Central Administrative Tribunal - Mumbai
K Ashok vs Bharat Sanchar Nigam Limited on 22 April, 2025
1 OA No.470/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.470 OF 2019
Dated this Tuesday, the 22nd day of April, 2025
CORAM : HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
K. Ashok S/o Katkam Pandaiah,
Aged about 56 years,
Compulsory retired as a Senior Sub Divisional Engineer
At O/o Western Telecom Region, Tuljapur,
B.S.N.L, Telephone Bhavan, Osmanabad Road,
Tuljapur, District Osmanabad 413 601 &
Residing at Flat No.101 & 102, Shri Satya Sai Nilayam,
H.No. : 16-2-836/C/7, Madhavnagar Colony,
Saidabad, Telangana 500 059. - Applicant
(By Advocates Shri A.A.Manwani)
Versus
1. Chairman & Managing Director,
Bharat Sanchar Nigam Limited,
Bharat Sanchar Bhawan, Harish Chandra Mathur Lane,
New Delhi 110 001.
2. Director (Human Resources),
Bharat Sanchar Nigam Limited, 4th Floor,
Bharat Sanchar Bhawan, Janpath, New Delhi 110 001.
3. The Chief General Manager Western Telecom Region,
11th & 12th Floor, Prabhadevi Telephone House,
Dadar West, Mumbai 400 028. - Respondents
(By Advocate Dr. V.S.Masurkar)
Reserved on 18.12.2024
Pronounced on 22.04.2025
2 OA No.470/2019
ORDER
Per : Umesh Gajankush, Member (J)
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 by seeking the following reliefs :
"8(a). That this Hon'ble Tribunal will be pleased to call for the records and proceedings leading to passing of Impugned Order dated 20.06.2018 at Annexure A-1 and after going through the entire record of the Applicant's case, this Hon'ble Tribunal will be graciously pleased to quash and set aside the same.
8(b). That this Hon'ble Tribunal will be further graciously pleased to stay the operation of Impugned Order dated 20.06.2018 and be pleased to direct the respondents to allow the Applicant to join the duties.
8(c). That this Hon'ble Tribunal will be further pleased to direct the Respondents to issue the Medical Card to the Applicant and his family without submission of pension papers and allow him to avail the services of BSNL, M.R. Scheme.
8(d). That Ad-interim orders in terms of prayer clause (b) and
(c) above be issued.
8(e). That the costs of this Application be awarded in favour of the Applicant; and 8(f). That such other and further reliefs as are expedient be granted in favour of the Applicant."
2. Brief facts of the case are that the applicant was appointed as a Junior Telecom Officer in the year 1989 by direct recruitment with the department of Telecommunications, which has came to be known as BSNL. It is stated that he was discharging his duties regularly and diligently as JTO and hence, he was promoted 3 OA No.470/2019 as Sub Divisional Engineer in the year 2002. He was promoted in the year 2006 as a Senior Sub Divisional Engineer at Solapur and came to be transferred to Islampur in the year 2007. Later on, he was transferred on the same post to Tuljapur in the year 2008, where he was posted till the impugned orders were given effect to. 2(a). It is further stated that he has never been accused of any misconduct and no disciplinary proceedings have ever been initiated against him except the issue relating to applicant's mentioning two charges handled by him as a SDE, Tax Monitor Solapur and SDE, OFC, Tuljapur. These two designations were mentioned only in his personal representation to Superior Officers like General Manager, Chief General Manager and Chairman and Managing Director. Applicant, in fact, has mentioned two charges as he was handling both the charges in the year 2008-2010, which led to imposition of punishment of stoppage of two increments which is challenged by the applicant in appeal to the Higher Authority and the same is pending till date. Except this, there are no allegations against him and he has been regularly and diligently discharging his duties as upright and honest employee of the respondents. Applicant has also made representations to promote him from E3 to E4 due to completion of five years of service in that grade. 4 OA No.470/2019 2(b). It is also stated that he has always worked as per the directions and orders of his superiors and has never been communicated with any adverse remarks in his Annual Confidential Report (ACRs) or any downgrading of ACRs in the past years. However, the applicant has received notice dated 05.02.2018 informing him that he shall retired from service on the forenoon of 05.05.2018. The said order quotes that in exercise of the powers conferred by Clause 1(i) of Rule 55 (A) of the BSNL (Conduct, Discipline and Appeal) Rules, 2006, notice is given to the applicant to retire from service on 05.05.2018.
2(c). Thereafter, representation dated 09.03.2018 was submitted to the respondent No.2 explaining his mental status and precarious financial condition and prayed for cancelling the impugned notice. Thereafter, OA No.229/2018 was filed by the applicant challenging the impugned notice / order dated 05.02.2018 before this Tribunal which was disposed of vide order dated 23.04.2018 directing the respondent No.2 to consider the pending representation dated 09.03.2018 within a week. Thereafter, impugned order dated 20.06.2018 (Annexure A-1) was passed by the respondent No.2 upholding the order dated 05.05.2018. The aforesaid order has been challenged by the applicant on the ground 5 OA No.470/2019 that the impugned order dated 20.06.2018 is non-est as it is not passed within the time stipulated by this Hon'ble Tribunal. Further, the impugned order passed by the respondents in total non- application of mind.
2(d). It is submitted that the allegation of non-submission of APAR and immovable property statements for two calendar years were never raised and objected by the respondents, therefore, it was only an afterthought. Further, in respect of allegation of 272 days of unauthorized absence and using multiple designation are pending with the Higher Authority and, therefore, the same cannot be taken into account for determining the conduct of the applicant. 2(e). It is submitted that the respondents relied on the DoPT OM and the Hon'ble Apex Court judgment are misplaced as the principles laid down, in fact, in the favour of the applicant. It is stated that the reliance placed on so-called recommendation dated 20.12.2016 of Circle Review Committee under the provisions of Rule 55(2)(ii)(b) (Revised 55A), BSNL CDA Rules, 2006 but the amended rules have come into effect in the year 2017. Further, in the order of compulsorily retirement, there is no whisper in respect of "company's interest".
6 OA No.470/20192(f). It is submitted that the respondents have failed to consider the entire service record of the applicant particularly that he was promoted as per law and that applicant's service was satisfactory and no adverse comments have been made in the ACRs. It is submitted that the respondents were failed to consider applicant's 35 years unblemished service record against the principles laid down by the various decision of the Hon'ble Court for considering compulsorily retirement.
3. After notice, the official respondents have filed their reply and contested the OA. It is stated that the actual cause of action is the Order No.20-04-/2018-Pers-II dated 05.02.2018 passed by the Competent Authority in the following terms:
"WHEREAS the Director (HR), BSNL is of the opinion that it is in the Company interest to do so.
NOW THEREFORE, in exercise of the powers conferred by Clause 1(i) of Rule 55 (A) of the BSNL Conduct, Discipline and Appeal Rules, 2006, I hereby gave notice to Shri. K Ashok, Sub divisional Engineer (HRMS No.198404538, Date of Birth: 03- 04-1962) that he having already attained the age of fifty years, shall retire from service on the forenoon of 5th day of May, 2018."
3(a). It is submitted that the above order is basic order, against which the cause of action arose. However, it is seen from the reliefs sought for in the OA, that the applicant is challenging an order dated 20.06.2018, which is passed in compliance of the orders of the 7 OA No.470/2019 Hon'ble Tribunal vide order dated 23.04.2018. Hence, on this ground alone, the OA is liable to be dismissed with cost. 3(b). In support of this contention, the respondents are relying upon the judgement of the Hon'ble Supreme Court in the case of Amarjeet Singh Vs. Devi Ratan reported in (2010) 1 SCC 417 (Annexure R-1), Consequential order-challenge to, without challenging basic order-Held, not permissible-Further held in the absence of challenge to appellants promotion, relief quashing consequential seniority list, could not have been granted. 3(c). It is stated that the order dated 20.06.2018 is well reasoned order and passed strictly on application of mind and based on the evidence on record, rules on the subject. Applicant was prematurely retired as per Rule 55(II)(b) [revised 55(A)] of BSNL CDA Rules, 2006 for ensuring probity and efficacy among employees of CPSEs. Hence, the present OA is without any substance and liable to be dismissed as such.
3(d). It is further submitted that the action of the respondents is strictly in accordance with law and there is no breach of any of the mandate governing the compulsory retirement under the provisions dated 27.07.2017, whereby earlier provisions of Rule 55(ii)(b) is deleted from the BSNL CDA Rules, 2006 by substituting Rule 55(A). 8 OA No.470/2019 3(e). It is further stated that as per posting order at Tuljapur on 09.04.2008 by AGM (A) WTR, Mumbai mentioned that the way of working and behaviour will be under observation and CGM, Mtce. Further, to justify their action, respondents have placed on record minor penalty order. In respect of time bound promotion, it was stated that it depends upon the grading of APAR for last five years. Considering the adverse entries for the year 2006-2007 (average), 2007-2008 (very poor), 2008-2009 (below average), therefore, it was stated that applicant was not eligible for getting the time bound promotion E3 and E4 due on 19.04.2011.
3(f). Further, it is submitted that after communicating adverse remarks in ACR, applicant forwarded representation dated 29.04.2009 regarding adverse entries in Confidential Reports for the period from 01.04.2008 to 31.12.2008. Applicant has not filed self- appraisal from 01.04.2011 to 31.03.2016 and neither submitted online APAR for the year 2016-2017. Many warning letters were given before serving order regarding retiring from service dated 05.02.2018. The applicant found absent many times from his workplace without permission from higher authorities resulting in dies non for 272 days.
9 OA No.470/20193(g). It is stated that the notice is issued as per the provisions of Rule 55 A. Applicant has not referred to amended rules i.e. deletion of existing Rule 55(ii)(b) and insertion of a New Rule titled as Rule 55(A) below the Rule 55 of the BSNL CDA Rules, 2006. 3(h). It is stated that the notice dated 05.02.2018 was issued as per Rule 55(A) in the interest of company, after receipt of minutes dated 20.12.2016 of Review Committee which examined the periodical Review for ensuring probity and efficacy among employees of BSNL as per guidelines issued vide BSNL C.O's letter No.10-1/2016-WS&I dated 15.01.2016. Review Committee had properly examined the case of the applicant alongwith other employees based on the facts / service records and the applicant had not been recommended for retention in service (R-11). As such, the respondent corporation has issued the notice in accordance with provision of rules of Law.
3(i). It is stated that the applicant's case for premature retirement was duly processed in accordance with the guidelines issued BSNL C.O's letter No.10-1/2016-WS&I dated 15.01.2016. The impugned order dated 20.06.2018 was issued in compliance of this Tribunal's direction vide its order dated 23.04.2018 and after due consideration of the legal notice of the applicant. As such, the 10 OA No.470/2019 contention of the applicant is baseless. While issuing the impugned order, the respondent corporation has examined all the relevant facts as submitted by the applicant in the corresponding para and the order was issued as per provisions / guidelines contented in the OM No.10-1/2016-WS&I dated 15.01.2016. The respondent corporation has not violated any rules of Rules. Hence, the contentions of the applicant are denied.
3(j). It is stated that the applicant was served with a three months' notice vide order dated 05.02.2018 in accordance with the guidelines issued vide letter No.10-1/2016-WS&I dated 15.01.2016 to compulsory retire him w.e.f 05.05.2018 from the service of BSNL. However, in compliance of this Tribunal's order dated 23.04.2018 in OA No.229/2018, vide this respondent's letter dated 20.06.2018, the applicant was allowed to retire w.e.f. 30.06.2018 instead of the 05.05.2018. As such, the contention of the applicant is baseless. 3(k). It is submitted that the speaking and reasoned order dated 20.06.2018 was issued after examination / consideration of the submissions made by the applicant through his legal notice dated 24.05.2018. As such, the applicant cannot claim that the impugned order is non-est. Therefore, on the basis of reply, the official respondents have prayed for dismissal of the OA. 11 OA No.470/2019
4. Thereafter, no rejoinder has been filed by the applicant but, in fact, in proceedings dated 30.08.2019, it is categorically stated on behalf of the applicant that he does not want to file rejoinder. Meaning thereby, factual stand taken by the respondents in their reply is not disputed or clarified by the applicant.
5. We have heard the learned counsels for the parties and perused the pleadings and documents available on record.
6. Learned counsel for the applicant vehemently argued that the impugned order dated 20.06.2018 was issued by the respondent No.2 without application of mind and the impugned order is totally perverse. It is contended that the total 35 years of service career of the applicant was unblemished and during the aforesaid period, he was promoted on two occasions also. Further, in respect of unauthorized absence and allegation of using multiple designation, appeals are / were pending before the authority and, therefore, the same cannot be taken into account for determining the conduct of the applicant.
6(a). It is further contended that this so-called recommendation dated 20.12.2016 of Circle Review Committee (CRC) was taken into consideration, whereas, Rule 55(A) of BSNL CDA Rules, 2016 was came into effect in the year 2017 and, 12 OA No.470/2019 therefore, the impugned order is bad in law. Further, there is no mention about the company's interest in the order of compulsory retirement. There was no departmental enquiry pending, no memo was issued and, therefore, without conducting proper enquiry, procedure adopted in respect of compulsory retirement is illegal, arbitrary and unsustainable.
6(b). During the course of the arguments, the learned counsel for the applicant placed reliance on the following judgments of the Hon'ble Supreme Court :
(i) In the case of State of Gujarat Vs. Umedbhai M. Patel reported in AIR 2001 SC 1109 decided on 27.02.2001.
(ii) In the case of Swaran Singh Chand Vs. Punjab State Electricity Board and others reported in AIR 2010 SC 151 decided on 06.05.2009.
(iii) In the case of Shri Balwinder Singh Vs. Union of India & Ors., reported in (2011) ILR 4 DELHI 165 decided on 23.03.2011.
(iv) In the case of The State of Gujarat & Anr. Vs. Suryakant Chunilal Shah reported in (1999) SCC (LS) 313.
(v) In the case of Sukhdeo Vs. Commissioner Amravati Division, Amravati and Anr., reported in 1996 (3) SCT 613 (SC) decided on 02.05.1996.
13 OA No.470/2019
(vi) In the case of M.S.Bindra Vs. Union of India & Others, reported in 1998 SCC (LS) 181 decided on 01.09.1998.
(vii) In the case of Saroj Kumar Dutta Vs. Union of India and Others in Writ Petition No.8820(W) of 2010 decided on 28.02.2014 by the High Court of Calcutta.
(viii) In the case of Uttar Pradesh Cooperative Sugar Factories Federation Limited Vs. P.P.Gautam and others, reported in (2008) 17 SCC 365.
7. On the other hand, learned counsel for the respondents while supporting the impugned order vehemently argued that looking to the relief clause, it is clear that there is no challenge made by the applicant to the order dated 05.02.2018 which is an order of compulsory retirement passed by the Competent Authority in the company's interest. In the present OA, only the consequential order dated 20.06.2018 is under challenge. Since the original order is not under challenge and, therefore, merely challenging the consequential order, no relief can be granted to the applicant. In support of the aforesaid submissions, the respondents have placed reliance on the judgment of the Hon'ble Supreme Court in the case of Amarjeet Singh Vs. Devi Ratan reported in (2010) 1 SCC 417 decided on 18.11.2009.
14 OA No.470/20197(a). It is further contended that the APAR detailed chart of the applicant from 01.04.2006 to 31.03.2018 (Annexure R-4) clearly discloses the performance of the applicant. Further, Annexure R-6, also discloses the fact of period of dies non of 272 days. 7(b). It is further contended that Review Committee Report dated 15.12.2016 clearly discloses that the Committee has considered the cases of four employees, out of which, only in case of the applicant, it was recorded that the applicant is not punctual and his services does not matter.
7(c). So far as, the contention of the applicant is that Rule 55 (A) was came into force in the year 2017, whereas, the Review Committee report was prior to aforesaid amendment. In this regard, it is submitted that the case of the applicant was considered only in periodical review for ensuring probity and efficacy in the year 2016. Further, looking to the earlier Rule 55 and New Rule 55(A), it is clear that in the company's interest, employee can be compulsory retired. The only difference is that in old rule, the completion age was 55 years, whereas, in Rule 55 (A) is 50 years and admittedly, on the date of the consideration of his case, he crossed 50 as well as 55 years of age and, therefore, the contention raised by the applicant is not tenable. It is vehemently contended that overall consideration 15 OA No.470/2019 of the facts and the service career of the applicant, the Competent Authority of the department has rightly passed the order of the compulsory retirement in the company's interest, which was affirmed in the impugned order dated 20.06.2018 in detail. 7(d). It is further contended that looking to the provision of compulsory retirement, it is the subjective satisfaction of the Competent Authority to see the overall work of the employee concerned in the interest of the company and sufficiency or insufficiency of reason cannot be a subject matter of judicial review by this Tribunal. On these counts, it is submitted that in the present Original Application, no interference is called for and the same is liable to be dismissed.
8. After hearing the learned counsels for the parties and after perusal of the record, it is not in dispute that taking note of Review Committee report dated 15.12.2016, the Competent Authority has issued order dated 05.02.2018 clearly mentioning that "the Director (HR) BSNL is of the opinion that it is in the company's interest to do so" and the Director has exercised the powers conferred under Rule 55(A)(1)(i) of BSNL (Conduct, Discipline and Appeal) Rules, 2006 on attaining the age of 50 years. 16 OA No.470/2019
9. From the record, it is also clear that APAR details Annexure R-4 and other material discloses the fact that the opinion recorded by the Competent Authority in the order dated 05.02.2018 on the basis of material available against the applicant and, therefore, it cannot be said that it is the case of no material.
10. Further, the learned counsel for the respondents is right in his submission that in the present OA, there is no specific challenge to the order dated 05.02.2018 and only consequential order dated 20.06.2018 (Annexure A-1) is under challenge. Be that as it may. Even looking to the impugned order dated 20.06.2018 passed by the respondent No.2, it is clear that the said authority has taken into consideration all the grounds raised in the representation. Therefore, there is no ground available for exercise of power of judicial review in respect of order dated 20.06.2018.
11. That, so far as, the contention of the learned counsel for the applicant in the case of Umedbhai M. Patel (supra), in this regard, it is necessary to reproduce para 11 of the said judgment which reads as under :
"The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
(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.17 OA No.470/2019
(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 deadwood, 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 uncommunicated 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."
From the fall on records, the case of the applicant falls within the guidelines of para 11 of (iii) (iv) (v) of the said judgment.
12. So far as, the promotion of the applicant is concerned, last promotion was granted to the applicant as per the averment made in para 4.3 of the OA was in the year 2006 and, therefore, the applicant's case does not fall within the Clause (vii) of the aforesaid judgment.
18 OA No.470/2019
13. In case of Swaran Singh Chand (supra), the Hon'ble Supreme Court found the said order suffers from malice in law, whereas, the same is not the position in the present case. Further, in case of Balwinder Singh (supra), no material was produced by the respondents about the complaint or allegation with regard to the said petitioner's conduct and the adverse entry which relates to more than eleven years was taken into consideration while ignoring the good entries. The factual position is different in the present case.
14. Further, the judgment cited by the Suryakant Chunilal Shah (supra), M.S.Bindra (supra), Saroj Kumar Dutta (supra) and P.P.Gautam (supra) are distinguishable on facts and not helpful to the applicant.
15. Thus, taking note of the totality of the facts and circumstances of the case, no ground is available for interference in the impugned order and the OA is liable to be dismissed and is hereby dismissed with no order as to costs.
16. Pending MAs, if any, stand closed.
(UMESH GAJANKUSH) (SHRI KRISHNA)
MEMBER (J) MEMBER (A)
Digitally signed by Khushboo Mittal Gupta
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