Central Administrative Tribunal - Cuttack
Philip Pradhan vs D/O Telecommunication on 8 February, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O. A. No. 260/535 OF 2012
Cuttack, this the 08th day of February, 2018
CORAM
HON'BLE MR. S. K. PATTNAIK, MEMBER(J)
HON'BLE DR. M. SARANGI, MEMBER (A)
.......
Sri Philip Pradhan,
aged about 60 years,
son of Late Magata Pradhan,
Ex-Ferro Printer, O/o the Senior Architect,
BSNL, Bhubaneswar and
at present residing at Qr. No.II/3,
Block-30, P & T Colony Vanivihar,
Bhubaneswar-751007, Dist- Khurda.
...Applicant
(By the Advocate-Mr. A. K. Mohanty, D.KMohanty, P.K.Kar )
-VERSUS-
Union of India Represented through
1. Secretary, Department of Telecommunications, Sanchar Bhawan,
20, Ashoka Road, New Delhi-110001.
2. Senior Architect, BSNL, BSNL Training Centre Building,
Vanivihar, Bhubaneswar-751007.
3. Chief Architect, BSNL, Lucknow, 1st Floor, CTO Building, GPO
Compound, Hazratganj, Lucknow-226001.
4. Chief Engineer (C), BSNL, Civil Orissa Zone, Door Sanchar
Bhawan, Unit-IX, Bhubaneswar-751022.
5. Chief General Manager, Bharat Sanchar Nigam Ltd. P.M.G,
Building, Bhubaneswar-751001.
...Respondents
(By the Advocate- M/s. R. N. Pal, G. R. Verma)
.....
-2-
ORDER
Mr. S. K. Pattnaik, MEMBER (J):
The applicant has filed this O.A. praying for the following reliefs:
(A) To quash the orders of ratification of removal of service of the applicant dated 12-4-2012 issued by the Department of Telecommunications (as per annexure A/11) and consequently quash the order of removal of service of the applicant issued by the Respondent No. 3 dated 20.04.2012 (as per Annexure-A/12) for being illegal, irregular and not sustainable in law.
(B) To quash the charge sheet framed against the applicant as per Annexure-A/5 and the finding of the Inquiry Officer made in the Inquiry report as per enclosure to Annexure-A/6 for the fact that these were without any jurisdiction and were based on no evidence.
AND (C) Issue direction(s) to the respondents for payment of pension and other terminal benefits to the applicant from 1-7-2012 onwards for which he is entitled.
AND (D) To issue any other order or orders, direction or directions as it deems fit and proper in the interest of justice, equity and fair play for the benefit of the applicant."
2. The case of the applicant, in short, runs as follows:
The applicant, on his selection by the Selection Committee, joined as Peon in the office of Executive Engineer, Civil Division, P&T, Bhubaneswar w.e.f. 25.06.1973 (Annexure-A/1). It has been submitted that since the applicant belonged to Scheduled Tribe Community (Kandha) and he did not submit any Caste Certificate either at the time of application or at the time of his appointment to the said post of Peon and also as there was no mention in the appointment letter that his appointment is provisional and will be subject to production/verification -3- of Caste Certificate, it is understood that his appointment was against un- reserved category. However, he himself submitted a Caste Certificate issued by the Tahasildar G.Udyagiri on 31.10.1973 (Annexure-A/2) in support that he belonged to S.T. Community and Sub-caste "Kandha". On formation of the Bharat Sanchar Nigam Ltd. w.e.f. 01.10.2000, applicant was transferred to BSNL and was permanently absorbed there. While the matter stood thus, on certain allegation, the Tahasildar G.Udayagiri enquired about the genuineness of the Caste Certificate issued to the applicant on 31.10.1973 and recommended to the Collector, Kandhamal District for cancellation of the said Caste Certificate vide letter dated 18.02.2008 (Annexure-A/3) and, accordingly, the Collector, Kandhamal, issued letter (Annexure-A/4) to the Respondent No.4 suggesting to take action against the applicant as he belonged to SC community and has obtained a ST Caste Certificate. In pursuance thereof an F.I.R. was lodged by the Tahasildar G.Udayagiri in Tikabali Police Station alleging fraud to have been committed by the applicant in obtaining a false Caste Certificate, followed by the applicant's arrest and taken in to police custody. Since the applicant remained under police custody for more than 48 hours, he was placed under deemed suspension w.e.f. 10.05.2008 by the disciplinary authority (Respondent No.2) vide order dated 16.05.2008. The applicant has submitted that although in the meantime more than 3 and ½ years have elapsed from the date of filing of FIR, no charge sheet has been filed against the applicant in the criminal case. Respondent No.2 basing upon the letter of the Collector, -4- Kandhamal, issued a charge memo under Rule 36 of BSNL CDA Rules, on 01.11.2008 (Annexure-A/5). The applicant submitted that although the inquiry was concluded on 26.10.2010, the Inquiry Officer submitted its report only on 23.02.2011. After the inquiry, report was served on the applicant by the Disciplinary Authority on 18.05.2011 (Annexure-A/6), he submitted representation against the findings of the I.O. on 27.05.2011 (Annexure-A/7). The applicant alleges that his suspension period was irregularly extended from 10.05.2008 onwards without any review by the Review Committee consisting of Appellate Authority, Disciplinary Authority and another officer equivalent to Appellate Authority and after submission of his representation instead of considering the same, the Disciplinary Authority further extended his period of suspension till 30.06.2012, which is his due date of retirement on superannuation, as per order dated 07.01.2012, which has also been challenged by the applicant in O.A. 128/2012 in which the Tribunal on 27.02.2012 observed that "Since the suspension is continuing because of ongoing disciplinary proceedings which has been ordered to be complied within for months, we do not find any justification to continue the applicant under suspension beyond the expiry of four months. Hence, the suspension period instead of being continued up to 30.06.2012 is required to be limited to the date on which four months period in terms of our order dated 05.12.2011 in O.A. 608/2010 expires. In view of the above the order dated 07.01.2012 at Annexure-A/13 needs to be modified. Ordered accordingly" (Annexure- A/8). Applicant submitted -5- that although he brought the above order to the notice of the Disciplinary Authority, the Disciplinary Authority deliberately and intentionally did not take any action to modify his order dated 07.01.2012, for which applicant filed Contempt Petition No. 28/2012 in which notice has been issued by this Tribunal to the contemnors. The applicant has relied upon Rule 43 of the BSNL Conduct, Discipline and Appeal Rules-2006, which is as follows:
"The D.O.T. employees on absorption in BSNL shall be governed by these rules from the date of their absorption in the company/date of issue of these rules. However, dismissal/removal from the service of BSNL after absorption, for any subsequent misconduct shall not amount to forfeiture of his retirement benefits for the service rendered in the central Govt. Also in the event of dismissal/removal of such an employee from BSNL (i.e. D.O.T. staff permanently absorbed in BSNL), the employee concerned will be allowed protection to the extent that D.O.T. will review such order before final decision is taken by BSNL."
On receipt of applicant's representation against the findings of the I.O., the Disciplinary Authority forwarded the same to the Vigilance Officer, along with the draft order of punishment to be imposed on the applicant, to be forwarded to BSNL Corporate Office, New Delhi for ratification by the Department of Telecom. In the meantime, the Executive Engineer, O/o Respondent No.4, has written a letter to the Tahasildar G.Udayagiri (Annexure-A/10) to cancel the Caste Certificate issued to the applicant, which has not yet been cancelled. Vide letter dated 12.04.2012 (Annexure-A/11), the D.O.T. ratified the proposed punishment of removal from service of the applicant without -6- issuing any show cause notice to the him. The Disciplinary Authority without considering the representation of the applicant on the I.O's report imposed the punishment of removal from service vide order dated 20.04.2012 (Annexure-A/12), which was served on the applicant on 30.04.2012. Applicant preferred an appeal on 01.05.2012 (Annexure- A/13) but no response has been made by the Appellate Authority even after passing of two months.
3. Grounds taken by the applicant for the reliefs claimed in this O.A. is that since he was not appointed against any reserved quota, the charge sheet itself is misconceived and without any foundation. The Caste Certificate dated 31.10.1973 has not yet been cancelled by the competent authority and, therefore, is still valid and as per the decision of the Hon'ble High Court of Karnataka in case of G. Satyamurthy Vs. Director ITI Bangalore in W.P.No. 38606 of 1995 (Annexure-A/14) and the similar decision of the Hon'ble Madras High Court held in the case of S.P.Sakti Devi Vs. The Collector of Salem & Ors, in the absence of cancellation of Caste Certificate issued in faovur of the petitioner as invalid, the initiation of the disciplinary proceeding is not only bad in law but also without jurisdiction. The Hon'ble Bangalore Bench of this Tribunal in O.A.No. 465/2004 in case of G.Bhubaneswari Vs. South Eastern Rly. (Annexure-A/15) has held that genuineness of a Caste Certificate cannot be examined by the Disciplinary Authority. As per the decision of Madhuri Patil case {AIR 1997 SC 2581}, the verification of the SC/ST Caste Certificate already issued can only be conducted by a -7- district level scrutiny committee constituted by the State Govt. Before ratification by the D.O.T., the applicant should have been at least issued a show cause notice as per the principle of natural justice. In the case of M.S.Gill Vs. the Chief Election Commissioner, New Delhi {1978 (2) SCR 272} and S.L.Sapoor Vs. Jagmohan { AIR 1981 SC 136}, it has been held by the Hon'ble Apex Court that "civil consequence"
undoubtedly covers infraction of not merely property or personal rights but of civil liberties, material deprivations and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. Relying on the decision of the Hon'ble Apex Court in the case of State of Orissa Vs. Dr. (Miss) Binapani Dei {1967 (2) SCR 625}, the applicant submitted that even an administrative order which involves civil consequences must be made consistently with the rule of natural justice. On the above grounds, the applicant has prayed for the reliefs as quoted above.
4. Respondents have submitted a detailed counter contesting the prayer made in the O.A. Respondents pleaded that the applicant, before his appointment, had filed an affidavit on 25.05.1973 (Annexure- R/2) regarding his caste, which was mandatory as per memo of offer of Temporary appointment and that he had filed after obtaining the same from the Tahasildar, G.Udayagiri. The Collector, Kandhamal (Phulbani) wrote a letter to Chief Engineer (Civil), BSNL, Orissa Circle stating therein that the applicant is working on the basis of fake certificate and to take suitable action against him. The Tahasildar, G.Udayagiri wrote a -8- letter to the Collector, Kandhamal on 18.02.2008 seeking cancellation of Caste Certificate issued to the applicant after following due procedure. Pursuant to the receipt of letters from the State Govt. authorities, Respondent No.4 on 17.03.2008 (Annexure-R/5) instructed Sr. Architect, BSNL, Bhubaneswar, to initiate a disciplinary proceeding against the applicant. In the meantime, an FIR was lodged by the Talasildar, G.Udayagiri in Tikabali Police Station against the applicant. Since the disciplinary proceeding was initiated as per the information of the State authorities and the cancellation of Caste Certificate can be done only by the State Govt., the applicant should have impleded the State Government as necessary party in this case. Since the Collector and Tahasildar have found the Caste Certificate as wrong, there is no reason for the Respondents to discard their findings. If there was any ambiguity in the findings of the Collector and the Tahasildar, the applicant should have appealed before the appropriate forum of the State Government. It is further submitted that the RDC Southern Division, Berhampur, has expedited the matter before the State Level Scrutiny committee, which may be completed within 2/3 weeks, as stated by the RDC, and in this regard a letter has been sent by the RDC to C.E.(Civil), BSNL, Odisha Division, on 30.10.2012 (Annexure-R/8). The disciplinary proceeding was completed and draft final order of "Removal From Service"
dated 09.09.2011 (Annexure-R/11), which was passed much before the order of this Tribunal dated 05.12.2011 in O.A. No. 608/2010 filed by the applicant without availing the departmental remedy available to him, -9- which was sent to D.O.T, Govt. of India for ratification as per rules and anticipating the reply from D.O.T, Govt. of India, the Review Committee extended the period of suspension. The D.O.T. approved the 'Removal Order' on 12.04.2012 (Annexure-R/12) and all the proceedings were completed as per the directions of this Tribunal. Regarding applicant's contention that he should have been given show cause before ratification of the removal order, Respondents have submitted that there is no express provision in BSNL CDA Rule to hear the charged officer directly by the D.O.T. and nothing was done behind the applicant. The removal order was approved by the DOT on 12.04.2012.
5. Heard both the Counsel at length.
6. Before delving into the contentious issues raised by the applicant, it may be stated at the outset that scope of judicial review in a departmental proceeding is very very limited. Judicial review is limited to the deficiency in decision making process and not in the decision as has been observed by the Hon'ble Apex Court in the case of Damoh Panna Sagar Rural Regional Bank Vs. Munna Lal Jain reported in 2005 SCC (L&S) 567. This Tribunal does not act as an appellate authority of the administration department and the Tribunal cannot re- appreciate the evidence to come to its own conclusion [1996 SCC (L&S) 627 State of Tamilnadu Vs. S.Subramaniam (relied on)].
7. When there is allegation of fraud relating to fake Caste Certificate, the burden is equally heavy on the delinquent employee to demonstrate that the Caste Certificate obtained by him for the purpose of -10- employment was genuine, which he has signally failed in this case. Once the Collector and the Tahasildar recommended that the applicant does not belong to ST community, furnishing such certificate under Annexure-A/2 to show that he belongs to ST community becomes a fake certificate. There is nothing wrong in the order of the Disciplinary Authority calling for interference. The applicant can revoke such removal order only if he manages to obtain a Caste Certificate from State Level Scrutiny Committee about his actual caste. Since the Collector and the Tahasildar found the Caste Certificate of the applicant to be wrong, there is no reason or occasion to discard such findings.
8. Considering all the pros and cons of the entire record, we did not notice anything illogical or irrational calling for interference. Hence ordered.
9. The O.A. being devoid of merit is dismissed. No costs.
(M. SARANGI) (S.K.PATTNAIK)
Member (Admn.) Member (Judl.)
RK