DA/AA/RA becomes functus officio when?

DA/AA/RA becomes functus officio when?

Venkataraman
Venkataraman

August 12th, 2012, 12:44 pm #1


Dear learned participants,

I have come across a case in which the DA imposed on a delinquent employee the penalty of 'reduction by two stages in the present time scale for a period of two years with recurring effect'. Aggrieved of this, the employee prefers appeal under Rule 18 of D&A Rules 1968. The AA while concurring with the penalty imposed on the DA adds one more sentence in his appellate order to the effect that 'the employee will get his normal increment only after 120 monhs'.

In my considered view, the sentence added by the AA is not correct, as it amounts to imposing two penalties on the delinquent employee. The course open to correct the above is: (a) the delinquent employee may move revision petition before the competent RA, or (b)the AA himself can call for the records and correct the position suo mottu (as he does not become functus officio since the order passed by him is unimplementable).

May I request the learned members to comment on the above.
Quote
Share

n.ramaswami
n.ramaswami

August 12th, 2012, 1:35 pm #2

wonderful AA! 120 months means he is increasing the punishment to be effective for 10 years, in his anxiety to show that the effect of recurring will take that much time!!!!AA cant, in my opinion, call back and revise the orders, once the orders are communicated. the course open in this case is for the Reviewing authority, to call for the papers suomoto and revise the orders.
Quote
Share

Murthy
Murthy

August 13th, 2012, 9:50 am #3

I think, in the first place, AA cannot enhance the penalty without giving an opportunity to DE. Hence, if without giving opportunity, the penalty has been enhanced, there is procedural lapse and thus void. If penalty has been enhanced giving opportunity to DE, he becomes DA and next authority AA. There is no bar on DE to appeal against that order. AA can also revise the order suo-moto after the appeal period. But I am keen to know, why the revised penalty has been termed ineffective? I fully agree that the penalty is very harsh, but technically the penalty does not suffer.

Humbly like to be corrected.
Quote
Share

n.ramaswami
n.ramaswami

August 13th, 2012, 11:24 am #4

who says the penalty is ineffective. the penalty is enhanced and the da is fully competent to do so. i dont agree that he can call for papers and revise the orders suo moto. if suo moto action is to be taken the only course is by the reviewing authority. if procedure is to be followed then the d e can appeal to the next authority than the one who has now imposed the penalty. if unfortunately such an authority who has imposed this penalty happens to be h.o.d then the gm is the last and then go to President as per RII ask for rrt etc.in any case how did the p.branch allowed such things in the first instance. either the apo dpo etc. etc. who must have been processing the case must have pointed this out. I still remember one Mr. Rajamani(may his soul rest in peace)OS pointing out such things to the apo who in turn will practically wait at the doors of the officer who has passed such orders and get them rectified before issuing. of course, there have been cases where some dy.hods, hods or in the division branch officers arguing that they are right and that APO OS had put their foot down saying that they are supposed to know better as far as such rules are concerned than the mechanical civil engineers or optg. commercial officers!!!!!!!!!!
Quote
Share

Murthy
Murthy

August 14th, 2012, 1:28 pm #5

Sir,

Mr.Venkataraman has stated, it is unimplementable, hence I inferred it ineffective. I was curious to know, why that is unimplementable.

Regards.
Quote
Share

Venkataraman
Venkataraman

August 14th, 2012, 2:27 pm #6


Dear Sir,

This issue relates to appeal. Aggrieved of the penalty inflicted on him, the delinquent makes an appeal to the AA. In terms of Rule 22 of RS D&A Rules 1968, the AA has to deal. While the AA confirms the penalty imposed by DA, in order to show his enthusiasm the AA stated that the 'delinquen would get his next increment after 120 months'. As rightly mentioned by Mr Murthy, this amounts to double penalty and hence only I stated that the order of the AA is not implementable by any right thinking official. If the delinquent approaches judicial forum, the order of AA will surely be set aside.


Quote
Share

n.ramaswami
n.ramaswami

August 14th, 2012, 3:12 pm #7

the order is implementable and it does not amount to double punishment. at best it can be construed as an enhancement of punishment, which in real sense is not. in any case the employee has a right of appeal, a right to get it reviewed, ask for rrt s opinion, go to President of India as per RII (I dont know if it still continues)and cannot jump to judicial forums. in fact in every case where an employee goes to judicial forum it should be pointed out that he has not exhausted the administrative channels as what is mentioned above.
Quote
Share

Venkataraman
Venkataraman

August 15th, 2012, 3:38 am #8


I fully agree with Mr Ramaswami that an affected employee has to exhaust his remedies available to him. However, this is not absolute one. The employee may move the judicial forum by satisfying the court that the alternative remedy is not an efficacious one. In one contract matter, the SC has held that the contractor need not invoke arbitration clause and he may directly move the writ court.
Quote
Share

n.ramaswami
n.ramaswami

August 15th, 2012, 7:24 am #9

sorry. you are confusing. contract is governed by general laws and contract act. dar is entirely different and it is a service matter coming in administrative domain first. moreover d a r is governed by the services rules (central civil services rules in case of Gr.A officers)and comes under President of India under the rule making powers of the constitution of India while contract etc. are justifiably judiciable in the first instance itself.
Quote
Share

Venkataraman
Venkataraman

August 15th, 2012, 10:52 am #10


I fervently hope that Mr Ramaswami will agree that non exhaustion of the alterntive remedy is not a bar at all times for approaching the judicial forum. The aggrieved employee will have to file a Misc Application explaining the circumstances, that is his appeal/revision will be an appeal/revision from Ceaser to Ceaser's wife (i.e. ineffective) and normally the courts will allow such MAs.
Quote
Share