Central Administrative Tribunal - Delhi
Subhash Chand Gupta vs B.S.N.L. Through on 4 April, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3067/2012 Reserved On:27.02.2014 Pronounced On:04.04.2014 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Subhash Chand Gupta S/o Shri Kailash Chand Aged about 60 years R/o 500/9, South Civil Line, Muzaffar Nagar, U.P. ..Applicant By Advocate: Mrs. Rani Chhabra. Versus 1. B.S.N.L. Through Its Managing Director, Sanchar Bhawan, New Delhi. 2. Senior General Manager, Telecom District, Patel Nagar, Muzzaffarnagar (UP). 3. DGM (CM) and Disciplinary Authority Office of the : General Manager, Telecom District, Patel Nagar, Muzzaffarnagar (UP). Respondents By Advocate: Shri M.M. Sudan. ORDER
Shri G.George Paracken, M(J) Applicant has filed this Original Application challenging both the orders of the Disciplinary Authority and the Appellate Authority in the disciplinary proceedings initiated against him.
2. The brief facts of the case: The Applicant was proceeded under Rule 36 of the BSNL CDA Rules-2006. The substance of the imputations of misconduct or misbehaviour in respect of which the enquiry was proposed to be held against him was as under:-
Article-1 That the said Shri Subhash Chand Gupta, while posted and functioning as Sr.TOA(P) under the then SDE (Phones), City Centre, now SDE (Phones), Shiv Chowk O/o GMTD Muzaffarnagar during the period 01.06.2004 to 31.07.2004 committed following irregularities while discharging his duties, which amounts to misconduct.
During the period the said Shri Subash Chand Gupta, Sr. TOA (P) under the then SDE (Phones), City Centre, now SDE (Phones), Shiv Chowk was found guilty for submission of forged LTC Bill of his three family members from Muzaffarnagar to Kanya Kumari for block year 2002-05 on forged documents of tourism department. The tourism permit was not issued by ARTO Fatehpur to the bus by which the journey was performed by his family members from Muzaffarnagar to Kanya Kumari. As per tour programme, the bus No.UP-78 AN 0601 had gone to Kanya Kumari via Gwalior. The said bus has also not passed from the Transport Check Post Baretha, Dhaul Pur, Rajasthan during tour programme 19.06.2004 to 04.07.2004 while going to Gwalior, thereby violated Rule 5(31) of BSNL CDA Rules-2006.
Thus by his above acts, the said Shri Subhash Chand Gupta. Sr. TOA (P) under the then SDE (Phones), City Centre, now SDE (Phones), Shiv Chowk, O/o GMTD, Muzaffarnagar failed to maintain absolute integrity and acted in a manner which is unbecoming of a company employee, thereby contravened the provisions of Rule-4 (1)(a) & 4(1)(c) of BSNL CDA Rules-2006.
3. The aforesaid substance of imputations of misconduct or misbehaviour was proposed to be proved by four listed documents mentioned in Annexure A-3 to the Memorandum but according to Annexure A-4 to the same, there were no witnesses to prove them. However, after holding an enquiry into the matter, the Inquiry Officer, vide its report dated 14.10.2011, held that nothing could be proved against the Applicant in respect of the charges framed against him. The relevant part of the said report reads as under:-
To sustain the above charge the following four documents were proposed in Annexure-III of the memo of charges:-
(1) Photocopy of LTC Bill.
(2) AC (Cash) O/o GMTD Muzaffarnagar letter No.AO ( C)/Vig./2008-09/39 dated 11.10.2010. (3) Certificate given by Incharge Tax Collection Centre, Transport Department Baretha, Dhaupur (Rajasthan) and Other Incharge, Transport Check Post, Muraina, District Muraina (MP). (4) ARTO (Administration) Fatehpur letter No.5109/Samanya Prashashan-LTC Permit-Styapan/05 dated 02.05.2005.
There was no witness proposed in Annexure-IV of the charge sheet to be produced in support of the article of charge.
The preliminary enquiry was held on 01.03.2011. The delinquent confirmed receipt of the memo of charges and denied the charge leveled against him. He has desired copies of listed documents. PO was ordered to make available the copies of listed documents to CO.
Next hearing was held on 26.03.2011, copies of listed documents were made over to the CO. The CO did not intimate any name of his defence assistant. CO requested that the additional documents from defence side will be submitted on next hearing.
3rd and 4th hearing were scheduled on 11.4.2011 and 30.04.2011. CO submitted a list of additional documents which was examined and the PO was ordered to procure the documents and made over to the CO by the next hearing. The CO pleaded to defend his case himself.
On the 5th hearing on 03.06.2011, the PO could not provide the additional documents and desired another date for the purpose. He was allowed.
On 6th hearing dated 14.06.2011, the PO still could not supply the additional documents and further requested for some time. He was allowed.
On 7th hearing dated 21.06.2011, PO showed inability for procuring all additional documents and requested further time for this purpose. He was again allowed to submit the documents by next hearing.
On 8th hearing dated 16.7.2011, PO informed that all additional documents had been made over to the CO. The CO furnished acknowledgement of the additional documents and further submitted a list of certain additional documents after inspection of one file. The another file could not be shown due to administrative reasons. The CO did not stress for inspection of that file. The list now submitted for additional documents was examined and found materially related with case for defence and therefore was allowed. The PO supplied all these additional documents also. The CO confirmed receipt of all additional documents.
On 9th hearing dated 22.07.2011 the PO could not submit the attested copies of the listed documents of Annexure III of the memo of charges. He was allowed next date for this purpose.
On 10th hearing on 01.08.2011, PO supplied all the listed documents well attested to the CO. CO nominated three defence witnesses Shri R.S. Gupta Accounts Officer Meerut, Shri Sushil Kumar Sr. TOA (P) Muzaffarnagar and Shri Ashok Kumar Sharma Accounts Officer Meerut and BSNL employees. All they were allowed. The PO produced listed prosecution documents of serial 1 and 2 which were not disputed by the CO and therefore taken on records and marked Ex.S-1(i), Ex.S-2(i), S-2(ii). The CO did not accept the authenticity of the rest two documents.
PO desired to produce Shri Virendra Singh ADT (Vig) O/O GMTD BSNL Muzaffarnagar, who held the investigation of the case. He was allowed and summoned for the next hearing.
On 11th hearing dated 18.8.2011, Shri Virendra Singh ADT (Vig) O/O GMTD BSNL Muzaffarnagar was examined in chief and cross examined by the CO and his deposition was recorded and marked SW-1. Shri Virendra Singh ADT (Vig.) authenticated the remaining prosecution documents. Both these documents were then taken on records and marked Ex.S-3(i), S-3(ii) and Ex.S-4. The defence documents were also confirmed by the SW-1 and those were taken on records and marked Ex.D-1; Wx.D-2; Ex.D-3; Ex.D-4; Ex.D-5; Ex.D-6; Ex.D-7; Ex.D-8; Ex.D-9(i); D-9(ii); Ex.D-9 (iii) and Ex.D-10. One map of Uttar Pradesh is also taken on records and marked Ex.R-1.
Consequent upon taking on records, all the prosecution documents and examination of prosecution witness, PO declared the case over from prosecution side. The CO was ordered to submit his defence statement before his witnesses are examined on next hearing.
On 12th hearing of 25.08.2011, the CO submitted his statement of defence with a copy of the PO. CO also submitted rulings on LTC which are taken on records and marked Ex.R-2 and Ex.R-3. Two witnesses Shri Sushil Kumar Sr.TOA (P) Muzaffarnagar and Shri Ashok Kumar Sharma, Accounts Officer Meerut were adduced from defence side whereas the third Shri Radhey Shyam Gupta was dropped by the CO. The depositions of witnesses were recorded and marked as DW-1 and DW-2 respectively.
The case was also declared closed and both PO and CO were ordered to submit their briefs.
The PO submitted his written brief on 29.08.2011 and the CO submitted his brief on 14.09.2011.
During inquiry, full opportunity was provided to both PO and CO for presenting the case from their side.
Observation On going through all the evidences before inquiry and hearing the prosecution witnesses as well as defence witnesses, it became clear that the LTC claim submitted by Shri Subhash Chand Gupta, Sr. TOA ( P) Muzaffarnagar is in order. All the evidences before the inquiry failed to prove any charge against him.
Conclusion I, Ram Kumar, Asstt. General Manager (Marketing) BSNL Muzaffarnagar an inquiring authority in the case, has arrived on the decision that nothing could be proved against Shri Subash Chand Gupta, Sr.TOA (P) Muzaffarnagar for the charges framed against him in charge sheet No.DGM/MZN/Vigilance/2010-11/1 dated 21.01.2011.
4. The Disciplinary Authority forwarded a copy of the enquiry report to the Applicant, vide its letter dated 07.12.2011 and on receipt of the same, vide his letter dated 09.12.2011, he submitted that he agreed with the same. However, the Disciplinary Authority, vide his letter dated 30.04.2012, disagreed with the findings of the Inquiry Officer and proposed to impose a suitable major penalty upon him as per BSNL CDA Rules-2006. He was also given an opportunity to make representation, if any, within 15 days from the date of disagreement note. The said disagreement note is reproduced as under:-
Bharat Sanchar Nigam Limited (A Govt. of India Enterprise) O/o General Manager Telecom District Muzaffarnagar-251001 (UP) To Shri S.C. Gupta-Sr.TOA (P) O/o SDIO (Shiv Chowk), Muzaffarnagar No.DGM/MZN/Dis. Case/Subash Chand Gupta/15 Dated: 30.04.2012 Sub: Reg. Disciplinary proceeding in connection with fabricated LTC Bill & payment.
As per the second stage advice received in the case, it is observed that
(i) The Charged Official submitted the LTC Bills (S-1) from Muzaffarnagar to Kanyakumari, claiming that the said journey was performed through a BUS No.UP-78 An.0601/route permit No.183/F/04 during 19.06.2004 to 04.07.2004 by his family members. But as per ARTO (Admn) Fatehpur office letter dated 02.05.2005, no such permit was issued to the said bus for the said journey (S-4). It does not seem to be possible to travel by a bus for such a long journey which was not have any route permit for said journey.
(ii) The said Government authorities have denied the passing of said bus through state borders on normal route (Delhi to Gwalior via Mureine [MP]/Barethe [Dholpur Raj.] S-3(i) & S-3(ii). The charged official has deposed that the journey from Delhi to Gwalior was performed through another route via Etwah-Bhind but charged official has not produced any documentary proof for journey via Etawah-Bhind route i.e. name of check post from where bus was passed on the diverted/changed route between New Delhi to Gwalior. The IO has considered the statement of charged official without any supporting document.
(iii) The charge official has returned/deposited the LTC advance/payment (with interest) without any protest.
In view of the above, the charge of submission of fake LTC bill by you is established and the competent authority has disagreed with the Disciplinary Authority and has advised for imposition of suitable Major Penalty on you as per BSNL CDA Rules, 2006.
Accordingly, the Applicant made a representation on 09.12.2011 submitting that the disagreement note of the Disciplinary Authority was not substantiated by any of the findings/observations of the enquiry report dated 14.10.2011. However, the Disciplinary Authority, vide the impugned order dated 16.05.2012, imposed the following punishment upon the Applicant:-
(i) Reduction of pay of the Applicant by two stages lower in the time scale of pay from the date of decision till 31.12.2012 with cumulative effect. During this period he will not earn any increment. After expiry of this period, the reduction will not have the effect of postponing his future increments of pay.
(ii) Disallow any type of LTC till retirement/superannuation due to grave misuse of LTC facility.
5. Applicant has made appeal dated 17.05.2012 against the aforesaid penalty order but the Appellate Authority has only reduced the punishment by way of modification, vide order dated 30.06.2012, which is reproduced as under:-
(i) Reduction of pay to one stage lower in the time scale of pay for a period of six months with cumulative effect w.e.f. 16.05.2012. During this period he will not earn any increments of pay and on expiry of this period, the reduction will not have the effect of postponing his future increments of his pay.
(ii) Disallow any type of LTC till retirement/superannuation due to grave misuse of LTC facility.
6. The Applicant has challenged the aforesaid orders before this Tribunal on various grounds. According to him, the Disciplinary Authority exceeded its jurisdiction in disagreeing with the findings of the Inquiry Officer who found that no charge leveled against him was proved. Further, according to him, once the Inquiry Officer held that the charges are not proved, disagreeing with his findings without any substantial evidence is wrong and illegal. He has also stated that there is no provision in LTC Rule that the official has to submit permit of the bus in support of his LTC claim. Further, according to him, the letter dated 02.05.2005 relied upon in the note of disagreement was never proved by the prosecution before the Inquiry Officer. The Inquiry Officer has also found that the said document was not reliable.
7. Respondents have filed their reply. They have submitted that the Applicant was found guilty for submission of forged LTC Bill and production of forged documents of tourist permit for claiming LTC for his three family members from Muzaffarnagr to Kanya Kumari for the block year 2002-05. The said permit was not issued by ARTO Fatehpur to the bus by which the journey was performed by his family members. As per the tour programme, the bus No.UP-78 AN-0601 had gone to Kanya Kumari via Gwalior. The said bus has also not passed from the Transport Check Post Muriana, District Muraina (MP) and Transport Check Post Baretha, Dhaul Pur, Rajasthan during tour programme 19.06.2004 to 04.07.2004 while going to Gwalior thereby violated Rule 5(31) of BSNL CDA Rules, 2006. By the said act he had contravened Rule 4(10(a) and 4(1)(c ) of BSNL CDA Rules, 2006. Thereafter charge sheet was served upon the Applicant. He denied all the charges. An Inquiry Officer was appointed who observed that the LTC claim submitted by the Applicant is in order and concluded that nothing could be proved against the Applicant. Thereafter the Disciplinary Authority referred the matter to the CVC for its second stage advice and on receipt of their advice, the penalty was imposed vide order No.DGM/MZM/Rule 36/S.C. Gupta/ Sr.TOA(P)/17 dated 16.05.2012 and the said order was modified by the appellate Authority vide order dated 30.06.2012 as aforestated. They have, therefore, submitted that, in the facts and circumstances of the case the impugned order is perfectly valid and legal.
8. We have heard the learned counsel for the Applicant Mrs. Rani Chhabra and the learned counsel for the Respondents Shri M.M. Sudan. First of all we observe that there not a single prosecution witness was listed to prove the charge against the applicant. However, Inquiry Officer permitted the Vigilance Officer of the Respondents who held the investigation of the case to be examined and cross-examined. There were no other independent witnesses. As held by the Apex Court in its judgment in the case of Hardwari Lal Vs. State of U.P. & Others 1999 (8) SCC 582 in a departmental enquiry proceedings examination of the material witnesses is a must. Again the Apex Court in its judgment in the case of Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 held that mere production of documents is not sufficient but its contents has to proved by examining witnesses. In any case, the Inquiry Officer held that the charges against the Applicant were not proved.
9. Secondly, we have seen that the disagreement note issued by the Disciplinary Authority was arbitrary. The Disciplinary Authority can act upon Inquiry Officers report only on the basis of the evidence on record. Further, the Disciplinary Authoritys disagreement shall be with the findings of the Inquiring Authority on any of the article of charge. When findings of the Inquiry Officer itself are not based on any evidence, there is no question of the Disciplinary Authority disagreeing with the findings unless some other material evidence is brought on record. In a case where there are no prosecution witness to prove the charge, the Disciplinary Authority also cannot hold that the charge has been proved. Therefore, the disagreement note of the Disciplinary Authority is not based on any evidence. Further, from a reading of the disagreement note, it is quite clear that the Disciplinary Authority has already made up its mind. He straightaway came to the conclusion that the charge against the Applicant was established. On the other hand, as per Rule 37(2)(a) of the BSNL CDA Rules, 2006, if the Disciplinary Authority disagrees with the findings of the Inquiry Officer, it has to give only tentative reasons for such disagreement. The said rule reads as under:-
37(2)(a) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any articles of charge to the employee who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the employee.
10. The Apex Court in the case of Punjab National Bank Vs. Kunj Behari Misra (1998) 7 SCC 84 has held that whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give the delinquent officer an opportunity to represent before it finally records its findings. The relevant part of the said judgment reads as under:-
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
11. Same was findings of the Apex Court in Yoginath D. Begde vs. State of Maharashtra (1999) 7 SCC 739. The relevant part of the said judgment is as under:-
29.But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
12. The Punjab and Haryana High Court has also in its judgment dated 03.07.2003 in the matter of M.S. Chauhan Vs. State Bank of India 2003 4 SCT 577 passed similar order. The relevant part of the said judgment reads as under:-
If the punishing authority is differing with the findings of Inquiry Officer, who has exonerated the delinquent on all or a few charges and the punishing authority proposes to punish the delinquent on those charges, it is obligatory upon the punishing authority to issue a show cause notice to him giving reasons of his disagreement and proposed action and afford him an adequate opportunity in his defence.
13. Again, the Uttranchal High Court in the case of Jupli Devi Bachan Singh Negi and Ors. vs. District Judge, Uttranchal and Another held as under:-
Disciplinary authority while disagreeing with the findings of Inquiry Officer, framed final opinion prior to giving notice to the delinquent for hearing instead of framing tentative opinion violation of principles of natural justice Impugned order set-aside.
14. The Allahabad Bench of this Tribunal in the case of Man Singh Vs. Union of India and Ors. (206-Swamys CL Digest, 1997/1) decided on 13.09.1996 also considered the same issue and held as under:-
It would be clear that while the disciplinary authority has prefaced his order by a short discertation on the quality of proof required in a disciplinary proceeding, he has hardly given any reason as to how he considered the charges against the applicant as proved while the Inquiry Officer did not find so in the absence of any documentary evidence.
15. In the above facts and circumstances of the case, we are of the considered view that this is a case of no evidence against the Applicant. The Inquiry Officer also, after considering the listed documents and examining the Vigilance Officer who conducted the preliminary enquiry in the matter came to the conclusion that the charge leveled against the Applicant has not been proved. When the Inquiry Officer has held so, without any further admissible evidence, the Disciplinary Authority could not have held that the charge has been proved. Such a finding of the Disciplinary Authority is nothing but arbitrary and cannot be accepted. Further, the Disciplinary Authority exceeded its jurisdiction by disallowing the Applicant any type of LTC till retirement/superannuation as the same is neither a major penalty nor a minor penalty prescribed under the rules. The Appellate Authority has also not applied its mind while considering Inquiry Officers report, the order of the Disciplinary Authority and the Applicants appeal. In a very mechanical manner, it reduced the punishment of reduction of pay of the Applicant by one stage instead of two stages imposed by the Disciplinary Authority. We, therefore, allow this OA. Consequently, the orders passed by the Disciplinary Authority dated 16.05.2012 and the order passed by the Appellate Authority dated 30.06.2012 are quashed and set aside with all consequential benefits. The Respondents shall also pass necessary order complying with the aforesaid directions at the earliest, but in any case, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh