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2023 DIGILAW 1565 (CAL)

Lieutenant Governor v. Dharam Raj

2023-10-19

BIVAS PATTANAYAK, RAJARSHI BHARADWAJ

body2023
JUDGMENT : Rajarshi Bharadwaj, J. 1. The instant appeal arises out of an order dated August 5, 2022 passed by the Ld. Central Administrative Tribunal (CAT), Calcutta Bench, Circuit Bench at Port Blair in O.A. No. 351/01053/2018 (Dharam Raj v. Lt. Governor & Ors.), whereby the Learned Central Administrative Tribunal (CAT), inter alia, was pleased to dispose of the Original Application (hereinafter referred to as “OA”) filed by namely one Shri Dharam Raj, herein the respondent, quashing charge sheet and penalty order passed against the respondent. 2. Before considering the submissions made by learned counsel appearing on behalf of the respective parties, the facts of the case in a nutshell are that the respondent joined as Lower Grade Clerk (LGC) in AC Cadre in the Andaman and Nicobar Administration (hereinafter referred to as ‘Administration’) vide Order No. 1962 dated 19.04.1990 issued by the Chief Secretary herein petitioner no. 2 of the writ appeal. The respondent, while being attached to the Directorate of Information Publicity and Tourism and working in diverted capacity in the Protocol Section of the Secretariat was transferred and posted to General Administration of Secretariat Establishment vide Order no. 2835 dated 02.08.2010. 3. The respondent was working as LGC under the Civil Supply and Consumer Affairs Department (earlier Supply Department), on the basis of a training in Legal Metrology in 1994. By Order No. 842 dated 31.05.2011 which was issued by the Lieutenant Governor herein petitioner No. 1, was appointed as an Inspector (Weights and Measures) (earlier Legal Metrology Office) in Civil Supplies and Consumer Affairs Department with grade pay of Rs.4200/- w.e.f. 08.07.2006. In addition to his own duties, the respondent discharged duties of a Protocol Officer without any extra remuneration as directed in Order No. 2083 issued on 06.06.2011. The technical resignation of the respondent from the post of LGC was confirmed on 28.07.2011 by an Order No. 2817. 4. The appointment of the respondent to the post of Inspector (Weights and Measures) was challenged by one Shri Raj Kumar, an RTI activist in W.P.A No. 023 of 2012. The respondent was repatriated to his parent department as LGC; Order No. 842 was set aside by an order passed by the Hon’ble High Court dated 17.07.2012. The respondent was relieved of his duties from post of Inspector vide Order No. 1068 dated 24.07.2013. 5. The respondent was repatriated to his parent department as LGC; Order No. 842 was set aside by an order passed by the Hon’ble High Court dated 17.07.2012. The respondent was relieved of his duties from post of Inspector vide Order No. 1068 dated 24.07.2013. 5. The respondent failed to report for duty as LGS to the Deputy Secretary (Personnel) Andaman and Nicobar Administration, instead kept discharging the duties of a Protocol Officer under the Secretariat, Andaman and Nicobar Administration. On 02.12.2013, through an Order No. 3849, the respondent was given ad hoc appointment as Protocol Officer by the Administration. 6. The Hon’ble Tribunal through OA No. 121/A&N/2013 and MA No. 351/00024/2014 on 03.06.2014 directed the petitioner department to allow the respondent to serve as Protocol Officer. The Administration extended the ad-hoc appointment of respondent for further period of six months by an Order No. 2800 on 09.09.2014. 7. The Order No. 3918 dated 26.12.2014 entailed that respondent was permanently absorbed in the post of Protocol Officer w.e.f. 25.07.2013 approved by petitioner No.1, treating the period of service rendered by the respondent from 29.09.2009 to 24.07.2013 as Protocol Officer. 8. In W.P.A 047 of 2016 dated 18.03.2016, wherein the appointment of the respondent as Protocol Officer on ad-hoc basis and thereafter his absorption in the permanent post by order dated 26.12.2014 was under scrutiny, the Learned Single Judge, quashing Order No. 3849 and Order No.3918 was pleased to pass the following order :- “Since the service of the respondent No.6 in the parent Department as Lower Grade Clerk has not been terminated and since the respondent No.6 is willing to join back to the post of Lower Grade Clerk in the parent Department, the period of service rendered by the respondent No.6 under Andaman and Nicobar Administration from July 24, 2013 till the date of this order will be treated as on duty in his substantive post of Lower Grade Clerk under the parent Department. The respondent No.6 is entitled to get all benefits of service including financial benefits and advance career progression and promotion if any, to which he is entitled as Lower Grade Clerk in the department of Civil Supplies and Consumers Affairs, subject to the condition that the respondent No.6 will report for duty in the post of Lower Grade Clerk under the Department of Civil Supplies and Consumers Affairs within a period of ten days from the date of the order.” 9. The respondent vide application dated 17.06.2016 submitted his duty report as a Protocol Officer and the said report was returned to the respondent with a direction to report for duty as LGC to Principal Chief Conservator of Forest, Van Sadan, Haddo. However, the direction of the Administration was not observed by the respondent. 10. The respondent in pursuance of the order dated 18.03.2016 had to report for duty as LGC within ten days from date of the impugned order, but he failed to comply with the order. Absence without supporting documents occasioned two disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 against the respondent, being charge sheeted twice vides Nos. 45-561/2016-PW dated 21.07.2016 and No. 45-579/2017-PW dated 24.08.2017 respectively that culminated into one enquiry report Order No. 1349 of 16.05.2018 issued by petitioner No. 2 imposed a major penalty of dismissal from service as well as disqualification from future employment under the government. The grounds taken by the petitioner No. 2 was lack of absolute integrity, lack of devotion to duty, dereliction of duty and contravention of Rule 3 (i), (ii) (iii) of the CSS (CCA) Rules, 1965 by the respondent. 11. The respondent against the impugned dismissal order simultaneously submitted an appeal to petitioner No.1 as well as sought to quash the charge sheets and ex-parte enquiry report before the Learned CAT. The appeal was dismissed by petitioner No.1. However, the Learned CAT in OA. 351/1053/2018 stayed the penalty order till completion of proceedings directing the Administration to reinstate the respondent in the cadre of LGC. 12. The hearing before the Hon’ble CAT, Kolkata concluded on 25.07.2022 leading to the issuance of the following order :- “The respondent having deliberately prevented the applicant from joining the post of LGC in Civil Supplies Department in terms of Hon’ble High Court’s Judgment (supra), cannot be allowed to reap the benefit of his own wrong. 12. The hearing before the Hon’ble CAT, Kolkata concluded on 25.07.2022 leading to the issuance of the following order :- “The respondent having deliberately prevented the applicant from joining the post of LGC in Civil Supplies Department in terms of Hon’ble High Court’s Judgment (supra), cannot be allowed to reap the benefit of his own wrong. The respondent is therefore directed to deem the applicant to have joined the Civil Supplies and Consumer Affairs against the post of LGC, w.e.f. 13.01.2017 (10 days from the order dated 03.01.2017 allowing him consequential benefits, seniority and his career advancements in accordance with law” 13. Submissions of the Learned Counsel for the petitioner no.1 are that : I. The respondent being a government servant was duty bound to obey the orders of the Administration and ought to have reported and joined the Office of the Principal Chief Conservator of Forest as LGC immediately but he failed to do so. He defied the order of the Administration citing frivolous excuses. II. The Learned Tribunal erred in not appreciating that the respondent flagrantly violated the orders passed by the Learned Single Judge by not joining the post of LGC to Principal Chief Conservator of Forest, Van Sadan, Haddo within a period of ten days from the date of impugned order. The respondent sought permission vide his application dated 10.05.2016 to leave headquarter for availing medical treatments but his request was just an intimation without any valid medical documents. Memo No. 45-561/2016-PW specifically required the respondent to seek permission but he deliberately refused to receive it on several occasions. The respondent was disentitled to proceed with the appeal. III. There was no order directing the respondent to join the post. Despite repeated directions and intimations issued by the Administration, the respondent never challenged the transfer orders, failed and neglected to join the place of posting which made him liable under the CCS (CCA) Rules, 1965. IV. Though the Chief Secretary was the appointing Authority during the appointment of the respondent as LGC in 1990, the power for appointment to the Group C post of AC Cadre was subsequently delegated to the Secretary (Personnel) vide A & N Gazette Notification No. 27/09/10-1/2002 PW dated 12.02.2009. Thus as on date, the Secretary (Personnel) is the Competent Authority to appoint a person to the post of LGC as well as institute disciplinary proceedings in case of dereliction of duty. Thus as on date, the Secretary (Personnel) is the Competent Authority to appoint a person to the post of LGC as well as institute disciplinary proceedings in case of dereliction of duty. V. The disciplinary proceedings were initiated by the Secretary (Personnel), the present Appointing/ Disciplinary Authority on the direction of the Chief Secretary, the original Appointing/Disciplinary Authority and the penalty of dismissal from service was also imposed upon in accordance with the CCS (CCA) Rules, 1965 in consonance with Article 311 (10) of the Constitution of India. VI. The Departmental Proceedings instituted against the respondent was a lawful consequence of non-compliance of orders of Hon’ble High Court and Administration respectively. The proceedings were conducted rigorously under Rule 14 of the CCS (CCA) Rules, 1965 resulted in an inquiry report by the duly appointed Inquiring Authority. The articles of charges framed against the respondent in both the charge sheet are duly proven on the basis of listed documents and the statements recorded by the state witnesses. Hence, the respondent after participating in the disciplinary proceedings cannot challenge the Charge Sheets at a belated stage. VII. The Learned Tribunal did not appreciate a settled principle of law that the Courts ought not to interfere with the administrative decisions of transferring and posting incident with a government job. Determining the validity of the order directing the respondent to join its current place of posting is an ultra vires decision. It is the liberty of the Administrative Authority to transfer or post an employee on administrative grounds considering the availability of the posts and the workload. VIII. The contents of the Charge sheet vide Lett. no. 45-579/2017 - PW dated 06.09.2017 has not been specifically denied by the respondent. Though he was given final opportunity to submit his reply to the memorandum of charge sheet dated 21.07.2016 within 5 days from the issuance of the aforesaid letter, no reply was received for within the prescribed time. Disciplinary proceedings were instituted presuming that the respondent admitted the article of charges and action taken against him. IX. The Administration was right in posting the respondent as LGC to the office of the PCCF, Vansadan Haddo despite the requisition made for the post of Protocol Officer by the respondent. Disciplinary proceedings were instituted presuming that the respondent admitted the article of charges and action taken against him. IX. The Administration was right in posting the respondent as LGC to the office of the PCCF, Vansadan Haddo despite the requisition made for the post of Protocol Officer by the respondent. The Administration is the competent authority and all clerical staff in every office born only from the AC cadre can be transferred posted to any department as per functional requirement against sanctioned strength of that particular department. 14. The Learned Counsel representing the respondent submits that : I. The illegal dismissal from service dated 16th May, 2018 which was issued due to non-joining in the lower post as a Lower Grade Clerk (LGC) in a lower carder from which the respondent has come was entirely initiated vindictively against him without waiting for the final verdict from the Hon’ble High Court as well as the Hon’ble Supreme Court. II. The Secretary (Personnel), Andaman & Nicobar Administration lacks the competence to act as per the provisions of the CCS (CCA) Rules, 1965, and thus, does not hold the authority to issue the impugned Memorandum of Charge Sheet dated 21st July, 2016, with regards to the alleged failure to assume the position of LGC in the office of the Principal Chief Conservator of Forests. As per the said rules, only the Chief Secretary of the Andaman & Nicobar Administration is vested with the authority to function as the Disciplinary Authority for the issuance of such charge sheet. The incompetent authority proceeded to issue a subsequent Memorandum of Charge Sheet on the same set of charges dated 24.08.2017, without rescinding the prior Memorandum of Charge Sheet dated 21.07.2016 thereby violating the CCS (CCA) Rules, 1965. Moreover, Personal hearing by the Chief Secretary, (the Appointing Authority of the respondent) was not given even after request from the respondent. III. The Article of Charges and the Memorandum of Charge Sheet dated 21st July, 2016 suffer from inherent vagueness and are untenable in the eyes of the law concerning the respondent’s alleged failure to assume the position of LGC in the office of the Principal Chief Conservator of Forests. IV. III. The Article of Charges and the Memorandum of Charge Sheet dated 21st July, 2016 suffer from inherent vagueness and are untenable in the eyes of the law concerning the respondent’s alleged failure to assume the position of LGC in the office of the Principal Chief Conservator of Forests. IV. The respondent made a clear representation dated 12.10.2017 to the Enquiry Officer that he was unable to co-operate with the disciplinary proceedings initiated against him as he was engaged in unresolved proceedings of his appointment and regularization as a Protocol Officer in the Hon’ble High Court as well as the Hon’ble Supreme Court. Notwithstanding the respondent’s prior intimation, the Administration proceeded with the enquiry proceeding, deeming such notice to be tantamount to willful non-compliance on the part of the respondent. V. The Administration issued an Enquiry Report on 12.12.2017 hurriedly and hastily, without considering the legal notice forwarded by the respondent in connection to the charge sheet dated 18.07.2016 by the so called enquiry officer. The entire enquiry report is bad in law and liable to be set aside as the Administration failed to consider the reply submitted by the respondent against the report as well as several technical points raised by the respondent. VI. Despite the Learned Single Judge’s directive in WP No. 047 of 2016, instructing the Administration to allow the respondent to discharge duties as LGC in his original posting during the appeal’s pendency, the Administration deliberately and contumaciously disobeyed the aforementioned order by assigning the respondent to an external office of PPCF. 15. Having heard the learned counsel for parties and on perusal of records this Court is of the view that pursuant to the judgment rendered on the 13th of January, 2017 by the Hon’ble High Court of Calcutta, Circuit Bench at Port Blair, the respondent was obligated to promptly rejoin his parent Department in the capacity of a Lower Grade Clerk within a span of 10 days from the aforementioned order’s issuance. Regrettably, he did not comply with the directives issued by the Court instead he initiated a Mandamus Appeal and submitted a stay application before the Division Bench of the Hon’ble High Court, challenging the aforementioned order dated 13th January 2017; under the reference CAN No.5231 of 2017 with MAT No.892 of 2017. Regrettably, he did not comply with the directives issued by the Court instead he initiated a Mandamus Appeal and submitted a stay application before the Division Bench of the Hon’ble High Court, challenging the aforementioned order dated 13th January 2017; under the reference CAN No.5231 of 2017 with MAT No.892 of 2017. By virtue of the non-observance of the aforementioned order dated 13th January 2017, this Court shall decline to accord due regard to the said order. 16. It is imperative to acknowledge that the Judgment/Order dated 25th July, 2022, issued by the Central Administrative Tribunal (CAT), Kolkata in OA No. 3511/1053/2018, which alleges non-compliance by the Administration herein petitioner no.3 with the Hon’ble High Court’s order, neglected to adequately address all the arguments raised by the Administrative authority. Instead, the CAT primarily relied on the order issued by the High Court of Calcutta, Circuit Bench at Port Blair dated 13th of January, 2017, as the foundation for its decision. Consequently, owing to this Court’s non-recognition of the order dated 13th January, 2017, the subsequent judgment/order issued by the CAT, Kolkata, which relies upon the aforesaid Court’s order, shall likewise be deprived of due deference and consideration. 17. The Hon’ble Supreme Court in L. Chandra Kumar Vs. Union of India, reported in (1997) 3 SCC 261 opined that- “99. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.” In the instant case, the CAT, Kolkata functioning as a Court of “first instance” shall have the competence to adjudicate matters concerning the Central Civil Services (Classification Control and Appeal) Rules, 1965 and is subject to review or superintendence by a Division Bench of the High Court within whose jurisdiction the said CAT lies. 18. 18. It is settled principle of law that tribunals specifically empowered to adjudicate upon by virtue of their parent statutes are competent to test the vires of subordinate legislations, rules and statutory provisions. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court. Their function is only ancillary and all such decisions of the Tribunal will be subject to consideration before respective High Courts. 19. The Hon’ble Supreme Court in Union of India Vs. Alapan Bandyopadhyay reported in (2022) 3 SCC 133 reiterated that : “38. When once a Constitution Bench of this Court declared the law that "all decisions of Tribunals created under Article 323-A and Article 323-B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls", it is impermissible to make any further construction on the said issue. The expression "all decisions of these Tribunals" used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of original applications from one Bench of the Tribunal to another Bench of the Tribunal.” Thus, this Court, within its jurisdiction where the CAT, Kolkata operates has utilized its authority of judicial review to invalidate the judgment/order being OA No. 3511/1053/2018, issued by the CAT, Kolkata. 20. The CAT, Kolkata being constituted as the final fact finding authority, its determinations of factual matters shall be accorded as final and conclusive. This Court is of the opinion that the entire matter at hand in this writ proceeding necessitates a fresh and comprehensive re-consideration by the CAT, Kolkata. 21. Additionally, the affidavit preferred by the respondent regards to re-joining in his parent posting for assuming the role of Lower Grade Clerk (LGC) has been the subject of contention and subsequent rejection by the Administrative Authority. Therefore, this court shall refrain from examining its contents and instead, remand the matter to the Administrative Tribunal for re-evaluation and further deliberation in the light of all relevant legal and factual considerations. The Administrative Tribunal is instructed to expeditiously carry out the process of re-evaluation within a time frame of four months from the date of this order. 22. For the foregoing reasons the writ petition is disposed of. All pending applications are accordingly disposed of. 23. The Administrative Tribunal is instructed to expeditiously carry out the process of re-evaluation within a time frame of four months from the date of this order. 22. For the foregoing reasons the writ petition is disposed of. All pending applications are accordingly disposed of. 23. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all requisite legal formalities.