AI Structured Summary
Not yet generated for this judgment
Judgment
Per: Mr. Anindo Majumdar, Administrative Member:
The applicant has approached this Tribunal under section 19 of the Administrative Tribunal Act, 1985 praying for the following relief(s):
“a)To quash and/or set aside the impugned office order of the incompetent authority of Director General Ordnance (C&S) dated 15.07.2022 who is not a permanent Director General Ordnance (C&S) and who is holding the current duty charge to the said post by violation of the Fundamental Rule 49 of FRSR and such incompetent authority's order was communicated by one Junior Works Manager of Gun & Shell Factory, Cossipore to the applicant vide office letter dated 28.07.2022 being Annexure A-23 of this original application.
b)To quash and/or set aside the impugned order dated 09.01.2020 issued by the Additional Director General Ordnance Factory/Member, Ordnance Factory Board, Kolkata acting as an appellate authority which was communicated to the applicant vide office letter dated 22.01.2020 being Annexure A-20 of this original application whereby and whereunder the statutory appeal preferred by the applicant before the Director General Ordnance Factory-cum-Chairman, Ordnance Factory Board, Kolkata has been rejected by an incompetent authority.
c)To quash and/or set aside the impugned Charge-Sheet Memo dated 10.09.2011 issued by the General Manager, Gun & Shell Factory, Cossipore, being Annexure A-11 of this original application;
d)To quash and/or set aside the impugned Enquiry Report of the Enquiry Officer which was submitted vide letter dated 2nd November, 2011 to the applicant being Annexure A-15 of this original application;
e)To quash and/or set aside the impugned punishment order dated 17.02.2012 issued by the General Manager (Disciplinary Authority), Gun & Shell Factory, Cossipore by imposing penalty of reduction of pay by one stage and withholding the increment being Annexure A-17 of this original application;
f)To pass an appropriate order directing upon the respondent authority to consider the appeal preferred by the applicant before the appellate authority by setting aside and quashing the impugned punishment order dated 17.02.2012 passed by the Disciplinary Authority;
g)To declare that the action taken by the respondent authority by recovering the full amount of money as LTC Advance from your applicant along with penal interest and after receipt the same treating the applicant with a memorandum of charge-sheet with penalty order of punishment is a case of double jeopardy which is not permissible under the law and may be quashed and/or set aside along with all consequential benefits;
h)To declare that the impugned chare-sheet issued by the disciplinary authority and the order of punishment issued by the disciplinary authority and the order of incompetent authority dated 15.07.2022 is not sustainable in the eye of law on the ground that it is a case of double jeopardy. That the appellate order issued by an incompetent authority by violation of FR 49 of FRSR and provisions of CCS (CCA) Rules, 1965 who is on current duty charge or officiating capacity cannot discharge the statutory power and liability of a permanent DGO (C&S) which may be liable to quashed and/or set aside on the ground of incompetency by setting aside and/or quashing the impugned chare-sheet issued by the disciplinary authority and the order of punishment issued by the disciplinary authority and the order of incompetent authority dated 15.07.2022 and the applicant is entitled to get refund of the entire amount which was recovered from his salary with 80% interest in view of such illegality of the said authority concerned.
i)Costs;
j)Any other relief or reliefs as Your Lordship may deem fit and proper;”
Facts of the case
The facts of the case, Ld. Counsel for the applicant are summarised below:
The applicant, while working as Chargerman at Gun & Shell Factory, Cossipore, had applied for LTC advance for the Block Year 2010-2013 (Sub-Block 2010-2011) to visit Pahalgam with his family. On 01.09.2010, the concerned respondent authority had sanctioned an LTC advance of ₹46,170/-along with ₹7,400/- towards leave encashment.
Due to administrative and personal constraints (non-availability of tickets, mother's illness, and personal health issues etc.), the applicant sought amendments to his leave and journey period thrice vide letters dated 18.09.2010, 18 10.2010, and 18.01.2011. The respondent authority granted approvals for these extensions vide Orders dated 22.09.2010, 19.10.2010, and 21.01.2011 respectively.
On 20.07.2011, the applicant had again requested a deferment of his journey date to 14.08.2011. The respondents, viewed the repeated non-utilization of advance money for nearly a year as highly irregular, issued advisories dated 02.08.2011 and 14.08.2011 directing him to refund the total amount of ₹57,802/- (comprising ₹46,170/- LTC advance + ₹7,400/- leave encashment + ₹4,232/- penal interest) in one lump sum. The entire amount of ₹57,802/- was recovered from the applicant's salary vide bill dated 17.08.2011.
After full recovery of the advance granted to the applicant, the Disciplinary Authority had initiated disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 by issuing a Charge Memorandum dated 10.09.2011. An inquiry was conducted, during which the applicant had admitted to the delay on his part in refunding the advance taken by him and had lapses explained the reasons for the same. The Inquiry Officer had submitted a report on 02.11.2011 holding the charge to be proved.
The Disciplinary Authority (i.e. General Manager) vide order dated 17.02.2012 had imposed the penalty of "reduction of pay by one stage for a period of two years with cumulative effect, with further direction that he will not earn increments during the currency of penalty and it will postpone future increments".
The applicant had preferred a statutory appeal on 01.03.2012. Having received no outcome, he had filed O.A. No. 1330/2016 before this Tribunal, which was disposed of on 06.09.2019 directing the appellate authority to decide the appeal. The statutory appeal filed by the applicant was initially rejected on 09.01.2020 by the Addl. DGOF/Member, OFB.
Aggrieved by the order passed by an authority other than the designated Appellate Authority (DG-cum-Chairman, OFB), the applicant had filed O.A. No. 186/2020. This Tribunal had disposed of the said O.A., vide order dated 20.05.2022 by setting aside the earlier order and directing the competent Appellate Authority to decide the appeal afresh untrammelled by previous decisions.
Pursuant to the Tribunal's directions, the appeal was rejected again on 15.07.2022 by Shri Mukul Kumar Garg, who was holding current officiating charge of the post of Director General Ordnance (C&S).
Heard the Ld. Counsel and considered the material on record.
At hearing, the submission made by the Ld. Counsel for the applicant are summarized below:
The impugned Appellate Order dated 15.07.2022 was passed by Respondent No. 6, who was only holding officiating/current duty charge of DGO (C&S). In terms of Fundamental Rule 49 (FR 49) and established service jurisprudence, an officer holding current duty charge/officiating charge cannot exercise statutory powers under the CCS (CCA) Rules, 1965 unless specifically invested with statutory powers.
Since the entire LTC advance along with penal interest was fully recovered prior to the issuance of the charge-sheet, initiating disciplinary action and inflicting a major penalty for the same transaction amounts to double jeopardy.
The journey of the applicant was postponed due to genuine medical and family emergencies, all of which were formally approved by the respondent authority.
At hearing, the submissions made by the Ld. Counsel for the respondents are summarized below:
The applicant had in violation of the extant Rules retained government funds amounting to ₹ 46,170/- plus leave encashment amount for nearly one year without undertaking the journey for which advance was taken.
The recovery of unutilized LTC advance along with penal interest is a mandatory statutory recovery under extant rules and does not constitute to be a punishment. Hence, initiating of disciplinary proceedings for retention of public money does not attract the doctrine of double jeopardy.
The applicant had unequivocally admitted to his failure to comply with LTC rules in his written statement and during the inquiry proceedings.
Shri Mukul Kumar Garg was duly entrusted with the officiating charge of DGO (C&S) by the Ministry of Defence vide order dated 06.06.2022 based on DoPT Order dated 01.06.2022, making him competent to decide the appeal.
Findings
The Government of India, Directorate of Ordnance (C&S), Office Order No. 13/2022/HQ/G dated 06.06.2022 is reproduced below:
“Office Order No. 13/2022/HQ/G Dated: 06.06.2022.
Sub. Officiating Charge of the post of Director General Ordnance (Coordination & services.), Directorate of Ordnance (coordination & Services)
Ref.: DoO(C&S), NDO, New Delhi Order No. 7(1)/2022-DoO (C&S)NDO. dtd 06.06.2022.
As approved by the Competent Authority, Shri Mukul Kumar Garg, ADGO(C&S) has assumed the officiating charge of the post of Director General, Ordnance (Coordination & Services), with power to exercise all the financial, administrative and disciplinary powers of Director General, Ordnance (Coordination & Services), with effect from 06.06.2022 (F/N) for a period of three months w.e.f. 31.05.2022, or till the regular incumbent assumes the charge of the post, or until further orders, whichever is the earliest.
(Authority: DOP&T Order No. 12/25/2021-FO(S.M.II),Dated 01.06 2022)
Sd/-
(G.K. Choudhary)
Dy. Director General. A&C”
From the above order, it is clear that although Shri Mukul Kumar Garg, ADGO (C&S) was posted as Director General, Ordnance (Coordination & Services) on officiating basis, he was vested with the Disciplinary powers of Director General, Ordnance (Coordination & Services). Hence, we do not find any infirmity in the impugned order dated 15.07.022 passed by him.
In view of the above discussion, we are of the opinion that the Original Application lacks merit. The O.A. is accordingly dismissed without any order as to cost.