Central Administrative Tribunal - Mumbai
Sahebrao Sampatrao Kende vs Bsnl on 2 May, 2024
1 OA No.212/2017 Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur. O.A.2212/2017 Dated this Thursday the 2"¢ day of May, 2024 Coram: Hon'ble Mr.Justice M.G. Sewlikar, Member (Judicial) Hon'ble Mr.Shri Krishna, Member (Administrative). Sahebrao s/o Sampatrao Kende, 28, "Akshay" Telecom Colony, Nawathe West, Amravati 444 607. Last employed Assistant General Manager (Retired), O/o General Manager, Telecom, BSNL, Amravati -- 444 601. . Applicant. ( By Advocate Shri S.G. Malode ) Versus 1. Union of India & Ors through The Chairman and Managing Director, Bharat Sanchar Nigam Limited, H.C. Mathur Lane, Janpath, New Delhi -- 110 001. 2. The Chief General Manager Telecom, Maharashtra Circle, Juhu Danda Road, Santacruz West, Mumbai -- 400 054. .. Respondents. ( By Advocate Shri Amol Deshpande ). Order reserved on : 25.04.2024 Order pronounced on: 02.05.2024 2 OA No.212/2017 ORDER Per : Shri Krishna, Member (A)
The applicant has filed this O.A. under Section 19 of the AT Act, 1985 to claim the following reliefs:-
"1. The suspension order dated 24.11.2010 received on 29.11.2010 be declared as illegal and unwarranted, and the Memorandum / Charge sheet may please be quashed.
1(A) The applicant also challenge the impugned order dated 3.05.2016 (Annex A-5) passed by Disciplinary Authority imposing 5% cut in his pension which was confirmed by Appellate Authority on 10.07.2017 (Annex A-7).
2. The Applicant be declared on duty up to the date of retirement i.e. 30.11.2010.
3. The Applicant be declared entitle to full pensioners benefit and all arrears along with interest @18% P.A. 4, The Applicant be declared entitle to the cost of the present litigation and mental agony to the tune of Rs.100000/-
5, Any other order deemed fit in the interest of the Applicant be passed."
2. This is the 2nd round of litigation, the applicant has filed earlier O.A.No.2166/2013 which was disposed of by order dated 22.01.2016 with direction to the respondent no.2 to pass the final order on the pending disciplinary proceedings against the applicant, within a period of 3 months from the date of receipt of copy of this order. The liberty 3 OA No.212/2017 was granted to the applicant to take appropriate steps depending upon the final outcome of the disciplinary proceeding.
2.1. The skeletal facts as submitted by the applicant are that he was appointed as Junior Engineer Telecom with effect from 10.02.1977. He was promoted as Sub-Divisional Engineer on 17.09.1993 and later on as Divisional Engineer now designated as Asstt. General Manager, Amravati. He got absorbed in BSNL with effect from 01.10.2000 and retired on 30.11.2010 after putting 34 years of service. However, on 29.11.2010 just a day before his retirement, he was served with a letter dated 24.11.2010 informing him that the disciplinary proceedings against him are contemplated or pending in the case of purchase of High Voltage Protection Device (HYP) in Amravati SSA (Secondary Switching Area) under Rule 30. The applicant was placed under suspension and stood provisionally retired on 30.11.2010. Therefore, the relationship of master and servant / employer and employee ceased on 30.11.2010 and thus suspension order also came to an end on the date of retirement.
3, It is the case of the applicant that he was placed under suspension without there being any supporting ground for suspension. It is submitted that the applicant has simply forwarded the required 4 OA No.212/2017 documents to place the purchase order. As per the financial powers, the purchase of safety devices were within the power of General Manager. The applicant has no role to play in so far as the purchase of safety devices are concerned. The matter of purchase of safety devices comes from the higher authority i.e. General Manager/Dy. General Manager and the applicant has simply collected the requirement from the field units and submitted to higher authority. The purchase in question were approved by the General Manager and as per the approval and direction, the applicant simply signed the purchase order. It has been submitted that as the General Manager has purchased the Safety Devices under his own financial powers, the General Manager was fully responsible as per the letter from Member (F inance) P&T Board.
3.1. It has been submitted that a general and vague charge was levelled against the applicant that he caused financial loss to the BSNL by purchasing Safety Devices of Rs.19,26,000/- from Instrumentation Limited. However, loss has not been quantified and no exercise has been carried out by the Department as to whether the items was available at a cheaper price from any other supplier. Thus , the charge that financial loss has been caused to the BSNL is speculative in nature and based on suspicion and conjuctures which is not supported by any 5 OA No.212/2017 evidence on record that any loss has been caused to the BSNL.
Therefore, the charge is not definite.
3.2. Ithas been submitted that the suspension was totally unjustified, illegal and unwarranted and far from in conformity with the legal provisions. There was inordinate delay in issuing the charge- memorandum which was required to be issued within 90 days from the date of suspension, but the applicant was issued charge-memorandum after lapse of 2 years and 10 months from the date of suspension order and six years from the date when incident took place i.e. in October, 2007. It has been submitted that the suspension order was not reviewed before expiry of 90 days.
3.3. It has been submitted that the applicant was suspended on the ground of moral turpitude, however, there is no question of moral turpitude as case relates to purchase of Safety Devices. Since the purchase order was approved by the General Manager under his financial powers there was no question of corruption, embezzlement or misappropriation. Moreover the purchases were made from PSU of Ministry of Heavy Industries, Government of India, therefore, the question of any corruption does not arise as purchase was made for one a:
6 OA No.212/2017PSU from another PSU who was original manufacturer of this device and not a trader.
4. The applicant has submitted that the charges levelled in the charge-memorandum are vague, that the copies of the listed documents were not provided to him and, therefore, the entire disciplinary proceedings against the applicant were vitiated. He further submits that the additional documents asked for have not been supplied and were denied without assigning any reason and thus the applicant was denied the reasonable opportunity of being heard. It has been submitted that in the charge-sheet 3 Articles of Charge were levelled. The Inquiry Officer found Article, Article-2 and Article-3 disproved. Thus the Inquiry Officer has confirmed that the charges regarding loss to BSNL is totally un-quantified and vague and, therefore, the disciplinary proceedings should have been dropped on the basis of the Inquiry Officer's report.
5. It has been submitted that the purchase of Safety Devices not only happens in BSNL Amravati but at the same time at Yavatmal, Chandrapur and so many other units of BSNL in Maharashtra. In Amravati BSNL Office Charge-sheet to 7 persons were issued and for 2 officers displeasure letters were issued. However, the applicant was --
not alone who can be isolated and can be punished for no fault of his 7 OA No.212/2017 own. It has been submitted that in spite of Inquiry Officer's report holding of the Articles of Charges disproved, the Director, HR, New Delhi while passing the order simply copied out Article of Charge sheet and without offering any comments over any issues and subject raised by the applicant in his representation dated 09.10.2015 passed the punishment order imposing the penalty of 5% cut in pension for a period of one year.
5.1. The learned counsel for the applicant submitted that Article No.] mentions that the delegated powers of purchase on quotation basis was only Rs.10,000/- per occasion. He assails charge-sheet on the ground that power to purchase of Rs.10,000/- per occasion not correct as the approval was given by the General Manager whose power is Rs.10 lakhs for each purchase from PSUs. The power of Head of SSA is Rs.4 lakhs. He drew our attention to Annexure-A-8 (Page 98) which is a communication from Head of the Office of the BSNL dated 02.07.2015 to the CVO BSNL. In this letter clarification was asked regarding purchases directly from PSUs without inviting open tender by the SSA Heads. The relevant part of the letter states that the SSA Head can purchase directly from PSUs without inviting open tender and the power of GMs (Heads of SSA) is Rs.10 lakh from PSU on each 8 OA No.212/2017 occasion and Rs.4 lakh from non-PSU on each occasion. The power of SSA Head ts Rs.4 lakhs and 2 lakhs respectively for purchase from PSU and non-PSU for each purchase. The letter further states that considering the ambiguity in delegation of financial power, mere procurement from PSUs without tendering should not be construed as irregularity at SSA level. The said letter was issued with the approval of CMD, BSNL. The learned counsel submitted that this clearly demonstrates that there was lot of ambiguity in purchase procedure in the BSNL and, therefore, there was no fault on the part of the applicant to purchase from Transient Safety Devices from M/s.Instrumentation Limited which is a PSU of Ministry of Heavy Industries of Government of India. He submitted that the charge-sheet deserves to be quashed on this ground alone.
6. [t has been submitted that Shri N.R. Kale, Divisional Engineer, Planning, Yavatmal was also given the charge-sheet but he was awarded only a displeasure letter. Thus, the applicant was discriminated vis-a-vis other similarly placed employees and the punishment awarded to him was disproportionate to the mistake committed by him. The applicant has placed reliance on the following decision on Ajay Kumar 9 OA No.212/2017 Choudhary Vs. Union of India in C.A.No.1912/2015 arising out of SLP(C) No.31761/2013.
In view of the above submissions, it has been submitted that the impugned orders dated 24.11.2010, 30.07.2013, 05.09.2014, 03.05.2016 and 10.07.2017 are bad in law and should be quashed and set aside.
7. On notice the reply has been filed by the respondents and they have resisted the O.A. as not maintainable on the ground that the multiple reliefs have been claimed. It has been submitted that it is not correct on the part of the applicant to say that he was neither responsible nor accountable for the said purchase as it was discretionary power of GMT Amravati to procure items as the applicant while processing the purchase proposal would have brought the instructions dated 21.07.2004 and 18.08.2004 regarding purchase from PSU to the knowledge of GMT, Amravati and followed proper guidelines and procedure for purchase from PSU, financial loss to BSNL could have been prevented. The applicant failed to discharge his legitimate duties and hence suspension is totally justified and legal.
8. It has been submitted that after completion of investigation and receiving of CVC advice, major penalty charge sheet dated 30.07.2013 10 OA No.212/2017 was issued. Hence there is no delay in issuing charge sheet. It has been submitted that as per Rule 61 of BSNL CDA Rules, the employee against whom the disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until proceedings are concluded and final order is passed in respect thereof. It has been submitted that the disciplinary proceedings were already instituted from the suspension of the officer before superannuation.
9. It has been submitted that the loss to BSNL is not vague as the applicant has purchased HVP items amounting to Rs.19,26,000/- at five occasions by splitting the quantity on single quotation basis and thereby violated Rule 154 of GFR 2005 which in turn prevented BSNL from getting lowest competitive rates which is loss to BSNL. It has been submitted that being DE (Plg.) Amravati the applicant should have called consolidated requirement of Amravati SSA and adopted tendering procedure loss to BSNL could have prevented. It was submitted that all listed documents were supplied to the applicant during inquiry. The applicant has not raised this question during inquiry. Full opportunity was given to applicant to defend the case.
Hence there is no violation of natural justice.
il OA No,212/2017
10. It has been submitted that it has been admitted by the charged officer that he did not act alone but acted in tandem with other authorities. Everybody has lagged their duties which resulted in financial loss to BSNL. As such there is laxity on the part of the applicant in performing duties and there is nothing to defer with the findings of Inquiry Officer that charges of lack of devotion to duty are proved. Therefore, the officer cannot be absolved from charges levelled against him. It has been submitted that the Director (HR) and Disciplinary Authority in the case, process the case and submitted the report along with all documents to Government of India, Ministry of Communication, DoT, New Delhi. The DoT after perusing the case records and report, accepted all findings of Inquiry Report and accordingly resolved to imposed the punishment on applicant. After receipt of ratification vide order no.68-97/2015-Vig.II dated 05.04.2016, final penalty order is issued and thus become proper, legal and maintainable under law. Applying law of ratification of facts in hand, entire action proposed, initiated and eventually taken against the applicant was approved and / or ratified by DoT.
11. It has been submitted that the applicant should have taken action to float the tender as per norms by collecting the total consolidated 12 OA No.212/2017 requirement of the SSA. But the applicant submitted the proposals in piece meals by splitting the requirement over a period of 7 months from April 2007 to October 2007 and this conduct involves the moral turpitude, therefore, the suspension on this ground was legal and justified and on this ground the disciplinary enquiry was made and applicant was punished.
12. The applicant in his rejoinder has refuted the reply of the respondents. The respondents in turn have filed sur-rejoinder reiterating the earlier submissions made in the reply.
13. In the oral arguments during final hearing, the learned counsel for the applicant submitted that It has been subimitted that Instrumentation Ltd. is a PSU of Ministry of Heavy Industries, Government of India. The Company is the original manufacturer of the safety devices. The purchases were made directly from the company and no agent was involved. It was submitted that the applicant has only forwarded the proposal to the General Manager who was a competent authority. It was within the powers of the General Manager to accept or reject the proposal or he could have returned the proposal if he was not satisfied. If the respondents were of the view that any notional loss has been caused, then why no action was taken against the GM who was 13 OA No.212/2017 the final authority to accept or reject or return the proposal for seeking any clarification. However, the GM found the proposal proper and accorded his approval.
14. We have heard the learned counsels for both sides at length and perused pleadings and documents filed on record.
15. We find that all the 3 charges mentioned in Article III and II (Annex--1) mentions that applicant while functioning as DE (Planning), Amravati during the year 2007-08 forwarded the proposals for expenditure on different occasions for purchase of 1070 no. of Transient Safety Devices amounting to Rs.19,26,000/- and also issued P.O. for the same by splitting the requirements of Amravati SSA and by submitting proposals beyond the delegated powers of purchase on quotation basis which was only Rs.10,000/- per occasion, which prevented competitive bidding from other eligible bidders and in turn prevented company from getting lowest competitive rates which is a loss to BSNL.
16. A simple perusal of the Article of Charges shows that they are not specific and not definite. The loss has not been quantified. The charge do not specify to whom he has forwarded the proposal? Whether it was in his competence to forward the proposal? Who were the other 44 OA No.212/2017 bidders from whom quotation could have been obtained and how much loss has been caused? Therefore, we find force sn the contention of the applicant that charges levelled against him are vague and not specific.
In the list of witnesses the same 1s mentioned as NIL.
17. We further find that the Inquiry Officer in her report has mentioned that the listed documents were not received along with the appointment of the PO and copies were received at a later date. Verification of the documents with the originals was carried out at Amravati on 06.05.2014, after which only actual inquiry started. She further mentioned that Article Ill of the charge-sheet mentions 7 pages | for document at sr.no.3, but only 4 pages were seen in the original file. Annexure II of the charge sheet mentions 4 pages for document at Sr. No.4, but only 3 pages were seen in the original file.
18. We further find that the defense witness Shri H.R. Lanjewar, then DGM (Operations) Amravati during the period 03.05.2007 to 31.10.2007. The Inquiry Officer in her report at page 8 of inquiry report has recorded the statement of the defence as under:-
"bh, As per note sheet no.§-2/C/DOT/06-07/16/C, The GMT Amravati had given instructions to DGM and further marked to DE (Plg)/CAP" Take suitable steps for reduction of CDOT faults like cards becoming faulty due to lightening etc., and also take suitable steps for improving CCR as suggested in workshop'.15 OA No.212/2017
C. The purchase of safety devices at that time is justified because there was no protection device in the CDOT exchanges and there was no comprehensive AMC for CDOT exchanges. To use the subsidy going on and properly utilize hundred crores investments, exchanges had to be protected and hence the purchase was justified.
d. There was no split up of requirement of 1070 overa period of different months but the purchase was as per the requirements on different occasion.
e. The purchase of safety devices was within the powers of GMT Amravati as per 4.2 of letter no.6-5/2006-EB, corrected up to 31.3.2007 from corporate office, f. The purchase was as per the scheduled of financial powers given to GM who could purchase to the tune of Rs.10 lakh on each occasion from PSUs and not as per Rs.10,000/- per occasion as mentioned in the charge sheet. The purchase was within powers as per 4.2 of letter no.6-5/2006-EB corrected upto 31/03/2007 from Corporate office. Purchase was not under 4.6.
g. There was no loss to BSNL by this purchase. In fact, BSNL was benefited by way of getting subsidy of Rs.3 to 4 crores per year recurring, revenue from the working telephone which could be around 3 to 4 crorers per annum and possible prevention of customers charming.
h. As far as the financial advice in the matter is concemed, the available note sheet may be seen by the 10.
4, During cross examination by the PO, the defence witness informed the following:-
a. In response to the question" whether proprietor ship was confirmed or not before purchase was made", DW1 informed that letter no. F/FC/Purchase/1 dated 21% July 2004 and No F/FC/Purchase/3 dated 18.8.2004 directing that items being manufacture by PSUs can be purchase by SSAs within delegated powers.
19. 16 OA No.212/2017
b. In response to the question by PO as to "why tender was not done", DW1 informed that SSA head was given the powers under tender in 3 categories as mentioned below:-
i. under limited tender -- up to Rs.2 lakhs ii. under open tender -- up to 3 crores iii. purchase from PSU -- this is specifically given to procure items from PSU. Had this not be given then it would have been covered by I above. Hence procurement was done by powers given to purchase from PSU.
"5. In response to the cross examination by IO to CO, he has informed the following:
a. The CO has informed that before occurrence of incidence on which charge sheet has framed, he has never discharged his duties in the planning / material management / procurement wing of BSNL.
B. During his entire career in BSNL he has discharged the duties for one and half years in the planning / material management / procurement wing of BSNL.
c. CO provisionally retired on 30 November, 2010."
We further find that in Para VII of her report under "Points for Determination", she has answered them the questions framed without giving any basis and reasons for arriving at the answers.
20. In her findings on Article of Charges on page 18 of the Inquiry Report, she states that all charges (except for the charge loss to BSNL, which stands disproved) are proved. This further establishes that the 17 OA No.212/2017 submission of the counsel! for the applicant that the inquiry was not conducted properly and, therefore, is vitiated has force.
21. We find that the Hon'ble Supreme Court in the case of Union of India v. Gyan Chand Chattar reported in 2009(. 12)SCC 78 where challenge was to a chargesheet in which it was alleged in Charge No.6 that the charged officer demanded commission of 1% for making the payment of pay allowances has observed in paragraph 23 as follows:
"Charge No.6 was basically based on hearsay statement and it is difficult to assume as to whether enquiry could be held on such a vague charge. The Charge No.6 does not reveal as who was the person who had been asked by the respondent to pay 1% commission for payment of pay allowance. "
22. Incase ofS. Subramanian v. State of Tamil Nadu decided on 10" September, 2012 in W.P (MD) No. 9367 of 2010, the Hon'ble Supreme Court in paragraph 26 has held as follows:
"96. In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752, this court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defense he can put in rebuttal thereof. This court observed as under:
"The grounds on which it is proposed to take action have to be reduced to the form of a definite 18 OA No,212/2017 charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."
Thus, it was held where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice,
23. In view of the above discussion, we are of the view that the charge-memorandum issued to the applicant was without giving the specific and definite charges and, therefore, the inquiry stands vitiated and deserves to be quashed and set aside. Accordingly, we quash and set aside the impugned order dated 24.11.2010. The applicant is entitled for all consequential benefits. The respondents 19 OA No.212/2017 are directed to comply with the order within a period of 3 months from the date of receipt of copy of this order.
24. In view of the above, the O.A. is allowed. No costs.
(Shri Krishna) (Justice WIG. Sewlikar) Member (A) Member (J).
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