Thursday, September 15, 2016

MA 41/2013 in OA No.512/2009

1) MA 41/2013
in
OA No.512/2009 Date : 23.01.2013
Shri R.R.Shetty, learned counsel for the applicant.
Shri P.J.Prasad Rao, learned counsel for the respondents.
This Misc. Application No.41/2013 has been filed in pursuance of the order passed by this Bench in OA No.512/2009 on 19.04.2011 in which four weeks' time was granted to calculate the Family Pension and arrears and make the payment. A copy of the order was received by the Respondent-Department on 26.04.2011. As against four months, more than 20 months have already passed. The Respondent-Department has already sought two extensions earlier and have now come up for the third time praying for extension for four months.
This matter of Family Pension deals with old people and the department seems to be taking a casual approach towards the settlement of Family Pension of older people. Along with the application the department has not even supplied the details of the delay that has occurred at each desk and has also not supplied any chart giving the estimated delay at all the desks through which the file may move so as to see its future.
Therefore, the MA No.41/2013 is partly allowed.
Four weeks' time is granted for issuing the necessary order of sanction of pension failing which the Joint Secretary of the Respondent-Department should personally remain present along with the affidavit giving a chart of all the desk, who may have seen the file and the time taken at each desk and with the specific proposal as to how the department propose to deal with such delays. The Joint Secretary will also submit the note explaining how the department monitors the orders issued by the CAT.
Call on 26.02.2013.
The copy of this order shall be given to both the learned counsel.
Dasti.

(Smt. Leena Mehendale)
Member(A)

km*


******* History of CAT

History of CAT
In the history of CAT, three core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench.
The validity of the Administrative Tribunals Act 1985 was upheld by the Hon'ble Supreme Court of India in Sampath Kumar Vs. Union of India........... whereby the Hon'ble Supreme Court emphasised the theory that the Administrative Tribunals shall be an effective substitute for the High Courts. However, the theory was discountenanced by the Hon'ble Supreme Court in various subsequent decisions and the matter came to be reviewed by the Constitutional Bench before the Supreme Court of India in L. Chandrakumar Vs. Union of India JT 1997(3) SC – 589.who repudiated the theory in so far as taking away the power of the High Courts to hear writ appeals filed before itself against the orders of the Administrative Tribunals under Article 226 and 227 of the Constitution of India. Their Lordships held that the power of judicial review by the High Courts within their territorial jurisdiction is under Articles 226 and 227 of the Constitution and it is one of the basic features of the Constitution which cannot be taken away by way of an amendment or enactment by the Parliament. However, their Lordships qualified by propounding that only a Division Bench in the High Court can undertake a judicial review of the decisions rendered by the Administrative Tribunals.
In Sampath Kumar Vs. Union of India which is one of the earliest cases, it was held that in the case of recruitment to the Central Administrative Tribunal the appropriate course would be to appoint a High Powered Selection Committee headed by a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India, while in the case of recruitment to the State Administrative Tribunals the High Powered Selection Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned. It was further held an Advocate who is qualified to be a Judge of the High Court should also be regarded as eligible as a member of CAT,
But most important part of Sampat kumar vs. union of India judgement was that the Supreme Court upheld the validity of art. 323-A and of the Act itself as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act. The Bench held that the Service Tribunals created under Article 323-A are  substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal.
In a landmark judgment in L.Chandra kumar vs. union of India (AIR 1997 SC 1125) a seven-member constitutional bench of the supreme court has unanimously while reconsidering the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles 323A and clause 3(d) pf art. 323B which provided for the exclusion of the jurisdiction of the high courts under articles 226 and 227 and the Supreme Court under article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic structure of the constitution.
but also held that, the Tribunals are supplementary in their role and the power of 'Judicial Review' vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the 'Administrative Tribunals Act, 1985' which excludes the jurisdiction of High Courts.
        �To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall.  We are, however, of the view that this may not be the best way of solving the problem.  We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction.  If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them.
        While rejecting the said plea as indicated above, the Apex Court suggested for creation of 'Single Umbrella organisation'  to over see the functioning of the Tribunals in the country.
A second issue that came up before the Apex Court again and again deals with the validity of the judgments passed by a Single Member Bench. In this regard, Section 5(6) of the Act is important which reads
"(6) Notwithstanding anything contained in the foregoing provisions of the section, it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases of such matters or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting [two Members], the case or matter may be transferred by the Chairman or as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit."

While examining the position of Section 5(6), it is opined by Shri Shankar Raju, (Judicial Member CAT) -- “It is no more res Integra that Section 5 of the Administrative Tribunals Act, 1985 mutatis mutandis applies to the State Administrative Tribunals in the State.” Thus the chairman of CAT as well as any State tribunal has powers to send matters to a single member bench but subject to the proviso as above.
It has been held again and again that Section 5 of the A.T. Act does not distinguish between Judicial and Administrative Members in the matter of jurisdiction, powers and authority to be exercised by the Benches.
At the same time, the Hon'ble Supreme Court also dispelled the contentions raised from various quarters about advisability of appointing the Administrative Members on these Tribunals and held that (a) there is no illegality in the appointment of the Administrative Members and (b) the Administrative Tribunals are competent to decide the constitutional validity of any statutory provision except in so far as it relates to the statutory provisions of its own Act under which the Hon'ble Members have been appointed.


Earliest, in the Dr. Mahabal Ram's case, the Hon'ble Apex Court has observed the following:
"6. Sub-sections (2) and (6) appearing as limbs of the same section have to be harmoniously construed. There is no doubt that what has been said in Sampath Kumar case would required safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, he many cases before the Tribunal where very often no constitutional issues or even legal points would be involved. Mr. Ramamurthi, Senior Counsel suggested to us in course of the hearing that keeping the principles indicated in the Constitutional Bench judgment in view, the single Member contemplated under sub-section (6) should be meant to cover a judicial member only. That view perhaps not be appropriate to adopt. On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rationalized."

Upholding this totally, the Constitution Bench in L. Chandra Kumar Vs. Union of India & Ors. (1997), while dealing with the issue of appointment of Administrative Members, concluded as --
"95. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. It has been pointed out that Administrative Members who have been appointed have little or no experience in adjudicating such disputes. The Malimath Committee has noted that at times IPS officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenure. Fore these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies would, by virtue of their specialized knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of Judicial Members and those with grass-root experience would best serve this purpose. To hold that the Tribunal should consist only of Judicial Members would attach the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that Administrative Members are chosen from amongst those who have some background to deal with such cases."
The subject again came up in State of Madhya Pradesh Vs. B.R. Thakare & Ors. - 2002(1) SCSLJ 25 wherein their lordships once again held,
It is thus clear that even at the suggestion of Senior Counsel who urged that Section 5(6) should mean to cover a Judicial Member only, the Apex Court has not been ready and did not consider this view to be appropriate to adopt. On the other hand, they found it sufficient for safeguarding the interests of claimants going before the Tribunal to hold that:-
"........while allocating work to the Single Member – whether judicial or administrative – in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should to to a bench of two Members. The Member should ordinarily allow the matter to go a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. To make a distinction between Judicial Member and Administrative Member functioning under Sub-section (6) of Section 5 of the Act may not be appropriate and, therefore, we have not been able to accept the approach suggested by Mr. Ramamurthi. The observation made in the two-judge Bench case that no provision was cited to them that a Single Member could hear cases laid before the Tribunal led to the conclusion that the judicial business of the Administrative Tribunal was intended to be carried out by a bench of two Members. The vires of sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rotationalized."

Thus, the Apex Court has not approved the interpretation that the constitution of a Single Bench of Judicial Member alone should be allowed. The Apex Court has clearly laid down "as a ratio of dicidendi that when before single Bench consisting of an Administrative Member the question of law and its interpretation in the context of constitutional provisions is in issue, the matter should not be assigned to a Single Member. Accordingly, the above decision does not distinguish between a Judicial Member and an Administrative Member and uniformly applies to both the categories in so far as complex nature of question of law and interpretation of certain constitutional provisions are concerned. A deemed reference is that except two categories referred to above, a Judicial as well as an Administrative Member are competent to constitute a Single Bench and also within the jurisdiction to decide the matters.
In concluding, the Hon'ble Supreme Court set aside the order passed by an Administrative Member on the ground that firstly the notification of the Chairman of MPAT to delegate All powers of the Tribunal to a single member was questionable as it did not account for the safeguards mentioned in the proviso of sec 5(6), and the Administrative member who passed the order sitting as a single member in any case had no authority under the said notification of the Chairman.
This judgement thus makes it clear that their lordships have gone by the view of the Constitutional bench in L. Chandra Kumar Vs. Union of India & Ors. (1997), in reiterating that there is no distinction between the powers of a member (J) and member (A) while sitting as a single member, when care is taken as per the proviso of sec 5(6)
However, relying on the above judgment the Hon'ble igh Court of Karnataka & the High Court of West Bengal at Calcutta have remanded the cases decided by an Administrative Member sitting as a single member bench, questioning his competency to decide a matter. With due respect to the HC bench, it is our considered opinion that their lordships have gone beyond the view held by the Constitutional bench of the Apex court and further ignored that even if the case State of Madhya Pradesh Vs. B.R. Thakare & Ors. is to be construed as rejecting the jurisdiction of member (A), the facts were peculiar only to that case.
The decision of the two High Courts have resulted in a piquant situation giving rise to a contention whether the notification of Hon'ble Chairman dated December 18, 1991, stands partially nullified so far as the Benches of Bangalore and Kolkata are concerned and whether the Administrative Members in these two Benches are precluded from deciding the cases falling within the subjects covered in the notification of the Hon'ble Chairman, dated December 18, 1991. Fortunately in other Benches, so far there are no such fetters on the powers of the Administrative Members.

The CAT, as on date, serves as an effective mechanism for redressal of the grievances of the membersw of the following services.
(A) All India Services – 4
(B) Other services regulated by the Central Government – 46
© Other services covered by the Central Civil Services Rules – 20
(D) Corporations/Societies and other organizationswhich come under the purview of the CAT under Section 14 of the Act – 202.
All this is not to mention a large number of establishments that have been brought under the provisions of State Administrative Tribunals.
The third issue is about working of State tribunals. A study of the details of the above mentioned case law of L. Chandrakumar Vs. Union of India reported in JT 1997(3) SC – 589, throws light on the impressions created in the mind of the Hon'ble judges about the functioning of the Administrative Tribunals. Without any exception, all the Members of the Bar arguing before the Bench and expressed a view that the functioning of the Tribunals leave much to be desired. The Hon'ble Supreme Court referred at length to the report of Justice V.S. Malimath Committee on the functioning of the Administrative Tribunals in which Hon'ble Justice Malimath has elaborately discussed the short- falls in the functioning of the Tribunals. He has concluded that "Tribunalization of justice in our country is not satisfactory and encouraging."

Although, there is no internal evidence to prove our point, it seems to us that the adverse observations and comments that are raised in the Justice Malimath's report and the judgment of the Hon'ble Supreme Court in L. Chandrakumar's case arose out of a poor performance of some of the State Administrative Tribunals. The following observation of Justice Malimath Committee report which has been extracted by the Hon'ble Supreme Court in the case referred to above is revealing:-

"The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition."
In this context, it may be noted that in some States the State Administrative Tribunals have been wound up following the decision by the Hon'ble Supreme Court in L. Chandrakumar's case. These State Governments observed that by reintroducing the jurisdiction of High Courts over the matters in which the State Administrative Tribunals alone had jurisdiction hitherto entails an additional financial burden to the parties thereto, besides dragging the litigation further. It is possible that these states also found that the performance of the State Administrative Tribunals was not quite satisfactory. A joke is told about the UPAT that they decided to summon the Chief Secretary, whereopon the government promptly decided to take away the powers of contempt from them.
We did not come across any such adverse observation made by the Justice Malimath Committee or by the Hon'ble Supreme Court in the above case about the functioning of the CAT or State Tribunals. If someone will study the statistics of the writ of appeals before the High Courts and the Supreme Court where the decisions of the Tribunals were upheld, then alone we will know the percentage of confirmation of the decisions rendered by Tribunals which we feel, will be very high. Such incidence of confirmation of the decisions of the Tribunal will be a great indicator of efficacy, success of the justice rendering mechanism of the Tribunals. We are not aware if any such statistics are available in the DoPT or any other forum, but, we strongly feel that such a mechanism should be created.
In the history of CAT, two core issues come up – one of which was about the writ jurisdiction of the High Courts. Another was the issue regarding the disposal of cases by a Single Member Bench. As back as in 1991 the then Chairman of CAT has looked into the question of categorization of cases appearing before the CAT and prescribed guidelines as to what type of cases can be brought and heard before a Single Member Bench. He was careful to include a comprehensive guideline to say that when the parties apply for a case to be heard by a Division Bench, then so shall be done. Also, later in the case of ........... Ram Vs. ICAR, their lordships in case No................... have held that there is no bar on a Single Member Bench hearing and disposing the cases except when there is an issue of constitutional interpretation. This was further quoted in L. Chandra Kumar Vs. UOI in Ors. In which their Lordships held that the vires of Sec. 5(6) is not questionable. However, precaution must be taken that when a question of constitutional interpretation comes, the matter must be referred to a Division Bench of the Tribunal. Subsequently, another case became important in the history of CAT namely ..............Govt. of MP Vs. Thakre & Ors. The case is interesting enough to merit some details at this juncture. First of all, it arose not from any application decided by CAT but from an application decided by MPAT. Therein the Chairman of MPAT had previously issued a notification authorizing Member (Judicial) of MPAT to exercise all the powers of the State Tribunal itself When the case of Shri Thakre & Ors. Came up, it was heard by another Member (Administration) sitting single who disposed it. Hence, the main issue before the Apex Court was whether the said order was ab-initio ultra vires. While deciding the matter, their Lordships came across two issues -
(a) Whether the authority of the Tribunal can at all be delegated to a Single Member Bench?
(b) When it is delegated to one particular Member (Judicial), whether a Member (Administration) can exercise the authority?
Without any need to go into first question, their Lordships have set aside the decision of MPAT on the ground that the matter was disposed of by a Single Member (Administration), who was not authorized by Chairman.
It is pertinent to note that in the said judgment although their lordships have recorded that the quashing of the orders is not merely on the ground that the Chairman had not authorized the Administrative Member. On the other hand, in case of CAT, the notification issued about Single Member Bench cases, no distinction has been made between a Member (Judicial) and a Member (Administration) and this position has been upheld in the case of L. Chandrakumar Vs. Union of India & Ors. Hence, the CAT has to take up a categorical stand in the issues raised by the subsequent judgments of High Courts of Karnataka and Kolkata.

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RA No.26 OF 2012 IN O A No.261 of 2010 on ??-09- 2012

RA No.26 OF 2012 IN O A  No.261 of 2010 on ??-09-  2012

CENTRAL ADMINISTRATIVE TRIBUNAL
BAGALORE BENCH : BANGALORE

REVIEW APPLICATION No.26 OF 2012
IN
ORIGINAL APPLICATION No.261 of 2010

TODAY, THIS THE ............ DAY OF SEPTEMBER, 2012

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

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

C.B. Krishnappa,
S/o late Basappa,
Aged about 41 years,
Post-Graduate Teacher (Chemistry),
Jaahar Navodaya Vidyalaya,
Adilabad, Andhra Pradesh. ... Applicant

(By Advocate Shri B.S. Venkatesh Kumar)

Vs.

1. Union of India, rep. by its Secretary,
Ministry of Human Resources Development,
(Department of School Education and Literacy),
North Block, New Delhi – 110 001.

2. The Commissioner,
Jawahar Navodaha Vidyalaya Samithi,
No.A-28, Kailash Colony,
New Delhi – 110 040.

3. The Deputy Commissioner,
Navodaya Vidyalaya Samithi,
Hyderabad Region,
No.1-1-10/3, S.P. Road,
Secunderabad – 500 003. ... Respondents


O R D E R - (BY CIRCULATION)

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 10th December, 2010, in OA No.261/2010.
2. In the R.A., he has made the following prayer:
"To review the order dated 10.12.2010 in OA No.281/10 and thereafter quash the impugned transfer order dated 21.6.2010 and direct the respondents to transfer the applicant back to Navodaya Javahar Navodaya Vidyalaya, Bagalur, Bangalore, and if need be, with a further direction that the present incumbent should be transferred to any other place where vacancy exist."


  1. The applicant is seeking this review in OA No.261/2012, by mentioning the grounds at paras 3.1 to 3.4 and these grounds are new facts and this Tribunal cannot go into new facts and grounds in the Review Application.

  1. The present review is filed under Section 22(3)(f) of the Administrative Tribunals Act, 1985. The scope and power of this Tribunal under this Section is limited and akin to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC. As per the settled principles under the above Section, no new grounds can be urged in a Review Application.

5. The Hon'ble Apex Court in Ajit Kumar Rath Vs. State of rissa and Others – (1999) 9 SCC 596 held that "power of review available to the Tribunal under Section 22(3)(f) is not absolute and the same is 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.

    6. The crux of the Review Application is that the applicant now wants to bring before us a new document. This is a circular bearing F. No.10-66/ 2010-NUS(SA), dated 19.3.2010, which, in a nut-shell, says that if an erroneous staff is to be transferred, first he has to be given a notice, etc. The applicant claims that he was not aware of this circular at the time of disposal of the OA. Thus, this is a new ground that he wants to bring before us. At this stage we are not inclined to go into the merit of whether his claim as having been transferred as an erroneous staff is correct or otherwise. That stage, in our opinion is over since long. At this stage, we cannot take cognisance. Thus, we find that there is no error apparent on the face of the record or any other ground to review the decision in OA No.261.2010.
    7. The OA is therefore, dismissed. No order as to costs.
(LEENA MEHENDALE) (K.B. SURESH)
MEMBER (A) MEMBER (J)





psp.

Interim order in O.A. No. 512/2009

Interim order in O.A. No. 512/2009  (4) 26.02.2013
Applicant by Shri P. J. Prasadrao, Learned Counsel. Respondents by Shri R. R. Shetty, Learned Counsel. 2. The respondents had filed M.A. No. 41/2013 on which certain directions were given as per the Daily Order Sheet dated 23.01.2013.  The respondents have now filed affidavit dated 23.02.2013 submitting that they have issued the necessary order dated 19.02.2013, annexed to the affidavit, whereby the sanction of the President to implement the order of Central Administrative Tribunal dated 19.04.2011 has been communicated.  Para 2 of the order gives further instructions to actually work out the details payable to the applicant duly supported by Audit Report from PCDA, SC, Pune, for processing a separate sanction and for getting the charged expenditure noted by MoD/Fin(Bud) before releasing the amount. The order clarifies that the actual payment shall be released after all these are complete. 3. In view of this, through the affidavit filed by the respondents they make a prayer to grant time up to 31.05.2013.   In view of the first step having been completed by Respondent No. 1, the time up to 31.05.2013, as prayed for is allowed. M.A. is allowed. Respondents No. 2, 3 and 4 will ensure that all the required formalities, as detailed in para 2 of the sanction order dated 19.02.2013, are completed before 15.04.2013 and the payment is actually received by the applicant before 31.05.2013. The Learned Counsel for respondents also undertakes to ensure that a copy of the order dated 19.02.2013 is given
to the present applicant within seven days, which the respondents have not done so far. 4. Call on 10.06.2013.  Copy of this order be given to the parties.
(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)       Member (J) Member (A)

Bom OA NO. 597 of 2012. on 05-03-2013

Bom OA NO.  597 of 2012. on  05-03-2013
CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.:  597 of 2012.
Dated this  Tuesday,   the  5  th       day of  March,    2013.
CORAM  :  Hon'ble Smt. Leena Mehendale, Member (A).
   Hon'ble Smt. Chameli Majumdar, Member (J). Veena Tyagi, Joint Director (KBCS), Knowledge Based Computing Systems, Centre for Development of Advanced Computing, Rain Tree Marg, Sector 7, CBD, Belapur, Navi Mumbai – 400 614. R/at : A-1402, Tulsi Gagan Society, Sector 21 Kharghar, Navi Mumbai 410 210. ... Applicant. (By Advocate Shri R. R. Shetty)
VERSUS 1. Union of India through the Secretary, Department of Electronics & Information Technology (Deit Y), Ministry of Communications & Information Technology (Govt. of India), Electronics Niketan, 6, C.G.O. Complex, Lodhi Road, New Delhi 110 003. 2. Director General, Centre for Development of Advanced Computing, Pune University Campus, Ganesh Khind, Pune 411 007. 3. The Executive Director, Centre for Development of Advance Computing, Gulmohar Cross Road No. 9, Juhu, Mumbai 400 049.        ...        Respondents. (By Advocate Shri V.S. Masurkar along with Smt. H. P. Shah).
2 O.A. No. 597/2012
O R D E R Per  :  Smt. Chameli Majumdar, Member (J).
The applicant presently working as Joint Director, Knowledge Based Computing System  at Centres for development of Advanced Computing System, has filed this O.A., challenging her contractual appointment vide letter of appointment dated 05.11.2007 on the ground of discrimination and arbitrariness. 2. Briefly stated, the facts of the case is that the applicant, a M.Tech in Computer Science from IIT, Roorkee in 2006, worked in various organizations under Ministry of Communication and Information Technology after completion of her B.Tech from IIT Kharagpur in the year 1992. Presently, the applicant is the Technical Group Head of CDAC, Kharghar. 2.1  Pursuant to an advertisement issued by the Centre for Development and Advanced Computing, Mumbai, [in short 'CDAC'] in May 2007, the applicant applied for the post of Sr. Research Scientist.  It appears from the advertisement, which is annexure A-5 to this O.A., that there was only one post of Sr. Research Scientist in the pay scale of Rs. 14300-400-18300.  The
3 O.A. No. 597/2012 applicant, who was already working in Centre for Development of Telematics [in short CDOT], New Delhi, applied in response to this advertisement. 2.2 The CDAC is an autonomous Scientific Society headed by the Chairman, who is the Union Minister of Communication and Information Technology.  The Society is controlled by the Governing Council headed by the Union Minister. Below the Governing Council there is a Coordination Committee headed by the Secretary, Department of Electronics and Information Technology, which is above the Board headed by the Director General of CDAC.  One of the CDAC Centre is in Mumbai having three offices under it, of which the Head Office is in Juhu, Mumbai and there is another officer at Kharghar, Navi Mumbai.  2.3 The applicant was appointed vide letter of appointment dated 05.11.2007 after qualifying in the interview.  She joined at Kharghar. 2.4    The contention of the applicant is that she came to know about the fact of two different nature of appointment in the post of Sr. Research Scientist when the benefits of pay under the recommendations of Sixth Pay Commission was given from two dates.  The applicant was told that
4 O.A. No. 597/2012 there were two different types of post in CDAC, Mumbai, one being a regular post and another on contract basis.  The applicant received the benefits of Sixth Pay Commission under protest. However, the applicant contended that she was still of the view that the employees who were working on regular basis in NCST (C-DAC Mumbai formerly known as NCST before merging with C-DAC) were the only regular employees in CDAC Mumbai and all the recruitments after the merger are made on Grade Based Contract. The applicant stated on oath that she was under the impression that all the appointments made in CDAC are only on Grade Based Contract as was the norm so known to her during her appointment in  C-DOT where she joined in 1996 as Research Engineer and was promoted to the next grade as Team Leader until she quit C-DOT to join CDAC in February, 2008. 2.5 The applicant became Technical Group Head vide standard operation procedure manual dated10.08.2011 and started regularly participating in administrative affairs by virtue of being a Member of the Management of Advisory Committee of CDAC, Mumbai.  There she obtained information and there she learned that one Dr. C.P. Johnson, who was employed at Pune was
5 O.A. No. 597/2012 transferred at his own request to Mumbai and joined as Jt. Director (Education and Training) at CDAC, Kharghar Centre in November, 2011.  She further learned that Dr. C. P. Johnson was appointed in the post of Joint Director/Senior Research Scientist and the appointment was not a Grade Based Contract but regular and against one post advertised on 25.04.2008.  Only thereafter the applicant sought the manpower detail of CDAC, Mumbai, vide her e.mail. After obtaining the information she realized that there was only one post of Joint Director/Senior Research Scientist on regular basis in the scale of Rs. 14300-18300. The applicant further came to know that Smt. Padmaja N. Joshi was appointed against the single post as advertised in May 2007 on regular basis, who participated in the same selection process with the applicant.  The applicant was shocked to know that under the same selection process although the post was mentioned one, the applicant was appointed on Grade Based Contract post, which was not even sanctioned.  Although it was shown from the advertisement that there was only one post in 2007, suddenly a new advertisement for recruitment was issued against two posts on 25.04.2008.  The applicant was under
6 O.A. No. 597/2012 the bona fide belief that appointments are only on contract basis until she became a technical head in Kharghar Office and got to know about the shocking state of affairs in the Organization and the hostile discrimination meted out to her.  As such, there was no question for her to apply again pursuant to the subsequent advertisement dated 25.04.2008.  The applicant further contended that she  was also blissfully  unaware of the fact till November, 2011 that one Shri Subramaniam, was appointed on regular basis as Senior Research Scientist pursuant to the advertisement dated 25.04.2008. So in November 2011 only the applicant realized that three persons were working on regular basis in the posts of Sr. Research Scientists while she was appointed on a Grade Based Contract for a period of five years.  2.6 The applicant made several representations to different authorities dated 03.01.2012 and 15.10.2012.   The representations of the applicant were unactioned.  She made an application under Right to Information Act for copy of the selection proceedings on 03.01.2012 wherefrom it became evident that the advertisement of May 2007 against which the applicant applied was for only
7 O.A. No. 597/2012 one regular post but a panel of three candidates was made.  The first empanelled candidate was given regular appointment and the applicant being in the second position, was offered Grade Based Contractual appointment.  The applicant was informed vide letter dated 29.09.2012 on e.mail that they were still looking into her grievances and would consider it by the end of October 2012. 2.7 The applicant, became aggrieved by the act of discrimination and non transparency in the action of the authorities regarding her appointment vis-a-vis the appointment of Smt. Padmaja N. Joshi, appointed in regular post pursuant to the selection process of 2007 and Shri N. Subramaniam, who was appointed in regular post after the applicant in 2008 as well as Dr. C. P. Johnson appointed in regular post in  2011 against the second vacancy advertised in 2008, that too four years after the applicant was appointed.  The applicant has challenged the action of the authorities in issuing the appointment letter dated 05.11.2007 which says that the applicant was appointed as Sr. Research Scientist on contract basis initially for a period of five years and extendable further period based on performance and requirement of C
8 O.A. No. 597/2012 DAC. The applicant has challenged her contractual Grade Based appointment vide her letter dated 05.11.2007 in this O.A. of 2012 since such illegal, arbitrary and discriminatory action did not come to the knowledge of the applicant until she became a Technical Group Head at Kharghar in 2011. The applicant is also aggrieved by the letter dated 19.10.2012 calling her for review of her performance on 29/30.10.2012.  The applicant apprehended that the intention of the authorities was to convert her appointment against project under the pretext of performance review.  The grievance of the applicant is that the respondents resorted to gross arbitrariness and hostile discrimination in appointing the applicant on contract in spite of having regular posts advertised within five months from the date of her appointment in C-DAC. 3. The respondents have filed their reply. The contentions of the respondents are, inter alia, as follows : 3.1 The present application is barred by limitation as per the provisions of Administrative Tribunals Act, 1985, as amended upto 1987.  The applicant herself is well educated and hence enough to know the pros and
9 O.A. No. 597/2012 cons implications of acceptance of offer letter, mentioning the entire terms and conditions of the Contract.  The respondents contend that the advertisement was published for the post of Senior Research Scientist (pre-revised Grade 14300-400-18300).  A Committee was formed to select the candidates and interview was conducted.  Ms. Padmaja Joshi was suitable candidate for the said post hence Committee recommended the said candidate on regular post. Committee also found that the applicant and one Ms. Geetha Andrew be given appointments in grade for the projects.  Hence Committee recommended both the candidates for grade base appointment. It does not need any approval as per the “clause no. 18.1.8 of Bye Laws of CDAC Appointment on Project Based Contract. 3.2 It is further contended by the respondents that as per the recruitment procedure of C-DAC followed at the time of the recruitment of applicant, the tenure of appointment of employee on contract basis was extendable based on their performance during a review and the continuing requirement of C-DAC, which was also clearly mentioned in the appointment letter of applicant. Applicant was issued instruction to appear for
10 O.A. No. 597/2012 the review on 29.10.2012 but she did not appear for a review.  In these circumstances, the grievance of the applicant is not maintainable in law and hence the Original Application is liable to be dismissed in limine.  The respondents also contend that in 2007 C-DAC Mumbai had only one regular vacant post for Senior Research Scientist (pre-revised grade 14300-400-18300) available which was advertised. 3.3 The respondents contend that although the advertisement was for one post, the interview committee found two other candidates suitable for contractual position.   The applicant was free to get clarifications in writing from C-DAC before accepting the offer, if she had any doubts about the terms and conditions of appointment. Applicant may be considered for promotion from the pre-revised scale of Rs. 14,300-18300 to Rs. 16,400-20000 whenever promotions are processed at C-DAC. 3.4 In C-DAC, Mumbai, some posts are filled up as regular appointment based on vacancy and some are offered on contract basis against project requirements.  As there were contract posts available in the same grade as that offered to Ms. Padmaja Joshi at C-DAC, Mumbai and the
11 O.A. No. 597/2012 performance in the interview of other two candidates, viz. Applicant and Ms. Geetha Andrew, was found meeting the requirements of CDAC, the Committee recommended offering them appointment on contract basis in the grade.  Applicant accepted the offer of appointment on 5 year contract basis in the grade and joined C-DAC, Mumbai on 14.02.2008.  However, the other candidate, viz. Ms. Geetha Andrew, who was also offered the same contract appointment as the applicant did not accept the offer.   The C-DAC, Mumbai had requirement of recruiting scientific staff at the level of Senior Research Scientist in the year 2008.  Since no regular vacant posts were available in the grade 14300-400-18300, two vacant regular posts at the level of Principal Research Scientist (pre-revised grade 16400-45020000) were down-graded to the level of Senior Research Scientist (pre-revised scale of Rs. 14300-400-18300). 4. We have heard Shri R. R. Shetty, Learned Counsel for the applicant and Shri V. S. Masurkar, Learned Counsel along with Smt. H. P. Shah, Learned Counsel for the respondents. 5. From a perusal of the advertisement dated 16.05.2007 it appears that C-DAC advertised only
12 O.A. No. 597/2012 one post of Sr. Research Scientist and for appointment in the said post only, the applications were invited from eligible candidates. The applicant as well as the respondents have annexed the minutes of the Selection Committee meeting held on 29.10.2007. In the said minutes it was clearly mentioned that the number of post was only one and appointment in the post of Sr. Research Scientist will be a regular appointment.  However, the Committee made a panel in order of merit of three candidates. In the chart containing these three names it was mentioned that Smt. Padmaja Joshi was selected for regular post and the applicant, being in the second position, was appointed on five year contract basis.  It is submitted that the candidate at the third position in the panel did not continue service in CDAC. 6. It is well settled that the appointment to any post under the State or its Instrumentality can only be made after making proper advertisement inviting applications from eligible candidates and holding a selection by a body of experts or a specially constituted committee, whose members are fair and impartial, through a written examination or interview or some other
13 O.A. No. 597/2012 rational criteria for judging the inter se merit of the candidate who applied in response to the advertisement. Hon'ble Supreme Court in the case of K. Shekar Vs. Indiramma [2002 (3) SCC 586] while observing the importance of publicity and transparency in public employment through advertisement rejected the argument that since the appointment was to a post lower than the post advertised, it was not necessary to advertise for the lower post since the advertisement had been issued for the higher post.  Following is the observation of the Hon'ble Supreme Court : “If this argument was accepted, it would amount to violation of Articles 14 and 16. The absence of an advertisement necessarily deprived persons who could have applied for the post, of the opportunity of applying for the post.  The clause in the advertisement which enabled the Selection Committee to recommend the candidate for a lower post if the candidate was not found suitable to fill the post applied for, did not give NIMHANS the power to appoint the recommended candidate against an unadvertised post.” 7. The Hon'ble Supreme Court in the case of N. T. Bevin Katti Vs. Karnataka Public Service Commission [AIR 1990 SC 1233]  observed that candidates who apply pursuant to the advertisement and undergo a written or viva-voce test acquire a vested right for being considered for selection in accordance with the terms and conditions contained in the
14 O.A. No. 597/2012 advertisement, unless the advertisement itself indicates a contrary intention.  Therefore, it was not open to the Selection Committee to offer any such terms which were not indicated in the advertisement.  However, the applicant reasonably believed that the terms of appointment in CDAC must be contractual inasmuch as she got the appointment against a singular post which was advertised in 2007.  8. The Hon'ble Supreme Court further held in the case of State of U.P. Vs. Rajkumar Sharma [2006 (3) SCC 330] that filling up of vacancies over and above the number of vacancies advertised would be violative of Article 14 and 16 of the Constitution. However, filling up vacancies in excess of vacancies advertised will not be invalidated if the State takes a decision in an emergent situation or under exceptional circumstances though normally fresh recruitment process should be undertaken for the vacancies not advertised. The respondents have taken a plea in the written statement that two regular posts of Principal Research Scientists were down graded in 2008 itself after admitting that there was requirement of Scientific Staff in 2008.  It is evident that two posts were advertised within a span of less
15 O.A. No. 597/2012 than five months from the date of the issuance of the letter of appointment to the applicant.  From the minutes of the meeting of the Selection Committee of 2007 Selection dated 29.10.2007 it appears that a panel of 3 candidates was prepared.  It was not open to the Selection Committee or the authorities to offer appointment of one regular post to the first empanelled candidate and contractual appointment to the empanelled candidate who figured in the second position, being the applicant.  The panel could be made only for the regular post inasmuch as the panels are made in view of contingencies of not accepting appointment by the first empanelled candidate or sometimes due to some exigencies to fill  up the anticipated vacancies which were available at the time of issuing the advertisement but not advertised for whatever reasons.  In sum and substance, preparing a panel of selected candidates with two different terms of appointment not indicated in the advertisement and without bringing to the knowledge of the selectees offering them employment on contract basis is wholly arbitrary, unfair, discriminatory and violative of Articles 14 and 16 of the Constitution.  The authorities ought not to have
16 O.A. No. 597/2012 offered appointment of two different kinds, being one regular and the other contractual, to two empanelled candidates under the same selection process pursuant to the same advertisement without any corrigendum or notification for the knowledge of the empanelled candidates. Such action is arbitrary and violative of Articles 14 and 16 of the Constitution. 9. The applicant reasonably believed and legitimately expected that she was the only candidate who was appointed since the advertisement mentioned only one post.  There was no occasion for her to doubt the nature of employment inasmuch as she believed that the nature of employment in CDAC is contractual and not regular.  Such reasonable belief also prevented her to apply for the advertisement in 2008 since the language of these two advertisement are identical, without any mention of regular or contractual appointment.   Had it been known to the applicant that pursuant to the selection in October 2007 one Mrs. Padma Joshi was appointment on regular basis, she might not have accepted the contractual appointment and alternatively she could have appeared in the selection process pursuant to the advertisement
17 O.A. No. 597/2012
in April, 2008. 10. From the perusal of the two appointment letters, being one regular issued to Mrs. Padma Joshi and the other being contractual, issued to the applicant, it appears that the other terms and conditions are same.  However, since Mrs. Padmaja Joshi topped the merit position, her appointment cannot be and has not been challenged or questioned by the applicant in the instant O.A.  Her contention is that the advertisement was not transparent about the appointment of dual characters to the empanelled candidate in the same selection process and as such she was ignorant about the regular appointment of Smt. Padmaja Joshi at the time of accepting her appointment. 11. The respondents' contention is that there is no illegality or infirmity in the appointment letter and the applicant with her open eyes accepted the appointment.  Therefore, after five years only she turned around and filed this O.A. Her action suffers from principle of estoppel and acquiescence.  The plea of the respondents that the applicant did not challenge her appointment letter vide order dated 2007 instantly nor did she ask for interpretation, is of no avail.  The
18 O.A. No. 597/2012 immediate grievance of the applicant is unfair and arbitrary action of the respondents in appointing  Shri K. P. Johnson in 2011 against a regular post pursuant to the advertisement in 2008  as well as appointment of Shri Subramaniam in regular post pursuant to the same advertisement of 2008.  There is substance in the contention of the applicant that she was completely in darkness with regard to the existence of regular posts in the organization and appointment of one Mrs. Padmaja Joshi in regular post along with her when the advertisement was for only one post.  The Hon'ble Supreme Court in the case of K. Shekar  (supra)  held that to get rid of the 'weed' so to speak, one had to eliminate the 'root'. Starting with the root, the applicant's appointment on contract basis was not in terms of the advertisement pursuant to which she applied for one post. It was not mentioned in the advertisement as to whether the said post was a contractual post or a regular post but the number of post was mentioned as one. 12. The learned counsel for the applicant has taken us through the Memorandum of Association for CDAC.  Para 18.1 deals with the terms of
19 O.A. No. 597/2012 appointment.  Para 18.1.2 and 18.1.3 are set out herein below : “18.1.2   All the employees except as covered in para 18.1.3 below, hereafter shall be recruited in the Society for the probation period as specified in the Recruitment Rules and on clearing this shall be employed on contract for the duration of 5 years.  The contract shall be renewable based on satisfactory performance review for further periods of five years at a time, till attaining the age of superannuation, i.e., 60 years. 18.1.3     The Society may, in the interest of Organization and on specific merits of the candidates, also recruit staff employees against regular vacancies.  Such appointments shall, however, be made only in the pay scale of Rs. 14300-400-18300 and above.” It is very pertinent to note in this connection that the pay scale for Sr. Research Scientists being Rs. 14300-400-18300 as was mentioned in the advertisement dated 16.05.2007 matches the regular post as delineated in para 18.1.2 of the bye-laws for C-DAC. 13.  From a perusal of the affidavit in written statement of the respondents it appears that the respondents now diverted their plea that the applicant was appointed as per clause no. 18.1.8 of the bye-laws of the C-DAC appointment on project based contract.  Para 18.1.8 is set out herein below : “18.1.8   Appointment on Project-Based Contract :    (a)    The Competent Authority shall be
20 O.A. No. 597/2012 competent to engage a person on contract in pay scale other than regular posts, upto the scale of posts, which do not require approval/clearance of ACC. (b) The Competent Authority shall be competent to engage a person on contract for projects for the duration of such projects, which have been approved by DIT or any other sponsoring organization.  Persons appointed on such contract basis will be paid consolidated emoluments.  The emoluments and terms of appointment shall be settled in advance between the Society and the incumbent. All other things being equal, preference may be given to these employees at the time of filling up of regular posts subject to merit and meeting the provisions of Recruitment Rules of C-DAC.” 14. The applicant has annexed one appointment letter dated 05.10.2007 in her rejoinder, being annexure A-28.  The said appointment letter made it very clear that offer of appointment was against a Project vacancy, which is conspicuously absent in the letter of appointment of the applicant. It is apparent from the aforesaid paragraphs regarding appointment on Project Based Contract that the competent authority can engage a person on contract in pay scale other than regular posts.  Paragraph (b) says persons appointed on such contract basis will be paid consolidated amount.  The terms and conditions as mentioned in the appointment letter of the applicant and the pay scale, which is similar to the regular post, under no circumstances come
21 O.A. No. 597/2012 under the Project Based Contract appointment. 15.  In the written statement the respondents have not dealt with the pleadings paragraph-wise as made out in the O.A., save and except bald denial in one paragraph.  There is not a single specific and contentious denial of the averments as made out in the O.A.  The respondents have failed to show any document to prove that the applicant was made aware that although she was appointed against the advertisement which said about one vacancy, three persons were appointed and one of them was a regular appointee. 16. We are, however, not inclined to disturb the appointment of Mr. Subramaniam, who was duly appointed pursuant to the advertisement in 2008 and not made a party in this O.A.   Mr. K.P. Johnson is also not a party before us. So we are not inclined to adjudicate upon the irregularity or illegality, if any, in respect of his appointment. From the records and the pleadings it is clearly revealed that the authorities treated the applicant in a very shabby, unfair and discriminatory manner, violating her fundamental rights as envisaged in Articles 14 and 16 of the Constitution in issuing the letter of appointment to the applicant in November, 2007
22 O.A. No. 597/2012 on contract basis and appointing Smt. Padmaja Joshi in regular post pursuant to the same selection process held in October, 2007 and same advertisement, that too for filling up only one post vide advertisement dated 16.05.2007.  The respondents failed to justify the contractual appointment of the applicant,  even if the contention of the respondents is believed that in view of requirement of Sr. Research Scientists in 2008 two posts of Principal Research Scientists were down graded in 2008 itself and were advertised within a span of not even five months from the date of issuing of the appointment letter to the applicant on contract basis.  It was further unfair on the part of the respondents in filling up only one post in 2008 and the other post in 2011 against the advertisement for two posts in 2008 apparently designed to suit their purpose, which appears to be in gross  misuse and abuse of their power. 17. We, therefore, direct the respondents to regularize the appointment of the applicant.  If no post of Senior Research Scientist is available, the respondents will create a supernumerary post for regular appointment of the applicant with effect from the date Mr.
23 O.A. No. 597/2012 Subramaniam was appointed and give her all consequential benefits.  The respondents shall comply with the directions within a period of three months from the date of receipt of a copy of this order.  The interim relief granted vide Tribunal's order dated 13.02.2013 is made absolute.  18. The O.A. stands allowed in terms of above directions.  No order as to costs.
(Smt. Chameli Majumdar)   Member (J)   (Smt. Leena Mehendale)             Member (A)
os*

Wednesday, September 14, 2016

TA No.381 of 2011 on ??????????

CENTRAL ADMINISTRATIVE TRIBUNAL
BAGALORE BENCH : BANGALORE

TRANSFERRED APPLICATION No.381 of 2011

TODAY, THIS THE ................. DAY OF ..........., 2013

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

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







O R D E R

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

This is a batch of ...... people filing the applications between OA No.359/2011 to 392/2011, all filed in and around August, 2011 and all having a common issue, namely, a huge fraud amounting to more than Rs.1.00 crore in the respondent Postal Department under the Head Post Office of Raichur and in the Sub-Post Office of Shaktinagar, in the matter of NSC Certificates and S.B. Accounts committed during the period 2003 to 2006 in which the applicants have been held responsible for contributory negligence and charged under Rule 16 of the CCS (CCA) Rules, 1965, for a minor penalty and the actual penalty imposed is of recovery of varying amounts which could be attributed to those applicants in view of their period of holding the post connected with the fraud.

2. Since all these applicants have a common grievance, for the sake of convenience, we take up the matrix of OA No. 381/2011 and decide all the other cases by a common order. The following table broadly shows the list of such applicants.



3. The main kingpin of all these frauds is one Shri N. Rakesh Kumar, working as Sub-Postmaster of Shaktinagar SO. His modus operandi was by using the NSCs from the stock on hand y making fictitious entries of transfer of those certificates from one person to another without actually transferring those certificates from person to person. The fraudster used to place indents on Raichur HPO for suppy of huge number of certificates, which he would use for the purpose of creating fictitious accounts as well as for showing transfer of accounts from one person to another person. These frauds were noticed by Audit party and first Police complaint was lodged under CR No.40/2006 dated 30.05.2006 at Shaktinagar Police Station reporting frauds amounting to Rs.7,97,070/-. Charge sheet for this complaint has been filed by Police in Raichur JMFC Court under CC No.118/2008. A second complaint was lodged under CR No.71/2010 dated 17.06.2010 at Shaktinagar Police Station reporting frauds amounting to Rs.9,45,549.70. Police have filed charge sheet in respect of second complaint also and 4 CC Nos. were allotted separately yearwise as 276,277,278 and 279. Shri N. Rakesh Kumar has already been dismissed from service by conducting disciplinary proceeding against him and he has not challenged the same anywhere.

3. All the 14 applicants have been held responsible for contributory negligence. It is not the case of the respondents that they have actually committed the fraud or have actively abatted the fraud. The respondents have taken an apparently lenient view to hold all of them responsible only for passive negligence and hence, issued charge sheet for minor penalty under Rule 16 of CCS (CCA) Rules.

4. As could be seen from the above chart, 10 applicants out of 14 have worked as NSC PA for some time or the other on the concerned counter of NSC-II at Raichur Head Post Office. Hence, they fall in one category. In the second case, the applicants were working at Shaktinagar Sub Office itself and they formed the second category. The basic theme of minor penalty charge against them is similar.

5. In the case on hand, i.e., OA No.381/2011, a charge memo was served on the applicant on 23.3.2010 (Annexure-A/1) along with the statement of imputation of mis-conduct. It gives all the detaisl fo the period or the duties on which he worked as NSC PA at Raichur Head Post Office. The period of fraud is stated to be between 10.6.2003 to 16.1.2006 and the details of NSC Certificates improperly handled by him are given.

6. The applicant has pointed out by way of 3 charts in para 4 of the OA that instead of recovering the total amount of fraud from the fraudster himself, the respondents have sought to recover it from 29 various officials working either at Head Post Office at Raichur or at the Sub-office at Shaktinagar, by holding them as responsible for the loss through their negligence. It is seen from the chart that 4 officials mentioned at Chart-I have not been issued the charge memo as they have volunteered to credit the amount of loss attributed to them. Another 5 officials mentioned at Chart-II were charged and the amount of loss attributed to them has been recovered. Yet 17 other officials as shown at Chart-III are also issued the charge memo and recovery was ordered from their salary in monthly instalments commencing from July, 2010. 14 out of them are before us through these O.As. The applicant also claims that 2 other connected officials, viz., Shri Sadashivappa and Shri Venkobpol , who also worked as NSC-II PA have escaped action.

7. The applicant has stated the facts in his OA as below:

The applicant was issued a memo dated 23.3.2010 alleging that while he was working as NSC-II Posta Assistant in Raichur Head Post Office certificatres were supplied to Shakthinagar SO without ensuring the credits of certificates supplied previously and also without ensuring the authorized limit of Shakthinagar SO. It is also alleged that due to non-maintenance of NC-12(A) register, the stock certificates held at Shakthinagar SO on day to day basis not made known and it resulted in excess holding of certificates and thereafter, utilization of amount of certificates by Sri N. Rakesh Kumar for his personal use. By these acts, it was alleged that the applicant has failed to observe the provisions of Rule-5(2), Rule-6, Rule-7, Rule-20, Rule-33(2) and Rule-51 of Post Offices Savings Bank Manual Volume-II and exhibited lack of devotion to duty, contravening the provisions of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964 (Annexure-A/1). The applicant submitted his explanation to the above charge memo on 17.06.2010 stating that so far as the allegation of supply of NSC to Shakthinagar was concerned it was the duty of the APM (NSC) Raichur, he is not responsible for the same. On every day he was asked to attend NSC-II branch in addition to his NSC counter. The Divisional administration has committed the mistake in transferring Shri N. Rakesh Kumar to Shakthinagar SO which led to fraud. The applicant explained in detail the true facts and denied the charge with a request to drop the proposed action. (Annexure-A/2). However, the Respondent No.4, without considering the explanation submitted by the applicant properly, passed an order dated 18.06.2010 holding that the applicant has failed to maintain the NC-12(a) register and in watching the prompt receipt of monthly statement of stock of unsold certificates from Shakthinagar SO and also submit the monthly returns to audit. It was held that the fraud could have been detected at initial stage itself. Accordingly, the Respondent No.4 held that there existed good and sufficient reason for ordering a recovery of Rs.5,00,000/- from the salary of the applicant in 80 equal instalments at the rate of Rs.5000/- commencing from July, 2010 (Annexure-A/3). Thereafter the applicant preferred an appeal to Respondent No.3, raising several grounds to hold that the recovery ordered against him is unjustified. In particular, the applicant has stated that:
  • there has been explained delay in initiating disciplinary action
  • lack of fairness on the part of the disciplinary authority;
  • vague allegations;
  • failure to observe the instructions issued by the DoP&T vide memo dated 09.01.1971 and 11.11.1998
  • lack of supervision over the discharged NSC certificates;
  • inaction of the authorities to transfer Shri N. Rakesh Kumar from Raichur as per rotation transfer guidelines;
  • lack of control by the supervisory officers and their failure to check the irregularities, etc. (Annexure-A/4).

However, the Respondent No.3, dismissed the same by an order dated 14.02.2011 (Annexure-A/5). The applicant's gross salary salary is Rs.29,983/- per month and in view of the above recovery, his take home pay is Rs.15,962/- per month. He therefore, prays for the following:

  1. To quash (a) the memo No.F5/1/2005-2006 dated at Raichur, the 18.06.2010, issued by the Respondent No.4 (Annexure-A/3) and (b) Memo No. NKR/STA-4/768/10/11, dated at Dharwad the 14.02.2011, issued by the Respondent No.3 (Annexure-A/5);

  1. Direct the respondent No.4 to refund the amount recovered from the applicant in pursuance of the Memo No.F5/1/2005-2006 dated at Raichur, the 18.06.2010, issued by the Respondent No.4 (Annexure-A/3), with interest at 12% p.a. From the date the same was recovered till the date of payment.
    8. Briefly, he has taken the following grounds:
  • The applicant has worked for short spells of time from 02.06.2003 to 26.05.2004 as NSC-II PA in Raichur HO.
  • He had nothing to do with the allegation and
  • he was not responsible for supply of certificates as it was the duty of the APM (NSC), Raichur. As he had to discharge the duties of NSC-II PA in addition to his other duties, he is not responsible for other allegations. In any event, the alleged lapses on the part of the applicant does not call for a recovery of Rs.5,00,000/- as the alleged loss is too remote to attribute it to failure in making entries in the register and verification of stock certificates.


    1. There has been inordinate delay in initiating the disciplinary proceedings against the applicant. The allegeations pertain to the period from 2003 to 2006 and the charge memo has been issued in March, 2010. The imputation of misconduct disclose the lapses attributed to Sri N. Rakesh Kumar, for which the applicant is not at all responsible. The apportionment of the loss has been made against the officials arbitrarily, without any basis. The Respondent No.4 has not taken action against the said Sri N. Rakesh Kumar to recover the loss. The Postal Department noticed the fraud committed by Sri N. Rakesh Kumar in 2006. If the concerned supervisory officers were vigilant and careful in their duties the entire fraud could have been unearthed in 2006 only. Now, the supervisory officers want to find some scapegoats to cover up their lapses. The lapses against the applicant pertain to not ensuring proper supply of certificates to Shakthinagar SO and comparison of the balance of the certificates with the stock, in addition to not maintaining NC-12(a) register, which are minor in nature. Initiating action for these minor lapses after lapse of 5-6 years is not at all justified. The appellate authority has failed to consider the appeal in accordance with Rule 27 of the CCS (CCA) Rules, 1965. The respondents have failed to hold an enquiry and fix the responsibility on the concerned officials after affording them a reasonable opportunity of being heard.

  1. The learned counsel for the applicant has relied on the following judgments in support of his claim:
    1. State of Madhya Pradesh Vs. Bani Singh & Anr. - 1990 II LLJ 529 – on the ground of inordinate delay.

  1. State of Punjab & Ors. Vs. Chaman Lal Goyal – SLJ 1995 (2) SC 126 – again on the ground of inordinate delay.


  1. We have heard both the counsels at length and gone through the pleadings as well as the cited judgments.

  1. The issue involved is of ciphoning of public money to a huge extent. The person who sits at the headquarters as the dealing PA (Postal Assistant) is at the cutting edge of the transaction. The fraud to the extent of Rs.1.00 crore in National Savings Certificates is equivalent to mis-handling of more than thousand such certificates. Maintaining the NC-12(a) register is the crux of such transactions. The register has to be written and maintained not on a monthly or weekly basis, but on daily and perhaps, on hourly basis, in fact, as and when any issuance of new certificate to a valid customer occurs or as soon as a transfer from one depositor to another occurs. The first act by any Postal Assistant is to make an entry in the NC-12(a) register. How the Raichur Head Post Office could do without proper maintenance of NC-12(a) register for more than 3 years and also how they could not keep a track of blank certificates issued to Shakthinagar SO for huge batches of stock is beyond anybody's imagination. These two irregularities are bound to be noticed by any ordinary Postal Assistant with ordinary knowledge and vigilance at the time of very first entry that he/she is required to make. We therefore, find absolutely no logic in the contention of the applicant that he was there only for a short period or as an occassional occurrence or was looking after the work only as an additional work. The ground of delay in issuing the charge memo is also rejected in view of the fact that the department has initiated action against the said N. Rakesh Kumar in 2006. When the amount of fraud involved is more than Rs.1.00 crore, it does take time to make complete inquiry and to cull out the contributory responsibility of all the associated persons. The amount of recovery fixed also does not appear to be arbitrary. The applicant has not been able to pin-point clearly any mistake in the details furnished in the charge memo. Moreover, as a huge fraud occurred over a large period and with large number of officials to whom contributory negligence can be attributed, the department has to go by certain thumb rules or fixed some slabs for the recovery. Unless there are specific instances of discrimination with malafide intentions amongst the 29 officials held responsible for contributory negligence, the plea of arbitrariness in the amounts recovered has to be rejected.
    12. A close reading of the CCS (CCA) Rules shows that recovery of financial loss of Government is the first priority in any case of fradulant or negligent loss to Government. This is so because the money thus lost is a loss to the public in general. Since the recovery is the first priority, the Rule 14 and Rule 16 of the CCS (CCA) Rules, which deal with major penalty and minor penalty respectively have clearly differentiated. Rule 14 for major penalty do not incude recovery as a penalty and expects the Disciplinary Authority to recover the loss as a first step without waiting for the process of major penalty. Hence, the major penalty can be given even after recovery of the amounts. Rule 16 for minor penalty, however, incudes recovery as one of the penalties. The principle behind minor penalty is that a loss may have occurred through negligence but not through deliberate intention. In such a case, a senior officer has to look at the erring junior official as one of the team members and hence, if the senior officer and particularly the Disciplinary Authority feels that the erring officers can be trusted not to make a similar mistake in future, then, it is upto the Disciplinary Authority to let the matter rest by merely ensuring recovery for the loss of the Government. The present case appears to be a case where in view of the obligation that speedy recovery of money lost to Government, and may for the reason of mutual trust and faith the senior officers of the Postal Department have decided not to take recourse to major penalty. That is the reason why only a minor penalty charge sheet has been issued to the applicant. Therefore, there seems to be no reason to stop recovery.
    13. Although, the OA mentions perfunctorily that it was the responsibility of the supervisory officers to be vigilant and careful and they should nt have made the present applicant as one of the scapegoats, we find it necessary to mention that the burden of vigilance and proper supervision lies as much on the present applicant as on the senior officers. As already explained, the applicant is working at the cutting edge of the transaction and would be the first to notice the irregularity and discrepancy on the ordinary vigilance. Therefore, there cannot be any denial that he is responsible for contributory negligence. At the same time, we feel that it is the occassion for the higher autorities in the Postal department to take note of the fact that their senior and very senior supervisory officers have also been negligent in their role of supervision. We notice that the present bunch of 14 applicants is not the only set of such fraud. Similarly, frauds have also occurred under the Chitradurga Head Post Office, Haveri Head Post Office and the Jayanagar Post Ofice of Bangalore Head Post Office as is seen from the various O.As filed before this Bench. Surely, the seniormost officers of the department have to revamp their registers, revamp the procedure for maintaining the registers and also set up adequate monitoring machinery. The present case appears to us as a classic case where the supervisory officers have abdicated their role and left everything for the Audit party to unearth by way of a post mortem only after a huge sum of public money has been fraudulantly taken away.

  1. We therefore, direct Respondents No.1 and 2 to address these issues and frame necessary guidelines within a period of six months if they have not already do so far.
    15. The respondents also cite by way of Annexure-R/3, the judgment of this Tribunal in OA No.411/2007, wherein a similar case had come up from Raichur Head Post Office. There also, the main kingpin of fraud was one Basavarajappa, SPM, Balaganur, who had committed a series of SB/RD/NSC fraud amounting to several lakhs of rupees and the applicant was charged with contributory negligence and was given a minor penalty of recovery of the money attributable to the applicant of the said act. While dismissing the said OA, this Bench has also observed the following:
    "5. It is settled position that in disciplinary proceedings the Court/Tribunal has very limited scope to interfere. It is not the case of the applicant that the authorities which passed the orders are not competent to do so. It is also settled position that each disciplinary case is to be decided on the facts and the circumstances of each case and they cannot be compared with one another. The learned counsel for the respondents submitted on instructions across the Bar that disciplinary proceedings under Rule 14 of the CCS (CCA) Rules have been initiated against the said Shri Basavarajappa.

6. In view of the above facts and circumstances and admittedly the respondents have not violated the procedure laid down under the CCS (CCA) Rules, imposing minor penalty and the applicant had availed of all the opportunities available to her including personal hearing, as discussed above, we are of the view that the Tribunal has no scope of interfering with the orders passed by the competent authorities in the disciplinary proceedings against the applicant. We, therefore, find no merit in the O.A. and the same is accordingly dismissed with no order as to costs."
    15. In view of the foregoing discussions, the OA is dismissed. No order as to costs.
(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER (J) MEMBER (A)



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