Sunday, July 14, 2013

Bom OA No 743/2011 on 08-05-2013

Bom  OA No 743/2011 on 08-05-2013


CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION  NO:- 743 of 2011


Dated this  Wednesday, the 8th day of May, 2013


CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)


Shyam C. Moorjani,
S/o Shri Choithram T.Moorjani,
R/o E-2, M.T.N.L. Staff Qtrs.
S.V.Road, Goregaon (West),
Mumbai-400062
Presently Posted as Executive Engineer (Civil),
Planning in the O/o DGM Civil Planning, MTNL,
Bandra Mumbai, 400050                     ... Applicant


(By Advocate Shri S.K.Gawade)


VERSUS


1. Director (HR),
MTNL Corporate Office,
Jeevan Bharati Tower-I,
124, Connaught Circus,
New Delhi- 110 001

2. The Chief Engineer (BW)
MTNL, 8th Floor,
Bandra Telephone Exchange,
Bandra (West),
Mumbai 400050    ... Respondents


(By Advocate Shri R.R.Shetty)


O R D E R  (ORAL)

Per : Smt. Leena Mehendale, Member (A)

In this OA filed on 17.11.2011, the applicant is challenging the charge-sheet issued to him on 19.08.2011 (Annexure A-1).  He had earlier approached to this Tribunal in OA No.611/2011 dated 19.09.2011 and it was directed that the Disciplinary Authority should take a decision on the representation of the applicant dated 12.09.2011.  Accordingly, the Disciplinary Authority  considered the representation and issued order dated 21.10.2011 (Annexure A-11) rejecting the representation.  Hence, the present OA is filed once again challenging the charge-sheet.  The challenge is mainly on the ground of delay.  Although, the learned counsel has mentioned the ground of malafide, he has not explained that, how the Disciplinary Authority can have any ground of malafide against him.  Hence, the only question is before us is to see, what is the delay, how it is explained by the respondents and whether it is causing any jeopardy to the applicant, if he is required to undergoes the enquiry.

2. The charge-sheet reveals that the charge is of improper and poor supervision at the sight, when the applicant was Assistant Engineer (Civil) and was entrusted with the supervision of construction work of two buildings named Ganga and Yamuna, both having grounds plus seven structures and having the tender amount of around Rs.1.5 crores.  The construction began in 1993, when the applicant was the In-charge Assistant Engineer.  He was transferred in 1994, when buildings were somewhere half-way through and they were completed in 1995.  In the Reply statement, the respondents have elaborately explained the chronology of events from where it is seen that the buildings were completed in June, 1995 and were made available for occupation in 1996. Cracks developed and first noticed in the structure within 5 years. A committee of MTNL & BSNL  was formed, who also took the consultation of VJTI being an expert body.  The report of the VJTI was available in July, 2003. After that rehabilitation work was undertaken in 2005,  which was completed on 2007 but apparently did not succeed.  However, the matter was referred to Chief Technical Examiner, CVC, who inspected the building and gave the inspection report in 2008 and also advised that the matter may be referred to higher technical body such as Structural Engineering Research Centre (SERC), Chennai.  Final report of SERC was available in 2009, whereafter permission from the CVC was taken to issue the charge-sheet and CVC concurrence was available in December, 2010 and the charge-sheet was issued to the present applicant as well as two other Junior Engineers, who were Junior to the present applicant on 19.08.2011, but were also entrusted with routine supervision, on site.

3. The learned counsel for the applicant has pleaded that the delay of 18 years between 1993 to 2011 is an inordinate delay and, therefore, the charge-sheet should be quashed. He has produced several citations, but relies mainly on (i)R.V.Bansal Vs. The Commissioner MCD, 2010 (1) AISLJ, 147 (CAT), (ii) P.V.Mahadevan Vs. M.D. Tamil Nadu Housing Board, 2005 (6) SCC 636 and (iii) Ashok Aggarwal Vs. Union of India, OA No.1202/2008 decided by CAT, Principal Bench on 20.03.2009.  All these three, deals with engineering aspects of construction.

4. The learned counsel for the respondents would rely mainly on State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570, which deals with the question of delay as under:-
“how long a delay is too long always depends upon the facts of the given case.  Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted”.

5. We, therefore, have to consider, whether the delay will cause any prejudice or jeopardy to the applicant.  We observe that, this is a matter, where record of the construction is kept on week to week basis for the purpose of releasing provisional payments to the contractors.  The IO will therefore be referring to such documents and the applicant would also be  allowed to refer to them. Whether, the charge-sheet of poor supervision in the RCC structure is tenable or not can be examined only by a proper enquiry officers, who has the Technical knowledge of the field. Since the Disciplinary Authority is relying upon several registers, which were maintained during the construction and the reports of various committees, who commented upon the quality of the constructions, the applicant would be in a position to use the same documents for his defence too. The applicant is still in service and having received his due promotions from time to time, he has presently working as Executive Engineer.  Hence, it is not a case, where he would have forgotten his basic engineering knowledge, which might cause jeopardy in defending himself.

6. We also find that the applicant had made a representation to the Disciplinary Authority as per the directions given by the Court in OA No.611/2011.  That long representation mainly contends the technical aspects of this case, but did not put thrust on the ground of delay.  In the present OA, he has taken the ground of delay, but it is not explained as to how, the delay will be prejudicial to him in defending himself in the Departmental Enquiry.

7. We find from the case of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha, the following principle regarding D.E., delay and gravity of misconduct:

“13. Thus, the law on the issue can be summarized to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues.  Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”

8. In view of the above discussion, we conclude that the charge-sheet cannot be quashed at this stage and the applicant should go through the enquiry.  At the request of the learned counsel for the applicant, we direct that the Disciplinary Authority will ensure that the enquiry including the order by the Disciplinary Authority is completed within six months from the date of receipt of this order.  It is further undertaken by the learned counsel for the respondents that all the documents referred to in Annexure A-3 to the charge-sheet will be made available to the applicant within two weeks.  The applicant should cooperate in the enquiry and not delay it from his side. The enquiry officer should conduct the enquiry as far as possible on a day to day basis, so as to complete it speedily.

9. With these observations, the OA is dismissed. No order as to costs.



(Smt. Chameli Majumdar)                          (Smt. Leena Mehendale)
         Member (J)                                               Member (A)


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Bom OA No 619/2011 on 02-04-2013

Bom OA No 619/2011 on 02-04-2013


CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION  NO:-619/2011

Dated this   Tuesday the 2nd day of April, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)

Shri Pramod Vishwanath Panchal,
S/o Late Vishwanath Kashinath Panchal (TM)
Moti Nagar, Kanheri Road,
Near Supari Hanuman,
Latur 413 512               ...Applicant

(By Advocate Shri K.R.Yelwe)

Versus


1. The Chief General Manager,
Telecom, Maharashtra Circle,
Bharat Sanchar Nigam Ltd,  
3rd floor, 'B', Administration Section
BSNL Complex, Juhu Road,
Santacruz, (W), Mumbai 400 054

2. The General Manager, Telecom,
O/o the General Manager, Telecom,
Bharat Sanchar Nigam Ltd.
Latur 413 612

3. The Deputy General Manager,
O/O the General Manager, Telecom,
Bharat Sanchar Nigam Ltd.
Latur 413 612          ....Respondents

(By Advocate Shri V.S.Masurkar)


ORDER - ORAL

Per : Smt. Leena Mehendale, Member (A)

Heard both the counsel for a while.
2. This is a case for compassionate appointment where the father of the applicant died while in service on 24.12.2005 and an application was made for compassionate appointment in 2006, but was rejected and the same decision communicated to him by letter dated 23.10.2008 (Annexure A-1). The OA has been filed on 28.04.2011 and an application for condonation of delay has been filed on 12.08.2011 without mentioning any satisfactorily reason. The MA No.580/2011 simply mentions that the applicant was unaware/ignorant of law and after he came to know the availability of judicial forum there was a financial difficulty. Both this points do not satisfy us. We do not see any merit for condoning the delay for three years in a case of compassionate appointment. The scheme of compassionate appointment was designed to take care of the immediate financial shock suffered by the family of the deceased person due to sudden death of an earning hand. Hence, the delay in this matter cannot be condoned.
3. The OA is, therefore, dismissed. No order as to costs.


(Smt.Chameli Majumdar)            (Smt.Leena Mehendale)
  Member (J) Member (A)  


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Bom OA No 575/2011 on 11-02-2013

Bom OA No 575/2011 on 11-02-2013

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION NO.575/2011

Dated this Monday the 11th day of February, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE,  MEMBER (A)

Shri G.K.Solanki CMD, Gr.II
in the office of The Chief Engineer,
Bhopal Zone, Bhopal (M.P.)
residing at:Room No.10,
Sudama Cottage, Lala Nigam Rd.
Colaba, Mumbai 400 005    - Applicant

(By Advocate Shri K.R.Yelwe)            

Versus
1. Union of India
through the Secretary to
the Government of India,
Ministry of Defence,
Raksha Bhavan,
New Delhi-110 001

2. The Chief Engineer (Navy)
26, Assaye Building, Colaba,
Mumbai- 400 005

3. The Commander Works Engineer (NW)
Dr. Homi Bhabha Road, Navy Nagar,
Colaba, Mumbai- 400 005

4. The Chief Engineer Bhopal Zone,
Sultana Infantry Lines
Bhopal (M.P.) 462 001 - Respondents

(By Advocate Smt. H.P.Shah with Shri S.G.Pillai)      


O R D E R (ORAL)

Per :  Smt. Leena Mehendale , Member (A)

   This OA filed on 05.07.2011 is on simple point for getting HRA.  The learned counsel for the applicant submits that the applicant was occupying private accommodation till September, 2002 and was getting HRA. Thereafter, from October, 2002 onwards till August, 2010, he did not receive any HRA and did not make any application to the office to claim that he is entitled for HRA.
2. Hence, this OA, which is filed on July, 2011 after a long time, lacks any justification. Further it appears from R-1 that the respondents had alloted one accommodation to the applicant which is described as unclassified accommodation No.T-56-1-A and he moved to this accommodation on 7th October, 2003.  Obviously, he must have done it for the advantage of not having to occupy a private accommodation.  Today, after more than 10 years the applicant comes to argue that the said accommodation be called “Hut” and, therefore, the fact that he continued to occupy it should not come in his way of getting HRA.
3. This argument can hardly be accepted. The applicant was fully aware of what he was occupying when he accepted the said allotment and in any case, he cannot raise a claim after more than 10 years and after getting whatever small or big benefits of occupying the said accommodation.
4. The OA is, therefore, dismissed. No order as to costs.

(Smt. Leena Mehendale)
Member (A)                            

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Bom OA No 520 of 2011 on 13-03-2013

Bom OA No 520 of 2011 on 13-03-2013

CENTRAL ADMINISTRATIVE TRIBUNAL                                              
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION  NO:- 520/2011

Dated this  Wednesday the 13th day of March, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)

Shri Shashank Vasantrao Borawar,
Upper Division Clerk in the
O/o. Defence Estate Office,
Rajendra Singhji Road, Pune – 411 001
R/o. Flat No.22 Laxmi Angan
Subhash Nagar, Vishrantwadi
Pune – 411 015              ...  Applicant

(By Advocate Shri V.B.Joshi)

        Versus

1. Union of India through
The Director General DE
Ministry of Defence
Raksha Bhavan,
New Delhi – 110 010

2. Principal Director of Defence Estates
Ministry of Defence, Southern Command
Pune – 411 001      ....Respondents

(By Advocate Shri S.G.Pillai)

O R D E R  - ORAL

Per : Smt. Leena Mehendale, Member (A)

When the matter has come up for hearing, the learned counsel for the applicant submits that he has instructions to withdraw the OA.
2. Accordingly, the OA is dismissed as withdrawn.


(Smt.Chameli Majumdar)            (Smt.Leena Mehendale)
  Member (J) Member (A)  

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Bom OA 442 of 2011 on 15-03-2013

Bom OA 442 of 2011 on 15-03-2013

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION No.442/2011

Dated this Friday, the 15th day of March, 2013.

CORAM: HON'BLE SMT LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT.CHAMELI MAJUMDAR, MEMBER (J)

Ms. Sushama V. Dabak,
Principal Accountant General
(Audit), Haryana,
Plot No.5, Dakshin Marg,
Sector-33-B,
Chandigarh-160020.

R/at B-5, Bagyoday,
Linking Road Extension,
Santacruz (W),
Mumbai 400 054.     ...   Applicant

(By Advocate Shri R.R. Shetty)

VERSUS

1. The Union of India,
through The Comptroller and
Auditor General of India,
    10, Bahadur Shah Zafar Marg,
  New Delhi 110 124.

2. Shri Gautam Guha,
Director General of
Audit Defence Services,
L-II Block, Brassey Avenue,
New Delhi 110 001.

3. G.N. Sunder Raja,
Pr. Accountant General (Civil
& Coml Audit), Kerala,
Thiruvananthapuram 695 039. ...   Respondents

(By Advocate Shri V.B. Joshi)

O R D E R
Per: Smt. Leena Mehendale, Member(A)
      This Original Application has been filed on 10.05.2011 under Section 19 of the Central Administrative Tribunals Act, 1985 with the main prayer as below:-
“(a)  This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the impugned communications dated 21.4.2010, 21.09.2010 & 17.01.2011.

(b)  This Hon'ble Tribunal may further be pleased to direct the Respondent that the ACRs of un-communicated years be ignored by the DPC and if the Applicant therein was found to be fit for promotion by the DPC, she was to be promoted from the date her immediate junior was promoted in the grade of PAG (Principal Accountant General) w.e.f. 29.5.2008 with restoration of her seniority over her junior officers.  With all consequential benefits such as arrears of pay with interest.”
2. Brief facts as stated by the Applicant are that the Applicant was due for promotion as PAG (Principal Accountant General) but was denied the same while two of her junior officers were promoted by the impugned order dated 29.05.2008 (Annexure A-10 and A-11).  They are not impleaded as applicant has nothing against their promotion.  Annexure A-7 the seniority list of Group 'A' Officers of Indian Audit and Accounts Department as on 01.08.2007, and applicant's name appears at Sl.No.70 whereas the two junior colleagues appear at Sl.No.71 and 72, hence it cannot be denied that she is senior.  On coming to the knowledge of promotion orders in Annexure A-10 and A-11 she realized that a DPC (Departmental Promotion Committee) held for this purpose on 26.05.2008 has not considered her fit for promotion as PAG, she made a representation dated 02.06.2008 (Annexure A-12) which was rejected by the Assistant CAG (Assistant Comptroller and Auditor General) of India vide his letter dated 19.06.2008 (Annexure A-14) on the ground that the DPC did not find her fit for promotion with reference to the prescribed benchmark.  It is pertinent to note that as per O.M.F.No.35034/7/97-Estt(D) dated 08.02.2002 (Annexure A-6), a benchmark of “Very Good” in ACR alone will make candidate eligible for promotion.  However, no ACR remark was communicated to her prior to the date of DPC so as to alert her that her performance was below the benchmark.  Hence she filed O.A.No.410/2008 before Bombay bench of CAT.  During the pendency of that O.A., the Government of India issued Notification O.M.No.21011/1/2005-Estt(A)(Pt-II) dated 14.05.2009 directing that the ACR (Annual Confidential Reports) be renamed as APAR (Annual Performance Appraisal Reports) and that copy of that APAR be provided to the concerned officials.  It is important to contrast the new O.M. With the earlier practice of not communicating the ACRs unless they contained an “adverse” entry.
3. It is further stated by the Applicant that she also made query under RTI (Right to Information Act) on 14.03.2009 which was partly allowed to the extent that she could go through the file of APAR and read and note the remarks.  This is how she noted that out of her past 5 years' APARs there were two remarks that could be construed as below the benchmark as they mention her performance as “Good”.
4. Under these facts the Applicant challenges the order dated 29.05.2008 in respect of Respondent Nos.2 and 3 and also the communications dated 21.04.2010 (Annexure A-1), 01.09.2010 (Annexure A-2 and 17.01.2011 (Annexure A-3) all rejecting her applications to give her promotion as PAG with effect from 29.05.2008.
5. The Applicant submits a chart for the grading given to her by the Reporting and Reviewing Officers as noted down by the Applicant from which it is seen that her grading from 01.06.2003 to 01.01.2004 and again from 03.02.2006 to 31.01.2007 that is 6 months in the first instance and 7 months in the second instance have come as “Good”.  The second entry for 7 months has been modified by Reviewing Officer as “Very Good”.  It is also seen that through out the period from 01.04.2002 to 31.03.2007 it is the same Reviewing Officer Mr.Kaul, the CAG.  We reproduce the chart here:-
Sr.No
Period covered by ACR
Status
Grading by Reporting Officer(Name)
Grading by Reviewing Officer

1.4.2002 to 30.6.2002
Gapsheet


2

1.7.2002 to 31.12.2002
6 Months
Very Good- Khandelwal-ADAI
Very Good-CAG Kaul
3

01/01/03 to 31.3.2003      
3 Months
Very Good- N Sundarajan ADAI
Very Good- CAG Kaul
4
1.4.2003 to 31.5.2003
Gapsheet


5
9.6.2003 to 1.1.2004
6 Months
Good- Satyamurthy ADAI
Good CAG- Kaul
6
1.1.2004 to 31.3.2004
3 Months
Very Good- Ganapathy
Very Good  CAG-Kaul
7
1.4.2004 to 18.10.2004
7 Months 17 days


8
19.10.2004 to 31.3.2005
5 Months 13 days
Outstanding- Sriniwasan
Very Good Kaul
9
1.4.2005 to 26.9.2005
About 6 months
Very Good- Sriniwasan
Very Good Kaul
10
27.9.2005 to 31.3.2006
6 months
Very Good- Basu
Very Good Kaul
11
1.4.2006 to 3.7.2006
3 months
Very Good- Basu
Good
12
3.7.2006 to 31.1.2007
7 months
Good Bhattacharya
Very Good- CAG Kaul
13
1.2.2007 to 31.3.2007
Gapsheet


6. It is also submitted that even though the DPC of 29.05.2008 did not consider her to be “fit” for promotion, the next DPC after one year held on 30.07.2009 found her suitable, and in so doing they were bound to ignore the remark of “Very Good” received for 2002-2003 and take into consideration the remark for 2007-2008 and must have noticed the same “Good” ACRs given to her for part period in 2003-04 and 2006-07.  Thus, if she is “fit” by the DPC standards for  2009, then she must also be “fit” for the DPC of 2008.  Hence she must be held eligible for promotion even for a purpose of DPC of 2008.
7. Another ground raised by the Applicant is that the O.M. dated 08.02.2002 declares that “Very Good” will be the benchmark for promotion.  It is, therefore, obvious that an entry of “Good” will adversely mar the prospects of promotion which are so crucial for any officer of her rank and, therefore, must be communicated.  The DOP&T after declaring “Good” to be below the benchmark should also have notified that a “Good” remark should be communicated, just as a remark of 'adverse' or 'average' was communicated in the earlier era.  The Applicant cites the Hon'ble Supreme Court's judgment reported in 2008 (8) SCC 725, Dev Dutt Vs. Union of India in which it was held -

“10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from “good” to “very good”. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (through of course in a fair manner), but at least an opportunity of making such representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was done in this case. Hence, we are of the opinion that the non-communication of the “good” entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.”

11. ....Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.

45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.”
Finally,
“whether an entry is adverse or not, depends upon its actual impact on employee's career and not on its terminology So even a “good” entry can be adverse in the context of eligibility for promotion.”

This judgment has been delivered on 12.05.2008 that is before the DPC took place on 26.05.2008.

8. The learned counsel for the Applicant also cited the judgment of N.K.Bhola Vs. Union of India & Others in O.A.No.2330/2009 decided by the Principal Bench on 11.01.2010. The PB has relied on the judgment in Dev Dutt Vs. Union of India and given relief to the Applicant of that OA who also had not met the benchmark of “Very Good” for the preceding 5 years but had been graded as “good” which was below the benchmark but which was not communicated to him.  Accordingly, the Respondents of that OA were directed to hold a review DPC for considering the Applicant for promotion from previous years. The Principal Bench also directed the Respondents to ignore the non-communicated “below the benchmark remarks” as well as down-graded ACRs and directed to consider the ACRs of earlier period to find out the suitability and fitness of the Applicant.
9. The Applicant also refers to another batchmate Shri Balvinder Singh who appears at Sl.No.63 of the seniority list at Annexure A-7 who was given promotion by order dated 24.09.2010 but the said order was modified on 27.09.2010 and Shri Balvinder Singh was given notional promotion in the rank of PAG with effect from 29.05.2008 which is the date of promotion as PAG for his immediate junior Shri Rakesh Jain. His case however appears to be irrelevant. The reason for giving retrospective promotion to Shri Balvinder Singh with effect from 29.05.2008 appears to be the fact that he was on study leave w.e.f. 01.08.2007.  This does not appear to be a case of denying promotion on ground of below benchmark entry.  His notional promotion is as per exact rules.
10. The Argument of the Respondents Department is that as per the O.M. dated 18.02.2008 it is provided that the benchmark of “Very Good” should be achieved in all ACRs of 5 years under consideration and these instructions have come in force for the panel year 2008-2009.  Accordingly DPC held on 26.05.2008 did not find the Applicant suitable in view of some of the APARs marked as “Good”. The Applicant had filed O.A.No.410/2008 before Mumbai Bench to claim her promotion with effect from 29.05.2008 but took permission to withdraw the same as she was promoted to PAG with effect from 31.07.2009.  She then filed another O.A.No.946/2011 before the Principal Bench for same relief but again took permission to withdraw it with liberty to file OA at the Bombay Bench. Accordingly, the present O.A.No.442/2011 has come to be filed for the same relief and hence the Applicant is now estopped for claiming the same relief by way of challenging DPC decision of 2008.  Similarly, the issue of delay will also arise since the Applicant is challenging the letter dated 21.04.2010 through the present O.A. which is filed on 10.05.2011.
11. On the question of merit, the Respondents submits that the decision in the case of Dev Dutt vs. Union of India is under consideration of the Larger Bench of the Hon'ble Supreme Court and is contrasted with the judgment in-
2006 (9) SCC 69 the matter of Satya Naraain Shukla Vs. Union of India and

2008 (9) SCC 120 K.M. Mishra Vs. Central Bank of India.

The Respondents also cited SLP(C) 29515/2010 in the case of Union of India Vs. Uttam Chand Nahta     by which both the parties have been directed to maintain status-quo in view of the issue being pending before the Larger Bench.
12. On merit the Respondents also claim that in terms of earlier O.M. of DOP&T No.21011/1/2006-Estt.(A) dated 28.03.2006, only “adverse” remarks in the ACR were necessary to be communicated. The over all grading was not required to be communicated even if such grading was below the benchmark assessment for promotion. It is only after the DOP&T's OM dated 13.04.2010 that the communication of all the gradings below the benchmark has become mandatory.  Hence the non-communication of below the benchmark grading of “Good” cannot come to the rescue of the Applicant.  Her representation dated 02.06.2008 in this regard was also considered and decision communicated vide office letter No.3218-GE-I/S-208/Pt.III dated 19.06.2008.
13. It is, therefore, submitted that the Applicant is estopped from raising the issue once again in 2011.  She was found unfit by the two DPCs held on 26.05.2008 and 30.03.2009 respectively.  But was found fit only by the third DPC dated 30.07.2009 whereafter she was given promotion as PAG.  Her representation for giving her promotion with effect from 29.05.2008 was also considered and rejected. In view of this, the OA should be dismissed.
14. We have gone through all the records submitted by both the sides and the arguments made by both the learned counsel. It is mentioned by the respondents that OA No.410/2008 which agitates the cause of non- promotion for the year 2008 was withdrawn as applicant was promoted to the Grade of PAG for the year 2009. This indicates that before a decision could be taken in OA No.410/2008, the applicant received her promotion with effect from 31.07.2009 and must have required to completely change her line of arguments. She seems to have done so by seeking permission to withdraw OA No.410/2008 and filing a fresh OA No.946/2011 before Principal Bench of CAT but withdrew the same with the liberty to file a fresh OA before Bombay Bench. Therefore, the doctrine of res judicata as pleaded by
the respondents does not arise in this matter. Similarly, the issue of delay does not arise since the applicant has made the representation on 18.09.2009 (Annexure A-18) to reconsider by way of review DPC the issue of her promotion with effect from May, 2008 and, thereafter, again on 30.08.2010 (Annexure A-20). The respondents have not replied to both.  In any case, the delay is short and condoned.
15. We, therefore, proceed to decide the matter on merits. The arguments of the respondents as mentioned in Para 10 (supra), is not convincing. The DOPT by their OM dated 08.02.2002 (Annexure A-6) prescribed “very good” as a benchmark. The moment this is done, any ACR entry, which is less than “very good”, would take away the chance of an officer for promotion. It is to be noticed that this was not the case earlier. A person with some ACR remark showing “Good” would also remain eligible for consideration for promotion, hence it would not make a material difference to the issue of promotion if a remark of “good” is not conveyed and no chance is given to represent against the same. That situation gets reversed when a benchmark of “very good” is prescribed.
16. The respondents points out that relevant OM to communicate a remark of “good” was issued by DOPT only as late as 13.04.2010. However, such a late action by DOPT cannot be used to deprive any officer of her or his chance for representing against a below benchmark                                              ACR, which is likely to affect the promotion and other opportunities. The DOPT OM coming as late as 13.04.2010 (Annexure A-19) may not have required communication of below the benchmark grading prior to that date. However, the principle of natural justice would make it mandatory that such a grading should be communicated. Such a principle of Natural Justice runs supreme whether or not DOPT has been able to issue corresponding OM earlier. The DOPT cannot take away the right of government officers to expect fair play and natural justice by its omissions while changing the rule of promotion. The fact that prior to 2002 a person with ACR grading of “good” would also have been eligible for promotion by itself makes its mandatory that as soon as the benchmark for promotion is changed, other contingent action by the Government is also taken simultaneously. Officers, who have not been communicated any “below the benchmark” ACR cannot be held at the mercy of delay by DOPT in issuing the relevant OM to give a chance to the officers to represent against the below benchmark ACR.
17. Coming to citations the applicant has relied on:
a) Dev Dutt Vs. Union of India, (2008) 8 SCC 725.

b) Abhijit Ghosh Dastidar Vs. Union of India, 2009 (16) SCC 146 (Page 104).

c) N.K.Bhola Vs. Union of India, decided by CAT, Principal Bench on 11.01.2010.

d) Union of India and Anr. Vs. R.N.Kurmi, dated 14.01.2013 (Civil Appeal No.23481/2012).

e) Union of India and others Vs. K.V.Jankiraman and others, (1991) 4 SCC 109.

and the respondents are relied on:-

2006 (9) SCC 69 the matter of Satya Naraain Shukla Vs. Union of India and

2008 (9) SCC 120 K.M. Mishra Vs. Central Bank of India.

 Order dated 14.12.2012 passed in WP(L) No.2869 of 2012, Union of India & Ors. Vs. Col. Om Prakash Chand and Ors, decided by the Hon'ble High Court of Bombay.

  Order dated 19.01.2011 passed in WP No.7255 of 2010, Union of India & Ors. Vs. Prabhakar S.Patil and Anr., decided by the Hon'ble High Court of Bombay.

 SLP(C) 29515/2010 in the case of Union of India Vs. Uttam Chand Nahta, in which status quo has been ordered till pendency of the matter.      
18. The respondents point out that both in case of  Union of India & Ors. Vs. Col. Om Prakash Chand and others as well as in order dated 19.01.2011 passed in WP No.7255 of 2010, Union of India & Others Vs. Prabhakar S.Patil and Anr., the Hon'ble High Court of Bombay has considered the judgments of Supreme Court in Dev Dutt Vs. Union of India and Abhijit Ghosh Dastidar v. Union of India on one side and the case of Satya Narain Shukla v. Union of India and K.M.Mishra v. Central Bank of India on the other side. They have also referred to the case of Union of India v. A.K.Goel pending before the Supreme Court. After their considerations, the High Court have observed:-
“at this stage it prima facie appears that the least that can be said is that there is no clear law declared by the Supreme Court on the point involved in this petition. In other words, there are two conflicting views declared by the Supreme Court on the question involved in this petition and as for resolution of that conflict a reference has already been made to a larger bench of the Supreme Court, in our opinion, the safest course to be followed in this situation would be to admit the petition for final hearing.”

19. The learned counsel for applicant, however, points out that the latest observation is made by Hon'ble Apex Court in case of Union of India and Anr. Vs. R.N.Kurmi, dated 14.01.2013 (SLP No.23481/2012), which observed-
"Divergent views expressed by coordinate Benches of this Court on the question whether the grading given in the Annual Confidential Report (ACR) of an employee, which falls below the benchmark needs to be communicated to the concerned employee, so as to give him an opportunity to make a representation, before the same can be taken into consideration by the Departmental Promotion Committee (DPC) or the same is liable to be ignored altogether and other ACRs should be considered by the DPC was finally resolved by three-judge Bench in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146.
    However, by taking advantage of reference made by two-Judge Bench vide orders dated 29.3.2010 and 29.11.2010 passed in SLP(C) No.15700/2009 Union of India v. A.K.Goel and SLP(C) No.29515/2010 Union of India v. Uttam Chand Nahta, respectively, the petitioners have not been acting in consonance with the three-Judge Bench and this has generated in an unnecessary litigation.
The Apex Court further observed that-
     “A three member bench of CAT had considered OA No.847/2008 vide order dated 14.05.2010. The applicant therein was an Assistant Executive Engineer, who was not promoted in 2008 because he could not meet the prescribed benchmark in his ACRs, which was not communicated to him. The Tribunal directed that the concerned authority should communicate the below benchmark ACR and consider the case afresh after disposal of the case.

       By the impugned order the Division Bench dismissed the writ petition. While doing so, it took cognizance of the judgments of this Court in    

 Dev Dutt v. Union of India (2008) 8 SCC 725,

 Satya Narain Shukla v. Union of India 2006 (5) SCALE 627,

 K.M.Mishra v. Central Bank of India (2008) 9 SCC 120,

Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146

 order dated 24.11.2009 passed in Civil Appeal No.5319/2003 Union of India v. J.S.Garg,

order dated 29.11.2010 passed in Union of India v. Ranjana Kale SLP(C) No.29929/2010 and

order dated 16.3.2012 passed in Civil Appeal No.6937/2011 Union of India v. N.K.Bhola and

 took cognizance of the fact that Sunil Mathur's case (SLP(C) No.7623/2011) was dismissed on 24.1.2012 in the light of the judgment in Abhijit Ghosh Dastidar (supra) and held that there is no valid ground to interfere with the order of the Tribunal.

    In our view, after having accepted and implemented the judgment in Abhijit Ghosh Dastidar's case (supra) and agreed for disposal of other similar matters in terms of the judgment of larger Bench, the petitioners cannot seek annulment of the order passed by the Tribunal.
   
    The Special leave petition is accordingly dismissed”.    

20. In view of the above, the OA is allowed. The impugned communications dated 21.04.2010, 21.09.2010 & 17.01.2011 (Page 19) are quashed. We direct the respondents to treat the (below benchmark) ACRs of un-communicated years to be ignored. A fresh DPC should be held within a month, if required by circulation. The APARs of the applicant which were considered as sufficient to declare her fit for promotion for the year 2009 should be compared with the relevant APARs to be considered for the purpose of 2008 and if found fit, the applicant should be promoted to the grade of PAG (Principal Accountant General) with effect from 29.05.2008 and her seniority over her junior officers should be restored. The decision of the DPC as well as consequential orders regarding her promotion shall be communicated to her within six weeks. No order as to costs.


(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A)

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Bom OA No.392/2010 on 25-04-2013

Bom OA No.392/2010 on 25-04-2013

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION  NO:- 392 of 2010

Dated this  Wednesday, the 8th day of May, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)


Shri Mohan Mallu Rathod, IPS,
DIPG/CS & VO,
M.S.R.T. Corporation,
Central Office,
Mumbai 400 008.
R/o 55, A/2, Europen quarters,
Sir Bhaichandra Marg,
Dadar (E)-14                              ... Applicant

(None for the Applicant)

VERSUS

1. Union of India
through the Secretary,
to the Govt. of India,
Ministry of Home Affairs,
North Block, Rajpath,
New Delhi

2. The Union Public Service Commission,
through its Chairman,
Dholpur House,
Shahjahan Road,
New Delhi

3. State of Maharashtra,
through the Chief Secretary
to the Govt. of Maharashtra,
Home Department, Mantralaya,
Mumbai 32.

4. Shri Subodh Jaiswal,
Director,
Cabinet Secretariat,
Mumbai
R/o. Belvedere, Flat No.26,
13th Floor, Bhalubhai Desai Road,
Mumbai                             ... Respondents

(By Advocate Shri V.S.Masurkar)

O R D E R  (ORAL)

Per : Smt. Leena Mehendale, Member (A)

Since the applicant as well as the counsel for the applicant are absent on many occasions. It was directed on 13.12.2012, that the Registry should issue fresh notice to the applicant. This same instruction is same as repeated on 22.02.2013.  On both the occasions, notices are sent by Speed Post and nothing was heard from the Postal Department to say that the notice is not received by the applicant.  It appears that the applicant is not willing to pursue the matter.

2. In view of this, OA stand dismissed as default.



(Smt. Chameli Majumdar)                                     (Smt. Leena Mehendale)
         Member (J)                                               Member (A)

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Bom OA No.282/2010 on 25-04-2013

Bom OA No.282/2010 on 25-04-2013


CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION  NO:-282/2010

Dated this   Thursday the 25th day of April, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)


Surendra Balwant Nalavade,
Sr. TOA(T) Office of SDE (Group)
Pionad Telephone Exchange
Raigad District
Residing at: A-201,
Shree Gajanan Apartment,
Vidya Nagar,
Chendhre, Alibag 402201                      ...Applicant


(By Advocate Shri Rahul G.Walia)


Versus


1. Union of India,
through Chief General Manager,
Office of Chief General Manager
Telecommunication,
Maharashtra Circle,
Mumbai 400 054

2. General Manager,
Bharat Sanchar Nigam Ltd,
Raigad – Telecom District,
New Panvel 410206

3. Area Manager,
O/o. Area Manager,
Bharat Sanchar Nigam Ltd.
Raigad – Telecom District,
New Panvel 410206          ....Respondents


(By Advocate Shri V.S.Masurkar)

ORDER - ORAL

Per : Smt. Leena Mehendale, Member (A)

Applicant by Shri Rahul G.Walia, learned counsel. Respondent by Shri V.S.Masurkar, learned counsel.

2. The learned counsel for the applicant submits that he has instructions to withdraw this OA.

3. Therefore, the OA is dismissed as withdrawn.



(Smt.Chameli Majumdar)            (Smt.Leena Mehendale)
  Member (J) Member (A)  


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Bom RP No.2006/2012 on 12-06-2013

Bom RP No.2006/2012 on 12-06-2013

RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

REVIEW APPLICATION  NO:- 2006 of 2012
(IN OA No.2213/2009)

Dated this Wednesday, the 12th day of June, 2013

CORAM:-    HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)

1. Smt Premadevi Ramasre Shahu,
R/o. Small Arms Factory Area,
Bhandara Road, Lakadganj,
Nagpur                

2. Naresh Ramasre Shahu,
Bhandara Road, Lakadganj
Nagpur.    ... Applicants

(None)
VERSUS

1. Union of India
Through the Secretary,
Ministry of Defence, South Block,
New Delhi.

2. The D.G.O.F./Chairman,
Ordnance Factory Board,
10-A, Shahid K. Bose Road,
Kolkata.

3. The General Manager,
Ordnance Facotry, Ambajhari
Nagpur.   ... Respondents

(None)
O R D E R
Per : Smt. Leena Mehendale, Member (A)
This Review Petition is filed on 03.07.2012 by the original respondents with a prayer to review the judgment dated 20.10.2011 passed in OA No.2213/2009.  The Review Petition is hopelessly time barred and appears to have been filed only with the intention of delaying the compliance of the direction given in the above OA.  The original applicant had asked for compassionate appointment mentioning his grounds for eligibility and questioning the rejection dated 28.06.2008 by the respondents impugned order.  Therefore, the respondents were directed to give her a chance as per the details passed in that order.  The respondents have come with a Review Petition much later than the period of one month allowed for filing the Review Petition under Administrative Tribunals Act.  Similarly, review can be allowed only when there is "an error apparent on the face of it".  The review applicants i.e. the original respondents have grossly failed to show any such error apparent, in addition to the fact that they filed the review petition nearly 8 months after the order in the OA was passed.

2. In view of this, the Review Petition is dismissed.  The Review applicants i.e. the original respondents are directed to comply with the instructions given in the order dated 20.10.2011 in OA No.2213/2009.  No order as to costs.


(Smt. Chameli Majumdar)                                    (Smt. Leena Mehendale)
       Member (J)                                 Member (A)

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Bom OA Nos.592, 593, 594 & 595 of 2012 on 01-04-2013

Bom OA Nos.592, 593, 594 & 595 of 2012 on 01-04-2013


CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATIONS  NOS:-592, 593, 594 & 595 of 2012

Dated this   Monday the 1st  day of April, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)

Shri Keshav Ganpat Mhase,
Temporary Status Labour,
Residing at: Village Kirawali,
Taluka Karjat, Dist-Raigad,
Maharashtra            ...Applicant in OA No.592/2012

Shri Ramesh N.Kamble,
Temporary Status Labour,
Residing at: Sakhinabai Chawl,
Room No.2, Dharavi,
Mumbai 400 017                ...Applicant in OA No.593/2012

Shri Prabhakar R.Panigrahi,
Temporary Status Labour,
Residing at: Ramabai Colony,
Char Chawl, Ghatkopar (East),
Mumbai 400075          ...Applicant in OA No.594/2012

Shri Ashok Rajram Salunke,
Temporary Status Labour,
Residing at: Sai Residency,
Plot No.15, Sector 9,
Room No.402, Kamote, Panvel,
Navi Mumbai 410 209          ...Applicant in OA No.595/2012


(By Advocate Shri P.P.George)

Versus

1. Union of India,
Through the Director General,
Operational Logistics,
General Staff Branch,
Integrated Headquarters,
Ministry of Defence (Army),
South Block, New Delhi – 110 011

2. The Commandant,
Embarkation Headquarters,
R. Kamani Marg, Ballard Estate,
Mumbai 400 001            ....Respondents

(By Advocate S/Shri V.S.Masurkar with S.G.Pillai)

COMMON ORDER - ORAL

Per : Smt. Leena Mehendale, Member (A)

These four cases filed around September, 2012, are heard together as they have the same issue and same respondent office.

2. Heard both the counsel. On the questions of MA Nos.906, 907, 908, 909 of 2012, these are for condoning of delay in filing these OAs.

3. The matrix of OA No.592/2012 is used hereunder:
The OA is filed on 18.09.2012. The applicant was initially appointed as daily wage labour on 1986 and was granted temporary status on 03.01.1995. Thereafter, we find from Annexure A-12 that the applicant along with 114 other similarly placed daily wage labour, approached this bench in OA No.638/1993 with a prayer to consider the claims of the applicant for being absorbed in service on regular basis. A directions was given to absorb them as and when vacancy arises and regularize them according to the rules.

4. It is the claim of the applicant that some of the applicants of the said OA were actually regularized by the respondents as on 01.04.2004. However, the applicant did not approach this bench  in 2004 when the cause for  action  arose  for  the  first  time. Thereafter, the DoPT had issued the OM dated 11.12.2006 to advise all the departments to regularize the casual labours as per the availabilities of the vacancy and it is the claim of the applicant that the respondent department did not act in pursuance to the OM of the DoPT. But the applicant himself failed to raise the issue and  approach this bench even in 2006. The learned counsel mentions that the case of the applicant was getting frequently referred to in the Darbars and the Welfare Committee Meetings regularly held by the department but his case has not yet been considered. It is the claim that no representation was being accepted in the office of the respondents. It is difficult to believe this claim and also difficult to believe that the applicant did not know to approach this bench. He had already approached this bench in 1993 and received a judgment in 1997, so we have to conclude that he knows the existence of forum of CAT.

5. We have also perused Annexure A-8, which is the representation of the applicant dated 30.07.2012 to the respondents requesting to give regularization at an early date. The applicant is present in court today and the learned counsel after consulting him gives a specific answer that the wording of “early date” may be taken to mean “any prospective early date”. It therefore, appears that in Annexure A-8 representation he is not asking for regularization with effect from 01.04.2004 but with effect from some early future date. However, in the main OA his prayer is for grant of regularization with effect from 01.04.2004 as was done to some similarly situated employees.

6. Thus, as far as the OAs' are concerned and the MAs Nos.906, 907, 908, 909 of 2012 for condonation of delay is concerned, we find the delay of 8 years cannot be condoned with any justification in view of the fact the applicant has seen some of his colleagues getting the benefit of judgment in OA No.638/1993 in which he has also a party.

7. Learned counsel has cited the judgment in respect of K.C.Sharma and others Vs. Union of India and others, (1997) 6 SCC 721 and M.R.Gupta Vs. Union of India and others, (1995) 5 SCC 628, but the facts mentioned in those judgments do not apply in the present matter. In view of this, the MAs for condonation of delay are rejected.

8. Accordingly, the OAs also fail and are therefore, dismissed. At this stage, the learned counsel for the applicant at the advice of the applicant, who is present in the court, makes a submission that the respondents may be directed to consider the representation Annexure A-8 in view of the fact that new vacancies have now become available in the office of the respondents as seen from Annexure MP A-3 which is an invitation for application to be made before 08.03.2013. This advertisement shows that there are vacancies available for the office of the respondents. Though it is not the part of the prayer,  there is no bar for the respondents to consider sympathetically the representations of the applicant at Annexure A-8 against their existing vacancies.

9. With these observations the OAs No.592, 593, 594 & 595 of 2012 are dismissed. No order as to costs.



(Smt.Chameli Majumdar)            (Smt.Leena Mehendale)
  Member (J) Member (A)  


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Bom OA No.228/2012 on 17-01-2013

Bom OA No.228/2012 on 17-01-2013

CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI

ORIGINAL APPLICATION NO.228/2012

Dated this Thursday the 17th day of January, 2013

CORAM:- HON'BLE SMT. LEENA MEHENDALE,  MEMBER (A)

Mr. Rajesh Punam Dhamne,
Age 35 years, Occ: Nil
R/at: Gaikwad Building,
Room No.3, Azad Nagar,
Joshibaugh,
Kalyan (W),
District: Thane    - Applicant

(By Advocate Ms. K.J.Kamble)            

Versus

1. Union of India
The Divisional Railway Manager,
Divisional Office Personnel Branch,
Central Railway,
Mumbai C.S.T. 400 001

2. The Chief Health & Food Inspector,
C.H.I. Kalyan,
Central Railway Kalyan,
Kalyan
District : Thane 421 301 - Respondents

(By Advocate Shri V.D.Vadhavkar)            


O R D E R (ORAL)

Per :  Smt. Leena Mehendale , Member (A)

Heard both the counsel.
2. The applicant is claiming compassionate appointment. However, the Railways have clearly brought out the picture before me that the deceased employee has only three sons, all of whom were major on the date of death which was on 05.11.2009.  They all are married and employed as Sweeper, Casual Labourer, at low salary but employed nevertheless.  The learned counsel for the applicant points out the poverty conditions in which they are living but it is also stated that father, while alive, was also living in the same premises.  The counsel pleads that the applicant is claiming compassionate appointment so as to mitigate the conditions of poverty which arise out of low salary employment.
3. The learned counsel for the respondents has pointed out Paras 16 & 17 of the Reply given by the Railways wherein it is stated that the application for compassionate appointment is rejected as they have no liabilities.  He points out that after the death of the employee, settlement dues amounting to Rs.5,14,510/- have also been paid to the family members.  He also cites SLP No.10504/1993 along with SLP No.2385/1994, Umesh Kumar Nagpal Vs. State of Haryana and others, which lays out that:

“a. Object of compassionate appointment, held, is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment.

b. Mere death of an employee does not entitle his family to compassionate appointment. The authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death.

Another citation, 2012 2 SCC (L&S) 84, Union of India and another Vs. B.Kishore states that “the pre-conditions and purpose of compassionate appointment is indigence of the dependants of the deceased employee  and is first pre-condition to bring case under scheme of compassionate appointment.  Absence of indigence would turn compassionate appointment reservation in favour of dependants of employee who die while in service. It would be directly in conflict with ideal of equality guaranteed under Arts.14 and 16 of Constitution. Respondents might have been struggling for financial upliftment but he certainly cannot be described as an indigent or destitute”.
4. From the papers produced by the applicant as well as by the respondents, we find that the sudden death of the employee has not resulted in a sudden pecuniary crisis before the family considering that all the three sons are already in employment and also received settlement amount above Rs.5,00,000.  There  seems no merit in this case.  OA is therefore, dismissed.
5. However, considering that the Respondents-Railways being a big organization, it would be better if they maintain a Division-wise Register of employees, who meet with death while in service and make comparative assessment of all the cases like that of   family of the deceased employee, within a frequency of six months so as to maintain better transparency in the decision.
6. With these observations, the Original Application is dismissed. No costs.



(Smt. Leena Mehendale)
Member (A)                            

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chk Bom OA. No.342/2012 on 10-06-2013

Bom OA. No.342/2012 on 10-06-2013  chk --was it DB

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.

ORIGINAL APPLICATION NO.: 342/2012

DATED THIS Monday, THE 10th DAY OF June, 2013.


CORAM :  HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)

Shri Mukesh B. Madhavddas,
working as Sr. Ticket Examiner,
R/at Flat No.84/7, Railway
Colony, Andheri (E),
Mumbai – 400 069.        ...      Applicant

(By Advocate Shri S.V. Marne)

VERSUS

1.  Union of India through
    The General Manager,
    Western Railway,
    Churchgate, Mumbai 400020.

2.  Divisional Railway Manager,
    Western Railway,
    Mumbai Division, Mumbai
    Central, Mumbai 400008.

3.  Senior Divisional Commercial
    Manager,
    Western Railway,
    Mumbai Division, Mumbai
    Central, Mumbai 400008.       ...   Respondents

(By Advocate Shri V.S. Masurkar)

O R D E R
Per: Smt. Leena Mehendale, Member (A)
This OA is filed on 07th June, 2012 praying for quashing the transfer order No. E/C/839/DAR Vol V dated 25/04/2012 (Annexure A-1) mainly on ground of malice.

2. The brief facts about the applicant are that he was appointed as ACC (Assistant Commercial Clerk) in Western Railway on 01.10.1994. Through various promotions, he reached the post of Senior Ticket Examiner in May 2008. During this entire period his posting has remained within the limits of Bombay from Churchgate to Nallasopara although his job is transferable all over Western Railway. He has alleged some instances of misconduct of traveling without ticket by some officials of Railway but he has not impugned any one of them.  

3. The order contains following:-
That Applicant is transferred to Vapi in the same scale and pay.
He should be debarred from cash handling duties.
He should be relieved without any delay to report to the new place of posting.
He should join the new posting within 15 days from the date of issue of the order failing which his payment should be stopped, etc.

4. The background as stated by the Applicant is that he was appointed as ACC (Assistant Commercial Clerk) in the Western Railway on 01.10.1994, thereafter promoted as Ticket Collector in January 1997 and as Senior Ticket Examiner in May 2008.  He claims that he was given several awards and appreciation letters for his skill of detection of fraud passes and unauthorized Travel agents.  

5. He avers that he came to know that on 18.08.2008, an order of his dismissal from service was passed by Sr. DCM-BCT, Mr. R. Gopalkrishna (Annexure  A-2).  The reason stated in this order of dismissal is as below :- 
“Applicant had associated himself in physical assault without any provocation of Shri D. Roy thus has vitiated the entire working atmosphere in the office.  If action was not taken on the very same day, then the entire working of the office would be disturbed.  An enquiry was not possible as the plausible administrative witnesses Shri K.V. Desai and Shri Chagan Fulani have expressed their inability to associate any further with the case.  Hence, in exercise of the powers conferred under Rule 14(2) of Railway Servant Disciplinary and Appeal Rules, 1968, the Disciplinary Authority is of the opinion that a normal DAR process is impractical in this case.  Therefore, holding detailed enquiry is impractical.”  

The Sr. DCM, therefore, imposed -
“In such a scenario, I impose the penalty of dismissal from service on Shri Mukesh B. Madhavdas, Sr. TE-CCG”.

6. However, on an appeal dated 08.09.2008 filed by the Applicant, the Appellate Authority cancelled the penalty and gave instructions to get an enquiry conducted in terms of Rule 22 of RS DAR 1968.  Accordingly, the Disciplinary Authority passed a new order dated 30.06.2009 Annexure A-3 framing charges and appointing Inquiry Officer.  This order specifically mentions that;
“The issue of charges does not confer any right of challenging/quashing the order of dismissal imposed vide NIP of even no. dtd.18/08/2008 in terms of DAR Rule No.14(ii). The order of dismissal would remain intact till disposal of appeal, as the appellate”

“The order of dismissal will remain intact till disposal of appeal as Appellate Authority has only ordered for conducting an Enquiry and not for reinstatement.  The final decision will be taken by the Appellate Authority after the conclusion of enquiry.”

7. This new order for DE dated 30.06.2009 was challenged in OA No.457/2009 Annexure A-4 dated 09.03.2010 is the order passed by this Bench under which it was held that the applicant has to be reinstated in service w.e.f. 30.06.2009 i.e. the date on which the charge-sheet was issued to the applicant.  The order further says that upon eventual completion of disciplinary proceedings in addition to taking decision as to exoneration or imposing penalty, if any, the respondents shall also decide the treatment to be given to the entire period starting with the actual date of dismissal; i.e. 18.08.2008; till the date of culmination of the pending disciplinary proceedings.  A Writ Petition filed by the Railway Administration was dismissed on 01.10.2010. Hence the respondents reinstated the applicant on 12.11.2010, Annexure A-6 w.e.f. 30.06.2009 with a clause that the period from 18.8.2008 (date of dismissal) to 30.06.2009 (date of  charge-sheet) and from 01.07.2009 till completion of disciplinary proceeding, would be decided on culmination of disciplinary proceeding being continued against him.  However, on the same day, he was also put under suspension by DGM(P), who later revoked the suspension vide order dated 16.4.2012 Annexure A-7.

8. Thus, the applicant resumed his duty as STE (Senior Ticket Examiner) at Churchgate Station on 24.4.2012 and also received his salary till end of May, 2012.  Thereafter, he heard on 04.06.2012 about his transfer order from Churchgate to Vapi which he claims  has not been served on him by the Railways.  He also claims that the said transfer order was issued nearly a 15 days back i.e. On 25.04.2012 but had remained with the Grant Road Station and came to Churchgate Railway Station on 04.06.2012.  He claims that Annexure A-1 is a copy of his transfer order which he has obtained himself.  

9. The order specifically mentions that he would be transferred to Vapi in the same scale of pay but would be debarred from any cash handling duty.  It further instructs that he should be relieved without any delay to report to the new place of posting and join there in any case within 15 days, failing which his payment of salary would be stopped.  He challenges this order in the present OA.

10. The applicant has pleaded that the impugned order is arbitrary and punitive since it has the background of his earlier summary dismissal and now the ongoing enquiry.  He claims that despite the order of the CAT for his reinstatement, he was initially put under suspension which shows the vindictiveness of the respondents against him. He further claims that he is being harassed for his alleged involvement in assault  on the IRTS Officer.  This case of his alleged assault on Shri Roy, Senior Railway Officer was persuaded through FIR in the Court of Additional Chief Metropolitan Magistrate, 46TH Court, Mazgaon, Mumbai, in which, he has been acquitted.  He further claims that in the said criminal proceedings, the concerned officer Shri Roy had deposed that the applicant had not assaulted him.
  
11. Second ground taken by the applicant is that despite issuing the charge-sheet the respondents are not progressing with the enquiry but are keeping it pending so as to harass him.  It is the same intention of harassment by transferring him to Vapi.

12. The applicant claims that the transfer order is arbitrary since it is directed that the applicant should be debarred from cash handling duties.  Such a direction is given for humiliating the applicant.  The transfer order is not issued in administrative exigencies.  He has been transferred to a far off place so as to cause maximum possible harassment.  

13. Finally he also claims that the said transfer order would severely prejudice him as he will have to vacate the Residential Quarter on transfer to Vapi.  The applicant avers that the chronology of the events of transfer point to its punitive nature and, therefore, it must be quashed.  

14. The respondent Railway department has filed the reply statement to answer all these points.  They have denied that the impugned transfer order is either arbitrary or vindictive or illegal. First and foremost,   the contention of the applicant that he is transferred to a far of place in Gujrat is misleading.  Firstly Vapi falls within Mumbai Division and the applicant is transferable anywhere in Mumbai Division. Although, in Gujarat State, Vapi is geographically just at the outskirts of greater Mumbai, so much so that several Railway employees travel daily between Vapi and Mumbai for their duties.  Moreover, the applicant has never made any representation to the respondents against the transfer order, hence the OA is premature under the provisions of Section  22  of  Administrative  Tribunals Act, 1985.  The service record of the applicant shows that he was appointed on 01.1.1994 and selected as TC on 31.01.1997 and further promoted as Senior Ticket Examiner w.e.f. 19.12.2007.  During all these years he has served only between the Railway station of Churchgate and Nallasopara both being part of Mumbai suburban.  For the first time, he has been posted to Vapi which itself is not of very far off from  Mumbai.  This is so even when his post is transferable within the entire geographical extent of Mumbai Division that goes upto deep north in Gujrat. The plea of the applicant that he will be harassed and his aged parent will also be harassed because of non-availability of house at Vapi is incorrect because under the present Rules he would be allowed to retain his present residential accommodation.

15. Further, there is no mala fide or violation of any statutory Rule or of the orders passed by any Statutory Authority.  Earlier the applicant was issued with a dismissal order dated 18.8.2008 on the ground that applicant was involved in physically assaulting Shri D. Roy, thereby vitiating the working atmosphere in the office.  The said order itself pointed out that it was issued in exercise of powers conferred under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968.  Thereafter on instructions of the Appellate Authority it was decided to hold departmental enquiry and give him an opportunity, hence a charge-sheet dated 30.06.2009 was issued.  Thereafter, in view of the CAT decision in OA No.457/2009 he was also reinstated although under suspension.  At a later date, the suspension was also also revoked and he was posted on duty at Churchgate.

16. The learned counsel for the respondents draws our attention to a typical false claim by the applicant through para 5 of the Reply statement, which says:

“(5) At the outset, the applicant was relieved w.e.f. 05-06-2012. He filed OA on 07-06-2012, since he came to know that he is relieved w.e.f. 05-06-2012.  This aspect is suppressed by the applicant as can be seen from the expartee order dated          07-06-2012 passed by the Hon'ble Tribunal.”   

17. The learned counsel compares this statement with the relevant statement made at para 4.9 by the applicant, which narrates about how the applicant did not get served with the transfer order by the respondents, but simply obtained it from the Station Superintendent GTR.  The applicant  also claims at para 9 for claiming interim prayer that he was on sick leave on 04.06.2012.  However, he has not produced any medical records of his illness nor has he made any proper application to the Railways as per the rules.  Thus, he being unauthorized absence from office from 04.06.2012, cannot claim he has not handed over the charge and this clearly shows that he has obtained an interim stay through falsehood.

18. The respondents have also relied on several citation regarding the scope of administrative machinery to transfer an employee and the scope of judicial interference with the same.

A. 2001 (3) SC 436, State Bank of India Vs. Anjan Sanyal and Others, held:
“An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order”.

B. JT 1995 (2) SC 498, State of Madhya Pradesh and others Vs. S.S. Kourav and Others, held:
“the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the court or Tribunal are not expected to inderdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by malafide or by extraneous consideration without any factual background foundation.”

  C. (1994) 28 ATC 246, N.K.Singh Vs. Union of India, held:
“Transfer-Scope of judicial review-Interference justice only in cases of malafide or infraction of any professed norm or principle-Where career prospects remain unaffected and no detriment is caused, challenge to the transfer must be eschewed”.

D. (2006) 9 SCC 583, S.C.Saxena Vs. Union of India and Others, held:
“a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and makes a representation as to what may be his personal problems. Such tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.”

  E. 2010 (1) SLR (SC) 633, Rajendra Singh Vs. S/O UP, held:
“Article 16/226- Transfer-State Govt. emphatically refuted the allegation of malafide and denied that the order of transfer was stigmatic or punitive-a Govt. servant has no vested right to remain posted at a place of his choice nor can be insist that the must be posted at one place to the other. He is liable to be transferred in the administrative exigencies from one place to the other-Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary-Transfer of writ petitioner, cannot be said to be stigmatic and any observation made in the transfer order about work and conduct of writ petition, shall not be read adversely by authorities against him.”

19. The respondents have further pointed out at para 11 that the applicant, when he was earlier under order of dismissal w.e.f. 18.08.2008, was found traveling in the Railway Pantry Car of 12952 UP of 25.10.2008 without any traveling authority and did not cooperate during Vigilance check. For this purpose, it was stated that major charge-sheet should be proceeded him. The respondents have denied any act of malafide, which the applicant claims through the narration of para 4. They rely on the Supreme Court judgment in the case of S/O UP Vs. Gobardhan Lal, 2004 (2) SCSLJ 42, held:

“Transfer- whether Courts or Tribunals can substitute their own decisions in the matter of transfer for that of competent authority-No. Even challenge to transfer on account of malafide must be such as to inspire confidence in the Court or based on concrete materials- Mere allegations of malafide or on consideration borne out of conjecture or surmises without any strong and convincing reasons cannot be a ground to interfere with the order of transfer.”

20. I have gone through all the records produced by both the sides and the pleadings and documents before the Bench.  The learned counsel for the applicant have also cited few cases to show that a transfer of mala fide can be gone into in a judicial review.  However, he has not explained, as to who among his seniors has any reason for mala fide against him and for what reasons, nor has he impleaded anyone as respondents.  A change of mala fide cannot be made lightly.  At para 4.4 and 4.5 of the OA, the applicant has talked about two different railway employees, who he claims were traveling without ticket when he caught them.  However, none of them is Mr. D.Roy, whom the applicant is alleged to have assaulted or Mr. Gopal Krishnan, Sr. DCM-VCT, who has given him the charge-sheet or Mr. Ajay Prakash, DCM(P), who issued his suspension order on 11.11.2010.  These are all different people, and the applicant has not stated as to why anyone of them should have malice against him. 

21. The applicant claims to have received the transfer order on 25.04.2012 through its own effort but denies to have received the relieving order issued by the office on 05.06.2012 on the ground that he was on sick leave from 04.06.2012 (para 9 of the OA).  He has, however, not filed any documents regarding his sick leave before us, nor explained whether he still continues on sick leave.

22. Coming  to  the  merit  of  the  transfer  order,  I  find  that  the  DRM,  who  is  the  Senior Officer responsible for proper running of the Railways on almost minute to minute basis needs to ensure that a proper discipline is maintained at the Railway Station and for this purpose, he has authority to issue transfer orders as well as put a ban on cash handling by any officer below him.  The transfer of the applicant to Vapi Station is at minimal distance away from Mumbai, where the applicant has worked so far throughout his service, despite his job being transferable any where in the Western Division.  If such authority of transfer, now exercised by the DRM is taken away or interfered with lightly, then it may be impossible for him to maintain any discipline and this will  effect  the  smooth  running  of  the  large numbers  of  trains  running  under  the  Western Railways.  The  applicant  has  been  acquitted  by Criminal Court for the offence of physical assault on D.Roy.   However, it is to be appreciated that a conviction in the criminal case requires that the criminal  charge  is  proved  absolutely  and  beyond doubt.  The perception of discipline and appropriate action  for  maintaining  such  cannot  be  compared  with conviction in criminal case.  The action of the DRM  does  not  need  that  a  criminal  charge  be proved  beyond  doubt.  Imposing  a  transfer  order  as  a  punitive  measure  is  different  from  issuing the transfer order with objective to avoid likely erosion of discipline.

23. Considering  the  above  and  also  in  view  of the ratio of judgments cited by the respondents, I do not  find  any  reason  to  interfere  with  the  order  of  transfer  to  Vapi  along  with  the  direction that  the  applicant  may  not  been  given  any  Cash  Handling  duty  at  the  Vapi  Railway  Station. 

24. In view of this, the OA is dismissed.  No order as to costs.


   (Smt. Leena Mehendale)
            Member(A)



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