Govt can frame guidelines for DPCs: CAT

New Delhi, Oct 28 (PTI) The Central Administrative Tribunal (CAT) has held that government can frame guidelines for departmental promotion committees (DPCs) and judiciary will not question its validity so long as it provides level playing field for all candidates.

"The government has a right to frame the guidelines for the DPCs and there cannot be any judicial interference in such case, unless the same are perverse or are drafted to favour a class of candidates," CAT Vice Chairman L K Joshi and Member Meera Chhibber said.

The tribunal passed the order on a plea of a Delhi police sub-inspector, challenging the promotions made on the basis of 2008 circular which issued guidelines for the DPC to promote eligible police personnel.

The sub-inspector, Ram Niwas, contended that DPC should have followed 2005 guidelines for promotions and not the 2008 guidelines which was issued after creation of vacancies.

Pensionary benefits only after 20 years of service: CAT

New Delhi, Jul 28 (PTI) Government employees can claim pension only if they have completed a minimum of 20 years of service, the Central Administrative Tribunal (CAT) has held.

"The applicant, Mukesh, cannot claim pension, only for the reason that he had opted for the VRS. Qualifying service is essential for a government servant to claim pension as there is no relaxation permissible," the CAT, headed by Vice Chairman M Ramachandran, said.

The Tribunal passed the order on a plea of a Delhi Transport Corporation (DTC) employee who alleged that he had not been given the pensionary benefits after he opted for voluntary retirement scheme (VRS) and sought directions for relief.

The CAT noted that the pension scheme was there as per the Central Civil Services (Pension) Rules and minimum incumbency of 20 years of service was required for a person to claim pension as a matter of right.

CAT says govt lacks grace, asks ITDC to pay arrears to ‘relieved’ employee

New Delhi : The Central Administrative Tribunal (CAT), country’s apex public services disputes redressal court, has slammed the government for dealing with difficult employees in manner that lacks grace.

“The court cannot but condemn circuitous ways (of the government) to cast out uncomfortable employees. As a model employer, the government must conduct itself with high probity and candour with its employees,” a Bench of Dr D P Sharma and N D Dayal of CAT observed in its written order, released on Wednesday.

The Bench was referring to the case of M L Jain, former vice-president of India Tourism Development Corporation (ITDC), who was hastily “relieved” from duty after 34 years of government service. His only “indiscretion” was he wanted to postpone an official transfer to organise his daughter’s wedding. “In the modern and uncertain age it is very difficult to (be certain about) one’s future. Flexibility is required, and if it does not jeopardise government or administration, they should be graceful enough to acknowledge the flexibility of human mind and attitude,” the Bench said.

Jain, a resident of Gautam Budh Nagar, had worked outside Delhi for 25 years. When he received a transfer order to Kolkata as vice-president (East) on February 17, 2005, he wrote back requesting permission to operate from Delhi as preparations for his daughter’s wedding on July 13, 2005, were already underway.

Later, Jain wrote to ITDC again saying he was willing to opt for voluntary retirement as there was “no other male member in the family” and he had to make the necessary wedding arrangements.

Shortly after, Jain received a response from ITDC allowing him to continue in the Capital till the end of July, following which he had to join duty at Kolkata.

Happy with the response, Jain immediately expressed his wish to withdraw his request for voluntary retirement, but much to his chagrin, found that he had instead been relieved.

Jain told CAT he had requested for voluntary retirement only because he thought there was no other way he could be present for his daughter’s wedding. He also questioned why the ITDC had unexpectedly chosen to relieve him from service in “undue haste” and with “malafide intention” shortly after they agreed to defer his transfer till after the wedding.

ITDC contended before the Tribunal that Jain “wanted to stay in Delhi and for that purpose he put pressure on the respondent (ITDC) by opting for voluntary retirement”

“The applicant (Jain) has no right to withdraw his request, when his request for voluntary retirement had already been accepted by the ITDC management. No communication is required to be given,” the Corporation maintained, adding that his relieving from service was deferred only because of lack of funds to settle his claims.

Dismissing the ITDC’s arguments, however, the Bench ordered it to pay the entire arrears of salary due to Jain. “Much complication, which had arisen, could have been avoided by graceful attitude,” the Bench concluded.

Cortesy: Indian Express

Authorization of the Central Government to file an application u/s 3 of the Criminal Law (Amendment) Ordinance, 1944 for attachment

Authorization of the Central Government to file an application u/s 3 of the Criminal Law (Amendment) Ordinance, 1944 for attachment of the money or property procured by means of the scheduled offence.

Criteria for assessing sutability of officers where there is upgradation/ revision of pay scales GOI Om dated 9/3/2009

Revision of Pay scales- amendment in service/ recruitment rules GOI OM dated 24/03/2009

Departmental inquiry different from criminal proceedings: CAT

New Delhi, Mar 22 : A government employee who has been accused of irregularities cannot claim innocence in a departmental inquiry merely because he or she has already been absolved of the charges in criminal proceedings related to the case, the Central Administrative Tribunal has held.

"The approach and object in a departmental proceeding (against a government employee) is quite different. The preponderance of probability would be sufficient to come to a conclusion. The provisions of the Evidence Act do not strictly apply," CAT Vice-Chairman Justice M Ramachandran said.

The tribunal made the observation while dismissing an appeal filed by a UDC of Delhi Development Authority (DDA), Jagbir Chaudhary, who moved the HC to quash the departmental inquiry initiated against him after a CBI probe found nothing incriminating against him.

"A departmental inquiry is necessary to maintain discipline in the service in public interest, whereas the object of a criminal prosecution is mainly to determine whether a crime has been committed in violation of law," the CAT said while declining to interfere into the departmental inquiry.

The inquiry was initiated against Chaudhary for alleged irregularities, benefiting certain allottees whose documents seemed to be forged.

The irregularities include allegations that Chaudhary was involved in 43 of the 48 cases related to a realtor and a bribe of Rs four lakh was received by him.
Courtesy : Sahara samay

215th report of Law Commission regarding "Administrative Tribunal*

The Law Commission of India submitted to the Government of India, its 215th Report on “L. Chandra Kumar be revisited by Larger Bench of Supreme Court”. The Hon’ble Chairman of the Commission, Dr. Justice AR. Lakshmanan, former Supreme Court Judge, forwarded the said Report to the Hon’ble Union Law Minister, Dr. Hans Raj Bhardwaj, on 17th December, 2008.

A radical change was brought about in the constitutional law through section 46 of the Constitution (Forty-second Amendment) Act, 1976, which inserted new Part XIVA on ‘Tribunals’ in the Constitution. Article 323A empowers Parliament to provide, by law, for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The law may provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States. The law may take out adjudication of disputes relating to service matters from the hands of the civil courts and the High Courts.

Pursuant to the provisions of article 323A, Parliament enacted the Administrative Tribunals Act, 1985 (Act) to establish an Administrative Tribunal for the Union, viz., the Central Administrative Tribunal and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States. The establishment of Administrative Tribunals became necessary since a large number of cases relating to service matters were pending before various courts. It was expected that the setting up of the Administrative Tribunals would not only reduce the burden of courts, but would also provide speedy relief to the aggrieved public servants.

In S. P. Sampath Kumar [(1985) 4 SCC 458], the Supreme Court directed the carrying out of certain measures with a view to ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes were brought about in the Act by an amending Act (Act 19 of 1986). Jurisdiction of the Supreme Court under article 32 was restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar [(1987) 1 SCC 124] subject, of course, to certain amendments relating to the form and content of the Administrative Tribunals. The suggested amendments were carried out by another amending Act (Act 51 of 1987).

Thus became the Administrative Tribunals an effective and real substitute for the High Courts.

In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar [JT 1997 (3) SC 589] held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that 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. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.

As a result, orders of the Administrative Tribunals are being routinely appealed against in High Courts, whereas this was not the position prior to the L. Chandra Kumar’s case.

On 18th March 2006, the Administrative Tribunals (Amendment) Bill, 2006 (Bill No. XXVIII of 2006) was introduced in Rajya Sabha to amend the Act by incorporating therein, inter alia, provisions empowering the Central Government to abolish Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra Kumar. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 17th Report on the said Bill did not subscribe to the same and as for the provision for appeal to High Court expressed the view that the original conception of the Administrative Tribunals be restored and appeal to High Court is unnecessary, and that if a statutory appeal is to be provided it should lie to the Supreme Court only.

In the above backdrop, the Law Commission took up the study on the subject suo motu. The Administrative Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service matters. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136. The Law Commission is of the view that L. Chandra Kumar’s case needs to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected in the Act in accordance with law and it has recommended accordingly.

Pension part of right to life: Bombay HC

Mumbai: Pensioners now have a reason to smile. In a landmark judgment, the Bombay high court has held that pension is a vital aspect of social security and that the right to receive it constitutes a right to life under the constitution. Moreover, it held that pension must be paid regularly in the first week of the month.
‘‘Deprive a pensioner of the payment and you deprive him or her of the right to life. Delayed pensionary payments place a pensioner in a position of uncertainty and dependence which impinges on the quality of life under Article 21, and the right to dignified existence of the aged,’’ said Justice D Y Chandrachud while directing the transport undertaking of Solapur Municipal Corporation to deposit the pensions of 13 retired employees on the first day of the succeeding month or latest by the seventh day.
The judge noted that pensioners can’t be left to the mercy of the administration to receive what is a matter of right.
‘‘Pensioners must lead their lives with a sense of self-respect and dignity,’’ he held as he innovatively developed the rights of senior citizens, especially pensioners, in consonance with the guarantees expected under the constitution. The judgment was passed in a case where the Solapur civic body had challenged a direction of an industrial court which had labelled its action of delaying pension payments inordinately each month as an unfair labour practice and directed it to credit the monthly pension by the first day of each following month.
The civic body explained that it was in financial difficulties and said it could pay by the 15th and not the first. The civic body argued that the Maharashtra Civil Services (Pension) Rules does not mandate payment by the first of each following month. It says payment has to be made ‘‘on or after the first day...’’
Courtesy : Times of India
Original Court Order Here

CAT has no power to interfere in PCA matters: HC

The Allahabad High Court on Monday ruled that the Central Administrative Tribunal had no power to interfere if an action is taken against an officer under the Prevention of Corruption Act.

The court gave the ruling on a writ petition filed by the Uttar Pradesh government challenging an order of the Allahabad bench of the CAT.

Last February, the CAT had quashed a state government order directing lodging of an FIR against an IAS officer under the Prevention of Corruption Act after a vigilance probe found that he had allegedly amassed wealth disproportionate to his known sources of income.

A Division Bench comprising Justice Amitav Lala and Justice A P Sahi observed that the CAT had no jurisdiction to interfere in such matters.

It ordered that proceedings be initiated against the officer in accordance with the law.

SC verdict on out of Syllabus Question asked in Departmental Examination

An unsuccessful examinee challenged the departmental examination for the promotion of accounts officers, claiming that some questions were on topics that were not in the syllabus. The Central Administrative Tribunal allowed the application, directing that the minimum qualifying marks be awarded to all applicants in the questions concerned. The authorities won the case at the Andhra Pradesh High Court. When the examinee appealed to the Supreme Court, however, it dismissed the appeal, holding that the accounts officer was expected to have an overall knowledge of the accounts code, treasury rules etc. It added that it was not for the tribunal to pass an order on the supposition that the examinees had misunderstood the extent of the syllabus. (N. Lokanadham vs Telecom Commission)
CASE NO.: Appeal (civil) 2896 of 2008

UPSC cannot relax limit of four attempts for IAS aspirants: HC

New Delhi, Dec 16 (PTI) Ruling that the UPSC has no power to allow an IAS aspirant to make more than four attempts in Civil Services Examination (CSE), the Delhi High Court today rejected a candidate's plea to consider his fifth successful attempt as valid.
A general category candidate is entitled to make a maximum of four attempts but Praveen Sharma appeared in the exam for the fifth time after a single judge allowed him to do so while referring the matter to CAT for a final decision.

Sharma filed an appeal after Central Administrative Tribunal dismissed his petition for giving a direction to the UPSC.

A Division Bench of Justice Madan B Lakur and Justice Suresh Kait has now dismissed a his plea for a direction to the UPSC to consider his fifth attempt, in which he qualified all the tests including final interview in 2006, as the final try and consider fourth as "aborted attempt" as he failed to sit in all the papers due a serious accident.

"There is no doubt that undue hardship has been caused to petitioner (Sharma) due to an accident and circumstances beyond his control but that by itself does not mean that the rules which are applicable to all candidates should be waived in so far as Sharma is concerned...This would result in a chaotic situation and even the UPSC may not be able to handle it," the Bench observed in a judgement.

In the petition Sharma said that he had appeared the examinations in 2001, 2003, 2004 and during his fourth attempt in 2005 he had met with a serious accident as a result he was not able to appear in some papers and in 2006 his application for another attempt was rejected by the Commission.

Being aggrieved with the UPSC's decision, Sharma had approached the High Court with a submission that his fourth attempt should not be treated as the final chance and to be treated as "aborted attempt". PTI

Allahabad HC: CAT cannot interfere with orders of state govt against IAS

The Allahabad High Court ruled that the Central Administrative Tribunal (CAT) cannot assume its competency to frustrate the actions taken under the Prevention of Corruption Act, by the government against an Indian Administrative Service (IAS) or any officer.

Quashing an order passed by the CAT (Allahabad), the bench, consisting of Justices Amitava Lala and A P Sahi observed that power to the CAT was given after curtailing the powers of the High Court by virtue of Article 323-A of the Constitution of India, but sky is not the limit to construe as such by it.

The Judges, while allowing the writ petition filed by the UP government said, ‘As the power is high, preservation of the power is higher than that, unnecessarily the jurisdiction of the tribunal cannot be widened to interfere with orders/action taken by the government against the officers under the Prevention of Corruption Act.’ The High Court in its order has clarified that any order to be passed by the Court under the Prevention of Corruption Act is appealable and revisable as per the power conferred by the CrPC in the High Court. Therefore, such power cannot be regulated by the CAT.

The CAT Allahabad by an order passed on February 18, 2008 had quashed the order and had set aside all consequential action including FIR lodged against Vijay Varshney, an IAS officer in UP under section 13(1)(c) of the Prevention of Corruption Act, 1988 on his Original Application (OA) filed before it.

Vijay Varshney was promoted to IAS cadre in the year 1999 and was posted as District Magistrate, Lakhimpur. The charge against him was that he had amassed asset disproportionate to his known income and for which vigilance inquiry was ordered on February 28, 2007 and it had directed to lodge an FIR against him under the Prevention of Corruption Act. The order of the State government was challenged before the CAT by Varshney.

The Court rejected the argument of counsel A K Srivastava, appearing for the IAS officer that proceeding may be criminal nature in pursuance of filing of FIR, but it concerns service of an employee and therefore CAT had the power to interfere with order of the State government.

UNI

Prosecution sanction- evidence of sanctioning/ authenticating authority

Source here

'Employer cannot dictate the uniform linen': HC

Chennai, Nov 5: Asserting that an employer cannot dictate the type of material to be used for uniform, the Madras High Court today set aside a order by the Chennai Airport directing a woman employee to use only the dress prescribed by the Airports Authority while on duty.

Allowing a writ petition by a senior Office Assistant S Kasthuri in 1999, who used khadi/handloom material instead of silk while maintaining the colour prescribed by the airport, Justice K Chandru said the airport had the power to prescribe a uniform and even indicate the colour and shade of material one should wear but it cannot not dictate on the type of linen.

Silk and synthetic material prescribed were neither suited to our country nor did it reflect the ethos of the independence movement, he said.

"Rather than appreciating the principle stand taken by the petitioner, it is unthinkable that the respondent should come up with an unjustified reference to a so-called service regulation," the Judge said, adding that Article 51 A (b) of the Constitution clearly stipulated that a citizen of the Union had a duty to cherish and follow the noble ideals which inspired the freedom struggle.

He directed the Chennai Airport to pay Kasthuri Rs 5,000 as costs.

Kasthuri was appointed as a junior clerk in 1973 in the office of Director General of Civil Aviation. In 1989, she was made an employee of AAI and subsequently redesignated as senior office assistant. Since 1994 the employees were made to wear silk or polyster sarees.

The petitioner who used khadi/ handloom cotton dresses and khadi chappals was told in August 1996 to attend office in the prescribed uniform.

Kasthuri, inspired by life and principles of Mahatma Gandhi right from her childhood, contended that she neither collected her uniform sarees nor claimed any allowance in lieu of it. - Agencies

Courtesy_
http://news.chennaionline.com

continuing wrongs and recurring/ successive wrongs

The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. Supreme Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan -[AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963) :

"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held :

"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred........."

To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting
others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.