Central Administrative Tribunal - Mumbai
Sudam Krishan Ghule vs Bharat Sanchal Nigam Limited on 7 October, 2024
1 OA No.793/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.793/2016
Dated this Monday the 07th October, 2024
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
Sudam Krishan Ghule
Sr. Accounts Officer (Retd.),
(R/at.:B-6/4 Todkar Township,
Sasanenagar, Hadapsar,
Pune - 411 028. ... Applicant
( By Advocate Ms. Sujata Krishnan )
Versus
1. The Chairman and Managing Director
Bharat Sanchar Nigam Ltd.,
Sanchar Bhawan, Janpath,
New Delhi - 110 001.
2.The Director (HR)
Bharat Sanchar Nigam Ltd.,
Sanchar Bhawan, Janpath,
New Delhi - 110 001.
3.The Chief General Manager
Maharashtra Telecom Circle,
6th Floor, 'A' Wing,
Administrative Building,
BSNL Complex, Juhu Danda,
Santacruz (W),
Mumbai - 400 054. ... Respondents
( By Advocate Dr. V.S. Masurkar )
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2 OA No.793/2016
ORDER
Per: Mr. Shri Krishna, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"(a) To allow the application,
(b) To quash and set aside the impugned order dt.30.11.2012 and Order dt.10.11.2014 and Order dt.30.08.2016 passed by the Disciplinary, Appellate and Reviewing Authorities respectively,
(c)To grant all consequential benefits to the applicant,
(d) To pass any other appropriate orders which may be considered necessary in the facts and circumstances of the case,
(e)To award the cost of Application.
2. Briefly stated the facts of the case are that the applicant was working as Senior Accounts Officer under the respondents at the time of his superannuation on 31.05.2011. He was issued a memorandum of chargesheet dated 04.07.2007 under Rule 36 of BSNL Conduct, Discipline and Appeal Rules, 2006 by the General Manager (Finance). The applicant contested the chargesheet by submitting Page 2 of 12 3 OA No.793/2016 reply and denying the imputed charges of misconduct in toto. The respondents appointed a Inquiry Officer and Presenting Officer. The Inquiry Officer conducted the inquiry and submitted his report in August, 2008 to the Disciplinary Authority. The Inquiry Officer in his report has given a finding that the applicant was not responsible for alleged cash transactions and he was not required to maintain ACG-28 Register and concluded that the charges levelled against the applicant stand "NOT PROVED". The Chief General Manager Telecom, Maharashtra Circle, Mumbai forwarded the copy of the Inquiry report to the applicant and accepted and agreed with the findings of the Inquiry Officer. The applicant vide his letter dated 18.03.2010 requested the Chief General Manager, Mumbai to issue final order exonerating him fully as charges were held as not proved by the Inquiry Officer in view of his approaching retirement on Page 3 of 12 4 OA No.793/2016 31.05.2011.
2.1 It has been submitted that the respondents have referred the case to the CVC on 11.11.2010 for their advice. The CVC by OM dated 24.01.2011 advised the respondents to impose major penalty. The Chief General Manager, Maharashtra Circle relying on their advice and directions of the CVC imposed the penalty of 5% reduction in full pension otherwise admissible for a period of six months with further direction that full pension will be restored on completion of period of six months on the applicant. The applicant submitted a detailed appeal to the Director (Finance) on 27.12.2012 which was rejected by the Appellate Authority vide order dated 10.11.2014. Thereafter, the applicant submitted review application to the Chairman and Managing Director, BSNL dated 19.02.2015 followed by various reminders. The Reviewing Authority passed the impugned order dated 30.08.2016 Page 4 of 12 5 OA No.793/2016 rejecting the review petition of the applicant. Aggrieved by the above impugned orders, the applicant has approached this Tribunal. 2.2 It has been submitted that the chargesheet does not mention the quantum of loss and, therefore, the chargesheet was not specific and ambiguous. It has been submitted that the copy of the CVC advise was not given to the applicant. The Disciplinary Authority did not issue any disagreement note on the report of the Inquiry Officer and agreed with the findings of the Inquiry Officer. It has been submitted that the Disciplinary Authority has not applied his own mind and has been guided by the advise of the CVC which is an outside agency. The respondents have violated principles of natural justice as the applicant has not been provided the copy of the CVC's advice and, therefore, the impugned orders deserve to be quashed and set aside on this ground alone.
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3. On notice, the respondents have filed their reply and contested the OA. It has been submitted that as per the charge memorandum, the applicant has failed to maintain register of cheques in form ACG-28 during the year 2004-2005 in the manner prescribed in Rule 113 of P&R FHB Vol-I, thereby failed to keep track of bounced cheques. It has been submitted that during the said period on about 172 occasions cheques presented by subscriber were bounced but due to non-maintenance of records neither security deposit was imposed nor PBG increased. It has been submitted that the Disciplinary Authority vide letter dated 23.02.2010 has served the inquiry report dated 25.08.2008 on the applicant. The CVC by OM dated 24.01.2011 has advised the Disciplinary Authority to impose major penalty on the applicant. The Disciplinary Authority, after following the BSNL Conduct, Discipline and Appeal Rules, 2006, was pleased to pass a reasoned order Page 6 of 12 7 OA No.793/2016 dated 30.11.2012. The statutory appeal filed by the applicant and the review application filed before the Reviewing Authority have been rejected. It has been submitted that the respondents have complied with the provisions of law and acted strictly in accordance with the BSNL Conduct, Discipline and Appeal Rules, 2006. There is neither procedural flaw nor violation of the statutory rules. The applicant was afforded sufficient opportunity to defend his case. The punishment imposed on the applicant does commensurate with the gravity of the misconduct proved and hence the OA is devoid of merit and liable to be dismissed with cost.
4. The applicant has filed rejoinder and contested the reply filed by the respondents. It has been submitted that the charges levelled against the applicant are baseless. The applicant as per Rule 113 of P&T F.H.B. Vol.1, the ACG-28, Register is maintained in cash section and not in Page 7 of 12 8 OA No.793/2016 TRA Section of Telephone/Telecom Dist. of BSNL. The applicant has been working as Accounts Officer Telephone Revenue (South) Margaon throughout his tenure at BSNL, Goa and was not required to maintain the ACG-28 Register. The respondents without checking the office records of the applicant regarding maintenance of the ACG-28 Register have issued the chargesheet on the applicant.
4.1 It has been reiterated that the Inquiry Officer's finding is that the applicant was allotted the work of General Administration, but no details are elaborated of what constituent general administration. The Register of Cheques in Form ACG-28 is required to be maintained at a place where the cheques/cash were collected from subscribers towards payment of their telephone bills by the officer responsible for collection of cheques/cash. The cash and cheques are collected in the Customer Centre Margao. It has Page 8 of 12 9 OA No.793/2016 been submitted that the manner in which the penalty has been imposed shows that the Disciplinary Authority was bent upon imposing the punishment though the inquiry report clearly says that the charges levelled are not proved. This penalty is imposed without any reason and application of mind.
5. During the arguments, learned counsel for both the sides reiterated the submissions made in the OA, reply and the rejoinder.
6. Learned counsel for the applicant has placed reliance on the decision of Hon'ble Supreme Court in the case of S.N. Narula Vs. Union of India and Others, (2011) 4 SCC 591 and specifically on paras 6 and 7. She has further placed reliance on the decision of Hon'ble Supreme Court in the case of Union of India and Others Vs. S.K. Kapoor, (2011) 4 SCC 589, particularly, on paras 7 and 8.
7. We have heard learned counsels for both sides. We find that the Inquiry Officer has held Page 9 of 12 10 OA No.793/2016 that the charges levelled against the applicant were not proved. The Disciplinary Authority has not issued any disagreement note which means that he was in agreement with the findings of the inquiry report. However, the CVC has recommended the imposition of major penalty. The respondents have not provided a copy of the CVC report to the applicant which was used against him for imposing the penalty. Thus, the decision of the Disciplinary Authority was guided purely by the advice of the CVC and cannot be said to be his own decision. Therefore, there was clear violation of principles of natural justice. We find that Hon'ble Supreme Court in the case of S.N. Narula (supra) has held in paras 6 & 7 as under:
"6. We heard the learned counsel for the appellant and the learned counsel for the respondent. It is submitted by the counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the disciplinary authority as regards the punishment imposed.
7. We find that the stand taken by the Central Administrative Page 10 of 12 11 OA No.793/2016 Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set said the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in para 6 of the order. The appellant may submit a representation within two weeks to the disciplinary authority and we make it clear that the matter shall be finally disposed of by the disciplinary authority within a period of 3 months thereafter."
8. We further find that the Hon'ble Supreme Court in the case of Union of India and Others Vs. S.K. Kapoor (supra) has held in paras 7 and 8 as under:
"7. In the aforesaid decision, it has been observed in SCC para 25 that "the provisions of Article 320 (3)(c) of the Constitution of India are not mandatory". We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula Vs. Union of India."Page 11 of 12 12 OA No.793/2016
9. In view of the above facts and judicial pronouncements on the issue, we are of the considered view that the impugned orders cannot be legally sustained and, therefore, they deserve to be quashed and set aside and are, accordingly, quashed and set aside. However, the respondents will be at liberty to take appropriate action as permissible under the law.
10. The Original Application is, accordingly, allowed. Pending MAs, if any, stand closed. No costs.
(Shri Umesh Gajankush) (Mr. Shri Krishna)
Member (J) Member (A)
ma.
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