Ravi Kumar Pandit vs India Tourism Development ...
2011 Latest Caselaw 4486 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      WP(C) No.6032/2011

                               Judgment reserved on: 19th August, 2011
%                           Judgment pronounced on: 14th September, 2011


       Ravi Kumar Pandit                                    ..... Petitioner
                        Through:           Mr.S. Ravi Shankar and Mr. R.
                                           Yamunah Nachiar, Advocates.

                     versus

       India Tourism Development
       Corporation Ltd. & Anr.                       ..... Respondents

Through: Mr. Ujjwal Kumar Jha and Mr. Kanwaljeet Singh, Advocates for R-1.

Mr. Sunil Kumar, CGSC and Mr. Alok Kumar Shukla, Advocate for R-2.

CORAM:

        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SANJIV KHANNA

1.   Whether reporters of the local papers be allowed to see the judgment?            Yes
2.   To be referred to the Reporter or not?                                           Yes
3.   Whether the judgment should be reported in the Digest?                           Yes


DIPAK MISRA, CJ

The petitioner, a General Manager (Engineering) under India Tourism

Development Corporation Limited (ITDC), was authorized to exercise

powers of Vice-President(Engineering) / Senior Vice-President

(Engineering) by order dated 2.1.2009 by the Chairman-cum-Managing

Director of the ITDC. On 29.3.2011, the officiating charge of the Vice-

President given to the petitioner was withdrawn. Being grieved by such an

action, the petitioner approached the Central Administrative Tribunal,

Principal Bench (for short, „the tribunal‟) in OA No.1265/2011 for

quashment of such an action / order.

2. It was set forth before the tribunal that the petitioner was confirmed

on the post of General Manager in ITDC vide order dated 17.9.2009. The

Chairman-cum-Managing Director of the ITDC being satisfied,

acknowledging and appreciating his work, promoted him to the vacant post

of Vice-President(Engineering) on 21.10.2009 and at that juncture he was

given the pay scale of Rs.43200-6600(IDA). At the time of withdrawal of

the charge, he was the senior most Engineer and his appointment was

against a regular vacant post as the order of promotion would clearly show.

It was urged before the tribunal that a decision was taken by the competent

authority to reward him for the good work done and, accordingly, he was

promoted. It was averred that on 31.5.2010 and 2.6.2010 two enquiries

were initiated against him with regard to development works at Barsana and

purchase of split air conditioners for hotel Jammu Ashok for which minor

penalties of censure and withholding of two increments respectively were

imposed on 1.12.2010 by the disciplinary authority. The petitioner has

preferred appeals against these orders which are pending before the

appellate authority. It was urged before the tribunal that when the infliction

of the punishment have been assailed before the appellate authority it is not

justifiable to revert him to the post of General Manager in view of the

DOPT memorandum dated 24.12.1986.

3. The respondents resisted the stand and stance put forth by the

petitioner contending, inter alia, that the withdrawal of officiating promotion

of the petitioner is in accordance with the rules. It was also highlighted that

the appointment by the CMD was not justified as he has no power to confer

such a benefit. The said order passed by the CMD was put before the Board

of Directors which is the only competent authority and it decided to

withdraw the same. The irregularities in the act of the petitioner causing

wrongful loss to the respondent were also pleaded in the counter affidavit.

It was also put forth that the applicant has been issued a major penalty

chargesheet on the advice of Central Vigilance Commission and the enquiry

is in progress. Various irregularities were highlighted before the tribunal in

the return filed by the ITDC. It was set forth that there was a singular

sanctioned post of Vice-President in the Engineering division, which was

held by one Mr.Bachketi earlier. On rejoining, Mr.Bachketi was given the

charge of administration and consultancy due to CVC directives. The entire

issue was kept before the Board of Directors which observed that the post of

Vice-President be filled up on regular basis on the recommendation of the

selection committee. The selection committee considered the eligible

candidates for the said post. The petitioner did not apply for the post of

Vice-President as he had only completed one year against the requisite

eligibility criteria of five years. The petitioner was neither eligible nor he

had applied for the post of Vice-President. The matter was placed before

the Board of Directors in its meeting held on 23.2.2011 and the Board did

not approve the officiating charge of Vice-President (Engineering) given to

the applicant on 31.10.2009. It was also contended that the disciplinary

proceedings had been initiated against him before expiry of one year from

the grant of officiating promotion by issuance of chargesheets dated

31.5.2010 and 2.6.2010 and in accordance with the language employed in

the office memorandum dated 24.12.1986, the grant of officiation was

required to be withdrawn. That apart, it was clear that when the petitioner

had been awarded two punishments and facing a major penalty chargesheet,

decision was taken by the Board that it would not be appropriate to continue

him in the officiating charge of Vice-President(Engineering) and to

withdraw the same with immediate effect.

4. The tribunal taking into consideration the initiation of the disciplinary

proceeding, the language employed in the office memorandum dated

24.12.1986, the date when the petitioner took charge of the vacant post and

got the pay scale, that is, 21.10.2009, the issuance of second chargesheet

and initiation of the major penalty proceeding, the distinction between

issuance of a chargesheet and infliction of the punishment, the right of an

incumbent in an officiating on a particular post to continue on the same post,

the eligibility of petitioner to be promoted to the post of Vice-President, the

non-submission of application by the petitioner to be considered for the post

of Vice-President on regular basis came to hold that the petitioner had no

right to continue on the post and the office memorandum dated 24.12.1986

did not protect him. Be it noted, the tribunal did not advert to the stand

whether the Chairman-cum-Managing Director is authorized to confer the

benefit of officiating promotion or it is the Board of Directors. That apart,

the tribunal also opined that even if the appointment of the petitioner on

officiating basis was by a competent authority having been delegated

powers, the competent authority, under the facts and circumstances, has

rightly withdrawn the same.

5. We have heard Mr.S. Ravi Shankar, learned counsel for the petitioner,

Mr.Ujjwal Kumar Jha, learned counsel for respondent No.1, and Mr. Sunil

Kumar, learned counsel for respondent No.2.

6. At the very outset, we make it clear that while the tribunal had not

adverted to the competence of authority extending the benefit of appointing

the petitioner on officiating basis we do not think it appropriate to advert to

the same. The whole controversy would rest on the interpretation placed on

the DOPT office memorandum dated 24.12.1986. It reads as follows:

"(i) Where an appointment has been made purely on ad hoc basis against a short term vacancy or a leave vacancy or if the Government servant appointed to

officiate until further orders in any other circumstances has held the appointment for a period of less than one year, the Government servant shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against him.

(ii) where the appointment was required to be made on ad hoc basis purely for administrative reasons (other than against a short term vacancy or a leave vacancy) and the Government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him."

7. On a perusal of the aforesaid office memorandum, it is clear as crystal

that it only stipulates that if an appointment has been made on ad hoc basis

purely for administrative reasons (other than a short term vacancy or leave

vacancy) and the Government servant has held the appointment for more

than one year, he shall not be reverted only on the ground that there has

been initiation of a departmental proceeding. In the case at hand, the

petitioner has been reverted on the foundation that he had been issued two

chargesheets and has been visited with two punishments. The said situation

makes a gulf of difference and the reliance on the said office memorandum

melts into total insignificance. What the Clause (ii) of the office

memorandum stipulates is that there should be no reversion solely because

of initiation of disciplinary proceeding. But when punishments have been

imposed there is no prohibition to revert an incumbent. As has been

indicated earlier, two minor penalties, namely, one of censure and the other

withholding of two increments for a period of two years without cumulative

effect have been imposed. The learned counsel for the petitioner has

contended that the order of reversion would amount to double jeopardy

which is not permissible in law. The learned counsel for the respondent has

contended that reverting him to the substantive post is not a punishment as

the petitioner was only allowed to officiate on the promotional post. In our

considered opinion, the submission advanced by learned counsel for the

respondent is justified inasmuch as the petitioner has not been inflicted the

punishment of reversion. He was never promoted to the higher post but was

only allowed to officiate on the post and, thus, the concept of double

jeopardy does not arise.

8. In the ultimate analysis, we do not perceive any illegality or infirmity

in the order passed by the tribunal and, accordingly, we give the stamp of

approval to the same. As a sequitur, the writ petition, being devoid of merit,

stands dismissed leaving the parties to bear their respective costs.

CHIEF JUSTICE

SANJIV KHANNA, J.

SEPTEMBER 14, 2011 dk