Dismissed

C.J.Jose v. Union of India

Kerala HC8 Aug 2016OP (CAT)/191/2016

Case brief

AI extract

What is this about?

This Court disposed of an Original Petition challenging a Tribunal order that declined to decide merits of a charge sheet but directed departmental authorities to finalise Rule 16 disciplinary proceedings. The Court declined interference, clarifying that the petitioner must approach the Tribunal for relief against the penalty order and stating that Tribunal's fact-based observations would not affe

What the court decided

AI extract

C.J.Jose Vs Union of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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OP (CAT).No. 191 of 2016 (Z)

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AGAINST THE ORDER IN OA NO.180/00786/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 19-05-2016

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PETITIONER:

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C.J.JOSE, AGED 58 YEARS, S/O.C.L.JACOB, ASSISTANT ENGINEER(ELECTRICAL) TRICHUR CENTRAL ELECTRICAL SUB DIVISION, CENTRAL PUBLIC WORKS DEPARTMENT, AG'S OFFICE BUILDING, TRICHUR-20, RESIDING AT:CHEMMANNUR HOUSE, POST CHETTUPUZHA, TRICHUR DISTRICT, PIN-680 012. BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA

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RESPONDENTS:

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UNION OF INDIA,REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF URBAN DEVELOPMENT, NEW DELHI-110 001.

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THE DIRECTOR GENERAL,CENTRAL PUBLIC WORKS DEPARTMENT, MINISTRY OF URBAN DEVELOPMENT, NIRMAN BHAVAN, NEW DELHI-110 001.

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THE DEPUTY DIRECTOR (ADMN)-1, OFFICE OF THE DIRECTORATE GENERAL, CENTRAL PUBLIC WORKS DEPARTMENT, NIRMAN BHAVAN, MINISTRY OF URBAN DEVELOPMENT, NEW DELHI-110 001.

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SRI.SAMAR BAHADUR, EXECUTIVE ENGINEER(P)E, OFFICE OF THE CHIEF ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT, HYDERABAD.

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THE SUPERINTENDING ENGINEER(E), BCED, CENTRAL PUBLIC WORKS DEPARTMENT, BANGALORE-560034.

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THE CHIEF ENGINEER(HEAD QUARTERS), OFFICE OF THE DIRECTORATE GENERAL,CENTRAL PUBLIC WORKS DEPARTMENT (EC-III SECTION), NIRMAN BHAVAN, NEW DELHI-110 001

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THE SUPERINTENDING ENGINEER(E), TCEC, CENTRAL PUBLIC WORKS DEPARTMENT, CGO COMPLEX, THIRUVANANTHAPURAM-695 005.

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R1 TO R3 & R5 TO R7 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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OP (CAT).No. 191 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 TRUE COPY OF THE ORDER DATED 19/05/2016 IN OA NO.180/00786/2015 RENDERED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P2 TRUE COPY OF OA NO.180/00786/2015 DATED 3RD OCTOBER, 2015 ALONG WITH ITS ANNEXURES FILED BY THE PETITIONER,BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. P3 TRUE COPY OF REPLY STATEMENT ALONG WITH ITS ANNEXURES FILED ON BEHALF OF THE RESPONDENTS DATED 02 FEB 2016 IN OA NO 180/00786/2015 BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. P4 A TRUE COPY OF OFFICE MEMORANDUM BEARING NO. 22011/4/91-ESTT(A)DATED 14/09/1992 , ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA.

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RESPONDENT(S)' EXHIBITS: N I L

/TRUE COPY/

P.S.TO JUDGE

Kss

P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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O.P.(CAT)No.191 OF 2016

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Dated this the 8^th August, 2016

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JUDGMENT

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P.R. Ramachandra Menon, J.

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The course pursued by the Tribunal by passing Ext.P1 order in O.A.No.180/00786/2015 declining to deal with the merits of the case with reference to the correctness and sustainability of Annexure A1 charge sheet, but for directing the authorities concerned to finalise the proceedings within a specified time as ordered therein, is the subject matter of challenge in this Original Petition.

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The petitioner joined service of the CPWD as Jr. Engineer, way back on 12.11.1979. It is stated that he subsequently came to be promoted as Assistant Engineer and was working in the said post, drawing the maximum salary payable under the particular scale (which is stated as more than

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the pay packet of the Executive Engineer) right from 2003 and it became still higher from 2009.

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O.P.(CAT)No.191 OF 2016

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The petitioner purchased a small extent of land, i.e. 4.05 Ares ( about 10 cents) for valuable sale consideration in October, 2012, from a stranger. But the sale could be intimated to the departmental authorities only on 10.09.2012. On submitting the intimation as above, the petitioner was required to submit explanation as to why 'prior approval' was not obtained, vide communication issued on 18.10.2012. Annexure A4 notice was issued directing the Superintending Engineer to get the particulars from the petitioner in respect of the above transaction, upon which the Superintending Engineer issued Annexure A5 dated 29.01.2013. Though in Annexure A4 notice, the extent of land was shown as only 04.05 Ares, when Annexure A5 came to be issued by the Superintending Engineer, it was wrongly shown as 4.05 Acres . As a matter of fact, according to the petitioner, no prior permission is necessary from the department, but for giving prior intimation, it being a purchase from a stranger. Annexure A6 is the explanation given on 07.02.2013. Thereafter, vide Annexure A7, additional explanation was sought for, which was furnished as per Annexure

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O.P.(CAT)No.191 OF 2016

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A8 dated 03.03.2013. Without properly appreciating the facts and figures, Annexure A9 show-cause notice came to be issued on 03.07.2013 by the Chief Engineer at New Delhi, as to why further action shall not be pursued against the petitioner. The position was sought to be explained vide Annexure A10 reply dated 17.07.2013 and the matter was left there without any further course of action. Later, when steps were about to be taken to effect promotion to the post of Executive Engineer, somebody behind the curtain moved strings to precipitate the issue and caused to issue Annexure A1 charge sheet dated 18.07.2014 with intent to proceed with the enquiry under Rule 16 of the Central Civil Services (Classification, Control and Appeal)Rules, 1965. The petitioner submitted Annexure A11 reply, wherein he fairly conceded as to the non-submission of 'prior intimation' to the Department, which was sought to be explained with reference to the illness of his wife, marriage of his son and such other mitigating circumstances.

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The willingness of the persons, including the petitioner, who were coming within the zone of consideration and who were

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O.P.(CAT)No.191 OF 2016

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eligible to be promoted to the post of Executive Engineer, having either Degree or Diploma, was called for vide Annexure A12 dated 02.03.2015. It is revealed from the proceedings that the petitioner was placed at Sl.No.29 (persons having Degree). Though the petitioner expressed his willingness, he was overlooked and juniors were promoted as per Annexure A2 dated 18.05.2015, which was sought to be challenged by filing O.A.No. 180/405 of 2015 before the Tribunal. The said O.A. was disposed of as per Annexure A13 order dated 01.06.2015 with liberty to the petitioner to move the departmental authorities by way of representation, giving appropriate directions to have it considered and disposed of, as specified therein. It was accordingly, that Annexure A14 representation was submitted. But no action was taken, but for asking the petitioner to submit more information. As per Annexure A16 dated 24.06.2015, further clarification was sought for , which in turn was submitted vide Annexure A17. The authorities were still not satisfied and the petitioner was served with Annexure A18 dated 03.09.2015, seeking for some more details, particularly as to whether the

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petitioner had obtained any sanction from the Government to join the ' chitti' run by the KSFE (a State Government undertaking), which was stated as one of the sources for arranging funds for purchase of the property, apart from the borrowings from the sister and such other sources. Finally, Annexure A3 order (dated 11.08.2015) could be issued, rejecting

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the representation, stating that the petitioner could not be considered for promotion to the post of Executive Engineer, in view of on-going disciplinary proceedings and that 'sealed cover procedure' had been adopted in this regard. This made the petitioner to rush to the Tribunal by filing O.A.No.180/00786/2015. After hearing, the said O.A. was disposed of, directing the concerned respondent to finalise the proceedings within the time as specified therein, (without dealing with the merits), which made the petitioner to approach this Court by filing this Original Petition, to have a decision on merits .

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Heard the learned counsel for the petitioner and the learned Assistant Solicitor General on behalf of the respondents

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O.P.(CAT)No.191 OF 2016

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concerned. It is submitted from the part of the respondents that, pursuant to Ext.P1 order, disciplinary proceedings were finalised by the competent authority by passing an order dated 31.07.2016, observing that, by virtue of the habitual circumstances brought to light, the petitioner had been mulcted with the penalty of reduction to the lower scale by two stages for one year, without cumulative effect (without affecting his pension). This being the position, if the petitioner is aggrieved of the said proceedings, it is for him to have the same challenged, submits the learned Assistant Solicitor General.

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The learned Counsel for the petitioner submits that the course and proceedings pursued by the concerned respondents are per se wrong and illegal in all respects and it was nothing but a vindictive exercise to deny the chances of promotion to the petitioner, who has an unblemished track of record for more than 36 years. It is also stated that the performance of the petitioner was rated as 'outstanding' by the higher authorities; and it was only to give early promotion to the juniors that the petitioner was sidelined, that too, on a flimsy charge. It is also a

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O.P.(CAT)No.191 OF 2016

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fact that the petitioner had purchased only a small extent of property of 04.05 Ares ( about 10 cents), that too, by virtue of the earnings made by him, by virtue of employment as Junior Engineer/Assistant Engineer, the amount obtained from a State Government owned undertaking, i.e.K..S.F.E. under a 'chitti', borrowings from his sister and by virtue of his savings. The learned counsel also submits that the proceedings initiated against the petitioner under Rule 16 of the Central Civil Services (Classification, Control and Appeal)Rules, 1965 and by virtue of the mandate under Annexure A19 Vigilance Manual, it could only be a 'minor penalty', which would have been over by one year and there is absolutely no rhyme or reason for having protracted the matter from 2012 till 2016, adversely affecting the rights and interests of the petitioner .

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After hearing both the sides, this Court finds that the only point to be considered is whether Ext.P1 verdict passed by the Tribunal does require any interference at the hands of this Court, at this stage. It is stated that a misconduct has been committed by the petitioner for having not intimated the

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O.P.(CAT)No.191 OF 2016

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purchase of the property in advance, in tune with the relevant norms/rules. But what is the gravity of the said misconduct, even if proved or and what could be the appropriate punishment in terms of the relevant provisions of law, is the question. When a disciplinary proceeding is pursued against an employee and when promotion is due, by virtue of law declared by the Apex Court, 'sealed cover procedure' has to be adopted, which in fact has been done in the instant case as well. The challenge against Annexure A1 charge sheet, as such, was not entertained by the Tribunal and the respondents were directed to complete the enquiry proceedings within a specified time, as revealed from the operative portion of the order, which reads as follows:

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“The respondents are given four weeks time from the date of receipt of order to finalise Rule 16 proceedings and issue orders thereon. The applicant should make available to the respondents all the required particulars/informations pertaining to the issue covered by the charge. If necessary, a personal hearing be held with the applicant within this 4 week time so that applicant can furnish all the information required by the respondents to finalise the case. The third prayer in the O.A. regarding promotion as Executive Engineer is only to

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O.P.(CAT)No.191 OF 2016

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be considered following the outcome of the above direction as per 'sealed cover procedure' instructions.”

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Pursuant to the above verdict, the disciplinary

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proceedings were over, leading to the order dated 31.07.2016. This Court does not propose to go into the merit of the said order, i.e., whether the same is in conformity with the relevant rules to sustain the punishment, that too, when there is an observation that the petitioner was pursuing such instances on a habitual basis. It is open for the petitioner to have the same challenged, if he is aggrieved in any manner by way of appropriate proceedings. We, however, make it clear that the observation made by the Tribunal in Ext.P1 with reference to the facts and figures, if at all adverse in any manner to the petitioner, the same shall not have any effect in so far as the merit of the case was not considered by the Tribunal. The observations in Ext.P1 would only remain to justify the action of the Tribunal in not entertaining the merit, but to have ordered the matter to be finalised in accordance with law and that's all.

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O.P.(CAT)No.191 OF 2016

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With the above observation/clarification, we decline interference with liberty to the petitioner to move the Tribunal by way of appropriate proceedings. If the course pursued by the departmental authorities is ultimately found as not correct or sustainable, the petitioner will be entitled to get appropriate reliefs in accordance with law.

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The Original Petition is disposed of as above.

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P.R. RAMACHANDRA MENON, JUDGE

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ANIL K. NARENDRAN, JUDGE

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C.J.Jose v. Union of India

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C.J.Jose v. Union of India

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