IMMUNITY, BUT NOT AT THE COST OF INTEGRITY…

          Several senior officers will be relieved today to join their new posting in the various benches of CESTAT, as per the office order dated 24-Feb-2016, issued by The Ministry of Finance, Department of Revenue, as given below :-

S. No.	Name of Officer	Place of Posting
1.	Shri. B. B. Prasad	Chandigarh
2.	Shri. V. Padmanabhan	New Delhi
3.	Shri. M. M. Damodhar	Hyderabad
4.	Shri. Y. D. Banga	Chennai
5.	Shri. A. G. R. Shakkarwar	Allahabad
6.	Shri. Devender Singh	Mumbai

The Board has taken a long time to finalise the names for posting them as Member(Tech.) in various CESTAT benches.  As it is a judicial posting, the age of retirement increases to 62 years, & their pay also gets enhanced to the HAG+ scale of Rs. 75500-80000/- with effect from the date they assume the charge.

There were many contenders amongst the Senior officers, whose names were not included in the final list. Among others, Shri. R. Sekhar, presently serving as Principal Commissioner (AR) at CESTAT, Mumbai, was one such officer, who was having high hopes of being selected as Member(T) and being posted to Chennai bench of CESTAT.

In his previous tenure as Commissioner, Service Tax-II Commissionerate, Mumbai, he has not only harassed officers working under him but also the members of the trade !!  In his long tenure of almost 3 years, the stress levels among the lower officers had reached its peak and several officers suffered heart-attacks and some even passed away. Many of the officers who suffered medical complications, opted for VRS, due to his style of functioning. To create a terrorizing atmosphere, he issued charge-sheets to many officers on flimsy grounds, where there is no revenue-loss and involving no dereliction of duty. Majority of the charge-sheets issued were on taking-of-leave matters, as he used to routinely deny leave to officers.

It is learnt that the same threat is now being used in CESTAT, Mumbai.

Also, it was highly un-ethical on the part of the Board to have posted him to CESTAT, Mumbai, where he would be defending the same cases which he has dropped as Commissioner, Service Tax !!   Board should now take cognizance of this fact and move him out from CESTAT, Mumbai, immediately at least for the sake of probity & jurisprudence.

CESTAT benches have been created to give justice to the trade where interpretations of the tax administrator differs from that of the assessee. It should not used as a parking place for Senior Officers to be retained in the same station and for pocketing a big amount given for preparation & analyzing of cases, without even presenting a single case before the CESTAT. Several tainted officers are posted presently in CESTAT, Mumbai, and similar may be the case in other benches also.

Recently, the Parliamentary Committee on Estimates, on their visit to Mumbai, raised the issue of low rate of success-ratio in the number of appeals filed by the Department at various judicial fora like the SC (9%), HC (14%) & CESTAT (6%) during the last 5 years. The real cause appears to be the casual manner of approving SCNs by the senior officers, which do not stand the test of legal scrutiny at higher judicial foras. They do not appear to be answerable for these defects in the approval of SCNs, but point a finger at the lower officers. Thereafter, they enjoy immunity as a quasi-judicial officer. Ultimately, for these lapses at various stages, the Department suffers & revenue is lost. 

The present Administration is issuing instructions and obtaining information on each transfer & postings and ensuring that they are not posted to sensitive posts for more than three years, as a measure of probity. In each Tribunal, where a large number of revenue cases are dealt, involving crores of rupees, then the officers posted to these locations should also be subject to background checks for their integrity and ability.

The decision of the Board that Shri R. Sekar is not fit for posting as a Member(T) in any of the CESTAT benches, but still allowing him to continue working as AR in CESTAT, Mumbai, appears to be contradictory.

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HARD DAYS ARE AHEAD...

April is almost on us, and heartening news about the implementation of the 7^th Pay Commission is also coming in, though the proposed increase in pay is not heartening especially for Grp-B & C employees.

 

Staff side first meeting with the Empowered Committee is over. It was stated that the 7th Pay Commission will result in the increase in salaries of only the IAS, IPS, IRS and other services’ officers while Group B and C, who constitute 85 percent of all central government employees, will have no such benefit.

Resentment was expressed about the propaganda that the pay hike will be around 30% for all central government employees.

Central government employees’ associations demanded that the government immediately review the scale keeping Rs. 26,000/- instead of the proposed Rs.18,000/- as employees’ minimum pay.

The proposed pay scale increased the pay gap between the minimum and maximum from the existing 1:12 to 1:13.8. While the earlier pay commissions were successively reducing the pay gap from the 2^nd Pay Commission 1:41 to the 6^th Pay commission 1:12.

The Seventh Pay Commission has recommended for raising minimum pay to Rs 18,000 per month from current Rs 7,000 while the maximum pay, drawn by the Cabinet Secretary, has been fixed at Rs 2.5 lakh per month from current Rs 90,000, which will be effective from January 1, 2016.

Major concerns expressed by JCM Staff-side were as under :

(i)            The minimum pay of Rs. 18000/- p.m. recommended by the Commission is on lower side and needs to be revised upward by taking into account the prices of commodities as on 01.07.2015 and appropriately factoring in for social obligations & housing.

(ii)        New Pension Scheme should be done away with. Persons governed by the NPS are deprived of Family Pension and do not have provision of provident fund. As a result they are at a disadvantageous position as compared to the persons governed by the old system.

(iii)       Recommendations on allowances need to be properly examined before taking a decision.

(iv)       Fixed Medical Allowance should be increased from existing Rs. 500 p.m. to Rs. 2000 p.m. as majority of cities are not covered under CGI-IS and people residing outside the CGHS covered area are unable to meet their medical needs with meager amount of Rs. 500 p.m.

(v)        Recommendation regarding withdrawal of non-interest bearing advances may not be accepted.

(vi)       Outsourcing of services should be discouraged as the contract workers are being exploited by contractors and at the same time the service delivery is being compromised due to inefficiency and lack of accountability of low-paid contractual staff.

(vii)      Enhancement in contribution towards Group Insurance Scheme, is not justified as this would reduce the actual increase in take home salary considerably. If the rates are to be raised, the Government should bear the insurance premium.

(viii)     The recommendation regarding grant of only 80% of salary for the second year of Child Care Leave need not be accepted as this would deter women from availing of CCL, which was introduced as a welfare measure.

(ix)       Annual increments be granted @ 5% instead of existing 3% and increments may be granted on two dates viz., 1^st of January and 1^st of July of every year as in the present system of grant of increment on 1^st July of every year, employees joining/promoted after 1^st January, who do not complete 6 months services as on 1^st July, have to wait for up to 18 months for grant of increment.

(x)        The Commission’s recommendation of downgrading the Assistants of Central Secretariat for bringing in parity with their counterparts in the field offices is not appropriate.

(xi)       Recommendation regarding PRIS need not be accepted as no scientific mechanism has been devised to assess the performance of employees and the same could encourage favoritism, etc..

The associations further stated that an amicable and mutually negotiated settlement of minimum pay is necessary as “non-acceptance would further cause resentment in the central government employees.

The associations already made their stand clear before the government to go on strike from April 11 if the demands are not considered and no amicable settlement happens.

Be prepared for the strike from 11-April-2016, along-with central government employees associations.

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KNEE JERK ACTION - 56(J)

All the eight officers of the Mumbai zones, who have been served with the notice for termination of services under Rule 56 (j) appears to have been done in contradiction to the instructions issued by DoPT as shown below. 

Short-cuts have been adopted without exhausting the available mechanisms under the CCS Rules and also under pressure. Every year, the administration has submitted a NIL report and no cases were reported as fit for consideration under Rule 56 (j). Suddenly, they find eight officers fit for compulsory retirement under Rule 56 (j) !! This inconsistency & change of stand by the Administration, as per the compelling situations, certainly will lead to stress, de-motivation and increase in staff attrition in the Department.

No.25013/0 I /2013-Estt.A-IV

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

Establishment A-IV Desk

*****

North Block, New Delhi

Dated 11^th September, 2015.

OFFICE  MEMORANDUM

Subject : Strengthening of administration-Periodical review under FR 56(j) and Rule 48 of CCS

                (Pension) Rules, 1972

            The undersigned is directed to refer to this Department's OM No. 25013/1/2013-Estt(A) dated 21/03/2014 on the periodical review under Fundamental Rule 56 or Rule 48 of CCS (Pension) Rules.

2.         Various instructions issued on the subject deal with compulsory retirement under the above mentioned provisions. The Supreme Court has observed in State of Gujarat Vs. Umedbhai M. Patel, 2001 (3) SCC 314 as follows:

(i)    Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii)     Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii)    For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv)    Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v)    Even un-communicated entries in the confidential record can also be taken into consideration.

(vi)   The order of compulsory retirement shall not be passed as a short cut to avoid Departmental enquiry when such course is more desirable.

(vii)  If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii)  Compulsory retirement shall not be imposed as a punitive measure.

3.         In every review, the entire service records should be considered. The expression 'service record' will take in all relevant records and hence the review should not be confined to the consideration of the ACR / APAR dossier. The personal file of the officer may contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. It would be useful if the Ministry/Department puts together all the data available about the officers and prepares a comprehensive brief for consideration by the Review Committee. Even uncommunicated remarks in the ACRs/APARs may be taken into consideration.

4.         In the case of those officers who have been promoted during the last five years, the previous entries in the ACRs may be taken into account if the officer was promoted on the basis of seniority cum fitness, and not on the basis of merit.

5.         As far as integrity is considered, the following observations of the Hon'ble Supreme Court may, while upholding compulsory retirement in a case, may be kept in view:

The officer would live by reputation built around him. In an appropriate case, there may

not be sufficient evidence to take punitive disciplinary action of removal from service.

But his conduct and reputation is such that his continuance in service would be a menace to public service and•iniurious to public interest.

S. Ramachandra Raju vs. State of Orissa

[(1994) 3 SCC 424]

Thus while considering integrity of an employee, actions or decisions taken by the employee which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may be taken into account. Judgement of the Apex Court in the case of Shri K. Kandaswamy L.P.S. (TN:1966) in K. Kandaswamy vs Union Of India & Anr, 1996 AIR 277, 1995 SCC (6) 162 is relevant here. There were persistent reports of Shri Kandaswamy acquiring large assets and of his getting money from his subordinates. He also indulged in property transactions which gave rise to suspicion about his bonafides. The Hon'ble Supreme Court upheld his compulsory retirement under provisions of the relevant Rules.

6.         Similarly, reports of conduct unbecoming of a Government servant may also form basis for compulsory retirement. As per the Hon'ble Supreme Court in State Of U.P.And Others vs Vijay Kumar Jain, Appeal (civil) 2083 of 2002:

If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest.

7.         Many changes in the nomenclature and in the areas of responsibility of various departments/Ministries have taken place. In order to simplify and speed up the procedure of review, a need is felt to reconstitute the Review Committees. In partial modification of the OM 25013/15/86-Estt (A) dated 27/06/1986, it has been decided that the Secretaries of the Cadre Controlling Authorities will constitute Review Committees consisting of two Members at appropriate level. The Review Committees in the case of various levels of employees will be as under:

            (A) In case of officers holding Group A posts:

                        (a) In r/o ACC appointees:

                                    Review Committee may be headed by the Secretary of the concerned

                                    Ministry/Department as Cadre Controlling Authority.

                        (b) In r/o Non-ACC appointees:

                                    (i)         Where there are Boards viz CBDT, CBEC, Railway Board, Postal                                                   Board, Telecom Commission, etc. the Review Committee may be                                                   headed by the Chairman of such Board.

                                    (ii)        Where no such Boards/Comrnissions exist, the Review Committee                                                   may be headed by Secretary of the. Ministry/Department.

            (B) In case of Group B (Gazetted) officers:

                                    Additional Secretary/Joint Secretary level officer will head the

                                    Review Committee.

            (C) In the case of Non-Gazetted employees:

                                    (i)       An officer of the level of Joint Secretary will head the Committee.                                                  However in case the Appointing Authority is lower in rank than a                                       Joint Secretary, then an officer of the level of Director/Deputy                                                     Secretary will be the head.

                                    (ii)    In the case of Non-Gazetted employees in other than centralised                                                 cadres, Head of Department/Head of the Organisation shall decide                                                             the composition of the Review Committee.

8.         CVO in the case of gazetted officers, or his representative in the case of non-gazetted officers, will be associated in case of record reflecting adversely on the integrity of any employee.

9.         In addition to the above, the Secretary of the Ministry/Department is also empowered to constitute internal committees to assist the Review Committees in reviewing the cases. These Committees will ensure that the service record of the employees being reviewed, alongwith a summary bringing out all relevant information, is submitted to the Cadre Authorities at least three months before the due date of review.

10.       The procedure as prescribed from time to time has been consolidated and enclosed as Appendix to the OM issued by this Department on 21/03/2014. As per these instructions the cases of Government servant covered by FR 56(j), FR 560), or Rule 48(1) (b) of CCS (Pension) Rules, 1972 should be reviewed six months before he/she attains the age of 50/55 years, in cases covered by FR 56(j) and on completion of 30 years of qualifying service under FR 56(I)/Rule 48 of CCS (Pension) Rules, 1972 as per the following calendar:

SI. No.	Quarter in which review is to be made	Cases of employees who will be attaining the age of 50/55 years or will be completing 30 years of service or 30 years of service qualifying for pension, as the case may be, in the quarter.
1	January to March	July to September of the same year
2	April to June	October to December of the same year
3	July to September	January to March of the next year
4	October to December	April to June of the next year

11.       All Ministries/Departments are requested to follow the above instructions and periodically review the cases of Government servants as required under FR 56(j)/FR56(I)/Rule 48(1)(6) of CCS (Pension) Rules, 1972.

12.       Instructions on composition of the Representation Committees will be communicated

separately.

                                                                                                                                                Sd/-

(Mukesh Chaturvedi)

Director (Establishment)

Tel: 23093176

To

            The Secretaries of All Ministries/Departments

            (as per the standard list)

ERRORS OF JUDGEMENT...

          The Jewellers Association called off their All India strike on Saturday, the 19-Mar-2016, which was on for almost 18 days, after getting an assurance from the Revenue Secretary, Shri Hasmukh Adhia, that they will not be harassed by the Central Excise staff. This development was reported by all the leading newspapers on Sunday, the 20-Mar-2016.

The word ‘harassment’ and ‘Inspector Raj’ is normally used by members of the Trade to malign the lower formations of the Department. When all business transactions pertaining to Central Excise can be carried out through on-line means, without any physical verification, still the tag is there and nobody from the Department opposes such maligning.

CESA-Mumbai, in the context of Rule 56 (j), submits that the harassment suffered silently & consistently by the lower formations i.e. Inspectors and Superintendents, there is no one to whom they can approach for redressal. There is no JCM or any other forum where the cadre can raise their problems / issues, which they face on a day to day basis while discharging their duties. In the current scenario, there is no regular Commissioner / ADC /JC / AC posted to many of the Commissionerates and the Inspectors & Ministerial staff are the rarest of commodities. The Superintendent cadre does not even have contingent staff for any assistance. In the circle or in the range, he has to discharge his functions without the support of any Inspector, Ministerial staff or Sepoys, from attending to exports to assessment, from approval of SCNs to serving of SCNs, from briefing of panel counsel to attending to the court and ultimately landing in soup for any shortcomings/lacunas. Stress is bound to increase as the Supdt. and the few Inspectors are not ‘Superman’ !!

It is said that ‘Work is Worship’, but have the authorities ever ensured that the place of work is maintained in such a manner that work becomes worship for all the employees ? There is no element of learning by the top bosses – once they decide that other than a set of reports no additional reports will be requested for, but somebody or the other is there who will ask for some new reports from the lower formations. Even taking of leave has become a matter of contention between the officer and his boss – denial of leave has now become another cause for the increase in stress.

The purpose of Rule 56 (j) was to keep the organization lean and young by removing the deadwood among the staff and officers. A basic criteria was that the officer should have completed 30 years of service and should have crossed 50/55 years. Also the officer’s last 5 years ACRs are also to be considered.

Presently the Board officials, who are known for their gentleness and honesty never used the word of Rule 56 (j) to get their work done from their subordinates. But it is unfortunate to see that it has become an habit by the senior officers in a Commissionerate to use the threat of Rule 56 (j) to terrorise their subordinates.

But in the present scenario, the exercise is being carried out in haste and all the Members of the Screening / Scrutiny Committees are attending such meetings for the first time in their career, without knowing the seriousness and consequences of their actions and therefore their judgement appears to be erroneous.

For example, in the case of Mr. X, who has put in more than 30 years of service and 5 years of service in Dedicated Legal Cell, singlehandedly attended to all the High court and Supreme Court matters, is now made a scapegoat for not following an arbitrary order for preparation of order-in-original and refund claims. The good work put in by this officer in his entire career spanning 30 years has been brought to naught. Moreover, the said punishment is too harsh and his immediate superiors have never found the officer to be either incompetent or of doubtful integrity.

 In the judiciary, from JMM court to the Apex court, the Magistrate to the CJI, dictate their orders, consisting of either one page or hundreds of pages, proof read & correct their orders before signing the judgement copies. They are more self reliant in discharging their duties.

But in our Department, they claim that they exercise quasi-judicial authority but in reality, they ask their lower officers to prepare the orders. And when the pendency numbers increase, they even distribute the files among the officers in the field formations, who are already over-burdened, to prepare the adjudication orders. If any officer/s show any reluctance in doing the same, then he is branded as a rebellious officer and is ‘fixed’ by Dept. as in the case of Mr. X.

Another officer, Mr. Y was given charge of Confidential & Vigilance Section of a Commissionerate for a considerable period after which he was posted to a range. Due to some genuine personal problems, he informed his superiors and sought concession in attending office. When he was having ample leave in his account, taking action under Rule 56 (j) is sheer arbitrary and unlawful. 

Another officer, Mr. Z was not attending office for some time and he has been considered for compulsory retirement. The Dept. has not bothered to find out the reason for his absence, nor initiated any disciplinary action on this account and without exhausting the available remedial measures, the decision has been taken to remove the officer under Rule 56 (j).

There are three other officers who are considered under Rule 56 (j) on account of absenteeism, without taking recourse to the available remedial measures under the CCS (Conduct) Rules, 1964.

Another is the case of a Driver. After the introduction of the 1% incremental scheme, private vehicles are used even for official purposes, and the use of Govt. vehicles have reduced and a large number of drivers are sitting idle. If they attend office, they do not have a place to sit and many of them have not touched a steering wheel for years together. This is nothing but sheer wastage of manpower and their services have not been utilized. It is a big question to them as to why they should attend office after commuting in the crowded local trains just to sign the muster to show their presence. It is on record that once upon a time he was the best, most prompt & most sought after driver, without any record of accidents or mishaps. The Dept. never bothered about their career prospects and their service to the organization. It didn’t take much time to decide that the services of this driver are no longer required.

            Thus, the said action appears to be made under duress, thereby forcing the officers to go for litigation to prove their bonafides. After putting in so many years of service and at the fag end of their career, they do not deserve such type of treatment from the Department.

Ultimately, the said action may be set aside by the judiciary and the Department will be forced to pay the dues amounting to lakhs of rupees, without availing the benefit of the officer’s services – at that time the present set of senior officers will not be there to own-up to their errors of judgement !!

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