Central Administrative Tribunal - Allahabad
Bharat Lal vs The Chief Managing Director on 14 October, 2015
Reserved
(On 01.10.2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 14th day of October 2015
HONBLE DR. MURTAZA ALI, MEMBER -J
Original Application No. 330/00951of 2014
Bharat Lal, S/o Late Jyoti Prasad, Chief Accounts Officer (retired) and the then Deputy General Manager (F&A), O/o General Manager Telecom District Bharat Sanchar Nigam Limited, Ghaziabad.
. . . Applicant
By Adv: Shri Pankaj Srivastava
V E R S U S
1. The Chief Managing Director, Bharat Sanchar Nigam Limited, Harichand Mathur Lane, Janpath, New Delhi.
2. The Chief General Manager, Telecom, U.P (West) Telecom Circle, BSNL, Shastri Nagar, Telecphone Exchange Building, Meerut 250001 (U.P).
. . .Respondents
By Adv: Shri D.S. Shukla
O R D E R
The applicant has filed this O.A under section 19 of the Administrative Tribunals Act, seeking following reliefs:-
(i) To quash/set aside the impugned order dated 19.9.2013 (filed as Annexures No.A-1 with compilation 1 to this Original Application) passed by the respondent No.3.
(ii) to direct the respondents department to pay the interest @ 18% per annum upon the retiral benefits of the applicant and also to pay cost of Rs.25000/- for harassment to him.
(iii) To issue any other order or direction which this Honble Court may deem fit and proper.
(iv) To award cost of the original application to the applicant.
2. The brief facts of the case are that the applicant was chargesheeted on 25.6.2011 for the alleged misconduct committed by him while functioning as D.G.M (F&A)/FA O/o GMTD, Ghaziabad during the period 3.10.2008 to 10.12.2009. He filed O.A. NO. 1084 of 2011 for quashing the said charge-sheet. During the pendency of said O.A., the Inquiry Officer concluded the enquiry and found the charges as not proved. The O.A. No. 1084 of 2011 was disposed of on 21.7.2012 with the direction to the respondent NO. 5 for taking a final decision on the enquiry report within a period of three months. The Disciplinary Authority disagreed with the enquiry report and issued a disagreement show cause notice on 18.9.2012. The said show cause notice was challenged by the applicant by filing O.A No. 37 of 2013. The Tribunal quashed the said notice vide order dated 04.02.2013 (Annexure A-3). The respondents issued second disagreement show cause notice on 24.7.2013 (Annexure A-5) which was replied by the applicant on 5.8.2013 (Annexure A-6). The respondents passed the impugned order dated 19.9.2013 (Annexure A-1) conveying the Displeasure to the applicant. The impugned order has now been challenged on the ground that issuance of second disagreement show cause notice is illegal and such penalty is not mentioned in the BSNL Conduct, Discipline and Appeal Rules 2006.
3. In the counter reply, it has been submitted that there was no bar to issue second disagreement show cause notice as the first disagreement show cause notice was found defective by this Tribunal. A displeasure was communicated to the applicant as per second advice of CVC New Delhi. The applicant has retired on 31.8.2011 and his retiral benefits were withheld till the decision of his case. There is no illegality or infirmity in awarding the punishment to the applicant.
4. Heard Shri Pankaj Srivastava counsel for the applicant and Shri D.S. Shukla counsel for the respondents.
5. I have gone through the order dated 4.2.2013 (Annexure A-3) passed by the Division Bench of this Tribunal in O.A. No. 37/2013 vide which first show cause notice regarding disagreement of finding of Inquiry Authority was not found tenable. It has been held that in view of O.M dated 12.11.2010 of D.O.P.T. any show cause notice calling for a reply should not indicate any kind of bias or prejudice on the part of the issuing authority. It should not arrive at any conclusion and mention it in the show cause notice since it would vitiate the show cause notice itself. It is only after going through the representation of the charged officer against his reasoning in the note of disagreement, the Disciplinary Authority may come to any conclusion about the charges being proved or not proved. If the conclusion is mentioned in the show cause notice itself, it would demonstrate an inbuilt bias and will jeopardise the interest of charged officer. There is no mention in the order that Disciplinary Authority is debarred from issuing any second disagreement show cause notice after removing the shortcomings of first notice. I have also gone through BSNL Conduct, Discipline and Appeal Rules 2006 and I do not find any provision which prohibits issuing second show cause notice regarding disagreement of finding of Inquiry. Thus, I am of the view that the second disagreement show cause notice could be issued after removing the defects mentioned in the first disagreement show cause notice.
6. It has rightly been argued on behalf of applicant that the penalty of displeasure is not mentioned in BSNL Conduct, Discipline and Appeal Rules 2006, therefore, such penalty cannot be imposed upon the applicant. The applicant has retired from service 31.8.2011 and the penalty of displeasure has been communicated to the applicant vide impugned order dated 19.9.2013 (Annexure A-1). It has been held by Honble Supreme Court in Vijay Singh Vs. State of Uttar Pradesh and others reported in (2012) 5 Supreme Court Cases 242 that imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant. While quashing the punishment of withholding of integrity certificate, it has further been held that any punishment not prescribed under the Rules cannot be awarded. In the case of Raj Kumar Gautam Vs. State of U.P and Others reported in 2013 (2) ADJ 80, a punishment order was passed for withholding of integrity. It has been held by Honble Allahabad High Court that while performing the quasi-judicial function, the authorities are not permitted to ignore the statutory rules under which punishment is to be imposed and any order of punishment being outside the purview of statutory rules is nullity and cannot be enforced against the delinquent official. The Principal Bench of Central Administrative Tribunal, New Delhi has also considered these issues in O.A. No. 154/2012 Shri A.K. Gupta Vs. B.S.N.L (decided on 25.8.2014). In the said case, by concluding disciplinary proceeding the official was punished by expression of displeasure. The Appellate Authority also maintained the order of displeasure passed by the Disciplinary Authority. The Principal Bench has quashed both the orders mainly on the ground that no such penalty is prescribed under the Rules.
7. Considering all the facts and circumstances and relevant case laws, I am of the view that the impugned order dated 19.09.2013 conveying the displeasure of the disciplinary authority to the applicant is not tenable and liable to be quashed, as this penalty of displeasure has not been prescribed under BSNL Rules.
8. Accordingly, O.A. is allowed and the impugned order dated 19.09.2013 is set aside and quashed. The respondents are directed to pay interest @ 9% per annum on the delayed payment of his retiral benefits treating as the impugned order dated 19.09.2013 has never been passed. No order as to costs.
Member (J) Manish/-
Page 6 of 6