Service matters
suriya
(Querist) 23 July 2015
This query is : Resolved
In 2012, I requested leave for study. Request denied. Leave availed on MC from competent authority. For availing leave, i was suspended as soon as leave availed and revoked within 34 days.
After study of four (UPSC Mains preparation), I joined and later unsuccessful. In 2014, i was given Rule 14 charge sheet as unauthorised absent for 4 months.
The case taken as proved. Now dismissed.
1.Department rules says suspension for unauthoried absent should not be to save exchequer and for continuous unauthoried absent romoval should be the maximum punishment; but I dismissed to disqualify for other govt employment.
My appeal yet to be replied for the last three months. What should i do?
By
Suriyagandhi
Anirudh
(Expert) 23 July 2015
In this type of matters, there is no off-the-shelf answers.
One has to definitely go through the entire documents and the communications exchanged, only thereafter a reasonable view can be expressed.
Therefore, you would be advised to visit a lawyer well versed in service matters and take things forward.
Guest
(Expert) 23 July 2015
Mr. Suriya,
When you know "suspension for unauthoried absent should not be to save exchequer," there must be some solid ground on which you were suspended, but not for saving the exchequer. Moreover, suspension does not save exchequer, rather puts burden on exchequer on account of payment of subsistence allowance to the employee without getting any work from him. In no way the exchequer is saved by putting an employee under suspension.
In fact, your description does not contain the most basic facts on which any advice can be rendered.
You have come up with the query when everything is finished, whereas every stage of suspension/ departmental inquiry was important for you to seek advice from some service law expert.
While asking your question, "What should i do" you have described nothing about the period of absence every time, number of days you took to submit your mc to cover your absence after the date of absence, ground for your suspension, inquiry proceedings whether attended by you regularly or not, what evidence was adduced during the inquiry proceedings, what was your defence, what was the findings of the inquiry, on what ground the charge was proved against you by the disciplinary authority even after your representation against the inquiry report, etc.
Since your appeal is still pending for decision of the appellate authority, you can now be advised to vigorously pursue the matter with the appellate authority and to wait for the outcome of your appeal. You should, however, get examined all your service & charge sheet related documents to some service law expert to have some further advice about what to do.
P. Venu
(Expert) 23 July 2015
You have not disclosed the complete facts. You may seek judicial review if your appeal is not successful.
However, your preconceived notions, as posted, do not constitute substantive grounds to challenge the punishment imposed .
PARDEEP KUMAR
(Expert) 23 July 2015
No doubt the details furnished are incomplete, however, whatever it is, now, your appeal since last 3 months is pending with the competent authority, in case your appeal gets allowed, its fine, else or in case no decision is taken on appeal within next 3 months totaling 6 months,you can move legal Fora i.e. Administrative Tribunal, High Court etc., as the case may be. Remember under Administrative Tribunal Act, limitation in your case to move Administrative Tribunal would be 18 months since you submitted your appeal if no decision is taken by the appellate authority or one year from the date of receipt of appellate authority order, if passed. To my mind, you would definitely be getting relief, penalty apparently been disproportionate. I know certain experts won't agree. However, am talking with experience.
Guest
(Expert) 23 July 2015
Being administrative process not complete, pending appeal, the CAT or HC is not likely to intervene to give any relief, except issue of suitable direction to the appellate authority for expediting the decision in appeal.
PARDEEP KUMAR
(Expert) 23 July 2015
Please see my advise carefully, the person, has no other alternate, if no decision is taken by the Appellate Authority within 18 months, the concerned would be left nowhere [I know 'condonation of delay'], unless thereafter the Appellate Authority passes an order, reviving limitation for the concerned. Needless to say that one can't wait 'sine die' for the administrative process to complete, the concerned part is complete, after filing of appeal within stipulated time. It is equally true that general Courts, in the first instance, dispose 'OA' etc., with directions for the concerned to decide appeal within a given time frame, that too in a manner amounts to relief for the concerned.
Guest
(Expert) 23 July 2015
Mr. Pardeep,
Do you mean that even if the appellate departmental authority fails to decide the appeal within 18 months, the affected employee would be debarred from seeking justice through the competent court?
Where arises the question of condonation of delay or revival of condonation of delay, when cause of action has not arise yet due to non-conveyance of the final decision by the departmental appellate authority after exhausting the prescribed departmental channels?
I wonder, if you are not confusing or misleading the querist by your advice! However, if liked, pending decision on his appeal with the departmental appellate authority, you may try your luck to get the penalty quashed by the CAT.
Kumar Doab
(Expert) 23 July 2015
Agreed with experts that you should have consulted Expert in Service Matters and should consult the expert with all documents on record.........................and should proceed further under expert advise of your counsel specializing in service matters.
Sudhir Kumar, Advocate
(Expert) 23 July 2015
"1.Department rules says suspension for unauthoried absent should not be to save exchequer and for continuous unauthoried absent romoval should be the maximum punishment; but I dismissed to disqualify for other govt employment. "
where have you read this rule can you provide copy of link?
while one is on unauthorized absence and is suspended this is a favour to him and loss of exchequer you get partial salary for the period.
You have not given totality of facts as to in which deptt in which post you worked and it is difficult to agree or disagree if the penalty is disproportionate to the offence.
PARDEEP KUMAR
(Expert) 24 July 2015
Mr. PS Dhingra,
Sir, Please see my aforesaid comment carefully, with special attention towards last lines, With all respect, first of all, am neither confusing nor misleading the querist with my advice, take a situation, if the Appellate Authority, didn't take a decision on the appeal, then what one would do, sleep over his/her right?
Sir, Though, there is no need for me to satisfy you, however, still you have made a comment to hurt and challenge my professional expertise, for sake of convenience, am to reproduce Sub section (b) of Section 21 of the Administrative Tribunals Act, 1985 i.e.
21. Limitation (1) A Tribunal shall not admit an application,-
(a) ----
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months'.
Further, you are well aware of the settled preposition of law i.e. in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue.'
So, my advise is neither confusing nor misleading and is proper.
Sir, I know you are much experienced then me and it is equally true that experts need not to comment against each other on this public platform, however, since you have made such comment I am forced to make these submissions. So far as my knowledge is concerned, Sir, during my service tenure I have acted as Defense Assistant in around 70 Departmental proceedings and maintained 100% charges not proved record, and now as Advocate has contested over 100 Departmental proceeding cases with 100% relief record.
Now, please advice the querist, whether, in case the Appellate Authority do not pass a order, should he/she continue to wait 'sine die'?
Guest
(Expert) 24 July 2015
Mr. Pardeep Kumar,
Thanks for the info. But, when you say, "the Appellate Authority, didn't take a decision on the appeal, then what one would do, sleep over his/her right," do you assume that the appellate authority would sleep altogether over the appeal and won't take any decision on the appeal of the querist? The question arises, what for the CVC is existing if it cannot monitor the inaction on the part of the Disciplinary Authorities or the appellate authorities. The CVC regularly monitors the pending cases on moth to month basis through the CVOs posted in each department through their prescribed monthly statement.
The querist has sought solution to his problem in prsent scenario when his appeal is pending for the last three months, but your advice intends to convey him to sleep over his/her right for the next period of 3 to 15 months and. So, in other words, he should remain inactive till the cause of action arises to approach the CAT. Don't you think there are other courses of action to be taken by the querist in today's situation before his case matures for approaching the CAT? In fact, in the present situation, he has the need to follow up his case effectively with the appellate authority.
Sudhir Kumar, Advocate
(Expert) 25 July 2015
Yes in some cases Appellate Authorities do sleep over appeal and do not take decision for years. In such cases the court either directs them to decide the appeal or themselves adjudicate the matter if/when approached within limitation period. The limitation period has been well elaborated by Mr Pradeep Kumar.
In any civil suit one cannot get justice if he does not approach the court within limitation period or does not have sound ground for condonation of delay. CAT is not exception.
However in this case even if one looses limitation for going to CAT he still has opportunity to Revision and Review under rule 29 and 29A of the CCS(CC&A) Rules and the aforesaid limitation will start again. However, if he again looses limitation then he has no recourse.
As far as CVC is concerned they have no jurisdiction to offer superintendence on Appellate Authorities.
Moreover the case dopes not pertain to allegation of integrity the case is of mere unauthorized absence. The CVC is not concerned in this case even if he was holding Gp-A post as on now.
P. Venu
(Expert) 25 July 2015
Yes, the Appellate Authorities most often sleep over and it is a matter of fact that the decisions conveyed are not dispassionate or reasonable unless one is fortunate to have godfathers. This is all the more so, if the Appellate Authority happens to be in the Ministry. There, it is, quiet often the rule that it is the Under Secretary or the Deputy Secretary who decides the matter, duly prompted by the Disciplinary Authority or the Department concerned.
As regards to the CVC, it is another Department and has rather inchoate view of the concept of Vigilance. The officials there have little concern for the Rules or the procedure. And mere submission of Statements is anything but routine. Nothing emerges out of them routine administrative circulars.
As regards to the present query, the appeal is already pending. If no decision is conveyed, he can approach the CAT and this he can do within a period of 18 months from the date of submission of the Appeal. Even if delayed, the CAT, at its discretion can condone and admit the Application.
However, in all such cases where the appeals are pending, the CAT, normally, does not interfere but only directs the Authority to dispose of the Appeal expeditiously.
If the appeal is decided against him, he should approach CAT. Revision or Review is unlikely to yield any relief.
As already pointed out, the queriest is less honest with facts; it appears that the Articles of Charges comprise of imputations much more than mere unauthorised absence.
Guest
(Expert) 25 July 2015
Mr. Sudhir Kumar,
So, do you intend to say that CVC is established merely as white elephant within the democratic set up of India, if it cannot monitor the disciplinary/ vigilance matters properly? Another vital question arises, why the army of the CVO is created to be put in all the departments/ PSUs and is asked to submit monthly returns to the CVC about the activities on disciplinary cases, if CVC has to take no action on that. Please elucidate on these points, as based on your own experience of working in the CVC, as you earlier claimed.
Also, do you prefer that the querist should immediately approach the CAT/court even within the appeal stage or want him to wait for another long period ranging from 3 to 15 months of the limitation period?
About sleeping of the appellate authorities in taking decision for years together, you could better have quoted some live example, instead of assuming at your own.
So, what is your proposed solution for the problem of the querist, as per your working experience in the CVC? That may add to my knowledge also. Don't forget, the querist has simply asked, "What should i do," which clearly means "now," BUT NOT after three months or before expiry of 15 months of limitation period.
PARDEEP KUMAR
(Expert) 25 July 2015
Mr. P.S. Dhingra,
Sir,
I don't know how you are interpreting my advice and that too wrongly, its not like am saying that he should sleep over his rights, am saying that after 6 months of his filing appeal, his limitation period starts and if thereafter he do not approach legal fora within a year, he would be left nowhere, his limitation would expire unless thereafter the Appellate Authority passes an order reviving his limitation.
So far as your query i.e. Appellate Authority not taking any decision for years or as regard CVC, yes, they do. I remained posted in Directorate of Vigilance and Anti Corruption for years and I know how they function.
One request, Sir, please do not interpret and comment atleast on my advice, because, I am sorry to say, that too in this open platform, that your advice and whatever you are saying would lead the querist nowhere as can be gauged that mine saying that limitation starts after 6 months is wrongly interpreted by you as if the same starts from one year thereafter. From my experience, I can say that in a number of cases, clients despite having good case on merits, suffer because of wrong advice, including of experts. I have seen that in a number of matters. Thanks Sir.
PARDEEP KUMAR
(Expert) 25 July 2015
My Brother expert, Mr. P. Venu and Mr. Sudhir Kumar are absolutely correct, and apparently are having good and practical experience in the matter.
P. Venu
(Expert) 25 July 2015
Thanks, I, too, happen to be retired Central Government servant.
Guest
(Expert) 25 July 2015
Dear Pardeep Kumar,
By the way, what was your specific advice on his query, " What should i do?"
Can you please like to enlighten me, on his question what should be inferenced from your advice--
"else or in case no decision is taken on appeal within next 3 months totaling 6 months,you can move legal Fora i.e. Administrative Tribunal, High Court etc., as the case may be. Remember under Administrative Tribunal Act, limitation in your case to move Administrative Tribunal would be 18 months since you submitted your appeal if no decision is taken by the appellate authority or one year from the date of receipt of appellate authority order, if passed. To my mind, you would definitely be getting relief, penalty apparently been disproportionate."
PARDEEP KUMAR
(Expert) 25 July 2015
Though my specific advice is already there, though it is for the querist to understand, however, for your satisfaction, let me be specific:
1. In case appellate authority passes its order, in case, appeal is dismissed or requisite relief is not granted then, from the date of receipt of that order, within 1 year to challenge that Appellate and also D.A. by way of 'O.A.' or Writ Petition etc., as the case may be.
2. If upon completion of 6 months, since his submitting Appeal, if the Appellate Authority do not pass its order, the concerned need to file 'O.A.' or Writ as the case may be, within 1 year thereafter, in that event the most likely outcome would be directions by concerned legal fora for the Appellate Authority to decide and pass 'reasoned and speaking order' within a specific period, that would be a relief for the concerned whose appeal otherwise would lie undecided.
3. If despite '2' above, the AA do not decide the appeal, file Contempt Petition.
4. If the AA decide the appeal detrimental to the interest of the concerned, again to approach legal fora challenging AA and also DA order.
5. Or in the alternate after completion of 6 months, thereafter 1 year without passing of order by AA, keep waiting for years, till the AA passes its order and thereafter take action as required, the case may be.
All aforesaid would be dependent upon priorities, choice of the concerned queries.
2.
Guest
(Expert) 25 July 2015
Dear Pardeep Kumar,
What you have tried to make me understand now, assuming me as a layman, that I understood well from your very first reply.
However, your advice to the querist's problem was quite premature, as neither the appeal was decided so far, nor the time was nearing 6 months after appeal, nor nearing the final target of limitation of 18 months.
Anyway, thanks. But still the querist is not likely to get any benefit of that advice also, if that there would be no merit in his case, as he has not stated the very basic facts due to which I had pointed out ...... "While asking your question, "What should i do" you have described nothing about the period of absence every time, number of days you took to submit your mc to cover your absence after the date of absence, ground for your suspension, inquiry proceedings whether attended by you regularly or not, what evidence was adduced during the inquiry proceedings, what was your defence, what was the findings of the inquiry, on what ground the charge was proved against you by the disciplinary authority even after your representation against the inquiry report, etc.
Hope, you remember that you also confirmed about incomplete detail, but you still preferred to advise him without knowing the detailed background.
The question arises, in case he would have submitted the medical certificate along with his fitness certificate only after joining duty after absence, as most of the employees do out of ignorance of rules, would your advice on limitation and revival of limitation help him in the CAT in any way if leave rules are found violated blatantly on his part?
THE IRONY IS THAT THE QUERIST HAS NOT RESPONDED TO MY 2 DAYS OLD POST SEEKING REQUISITE INFORMATION.
So, where was the question of assuming that there would not have been any serious irregularity on his part to alert him about limitations well before 3 to 15 months in advance that too without knowing even the barest case history of his case?
Sudhir Kumar, Advocate
(Expert) 25 July 2015
CVC has it sown role to play and a lot of work in that domain. It generally does not indulge in out of jurisdiction work.
They do not like to intefere in cases not connected with integrity and the present case is on such case.
None is advising the queriest to go to court without Appellate remedy. He is being advised to go to CAT when appeal is unduly delayed. After 18 months of submitting appeal he looses the limitation.
I also agree that at this stage the court may just pass directins for disposal of appeal. He would have been in a better position in court if appeal is decided against him. However when appeal is not being examined there is no choice with him.
I ahve already advised remedy under rule 29 and 29a even if the limitation is lost.
PARDEEP KUMAR
(Expert) 25 July 2015
Mr. P.S. Dhingra,
Sir, please see my first and its subsequent posts, you in all manners are senior to me and there is no question of my assuming you a layman, the advice was never meant for you, since its you who have instigated things and my bonafide advice, posts, advice were taken by you, as if I have encroached in your domain, on a public portal. It's not like only you have a right and only your advice is correct. It is for the querist to follow advice, which he/she deem suits his/her interest. You have tried to offend me in all manner possible. Aforesaid post of Mr. Sudhir Kumar further elaborates the things and are very true. The query of the querist is here at present in the manner submitted, I just fail to understand that how we would be able to advice him after 15 months, when his limitation would have already expired. Isn't it a duty of an expert to intimate queriest all pro and cons and also options available to him/her. By the way, I don't want to further waste my energy responding to your posts, needless to say such posts amongst experts are bad and create bad examples before queriest. Sorry to enter your domain with assurance that I would try to avoid giving advice in matters where you already have given your advice, however, would continue to pray for the queriest so advised.
Guest
(Expert) 26 July 2015
Dear Sudhir Kumar,
Thanks for agreeing with my views that at this stage the court may just pass directins for disposal of appeal.
Although you also have an experience of working with the CVC, but on deep review of its functioning style, you would like to agree that the CVC is merely a white elephant in the Vigilance and Disciplinary system of the Government of India acting as merely a catalyst, not as analyst, for what the Disciplinary Authorities or their touts so desire through the cases referred to it.
I have seen in several instances, they never bother to see for whose duties and responsibilities or on whose fault they are wrongly recommending disciplinary action to be taken against even an innocent and honest official/officer. It simply puts its affirmative stamp over the views of the unscrupulous departmental disciplinary authorities to add woes for even the most sincere and honest officers/ officials of the Government of India and never takes stern action against the Disciplinary Authorities/ Appellate Authorities/ CVOs for their dilatory and biased tactics to harasss the officials/officers. In a glaring instance, I have myself dealt with a charge sheet case of a General Manager, who was charge sheeted on the recommendation of the CVC for the offence committed by his successor even after he demitted the office on transfer to another state. The CVC had only to relent on that issue to recommend issuing of a charge sheet to the real delinquent officer after exonerating the former charge sheeted GM. But, who tries to compensate the affeted person for criminal defamantion caused by the wrong actions of the CVC, which it is never supposed to do?
In another case, even a prosecution witness was unduly tried to be protected by a CDI of the CVC through his two page long baseless assumptions, as included in his inquiry Report, while it was fully established beyond any doubt that the false charge sheet was framed only due to his misdeed and misuse of his offical position by removing very crucial documents from the case related file. Since that misadventure of the CDC was pointed out in the representation against the report of the Inquiring Authority, the CVC took nealy two years to afford his second stage advice, adding more woes to the mental agony of the C.O. by unduly withholding the advice for undly long period. The Officer could get exoneration only after about 8 years of his mental agony clearly due to the fault of the CVC that too without any approach to the CAT/CVC.
Guest
(Expert) 26 July 2015
Mr. Pardeep Kumar,
It is not the question of domain, rather a question of right advice at the right time to be help the querist prepare for remedies for his present day problem. Nobody knows what happens tomorrow, what to say after 3 to 15 months, as your advice contended to communicate. Even in the present problem, if he gets justice from the appellate authority within the targetted period of limitation, you may like to think, if your present advice would be of any use the querist after his case is settled departmentally.
At least at this forum, I believe, we have to synchrise the Statutory Law and the subordiate/Administrative Law to solve the problem of the queries, not to suggest merely the complex legal processes just to make undue additions to the already burdened judiciary with unnecessary court cases. However, in your private life, nobody would compel you not to recommend the legal recourse by omitting the simple adminstration-friendly solutions.
About your assurance that you would try to avoid giving advice in matters where I already have given my advice, that is your own discretion and prerogative whether to render or not your advice. About me I always admire the really effective advice, not that like the shot in the air without seving any purpose.
P. Venu
(Expert) 26 July 2015
I, too, share a recent instance where a Commissioner of Departmental Inquiries has put forth the following perverse theory in his Inquiry Report to sustain the case against the Charged Officer:
“When the directions/instructions were issued by the superior officers of the CO, it was the duty and responsibility of the CO to comply with the same in accordance the CCS(Conduct) Rules 1964 without examining the correctness or legalities of the orders issued to him.”
This Officer did not bother to remain present during the deposition; he had rather left it to the stenographer to record the depositions. Moreover, he was immature in conducting the proceedings. He had, in spite of protests, allowed another officer to muddle and dictate the proceedings.
Another disturbing aspect was that these officers considered themselves to be above the procedure laid down by the CCS(CCA)Rules.
Guest
(Expert) 26 July 2015
Dear Shri Venu,
I appreciate sharing your bad experience with the CVC held inquiry.
In another case that I defended in CVC, the CDI never used to sit during the inquiry proceedings, and he left every thing on his P.A. to record the proceedings on arguments between the prosecution and defence. I always had to call the CDC of the case, when the P.O. undly tried to prevail in a his bid not to get recorded the real and purposeful defence evidence.
Sudhir Kumar, Advocate
(Expert) 26 July 2015
But I do mantain that if appellents allows limitation period to pass then court is not likely to grant even this much relief.
I also maintain that CVC is not concerned.
Guest
(Expert) 26 July 2015
Mr. Sudhir,
Harping on the same tune is not likely to help in any way at least the present querist. For CVC, vigilance should not mean to keep eyes closed towards the inaction of the inefficient or corrupt Disciplinary/ Appellate Authorities and its representative CVOs.
However, a day will come during your own service career when you would definitely agree that the CVC is just a white elephant, a sheer burden on the exchequer of India and acts only in aid of the corrupt, inefficient and revengeful disciplinary authorities and their associates and touts.
PARDEEP KUMAR
(Expert) 26 July 2015
Mr. P.S. Dhingra,
Enough is enough, if one is not ready to see things in right perspective and has a mind closed for everything else, other then what he/she thinks is the best, nobody can help. First of all its you, who by name, without any authority, call from anyone, is raising questions on others advice. How can you say that what you have advised is Right and others Wrong. Here you are keeping this issue unnecessarily alive and objecting on advice given by people having over 20 years of experience in CVC, Vigilance and Anti Corruption etc., just for the sake of your ego and am sure that you have no such experience, view of the internal mechanism, functioning of Government Departments, autonomous bodies viz. CVC etc., So far as your advice in the matter i.e. 'keep waiting, irrespective of law of limitation' till Appellate Authority passes its order, which according to you is the best, the same is entirely wrong and would affect the concerned. Its our duty to intimate queriest about all possible options, pro and cons, which you eventually is not capable of. Remember, a number of litigants, innocent people suffer because of wrong advice, which the litigant etc., believe is correct, until heavens fall upon him/her because of wrong advice and after going through all aforesaid, am sure, you must have done wonders in the field. Since, beginning and it is my character to remain polite and to respect each and every person, especially elders. However, after going through all aforesaid you have said about my comments, I do not feel that way, so far as your good self is concerned. I know, according to your habits, you won't stop and would definitely comment further. However, keep going.
Sudhir Kumar, Advocate
(Expert) 26 July 2015
i ALSO AGREE THAT
"'keep waiting, irrespective of law of limitation' till Appellate Authority passes its order, which according to you is the best, the same is entirely wrong and would affect the concerned. "
T. Kalaiselvan, Advocate
(Expert) 26 July 2015
Stretched thread with more opinions & good discussions which is informative to all whether concerned or not.
Thanks experts for detailed discussions.
