of Pension from the date it is due, i.e., upto 12.10.2007 (the date of his death). This
exercise shall be completed within a period of four months from the date of receipt of a copy of this order. No costs.

(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)
---------------------------------------------------------------------------------------------------------------------------

Wednesday, September 28, 2011

OA No.227 / 2008 on ????????-05-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.227 OF 2008

.........DAY, THIS THE .......... DAY OF MAY, 2010

HON'BLE SHRI B. VENKATESWARA RAO ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


Mr. J. Prakash,
S/o Late Sri Jamnadas C. Samani,
Aged about 51 years,
Principal,
Jawahar Navodaya Vidyalaya,
Devarahalli, Channagiri Taluk,
Davangere District – 577 213. ... Applicant

(By Advocate Mrs. Bhanu Ravinder)

Vs.

1. The Enquiry Officer and Deputy Commissioner,
Navodaya Vidyalaya Samiti,
Regional Office,
H.No.1-1-10/3, Sardar Patel Road,
Secunderabad – 500 003.

2. The Commissioner,
Navodaya Vidyalaya Samiti,
Department of Secondary & Higher Education,
A-26, Kailash Colony,
New Delhi – 110 048.

3. The Joint Commissioner (Personnel)
Navodaya Vidyalaya Samiti,
Department of Secondary & Higher Education,
A-26, Kailash Colony,
New Delhi – 110 048.

4. The Chairman,
Navodaya Vidyalaya Samiti,
Department of Secondary & Higher Education,
A-26, Kailash Colony,
New Delhi – 110 048. ... Respondents

(By Advocate Shri N. Amaresh,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985.

2. This case arises out of order No.P.29/02-NVS(PERS.)Disc.case, dated 13.07.2007, passed by the 2nd respondent (Annexire-A/4) and order NoP.29/02-NVS, dated 10.2.2008 (Annexure-A/5) passed by Respondent No.4.

3. Briefly, the case of the applicant is that he was working as Principal in Jawahar Navodaya Vidyalaya, Davanagere, Karnataka. He along with another Teacher of the same School Shri Muralidharan also acting as one of the housemasters of the Jawahar Navodaya Vidyalaya were placed under suspension with effect from 16.1.2004. The Jawahar Navodaya Vidyalaya is a residential school housing several students. In one unfortunate incident on 15.1.2004, while the school was having a holiday and there was an acute problem regarding water supply, the said housemaster Shri Muralidharan took out the children under his charge for bathing to the nearby river without the permission of the Principal and one child of the school drowned. Responsibility was fixed on both the Principal and Shri Muralidharan and both were placed under suspension. The applicant's suspension was revoked on 13.5.2004 and he was transferred to Jawahar Navodaya Vidyalaya, Aurangabad, on administrative grounds vide Order No.P.29/02-NVS(Pers.), dated 15.1.2007 (Annexure-A/2). He was also charge sheeted and in the ensuing enquiry, the Inquiry Officer came to the conclusion that "charges not proved". Even then, the Disciplinary Authority, the Commissioner, Navodaya Vidyalaya Sangathan, New Delhi, disagreeing with the findings of the Inquiry Officer, held the applicant partly responsible for the unfortunate incident. Accordingly, he issued order No.P.29/02-NVS(PERS.)Disc.case, dated 13.07.2007, observing that the applicant "being the head of institution has the overall responsibility
to take all measures including providing water and preventing the movement of children outside the premises especially to take bath in the river. He also failed to enforce a system in the Vidyalaya to regulate the exit of the students. Had it been there, the House Master would have been prevented from taking the students to the river and the unfortunate incident of drowning of the student could have been avoided. I, therefore, find that charged officer was negligent in enforcing the safety guidelines of the Vidyalaya". Accordingly, he imposed the penalty of withholding one increment with cumulative effect for a period of one year.

4. Heard Smt. Bhanu Ravinder, learned counsel for the applicant and Shri N. Amaresh, learned Addl. Central Govt. Standing Counsel for the respondents.

5. The learned counsel for the applicant has argued as under:

(a) In this case, initially the responsibility for the unfortunate drowning of the child was fixed both on the applicant who worked as Principal as well as Shri Muralidharan, a teacher and also House Master for a group of children. Both were suspended and a separate departmental enquiry was instituted against both. The Inquiry Officer in respect of the applicant held that the charges were not proved. Even then the Disciplinary Authority has imposed the punishment.
(b) The main responsibility for the drowning of the student was that of Shri Muralidharan, who admittedly has not taken permission of the Principal while taking the children out for bathing to the river. Shri Muralidharan, during his departmental enquiry had stated that he was aware of the safety and security guidelines of the Navodaya Vidyalaya Samiti and his action was not in accordance with the said guidelines.
(c) The counsel for the applicant also claimed that the action against the applicant was not without bias and discrimination because the House Master was given a punishment which has less financial stringency as compared to the financial loss suffered by the applicant. The lerned counsel therefore, argued that the Principal who was already under pressure from the fact that he had to look after the need of several students regarding their water requirements and in view of the fact that water supply system was damaged and could not be immediately repaired, it being the day of Sankranti and a holiday and that he was under pressure from the parents of many students and was holding meeting with them for finding a solution to the problem, it was not justified to hold him responsible for the action taken by the House Master without his permission. Further, the fact that water supply system needed repairs was brought to the notice of higher authorities on earlier occasions but no money was forthcoming from them.

6. Shri N. Amaresh, the learned counsel for the respondents pointed out that the Disciplinary Authority was justified in coming to his own conclusion by disagreeing with the findings of the Inquiry Officer. He has passed a well reasoned order dated 13.7.2007. It is a well established principle that the Disciplinary Authority can, if they so feel for justified reasons, disagree with the findings of the Inquiry Officer. The question of comparing financial loss of the two officers held responsible does not arise because both carry separate quantum of responsibility and authority. The applicant was overall incharge of the school and had the responsibility not only for the safety and security of the students but also maintaining proper discipline and control over the action of the House Masters.

7. We have considered the arguments of both the counsels and are convinced with the arguments advanced by the learned counsel for the respondents Moreover, it was also the responsibility of the Principal to set out proper systems for the functioning of school in which there are immdiate Joint Consultations for action among all the teachers whenever a contingency arises. The higher-ups in the Navodaya Vidyalaya Samiti authorities also have the responsibility to make sure that the Principals under whose charge hundreds of students are placed are much more cautious, careful and alert for the safety of the children and that various repair needs are taken care in time. They have to set up a system of periodical discussions on these measures. Moreover, the punishment cannot be called too harsh. It is only the stoppage of one increment with cumulative effect as against the lost life of one child and therefore, we are inclined to dismiss the OA. Accordingly, the OA is dismissed with no order as to costs.

(LEENA MEHENDALE) (B. VENKATESWARA RAO)
MEMBER (A) MEMBER (J)

---------------------------------------------------------------------------------------------------------------------

OA No. 492 / 2008 on ???????-07- 2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 492 OF 2008

DATED THIS THE DAY OF JULY, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


Sri T. Ramakrishna,
S/o Thimmaiah,
Aged about 67 years,
No.3374, 7th Main, 2nd Cross,
Vijayanagar 2nd Stage,
Bangalore – 560 040. ... Applicant

(By Advocate Shri C.K. Nagendra Prasad)

Vs.

1. Union of India,
Ministry of Labour & Employment,
Shramashakthi Bhavan,
Rafi Marg, New Delhi – 110 001.
Represented by its Secretary.

2. The Regional Commissioner – II
and Permanent Inquiry Officer (South Zone),
Employees Provident Fund Organisation,
Regional Office : No.37, Royapettah High Road,
Chennai – 600 014. ... Respondents

(By Advocate S/Shri M.V. Rao, Sr. Central Govt. Stg. Counsel for R-1 &
H.K.S. Holla, Standing Counsel for Respondent No.2)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :
The applicant is an employee of EPFO (Employees Provident Fund Organisation) under the Ministry of Labour and Employment, Govt of India He retired as Assistant Commissioner at the Regional Office at Bangalore on 30.11.2000. In his earlier career of nearly 40 years, he never received any adverse remarks, however, some months prior to his retirement, the applicant was placed under suspension on 22.09.1999 and issued charge sheet on 01.07.2004. After that the actual enquiry was taken up on 22.09.2005 and adjourned to 29.08.2007 on which date the Presenting Officer could not furnish Document Nos.34 and 35 mentioned in Annexure-A/3 to the applicant. The matter was once again adjourned, and stands so till this date.

2. In the year 1998-99, when he was working as APFC (Assistant Provident Fund Commissioner), apparently an UDC (Upper Division Clerk) Mr. Reddy working under him processed false PF advance applications and pilferaged huge funds and was caught by the CBI who charge sheeted Mr.Reddy and cited the present applicant as prosecution witness. Learned Counsel for applicant emphasizes that CBI has not implicated the applicant in the criminal case. After the depositions were completed between 2000 and 2002, the department charge sheeted the applicant on 14.6.2004 and further served him with a corrigendum dated 26.12.2007 which was received by the applicant on 5.3.2008 (Annexure-A/1). The applicant therefore, prays for quashing the corrigendum dated 26.12.2007, arguing that it substantially changes the nature of original charge sheet. He further prays for quashing the original charge memo dated 15.6.2004.

3. Looking at the charge sheet issued in 2004, (Annexure A3) it appears that the department has, based on the investigation started by the CBI, cited 10 specific cases in which relevant application forms for withdrawal were got prepared in the false names of fictitious persons by using the live account numbers of some actual employees whose Provident Fund money comes to the Provident Fund Organisation. It is the claim of the respondent department that in respect of these 10 cases, alone, the PF amount pilferaged through such fraud, comes to Rs.11,07,000/- (Rupees eleven lakhs and seven thousand only). It is the contention of the department that such huge loss could have been avoided had the applicant, then working as Assistant PF Commissioner, remained vigilant for which he was duty-bound. The case of the respondents is that after issuing the initial suspension order, the department had to wait to take the approval from the Office of the Hon'ble President of India for which the department took four years i.e., till 2004. Thereafter in 2007, the department has issued a corrigendum which according to the applicant will substantially change the nature of the first charge sheet.

4. On perusal of the corrigendum, we find that the respondents have sought to make three clerical corrections in Annexures No.1 and 2., one clerical correction in Annexure 3 and have tried to bring on record four other documents. The OA submittd by he applicant has not discussed exactly how these added documents would substantially change the nature of original charge sheet. We tend to grant that the respondents seem to have been slightly careless while recording his office "as Peenya" which they have to now correct as "at Regional Office" and had to correct the period earlier mentioned as from June 1998 to September 1999" to the new description "year 1998-99". They also had to correct entry No.29 which read as KN-10636/94 to KN -10636/06, this being one out of the 39 such entries. Yet, we are not impressed by the vehement assertion of the learned counsel for the applicant that this would amount to substantial change in the allegation. It is pertinent to note here that the list of 39 documents prepared by the respondents to examine the charge sheet are all in the nature of pay slips, payment scroll, claim applications, ledger cards, copy of cheques, credit vouchers, etc and even if with minor clerical errors they would be substantially useful to establish if pilferage has been done and to what extent. From the nature of the charge sheet, we find that the applicant has been charged with grave negligence of duty, inadequate supervision and perhaps collusion. The charge against him is that he failed to notice the irregularities and inconsistencies in the claims even when they were so glaring that they should not have gone unnoticed even by applying simple prudence. Hence it is important to examine this change on the basis of substantive material and not merely on technicalities.

5. As far as the four additional documents which the respondents are seeking to rely upon, are perused by us, the documents mentioned at Sl.No.41 is Relevant Form 9 of KN/6828 & KN/10183, Specimen Signature of Shri Raghavendra Rao & B.N.Srinivasa which is one more addition which is similar to the ealier 39 entries listed as relevant documents to be examined by the department. Document No.42 and 43 are also of the same nature. That leaves only the document No.40 which is the proceeding dated 24.9.1999 drawn by CBI. This proceeding is drawn before the CBI had actually charge sheeted the UDC and it is this proceeding which has led to the enquiry being instituted. The learned Counsel for appliant has not shown how exactly these proceedings will substantially change the nature of the charges. The charge which is sought to be proved by the respondent department are narated at charge No.1 and 2 and the said proceedings of the CBI are not meant for adding anything more to the charges. The applicant had earlier approached this Tribunal in OA No.138/2008 with a prayer to quash the charge sheet dated 15.6.2004 and corrigendum datd 26.12.2007. It was held that main grievance of the applicant was that the corrigendum dated 26.12.2007 was issued without giving an opportunity to the applicant and hence the original application was dismissed being premature with a direction to the present applicant to approach the competent authority challenging the impugned corrigendum. The learned Counsel for the applicant pointed out that the applicant had done so immediately on 2.5.2008 but the respondent-1 has not communicated anything to the applicant even to this date. But the OA chooses to remain silent on that point. Hence we feel that these added documents do not materially change the nature of the charge sheet and its consequences.

6. Then comes the question whether the whole enquiry needs to be quashed. This is the relief claimed by the applicant for which he has cited the reason of his ill-health and the difficulties of not getting pensionary benefits. We feel that this is a matter of huge amount of pilferage and the question as to whether his supervision was adequate or inadequate must be established through a proper enquiry. At the same time, the onus of conducting proper enquiry at adequate speed lies equally on the department and all delays are most detrimental to it. We feel that the respondents cannot delay the matter so much and keep the applicant on tenterhooks especially in the light of the fact that although he was also placed under suspension on the basis of CBI investigation which began in 1999 but the same CBI has not considered it fit to charge sheet him for the actual act of pilferage and fraudulant withdrawal of funds. We also looked at the progress of the hearing and find that the Disciplinary Authority has been very casual in their approach for completing the disciplinary proceedings in good time. There has been delay because the Presenting Officer has not been able to produce the two documents out of the 39 listed documents which all, as we observed, are of similar nature. Under such a situation, the Inquiry Officer is entitled to record whether to the best of her judgement the non-supply of these documents would substantially dilute the defence of the applicant and she can proceed if the finding is otherwise. It is for the Presenting Officer to point out such aspects to the Inquiry Officer..

7. In passing we must mention that the OA should have impleaded the disciplinary authority who is responsible for initiating disciplinary action, getting it completed in time, instead the OA implead Inquiry Officer – who is a quasi-judicial authority. However, for this case we have decided to look into the merits of the case and its outcome as we find that the case has been delayed too much.

8. We thus find that the Disciplinary Authority has been too casual in their approach towards this departmental enquiry which has the effect of keeping an employee of their organisation away from retirement benefits for a very long period. At this stage we would refrain from saying anything further. We, however, direct that the Disciplinary Authority should properly brief the Presenting Officer and should ensure that the enquiry proceedings are completed within a reasonable time. We consider it squarely his duty and consider six months to be sufficient for this purpose. At this stage, we would not want to question the authority of the Disciplinary Authority to proceed with the case, but surely the delay committed by them and the carelessness committed in not reviewing the progress of the departmental enquiries pending with the department cannot be ignored. Just as we feel that looking at the huge amount of pilferage we should allow the departmental enquiry to proceed and not quash the charge sheet dated 15.6.2004 as learned cuonsel for applicant would want us to do, similarly the department should be equally concerned to finish the departmental proceedings at the earliest. In our considered opinion not more than 6 months can be granted for this. We also find it necessary to direct the Disciplinary Authority to inform us the interim progress at the end of 3 months from getting this order.

9. With the above directions, the OA is disposed of. No order as to costs.

(LEENA MEHENDALE) (K.B. SURESH)
MEMBER (A) MEMBER (J)

----------------------------------------------------------------------------------------------------------------------------------

OA No.457 /2008 on 01-04-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.457 OF 2008

THURSDAY, THIS THE 1st DAY OF APRIL, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


K. Manivannan,
Aged about 62 years,
S/o late K.M. Kuppuswamy,
R/at No.572, 10th Cross, 5th Main,
J.P. Nagar Phase – 3,
BANGALORE – 560 078. ... Applicant

(By Advocate Shri T.R. Sridhar)

Vs.

1. Union of India,
Represented by the Secretary,
Ministry of Labour,
Shram Shakti Bhawan, Rafi Marg,
NEW DELHI – 110 001.

2. The Director General,
"PANCHDEEP BHAWAN"
E.S.I.C., C.I.G. Road,
New Delhi – 110 002.

3. The Insurance Commissioner,
PANCHDEEP BHAWAN"
E.S.I.C., C.I.G. Road,
New Delhi – 110 002.

4. The Regional Director,
"PANCHDEEP BHAWAN",
E.S.I.C., No.10, Binny Road,
BANGALORE – 560 078. ... Respondents

(By Advocate Shri V.N. Holla,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The case arises against the penalty of withholding two increments without cumulative effect on the applicant based on the disciplinary enquiry for a charge of omission due to negligence in proper inspection of one company, viz., M/s. Bangalore Clothiers Ltd., resulting in possible loss of revenue to the Department (ESIC).

2. The charge sheet was issued to the applicant on 10.11.1998. The Disciplinary Authority imposed the penalty to withhold two next increments without cumulative effect vide order dated 17.04.2001. The First Appeal was rejected by order dated 03.06.2003 and the second Appeal was also rejected vide order dated 24.08.2004. On coming to the knowledge of certain information which the applicant procured under the RTI Act 2005, he submitted a Review Application which was also rejected vide order dated 17.4.2008. Thus, exhausting all the remedies, the applicant approached this Tribunal. The application is therefore, within the time limit.

3. The events leading to the case are as under:

The parent organisation viz., the ESIC (Employees State Insurance Corporation) has regular system of sending its Managers and Insurance Inspectors to inspect various industries to ascertain the number of employees, their rank and salary, the nature and place of production and the revenue that becomes due to ESIC from the industry towards medical and other Insurance of these employees. The charge is as under:

"Shri K. Manivannan, while functioning as Insurance Inspector, Wilson Garden Division, ESI Corporation, Bangalore, had conducted Regular Inspection and Ledger Verification of M/s. BANGALORE CLOTHIERS PVT LTD., BANGALORE, Code No.53-10001-19 on 9.2.96 and 20.2.96 covering the period from August 1993 to December, 1995 (Ledger verified for the period from November 1990 to March 1994). The unit was test inspected and the Test Inspecting Officer (TIO) had detected huge omitted wages. He had also observed that the employer had incurred huge expenditure for job work which were not detected by the applicant. By his act of not detecting huge omitted wages during his regular inspection, he had exhibited a clear negligence in discharge of his official duties properly. Had the test inspection not been done, there would have been substantial loss of revenue to the ESI Corporation."


4. Heard Shri T.R. Sridhar, lerned counsel for the applicant and Shri V.N. Holla, Additional Central Govt. Standing Counsel for the respondents.

5. The learned counsel for the applicant pointed out that on the face of it, the charge sheet conveys as if the regular inspection was done by the applicant on 9.2.1996 and 20.2.1996 in which he did not detect any omitted wages from the employer M/s. Bangalore Clothiers Pvt. Ltd., Bangalore and these were detected only subsequently by the TIO (Test Inspecting Officer) who later on detected huge omitted wages and hence the loss is impugned on the applicant. But the real sequence of events is not like that. The actual sequence is that on 26.8.1993 the employer's premises was inspected by one Shri B.S. Vittalachar, and his report was then test inspected by Shri Cherian Kurian, TIO on 2.7.94 and 28.7.94 The visit and inspection done by the applicant was subsequent to this in February, 1996. Even though the TIO had suspected huge omitted wages, admittedly he had not inspected the ledger for want of time. Subsequently, when the applicant inspected the ledgers, he felt that the huge expenditure for job work from the employer could be accounted on other grounds such as, not falling within the limits of Bangalore City and so on. Hence, he did not point out any recovery. The learned counsel further pointed out that during the departmental inquiry, the TIO Shri Cherian Kurien was the witness and he deposed that since he had not inspected the ledger, so he had only indicated the possibility of recovery from the employer but cannot state for sure if recovery was really due. Even then the ground for charge sheet namely causing loss to the department by not pointing out the recovery was wrongly held as "proved".

6. The learned counsel further pointed out that the Department had not ascertained the loss or made any efforts to ascertain the loss either on the date of issuing the charge sheet to the applicant or till the end of the enquiry on 31.3.2000. when the inquiry officer submitted his Inquiry Report. Only on seeing the explanation furnished by the applicant on 23.5.2000 to the disciplinary authority, the respondents became alert and commenced the correspondence with the employer after a period of six years. Only thereafter proceedings under Section 45-A of the ESI Act was initiated against the employer. This indicates that there was no application of mind to claim loss of revenue to the Corporation and there was no material to frame charges against the applicant. The fact of notice dated 15.11.1996 issued to the employer to explain why action should not be taken under Section 45-A of the ESIC Act or the fact of order dated 7.11.2000 for recovery of dues to the extent of Rs. 1,29,228/- and the fact whether actual recovery was made were not part of the evidence against the applicant in the departmental enquiry proceedings. Only, the Appellate Authority in the 1st and the 2nd Appeal while rejecting the appeal have relied upon these events. The applicant was not in the knowledge of the recovery proceedings from the employer during his enquiry and came to know about it only after demanding these documents under the RTI Act, 2005.

7. The learned counsel for the applicant has also pointed out the following dates as crucial for his case.
a) 26.8.93 – Date of inspection by Shri B.S. Vittalachar
b) 8.8.1994 - Date of Test Inspection Report of Shri Cherian Kurian the TIO.
c) 9.2.1996 & 20.2.1996 – Dates when the applicant made inspection to the
Unit/employer.
d) 20.10.1994, 15.4.1996 and 15.11.1996 – Dates of issuing notice to the employer to explain why action under Section 45-A should not be taken.
e) 10.11.1998 – Date of Charge sheet
f) 31.3.2000 – Date of completion of inquiry and submission of the Inquiry Report.
g) 30.11.2000 - Notice issued by the Department to the employer under Section 45-A.
h) 17.4.2001 - Order of penalty on the applicant.

These dates are important because they demonstrate that even after the TIO pointing out the possibility of recovery from the employer on 8.8.1994, the Department does not have any system by which such recoverable amount is monitored and pursuaded. The Department remained silent after the notice to the employer dated 15.11.1996 and started recovery process only when the applicant, during the enquiry and by way of his defence, pointed out that the Department had till then not made any efforts either to ascertain the loss or to recover the same and hence the charge of negligence against him is not tenable. The department which is charging the applicant for "exhibiting a clear negligence in discharge of his officil duties properly" was itself not systematic or prompt for monitoring its dues recoverable from the employer. Further the charge sheet was also not framed with due application of mind. The learned counsel pointed out that the Inspection Report of the applicant by itself is not quasi judicial and the action under Section 45-A can be initiated only by a senior officer who is entitled to
get another test inspection done, if he was not satisfied with the report of the applicant.

8. The learned counsel for the respondents submitted that the 1st Appeal and the 2nd Appeal and the Review Application, all three have been rejected and orders have been passed confirming the orders of the Disciplinary Authority. The departmental enquiry was carried out following the due procedure and by giving due opportunity to the applicant. He also argued that the present application is inordinately delayed since the order on 2nd appeal was passed on 24.8.2004.

9. However, as pointed out by the learned counsel for the applicant, the Review application was rejected on 20.12.2007 by the Secretary, Ministry of Labour & Employment, Govt. Of India, not after considering the RTI documents procured by the applicant, but, on the ground that "Regulation 17 (1) of ESIC (Staff and Conditions of Service) Regulations, 1959 stipulates that "not withstanding anything contained in these regulations, no appeal shall lie against any order made by the Chairman of the Standing Committee. In view of the above provision and the fact that no new ground has been furnished by Shri Manivannan, the review petition is not maintainable and hence rejected". Whereas, actually the applicant had given new grounds – namely, information obtained by him under RTI Act, who also reveals a difference in the amounts stated in notices dated 15.4.1996 and dated 7.11.2000, and the facts that these notices were not a part of departmental enquiry proceedings against him.

10. On going through the pleadings and the documents placed on record, we are of the opinion that there has been non application of mind in framing of the charges. We agree with the contentions of the learned counsel for the applicant that before charging him for negligence in pointing out recovery and thus causing loss to the department, the respondents should have ascertained the quantum of loss or atleast begun to follow up the first notice to the employer by issuing notice under Section 45-A. Though the department took up the matter with the employer from 1994 till 15.11.1996, it has not done anything after mid-April,1996 upto November, 2000 while charging the applicant for negligence in his inspection on 9.2.1996. The Appellate Authority had rejected the appeal on the ground that before 24.8.2004 (the date of rejection of the appeal), a notice under Section 45-A has been served on the employer which the employer had not contested and therefore, the recovery order came to finality. On the same ground the 2nd appeal have also been dismissed while the Review application has been dismissed on the ground that "Regulation 17 (i) of ESIC (Service & Conditions of Service) Regulations, 1959 envisages that "not withstanding anything contained in these Regulations, no appeal shall lie against any order made by the Chairman of the Standing Committee. In view of the above provision and the fact that no new ground has been furnished by Shri Manivannan, the review petition is not maintainable and hence rejected". Thus, none of them have taken into account the fact that the department itself has not pursued any action against the employer and has remained silent till 2000 after issuing him the last show cause notice on 15.11.1996.

11. We have gone through the appeal memo dated 7.10.2001 which was rejected. Then, the applicant had filed an O.A No.526/2002 before this Tribunal, which ordered the respondents to consider and dispose of the appeal on merits. This appeal then came up for hearing before the Director General and the Appellate Authority who rejected it again on 3.6.2003 (Annexure-R/5). In this order, the Appellate Authority has noted the following pleas of the applicant:

1. The allegation that the ESIC has sustained loss because of the omitted wages and huge expenditure for the job work found by the TIO in 1994 comparing the regular inspection conducted by the appellant in 1996 lacks any substance. To say that the ESIC has sustained loss, the following requirements have to be fulfilled:-

(i) The amount recovered from the employerfor the period from Aug. 93 to Dec.95 (i.e. Period of regular inspection).

(ii) The amount shown by the appellant and difference, if any, noticed for the said period.

(iii) Whether the charge sheet was issued for the period of the appellant's inspection from Aug.93 to Dec.96.

(iv) The TIO had conducted test inspection on the inspection dated 26.8.93 conducted by Shri B.S. Vittallachar and not the one conducted by the appellant.

At a subsequent place, he has also noted as under:-
"Moreovr, I find that in the instant case, dues were finally determined after affording opportunity of personal hearing to the employer who, however, did not participate in the personal hearing and did not contest the amount of wages mentioned in the notice. Therefore, the figures mentioned by the TIO gets to the stage of finality."

Therefrom, it is clear that the Appellate Authority has not, despite the prayer in the appeal, taken into consideration the aspect the department remained silent after issuing the last show-cause notice to the employer on 15.11.1996 and thereafter took no steps to proceed under Section 45-A of the ESIC Act. Thus, the department failed to ascertain whethr losses were actually there or not, before charging the officer or during his enquiry.

12. In view of the foregoing, the OA is allowed and all the impugned orders dated 17.4.2001 (Annexures-A/4), 03.06.2003 (Annexure-A/17), 24.08.2004 (Annexure-A/9) and 17.04.2008 (Annexure-A/14) are hereby quashed. The respondents are directed to grant all the benefits including the with-held amount of increments, etc. within a period of three months from the date of receipt of a copy of this order. No costs.

(LEENA MEHENDALE) (Dr. K. B. SURESH )
MEMBER (A) MEMBER (J)
--------------------------------------------------------------------------------------------------------------------------------------

OA No.115/ 2008 on 25-03-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.115 OF 2008

THURSDAY, THIS THE 25th DAY OF MARCH, 2010

HON'BLE SHRI B. VENKATESWARA RAO ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

G. Shekharappa,
S/o (Late) g. Siddappa,
Aged about 53 years,
Working as Sub Post Master,
Ambedkar Nagar PO, Shimoga – 577 201.
R/o Sri Nilaya, 1st Cross, RMC Gate, 60 Feet Road,
Vinobhanagar, Shimoga District – 577 204. . ... Applicants
(By Advocate Shri B.Veerabhadra)

Vs.

1. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore-560 001.

2. The Post Master General,
S.K. Region, Palace Road,
Bangalore – 560 001.

3. The Senior Superintendent of Post,
Shimoga Division,
Shimoga.

4. The Union of India,
Rep. by its Secretary,
Department of Posts,
Ministry of Communications & I.T.,
Dak Bhavan, Parliament Street,
New Delhi – 110 001.

5. Sri Teekappa,
Lower Selection Grade,
Ambedkar Nagar PO,
Shimoga – 577 201. ... Respondents

(By Advocate Shri N.Y. Guruprakash,
Addl. Central Govt. Counsel For R-1 to 4)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The applicant is aggrieved by the circle seniority list of Postal Assistants circulated by the Dept. vide their letter No.STA/4-4/CGL/2006, dated 26.11.2007 (Annexure-A/3), coupled with letter No.STA/4-4/CGL/2006, dated 07.02.2008 (Annexure-A/4) and another letter bearing No.STA/A-4/CGL/2006, dated 28.12.2006 (Annexure-A/6). On the basis of the Circle Seniority List, the applicant was denied promotion as LSG even when his junior viz., Shri Teekappa, Respondent No.5 was promoted. The prayer of the applicant therefore, is to give him promotion and all consequential benefits from the date Respondent No.5 Shri Teekappa was promoted.

2. Heard Shri B. Veerabhadra, learned counsel for the applicant and Shri N.Y. Guruprakash, Additional Central Govt. Standing Counsel for Respondents No.1 to 4. Though Respondent No.5 was served, none represented him.

3. Briefly, the claim of the applicant is that, based on the date of entry in service which is not disputed, the applicant is senior to Respondent No.5.
Applicant Respondent No.5
1. Date of Entry 26.06.1978 29.03.1979
2. TBOP 04.02.1993 29.03.1995
3. BCR 01.01.2005 01.07.2005
Further, the applicant relies on the Gradation List of BCR/TBOP/NON TBOP officials as on 01.07.2005 corrected upto 31.10.2005 in which the name of the applicant appears at Sl. No.32 whereas the name of Respondent No.5 is at Sl. No.49. (Annexure-A/1) and this position is also not disputed by the respondents. Next, the learned counsel for the applicant relies on column No.11 of the Recruitment Rules framed by the Department of Posts under the Ministry of Communications and IT, as amended vide their letter dated 30.5.2005 (Annexure-A/5). The same is extracted below:
"11. By Promotion. Where juniors who have completed their qualifying/ eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year and have successfully completed their probation period, if prescribed."

4. On the other hand, the learned counsel for the Respondents Shri M. Rajakumar submitted that the respondents took the date of confirmation as the basis for promotion to the LSG grade. He states that the applicant was confirmed on 01.03.1984 whereas Respondent No.5 was confirmed on 21.02.1981.

5, Admittedly, the applicant was recruited as a Clerk in the Department of Posts on 26.06.1978 and Respondent No.5 was appointed on 29.3.1979. Thus, on the basis of entry in service, the applicant is senior to Respondent No.5. The applicant received his orders of TBOP and BCR ahead of Respondent No.5. Howevr,the applicant was confirmed on 01.03.1984 whereas the Respondent No.5 was confirmed on 21.02.1981. The sole ground on which the respondents promoted Respondent No.5 ahead of the applicant was that he was confirmed ahead of the applicant. However, the learned counsel for the applicant argued that the amended Recruitment Rules amount to calculating only seniority from the date of entry in service and the seniority is not dependent on the date of confirmation. The Respondents submitted that earlier it was the practice to take into account the date of confirmation of the employees for promotion to LSG. But on pointing out the Recruitment Rules of 30.05.2006 and the gradation list corrected upto 31.10.2005, he agrees that once the Recruitment Rules are amended in 2006 the date of entry into the service will have to be considered for promotion to LSG.

6. It is therefore seen that the Recruitment Rules amended by the Department are quite categorical for taking into account the date of entry in the service while deciding promotions and not the date of confirmation. The gradation list prepared by the department itself, shows that the applicant at Sl, No.32 is senior to Respondent No.5 at Sl. No.49. Therefore, the respondents should have taken into consideration the amended Recruitment Rules and the consequential gradation list while making promotions to LSG. Hence, the application succeeds.

7. It is, therefore, ordered that the applicant should be given promotion to the grade of LSG from the date Respondent No.5 was promoted with all consequential benefits such as service and monetary benefits. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

8. With the above directions, the OA is allowed with no order as to costs.


(LEENA MEHENDALE) (B. VENKATESWARA RAO)
MEMBER (A) MEMBER (J)

----------------------------------------------------------------------------------------------------------------------

OA No.153/ 2008 on 01-04-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.153 OF 2008

THURSDAY, THIS THE 1st DAY OF APRIL, 2010

HON'BLE SHRI B. VENKATESWARA RAO ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


1. K. Mallikarjuna,
S/o L. Doddabasavanagowda,
Aged about 47 years,
Working as Head Commercial Clerk,
B.I.O.P. Siding,
Served by Bellary,
South Western Railway,
Hubli.

2. B.V. Ranganath,
S/o K. Varadaraj,
Aged about 48 years,
Working as Head Commercial Clerk
Toranagal Rly. Station,
South Westen Railway,
Turangal, Bellary. ... Applicants

(By Advocate Shri M.R. Achar)

Vs.

1. Union of India,
Ministry of Railways,
South Western Railway,
Reptd. By the General Manager,
Hubli Zone, Hubli.

2. The Chief Personnel Officer,
South Western Railway,
Hubli Zone, Hubli.

3. The Senior Divisional Personal Officer,
South Western Railway,
Hubli Division, Hubli.

4. Chitrappa,
Working as Sr Commercial Inspector/
Chief Goods Supervisor,
South Western Railways,
Vasanakere Railway Station,
At & Post Vasanakere, Koppal Dist. & Taluk.

5. B.R. Minajigi,
Working as Chief Commercial Clerk/
Sr. Commercial Clerk,
South Western Railways,
Bijapur. ... Respondents

(By Advocate Shri N.S. Prasad,
Senior Counsel for Railways for R-1 to 3)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

This application arises out of non promotion of the applicants to the post of Chief Commercial Clerk in the South Westen Railway while their juniors were promoted ahead of them.
2. Briefly, the case of the applicants is that the applicants were working in the cadre of Head Commercial Clerk from 1.3.1993 in the Guntakal Division of Railways which was under the control of the South Central Railways. On 1.4.2003, a new Zone, namely, South Western Railway was formed to which the staff from the earlier Guntakal Division were taken. For promotion from the post of Head Commercial Clerk to the post of Chief Commercial Clerk, a combined seniority has to come in existence. However, the respondents No.1 to 3 have promoted Respondents No.4 and 5 apparently juniors, ahead of the applicants. The sole issue thereore, rests at examining whether the new South Western Railway Zone that came into existence on 1.4.2003 had a combined seniority list for the purpose of departmental promotion, whether it was drawn up correctly and whether the promotions were given as per the said combined seniority list.

3. Heard Shri M,.R. Achar, learned counsel for the applicant and Shri N.S. Prasad, learned counsel for the respondents.

4. The learned counsel for the applicant Shri M.R. Achar has put forward the following points.

(i) The applicants were transferred from Guntakal Division to Hubli Division by Office order dated 26.02.2004 (Annexure-A/1)and their transfer was accepted by Hubli Division on 2.4.2004.

(ii) Prior to the formation of new Division on 1.4.2003, the provisional seniority list of Head Commercial Clerks of Guntakal Division as on 19.10.2001 was prepared showing the applicants position at Sl.No.32 and 33 (Annexure-A/2) with their date of posting in that grade as 1.3.1993. On the other hand, the seniority list for Head Commercial Clerks of Hubli Division as on 31.3.2002 shows the name of Respondents No.4 and 5 at Sl. No.55 and 56 with their date of posting as Head Commercial Clerk as 20.5.1994 and 9.9.1993 respectively, thus, making both the respondents junior to the applicants, though in separate divisions till 2.4.2004.

(iii) Further, it is the case of the applicants that even though the new Hubli Division was formed on 1.4.2003 and it was known that staff had come to this Division from Guntakal Division, the Respondents No.1 to 3 did not take any steps to prepare a combined seniority list. Without publishing any such combined seniority list, the Respondents No.1 to 3 issued orders on 16.9.2004 putting Respondents No.4 and 5 in the list of candidates promoted to the post of Chief Commercial Clerk with effect from 1.11.2003 against the vacancies which had become available since that date (Annexure-A/10). The applicants who came to the new restructured Hubli Division on 2.4.2004 remained unaware of these orders till 14.12.2006, when the Respondents No.1 to 3, while preparing to fill up the posts of Chief Commercial Clerk published a list of candidates eligible for examination. This list contained the names of the applicants, but, not the names of Respondents No.4 and 5. It was only then that the applicants became aware of the order dated 16.9.2004, which had granted promotion to Respondents No.4 and 5.

4. It is, therefore, the case of the applicants that they had already reported in the newly formed Hubli Division on 2.4.2004 and they were also accepted in the Division on 2.4.2004. So, the Respondents No.1 to 3 were aware of the existence of the applicants in the new Hubli Division. They ought to have prepared a combined seniority list in 2004 itself and in any case, prior to 16.9.2004. Even though the vacancies of Chief Commercial Clerk have arisen with effect from 1.11.2003 which is the date prior to the reporting of the applicants at Hubli Division, the respondents No.1 to 3 who chose to give promotions only on 16.9.2004 ought to have considered the applicants who have already become part of Hubli Division on 2nd April, 2004.

5. The learned counsel further pointed out that immediately after getting the alert note issued by Respondent Nos.1 to 3 on 14.12.2006, the applicants made representations on 3.1.2007 requesting for the postponement of examination and also for giving them promotion to the post of Chief Commercial Clerk from the same date when the Respondents No.4 and 5 were promoted. However, the Respondents No.1 to 3, without considering the representations, published a provisional seniority list of Head Commercial Clerks of new Hubli Division as on 19.1.2007, plaing the applicants at Sl. No.8 and 9. All subsequent representations dated 13.2.2007 and 5.5.2007 were also rejected vide Annexures-A/7, A/8 and A/9. Thus, Respondents No.1 to 3 have refused to review the promotion orders issued by them on 16.9.2004.

6. The applicants' prayer is that the promotion order dated 16.09.2004 which in effect promotes their juniors with effect from 1.11.2003 without taking note of the transfer of the applicants to the new Hubli Division on 2.4.2004 must be set aside. It is the further case of the applicants that Respondents No.1 to 3 should consider the applicants' case for promotion to the post of Chief Commercial Clerk with effect from the date on which Respondents No.4 and 5 have been promoted with all consequential benefits.

7. The learned counsel for the respondents has solely relied on the fact that the promotion order dated 16.9.2004 pertains to the vacancy arising as on 1.11.2003. By the said order, the respondents No.1 to 3 have promoted as many as 26 employees to the post of Chief Commercial Clerk. The applicants' names cannot be included in this list because they have reported to Hubli Division on 2.4.2004, while the vacancies pertain to 1.11.2003.

8. On hearing both the counsel, we have no doubt that the Respondents No.1 to 3 ought to have considered all the staff available with them on 16.9.2004 which also includes the applicants.Even though the vacancies to the post of Chief Commercial Clerk have arisen early as 1.11.2003, the action of the respondents has been completed till 1.4.2003. We are of the opinion that once the new restructured division comes into existence, the department has to start that as a clean slate and look at all the vacancies afresh and prepare all the gradation list. Hence, they ought to have prepared a combined seniority list on 16.9.2004 before issuing any promotion orders. The Respondents No.1 to 3 have clearly omitted this part of their duty to prepare a combined seniority list for the new Hubli Division in time. They have wrongly interpreted that the vacancies arisen on 1.11.2003 can be filled up only by the staff who were available in their Division on that date. Since the applicants came to the new Hubli Division in April, 2004 have also come to the same cadre as that of Respondents No.4 and 5 and since it is admitted that in their respective divisions prior to restructuring the applicants stood at more senior position in their respective seniority lists, they must be given the benefit of their higher seniority when they were transferred to the new Hubli Division.

9. We notice that the order of the respondents dated 16.9.2004 amounts to promoting as many as 26 people which in itself means lot of work and which seems to have been done on their part. Hence, we do not wish to quash the order. At the same time, we cannot allow them to overlook the rightful claim of the applicants for being given higher seniority over Respondents No.4 and 5. We therefore, direct that they should refix the seniority of the applicants above that of Respondents No.4 and 5 and give them all consequential benefits.

10. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this order.


(LEENA MEHENDALE) (B. VENKATESWARA RAO)
MEMBER (A) MEMBER (J)
----------------------------------------------------------------------------------------------------------------

OA No.124 / 2008 on 25-03-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.124 OF 2008

THURSDAY, THIS THE 25th DAY OF MARCH, 2010

HON'BLE SHRI B. VENKATESWARA RAO ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

Lachma Nayak,
S/o Kethya Nayak,
Aged about 50 years,
Working as Sub Post Master,
NMC, Hosamane,
Bhdravathi-577 301, Shimoga District.
R/o NMC, Hosamane,
Bhadravathi – 577 301, Shimoga District. ... Applicants
(By Advocate Shri B.Veerabhadra)

Vs.

1. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore-560 001.

2. The Post Master General,
S.K. Region, Palace Road,
Bangalore – 560 001.

3. The Senior Superintendent of Post,
Shimoga Division,
Shimoga.

4. The Union of India,
Rep. by its Secretary,
Department of Posts,
Ministry of Communications & I.T.,
Dak Bhavan, Parliament Street,
New Delhi – 110 001.

5. Sri Teekappa,
Lower Selection Grade,
Ambedkar Nagar PO,
Shimoga – 577 201. ... Respondents

(By Advocate Shri M. Rajakumar,
Addl. Central Govt. Counsel For R-1 to 4)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The applicant is aggrieved by the circle seniority list of Postal Assistants circulated by the Dept. vide their letter No.STA/4-4/CGL/2006, dated 26.11.2007 (Annexure-A/3) and another letter bearing No.STA/A-4/CGL/2006, dated 28.12.2006 (Annexure-A/5). On the basis of the Circle Seniority List, the applicant was denied promotion as LSG even when his junior viz., Shri Teekappa, Respondent No.5 was promoted. The prayer of the applicant therefore, is to give him promotion and all consequential benefits from the date Respondent No.5 Shri Teekappa was promoted.

2. Heard Shri B. Veerabhadra, learned counsel for the applicant and Shri M. Rajakumar, Additional Central Govt. Standing Counsel for Respondents No.1 to 4. Though Respondent No.5 was served, none represented him.

3. Briefly, the claim of the applicant is that, based on date of entry in service which is not disputed, the applicant is senior to Respondent No.5.
Applicant Respondent No.5
Date of Entry : 27.03.1979 29.03.1979
TBOP 08.04.1995 29.03.1995
BCR 01.07.2005 01.07.2005
Further, the applicant relies on the Gradation List of BCR/TBOP/NON TBOP officials as on 01.07.2005 corrected upto 31.10.2005 in which the name of the applicant appears at Sl. No.44 whereas the name of Respondent No.5 is at Sl. No.49. (Annexure-A/1) and this position is also not disputed by the respondents. Next the learned counsel for the applicant relies on column No.11 of the Recruitment Rules framed by the Department of
Posts under the Ministry of Communications and IT, as amended vide their letter dated 30.5.2005 (Annexure-A/4). The same is extracted below:
"11. By Promotion. Where juniors who have completed their qualifying/ eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than one year and have successfully completed their probation period, if prescribed."

4. On the other hand, the learned counsel for the Respondents Shri M. Rajakumar submitted that the respondents took the date of confirmation as the basis for promotion to the LSG grade. He states that the applicant was confirmed on 01.03.1986 whereas Respondent No.5 was confirmed on 21.02.1981.

5, Admittedly, the applicant was recruited as a Clerk in the Department of Posts on 27.3.1979 and Respondent No.5 was appointed on 29.3.1979. Thus, o the basis of entry in service, the applicant is senior to Respondent No.5. The applicant received his orders of TBOP and BCR in the same year but later than that of Respondent. Further, the applicant was confirmed on 01.03.1986 whereas the Respondent No.5 was confirmed on 21.02.1981. The sole ground on which the respondents promoted Respondent No.5 ahead of the applicant was that he was confirmed ahead of the applicant. However, the learned counsel for the applicant argued that the amended Recruitment Rules amount to calculating only seniority from the date of entry in service and the seniority is not dependent on the date of confirmation. The Respondents submitted that earlier it was the practice to take into account the date of confirmation of the employees for promotion to LSG. But on pointing out the Recruitment Rules of 30.05.2006 and the gradation list corrected upto 31.10.2005, he agrees that once the Recruitment Rules are amended in 2006 the date of entry into the service will have to be considered for
promotion to LSG.

6. It is therefore seen that the Recruitment Rules amended by the Department are quite categorical for taking into account the date of entry in the service while deciding promotions and not the date of confirmation. The gradation list prepared by the department itself, shows that the applicant at Sl, No.32 is senior to Respondent No.5 at Sl. No.49. Therefore, the respondents should have taken into consideration the amended Recruitment Rules and the consequential gradation list while making promotions to LSG. Hence, the application succeeds.

7. It is, therefore, ordered that the applicant should be given promotion to the grade of LSG from the date Respondent No.5 was promoted with all consequential benefits such as service and monetary benefits. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

8. With the above directions, the OA is allowed with no order as to costs.


(LEENA MEHENDALE) (B. VENKATESWARA RAO)
MEMBER (A) MEMBER (J)
-----------------------------------------------------------------------------------------------------------

OA No.292 /2009

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.292 OF 2009

THURSDAY, THIS THE 1st DAY OF APRIL, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


S.V. Naik, Aged 28 years,
S/o Vittoba Naik,
GDS MD, Anmod BO,
Ramnagar SO- 581 453 (Sirsi NI). ... Applicant

(By Advocate Shri B. Venkateshan)

Vs.

1. Union of India,
Represented by the Secretary,
Department of Posts,
Dak Bhavan, New Delhi-110 001.

2. Postmaster General,
North Karnataka Region,
Dharwad-580 001.

3. Superintendent of Post Offices,
Srsi Division, Sirsi-581 402

4. Assistant Superintendent of Post Office (HQ),
O/o Supdt. Of Post Offices,
Sirsi Dn. - 581 402. ... Respondents

(By Advocate Shri M. V. Rao,
Sr. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A):

The OA arises out of the order dated 06.06.2006 passed by the respondents imposing the penalty of removal from service. The appeal against the said order was rejected by order dated 31.01.2007 and his further petition to the Postmaster General, Dharwad, was rejected vide order dated 03.03.2009.

2. The brief facts of the case are as under:-
3. The applicant who was Gramin Dak Sevak Mail Deliverer (GDS, MD) at Anmod Branch Office, in account with Ramnagar Sub-Office, under the Head Office of Sirsi, was given a charge memo dated 27.4.2003 levelling the following three charges:

1. That he did not convey the BO bag from Anmod Bus Stop Point to the HO on 18-12-2002.
2. that he did not deliver soome ordinary letters to the addressees and
3. that he was involved in non credit of VP amount of Rs.861/-

4. The disciplinary action was dropped on 14.10.2003, but, was initiated again on 11.11.2003. It was concluded on 13.9.2005 and ADA imposed the punishment order dated 06.06.2006 of removal from service. Both the appeal and the petition were rejected by the appellate authority and the PMG Dharwad respectively.

5 Heard Shri B. Venkateshan, learned counsel for the applicant and Shri M.V. Rao, learned Senior Central Govt. Standing Counsel for Respondents.

6. The learned counsel for the applicant sought to quash the impugned order dated 06.06.2006 and subsequent orders on the following grounds.

a) As regards charge No.3, the applicand has already been punished vide Memo No.ASP/(HQ)/ADA-1/01, dated 8-4-2002. Thus, punishing him once again for the same charge amounts to double jeopardy which the respondents are not permitted.
(b) the article of charge No.2 is that the applicant has failed to deliver the ordinary articles received at BO on 25-11-02, 26-11-02, 28-11-02 and 4-12-02 which were entrusted to him for delivery on these respective dates. Although the Inquiry Officer has said that this charge is proved, the most important witness examined by him was PW-3, who himself has stated in his deposition that the statement of the applicant purported to have been given before the PW-3 were actually not recorded by him, but that he put his signature and stamp under the directions of tHe IPO, Dandeli. PW-3 has further stated that he does not know how to read or write Marathi language and hence he was not fit for recording the statement of the applicant. This statement of the applicant at Ex.P-9 and Ex.P-10 were purported to have been given by him before PW-3 and were to be relied upon by the Inquiry Officer, for proving charge.
(c) As regards charge No.1, namely, not conveying the BO bags from the Bus stop to the Post Office, the applicant claims that it is not one of the duties entrusted to him. Among the witnesses examined, there is one hotelier who has recounted the incidence before the Inquiry Officer stating that the bus was very late on that day and when it finally arrived, someone has dropped the BO bag from the bus to the hotelier. He thereafter delivered it to the BO and that the distance between the BO and the Bus stop is nearly 25 metres, only.

Thus, the learned counsel argued that out of the three charges the 3rd charge was not tenable as it amounted to double jeopardy and the applicant could not be punished for the third charge. The first two charges seems to be of much lesser gravity and especially the second charge cannot be said as proved. It is also important to note that in the entire service of the applicant for about 16 years, these two incidences have happened only once and hence the punishment of removal from service seems to be too harsh. He further argued that even though the Tribunal is normally not supposed to look into the question of gravity of charge vs. The quantum of punishment. Yet, the Tribunal ought to take such a note when the punishment is grossly disproportionate or harsh. He quotes the decision of the Apex Court in the case of Kailash Nath Gupta Vs. Inquiry Officer (R.K. Rai) Allahabad Bank & Ors. In Civil Appeal No.2508/1998 decided on 27.3.2003 and reported in 2003(3)ATJ (Supreme Court) 227. to say that the quantum of punishment of removal from service imposed by the respondents is too excessive and disproportionate to the gravity and nature of offence.

7. The learned counsel for the applicant further submits that in accordance with the provisions contained in DG P&T letter No.114/324/78-Disc.11, dated 5-7-1979, incorporated as Government of India Instructions No.(9) below Rule -15 of CCS (CCA) Rules, 1965, inter alia stipulates that "once the proceedings initiated under Rule 14 or 16 of CCS (CCA) Rules, 1965 are dropped, the Disciplinary Authorities would be debarred from initiating fresh proceedings against the delinquent officer unless the reasons for cancellation of the original charge sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings are being dropped without prejudice to further action which may be considered in the circumstances of the case. In the instant case, the DA while dropping the earlier charge sheet has not indicated the reasons for dropping the said charge sheet. Hence, the DA is debarred from fresh proceedings. Hence, the charge sheet is defective. Thus, the learned counsel has challenged the action of the Disciplinary Authority who first dropped the action on 14.10.2003 and later again initiated action on 11.11.2003.

8. Hence, the learned counsel prays for quashing the punishment order on the ground that the punishment for charge No.3 amounts to double jeopardy, Charge No.2 is not proved and is a minor charge and Charge No.1 cannot be construed as proved because conveying the BO bag from the Bus stop to the BO was not part of his job. Above all the disciplinary action was first dropped on 14.10.2003 but was again initiated on 11.11.2003 without assigning proper reasons.

9. The learned counsel for the respondents mainly contended that before arriving at the penalty, the previus bad record of the applicant is considered by framing specific charge in the charge sheet. By this, he is referring to Charge No.3. However, charge No.3 as read from the text of the charge sheet does not indicate that it only a previously observed bad record, but, has been brought out as a specific charge and definitely amounts to double jeopardy. The other two charges are either not fully proved or are of minor nature.

10. Hence, the orders of dismissal dated 06.06.2006 is quashed and also the orders in subsequent appeal and petition. The applicant is to be reinstated with full wages.

11. With the above observation, this OA is allowed with no order as to costs.

(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)

------------------------------------------------------------------------------------------------------------------

OA No. 41 OF 2009

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 41 OF 2009

THURSDAY, THIS THE 1st DAY OF APRIL, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


Sri M. Hanumantharayappa,
S/o Hanumappa,
Aged 62 years,
Deputy Office Superintendent L.I. (Retd.),
Central Excise Department,
No.114, BWS KHB Colony,
4th Cross, A.D. Hally, II Stage,
Basaveswaranagar, Bangalore – 560 079. .. Applicant

(By Advocate Shri R. Hari)

Vs.

1. The Commissioner of Central Excise,
Bangalore I Commissionerate,
C.R. Buildings, Queens Road,
Bangalore – 560 001.

2. The Chief Commissioner of Central Excise,
C.R. Buildings, Queens Road,
Bangalore – 560 001.

3. Union of India, represented
by the Secretary,
Central Board of Excise & Customs,
Ministry of Finance,
North Block, New Delhi – 1.

4. The Member (P and V),
Central Board of Excise & Customs,
Ministry of Finance,
North Block, New Delhi – 1. ... Respondents

(By Advocate Shri G. Mallikarnunappa,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

This case arises against order No.C.No.II/39/147/2008 Estt.A, dated 8th December, 2008, passed by the Office of the Commissioner of Central Excise, Bangalore-1 Commissionerate, which itself is in pursuance of letter F.No.A-26017/ 89/2008-Ad.II.A dated 18-11-2008 received from the Office of Central Board of Excise and Customs, New Delhi.

2. Briefly, the case of the applicant is that the applicant was originally appointed as Sepoy in the Central Excise and Customs Department on 31.7.1974. He had later passed the SSLC Examination and was given appointment as LDC on 23.6.1986. His seniority was not properly assigned in the LDC grade and one of his juniors Shri Jayanna M.was promoted earlier than the promotion of the applicant. On hearing the applicant, this Tribunal in OA No.524/2002 directed the respondents to re-examine the representation of the applicant which was then considered by the respondent No.1 favourably who vide his Establishment order No.86/2003 dated 19.6.2003 revised his seniority and gave him notional appointment to the grade of LDC. Consequent to the revised seniority in the grade of LDC, further promotion to the grade of UDC and still further to the grade of Dy. Office Superintendent Gr. L.II were also revised. Promotion to the grade of UDC on notional basis was revised on 25.9.2003 and that to the grade of Dy. Office Superintendent Gr.L.II was revised by another order dated 25.9.2003. Further, in view of all these revisions in fixing his seniority and allowing him his notional promotion going back as early as 1986, the Respondent No.1 also took a decision to allow arrears for the retrospective promotion orders and issued an order dated 28.9.20904 (Annexure-A/1). However, as the arrears were not being actually paid, the applicant kept on submitting representations. He Submitted 11 representations and finally a legal notice on 3.10.1997 after which he again approached this Tribunal in OA No.04/2008. It was then brought to the notice of the Tribunal that even though Respondent No.1 had issued orders allowing payment of arrears in respect of notional promotions, the bill for arrears of pay was returned by the Pay & Accounts Office for obtaining Ministry's approval. Accordingly, this Tribunal directed the respondents to consider the representations, obtain the approval of the Ministry and take a decision within two months from the date of order, i.e., 13.6.2008.

3. Now, once again the applicant has approached this Tribunal with the present OA because of the inability of Respondent No.1 to draw and pay the arrears of pay. He has quoted letter F.No.A-26017/89/2008 Ad.IIA dated 18.11.2008 from whom the matter was referred and who have opined that since the applicant has only been given notional promotion and has not actually performed the duties of the senior post from time to time, therefore, no arrears of pay can be given.

4. Heard Shri R. Hari, lerned counsel for the applicant and Shri G. Mallikarjunappa, learned Addl.Central Govt. Standing Counsel for the respondents.

5. The learned counsel for the applicant pointed out that it was basically the error, lapse and negligence on the part of the respondents in not applying their mind and promoting the junior without considering the seniority of the applicant. The normal rule of no work, no pay as has been laid down by the Hon'ble Supreme
Court in other cases does not apply here. Because, here the eligible and willing person has been kept away from working against the promotional post by the mistake of the establishment and for no fault or lapse on his part.

6. It is the contention of the learned counsel for the applicant that since the respondents have prevented the applicant from discharging his duties on the promotional post by not giving him promotion which is no fault of him, therefore, the respondents cannot now take the advantage of their own error by not paying him the arrears.

7. The learned counsel for the respondents mainly relied on the principle of "No Work No Pay." The learned counsel has pointed out the judgment of the Hon'ble Supreme Court in Paluru Ramkrishnaiah and further in the case of TESA (India) vs. UOI (1994 (4) SLR 15) the Hon'ble Apex Court have denied arrears for the period of notional promotion.

8. However, the learned counsel for the applicant has quoted the latest judgement of the Hon'ble Supreme Court in Panender Mukhopadhyay & Ors. Vs. V.K. Kapoor & Ors. 2008 AIR SCW 481 allowing arrears of pay and allowances on notional promotion and this Supreme Court order supersedes the previous orders of the Supreme Court. He has also quoted order passed by this Tribunal in OA No.20/2009 in which it has been held that arrears from the date of notional promotion have to be paid in a case where the facts show that the applicant was improperly denied promotion along with his juniors and was kept away from work. The OA has discussed at length various cases coming up before the Apex Court and has come to the following conclusion:-
"(a) No absolute proposition of law can be laid down regarding applicability of the normal rule of 'no work no pay'. Mechanical application of the said rule made in a particular case can be found to be wholly unjust. The decision regarding payment of pay and allowances from the date of notional promotion to the date of actual promotion has to be taken in the facts and circumstances of each case.

(b) While the Apex Court in P.S. Mahal held that arrears of pay and allowances have to be paid in case of promotion from a back dte on revision of seniority, the Apex Court has not allowed back wages where (i) either there was a contested question of seniority whether on account of state reorganization or otherwise or (ii) where a large number of similarly situated employees were involved or (iii) where rota and quota rule had broken down. Back wages have also not been granted when promotions were granted in exercise of powers under equitable jurisdiction."

9. In view of the above, this Tribunal is of the opinion that the applicant is entitled to arrears from the date of his notional promotion. The respondents are directed to pay the same to him along with interest at 8% per annum on such arrears. The entire amount should be paid within three months from the date of receipt of the order. In case the amount is not paid the arrears and the interest so computed shall carry interest at the rate of 9% beyond this period till the date of actual payment.

10. This Tribunal also takes note of the fact that even though a similar order has been earlier passed in OA No.20/2009, against the same department, the respondents have not considered it to apply their mind to the present case and have continued with their orders dated 18.11.2008 and 8.12.2008. Hence, this Tribunal would like to keep on record and direct that the respondents No.1 to 3 should take a review of similar cases pending with them and take proper decision at their level so that more applicants are not required to come before this Tribunal from time to time.


(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)

-------------------------------------------------------------------------------------------------------------------

OA NO.444/2010 of Mumbai bench

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI,
CAMP AT GOA.

ORIGINAL APPLICATION NO.444/2010

This the day of , 2011

Coram : Hon'ble Shri Justice V.K.Bali, Chairman,
Hon'ble Smt.Leena Mehandale, Member (A).

Arezhi Sreedharan,
Flat No.1,
Villa Bambina,
Mamgor Hill,
Vasco-da-Gama,
Goa – 403 802. ...Applicant.
(By Advocate Shri G.Vijaychandran)

V/s.

1) Union of India through
The Secretary,
Ministry of Defence,
Room No.198,
South Block,
New delhi – 110 011.

2) Chief Personnel,
Directorate of Civil Personnel
Services, Integrated HQRS,
Ministry of Defence (Navy),
Sena Bhavan,
New Delhi – 110 011.

3) Flag Officer Commanding-in-Chief,
Headquarters,
Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai – 400 001.

4) The Flag Officer Goa Area,
Headquarters, Goa Naval Area,
Vasco-da-Gama,
Goa – 403 802. ...Respondents.
(By Advocate Shri M.Amonkar)

: O R D E R
{Leena Mehandale, Member (A)}
This OA is filed on 24.6.2010 under Section 19 of the Administrative Tribunals Act, 1985.

2. The undisputed facts of the case are that, the applicant who joined his service in the Civilian Section of Indian Navy on 27.5.1969 was to superannuate on 30.6.2009 on attaining the age of 60 years. During the earlier part of his service, his date of increment was falling on 1st May. His last promotion received w.e.f. 26th May, 2008 to the post of Office Superintendent with respect to which his next due increment would have been on 1st May, 2009. However, in pursuance of the VIth Pay Commission recommendations, his pay in the rank of Assistant was fixed at Rs.12,090/- with Grade Pay of Rs.4,200/- in the Pay Band – 2 of Rs.9,300-34,800 w.e.f. 1.1.2006 and the next date of increment w.e.f. 1.7.2006 as opted by the applicant. Thus, even though the applicant was promoted as Office Superintendent on 26.5.2008 and his pay was fixed at Rs.13,090/- notionally with Grade Pay of Rs.4,200/- w.e.f. 25.5.2008. The date of next increment remained as 1st July. Accordingly his pay was refixed at Rs.14,150/- w.e.f. 1.7.2008. Both the parties are in agreement about this factual position.

3. It is, thus clear that, the applicant got his last increment on 1.7.2008 bringing his pay to Rs.14,150/- w.e.f. 1.7.2008 and he would have got his next increment on 1.7.2009. But, he retired just on the previous day viz. 30.6.2009 after having rendered one complete year's service with that pay.

4. It is the case of the applicant that he is entitled to an increment for the service rendered from 1.7.2008 to 30.6.2009. Had he continued in the service for just one day, he would have been able to claim his increment for the service rendered in future i.e. beyond 1.7.2009. However, the applicant would like to make a distinction between the entitlement for increment which is in respect of rendering future service and the right to pensionary benefit which is in respect of the service rendered in past. This is a peculiar case where the applicant has rendered one complete year of service in a particular grade, but his pensionary benefit would be counted only as if he had not completed the full one year service. The argument from the applicant's side is that since pensionary benefits are eligible for the reason of past service rendered, therefore the applicant should be held as entitled to the pensionary benefits as if he had been granted his increment which was due on 1.7.2009.

5. The argument of the Respondents was that the Rule for next increment is very clear and he has not been given increment on 1.7.2009 as he had already superannuated from the service on 30.6.2009. The increment accrues only from 1st day following that on which it is earned.

6. Thus, we find that a very fine distinction is sought to be made in this case. The applicant claims that the increment is earned by him at the end of 30.6.2009, whereas the Respondents claim that the increment accrues only on 1.7.2009. Thus, it is the question that while the benefits are earned by way of past one year's service on 30.6.2009. But the accrual of increment will happen only on 1.7.2009. The Rule is very clear that in case he continues in service further than 1.7.2009, then his salary will be drawn by giving the effect of the increment that accrued on 1.7.2009. But, this Rule does not specifically say anything about the pensionary benefits which are arising out of the service rendered and increment earned which has happened on 30.6.2009.

7. In view of this finer distinction made out by the applicant and also following the principles of natural justice, viz. that when the Rules are silent on the particular question then they may be interpreted in such a way as to give rightful benefit to the applicant. Here we find that the applicant has rendered service to the Government for more than 40 years and in view of the last one years's service he has defenitely rendered his service for one complete year in the scale of Rs.14,150/- given to him on 1.7.2008. Hence, we have no hesitation to allow the application. Ordered accordingly.


(LEENA MEHANDALE) (V.K.BALI)
MEMBER (A) CHAIRMAN
-----------------------------------------------------------------------------------------------------------------

OA NO.215/2009 ??????????????????????

CENTRAL ADMINISTRATRIVE TRIBUNAL
BANGALORE BENCH, BANGALORE

ORIGINAL APPLICATION NO.215/2009

DATED THIS THE DAY OF APRIL, 2010


HON'BLE DR.K.B.SURESH ...MEMBER(J)
HON'BLE SMT.LEENA MEHENDALE ...MEMBER(A)

Ramesh Handa,
S/o Sheena Handa,
Aged 33 years, working as
GDS BPM, Hanehalli BO,
A/w Barkur SO-576 210. ...Applicant

(By Advocate Shri A.R.Holla)

Vs.

1. Union of India,
By Secretary,
Department of Post, Dak Bhavan,
New Delhi – 110 001.

2. Chief Post Master General,
Karnataka Circle,
Bangalore – 560 001.

3. Post Master General,
S.K.Region,
Bangalore – 560 001.

4. Superintendent of Post Offices,
Udupi Division,
Udupi – 576 101. ...Respondents

(By Additional Central Government Standing Counsel Shri N.Y.Guruprakash)

O R D E R

HON'BLE SMT. LEENA MEHENDALE ...MEMBER(A)

This application arises out of Order No.B1/III/LGO, dated 23rd April, 2009, issued by Respondent No.4 terminating the services of the applicant from the post of Postal Assistant.

2. The case in brief is that the applicant was appointed as GDS BPM on 26.04.2001. From the certificates he belongs to OBC category and his date of birth is 06.04.1975. Vide notification dated 14.02.2007, examination was notified for selection to the post of Postal Assistants from the GDS category. The applicant went through all the formalities after which he was provisionally selected by order dated 15.06.2007 (Annexure A3). Thereafter, he completed the pre-institutional training and was posted as Postal Assistant (Annexure A6). As a consequential requirement, he also tendered his resignation from the post of GDS-BPM on 30.11.2007. Thereafter, he was allotted the permanent pension account number and staff quarter too.

3. In the meantime, Respondent No.4 came across some irregularity in the selection of the applicant and issued a show cause notice dated 27.12.2007 (Annexure A11), as to why his selection should not be cancelled. The applicant approached this Tribunal in OA No.25/2008. During hearing of that case, the applicant requested for permission to make a detailed representation to the respondents. So, the OA was disposed of directing the respondents to consider the detailed representation of the applicant. Accordingly, the applicant was given a chance to represent and finally, an order was passed holding his appointment as Postal Assistant as irregular. This order was communicated to the applicant on 21.4.2009 (Annexure A14) and by order dated 23.04.2009 (Annexure A16), he was posted back as GDS-BPM. So, the applicant prays for quashing the order dated 21.04.2009 issued by Respondent No.4 (Annexure A14) and prays that he should be taken back as Postal Assistant.

4. It is admitted in the reply statement that the unfilled quota of vacancies (for promotion) of 2003, 2004 and 2005 was offered to the GDS of the recruitment divisions vide letter No.SK/R&E)/1-12/GDS/2003 to 06 dated 9.11.2006. for the year 2003 there were 2 vacancies in the open category and one for the OBC category, for the applicant was a candidate who appeared for the examination. Recruitment Rules say that GDS securing marks not below the marks secured by the last direct recruit of OBC selected in the same year is to be selected. The recruitment was for vacancy of 2003 and direct recruitment for vacancies of 2003 was made in 2005. As there was no direct recruitment in Udupi Division in the year 2005, the respondent No.4 looked at the results of nearby Puttur Division into consideration and prescribed 68.2 marks as the minimum percentage of marks to be secured by the GDS candidates under OBC category in order to be selected.

5. On 15-6-2007 the applicant was provisionally selected (Annexure A3). Then he was asked to undergo several types of training which he completed during the period 25-6-2007 to 16-10-2007. He was posted as Postal Assistant in Kundapura Head Office vide office order dated 12-10-2007 (Annexure A6). Thereafter, he also submitted his resignation of the post of GDS-BPM, as this was one of the requirements for holding the Post of Postal Assistant and the said resignation was accepted by order dated 5-12-2007. He was given a permanent pension account number vide order dated 21-11-2007 and also a staff quarter vide order dated 4-12-2007. The learned Counsel pointed out that while all these was happening, the respondents by doubting the same, interpretation of some rules and applying different interpretation came to the conclusion that they should cancel the appointment order of the applicant. They issued a show cause notice Annexure A11 to the applicant as to why his selection should not be cancelled. Thus appearing to give him full opportunity, when it is advised the he would have no explanation with different interpretation by his seniors. The learned Counsel pointed out that this show cause notice was in fact shows that the respondents has already taken decision to cancel his selection as Postal Assistant. The order in Annexure A11 came before this Tribunal in OA No.25/2008, the OA was disposed of directing the applicant to give a detailed representation to the respondents and respondents were directed to pass a reasoned order. The learned Counsel for applicant points out that the respondents have passed an order dated 6.4.2009 reiterating that the appointment of the applicant is contrary to the recruitment rules. There upon several consequential orders were also passed such as terminating the services of the applicant, posting him back to GDS BPM post and also asking him to vacate the allotted residential accommodation.

6. The learned Counsel pointed out how the new interpretation made by the respondents is devoid of any merit. The more important fact, however, is that all along the process of allowing him for examination, then selecting him and giving him posting as Postal Assistant, there was never any failure on the part of the applicant. Even if accepting for a moment that the new interpretation of the respondents is correct, they cannot make the applicant suffer without any fault of his and for their insistence. So far as the rules examined by the respondents are concerned the learned Counsel has challenged the reasoning of the respondents. The reasons given by the respondents were:
(1) the vacancy circular had been issued by the SPO of the Division which is contrary to the instructions,

(2) the crucial date for determining the age limit is the closing date for receipt of applications.

(3) the crucial date for completing 3 years as GDS was wrongly mentioned in the vacancy circular

(4) The comparison of the marks obtained by the candidates should be between marks of the candidate and the marks by the last direct recruit of the relevant category selected during the same year. Accordingly, the cut of marks for eligibility prescribed as 62.2% in the circular was incorrect because this were the marks secured by the last direct recruit candidate of the year 2005.

The applications furnished by the applicant to the above incorrections in the circular year as follows:
(1) The vacancy circular dated 14.2.2007 was issued with the approval of the Post Master General and not by the SPO of the Division.

(2) The question of crucial date for age limit has been prescribed only for direct recruits and not for those who are being considered from the GDS.

(3) The recruitment rules for promotional posts from the GDS prescribed only 3 years of experience and does not speak of any age limit.

(4) The cut of marks fixed in the notification at 62.2% was based on the marks secured by the last direct recruit of the same category in the neighboring Division of Puttur since there was no direct recruitment in the Udupi Division itself in 2005. Therefore, to call this as a irregular basis.

7. The learned Counsel for the respondents submits that the whole question of cancelling the appointment of applicant as Postal Assistant has rested on meaning of 'same year' in 2005. As per the interpretation of Respondent-3 the Post Master General of S.K.Region, the term 'same year' refers to the recruitment year and this interpretation has also been confirmed to the Superintendent of Posts of Mangalore Division who is placed in a similar situation as that of Respondent-4 i.e., the Superintendent of Udupi Division by applying this interpretation the SSPO of Mangalore had not selected any GDS in this Division and it was GDS candidates of Mangalore Division who appointed to ?????????????????????? the action of the SSPO of Udupi Division. The SSPO, Udupi Division realising that there were no direct OBC candidates in his Divisions for the year 2005 had chose to look at the neighboring Puttur Division. Following table will show the comparison:
--------------------------------------------------------------------------------------------------------
Last Direct Recruit Puttur Division 2005 68.8%
Applicant Udupi Division 2005 73.53%
Last Direct Recruit Udupi Division 2007 74.33%
--------------------------------------------------------------------------------------------------------

8. Heard Shri A.R.Holla, learned Counsel for the applicant and Shri N.Y.Guruprakash, learned Additional Central Government Standing Counsel for respondents. We find that the contention of the respondents is not correct. The entire say of the respondents relies on very minor difference of marks namely 74.33% and 73.53% (which itself is sufficiently high percentage of marks) Further, the SSPO of the Udupi Division has compared marks of the neighboring Puttur Division for an apparently valid reason that since there was no direct recruit in his Division. He thought it right compared with the neighboring Division. We however, agree with the learned Counsel for the applicant that for such a minor difference of integrity a person who has already been selected as Postal Assistant and has duly discharged his duties and enjoyed the post for the said period cannot suddenly told “he made mistakes therefore has to suffer”. Since procedurally all the requirements department are kept in and since the cut of marks in both the interpretations as well as marks secured by the applicant all go in the prescribed high percentage. We conclude that the action of the respondents is bad in law.

9. We direct the respondents to reinstate the applicant as Postal Assistant with all consequential benefits and treat the intervening period from 24-2-2009 till the date of his reinstatement as period on duty. Action to be completed in one month's time. OA is disposed of. No order as to costs.


(LEENA MEHENDALE) (DR.K.B.SURESH)
MEMBER(A) MEMBER(J)

---------------------------------------------------------------------------------------------------------------------

OA No. 70 OF 2009

LLB Mumbai Univ




CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 70 OF 2009

.....DAY, THIS THE ..... DAY OF ........, 2010

HON'BLE Dr. K. B. SURESH ... MEMBER (J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)


B.B. Meti,
S/o Late Bheemappa,
Aged about 47 years,
Working as Loco Pilot (Passenger Gr.II),
O/o the Chief Crew Controller
South Western Railway,
Hubli. ... Applicant

(By Advocate M/s. Subbarao & Co.)

Vs.

1. The Union of India,
Rep. by the General Manager,
South Western Railway,
Hubli.

2. The General Manager,
South Western Railway,
Hubli Division,
Hubli.

3. The Divisional Railway Manager,
South Western Railway,
Hubli.

4. Senior Divisional Mechanical Engineer/Power,
South Western Railway,
Hubli. ... Respondents

(By Advocate Shri N.S. Prasad,
Senior Advocate for Railways)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

This is an application filed under Section 19 of the Administrative Tribunals Act, 1985.

2. The OA is against the order dated 13.02.2009 passed by the Sr. Divisional Mechanical Engineer/Power, South Western Railway, Hubli (Respondent No. 5)(Annexure-A/15).

3. The learned counsel for the applicant has mentioned the following facts of the case:-

(i) The applicant was appointed as a Gangman as per Office Order No.13, dated 4.12.1984. During 1987, he was permitted change of cadre from Gangman Engineering Department to Khalasi Mechanical Department. Thereafter, from 1987 to 1999, he has been getting due promotions till he became Goods Driver in the Pay scale of Rs.5000-8000/-.

(ii) On 12.11.2001, a charge sheet was issued (Annexure-A/4). The following three charges were framed against him.
  1. That on 8.2.1999 when the applicant produced a Caste certificate dated 16.1.1984 purported to have been issued by the Tahsildar, Gadag, indicating that he belongs to Tokarekoli Tribe which comes under Scheduled Tribe.
  2. That the applicant was also asked to produce his school leaving/transfer certificate from the school he last studied and his permanent residential address at his native place vide their office letter No. H/O 171/BCT/CV/IV/BBM dated 10.2.1999, which he failed to do so inspite of severan reminders.
  3. That the applicant has produced a school transfer certificate which is found to be false on verification.

(iii) From the above charges, it is clear that the main ground against the applicant is that he claimed himself to be a person belonging to Tokarikoli caste (which is a ST caste) which in fact, he is not and therefore not fit to remain in service. The final order of dismissal, howevr, mentions that he produced three certificates to the Railway authorities
(a) porported to have been issued by the Tahsildar, Gadag, stating that the applicant belongs to Tokarikoli;
(b) a certificate purporting to be a transfer certificate from the School,
  1. a certificate dated 23.12.1985 purporting to be a caste certificate declaring the applicant as Kadu Kuruba.

The impugned order further mentions that while the first two certificates have been proved to be false certificates. If the Railway authorities only go by the third certificate and accept him as a person belonging to Kadu Kuruba, then, since the Kuruba caste does not come under ST. Therefore, he is liable to be thrown out of service. This clearly shows that the Railway authorities have not correctly perused the list of Sts pertaining to the State of Karnataka. The learned counsel points out to page 196, entry No. Karnataka – 16, which is Kadu Kuruba in the book named "Swamy's Cmpilation on Reservation and Consession for Scs and S.Ts, Other Backward Classes, ......." 9th Edition 2008.

After issuing the charge sheet to the applicant on 12.11.2001, a regular Enquiry Officer was appointed who, as per the learned cousel, did not give/afford full opportunity to the applicant and based on the report of the Inquiry Officer, the Disciplinary Authority passed an order dated 7.6.2005 (Annexure-A/7) dismissing the applicant from service. Against this order, the applicant preferred an appeal to the Respondent No.4 who kept it pending for quite some time, whereafter the applicant filed an OA before this Tribunal in OA No.270/2005 which was disposed of by this Tribunal with a direction to Respondent No.4 to pass an order in the appeal filed by the applicant within two months v its order dated 8.7.2005.



It is therefore, quite obvious that that the Respondent No.4 has not acted in the interest of natural justice while issuing the impugned order dated 13.02.2009. For whatever reason, once an order has been passed on one inquiry report and in the appeal the penalty of dismissal has been quashed, it has the effect of nullifying the earlier disciplinary order as well as the charge sheet. Therefore, if the 2nd order of dismissal has to be passed, it cannot be done without giving a fresh charge sheet to the incumbent


In view of the above, we have no hesitation in setting aside the impugned order dated 13.02.2009 and accordingly it is set aside


The OA is thus allowed. The applicant should be allowed to join his duties with all consequential benefits. No order as to costs.


(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)


psp.