OA 422- by Raghavan ???????

OA 422- by Raghavan

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O R D E R (ORAL)

Hon'ble Shri N.D. Raghavan, Vice-Chairman:

            The applicants No.2 to 5 are Drivers in the GSI (Geological Survey of India).  As this post did not have regular promotional channel thus creating a stagnation, the Govt. of India vide OM dated 30.11.1993 created promotional channel whereby Drivers could be promoted from Driver-Ordinary Grade (Rs.950-1500/-) to Driver- Gr.II (Rs.1200-1800/-) to Driver-Gr.I (Rs.1320-2040/-), thus creating three grades.  Prior to this OM dated 30-11-1993, only one promotion grade existed, namely, Driver-Gr.I and the applicants No.2 to 5 who are at the top of the seniority list had been promoted to that grade with effect from 1-9-1993, i.e., before the above said O.M.  Their junior Drivers who were not due for promotion earlier became due on account of the OM dated 30-11-1993 and were promoted to Gr.II by order dated 24-1-1995 and subsequently to Gr.I.  The applicants 2 to 5 were also promoted to Gr.I in view of the OM.  In between, the pay revision also took place.  All these together created an anamolous situation.  The junior Drivers in pursuance of the said OM dated 30.11.1993 got two pay fixations, one for notional promotion in Gr.II and the 2^nd for the notional promotion in Gr.I whereas the applicants 2 to 5 received only one pay fixation for the Gr.I.  The effect was that the senior Drivers, namely, the applicants 2 to 5 now in Gr.I became entitled to less pay than the pay of their junior Drivers, who, on notional promotion to Gr.I became entitled to a higher pay as a result of two pay fixations in their favour. 

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2.         This being violative of natural justice, the Respondent No.3, viz., the Dy. Director General, AMSE Wing, Geological Survey of India, Bangalore, who is the immediate Head of the Department for the applicants, wrote to Respondent No.2, who in turn, wrote to Respondent No.1, drawing their attention to this anamoly and suggesting that the pay fixation for the applicants may be so revised as to bring them atleast at par with the junior Drivers if not at higher pay.  The applicants have therefore, sought the remedy of a writ for proper pay fixation for applicants No.2 to 5 in the Driver-Gr.II so that after the effect of 2^nd pay fixtion in Driver-Gr.I in the scale Rs.1320-2040/- their pay would not remain lower than the pay of their juniors.

3.         Thus, even though an apparent anamoly was created and even though the concerned officers understood and appreciated that it has to be set right and even moved their seniors for permission to do so, the actual benefit did not flow to the applicants No.2 to 5.  This is the genesis of the OA filed by the applicants No.2 to 5 as early as on 12.10.2007.  During the intervening period, the official stand of the department remained that the applicants were not entitled to the relief that they sought.  On 29.5.2008, the respondents pleaded that the anamoly has arisen because of the instructions in para 3 of the OM dated 30-11-1993 issued by the DoPT.  Thus, with the leave of this Tribunal, the Department of Personnel & Training was also impleaded as Respondent No.4 on 29.5.2008. We are constraied to bring on record that the response from the DoPT was not forthcoming, so much so that the Bench had to record on 4.6.2010 as below:

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"........learned counsel for Respondent No.4 submits that inspite of his best efforts no objection statement is coming forth from the Respondent No.4 and that matter may be decided without the reply of Respondent No.4".

The situation did not improve till 7.7.2010 on which date, this Tribunal even had to consider whether Respondent No.4 needs to be summoned in order to elicit any response in the matter.  Even in respect of Respondents No.1 to 3, the Tribunal had to observe as under:

"3.       Similarly so when we have been loudly contemplating to issue summons to the Respondent No.1 to 3 too for their personal appearance to know the step taken by the 2^nd respondent or the first respondent in responding to the 3^rd respondent's letter dated 31-07-2007/03-08-2007 at Annexure-A22 page-50, equally the learned counsel Shri V.N. Holla for Respondents – 1 to 3 submitted a copy of this order also be furnished to him to take such appropriate steps as are necessary in view of the fact that the Bench seems to be not convinced inspite of his reference to the reply filed by R-1 to 3, especially with regard to the specific points raised in para-5 of this OA".

4.                  On 11.08.2010, seeing no improvement, this Tribunal ordered that on the next date of hearing, a responsible officer each not below the rank of Deputy Secretary must be present to represent Respondent No.4 (DoPT) and Respondents No.1 and 2 (Department of Mines) to explain as to why there has been delay until this date by such nil-response to this matter, to proceed further.  Under these circumstances as prayed for, 2 weeks' time us granted.  List on 24.08.2010 as PHC.  Still there was no response on 24.8.2010 and further on 27.09.2010, and the Tribunal was constraied to award a cost of Rs.2,500/- on the Respondent No.4.  The Tribunal also directed Respondent No.4 to file an affidavit to explain as to why they could not attend to the Tribunal during all these two years.  Finally, only on 30.11.2010, the say of

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Respondent No.4 was filed and only on 3.12.2010, the Deputy Secretary, Shri Mukesh Chaturvedi from the DoPT attended this Tribunal in compliance with the earlier order.

5.                     We find this entire attitude of the DoPT to be careless and callous to say the least. It appears to us that within the department, there may not be amy system for monitoring the progress and pendency of Court matters.  We are constrained to record that the prime department of the Govt. who has to set an example of good governance before other departments takes up its duty about following the rules of law so lightly.  It also shows their insensitivity to the issue of redressal of genuine grievances of their staff.  We hope that the Secretary of the Respondent No.4 department will take stock of the situation.

6.                   Finally, today the learned counsel for Respondents No.1 to 3 informed us that they have since received all the necessary clarifications from Respondent No.4 and have issued proper directions to Respondent No.3 guiding him how to settle the issue so as to give justice to the Applicants No.2 to 5.  To this effect, he has produced a copy of the OM No.18/17/2010-Estt.(Pay I), dated 24^th November, 2010, issued by the DoPT, addressed to the Ministry of Mines, New Delhi, along with a copy of the letter No.10(58)/2007-M.II, dated 25^th November, 2010, from the Respondent No.1 addressed to Respondent No.2 with a copy to Respondent No.3. 

7.                  Further,  learned counsel for Respondents No.1 to 3 prays for two months time to be granted for giving actual relief to the applicants in this OA. 

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Learned counsel for Respondent No.4 also reiterates the aforesaid prayer of Respondents No.1 to 3.  Learned counsel for the applicants has no objection thereto.  Under these circumstances two months time from this date prayed as above is granted.

8.                  The cost of Rs.2,500/- (Rupees two thousand five hundred only) awarded by this Bench on 27.09.2010, which is stated to be not yet paid by the Respondent No.4 to the applicants is also directed to be disbursed at the earliest and at any rate not exceeding the time limit granted hereinabove.

9.                  In the result, the OA is disposed of accordingly and as agreed above.

                        (LEENA MEHENDALE)                             (N.D. RAGHAVAN)

                                MEMBER (A)                                       VICE-CHAIRMAN

psp.

  

OA NO.281/2007 on ????? -2011

CENTRAL  ADMINISTRATIVE TRIBUNAL

BANGALORE BENCH:BANGALORE

ORIGINAL APPLICATION NO.281/2007

TODAY, THIS THE ......... DAY OF ...................., 2011

HON'BLE SHRI N.D.RAGHAVAN, VICE CHAIRMAN

HON'BLE SMT LEENA MEHENDALE, MEMBER (A)

Subramaniam,

S/o Nambi Andi,

Aged about 49 years,

Working as Chowkidar,

Air Force Technical College (403 AF Stn),

Jalahalli West, Bangalore - 560 015

Resident of NO1956, Ashwini Nilaya, 

Abhigere Main Road,

K.G.Halli, Jalahalli West,

Bangalore - 560 015.                                                                       ......   Applicant

(By Advocate Shri B.Veerabhadra)

                                                                        vs

1.The Union of India,

   Ministry of Defence,

   Represented by its Secretary,

   South Block, New  Delhi - 110 011

2.The Commandant,

    Air Force  Technical College (403 AT Stn).

    Jalahalli West,

     Bangalore - 560 015.                                                              .....   Respondents

(By Shri M.V.Rao, learned Senior Central Government Standing Counsel)

                                                            O R D E R

SMT LEENA MEHENDALE, MEMBER (A):

            This application is filed on 06-08-2007 under Section 19 of the Administrative Tribunals Act, 1985 and prays for the grant of second ACP. 

2.         The impugned orders are letter No. AFTC/1309/OA107/07/PC,                          dated 21.06.2007 (Annexure-A/3), and AFTC/1309/OA 107/07/PC  dated 23.07.2007 (Annexure -A/5)

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The specific reliefs prayed for are:

(i)  call for the relevant records leading to the issuance of the impugned letter in No.AFTC/1309/OA 107/07/PC dated 21.06.2007 (ANNEXURE-A/3) and letter in No,AFTC/1309/OA 107/07/PC dated 23-7-2007 (ANNEXURE-A/5) issued by the office of the 2nd respondent and on perusal.

(ii)    quash and set aside the impugned letter in No.AFTC/1309/OA107/07/PC dated 21-6-2007 (ANNEXURE-A/3) and letter in No,AFTC/1309/OA 107/07/PC dated 23-7-2007 (ANNEXURE-A/5) issued by the office of the 2nd respondent as arbitrary, discriminatory and void the reasons stated above.

(iii)       direct the respondents to consider the case of the applicant on par with his juniors and remove disparity and anomaly in the matter of pay and allowances between the applicant vis-a-vis his juniors namely Sri Narasimhallu, Sri P.Srinivasalu, Sri K.Penchaliah and Sri G.Vijayakumar.

(iv)       consequently, direct the respondents to draw all consequential benefits arising out the removal of disparity and anomaly in the matter of pay and allowances and

(v)        pass any other order or direction or any other relief as deemed fit by this Hon'ble Tribunal, in the interest of justice, equity and fairplay in administration"

3.          The brief facts stated in the OA are as below:

         The applicant was first appointed as Anti-Malaria Lascar and subsequently changed to Chowkidar with effect from 01.01.1978. After he was given in-situ promotion w.ith effect from 01.07.1994.

4       He was granted second financial upgradation with effect from 01.07.2006  subsequently he came to know that his juniors in the same grade in allied  cadres  such as Watchman,  Washer Up, etc. are  getting higher pay than him, made a representation dated 07.05.2006 at Annexure - A1 and  failing to get any relief,  he approached this Tribunal in  O.A.107/07.  This Tribunal passed its order dated 12.04.2007 at Annexure - A/2  directing the respondent department to dispose of

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the said representation within a period of 2 months from that date of the order.  Thus it was expected that the respondents would take a decision on the representation before June, 2007.  However on 21.06.2007 the respondents have rejected the applicant's representation vide Annexure-A/3.

             From the representation it is seen that he had enclosed for comparison the pay slip of one Shri Narasimhallu, Watchman pass no.Jal/2646 of AF station, Jalahalli West as well as drawn attention to the higher pay drawn by another employee D.Vijay Kumar, Washer.

          The reasons for rejecting the representation as seen from paras - 3, 4 ,5 and 6 of Annexure-A/3 are as below:

"3.       Shri Narsimhallu  was appointed in the trade of Safaiwala and later his trade was changed to Watchman on 06 May 82.  Whereas you were appointed in the trade of Anti Malaria Lascar (Seasonal) and trade was changed to Chowkidar on 01 Jan 78.

4.     Further, Shri Narsimhallu was not given any promotion during his service career.  As such he was granted 1st and IInd ACP on completion of 12 years and 24 years of regular service respectively.  Whereas, you were given 'in situ' promotion on 01 Jul 93 and pay scale was revised accordingly wef the same date.  Hence, you were not eligible for 1st ACP and was granted 2nd ACP on completion of 24 years of service wef 01 Jul 01

5.        Only after grant of 2nd ACP on 01 Aug 05 Shri Narsimhallu has been drawing one increment more than you and till 01 Aug 05 you have been drawing more pay than him.  ACP scheme is purely personal to the employee and shall have no relevance to his seniority position.  As such, as per condition No 8 in Annexure 1 to DOPT O.M dt 09 Aug 99 and also as per clarification No 27 in the Annexure to DOPT O.M dt 10 Feb 2000, there shall be no stepping up of pay for the senior employees on the ground that the junior employee in the grade has got higher pay under ACP scheme".

6.Comparison with Shri G.Vijay Kumar is not permissible as he belongs to other trade/cadre i.e Washer Up".

6.                                                                                                                                                                                Aggrieved, the applicant has approached this tribunal.  In the meantime

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the respondents had also issued another clarrification dated 23.07.2007 Annexure - A5 to the respondents stating as below:

"2.Shri Narsimhallu, Watchman, JAL/2646 is under the watchman cadre of 410 AF Station, Jalahalli whereas you are under the watchman cadre of 403 AF Station (AFTC).  The anomaly as claimed by you cannot be considered since the watchman cadre is a unit controlled cadre and not a centrally controlled cadre.  As such the comparison can be made only in respect of individuals of the same unit or station and not of different stations..  The provision as laid down under GOI order No (22) under FR 22 is not fulfilled.

3.A copy of the Office Order bearing Sl No 07/94 promulgating in-situ promotion granted to you on 01 Jul 93 is annexed as required by you"

                                                                      

7.        It is also seen from an internal communication dated 07.12.2006 which is an attachment to Annexure-A17 which states that

"Therefore it is clarified that option once exercised by the individuals at the time of pay fixation cannot be revised after the pay fixation as option exercised shall be final in terms of FR-22 GOI Decision No.19 ACDA has seen:"

        The same letter further comments that this clarification applies to the present applicant as well as many more similar cases.  Thus the applicant can not be given revised pay fixation in view of the earlier option exercised by him.

8.        The applicant prays for the redressal on the following main grounds; as seen from his application at para 5.2:

"5.2  It is evident from the Annexure A-6 that the applicant's pay , which he was drawing as on 1/7/94 was not fixed properly on a single elongated scale of pay of Rs.775-12-871-14-1025.  At the same time, the respondents have fixed the pay at Rs.1000/- w.e.f.1/4/95 in respect of Sri Pullaiah, 2552 - W/man as evident from ANNEXURE A-7".

            It is seen from an earlier office order dated 05.02.1994 (attached with Annexure-A/5) giving the pay fixation which includes present applicant at Sl. No.3, that  as many as 13 Chowkidars and other persons who were drawing the basic pay of Rs.940/- as on 01.07.1992 were similarly given in-situ promotion with effect

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from 01.07.1993 and the pay was fixed at Rs.969/-.  The reason shown in the said order is that  the pay of these employees on 01.07.1992 was Rs.940/- and one notional increment  of Rs.25/- was added  taking the pay to Rs.965/- and since this was in the middle of the pay scale stages, therefore the next stage in the new pay scale Rs.969/- was considered as admissible and this is how the new pay fixation was done at Rs.969/-.  This comparison clearly shows that this earlier pay fixation at Annexure - A6  in respect of the applicant puts him at par with other Chowkidars.  Thus, his claim is that the pay fixation done at Annexure-A/6 is incorrect.  The pay fixation as on 01.04.95 shows existing scale of pay as 775-12-871-14-1025/- and pay drawn as Rs.963/- w.e.f. 01.07.1994.  Hence, the new pay fixation on a single elongated scale of pay is shown as Rs.985/- w.e.f. 01.04.1995 and the next date of increment is shown as 01.04.1996. This is in contradiction with Annexure-A/7, the case of one Mr Pullaiah whose pay was Rs.983/- with effect from 01.04.1994.  After pay fixation of single elongated scale of pay it became Rs.1000/- with effect from 01.04.1995 and the next date of increment was 01.04.1996.  It is therefore clear that the anomaly has arisen due to clerical mistake and not out of wrongly opted choice of fixation. 

10.       In the reply statement the learned counsel for the respondents stated as below:

a) Para (1)  The applicant joined  as Anti Malaria Luscar with effect from 01.07.1977.   On   being surplus  in the establishment he was posted to Air Force Technical College (AFTC for short), Jalahalli West, Bangalore with effect from 01 Jan. 78 as Chowkidar.

b)  Para (5) He was granted in-situ promotion with effect from 01.07.1993 as his pay after promotion was fixed at Rs.969/- in the pay scale of Rs.775-12-871-EB-14-1025.

c)            Para (5)  It is argued that subsequently with effect from 01.04.1995, Government of India,MOD  vide its letter No.PC-15(b)/

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90/D (Civ - 1) dated 16  June 1995 had merged the Group D pay scales of Rs.775-1025  and Rs.800-1150 in to a single elongated pay scale of Rs.775-12-871-14-955 -15-1030-20-1150.  Accordingly the pay of the applicant was re-fixed @ Rs.985/ per month w.e.f 01 April 95.

d)  Para (6)  Whereas in the case of Shri Narsimhallu it is different.  He was given ACP on completion of 12      years and second ACP of 24 years  with regular service without granting in-situ promotion.  It is pertinent to mention till the grant of second ACP the applicant was drawing more pay.

e)  Para (7)  The ACP Scheme envisages those who have got in-situ promotion are not entitled to first ACP and are entitled to second ACP only on completion of 24 years of regular service.  The applicant was given second ACP with effect from 01.07.2001 which is the date of his completion of 24 years of service.

11.                                                                                                                                                                        The respondents have also gone on to compare the cases of other  similarly placed such as Shri Vijay Kumar and Shri Rafique Ahmed etc they have also suplied elaborate para wise comments, but have not examined Annexure-A/7 which gives details of Shri Pullaiah.

12.                                                                                                                                                                        It is noticed both from the written reply submitted as well as the points raised during the argument by the learned counsel for respondents that the department has not produced any paper to show that any option was asked from the applicant or that he gave any option regarding his pay fixation. Thus, the clarification given by official respondent at Annexure - A/17 does not apply.  It is true that they referred to an employee Shri Narsimhallu being junior by 4 years had drawn salary less than that of the applicant till he received the second ACP in 2005.  It is also true that the applicant himself received his second ACP in 2001.  However,  the pertinent issue, as we see from Annexure - A/6, A/7 and A/5 that the pay fixation at the time of revision by way of Annexure-A/6 itself is  wrong and appears to be a clerical mistake that the departmental Accounts people failed to detect.  Especially when

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compared with the pay fixation given to Shri Pullaiah whose pay has been fixed at a higher rate compared to that of the applicant  perhaps by giving one notional increment in terms of FR 22 of the CCS (CCA) Rules.  Since the respondents have not produced any comparison about how the fixation of pay on single elongated scale of pay was done in respect of other 12 Chowkidars mentioned in the list at Annexure-A/5, we have to consider only the comparison with Pullaiah at Annexure-A/7.

13.                                                                                                                                                                                          In view of this the OA is granted.  The respondents are directed to introduce necessary corrections to the order at Annexure - A6 dated 07.04.1995 by comparing it with the order at Annexure -A7.  The final distinction sought to be made relied upon by the respondent department for those posts of Chowkidar and Watchman and similar other Group - D posts is not relevant if there is mistake in fixing the pay at the time of in-situ promotion.

14.        The OA is allowed.  The respondent department will correct Annexure - A6 within 3 months of this order and also calculate the consequential financial benefits , the actual payment in terms of consequential benefits will be released within 2 motnhs there after and in any case before 30.11.2011

                                                    

              

                 (LEENA MEHENDALE)                                    (N.D. RAGHAVAN)

                        MEMBER (A)                                            VICE-CHAIRMAN

Pm/psp.

RA NO.11/2012 in OA 245/2009 ????-2012

CENTRAL ADMINISTRATIVE TRIBUNAL

BANGALORE BENCH, BANGALORE

DATED THIS THE                DAY OF ..............,

REVIEW APPLICATION NO.11/2012

IN

ORIGINAL APPLICATION NO.245/2009 

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

HON'BLE SHRI V.AJAY KUMAR              ...         MEMBER(J)

Vinod Kumar Narula,

S/o Harbans Lal Narula,

Aged about 58 years,

Working as Junior Stenographer,

O/o The Director,

Central Food Technological Research Institute,

(Council of Scientiflc and Industrial Research),

Mysore – 570 020.

R/of No.132-B, Pocket-6, MIG Flats,

Mayur Viohar Phase-III, Delhi – 110 096

(presently camping at Bangalore)                        ...                     Applicant

(By Advocate Shri Izzhar Ahmed)

1. The Director,

   Central Food Technological Research Institute,

   (Council of Scientiflc and Industrial Research),

   Mysore – 570 020.

2. The Director General,

   Council of Scientific and Industrial Research,

   Rafi Marg, New Delhi – 110 001.

3. The Union of India,

   Ministry of Science & Technology,

   Rep. by the Secretary,

   Technology Bhavan,

   New Mehrauli Road,

   New Delhi – 110 016.                               ...                                 Respondents

O R D E R  (BY CIRCULATAION)

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

            This R.A. is filed under Section 22(3)(1) of the Administrative Tribunals Act, 1985, seeking review of the order dated 14.12.2011 passed in OA No.245/2009, by mentioning the grounds in paras 4 to 9. 

2.         MA 164/2012 is also filed for condoning the delay in filing the R.A.  The saie is allowed.

3.         In brief, the applicant being Junior Stenographer to the Head of Office, was chaged sheeted in 1989, on the ground that he failed to maintain absolute integrity by accepting an amount of Rs.5,000/- as a motive for doing certain acts of omission and commission to favour 3 firms whose samples had been presented to CFTRI for testing.  The incident is supposed to have taken place in 1981, a criminal case was registered which was finally disposed of by Tis Hazari Court, Delhi, in 2009.  In the meantime, the departmental enquiry had proceeded and he was dismissed in 1986.  Hence, in 2009, he approached the Respondents for being reinstated and when the same prayer was not acceded to, he filed OA No.245/2009 praying for setting aside the 1986 order of the Disciplinary Authority and the 1988 order of the Appellate Authority.

4.         We had gone through all the facts and the grounds mentioned in the application and passed the order dismissing the OA.  We had also mentioned that the enquiry conducted by the Inquiry Officer was a detailed and thorough enquiry and that the order passed by the DA and the AA were both reasoned orders with due application of mind.  On receipt of the RA, we have once again perused the grounds mentioned from paras 5.1 to 5.8 and we observe that those points were totally taken into account while passing the order dated 14.12.2011.  Now, in the RA, some new grounds at para 2(a) to 2(d) are raised.  He is not entitled to raise new grounds in the RA.

5.         The provisions for review is not meant for reiterating the grounds that were already raised in the OA.  The scope and power of the Tribunal is clearly defined under Sec.114 read with Order 47 Rule (1) CPC and it is limited to correction of the patent error of law or fact which stares in the face without any elaborate argument being needed to establish. 

6.         It has been held by the Hon'ble Apex Court  in Ajik Kumar Rath Vs. State of Orissa and Others  - (1999) 9  SCC 596 held that “power of review available to the Tribunal under Section 22(3)(f) is not absolute  and is the same as  given to a court under Section 114 read with Order 47  Rule 1 of CPC”.  It has further held that “the scope of review is limited to correction  of a patent error of law or fact which stares in the face, without any elaborate argument being needed to establish it” and that “exercise of power of review on a ground other than those set out in Order 47 Rule 1 amounts to abuse of liberty granted to the Tribunal and hence review cannot be claimed or asked merely for a fresh hearing or arguments or corrections of an erroneous view taken earlier”.

7.         In Union of India Vs Tarit Ranjan Das – 2004 SCC (L&S) 160 – the Hon'ble Apex Court held that the scope of review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits”.

8.         In State of West Bengal and Others Vs. Kamal Sengupta and Another – (2008) 8 SCC 612 – Hon'ble Apex Court after referring to Ajit Kumar Rath's  case (supra) held that an order or decision or judgement cannot be corrected merely because it is erroneous in law or on the ground a different view could have been taken by the Court/Tribunal on a point of fact or law and while exercising the power of review the Court/Tribunal concerned cannot sit in an appeal over its judgment/decision”.

9.         The Review Applicant has failed to show any valid reason while seeking to invoke the review jurisdiction of this Tribunal.  If the applicant is aggrieved by the orders of this Tribunal on the ground that the same is erroneous, his remedy lies elsewhere but not a review as held by the Hon'ble Apex Court.

10.       In view of the above we do not find any valid ground to entertain the RA and accordingly the same is dismissed.

                        (V.AJAY KUMAR)                            (LEENA MEHENDALE)

                            MEMBER(J)                                          MEMBER(A)

psp.

*** OA No.384 OF 2008 -- my dissent --incomplete on - ?????

ORIGINAL APPLICATION No.384 OF 2008

O R D E R

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

            I had the benefit of going through the judgment of my learned Brother. I agree in principle with the observations made upto para 15, with due resect, I disagree with his conclusion for the following reasons.  As the facts of the case has adequately been dealt with by my learned Brother, I confine myself to the limited paras only.  Accordingly, I give my views as under.

2.         My brother has dealt with the first 3 grounds raised by the learned counsel for the applicant and I am in agreement with him.

3.         The 4^th ground raised by the learned counsel for the applicant is that the Disciplinary Authority has imposed both major and minor punishments for the same charge which is illegal as held by the Hon'ble Supreme Court in Union of India & Ors. Vs. S.C. Parashar – 2006 (3) SCC 167.  The learned counsel would, for the purpose of his arguments, label the recovery of Rs.50,400/- from the salary of the applicant under Rule 11 (3) of CCS (CCA) Rules, 1965, as minor penalty in addition to the major penalty imposed by the Disciplinary Authority, viz., reductiion of pay by two stages for a period of 7 years without cumulative effect.  Hence, it is necessary to examine the actual order passed by the Disciplinary Authority (DA) and also the purport of the cited judgment.  However, the DA has not used the words minor penalty, nor does he mean to do so.

4.         The Disciplinary Authority has passed the order of punishment vide his order No.F-4/2-9/ASK/94-95, dated 31.03.2003 (Annexure-A/5).  The Article of charge reads:-

            "That the said Sri A.S. Koodalgi while working as P.A. Shahabad H.O., during the period from 10.6.91 to 21.4.94 has obtained a SB-3 (application for opening of an account) bearing the signatures of other than the real depositors Sri Gurushanthappa and Sri Malleshappa which was inserted in place of revised SB-3 obtained at the time of conversion of Shahabad HO SB a/c No.379583 into 'joint B' on 17.9.92 which facilitated the fraudulent withdrawal of Rs.100/- on 6.4.93 and Rs.78600/- on 10.4.93 in the said SB account No.379583."

5.         Thus, the charge is of fraudulant withdrawal of money kept with the Postal Department by unsuspecting clients and of failure to maintain absolute integrity.  The Disciplinary Authority has discussed the findings of the Inquiry Officer and his own views in detail and observed that the embezelled amount, when compounded with interest and penal interest came to Rs.1,51,571/-, out  of which, a sum of Rs.50,400/- alone has been ordered to be recovered from the applicant and the remaining amount has been recoveed from other connected officers.  Hence, he has passed the following orders:

            "I, G.S. Ghooli, Sr. Superintendent of Post Office Gulbarga Division, Gulbarga do hereby order that the pay of Sri A.S.K. Koodalgi P.A. Aland be reduced by 2 stages from Rs.4400/- to Rs.4200/- in the time scale of pay of Rs.4000-100-6000 with effect from 01.04.2003 for a period of 7 years without cumulative effect.  During the currency of punishment of reduction the official is not entitled to earn increments of pay and after expiry of the period will not have the effect of postponing the increment.  Further order that an amount of Rs.50,400/- is recovered from his pay in 36 equal instalments starting with effect from April 2003."

6.            It is seen from the above wording that DA has ordered only one punishment, viz., reduction of salary by 2 stages for a period of 7 years without cumulative effect.  It is specifically noted that he has not labelled the recovery of Rs.50,400/- as a punishment as the learned counsel for the applicant would like to label.  It is well known in the administrative parlance that recovery of government money is merely the recovery in favour of the rightful owner from a wrongful possessor and a simple recovery of government money does not preclude the government from proceeding against a delinquent official by way of departmental inquiry.  This is what has been done here and it is not correct to label the recovery as a punishment.  This event is similar to a thief stealing someone's property.  If such a thief is convicted and undergoes imprisonment, the fact of his imprisonment does not entitle him to retain the stolen property.  In the instant case, the money is belonging to the clients of the Postal Department, who come from a category called "a common man".  This client's property was embezelled and fraudulantly withdrawn and must be restored to the rightful owner and the only way to do so is to recover it from the person who fraudulantly withdrew it.

7.         It is also pertinent to note that a Disciplinary Authority is not a judicial official trained in exact legal terminology.  While acting as a Disciplinary Authority, he may not have used the exact legal terminology. Even in respect of procedure, he may have made minor deviations as compared to the strictest technicalities followed by the judicial authorities.  It is his bounden duty to be judicious, unbiased and transparent which we find, he has been. When he passes an order, such an order must be a well reasoned order. Perhaps, it may be said that the Disciplinary Authority could have merely mentioned that a separate order regarding recovery will be passed and could have passed separate order.  However, even that would have the propensity of being challenged as a second punishment.  Therefore, when it is the bounden duty of the Disciplinary Authority to also recover the government money, we feel that by all standards of judiciousness and transparency and reasoning, he has done it rightly to mention about the recovery in the same order in which he has mentioned about the punishment for the charge of failure to maintain absolute integrity.  The government money has to be recovered in all instances, but, particularly so, when it is taken away by fraud.  Failure to appreciate this would result in all types of scams.

8.         Now coming to the judgment of the Hon'ble Supreme Court in S.C. Parashar case supra.  The details of the case are as below:

     

      The respondent employee was a Deputy Commander of the CRPF.  He allegedly drove the Maruti Gypsy vehicle which was given to him for performing official duties, unauthorisedly and at a very high speed beyond his jurisdiction and met with a serious accident when the said vehicle collided with a stationary truck.  In a inquiry conducted in pursuance of a charge sheet issued for major penalty, his misconduct was proved.  While observing

“it is trite that even in a case where the procedure is followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed.” 

The Hon'ble Apex Court further held  as follows:

“12.     The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty.  The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p. i.e., Rs.18,585.47p., on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments.  Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii)(a) thereof.  The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order.  Such a course of action could not have been taken in law.

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      We, therefore, in modification of the order of the High Court hold that the punishment which could have been imposed upon the respondent herein was reduction of pay for a period of three years with cumulative effect and, thus, if his case is considered for promotion after the said period, no further direction is required to be issued.  We set aside the directions of the High Court to the effect:

      “The petitioner shall be entitled to the seniority on the basis of DPC which was held on 7-4-1997 when his immediate junior was promoted to the rank of Second-In-Command.  The petitioner shall also be entitled to all consequential benefits which stood denied due to punishment of loss of seniority”, and direct that the punishment shall be reduction  of pay to the minimum of the timescale of  pay for a period of three years with cumulative effect.”

9.         A reading of the above decision reveals that in addition to the major penalty of reduction to the minimum of the time scale of pay, another penalty viz., loss of seniority was also imposed and this goes against the principle of Rule 11 of CCS (CCA) Rules, 1965.  Therefore, it appears that the punishment was liable to be quashed.  It is seen that the Hon'ble Apex Court has also listed recovery of 25% of the loss incurred by Government on account of damage to the Gypsy vehicle under the lable of additional minor penalty.  It is noteworthy, however, that while modifying the order of the High Court, the Hon'ble Apex Court, in its operative portion of the judgment at para 16, has not commented upon the recovery.  They have quashed the additional minor punishment concerning the loss of seniority, but, have not directed to stay recovery.

10.       The judgment of Hon'ble Punjab & Haryana High Court in R.S. Panwar Vs. Food Corporation of India & Ors. In SA No.400/2008 and 1898/2009 decided on 8.3.2010, is also based on the judgment in the S.C. Parashar case supra.  Hence, I do not find it necessary to deal with it separately.

11.       In view of the above, and since myself and my learned brother do not find merit in the first 3 grounds argued by the applicant, I am of the opinion that there is no merit in the OA and the applicant must pay back the money taken by him by fraud in addition to undergoing the punishment as imposed by the Disciplinary Authority.

12.       Hence, the OA is dismissed without costs.

                                                                                                (LEENA MEHENDALE)

                                                                                                       MEMBER (A)

psp.