Central Administrative Tribunal - Mumbai
Dhondu Toplu Kachre vs Bsnl on 13 December, 2024
1 OA No.506/2022
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.506/2022
Order reserved on: 14.10.2024
Order pronounced on: 13.12.2024
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Dhondu Toplu Kachre
Age: 60 years, Occ: Retired,
R/o Plot No.36, Aaradhna Colony,
Near Shiv Colony, Bhusawal-425201
Email: [email protected]
....Applicant
(By Advocate: Mr. R.T.Diwate)
Versus
1. The Bharat Sanchar Nigam Ltd.
Through its Chief Managing Director and another
Bharat Sanchar Bhawan,
H.C.Mathur Lane, Janpath,
New Delhi-110001.
2. The General Manager Telecom,
BSNL, Telephone Bhawan,
Jilhapeth, Jalgam-425001.
3. The Chief General Manager,
Telecom Maharasthra Circle
BSNL Bhawan, Juhu Road,
Santacruz West Bombay-54.
4. Chief Controller of Communication
Accounts Maharashtra & Goa Circle,
3rd floor, BSNL Complex, Santacruz
West, Bombay-54.
... Respondents
(By Advocate: Dr.V.S.Masurkar for Respondent No.1,2 & 3
Ms. N.V.Masurkar for Respondent No.4)
2 OA No.506/2022
ORDER
By this application the applicant is seeking direction to the respondents to forthwith process pension and pay to the applicant the amount of retirement benefits along with regular pension and setting aside para 3 of the order dated 30th January, 2020.
2. Facts in brief are that the applicant was working in the Telecom Department at Bhusawal as he had completed pre-recruitment formalities in respect of casual labours, i.e. he had completed seven years of service as on 31st March, 1987. After completion of seven years service as a casual labour, vide order No.E48/89-90 dated 2nd May, 1989 from Sub-Divisional Officer, Telegraph Bhusawal, the applicant was confirmed as permanent regular Mazdoor w.e.f. 2nd May, 1989. It was under General category though he was from Scheduled Tribe (ST). After completion of eight weeks training from 15th July, 1996 to 6th September, 1996, the applicant was given promotion as Phone Mechanic from 6 th December, 1996. From this promotion order, it is clear that applicant's appointment was under General category. 3 OA No.506/2022 The applicant also completed field training programme on value added service in Mobile-2 Batch-2 at Jalgaon for two days from 3rd February, 2010 to 4th February, 2010. The applicant was absorbed in the Telecom Department of Bharat Sanchar Nigam Limited (BSNL) on 2nd February, 2002.
3. BSNL declared Voluntary Retirement Scheme (VRS) on 4th November, 2019. The applicant applied for VRS. Accordingly, VRS was granted to him and his name was struck off on 31st January, 2020 and he was relieved from duty. While relieving him, it was mentioned that pensionary benefits will be paid on production of caste validity certificate. The respondents have not paid any pensionary benefits including leave encashment and ex- gratia to the applicant. The respondents directed the applicant to produce caste validity certificate. Retirement benefits of the applicant have been withheld for non- production of caste validity certificate. The applicant contends that at the time when applicant was granted VRS, no departmental enquiry was pending against him, and therefore, it was not open for the respondents to withhold 4 OA No.506/2022 the financial benefits admissible to him on account of his voluntary retirement. The applicant, therefore, prayed for following reliefs:
"1) Call for the record of case from the respondents.
2) The original application may kindly be allowed and order dated 30.1.2020 to the extend of para 3 may kindly be quashed and set aside.
3) Thereby directing respondent's authority to forthwith process sanction and pay to the applicant, the amount of the retirement benefits alongwith regular pension from the date of VRS retirement.
4) Cost of O.A. may kindly be awarded to the applicant with cost."
4. Respondents filed their reply. They contend that the BSNL notified VRS, 2019 as per VRS notification dated 4th November, 2019 effective date of retirement was 31st January, 2020. The terms and conditions of VRS, 2019 indicate that they are in addition to existing and prevailing rules, laws, BSNL Conduct Rules, 2006, DoP&T norms with regard to services of BSNL employees. Clause 7 (ii) of the VRS states that "VRS option of employees facing Departmental/Judicial proceedings shall be accepted and earn leave encashment, transfer ground, GPF/CPF and pension will be released provisionally as per rule 69 of CCS Pension Rules, 1972 provided that the payment of ex-gratia 5 OA No.506/2022 and gratuity, shall be released only on the conclusion of and based on outcome of vigilance/disciplinary proceedings." Therefore, retirement benefits of the applicant are rightly withheld.
5. The respondents contend that applicant was instructed from time to time to produce the caste validity certificate which he claimed at the time of appointment but failed to produce the same till date. The BSNL had directed the applicant to submit caste/tribe certificate issued by the competent authority and if it is not available then to apply/register online for obtaining from State/District level scrutiny committee and to submit the same immediately. The applicant was directed to produce the caste certificate and certificates of educational qualification. The applicant is getting provisional pension. GPF has already been paid to the applicant. The leave encashment will be paid as per departmental procedure. The service record of the applicant shows that the applicant claimed to be belonging to ST category, and therefore, the disciplinary action is contemplated against the applicant. The respondents further state that respondents No.1 & 3 had initially 6 OA No.506/2022 received a representation/complaint letter dated 7th April, 2017 from Ex-MLA in respect of BSNL employees in which it was alleged that appointments were made on the basis of bogus/fake/false certificates of SC/ST category. The respondents received another letter dated 10th December, 2018 from organization for Rights of Tribals of District Raigad Maharashtra against BSNL Maharashtra circle employees regarding false/fake caste certificates. The name of the applicant figured in that complaint alongwith other employees. Since the applicant did not make any application for getting the caste/tribe validation certificate, the OA deserves to be dismissed.
6. Applicant filed the rejoinder. No new point is raised in the rejoinder.
7. Reply to rejoinder has also been filed. No new point is made in that reply to rejoinder either.
8. I have heard learned counsel for the applicant and learned counsel for the respondents.
9. Learned counsel for the applicant submitted that the appointment of the applicant was not in response to any 7 OA No.506/2022 advertisement for recruitment. It is not the contention of the respondents either that any such advertisement was issued and the applicant was appointed against any reserved post. He submitted that the applicant was appointed as casual mazdoor. He was absorbed as regular permanent mazdoor w.e.f. 2nd May, 1989. He was sent for training. Thereafter, he was permanently absorbed vide letter dated 2nd February, 2002. He was subsequently promoted as Phone Mechanic. None of these orders shows that the applicant had any occasion to take the benefit of his caste. He submitted that even if it is assumed that applicant belongs to ST category, unless and until it is shown that the applicant had taken benefit of his caste, he cannot be asked to produce caste validity certificate. Caste validity certificate is required to be produced only when there is evidence to show that the applicant had taken the benefit of his caste for either getting the employment or for getting promotion. He further contended that retirement benefits can be withheld only when departmental enquiry is pending against an employee. In the case at hand, no departmental enquiry was pending against the applicant at the time of his 8 OA No.506/2022 retirement, and therefore, there was no occasion for the respondents to withhold his retirement benefits. He submitted that since applicant did not take any benefit of his caste, no departmental enquiry can be initiated against him, and therefore, para 3 of order dated 31st January, 2020 passed by Office of General Manager, Jalgaon Telecom District needs to be set aside.
10. For this purpose, he has placed reliance on following cases:
(1) Pradip vs. BSNL and others, WP No.6758/2023 decided by Hon'ble High Court of Bombay at Nagpur on 10th April, 2024.
(2) Namdeo vs. Secretary, Public Works Department, Mantralaya, Mumbai, WP No.547/2021 decided by Hon'ble High Court of Bombay on 23rd March, 2022.
(3) Amarjit Singh vs. Punjab and Sind Bank, WP(C) No.10968/2009 decided by Hon'ble High Court of Delhi on 21st November, 2013.
(4) Dilip Chintaman Nandankar vs. Union of India, WP No.2540/2021 decided by Hon'ble High Court of Bombay at Nagpur on 10th January, 2023.9 OA No.506/2022
(5) Shantilal Bhagchand Barwal vs. BSNL and others, OA No.193/2022 with another case decided by Mumbai Bench of this Tribunal on 2nd January, 2023.
(6) Narayan Hari Vaidkar vs. BSNL, OA No.190/2022 decided by Mumbai Bench of this Tribunal on 28th February, 2024.
11. Learned counsel for respondents submits that the applicant has taken the benefit of his caste which is evident from his service book. In the service book in Column No.5, it is mentioned that applicant belongs to ST category. This clearly shows that applicant had taken the benefit of caste. He submitted that there were instances of the candidates getting employment by producing fake/false caste certificates. Therefore, Hon'ble Supreme Court issued comprehensive guidelines in the case of Chairman and Managing Director, Food Corporation of India and others vs. Jagdish Bahira and others, (2017) 8 SCC 670. He submitted that Government of Maharashtra promulgated Maharashtra Act No.XXIII of 2001 - Maharasthra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other 10 OA No.506/2022 Backward Classes and Special Backward Category Regulation of Issuance and Verification of Caste Certificate Act, 2001 (Maharashtra Act). In Section 3 of Maharashtra Act, it is specified that "Any person belonging to Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, required to produce a Caste Certificate in order to claim the benefit of any reservation....". Section 4 of this Act states that a caste certificate issued by any person, officer or the authority other than the competent authority shall be treated as invalid. Therefore, it was incumbent upon the applicant to apply for the caste certificate. The applicant did not make any application, and therefore, his retirement benefits have been rightly withheld.
12. I have given thoughtful consideration to the submissions made by the learned counsel on both the sides. Learned counsel on both the sides took me through the entire record annexed with the OA and perused the pleadings of the parties.
11 OA No.506/2022
13. The question involved in this OA is whether applicant took benefit of his caste either for getting appointment or for getting promotion.
14. It is the case of the applicant that though he belongs to ST category, he has not taken any benefit of his caste. It is pertinent to note that the respondents have not adduced any evidence to show that at the time of appointment of the applicant, the caste certificate was produced by the applicant. Mere production of caste certificate is not enough. What the respondents have to show is that the appointment of applicant was against the reserved post. It is not the case of the respondents that advertisement was issued and the applicant applied for reserved post and he was appointed against reserved post. Therefore, simply asking a candidate to produce his caste certificate does not lead to an inference that his appointment was on the basis of his caste. The applicant was appointed as permanent regular mazdoor vide order dated 2nd May, 1989. This order does not show that the permanency was granted to him on the basis of his caste. Therefore, it can be gathered that the applicant's 12 OA No.506/2022 appointment as permanent regular mazdoor was not against his caste.
15. The letter of absorption is produced at Annexure A-3 dated 2nd February, 2002. This letter shows that the applicant was permanently absorbed w.e.f. 1st October, 2000. This letter does not indicate that the absorption of the applicant was on the basis of caste. This absorption was made in accordance with the circular dated 2 nd January, 2001. Clause 3 of the circular states that orders have been issued by Department of Telecommunications for regularizing Ayahs and all casual labours including part time casual labours. This circular does not indicate that the caste of the applicant had any role to play in his absorption. All these documents unmistakably show that applicant's appointment was not on the basis of his caste. Once the conclusion is reached that the appointment of the applicant was not on the basis of his caste nor his absorption was on the basis of his caste, the question of getting employment on the basis of his caste does not arise. When the employment was not on the basis of caste, the question of production of caste certificate becomes 13 OA No.506/2022 irrelevant. Therefore, there was no occasion for the respondents to call upon the applicant to produce caste certificate from the authority mentioned in the Maharashtra Act.
16. It is true that in service book, caste of the applicant is mentioned as ST. However, as indicated earlier, mere mentioning of caste does not lead to an inference that the applicant had taken benefit of his caste for getting employment and for absorption. The documents which I have referred earlier do not indicate that caste of the applicant had any role to play in his appointment or absorption. Had the absorption been made on the basis of caste, or employment was given on the basis of caste, the question of producing caste validity certificate would have arisen. In these circumstances, I do not feel that the respondents were right in withholding the pensionary benefits of the applicant simply because he did not produce the caste certificate. Similar question had fallen for consideration before Single Bench of this Tribunal. In the case of Shantilal Bhagchand Barwal (supra), the Single Bench of this Tribunal has made following observations: 14 OA No.506/2022
"18. Learned counsel for the applicant has produced the order/judgment of this Tribunal No.507/2022 dated 06.10.2022 wherein similar issue has been decided and passed the following orders;
"Learned counsel Mr. Mohsin Khan, holding for Mr. R.T. Diwate, learned counsel for the applicant submits that the applicant was appointed not on the basis of his caste but was appointed as a candidate belonging to open category. He submits that the applicant was promoted in the cadre of Phone Mechanics and this promotion was given to them as an employee belonging to an open category and not as a candidate belonging to Reserved Category. In the affidavit filed by the respondents, BSNL Corporate office has nowhere alleged that the applicant has availed benefit of their caste while getting promotion. There is no averment in the affidavit in reply either, that the applicant was appointed as a candidate belonging to Reserved Category. in the affidavit in reply filed by the respondents, BSNL Corporate Office has nowhere alleged that the applicant has availed benefits of his caste while getting promotion. There is no averment in the affidavit in reply either, that the applicant was appointed as a candidate belonging to Reserved Category. Admittedly, pension was stayed because of the complaint that the candidates had obtained employment by producing fake Caste Certificate. In the case at hand, it is the case of the applicant that he has not sought the employment as a candidate belonging to Reserved Category but they got the employment as an open category candidates. Therefore, the applicants are entitled to pension. There was no occasion for the respondents to withhold the pension. In this view of the matter, the respondents ought to have granted the pension. Learned counsel for the applicant submits that the applicant is entitled to interest on account of non-release of the pension on time in terms of CCS Pension Rule 1972.
In view of the this, following order is passed:-
Application is allowed. The respondents are directed to release the pension of the applicant forthwith, with interest as admissible in terms of CCS Pension Rules 1972"."15 OA No.506/2022
17. In the case at hand, nothing has been placed on record to show that appointment of the applicant was against reserved category. In this view of the matter, it was not open for the respondents to call upon the applicant to produce the caste validity certificate.
18. In the case of Dilip Chintaman Nandankar (supra), it has been held in para 20 of the judgment that a provisional pension may be sanctioned to an employee against whom any departmental or judicial proceedings are pending at the time of retirement in accordance with Rule 45 and Rule 64(6)(a) of the Central Civil Services (Pension) Rules, 1972. In the case at hand, the departmental or judicial proceedings were not pending against the applicant when his VRS application was sanctioned. In these circumstances, it was not permissible for the respondents to withhold pensionary benefits of the applicant.
19. Vide order dated 31st January, 2020, the applicant was relieved from BSNL w.e.f. 31st January, 2020 consequent upon acceptance of the option for voluntary retirement. Para 3 of this order shows that against the applicant false/fake caste complaint is pending and as he 16 OA No.506/2022 has not applied online for caste certificate verification/validation, his retirement benefits are withheld till the verification is done. In the case of applicant this clause cannot be pressed into service as respondents have failed to prove that applicant's appointment was on the basis of caste and that he had taken any benefit of his caste in promotion or in absorption. In these circumstances, para 3 of the order dated 31st January, 2020 needs to be set aside.
20. Respondent No.4 has filed application for deletion of its name. Respondent No.4 is the authority who has to pay the pension to the applicant. In the application itself, respondent No.4 has mentioned that respondent No.4 is responsible for settlement of pension and other benefits and commuted value of pension on receipt of pension papers and service book. From these allegations, it is seen that respondent No.4 may not be a necessary party but it is a proper party, and therefore, application is dismissed.
21. In view of the discussion made hereinabove, I deem it appropriate to allow the OA and pass the following order: 17 OA No.506/2022
(1) OA is allowed. (2) Para 3 of order dated 31st January, 2020 is set aside. (3) Respondents are directed to release all the retirement
benefits of the applicant, viz. pension and pensionary benefits along with ex-gratia payment to the applicant within a period of eight weeks from the date of receipt of a certified copy of this order. No order as to costs.
(M.G.Sewlikar) Member (J) 'SD'