Central Administrative Tribunal - Kolkata
Maniklal Kar vs Bharat Sanchar Nigam Ltd on 11 April, 2019
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1. o.a.946 of 2012
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/ CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
KOLKATA
/
OA. 946 of 2012
Present :Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Sri Manik Lai Kar; Son of Late Bhuban
Mohan Kar, Sub-Divisional Engineer
(now retired), Under control of Divisional
Engineer, EntallY, BSNL, Calcutta.
Applicant.
-versus-
:
1. Union of India, through the ;
Secretary,Department of
• s . > - jreleGommunicatioh,20, Ashok
'
60 ^^^^Roddihlew Delhi -110001.
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.^^^ThlDirectortHR), BSNL, Bharat
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^--;r'^?:Santhar Bh^wan, Janpath New Delhi
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•GKi'ef/General Manager (CTD), i
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' BfiarM^anchar Nigam Limited, l
....34;'B.B.D. Bag, Telephone Bhawan,-
Kolkata-700001.
4. Divisional Engineer, BSNL, Calcutta
Telephone, Entally Extention i
i
•■it 88B, Rafi Ahmed Kidwai Road
Kolkata.
'5. Sujit Mitra> Inquiring Authority,
Calcutta Telephones, l
34, B.B.D. Bag, Telephone Bhawan, i/ -
Kolkata-700001.
Respondents.
For the Applicant : Mr. B.R. Das, Counsel
Mr. B. P. Manna, Counsel
For the Respondents ; Mr. L.K. Chatterjee, Counsel (DOT)
Mr. S. K. Ghosh, Counsel (DOT)
Mr. A. K. Gupta, Counsel (BSNL)
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2.o.a.946 of 2012
Heard on: 13.03.2019 Date of order : 11.04.2019
ORDER
Per Ms. Bidisha Baneriee, JM:
This application has been filed in order to seek the following relief:
"12.(a) Abstain from proceeding with the charge sheet and/or acting in furtherance thereof in any manner whatsoever.
AND/OR (bj Direct the Respondents to withdraw the charge sheet dated 04.04.2012 framed by the Respondent No. 3 (not being the Appointing Authority) in violation of Rule 36 sub rules (3), (4), (6) and (9) as stated herein before ' i AND i
(c) Direct Respondent authorities to release the pensionary benefits which are lying withheld.
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(d) Pass any ,order/^6/dbrs'ih0luding\an an order directing the
Respondents to/come/mj^y0x::M$fre^h Charge sheet, if permitted
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2. From the pleadings and written notes exchange'd between the parties, following f position emerged:
! The applicant was chargesheeted in the year 2007, vide charge memo dated 05.11.2007 indictments inter alila being as under:
"That the said Shri Manik Lai Kar (Staff No. 102346) while posted and functioning as SDE/Technical (Central), Calcutta Telephones during 2000 5 committed gross misconduct inasmuch as he forwarded several bills of M/s/ A. Enterprise, 32A/23D, South Sinthee Road,: Calcutta- 700050 for drawing of 20 pair PIPS/PIJF cables overhead by the firm, violating General Financial Rules and Rules contained in P&T Manual which resulted in huge loss to Calcutta Telephones.
In the estimate No. XP/3852/D(b)/Ent/Extt/97-98, although there was on provision for drawing 20 pair PIPS/PIJF cable against the places mentioned in the relevant work orders, the expenditure incurred for such as Ffv ft (k 3. o.a.946 of 2012 / drawing of cable overhead was booked against the said estimate. This is .\ , i in contravention of Rules 131, 132 of General financial Rules and the rule contained in para 162 of P&T Manual, Vol. X. Further, Shri Manik Lai Kar as SDE, Technical (Central),Calcutta Telephones forwarded bills of M/s. A. Enterprise amounting to Rs.
1,232,360.00 booked against the estimate No. XP-3852//D(b)/Ent/Ext1/97- 98 to the AO/Cash (Central) , Calcutta Telephones. He had also certified that the JTO, Technical (Central) Calcutta Telephones and AAO, Estimate (Central), Calcutta Telephones have certified the fund availability under the said estimate.
That by doing so, Shri Manik Lai Kar had violated the rule 163 and 164 of P&T Manual Vol. X regarding detailed estimate mentioning therein that all works either within the power of sanction of Divisional Engineer or beyond !- • the power of sanction ^df^D'iviliorial^Engineer are to be executed against • <xrt7>» 'a the sanctioned estimate^and jthe estimate is to be submitted before the . a* competent authority to|haye3acebrdance.
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Thus, by his above acts^the jsaid^Shri Manik Lai Kar (Staff No. 102346) t
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failed to maintain. absorutevintegrity; devotion to duty and also acted in a \ manner which is unbecoming.-of -a Public servant, thereby violated Rule 4(1)(a), 4(1)(b) and 4(1)(c ) of BSNL, CDA Rules, 2006."
The Enquiry authority found the charges as not proved., The Disciplinary Authority, Chief General Manager, Calcutta Telephones agreed with the findings and exonerated him of the charges, vide his order dated 28.4.2012.
While the proceedings were underway, the CBI (ACB) chafgesheeted him and his wife Juthika Kar on 23.03.2007 under Section 120B, 109 of IPC and Section 13(1) 9e) read with 13(2) of Prevention of Corruption Act, 1988, having found them in possession of assets to the tune of Rs. 69,41,729.78.
He approached this Tribunal in OA. 1660 of 2010 seeking revocation of suspension order dated 6.10.2005 and quashing of charge memo dated 5.11.2007.
Having noted his exoneration vide enquiry report dated 16.12.2011 this Tribunal allowed r/
4. o.a.946 of 2012 ^•3 the revocation. Respondents took the order to Hon'ble High Court but failed in their efforts to get it reversed.
Hon'ble High Court held that suspension being made on 6.10.2005 under CCS ! (CCA) Rules, review under the CCS (CCA) Rules was mandatory, BSNL CDA having come into force much later, on 10.10.2006.
Sl . y The applicant was once again charge sheeted on 04.04.2012 by the BSNL authorities for allegedly acquiring assets disproportionate to his legal and known sources of income which he could not explain/satisfactorily account for and for violation . of some specified departmental conduct rules. The period in question was 28.02.1995 to 06.04.2005 which included the period 28.02.1995 to 30.09.2000 when he was admittedly employed under the Department of Telecommunication (DOT), Govt, of India. As allegations pertained to the period while he was employed not under BSNL, but under DOT, the applicant has alleged invoking of power by BSNL in term of BSNL ! CDA Rules as without jurisdiction and ^aVchallenged^the authority of the BSNL to issue J charge sheet in terms of rule 36,^ot BSNLspDA<^ul|s 2006. when his misdemeanour was determinable by DOT, under GBS E ) C\ ;
.3. It is an admitted fact the applicant had served DOT until he voluntarily opted for ' " 'r . E . -
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absorption under BSNL oh permanent basjsv a.ridr was- absorbed on 01.10.2000.
i , Therefore, the questionable periochcan-be. brokem'up into two distinct period, (i) from ;
28.02.1995 until his absorption in BSNL on 30.09.2000, when CCS (CCA) Rules were applicable as he served under DOT, and (ii) from the date of absorption in BSNL till 06.04.2005 when he served under the BSNL, when CCS (CCA) rules were still applicable, BSNL having not framed its rules until then.
4. The BSNL Conduct Discipline and Appeal Rules, 2006 was framed and came into force on 10.10.2006, and therefore the applicant has pleaded that the period of ! occurrence from 28.02.1995 to 06.04.2005 should entirely be governed under the ;
existing CCS (CCA) Rules, 1965,, and not under BSNL CDA.Rules.
5. The respondents have refuted the claim stating that the charge, sheet was drawn ! up in 2012 when the BSNL CDA Rules was already in force and held the field. They have averred that the charges were rightly drawn up under the BSNL CDA Rules since, i ! ; / > f T!W*r r • .•;
J r\ it 31 fvc 5. o.a.946 of 2012 according to them, post 10.10.2006 the absorbed employees of BSNL came to be governed by BSNL CDA Rules, 2006.
Thus, according to the respondents, the Disciplinary Authority issued the charge » sheet, with full jurisdiction and power under BSNL CDA Rules. ;
1I ft • 6. Further, the respondents would contend that an investigationiwas conducted by i the CBI, Anti-Corruption Branch, Kolkata and on completion of the investigation the •i department accorded prosecution sanction on 12.03.2007 whereafter CBI filed charge i sheet on 23.03.2007 under Section 13(1)(e ) read with Section 13(2} of Prevention of ■;
j \ Corruption Act, 1988 as also some Sections of IPC, and the trial is on, and therefore the proceedings were perfectly in order.
7. Thus legality and propriety of a departmental charge sheet, issued in 2012, under BSNL CDA rules, by the BSNL, has been called to question in the present OA.
8. As already referred to with supra, the applicant has challenged initiation of the proceedings under BSNL CDA Rules''lori'the'ground that the alleged misconduct was O ■ ?"
relatable to the period when he:serveMpt/ana%evefi*while service in BSNL, the CCS (CCA) Rules applied to him and thereforje|th,pqDre;sent ^employer had no jurisdiction to ' 5j J ! proceed against him unden BSNL febA) /Rules! While- the respondents in a bid to / \ /.7» i pulverise and torpedo the arguments'1 of the applicsirit^would dispel the claim on the IS w -777// ground that, such a course waV.permissible^ since an employee .who committed misconduct under a previous employer could not be allowed to go, scot free as it would not sub serve the ends of justice. . „
9. To defend their stand the respondents have heavily relied upon the following i legal provisions :
(i) Rule 58 of BSNL CDA Rules, 2006 which envisages the following "REPEAL AND SAVINGS" clauses :
"(i) Any Rule corresponding to these rules in force immediately before the commencement of these rules and applicable to the employees to j. whom these rules apply, ore hereby repealed, provided that any order made or action taken under the rules so repealed shall be 1 deemed to hove been made or token under the corresponding provisions of these rules, provided further that such repeal shall not affect the previous > operation of the rules so repealed and *r»T;il-iLi3m r^lTV: .,> -•f;6w,rTwa«i*ft^i'-»^»«ii^.^....;... .....
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6. o.a.946 of 2012 / contravention of any of the said rules shall be punishable as if it A were a contravention of these rules.
•1 Sub-rule (iii) therein stipulates that -
li a "The proceedings pending at the commencement of the Rules shall be continued and disposed, as far as may be, in accordance with the provisions of these Rules, as if such proceedings were proceedings under these Rules."
t Sub-rule (iv) of rule 58 which stipulates that -
i "Any misconduct, committed prior to the issue of these Rules, which 1 was misconduct under the superseded Rules, shall be deemed to be misconduct under these rules."
(ii) Rule 59 of BSNL CDA Rules/2006 which provides :
"In case of any doubt in application of BSNL CDA Rules 2006, the relevant 6.0.1. Decisions/ Instructions in Model CDA Guidelines issued by the DPE, Fundamental Rules/ Supplementary Rules, Central Civil Services (.CpqtfQcij*f '••-x 1964, and Central Civil Services(Classification,^{ConCrpL dhd\\Appeal) Rules, 1965 as amended/ modrped/§im^ig^m^:? shall be referred to, so long as these are nothin ^ontradf0on~^witH:: BSNL CDA Rules 2006 as amendedtime^tirk^f^f >-
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(iii) G.I., O.iyj. dated 13th Sept., 1957 i.e..
Govt, of India's Decisioh4sio,/(2)vas availa^fe^below Rule 3, of .Central Civil Services (Classification, ContrdOnd--'Appeal) Rules, 1965 and in the DIRECTOR-GENERAL P&T ORDERS wherein the following has. been clarified-
"When these rules may be applied - "that the time at which an act was committed or the capacity in which it was committed is not material for deciding whether or not the Central Civil Services (Classification, Control and Appeal) Rules, 1965, are applicable to an employee. It would, therefore, be quite in order to initiate disciplinary proceedings against a Government servant for some misconduct which is alleged to have been committed at a time when he was not a Government servant, e.g., when he was an Extra-Departmental Agent.[See also Decision (12) below Rule 11.]" !
(iv) Further, Govt, of India's Decision No. (1) as available ;below Rule 11. Of Central Civil Services (Classification, Control and Appeal) Rules, 1965 which states, "(l)Departmentql action in respect of misconduct committed in earlier employment. - It is clarified that the provision of Rule 11 of the CCS (CCA) Rules, 1965, which envisages the imposition of ;
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penalties of Government servant for 'good and sufficient reason' is adequate authority for taking action against a Government servant in respect of misconduct committed before his employment if the misconduct committed before his employment was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. When such action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service. [G.I., O.M. No. 39/1/67-Ests. (A) dated 21st February, 1967] The copies of the relevant pages containing the said Memos/ Decisions available in CCS(CCA) Rules, are enclosed here marking as Anriexure-'F' & Annexure-'G' respectively:
10. In addition to the above, the respondents have also relied upon the following , r • .
decisions of the Hon'ble Apex Court:
(i) State of Rajasthan vs. B.K. Meena & Ors. reported in AIR 1997 SC 13 !• wherein it was inter alia held that Departmental enquiry need not be i stayed till conclusion of criminal trial. i r 1
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(ii) Depot Manager, y^P. StatenRoad transport Corporation vs. Mohd. / Yousuf Miya & Ors.;report^i)\.\il^^^ SCCV699, wherein Hon'ble Apex Court observed that^'thei-Ril^^^urCJerrecl. in staying: the disciplinary proceedings as the ia?he ha'diioMhfctoido with culpability of the offences f '• w ^// I \ ' y --- :
under Sec. 304-A and BB^rJJ^UA-Clef^tties.e circumstances the High Court f was not right in stayirig tfi'e -pro.ceeding's siftefe/t'he purpose of departmental I:
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enquiry and of prosecutibn'ar.e two different/and distinct aspects".
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(iii) Commr. Of Police, Delhi vs. Narender Singh reported in AIR 2006 SC 1800, where Hon'ble Apex Court held, that "it is now well-settled by reason , of a catena of decisions of this Court that if an employee has been acquitted of a crimmal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in •* the event an order of acquittal is passed".
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(iv) Keshava Madhava Menon Vs. State of Bombay, where Hon'ble c Supreme Court examined the "GENERAL RULES OF CONSTRUCTION" of GENERAL CLAUSES ACT, 1897 to contend that "no question of invalidity of BSNL CDA Rules and in particular Rule 58 thereof as raised by the applicant, i does perhaps arise at all for the very fact that the said Rule 58 is not only repeal but Repeal and Saving. As all the relevant causes of action in connection with the disciplinary proceeding against the applicant continues prospectively for the limited purpose as stand indicated vide sub-rules (i) &
(ii) under Rule 58, the same are binding on the1 applicant for being an employee of BSNL during the period in question".
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8.0.a.946 of 2012
11. The applicant, as already referred to earlier, has not only challenged initiation of proceedings on the ground that charges relate to the period of' 28.02.1995 to 06.04.2005 i.e. before promulgation of BSNL CDA Rules, 2006, but also challenged the continuation of proceedings on the followings grounds inter alia: ,
(i) No permission was taken as per the original authority i.e. DOT. ;
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. (if) The criminal case has ended with his honourable acquittal and the
department had not sustained any loss on account of petitioner either directly or I
indirectly. :
(iii) Suspension period of 06.10.2005 to 30.04.2010 was treated as spent on duty for all intents and purpose as per orders of the Tribunal, Calcutta Bench in O.A. I: ' No. 1660 of 2010 dated 27.04.2010 and upheld by the Hon'.ble High Court in i ! f WPCT No. 408 of 2012 dated 13.05.2013. ;
(iv) The 2nd charge sheet immeldiafelyr'bypreKretirement was a replica of the o ^fT'TT^ ^ A I charge sheet filed befqre^the Grimihal/Gpurt dated'23.03.2007.; In the 2nd charge
-cT ^ \ i r sheet the applicant as well a|iTls^iM§mt.i)uthi!^ Kar who was a Central Govt. f L ■ <u- jv • 1 Employee (Section Su'pervisoiNiQ4he\o^icd of the/PMG/South Bengal Region) ' / i and his daughter Sm\\ Stftpana^Mitra.^Kairy/v^ho was software" Engineer of Accenture Services Pvt. Ltd. -were-implicated, and as such 2 charge sheet was t not maintainable. The charges,are vague and do not relate to violation of any BSNL CDA Rules.
(v) The charge sheet expressed malicious and malafide ; intention and was intended to harass and humiliate the petitioner at the behest of the Investigating s Agency.
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(vi) The applicant having retired on superannuation from theistrength of BSNL on 30.04.2012 by a positive order without attaching any precondition of continuation of disciplinary proceedings after retirement, continuation of the second !;
disciplinary proceedings was bad in law.
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(vii) No authority other than President is vested .with the power of affecting pension after superannuation; hence any order issued by the G. M, affecting the •/ pension is bad in law.
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9. o.a.946 of 2012
// (ix) The proceedings should be quashed on the ground of delay of 17 years in
terms of following decisions and orders:
(o)Ananta Kumar Kulkarn vs. Y.P. Education Society (2013) (2) 5CC (L&5) 593 >
(b)The State of Madhya Pradesh vs. Bani Sinoh and another, AIR 1990 SC 1308 (A-22/P-142-145).
(c) P.V. Mohodevon vs. M.D.T.N. Housing Board (2005) 6 SCC 636 (A-
: 22/P-146-150)
(d) Pravat Kumar Paul vs. State of West Bengal & Ors decided on 27th August, 2010 in W.P.S.T. 264 of 2010 before Calcutta High Court /
(e) CVCs instruction No. 8 (1) (g)/99(3) dated 3rd March 1999 (A-19/ P'63-64) ,'n
(x) The proceedings were notrnaintaihable duetto violation of principle of natural i justice, having failed to•'Suppl^the Ipfeslcutio^ documents and statements of r prosecution witnesses. In support^^olTowi|g decisions have cited:
(a) i s ?1 Kashinath;Diksh1ta/vsJQIhion of India, 1986 I) LU 468 (SO: 1986 Lab 1C 1939: '
(b) State of u/^ vs^ShaW-ufeliariX-af, 1998 II LU 799: 1998 Lab 1C 3489 : AIR 1998 SC 303'gr:l:998<8'6f FIR 389: (1998) 6 SCC 651. ,
(xi) The BSNL authorities have acted without jurisdiction in terms of commission ;
of alleged misconduct during the period applicant was governed by CCS (CCA) Rules. In support the following decision of Central Administrative Tribunal, Principal Bench, New Delhi, rendered on 8th Oct. 2013 in the case of Shri M.L Sharma vs, Bharat Sanchar Niaam Ltd, in O.A. No. 3465 of 2012 has been relied upon.
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12. Ld. Counsels were heard and materiSIs on retord were perused.
In Keshava Madhava Menon the decision cited by the respondents, while interpreting the operation of Article 13(1) of the Constitution of India, a Constitution Bench of Hon'ble Apex Court held as under:
"Per KANIA C.J., PATANJAU SASTRI, MEHRCHAND MAHAJAN, DAS and CHANDRASEKHARA AIYAR JJ.-FAZL ALI and MUKHERJEA JJ.- Before the Constitution came into force, there was no such thing as fundamental right. As the fundamental rights became operative only and from the date of the constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights come into being. Therefore, Art. 13(1) can have no retrospective operation but is wholly prospective. If an act was done before the commencement of the Constitution in contravention of the provision of any respect to the.exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned. Hence proceedings under S. 18(1) Press (Emergency Powers) Act'1931, pending at the date of the Constitution are not affected".
"Per Fazl AH & Mukherjee JJ-^Mcle^lSftyrjwilhhave no retrospective operation & :
transactions which are andKclosedtcfrjdyjghts whicb.have already vested will remain i-:
' untouched. But with regard to iftchop\&{matters whicti\were stilii not determined when the Constitution came into forie~and0s$regardf:proceedings whether not yet begun or pending at the time of :thCenfdr^ern<^\^The^onstituti{)n and not yet prosecuted to a final judgment, a law which /los%een|dec-/arec/,, by the Constitution to be completely r'VOs ~n'c"KV"' ,o x\ ineffected can no longer be applied?. $ / y- y Xxxxxxxxxxxxx 'XXXXXXXXXXX xxxxxxxxxxx Article 13(1) with which we are concerned for the pur- poses of this application is in these terms: -
''All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions.of this Part, shall, to the extent of such inconsistency, be void." , .
It will be noticed that all that this clause declares is that all existing laws, in so for as they are inconsistent with the provisions of Part III shall; to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13 11) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is "Fundamental Rights". These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from.the date of the Constitution the
11. o.a.946 of 2012 question of the inconsistency of the existing laws with those rights must necessariiy arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that article 13 (Ddoes not in terms make the existing laws which are inconsistent with the fundamental fights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words; on and after the commencement of the Constitu- tion no existing law will be permitted to stand in the wav of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give .them ;/ retrospective effect which, we have said, they do not possess.
Xxxxxxxxxxx xxxxxxxxxxxx xxxxxxx If therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of anv saving douse, the pending prosecution could not be proceeded with after the expiry of the statute bv efflux of time.
Article 13(1) is entirely prospective in its operation and as it was not intended to hove anv retrospective effect there\was(nb{necessity at all for inserting in that article anv ? such saving clause. The effect^of article 13 (l)'is^a'Ciite different from the effect of the expiry of a temporary statute orAfTprepegi'^of a statute by a. subsequent statute. As / ■ already explained, article ^13 ('fiohivXhas^thh. effeCt\of nullifying or rendering all inconsistent existing IdwPineJ^ctQai^fntfgaibry qnd, devoid of any legal force or binding effect only with fespeAtoAi^WsSfcisejof fundamental rights on and after the date of the commencemeht of Hh/.Constitution. It ftiisino retrospective effect and if, therefore, an act was clone ibffdre^tfie^cdmmeh'cement of the Constitution in contra- vention of the provisionSKofxahjhla.w which.^after' £heSConstitution, becomes void with r respect to the exercise of^anv^of^thelfundamen/al^riahts. the in'cdnsistent law is not wiped out so far as the oast act-is''concerned.''forrio sav that it is. will be td give the law retrospective effect. There is no. fuhddm'enfai right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court.
Xxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxx The sole point to decide in the appeal is whether pro- ceedinas instituted under section 18 (1) of the Indian Press (Emergency Powers) Act XXIII of 1931, before the commencement of the Constitution of India are affected bv its provisions. The High Court has answered this question in the negative and, in my opinion, rightly.
I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particular laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is not arguable and was not argued that Part /// of the / - Constitution has any retrospective operation. The appellant was not possessed of anv fundamental rights in September. 1949. when he published the, pamphlet in question and his act clearly came within the mischief of the provisions of section 18 of Act XXIII of L 1931 and he thus became liable to the penalties prescribed therein. It 12. o.a.946 of 2012 It was, however, contended by Mr. Chan, the learned counsel for the appellant,' that the effect of the language employed in article 1$ (l)ofthe Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Statutes ", p. 404, which is to the following effect "Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force." This rule seems to be based on a statement of Tindal C.J. in Kay v. Goodwin (1). The learned Chief Justice made the following observations "I take the effect of repealing a statute to be, to obliterate it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law."
This was the rule of the English common law which was applied in cases of statutes which were repealed and.under this rule all pending actipns and prosecutions could not be proceeded with after the repeal of the law under whlph they were started. This rule was however changed by the /nterpretat/on Act of 1889;; section 38. Therein it i was enacted that unless the contranv^intention, appears, no rdoeal is to affect any : ■ investigation, legal proceedin'ayincluding Vhennitiation of crirhina! proceedings, or remedy in resoect of any sucli'righf^vri^iTea'i^obliaation. liability; penalty, forfeiture, or l punishment and any such ^nvestiaatibhl i/ajal- broceediha or remedy may be instituted. r. continued or enforced and anv^ch^irfStvZfdrieitufe or punishment may be imposed as if the repealing Act had not f^eemod^B^'.sifmilar provision exists in India in section 6 of the General Clauses Att- of 1868'a'ndi ISSjJ^The High! Court h?(d that the provisions of article 13(1) were and}ogpus^^fie^repiieil,pf]d-~statute and therefore section 6 of the General Clauses Act had'ppplicatibn to the'canstrucfion of these provisions and that being so, the coming int&^fbrce<of?thle Constitution did not in any wav affect the continuance of the DroceedinaS:>that-bad~beeh commenced against the appellant under the law that was in force at the timeof'the'Dublication of the pamphlet.
Xxxxxxxxxx xxxxxxxxxxxx xxxxxx Article 13(1) of the Constitution is in these terms "Ail laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The freedom guaranteed to the citizen which has application to the case of the appellant is in article 19 (II (a) and this article is in these terms "All citizens shall have the right to freedom of speech and expression."
It is admitted that after the 26th January. 1950. there has been no infringement of the apoeliant's right of freedom of speech or expression, hi September. 1949, he did not eniov either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13 (1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be :
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/ possessed of a fundamental right before he can ask the court to declare a law which is
inconsistent with it void :but if a citizen is not possessed of the right, tie cannot cfaim this relief. The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes. i Xxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxx Both on considerations of convenience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished.
While explaining implication of a "repeal" Hon'ble Court ruled:
The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are ! contained in the Interpretation Act 1889. or in the General Clauses Act 1897. while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws.
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The said judgement was rehieredlby^majoritywiew where even in absence , f tiiigi ; ;
of a "saving" clause in tHe^\)vord^o;f-^ofrst{tuftion ,u'nder Article 13(1), reading
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prosecution or actions Unden/repea ed <raWs.)were allowed to culminate
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reasonably. Whereas in the prese'ht"Gase, as'evident from the language used in Rule 58, already enumerated supra, BSNL CDA although "repeals" earlier CCS (CCA) but also saves past actions determinable under CCS (CCA) Rules. In view of :
such saving clause although BSNL CDA Rules would have no retrospective operation to transactions past and closed in terms of CCS (CCA) Rules, but with :
regard to inchoate matters, which were still not determined had not come into force, had not begun or were pending when BSNL CDA came into force or were i.
not yet prosecuted to a final decision under CCS (CCA) rules would still be :, determinable under BSNL (CDA) rules. But such saving clause, in no manner can, be construed to take within its sweep such past acts and actions or conduct of an employee in DOT that were determinable by DOT under .CCS (CCA). Such acts T ■ 3& mm .*-7-' 14.0.3.946 of 2012 i that were punishable only by DOT under CCS (CCA) Rules cannot now become determinable under BSNL (CDA) Rules. The BSNL would have no authority to i.
exercise power to determine transactions determinable by DOT under CCS (CCA) Rules. The sole authority to be exercised by BSNL would only be in terms of .Rule 58 of BSNL CDA and not otherwise. ;
By framing Rule 58, BSNL cannot attempt to usurp the power of Central Govt, to prosecute its employee while in its strength, under CCSI(CCA) rules which applied to them or take away the power of DOT to deal with its pensioners to prosecute them in terms of CCS (Pension) Rules.
Therefore, actions or transactions supposed to be past and closed prior to formation of BSNL that were determinable by DOT in terms of CCS (CCA) cannot ■ i C-' ^\ ;
be determined under BSNL/CD'A rul^T^l^have^o be determined in terms of £ I CCS (CCA) rules by CentralrGovtl cafln'pt be applied by BSNL to ■ O %//fltv\/ j : ■ ' ■ ' actions/transactions determihaye-bylp.QIp.j.n^er-ms of CCS (CCA) rules.
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13. However, we would note tha'trtKev'appii.cant has not challenged the constitutionality or vires of Rule 58 of BSNL CDA Rules.
14. Nevertheless, in Mamata Mohanty vs. State of Orissa & ORs., the Hon'ble Apex Court held asunder:
!• "57. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors.
v. State of A.P. & Ors., AIR 1993 SC 1048 observed as under:
j "12.... 2..... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v.
Delameter at page 18:
'a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discord all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'".
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15. o.a.946of2012 "62. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, oref filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There may be certain such orders/circulars which are violated of the mandatory provisions of the Constitution of India. While dealing with i. such a situation, this Court in Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR ,1997 SC 1446 came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. .This Court simply brushed aside the same without placing any reliance on it observing as under:
"The said order, was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter affidavit..... This order is also deserved to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents..... "
(emphasis added)
15. In the aforesaid context we note that while BSNL CDA repeals earlier CCS 1 *, (CCA) it also saves exercise of junisdictiOA^underifCOS (CCA) particularly in view of / j/^ ■>-
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Rule 58(iv) which saving cj.ayie sl^)'u!i^|^|op'hs|rue^avs already discussed earlier, 1
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as one that would allow BSNl to, d'eterrhihe^acfs and'actions or transactions of its i
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employee while in BSNL, prior to promulgation of/BSNL CDA Roles, when CCS • j ", - - -
(CCA) rules applied to them. It should, however not apply to transactions undertaken while in DOT service. Therefore, inarguably and indubitably Rule 58 t i empowers the BSNL to proceed and determine against conduct/demeanof of its employee to whom, prior to promulgation of BSNL (CDA) Rules, CCS (CCA) rules were applicable. This view would be further strengthened by the decision discussed infra.
16. The Central Administrative Tribunal, Principal Bench, New Delhi, in the case i:i of Shri M.L. Sharma vs. Bharat Sanchar Nigam Ltd. in O.A. No. 3465 of 2012, noted the following :
"..... the Respondents have initiated action against the Applicant in some cases under the BSNL Conduct, Discipline and Appeal Rules, 2006, and in some cases under the CCS (CCA) Rules, 1965. While the disciplinary proceedings against the ;«Fasa»siicaB!Banfl fWOl [. IWf»twm'-sr* 1 f
16.o.a.946 of 2012 applicant in respect of the lapse in supervising work of trenching and laying of O.F. Cables while he was functioning as DE (OFC), Guwahati during the period 1995-96 was initiated under Rule 35 of BSNL, CDA Rules, 2006. Again, for some other six related alleged misconduct committed by the applicant during the said period in the same place, the Respondents have proposed to, take action against him under Rule 14 of the CCS (CCA) Rules, 1965. The Respondents are totally confused. They are not sure as to which Rule is applicable in the cases against the applicant."
j While determining whether the past action/conduct of an employee in DOT when he was not in the strength of BSNL could be questioned by BSNL, the Bench held as under:
"......in any case, for the same offence relating toithe period 1995- 96/1996-97 alleged to have been committed by the Applicant while he was working in Guwahati under the Government of India, he cannot be tried under the different set of rules. The respondents aforesaid action is against their own submission that till finalization of BSNL CDA- Rules, 2006, the applicant was subject to the CCS (Conduct) Rules 1964 and CCS (CCA) Rules. 1965 and from 10.10.2006 BSNDfcWArR'ules>.2006 superseded these rules."
:\ '> "13. As rightly aTgue^bJyWe'l^atnetc^unsel forithe applicant, the applicant became ar|emg^|eeof^heRespondent-Corporation only with effect from the | BSNL, CDA Rules, were admittedly ptotfiuIg^e^Jii \^Le^year^-2b06. Till such time, as submitted by the/applicaht, ffi'e4//aVto be governed under the CCS >- * (CCA) Rules, 1965X/Thefeforerthe^disciplinarv proceedings initiated against the applicarit-.bV the BSNL for the alleged misconduct committed when he was :not on the strength of the respondent- corporation in terms of the aforesaid rule is without jurisdiction. As far as CCS (CCA) Rules. 1965 are concerned, the applicant has already retired from service on 1.10.2000 and no disciplinary proceedings could have been initiated against him under the said Rules. If at all any proceedings had to be initiated, it is possible only under the provisions of Rule 9 of CCS (Pension) Rules, 1972. Even the Central Government could not have issued any charge sheet to him in the year 2005/2006 for the misconduct alleged to have been committed in the year 1995-96/1996-97 in terms of Sub-Rule 2(b) (ii) of the said Rules.
14. In the above facts and circumstances of the case, we agree with the counsel for the applicant that the disciplinary proceedings i. initiated against the applicant is not only badly delayed but-they were also without jurisdiction. We, therefore, allow both these OAs. Consequently, we quash and set aside the Memorandum dated 28.6.2007, the order of the Disciplinary Authority dated, 18.11.2008 imposing the penalty of Censure upon him. Appellate Authority's order dated 22.5.2009 and the Reviewing Authority's order dated ■-
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17.o.a.946 of 2012 28.7.2011 in OA. 2596/2012. Similarly, we quash and set aside the impugned charge sheets dated 7.10.2005, 15.12.20Q5, 18.09.2006, 18.11.2006 and 23.12.2006 in OA. No. 3456/2012 with all consequential benefits. The respondents shall also pass appropriate orders withdrawing the aforesaid Memorandum/Order in compliance with the aforesaid directions within a period of 2 months from the date of receipt of copy of this order."
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P No decision of higher fora has been placed to show that this decision of Principal Bench has been overruled or reversed on appeal. Therefor having i attained finality it binds BSNL. The BSNL, being a party to the order cannot feign ignorance to the said order. The decision prevents BSNL to usurp jurisdiction and power of DOT to determine action of its employees while in DOT, prior to their absorption in BSNL.
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17. Further, Hon'ble , „> ./a\, i/X. -A,... ;
dealing with the present appli'eantfhoted tKe..followirig\facts: } r**"
t4 respondent wis^empm/pd^w^h the^Cqlcutta, Telephones which was taken over by ihe-%har^^a^phdr^jgam Limited (BSNL).. An FfR was lodged against the respdnden'tbrrtP* Apnf2005>u^der s'ection 13(l)(a) and section 13(2} of the Prevention of Cdrfupiion Act^SSSpThe^respondent was suspended on 6th F October, 2005. TkeP'aile'gdtibn ^againit/him was acquisition of assets, I disproportionate to his known-^oufce of income. While, the respondent was t: * under suspension, he was absorbed in service with the BSNL.
j it The apDiication was submitted by the respondent to his erstwhile employer, i.e. the Calcutta Telephones on 10th November. 2005 for revocation of the order of :
s suspension. However, that was not done and a charge sheet was issued to him {• / f on 23rd March, 2007.1
On 14th July, 2010 the respondent preferred O.A. No. 1660 of 2010 for quashing the continued suspension against him. He contended therein that the order of suspension cannot be continued endlessly against an employee."
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. On 16th October, 2011 the departmental enquiry concerned against the respondent, was concluded and the Enquiry Officer held that the charge was not proved against the respondent". 1 ;
The learned counsel for BSNL has also "submitted that once the BSNL took over i the employment of the respondent, he having opted for employment with the BSNL, it is the BSNL (Conduct. Discipline & Appeal), Rules. 2006 which would ; prevail over the Central Civil Services /Classification, Control and Appeal) Rules.
F Hon'ble High Court in the said matter held as under:1
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18. o.a.946 of 2012
"wg are not convinced bv the submission made bv the learned advocate for the petitioners. There is no dispute that the BSNL took over the Calcutta Telephone in the year 2006 and the rules came into effect on 10th October, 2006. Therefore, althouah the BSNL had taken over the establishment of the Calcutta Telephones and the service of the respondent, the old rules of the Central Civil Service i. (Classification, Control & Appeal) Rules prevailed and covered the service conditions of the employees wdrkina in the erstwhile department, prior to the take over. The new rules became applicable only in October. 2006"
We would note that the Rule 58 of BSNL CDA, particularly Rule 58(iv) was neither challenged, nor was in issue or discussed in the aforesaid judgments. We however noted that although ruled in favour of the employee, Hon'ble High Court in its judgment has not altogether debarred BSNL from invoking CCS (CCA) Rules to deal with its employees for their conduct prior to promulgation of BSNL CDA Rules.
18. In P. Selvaraj vs. BSNL, in %w7p:^M.rbt), 13341 of 2010, M.D. (M.D.) 1 of i / 2010, Hon'ble Madras High Court/lia^,uj^ie!ldJl^e depfsion of CAT, Chennai Bench, of permitting BSNL to continue |Sot^i§jS|s^ajgainst a BSNL employee initiated : / ;■ vide charge memo dated 22.3/2s(506 under^CCS\(;CCA) Rules, for his acts while j' \ V'-' X '■'-r ..
....->'/ / > I serving as ITA at Sholavandar Tele^phohe.Exchange prior to promulgation of CDA s rules. Hon'ble Court brushed aside the claim of the employee that the ;
proceeding was badly delayed and both Department and criminal proceedings were one and same and therefore upon acquittal in criminal case Departmental case should not continue in view of U.O.I represented by its Commissioner of IT & Anr. Vs. CAT represented by its Registrar & Anr. (2005) II LU 307 Madras, j rendered referring to Supreme Court decision in Corporation of the City of \' 1 \ N* Nagpur vs. Ram Chandra & Ors. [AIR 1984 SC 626 =(1981) i SCC 714] " that if authority feels there is sufficient evidence and good grounds to proceed with the f enquiry it can certainly do so" and UOI vs. Naman Singh Shekhawant (2008) 4 SCC 1 that initiation of departmental proceedings must be viewed on the /
---------- p* ■ ■ t i! / 19. o.a.946 of 2012 background of total exoneration by criminal court and cannot be initiated on W/ ft P: account of delay. Therefore, proceedings initiated under CCS (CCA) Rules that i i were pending when BSNL CDA came into effect, can be safely concluded by BSNL ';
in view of the saving clause.
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19. In the aforesaid backdrop, so long the applicant served in 4)01 until his ;i • absorption in BSNL i.e. while he was in the strength of DOT, the Central Govt, that had the right to proceed against him and punish him either under CCS (CCA) as a ;
serving employee, or in terms of Rule 9 of CCS (Pension) Rules, after he retired from DOT, subject to the limitation and restrictions imposed by Rule 9 (iv) of Pension Rules. Misconduct during such period can never; be determinable by i t BSNL as BSNL would not have the ppwer to initiate proceedings or withhold c> '"CV \ pension and other retiral duesthatiA/^rffpa^able by 'Central Govt, in terms of CCS
-**• (Pension) Rules or became |^aya|ie;ir^i'tWi?ofjRule'37A of CCS (Pension) Rules, •u / / 1972, amended in 2000. % ! y '<
20. Accordingly, having understoodTthe 'true'irhport and implication of the judgments and orders, extracted supra, we conclude as under that;
(i) when the questionable conduct of an employee is while the employee was the i strength of DOT i.e. prior to formation of BSNL, such conduct that was determinable by DOT under CCS (CCA) Rules, would remain determinable under the CCS (CCA) Rules, or the CCS (Pension) Rules, as the case may be, but only by the Central Govt., (ii) when the questionable conduct is post absorption in BSNL i i i.e. post Oct, 2000, while in disposition of BSNL but prior to promulgation of BSNL CDA Rules such, as was determinable under CCS (CCA) Rules in view of Rule 58(iv) of BSNL CDA Rules would be determinable by BSNL under CCS (CCA) Rules if CCS (CCA) stood already invoked or else if not instituted then under BSNL CDA^Rules;
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(iii) while such questionable conduct of an employee of BSNL, past promulgation of BSNL (CDA) would irrefutably and inarguably be determinable under BSNL (CDA) Rules.
21. Having so concluded, we noticed the misconduct is allegedly committed between 28.02.1995 to 30.09.2000 when it was determinable by DOT in terms of CCS (CCA) Rules. Given the saving clause in Rule 58 of BSNL CDA it would still be :
determinable by DOT and not by BSNL under its CDA Rules. Therefore; the f chargesheet issued in the present case by the BSNL under the gujse of exercise of power under Rule 58 ibid, was issued absolutely without authority and i jurisdiction and was therefore unsustainable and liable to be quashed.
22. In the present case having so concluded, we discern that the applicant, who ! i was erroneously prosecuted uhder^BSNt^CDA'rules for the period of service if' ■> ■ \. U /// . % :
% rendered in DOT renderingrthe Ghargesf)i'eej-a-lnullity\is not yet acquitted of all criminal charges. But he has^eep-allb^d^p^upgranhuate.
23. In the aforesaid backdrop,vhaving,a1feady,ebncluded that disciplinary action v>.. '-V s under BSNL (CDA) for alleged misconduct vvhile serving under' ! DOT as illegal, while we have no hesitation to quash the charge memo and hold that the applicant would be entitled to receive all held up retiral dues within a period of one month from the date of receipt of a copy of this order, we also grant liberty to the respondents to act in accordance with law in regard to the questionable conduct while in BSNL and the outcome of criminal proceedings.
(Dr. Nandita Cfiatterjee) (Bidisha Barrerjee)
Member (A) Member (J)
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