No review of suspension (on account of criminal charge) of A.I.S. officers permissible

Every A.I.S.Officer must read the judgement in this case.

A member belonging to All India Services can be suspended by the appropriate Government, in the circumstances mentioned in Rule 3 of The All India Services (Discipline and Appeals) Rules 1968.

Rule 3(3) of the said Rules provides that,  a  member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government can be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a [member of the Service] or is likely to embarrass him in the discharge of his duties or involves moral turpitude.

Rule 3(8) of the said Rules also provide for Review of order of Suspension within prescribed time period and extend it further if necessary.

In this case, the officer was suspended on account of two criminal charges. The suspension orders were reviewed by the Government from time to time but not within the prescribed time limit. The officer had approached the Central Administrative Tribunal challenging the suspension on the ground that the review of his suspension was not done within the time limit prescribed and prayed for his reinstatement. The Tribunal accepted the contention and ordered the reinstatement of the applicant with retrospective effect. The State Government filed the writ petition no. 7071 of 2010 challenged the order of the tribunal on the ground that the suspension of the applicant was under Rule 3(3) of the Rules and the suspension is to be continued till termination of the criminal proceedings and no review of suspension is warranted by Rules. The high court accepted the contention of the state Government and set aside the order of the tribunal but restored the original application to the file of the Tribunal for the limited purpose of considering the question regarding the efficacy of the amended Rule #, which has come into force with effect from 30th September 2009 and its application to  the factual situation of the present case. 

 The  Bombay High Court judgement  in this case viz. State of Maharashtra v/s  A.K.Jain (writ petition no. 7071of 2010) is available on this blog under the  category Of ” Important judgements”. Those interested can get it downloaded for their use.

'No consideration for state's lethargic approach'

New Delhi:  No special consideration can be given to the government or its instrumentalities if they are lethargic in pursuing a legal case after the limitation period as provided under the statute, the Supreme Court has held.
A bench of Justices GS Singhvi and SJ Mukhopadhaya upheld an appeal filed by a land owner challenging a Bombay High Court permitting Municipal Corporation of Brihan Mumbai to file an appeal more than seven years after a civil suit was decreed against it.
The maximum permissible period for filing the appeal is normally 90 days.
"In cases involving the state and its agencies/ instrumentalities, the court can take note of the act that sufficient time is taken in the decision making process.

"But no premium can be given for total lethargy or utter negligence on the part of the officers of the state and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest," Justice Singhvi writing the judgement said.

In this case on May 2, 2003, a trial court in Mumbai passed a decree in favour of Maniben Devraj who had challenged the corporation's notice under Section 314 of the Mumbai Municipal Corporation Act, 1888 for demolition of her immovable properties in the city.


The Corporation did not challenge the trial court decree within the prescribed period of limitation and filed an appeal sometime in September, 2010 along with the applications for condonation of seven years and 108 days delay.


A single judge of the Bombay High Court condoned the delay and ruled in favour of the corporation upon which she appealed in the apex court.

The Supreme Court in its judgement noted that there was no justifiable reason for the corporation to file such a belated appeal and its explanation that certain missing papers delayed its efforts to pursue the case after seven years.

The bench said a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes.

The courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgement and a lot of time is consumed at various stages of litigation apart from the cost, it said.

"What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation.

"If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay.

"If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay," the bench said.

Courtesy PTI/zee news

Holidays to be observed in Central Government Offices during the

                                                         F.No.12/4/2012-JCA-2

                                                           Government of India

                                 Ministry of Personnel, Public Grievances and Pensions

     

                                       (Department of Personnel and Training)

                                                                                                         North Block, New Delhi

                                                                                                           Dated the 5th June, 2012

Subject: Holidays to be observed in Central Government Offices during the

year 2013.

It has been decided that the holidays as specified in the

Annexure -I to this O.M. will be observed in all the Administrative Offices of the Central

Government located at Delhi/New Delhi during the year 2013. In addition, each employee will

also be allowed to avail himself/herself of any two holidays to be chosen by

him/her out of the list of Restricted Holidays in

Annexure - II.

2. Central Government Administrative Offices located outside Delhi / New

Delhi shall observe the following holidays compulsorily in addition to three

holidays as per para 3.1 below:

1. REPUBLIC DAY

2. INDEPENDENCE DAY

3. MAHATMA GANDHI'S BIRTHDAY

4. BUDHA PURNIMA

5. CHRISTMAS DAY

6. DUSSEHRA (VIJAY DASHMI)

7. DIWALI (DEEPAVALI)

8. GOOD FRIDAY

9. GURU NANAK'S BIRTHDAY

10. IDU'L FITR

11. IDU'L ZUHA

12. MAHAVIR JAYANTI

13. MUHARRAM

14. PROPHET MOHAMMAD'S BIRTHDAY (ID-E-MILAD)

3.1. In addition to the above 14 Compulsory holidays mentioned in para 2, three

holidays shall be decided from the list indicated below by the Central Government

Employees Welfare Coordination Committee in the State Capitals, if necessary, in

consultation with Coordination Committees at other places in the State. The final

list applicable uniformly to all Central Government offices within the concerned

State shall be notified after seeking prior approval of this Ministry and no change

can be carried out thereafter. It is also clarified that no change is permissible in

regard to festivals and dates as indicated.

1. AN ADDITIONAL DAY FOR DUSSEHRA

2. HOLI

3. JANAMASHTAMI (VAISHNAVI)

4. RAM NAVAMI

5. MAHA SHIVRATRI

6. GANESH CHATURTHI / VINAYAK CHATURTHI

7. MAKAR SANKARANTI

8. RATH YATRA

9. ONAM

10. PONGAL

11. SRI PANCHAMI / BASANTA PANCHAMI

12. VISHU/ VAISAKHI / VAISAKHADI / BHAG BIHU / MASHADI UGADI /

CHAITRA SUKLADI / CHETI CHAND / GUDI PADAVA 1ST NAVRATRA /

NAURAJ/CHHATH POOJA/KARVA CHAUTH.

-2-

3.2 No substitute holiday should be allowed if any of the festival holidays

initially declared subsequently happens to fall on a weekly off or any other nonworking

day or in the event of more than one festivals falling on the same day.

4. The list of Restricted Holidays appended to this O.M. is meant for Central

Government Offices located in Delhi / New Delhi. The Coordination Committees

at the State Capitals may draw up separate list of Restricted Holidays keeping in

view the occasions of local importance but the 9 occasions left over, after choosing

the 3 variable holidays in para 3.1 above, are to be included in the list of restricted

holidays.

5.1 For offices in Delhi / New Delhi, any change in the date of holidays in

respect of Idu'l Fitr, Idu'l Zuha, Muharram and Id-e-Milad, if necessary, depending

upon sighting of the Moon, would be declared by the Ministry of Personnel, Public

Grievances and Pensions after ascertaining the position from the Govt. of NCT of

Delhi.

5.2 For offices outside Delhi / New Delhi, the Central Government Employees

Welfare Coordination Committees at the State Capitals are authorised to change

the date of holiday, if necessary, based on the decision of the concerned State

Governments / Union Territories, in respect of Idu'l Fitr, Idu'l Zuha, Muharram

and Id-e-Milad.

5.3 It may happen that the change of date of the above occasions has to be

declared at a very short notice. In such a situation, announcement could be made

through T.V. / A.I.R. / Newspapers and the Heads of Department / Offices of the

Central Government may take action according to such an announcement without

waiting for a formal order, about the change of date.

6. During 2013, Diwali (Deepavali) falls on Sunday, November 03, 2013

(Kartika 12). In certain States, the practice is to celebrate the occasion a day in

advance, i.e., on "Narakachaturdasi Day". In view of this, there is no objection if

holiday on account of Deepavali is observed on "Naraka Chaturdasi Day (in place

of Deepavali Day) for the Central Government Offices in a State if in that State that

day alone is declared as a compulsory holiday for Diwali for the offices of the State

Government.

7. Central Government Organisations which include industrial, commercial

and trading establishments would observe upto 16 holidays in a year including

three national holidays viz. Republic Day, Independence Day and Mahatma

Gandhi's birthday, as compulsory holidays. The remaining holidays / occasions

may be determined by such establishments / organisations themselves for the

year 2013, subject to para 3.2 above.

8. Union Territory Administrations shall decide the list of holidays in terms of

Ministry of Home Affairs letter No.14046/27/83- GP-I dated 15.2.1984 by which

they would observe a total of 16 holidays including the three National Holidays

Viz. Republic Day, Independence Day 86 Mahatma Gandhi's birthday.

- 3 -

9. In respect of Indian Missions abroad, the number of holidays may be

notified in accordance with the instructions contained in this Department's O.M.

No.12/5/2002-JCA dated 17th December, 2002. In other words, they will have the

option to select 10(Ten) holidays of their own only after including in the list, three

National Holidays and Buddha Purnima, Dussehra, Diwali (Deepavali) and Guru

Nanak's Birthday included in the list of compulsory holidays and falling on days of

weekly off.

10. In respect of Banks, the holidays shall be regulated in terms of the extant

instructions issued by the Department of Financial Services, Ministry of Finance.

11. Hindi version will follow.

(Ashok Kumar)

Deputy Secretary (JCA)

2309 2589

Trust our Generals, they are patriots

General V. K. Singh's letter to Prime Minister Manmohan Singh revealing the critical condition of the military apparatus has created a scare about the nation's security. Its leakage is unacceptable. But satellite technology has made secrecy outmoded. Should not people know about the naivety of politicians in dealing with defence? The Army Chief, as is known now, alerted the Defence Minister about the obsolete military hardware. The Minister perhaps already knew about it but could not appreciate the significance of the message and ignored it. The focus, at least initially, was on tracing the culprit who leaked the letter rather than taking action on its contents. Some demanded the General's removal.

This mindset of ignoring the advice of patriotic generals is not new. The first Commander-in-Chief of the Indian Army, Field Marshal K. M. Cariappa's biography by his son Air Marshal K. C. Cariappa gives such instances of the past.

Gen. Cariappa led the Indian Army in Kashmir during the first war with Pakistan in 1947. The author recalls his father often being asked why the army did not evict the frontier tribesmen who, supported by the Pakistan Army, attacked India. The General used to reiterate that the government dictated policy. The Army was quite confident of clearing Kashmir. But the orders were to “cease fire midnight 31st December/1st January 1948-49.”

Later, Gen. Cariappa asked Nehru the reasons for the ceasefire. “You see, U.N. Security Council felt that if we go any further it may precipitate a war. So, in response to their request we agreed to a ceasefire,” Nehru said. But he sportily added, “Quite frankly, looking back, we should have given you ten-fifteen days more. Things would have been different then.”

In 1951, Chinese troops were caught with maps showing parts of the North-East Frontier Agency as part of China. Gen. Cariappa cautioned Nehru of the likely attack by China. Nehru ridiculed him: “It is not for the Army to decide who the nation's enemies would be.” Later in 1959, Gen. K.S. Thimmayya also warned of the threat from China. How sad that Nehru, under the spell of his friend and then Defence Minister Krishna Menon, ignored the warnings and faced a humiliating defeat by China in 1962.

There can be no doubt about the patriotism of the two Generals. It must be mentioned that Gen. Cariappa's only son was shot down while carrying out air attacks during the 1965 war with Pakistan and was taken prisoner. President Ayub Khan, former colleague of Gen. Cariappa, offered to release his son. The General's terse reply was: “They [POWs] are all my sons, look after them well.”

In 1986, the Rajiv Gandhi government struck a deal with A.B. Bofors of Sweden. Gen. K. Sunderji had recommended the gun as he honestly considered it better than the French Sofma. Later in 1996 when the Bofors payoffs scandal surfaced, the CBI asked Gen Sunderji to testify on his role in the deal.

This is what he said in an interview at that point:

•Question: Didn't you tell the Rajiv Gandhi government to scrap the deal when the scandal broke out?

•Gen. Sundarji: Soon after the corruption charges began pouring in the foreign and Indian media, I immediately rushed to the office of the then Defence Minister Arun Singh and told him: “Let us scrap the deal.”... I insisted that the government should terminate the deal with the Swedish firm as by then only six Bofors gun had arrived in India.

•Q: What did Singh tell you?

•S: He told me to write my request on a piece of paper and submit it to the Defence Secretary, S. K. Bhatnagar, so that he can take up the matter with the Prime Minister's Office. I did that and waited for days to get an answer from Singh. But one day Bhatnagar came to my office and told me to redraft the note and change my stand.

•Q: What did you do then?

•S: I told Bhatnagar that I could not agree to the suggestion. I then called on Arun Singh and asked why the government was insisting that the deal should go through. He told me that the PMO feels that the cancellation of the Bofors contract would jeopardise India's security. By 1987 April, only six Bofors guns had arrived in India. I tried to convince Singh that the Bofors gun would not affect the country's security and defence preparedness.

•Q: Did Arun Singh agree with you?

•S: It seemed to me that Singh agreed with my views. But he told me that “the order from above and obedience from below theory” is the order of the government. Singh soon left the Rajiv Gandhi government in disgust.

There is one instance, however, of an astute political leader listening to a military General. In 1969, thousands of Hindu refugees from the erstwhile East Pakistan started crossing over to India as a result of East Pakistan's conflict with West Pakistan. India decided to go to war as the large-scale movement of refugees imposed a great economic burden and necessitated intervention on grounds of human rights.

At the end of April 1971, Indira Gandhi asked Gen. Sam Manekshaw if he was ready to go to war with East Pakistan. Manekshaw refused, citing the dispersal of his formations, the state of armour, the pending harvest which would vie for rail carriage, the open Himalayan passes and the coming monsoon. She asked the Cabinet to leave the room and the Chief to stay back. Gen. Manekshaw offered to resign on the grounds she chose. When she declined but asked for his advice, he sought permission to prepare for the conflict and set the date and said he would guarantee victory. She agreed and permitted the General to prepare in his own way. The rest is history.

Some veterans recall Field Marshal Manekshaw saying shortly after he turned 90 that flush with the victory of the war, Indira Gandhi asked him: “So when are you going to take over the country, Sam? He replied: “You run the country, I run the army.”

The recent reported movement of some units of the Army towards New Delhi and the immediate hysterical denial from the powers that be have raised serious apprehensions in the minds of the people. Truth may never be known. Mistrust of the army is not new. Even during the times of Nehru, it was rumoured that Nehru did not like the popularity of Field Marshal Cariappa and, fearing a “coup,” sent him to Australia as High Commissioner in 1953, claims his son in the biography.

Vital military decisions get entangled in outmoded bureaucratic procedures. Over time, a wide gap is created between the political and army leadership, so much so that in the present crisis the Prime Minister refused to meet the Army Chief. The credibility of the political class is at its all-time low. Such dichotomy did not exist earlier and the differences were amicably resolved at the highest echelons of government and the army. Should our masters not mend their fences before it is too late?

(The writer is a former Pro Vice-Chancellor, M.S. University of Baroda, Vadodara. kcmehta_75@yahoo.co.in)

COURTESY - HINDU NEWSPAPER

Keywords: Indian Army, defence acquisition, Bofors scam, K. M. Cariappa biography,

charge sheet cannot be quashed in casual manner

A chargesheet filed in departmental proceeding cannot be quashed by courts unless it adversely affects the rights of the aggrieved employee, the Supreme Court has held.
“In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action.
“Thus, a charge sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the court,” said a bench of justices B S Chauhan and Dipak Misra, in an order.
The bench passed the order while disposing of an appeal by the Ministry of Defence challenging a Central Administrative Tribunal (CAT) order quashing the chargesheet against one Prabhash Chandra Mirdha in a two-decade old bribery case.
“Law does not permit quashing of chargesheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge sheet, he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon.
“In case the charge sheet is challenged before a court/ tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/ tribunal may quash the charge sheet after considering the gravity of the charge and all relevant factors involved in the case after weighing all the facts, both for and against the delinquent employee, and must reach the conclusion which is just and proper in the circumstance,” the bench said.
The bench said charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings.
PTI

Doubts and queries about Departmental Inquiry

APPEAL

I am thankful to all those who  regularly view my blogs on Departmental Inquiry and also the posts published on these blogs.

I am happy to note that many of you are benefitted from various information given on the blogs. I was specially glad to learn that many of the viewers have also downloaded the information on the blog for their day to day reference.
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It has come to my notice that some of the viewers are making queries on the posts published in the past. It becomes difficult for me to follow those queries and give the replies to them. I will therefore request the viewers to send their queries on my email i.d. viz. shridhar1941@gmail.com. This will enable me to send the replies to the queries promptly.

I will be happy to hear from you the feedback and suggestions if any.

EXPECTED DA INCREASE FROM JULY 2012 WILL 7% i. e. TOTAL D.A. 72%

EXPECTED DA FROM JULY 2012 :-

 We expect the dearness allowance from the month of July, 2012 may stand at 72%.

As per the statistics of All India Consumer Price Index Numbers released by the Labour Bureau for the month of April 2012, the expected dearness allowance calculation turned to steep. The index raised by four points due to price hike of essential commodities in last month across the nation. By the way for next month index also will be the same, because the fuel prices increased more. At this moment, the calculation of dearness allowance is estimated to be 72%, i.e. central staff and pensioners may be enhanced from the existing rate of 65% to 72% with effect from July 2012.

Courtesy- Central Government News

Children Education Allowance/Hostel Subsidy — Clarification

No.12011/07/2011-Estt.(AL)
Government of India
Ministry of Personnel, Public Grievances and Pension
Department of Personnel & Training

New Delhi, May 31, 2012

OFFICE MEMORANDUM

Subject: Children Education Allowance/Hostel Subsidy — Clarification

Subsequent to clarifications issued vide O.M.No.12011/3/2008-Estt.(Allowance) dated 11.11.2008 and O.M.No.12011/08/2010-Estt.(AL) dated 30.12.2010, on the captioned subject, references have been received on (i) definition of the term “station” and (ii) admissibility of Hostel Subsidy and Children Education Allowance in respect of children pursuing diploma / certificate courses from polytechnic / ITI / Engineering College, after passing 10th standard.

2. After due consideration of the references in consultation with the Department of Expenditure, the following has been decided:

a. The term Hostel Subsidy would mean expenses incurred by the Government servant if he/she keeps his/her children in a hostel of a residential school/institution located beyond a distance of 50 kilometres from his/her residence. The reimbursement would be subject to other conditions laid down in the O.M. dated 2.9.2008 and subsequent instructions issued from time to time. It is further clarified that grant of hostel subsidy is not related to transfer liability of the Government servant.

b. To allow reimbursement of Children Education Allowance/Hostel Subsidy for the initial two years of a diploma/certificate course from Polytechnic / ITI / Engineering College, if the child pursues the course after passing 10th standard and the Government servant has not been granted CEA/Hostel Subsidy in respect of the child for studies in 11th and 12th standards. This is further subject to fulfilment of other conditions laid down in the O.M. dated 2.9.2008 and subsequent instructions issued from time to time.

3. This comes into effect from the current academic year.

Hindi version will follow.

sd/-

(Vibha G.Mishra)

Director