Central Administrative Tribunal - Chandigarh
M.K.Koul vs Bharat Sanchar Nigam Limited on 18 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CIRCUIT SITTING AT JAMMU. O.A.No.780/JK/2011 Date of Decision : 18.03.2015 Reserved on: 04.03.2015 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER M.K.Koul, S/o late Sh. Dina Nath Koul, R/o House No.11, Lane-2, Sharda Vihar, Santara Morh, near Police Post Poni Chak, Jammu, presently working as Senior Accounts Officer, Office of DE, CTSD, BSNL Office of CGMT, Jammu. Applicant Versus 1. Bharat Sanchar Nigam Limited, CGMT J&K Circle, North Block, Bahu Plaza, Jammu. 2. Vigilance Officer, CGMT J&K Circle, Gandhi Nagar, Jammu. 3. Senior General Manager (HR/Admn), BSNL CGMT, J&K Circle, Jammu. 4. Bishan Dass, Senior Accounts Officer, Vigilance, Office of Vigilance Officer, Gandhi Nagar, Jammu. . Respondents Present: Applicant in person Mr. Ramesh Arora, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (1) Communication No.899-604/Vig/23, dated 11.08.2010 issued by Vigilance Officer, BSNL J&K Circle Exchange Building Gandhi Nagar, Jammu whereby recovery of amount to the tune of Rs.36174 has been ordered from the petitioner be quashed.
(2) Order No.806-34/2009/SRT/51, dated 16.02.2010 issued by Deputy General Manager, HR/Admn. whereby benefit of upgradation has been given to private respondent Bishan Das who is the junior than the petitioner and he has further been promoted as Chief Accounts Oficer by virtue of order No.806-1/2009/SRT/67, dated 16.09.2010 despite being junior to the petitioner be quashed and with further direction to respondents to promote the petitioner as Chief Accounts Officer from the date his juniors have been promoted.
(3) The respondents be further directed to release the upgradation promotion from the date it was due in favour of the petitioner along with arrears retrospectively.
(4) The respondents be directed to release Rs.36174 which the petitioner has been forcibly directed to deposit with the Department, in favour of the petitioner.
2. The background of the matter is that the applicant was issued a charge sheet vide OM No.GM(HR/Admn)/DISCT/2010/10, dated 31.08.2010 and the gist of charges levelled against the applicant was that while working as Senior AO in the O/o TDE BSNL Rajouri during the period March, 2006 to June, 2008, he committed irregularity as a result of which the company suffered a loss of Rs.36174 on account of excessive payment regarding LTC having been made to Sh. Raman Sharma and Sh. Vijay Sharma, Sr. TOAs in the O/o TDE BSNL Rajouri. After submitting the reply to the charges enquiry was held in the matter and the disciplinary authority awarded the minor punishment of censure to the applicant and orders had also been issued for the recovery of Rs.36174 from the applicant.
3. Averment has been made in the OA that no recovery could be ordered from the applicant as this amount should have been recovered from the persons who availed the LTC facility beyond their entitlement. The applicant had been forced to deposit the amount of Rs.36174 which he did under protest for vide receipt no.11 dated 01.07.2011. Also, after the conclusion of the enquiry proceedings and awarding minor punishment of censure, petitioners promotion cannot be withheld by the respondents. The respondents have promoted the persons who are junior to the petitioner and have deprived the petitioner from the benefit of higher promotion in an arbitrary manner. The respondents are under legal obligation to consider the seniority and merit of the persons who are to be promoted as seniority is the most essential criterion for making promotion to the higher post. The petitioner being senior most Senior Accounts Officer was entitled to second upgradation promotion from 01.10.2009. Besides, he was entitled to officiating promotion of Chief Accounts Officer from February 2010 when his junior was promoted. Promotion is the fundamental right of petitioner guaranteed to him under Article 16 of the Constitution and the respondents have deprived the petitioner of the promotion. On this count also the promotion of private respondent Sh.Bishan Dass is in violation of service rules and also against the mandate of the Constitution which is required to be quashed and the petitioner is entitled to second upgradation promotion from 01.10.2009 and officiating promotion of Chief Accounts Officer from the date when Sh.Bishan Dass has been promoted.
4. In the written statement filed on behalf of the official respondents, it has been stated that the applicant was given 1st upgradation from E2 to E3 scale w.e.f. 01.10.2004 vide this office order no.806-30/2009/SRT/17, dated 06.04.2010 and was due for 2nd upgradation from E3 to E4 scale w.e.f. 01.10.2009 subject to completion of two weeks mandatory training which the executive completed on 04.09.2010. The case of the petitioner for his 2nd upgradation was processed in October, 2010 immediately after he completed the two weeks mandatory training and Vigilance Officer was requested vide letter dated 16.10.2010 for furnishing the vigilance clearance in respect of petitioner. The petitioner was not clear from vigilance angle as reported by Vigilance Officer vide his letter dated 24.11.2010, as such he was not considered for 2nd upgradation and local officiating promotion to the grade of CAO along with his junior i.e. Sh. Bishan Dass who was given the upgradation w.e.f. 01.10.2009 vide order dated 16.02.2010. The petitioner was considered for 2nd upgradation and officiating promotion in September, 2011 after receipt of his vigilance clearance from vide letter dated 18.08.2011.
5. It has also been stated that recovery of Rs.36174 was ordered from the petitioner to make up the loss that the company suffered on account of negligence of the petitioner while working as Accounts Officer / Internal Financial Advisor (IFA) / I/o Telecom District Engineer, Rajouri, by recommending LTC Advance to travel by air to non-entitled officials which was sanctioned by the competent authority on the recommendation / advice of the petitioner and payment was made to the non-entitled officials thereby causing substantial loss to the Company.
6. In the rejoinder, it has been stated that the LTC facility has been availed by Sh. Raman Sharma, Senior TOA and Sh. Vijay Kumar, Senior TOA and both these employees are still serving in the Department. These persons were office bearers of the Union and had exerted pressure on the applicant for processing their LTC case for journey by Air. The LTC sanctioned in their favour was on account and was subject to adjustment. In case there was excess payment in their favour the same could have been recovered from their salary and no recovery could have been ordered against the deponent.
7. Arguments advanced by the applicant himself and learned counsel for the respondents were heard, when both sides reiterated the content of the OA, rejoinder and written statement respectively.
8. We have carefully gone through the material on record. Since the applicant was facing disciplinary proceedings and vigilance clearance certificate was not issued in his favour, his claim for promotion and challenge to the promotion of respondent Sh. Bishan Dass is misplaced and the same is rejected.
9. Regarding the recovery of Rs.36174, which has been ordered to be made from the petitioner by the respondents stating that he had caused loss to the BSNL since LTC by Air was allowed in favour of Sh. Raman Sharma and Sh. Vijay Kumar and they were not entitled to the same, it is observed that since these persons had drawn LTC amount exceeding their entitlement, the recovery should have been effected from these persons rather than the applicant in the present OA. Besides, the applicant only prepared the case for the consideration of the competent authority and it was the competent authority who approved the LTC by Air in respect of Sh. Raman Sharma and Vijay Sharma although he should have been well aware that the Sr. TOAs are not entitled to avail LTC by Air. The entire blame in the matter has been placed on the applicant. Hence, the order regarding recovery of Rs.36174 from the applicant is quashed. The respondents will have the option to effect recovery from the persons who were paid LTC amount in excess of their entitlement. Hence the OA is partially allowed as per the observations made above.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 18.03.2015 sv:
6(OA.No.780/JK/2011) titled (M.K.KOUL VS BSNL & ORS.)