Baiju Daniel v. Union of India and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940 OP (CAT).No. 102 of 2018 -------------------------** **AGAINST THE ORDER IN OA 180/00767/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 27-02-2018** ## **PETITIONER :** **------------** **BAIJU DANIEL, S/O.LATE DANIEL K.MATHAI, APPRAISER, CUSTOM HOUSE, COCHIN, WILLINGDON ISLAND, ERNAKULAM-682009, RESIDING AT THANAL, NBRRA 59, NIRAVATH ROAD, MARADU P.O., KOCHI-682304.** **BY ADVS.SRI.JOHN VARGHESE SRI.A.L.GEORGE** **RESPONDENTS :** **--------------** **1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, HUDCO VISHALA (9TH FLOOR), BHIKAJI CAMA PLACE, R.K.PURAM, NEW DELHI – 110 066. 2. CENTRAL BOARD OF EXCISE AND CUSTOMS, REPRESENTED BY ITS CHAIRMAN, NORTH BLOCK, NEW DELHI – 110 001. 3. CHIEF COMMISSIONER OF CUSTOMS, CUSTOM HOUSE NO.60, RAJAJI SALAI, CHENNAI – 600 001. 4. COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT), CUSTOM HOUSE NO.60, RAJAJI SALAI, CHENNAI – 600 001. 5. COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, KOCHI – 682 009. BY SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & AMP; CUSTOMS** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 11-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RKM** **OP (CAT).No. 102 of 2018 (Z) -----------------------------** **-2-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** ## **-----------------------** |**EXHIBIT P1 :**|**COPY OF O.A.NO.180/000767/2015 OF THE CAT, ERNAKULAM**| |---|---| ||**DT.21/09/2015.**| |**EXHIBIT P2 :**|**COPY OF THE REPLY STATEMENT IN O.A.767/2015 FILED BY**| ||**THE RESPONDENT DT.03/02/2015.**| |**EXHIBIT P3 :**|**COPY OF THE REJOINDER FILED BY THE PETITIONER IN**| ||**O.A.NO.767/2014 DT.04/05/2016.**| |**EXHIBIT P4 :**|**COPY OF THE ORDER OF THE CAT, ERNAKULAM DT.27/02/2018**| ||**IN O.A.NO.180/00767/2015.**| |**RESPONDENTS' EXHIBITS : NIL**|| |**---------------------**|| **TRUE COPY PA TO JUDGE** ## **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P.(CAT) No.102 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- **Dated this the 11[th] day of June, 2018** ## **JUDGMENT** ## _**Surendra Mohan, J.**_ This original petition is filed assailing Ext.P4 order of the Central Administrative Tribunal ('CAT', for short), Ernakulam Bench in O.A.No.180/00767/2015 dated 27.02.2018. As per the impugned order, the original application has been finally disposed of by issuing certain directions. According to the petitioner, the order of the CAT requires to be interfered with since the relief sought for by the petitioner has not been granted in full. 2. The petitioner is working as an Appraiser under the 5[th] respondent, having been recruited directly as an Examiner under the Customs House, Kochi on 18.01.1996. His case is that, as per Annexure A1 seniority list, he was Serial No.55. One Sri. S. Balakumar was Serial No.54 and Sri.K.Uthaman was Serial No.56. While so, disciplinary proceedings were initiated against him on the basis of Annexure A2 Memorandum of Charges dated 19.04.2002. An enquiry was conducted under Rule 14 of the CCS (CCA) Rules. The enquiry officer submitted a report finding lapses on his part. However, no action was immediately taken on the enquiry report. O.P.(CAT) No.102 of 2018 2 3. In the above circumstances, on 17.12.2002, the petitioner was promoted along with nine others to the cadre of Appraiser on adhoc basis by Annexure A3. However, later on, by Annexure A6 dated 06.01.2003, his promotion as Appraiser was cancelled for the reason that disciplinary proceedings were pending against him. Though the petitioner had challenged the said action before the CAT in O.A.No.22/2003, the same was later on disposed of by Annexure A8 order with a direction to complete the proceedings. Thereafter, Annexure A9 order was passed imposing a penalty of withholding of one increment on the petitioner for a period of one year from 01.04.2005. The said period has also expired on 01.04.2006. Thereafter, the promotion of the petitioner was reviewed and his date of promotion as Appraiser was fixed as 01.04.2006. As a consequence, the petitioner lost his seniority position and his juniors were promoted above him. According to him, he is now shown at Serial No.135. Since his juniors were granted promotion with effect from 25.11.2002, his contention is that he also ought to have been granted promotion with respect to the said date. It was seeking the said relief that, he had filed the original application before the CAT. 4. The contentions of the petitioner were refuted by the respondents by filing a reply statement. According to them, the challenge against Annexure A11 was belated. It was also contended O.P.(CAT) No.102 of 2018 3 that, the seniority position of the petitioner had been fixed, since there was no challenge against Annexure A11 at the appropriate time. The petitioner was undergoing the penalty up to 30.03.2006 and therefore he could have been promoted only with effect from 01.04.2006. In answer to the contentions in the reply statement, the petitioner filed a rejoinder also. 5. The CAT considered the respective contentions, found that though the enquiry had been completed on 11.01.2005, there was considerable delay in taking further action on the basis thereof and that the delay had occasioned injustice to the petitioner. Therefore, in order to mitigate the prejudice caused to the petitioner, the CAT held that the punishment ought to be deemed to have been imposed within one year from the date of completion of the enquiry proceedings. In the said view, the CAT has directed that the petitioner should be treated as having become eligible for promotion with effect from 31.03.2004 and to assign him seniority on the basis of the said date. It is against the said order that this original petition is filed. 6. According to Adv. John Varghese, who appears for the petitioner, the present case is covered by the dictum of the Supreme Court in _**S.K.Sharma v. Haryana S.E. Board [1988 KHC 771] [1988 Supp. SCC 669)]**_ . Particular reliance is placed on Paragraph 5 and 6 of the said judgment to contend that, alteration of seniority O.P.(CAT) No.102 of 2018 4 position on the basis of the punishments imposed, could amount to punishing the incumbent twice, once by barring the increments and secondly by denying him his seniority position. It is further contended that, he had initially been promoted on 17.12.2002. He had taken charge on 18.12.2002. But, the said promotion had been cancelled on 06.01.2003. Therefore it is contended that, he ought to have been granted promotion with effect from 25.11.2002. On the above grounds, the counsel seeks interference with the order of the CAT. 7. The Counsel also places reliance on the decision reported in _**Union of India and Anr. v. S.C. Parashar**_ (judgment dated 24.02.2006 in Appeal (civil) No.1267/2006) to contend that, two punishments of an employee for a single offence is impermissible. 8. Heard. In the present case, the petitioner was charge sheeted as per Annexure A2 on 19.04.2002. Without noticing of the pendency of the disciplinary proceedings against him, he was promoted on 17.12.2002. That was the reason why the same was later on cancelled on 06.01.2003. Thereafter, an enquiry was conducted, he was found guilty of the lapses and was imposed a punishment of withholding of one increment for the period from 01.05.2005 to 01.04.2006. Since the disciplinary proceedings were pending against the petitioner, he was not entitled to be considered for promotion to a higher post, by the DPC that had met during the said period. As rightly O.P.(CAT) No.102 of 2018 5 found by the CAT, after the submission of the report of the enquiry, there was unreasonable delay on the part of the authorities in completing the proceedings and imposing the punishment on him. The delay has caused prejudice to the petitioner. Therefore, the CAT has altered the date from which he was entitled to be considered for promotion to 2004 to confirm the said action. 9. The present contention of the counsel for the petitioner is that, the petitioner ought to have been granted promotion with effect from 25.11.2002. However, we find no substance in the said contention for the reason that, as on 25.11.2002, proceedings on the basis of Annexure A2 dated 19.04.2002 was progressing. Therefore, it was not possible for the authorities to have considered the petitioner for promotion on the said date. The enquiry proceedings came to an end on 11.01.2005. Therefore, it was necessary for the authorities to have completed the proceedings expeditiously. It is for the said lapse that, the CAT has granted relief to the petitioner by directing that his promotion shall be directed to take effect from 31.03.2004. It is further contended by the counsel for the petitioner that, since he had already been punished by withholding of one of his increments, by altering his seniority position, he is being punished twice. It is to support the said contention that reliance is placed on the decisions of the Apex Court referred above. O.P.(CAT) No.102 of 2018 6 10. It is pertinent to note that the employee in _**S.K.Sharma**_ _**v. Haryana S.E. Board (supra)**_ was appointed as an Assistant Engineer (Gr-II), with effect from 10.06.1963. He was on probation for a period of two years which ended only on 10.06.1965. It was during the period of his probation that he was proceeded against, departmentally. He was found guilty of the charges and was imposed a minor penalty. There was no change in the cadre to which he was appointed. In spite of the above, his seniority was reduced. The Apex Court found that such reduction of his seniority in the same cadre would amount to punishing him twice. In sharp contrast, in the present case, what is at issue is whether the petitioner was entitled to be considered for promotion, when the disciplinary proceedings were pending against him. There was no reduction of seniority in the cadre in which he was working. What has happened here is only that his promotion was not granted along with his juniors for the reason that he was being proceeded against departmentally. We do not find any infirmity in the said action. He has been granted his promotion, after the punishment imposed on him was undergone. Therefore, we are not satisfied that the dictum in the above case is of any help to the petitioner herein. In _**Union of India & Anr v. S.C. Parashar**_ (supra), the disciplinary proceedings were initiated against an employee and two punishments were imposed on him. One is reduction of pay for a period of three O.P.(CAT) No.102 of 2018 7 years and secondly the loss of seniority and third, the recovery of 25% of the loss caused to the Government. The Supreme Court has found that the employee could not be imposed the said punishments. Such circumstances also do not exist in the present case. 11. In the present case, since there was delay in completion of the disciplinary proceedings, the CAT has interfered and has altered the date with effect to which the petitioner was entitled to be considered for promotion and fixed the same as 31.03.2004. We find that the petitioner has obtained all the relief that he is entitled to, in the circumstances of the case. For the foregoing reasons, we find no grounds to admit this original petition. The same is accordingly dismissed. Sd/- **K. SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** True copy PA to Judge RKM