Central Administrative Tribunal - Bangalore
N Nagaraja vs Bharat Sanchar Nigam Ltd on 2 December, 2022
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OA.No.170/00008/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00008/2020
DATED THIS THE 02ND DAY OF DECEMBER, 2022
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Shri N. Nagaraja, 44 years,
S/o late Shri Ningaiah,
Senior TOA (G),
HRMS No: 199001556,
O/o the Sub-Divisional Engineer (Rural)
Nagamangala: 571 432,
Mandya District
(Under orders of dismissal from service)
.....Applicant
(By Advocate Shri P.A. Kulkarni)
Vs.
1. Bharat Sanchar Nigam Limited,
By its Chairman and Managing Director,
Corporate Office (Personnel-II Section),
Bharat Sanchar Bhawan,
4th Floor, Janpath, New Delhi 110 001
2. Chief General Manager Telecom,
Karnataka Circle,
No. 1, Swamy Vivekananda Road,
Halasuru, Bengaluru 560 008
3. Principal General Manager Telecom,
BSNL Mysuru Business Area,
No. 69, Temple Road,
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OA.No.170/00008/2020/CAT/BANGALORE
1st Cross, Behind St Joseph School,
Jayalakshmipuram, Mysuru 570 012
4. Telecom District Manager,
Mandya Telecom District,
BSNL, Opp. Kala Mandir,
Mandya 571 401
5. Shri Rangaswamy,
Deputy General Manager (Administration)
BSNL, Office of Principal GM Telecom,
Jayalakshmipuram, Mysuru 570 012
...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed under Section 19 of the Administrative Tribunals Act, 1985 ('Act' for short) seeking the following reliefs:
a) Quash the order bearing No:X/TDM/MDY/III/2019-20/I, dated 19.12.2019, Annexure A10, passed by Deputy General Manager (Administration) BSNL, Office of Principal GM Telecom, Jayalakshmipuram, Mysuru, R-5 herein.
b) Direct the respondents to restore the applicant to the position held by him as on the date of passing of the impugned order dated 19.12.2019 Annexure A10 by Deputy General Manager (Administration) BSNL, Jayalakshmipuram, 3 OA.No.170/00008/2020/CAT/BANGALORE Mysuru, R-5 herein with continuity of service and the monetary benefits.
2. The facts briefly stated by the applicant are that the applicant was working as Senior Telecom Office Assistant (General) with HRMS No: 199001556 in the office of General Manager Telecom, BSNL, Mandya during the period from 01.04.2002 to 08.05.2010. On 04.05.2011, CBI/ACB/Bengaluru on receipt of a complaint from Deputy General Manager (Vigilance) of BSNL registered Crime RC No. 07(A)/2011 against the applicant. On 20.05.2013, IO filed final report before the CBI Court Bengaluru. After taking cognizance, the said Court charged the applicant for the offences punishable under Section 409, 468, 471, 477-A IPC and Section 13(2) read with 13 (1) (c) (d) of P.C. Act 1988. It is the grievance of the applicant that on the very same accusation Assistant General Manager, Mandya Telecom District acting as a Disciplinary Authority initiated disciplinary proceedings by issuing a charge memo dated 08.05.2014 under the provisions of BSNL (CDA) Rules 2006 ('Rules' for short).
3. On 08.03.2017, in Spl. CC 114/2013, CBI Court at Bengaluru acquitted the applicant. However, in the departmental 4 OA.No.170/00008/2020/CAT/BANGALORE proceedings, by an order dated 19.12.2019, applicant has been punished by the Deputy General Manager (Administration) attached to the office of GM Telecom, Mysuru of Mysuru Business Area of BSNL acting as a Disciplinary Authority, hence this application.
4. Learned counsel Shri P.A. Kulkarni representing the applicant submitted that the facts and evidence in the departmental as well as criminal proceedings being the same, when there is honourable acquittal of the employee, the same requires to be taken into account in the departmental case. The main ground of challenge is that the impugned punishment order passed by the R-5 authority who is other than the authority indicated in the Schedule to the Rules is unsustainable. On the ground of lack of competency of the authority in passing the impugned order at Annexure A10, the matter requires interference by this Tribunal. In support of his contentions, learned counsel has placed reliance on the judgments of the Hon'ble Apex Court in the case of Union of India and Another vs. State of Haryana and Another reported in (2000) 10 SCC 482 and Committee of Management and Another vs. Vice- Chancellor and Others reported in (2009) 2 SCC 630. Thus, the learned counsel submitted that the application has to be considered 5 OA.No.170/00008/2020/CAT/BANGALORE by this Tribunal notwithstanding the alternative remedy of appeal available under the Rules since the impugned order is passed by the authority having no jurisdiction. It was further argued that the pendency of the matter before this Court would itself indicate that no preliminary objection regarding the maintainability of the application before this Tribunal can be gone into at this stage.
5. Learned counsel Shri N. Amaresh representing the respondents submitted that the application filed under Section 19 of the Act without exhausting the alternative remedy of appeal available is wholly untenable and, on this ground alone, the OA deserves to be rejected. Supporting the impugned order, learned counsel further submitted that by virtue of consolidation of SSAs/Units of Mandya and Madikeri into Business Area in terms of the order dated 03.05.2016 issued by the BSNL, Mandya Unit would come under the Business Area of Mysuru, as such, the impugned order passed by the DGM, Mysuru is justifiable. In terms of the Schedule, DGM concerned/SE/Equivalent officer is the Disciplinary Authority for imposing major penalty and Appellate Authority for minor penalty. The merger of SSAs into Business Area and transfer of Administrative and HR powers to Business Area office is a situation similar to transfer of 6 OA.No.170/00008/2020/CAT/BANGALORE Disciplinary Authority with replacement of another Disciplinary Authority. Further, placing reliance on Rules 12, 14, 15 and 29 of CCS (CCA) Rules, 1965 and the clarification issued in G.I. M.H.A. Memo No. F. 39/1/69-Ests. (A) dated 16.04.1969, it was argued that in case of disciplinary proceedings initiated by Disciplinary Authority (A) in respect of a government servant when the latter is transferred to the jurisdiction of another Disciplinary Authority (B) even though the said government servant continues to be in the same service, it is not necessary for Disciplinary Authority (B) to start de novo proceedings by framing and delivering fresh articles of charge to the concerned official. He can carry on with the enquiry proceedings at the point where the transfer of accused officer was affected. If, however, the accused official is transferred to another service, then the procedure laid down in Rules 12 (4) (b) of the CCS (CCA) Rules will have to be followed. In this regard, the learned counsel has referred to the affidavit of Shri Sunil B. Karning, Deputy General Manager (Administration), Mysuru dated 21.08.2021. Thus, it was submitted that in terms of the consolidation order dated 03.05.2016, DGM, Mysuru is the concerned officer - Disciplinary 7 OA.No.170/00008/2020/CAT/BANGALORE Authority for imposing major penalty. Accordingly, sought for the dismissal of the application.
6. We have carefully considered the rival submissions made by the learned counsel for the parties and perused the material on record.
7. Section 19 of the Act provides for filing applications to the Tribunals. In terms of this provision, a person aggrieved by any order pertaining to any matter within the jurisdiction of this Tribunal may make an application to this Tribunal for the redressal of his grievance. As per explanation thereto, for the purposes of sub-section (1), "order" means an order made -
"(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation [or society] owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation [or society] referred to in clause (a)."8
OA.No.170/00008/2020/CAT/BANGALORE Section 20 of the Act contemplates that no application could be admitted unless other remedies exhausted, the same is quoted hereunder for ready reference:
"20. Applications not to be admitted unless other remedies exhausted.--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,--
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to 9 OA.No.170/00008/2020/CAT/BANGALORE the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
8. It is not in dispute that the applicant has the remedy of appeal before the Appellate Authority against the impugned order. The main ground for challenging the said impugned order before this Tribunal is lack of competency of the DGM, Mysuru in passing the penalty order impugned. The Schedule of Appointing, Disciplinary, Appellate and Reviewing Authorities in BSNL for Non-Executives (Annexure A11) specifies DGM concerned/SE/Equivalent officer as the Disciplinary Authority for major penalty and Appellate Authority for minor penalty. The impugned order dated 19.12.2019 would indicate that the Inquiry Report dated 12.11.2018 was submitted by the Inquiry Officer on 13.11.2018. Reply was furnished by the charged official dated 26.12.2018 on Inquiry Report. The Inquiring Authority held that all the charges framed against the applicant are undoubtedly proved. Deputy General Manager, Mysuru exercising the powers of the Disciplinary Authority awarded the penalty of dismissal from services withholding of 100% of the monthly pension and 10 OA.No.170/00008/2020/CAT/BANGALORE 100% of retirement gratuity on permanent basis, otherwise admissible on the charged official - applicant. However, held that the subsistence allowance already paid during the period of suspension holds good and need not be recovered.
9. As observed earlier, this impugned order is appealable under the Rules. In terms of Section 20 (1) of the Act, ordinarily no application could be admitted unless all the remedies available to the applicant under the relevant service rules are availed as to redressal of grievances. Thus, only in extraordinary circumstances an application could be entertained by the Tribunal notwithstanding no alternative remedy was availed. The defence taken by the respondents inasmuch as the consolidation of SSAs into Business Area with effect from 03.05.2016 is not supported by any material evidence for the movement of the files from Mandya Unit to Mysuru Business Area. Despite providing sufficient opportunities to the learned counsel for the respondents to apprise the Bench on this issue, no positive response is given. On the other hand, an argument was advanced that it took some time for forwarding the disciplinary files from Mandya Unit to the Mysuru Business Area. As per the order dated 03.05.2016, Business Area being primary accounting units, HR, Finance, Planning and 11 OA.No.170/00008/2020/CAT/BANGALORE Procurement related process will be handled at the level of Business Area/Circle which includes the transfer of Disciplinary Authority. However, the learned counsel expressed his inability to trace any document/noting on the DE file for the movement of the file from Disciplinary Authority, Mandya Unit to Mysuru. Affidavit filed by Shri Sunil B. Karning, DGM, Mysuru refers only to the merger order dated 03.05.2016. This evasive reply of the respondents cannot be countenanced for the reason that the files cannot move in vacuum. It is significant to note that the Inquiry Report was placed before the Disciplinary Authority, Mandya by the Inquiry Officer on 13.11.2018 to which reply was furnished by the charged official dated 26.12.2018 before the Disciplinary Authority, Mandya Unit. Surprisingly, punishment order has been passed by the DGM, Mysuru on 19.12.2019 acting as the Disciplinary Authority. The said Disciplinary Authority has considered, analysed the case in extenso while issuing the order of punishment but nowhere it is reflected how the said authority assumed jurisdiction to pass the said order. Mandya Unit was merged with Mysuru Business Area as per the merger order dated 03.05.2016. In terms of Clause (7) of the said order, Reporting officer of TDM/TDEs of merged SSAs will be respective 12 OA.No.170/00008/2020/CAT/BANGALORE GM/PGM (Business Area) and CGM will be the reviewing authority. In the circumstances, the issue partakes the mixed question of fact and law inasmuch as the competency of the Disciplinary Authority in issuing the penalty order. No material is available for the movement of the files. This aspect of the matter requires thorough investigation which would have been done by the Appellate Authority at the ground level.
10. We have no cavil with the legal proposition canvassed by the learned counsel for the applicant referring to the judgment of the Hon'ble Supreme Court cited supra but in the present case, it is not the mere legal issue that is involved. The material evidence has to be looked into regarding the Deputy General Manager, Mysuru Business Area assuming the jurisdiction of Disciplinary Authority of Mandya Unit and transferring the files. It is a well settled legal principle that under the scheme of rules, there is a hierarchy of authorities before which the applicant can get adequate redress against the wrongful acts complained of, including the competency of the Disciplinary Authority in passing the impugned order. The applicant has the right to prefer an appeal before the prescribed authority. It is well recognized that where a right or liability is created by the rules which gives a special remedy for enforcing it, 13 OA.No.170/00008/2020/CAT/BANGALORE the remedy provided by the said rules only must be availed of. Application under Section 19 of the Act is not meant to short- circuit or circumvent the statutory procedures.
11. However, entertaining the application bypassing the alternative remedy is the discretionary power vested with the Tribunal which has to be exercised having regard to the facts and circumstances of the case. There is no hard and fast rule or mathematical exactitude for exercising such discretionary power. Even though a provision under an Act cannot expressly oust the jurisdiction of the Tribunal, nevertheless, when there is an alternative and efficacious remedy available, judicial prudence demands that the Court/Tribunal refrains from exercising its jurisdiction. In Union Bank of India vs. Satyawati Tondon and others reported in (2010) 8 SCC 110, the Hon'ble Apex Court has observed thus:
"26. In Modern Industries v. Steel Authority of India Limited (2010) 5 SCC 44, the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution.14
OA.No.170/00008/2020/CAT/BANGALORE
27. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."
12. It is pertinent to note that the preliminary objection of maintainability was raised by the respondents as per the order sheet dated 05.03.2021 and thereafter the matter was adjourned on several occasions to enable the parties to substantiate their claim. Having heard the learned Counsel for the parties, in our considered view, the issue involved herein is mixed question of facts and law in the light of merger order dated 03.05.2016. Hence, the proper course open to the Tribunal is to relegate the applicant to exhaust the alternative and efficacious remedy of appeal.
13. Accordingly, we dispose of the OA with liberty to the applicant to exhaust the remedy of statutory appeal available under the Rules. If such an appeal is filed within a period of four weeks 15 OA.No.170/00008/2020/CAT/BANGALORE from the date of receipt of a certified copy of this order, the Appellate Authority shall consider the same on merits without objecting to the period of limitation. All the rights and contentions of the parties are left open. The Appellate Authority shall take a decision in accordance with law after providing an opportunity of hearing to both the parties if such an appeal is filed within the timeframe aforesaid and pass an appropriate order in an expedite manner in any event not later than eight weeks from the date of filing of the appeal.
14. It is needless to observe that the Appellate Authority shall consider the ground realities by securing the relevant material evidence while taking the decision inasmuch as the competency of the Disciplinary Authority in passing the impugned order. It is made clear that we have not expressed any opinion on the merits or demerits of the case.
15. No orders as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/