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Central Administrative Tribunal - Mumbai

Adesh Narayan Bhoi vs Bsnl on 19 June, 2025

                           1                  OA No. 223/2022



            Central Administrative Tribunal
               Mumbai Bench: Mumbai

                    OA No.223/2022

                        Reserved on: 25.04.2025
                     Pronounced on: 19.06.2025

CORAM: Hon'ble Shri Justice M.G. Sewlikar, Member (J)

Adesh Narayan Bhoi
Age: 54 yrs, Occ; Retired
R/o: A-201, Shivsambhu Apartment,
Vispute College Road, Vichumbe, Post ONGC,
Tq. Panvel, Dist. Raigad-410221
Email: [email protected]           -Applicant

(By Advocate Mr. Mohsin Khan a/w 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, New Delhi-110001

2.   The General Manager Telecom,
     BSNL, Plot no. 11, Sector 13,
     New Postal Colony,
      New Panvel-410206,
     Dist. Raigad.

3.   The Chief General Manager,
     Telecom Maharashtra Circle,
     BSNL Bhavan, Juhu Road, Santacruz West,
     Bombay-400054.
                              2                 OA No. 223/2022


4.     Chief Control of Communication
       Accounts Maharashtra & Goa Circle
       3rd Floor, BSNL Complex, Santacruz
       West, Bombay- 400054.
                                      - Respondents
(By Advocate Dr V.S. Masurkar and Mr. P.Khosla)

                      ORDER

This is an application under Section 19 of the Administrative Tribunals Act seeking the relief of setting aside the order dated 30th January, 2020 to the extent of para 3 and release of retirement benefits including ex-gratia payment.

2. The case of the applicant in brief is that he approached the Department of Telecommunications. The applicant was given the letter of offer of appointment. The applicant joined the service on 24th January, 1990 as Telephone Operator on purely temporary basis. After completing two years' probation period, the applicant was appointed and he was made permanent on 16th January, 1992.

3. Applicant came to be absorbed in Bharat Sanchar Nigam Limited (BSNL) vide absorption order (Annexure A-2).

4. It is further alleged that BSNL declared Voluntary Retirement Scheme (VRS) on 04th November, 2019. The applicant applied under the said scheme. The application of the applicant for voluntary retirement under VRS 2019 was accepted vide order dated 31st January, 2020. In the relieving order, it is mentioned that all pensionary benefits will be paid after production of caste validity certificate. Accordingly, the applicant has been paid only provisional pension and the other benefits have been withheld. In the relieving order, it is mentioned that the pensionary benefits have been withheld as complaint of fake/false caste certificate is pending. The applicant was not facing any departmental or judicial proceedings on the date of acceptance of his application for voluntary retirement. Mere issuing letters regarding production of certificate of caste validity does not amount to initiation of departmental enquiry and, therefore, it was not permissible for the respondents to withhold the pensionary benefits. He has, therefore, filed this OA seeking following reliefs:-

"1) Call for the record of case from the respondents.

2) Deleted.

Added prayer (2) The original application may kindly be allowed and order dated 30.01.2020 to the extent 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 along with regular pension from the date of VRS retirement.

4) Cost of O.A. may kindly be awarded to the applicant with cost.

5) Interim relief in terms of leave encashment may kindly be released along with interest with immediate effect.

6) Any other appropriate relief may kindly be deemed fit by this Hon'ble tribunal may kindly be granted."

5. Respondents filed their reply. It is contended that similarly situated officers of BSNL with identical grievances have filed Writ Petitions before Aurangabad Bench of Bombay High Court. The BSNL had directed the petitioners to submit the caste / tribe certificates issued by the competent authority. If caste / tribe validity certificates are not available, then to apply / register online for obtaining from State / District level scrutiny committee and submit the same immediately, failing which action like reversion/removal/termination from service will be 5 OA No. 223/2022 initiated. After hearing both the parties, the Writ Petitions have been dismissed.

6. It is further alleged that the applicant had taken training for the post of Junior Engineer and recruitment training for SC/ST and also applied and appeared for LDCE examination for the post of Junior Engineer under 40% quota as per recruitment order 2006 vide letter dated 06th February, 2007. At the time of appointment of the applicant, he had filled in attestation form in which the applicant disclosed his caste as scheduled tribe. This shows that his appointment was made under ST category and entry was made in the service book to that effect. The applicant was, therefore, treated as an ST category employee for all requisite purposes. The name of the applicant is also mentioned in the roster as belonging to ST candidates.

7. It is further averred that the applicant was time and again instructed by the respondents to obtain and produce his caste validity certificate but the applicant did not comply with these directions. They contend that 6 OA No. 223/2022 this action was required to be taken as the complaint was made that the employees by producing fake / false / forced caste certificate have obtained the employment. The name of the present applicant figures in this complaint. That complaint is under investigation. The applicant was, therefore, asked by various letters to make online application for getting caste validity certificate and produce the same but the applicant did not initiate any action and, therefore, at the time of retirement, the pensionary benefits have been rightly withheld. The applicant got the benefit of his caste during his service and, therefore, he is not entitled to the relief he has claimed.

8. The applicant filed rejoinder contending that he was not appointed on the basis of caste. Though his caste is mentioned in service book, he has not availed any benefit of caste during his tenure of service. The appointment of the applicant was not on the basis of caste.

9. The respondents filed their reply to rejoinder. No new point has been raised in reply to rejoinder. 7 OA No. 223/2022

10. Respondents filed additional reply to rejoinder. In the additional reply to rejoinder, they contend that the applicant has been issued major penalty chargesheet on 24th November, 2023 on the ground that despite giving him instructions from time to time, he did not produce the caste validity certificate from the caste scrutiny committee. They contend that the applicant was appointed as Telephone Operator and he was promoted as Junior Engineer. This itself indicates that the applicant was given promotion on caste basis. The applicant did not file written statement in the chargesheet. He did not disclose the filing of chargesheet though chargesheet was filed before the filing of the rejoinder. This clearly shows that the applicant is not coming with clean hands. He has suppressed material facts from the Tribunal. For this purpose, respondents have placed reliance on the case of S. P. Chingalvaraya vs Jagannath, AIR 1994 SC 853, Vijay Syal vs S/O Punjab, (2003) 9 SCC 401. In the scheme of voluntary retirement, there was a clause no. 7(ii) that "VRS option of employees facing 8 OA No. 223/2022 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 and gratuity, shall be released only on the conclusion of and based on outcome of vigilance/disciplinary proceedings." They contend that, therefore, the retirement benefits have been rightly withheld.

11. They further contend that OM dated 30th November, 2021 deals with payment of provisional pension pending departmental proceedings. Respondents have placed reliance on the case of Chief Regional Officer versus Pradip and another, (2020) 11 SCC 144 in which it is held that where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. Similar proposition has been laid down in the cases of 9 OA No. 223/2022 Chandrabhan vs State of Maharashtra, (2021) 9 SCC 804, Chief Executive Officer, Bhilai Steel Plant, Bhilai vs Mahesh Kumar Gonnade and others, 2022 SCC OnLine SC 866 and Bhubaneswar Development Authority vs Madhumita Das & Ors in Civil Appeal No. 3320 of 2023 (Supreme Court).

12. I have heard learned counsel for the applicant and learned counsel for the respondents.

13. Learned counsel for the applicant submitted that the applicant was not appointed on the basis of caste. Appointment order also does not mention that the appointment was on the basis of caste. The appointment order simply mentions that if the applicant claims to be of SC/ST then, he or she should produce the caste certificate. That does not indicate that his appointment was against reserved category post. He further submitted that the applicant sought voluntary retirement in accordance with the scheme floated by the respondents. The retiral benefits can be withheld only if, judicial proceedings or departmental proceedings are pending against the applicant. Neither 10 OA No. 223/2022 judicial proceedings nor departmental proceedings were pending against applicant on the date of his retirement.

14. He further contended that the government has issued the OM to the effect that retiral benefits can be withheld only when judicial proceedings or departmental proceedings are pending. On 12th September, 2022, BSNL has issued a circular. The action of the respondents is in direct contrast with this OM. He further contended that the respondents have issued a circular to the effect that the complaint against the employees belonging to SC have not been appointed on the basis of caste nor gained promotion on caste shall be closed. He has, therefore, prayed for allowing the application.

15. Learned counsel for the respondents submitted that the appointment order of the applicant shows that he was directed to produce caste certificate, if he claims to belong to SC/ST. This itself indicates that the applicant was appointed on the basis of caste. He further contended that vide order dated 22nd March, 11 OA No. 223/2022 1990 i.e., the order of successful completion of three months' training of the applicant, vide clause 5 of the terms of appointment, it was made clear that if the appointee belongs to SC or ST when he / she wants to change his or her caste / race, should intimate to the office immediately. He contends that clause 6 further states that the candidates will be required to pass departmental examination in six chances within three years. He submitted that if these two conditions are read with the appointment order, it clearly spells out that the applicant was appointed on the basis of caste.

16. He further submitted that the applicant was communicated several times that he should make online application to the competent authority for getting caste validity certificate. The applicant did not pay any heed to it. The respondents have initiated departmental inquiry against the applicant on 23rd November, 2023 for non-compliance of the directions of respondents in regard to making online application for caste validity certificate and produce the same. The applicant has suppressed this fact from this Tribunal 12 OA No. 223/2022 and, therefore, the applicant is not entitled to any relief. He submitted that a complaint was received to the effect that some persons not belonging to SC/ST have gained employment by producing fake/false/forged certificate of caste. The complaint is under investigation and the applicant was, therefore, asked to produce the caste certificate from the competent authority under Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Caste Scrutiny Act).

17. The said Act is applicable to Central Government employees and the Public Sector Undertaking / Central Undertaking also. Since the applicant did not produce the caste validity certificate from the competent authority, his pensionary benefits have been rightly withheld in terms of clause 7(ii) of the Voluntary Retirement Scheme, 2019. He submitted that the applicant has placed reliance on the case of Single Bench of this Tribunal. However, the 13 OA No. 223/2022 respondents preferred Writ Petition before the Aurangabad Bench of Bombay High Court in which notices have been issued to the applicant. He submitted that having regard to all this, the retiral benefits have been rightly withheld.

18. I have given thoughtful consideration to the submissions made by the learned counsels for their respective parties.

19. The contentions of the respondents are that the applicant was appointed on the basis of his caste. The respondents have produced the extract of service book in which against the column of caste, it is mentioned as Scheduled Tribe. The applicant belongs to 'Mahadev Koli' caste. In the order of appointment, it is mentioned that if the applicant claims to belong to SC/ST, he should produce caste certificate to that effect. Simply on the basis of this clause, it cannot be concluded that the applicant was appointed on the post reserved for SC/ST candidates. An employee can be said to have obtained benefit of his caste and gained employment only when the employer proves that the 14 OA No. 223/2022 appointment was on the post reserved for that caste. The respondents have not produced any evidence to show that the appointment of the applicant was against the reserved post. In the absence of these details, it is difficult to accept that the appointment of the applicant was against reserved post.

20. Pertinent it is to note that on the date of VRS, no judicial or departmental proceedings was pending against the applicant. In the case of Namdeo s/o Dashrath Nikhare versus Secretary, Public Works Department, Mantralaya and others in Writ Petition No. 547/2021 (Nagpur Bench of Bombay High Court) relied on by the applicant, it has been held thus:-

" 5. We have heard the learned counsel for the parties and we have perused the documents on record. It is not in dispute that the petitioner entered in service on being appointed as Junior Clerk on a post reserved for the Scheduled Tribe category. It is further not in dispute that the petitioner's tribe claim was invalidated on 08.03.2010. However till his superannuation the petitioner was not placed on a supernumerary post. Consequently, he retired from the post of Storekeeper on which he was promoted on 24.05.2011 in the open category.

6. In these facts when the petitioner was not placed on a supernumerary post, there does not appear to be any justification for withholding the petitioner's retirement benefits. No departmental proceedings were held against the petitioner prior 15 OA No. 223/2022 to his superannuation on the basis of which he could be deprived of his pensionary benefits. By the order dated 03.07.2020 the petitioner is being paid provisional pension subject to finalization of his pension case. The impugned communication does not seek to deprive the petitioner of such retirement benefits. Thus as the petitioner has superannuated without being placed on a supernumerary post, there is no reason to withhold his pensionary benefits. In that view of the matter, the petitioner is entitled for the relief of grant of retirement benefits."

21. Thus, in the case of Namdeo s/o Dashrath Nikhare (supra), the caste of the employee was invalidated by the competent authority. No departmental proceedings were initiated against the said employee at the time of his superannuation. Bombay High Court has held that even when caste certificate is invalidated, the pensionary benefits can be denied only after holding departmental enquiry. In the case at hand, no departmental enquiry was pending against the applicant at the the time of his retirement and, therefore, it cannot be said that the action of the respondents was legal and proper.

22. Even otherwise the claim of the respondents cannot be upheld for the simple reason that they have not adduced any evidence to show that the applicant 16 OA No. 223/2022 was appointed or promoted to the post of Engineer on the basis of his caste . A bald allegation without there being any evidence cannot vindicate the stand of the respondents. Learned counsel for the applicant placed reliance on the case of Dilip Chintaman Nandankar versus Union of India & others in Writ Petition No. 2540/2021 (Nagpur Bench of Bombay High Court), in which it is held thus:-

" 19. The learned Counsel for the respondent Nos.2 and 3 has specifically stated that in the light of DOPT Office Memorandum dated 08.04.2019 and law evolved after the landmark decision of the Hon'ble Supreme Court in Chief Regional Officer, Oriented Insurance Company Vs. Pradip and another (2020) 11 SCC 144] pertaining to public employment of Scheduled Caste and Scheduled Tribes candidates, who initially obtained public employment on the basis of Caste/Tribe Certificate but later on after verification claim is found to be false or invalid, the employment is liable to be terminated and all the service benefits would be withdrawn. In the case of the petitioner, he has filed his Caste Certificate belonging to Halba Community at the time of his appointment i.e. on 19.05.1987. It was not got verified by the Competent Authority despite communication dated 07.01.2019 and therefore he informed about it to respondents on 28.03.2019. There is no order passed by the Scrutiny Committee invalidating the petitioner's tribe claim. The employer did not take any action against the petitioner for failure to submit his validity certificate. In the absence of any steps being taken by the employer the pensionary benefits of the petitioner cannot be withheld. Moreover, the DOPT Office Memorandum dated 08.04.2019 has been withdrawn vide Office Memorandum dated 24.07.2020."

23. These two judgments of the Bombay High Court clearly stipulate that unless departmental inquiry is held, pensionary benefits cannot be withheld. In terms of Rule 69 of the CCS (Pension) Rules, it is clear that retiral benefits can be withheld only when judicial proceedings or departmental proceedings are pending. The Bombay High Court in the case of Dilip Chintaman Nandankar (supra) has observed in no uncertain terms that the Central Civil Services (Pension) Rules, 1972 or instructions / guidelines issued by the department do not provide for withholding of the retirement benefits under any other circumstances including pending verification of caste status of the employee. In the case at hand, the respondents simply issued the letters to the applicant calling upon him to make application for production of caste certificate from the competent authority by making online application. That does not amount to pendency of enquiry. It is settled law that departmental 18 OA No. 223/2022 enquiry can be said to be pending only when chargesheet is served on the delinquent employee.

24. Learned counsel for the respondents has relied on the judgement of Division Bench of this Tribunal in TA Nos. 2, 3 & 4 of 2024, Rashid Sha Kabir Sha & ors. Versus BSNL, in which it is held that the employee had obtained the benefit of caste while giving promotion. This judgment is of no assistance to the respondents for the reason that in that judgement, the charge memorandum was challenged and there was evidence to show that the delinquent employee had gained promotion on the basis of caste. In the case at hand, such evidence is conspicuously lacking.

25. So far as suppression of fact of serving of charge sheet on the applicant by the respondents is concerned, it has no bearing on the issue involved in this OA, for the reason that the enquiry was initiated after retirement of the applicant. The issue involved in this OA is whether any judicial or departmental proceedings was pending against the applicant on the date of his retirement. Admittedly, no such proceeding 19 OA No. 223/2022 was pending against the applicant on the date of his superannuation.

26. Suppression of material fact from the Court / Tribunal by any party itself is sufficient to non-suit him. However, every suppression cannot have the effect of non-suiting a party. It is only that suppression of a material fact which would have a bearing on outcome of the lis. In the case at hand, it was not necessary for the applicant to bring on record the serving of the chargesheet by the respondents on him because this is an event post his retirement. If the enquiry had been pending on the date of his superannuation and if he had failed to bring it on record, this could have been a suppression of material fact. But this is not the fact situation in the case at hand and, therefore, non- disclosure of the serving of chargesheet after superannuation does not amount to suppression of material fact so as to non-suit him.

27. I have gone through the authorities relied upon by the respondents. They are not applicable to the facts of the case at hand.

28. Even if it is assumed for the sake of arguments that the appointment of the applicant was against reserved post or he had gained promotion on the strength of caste, the respondents do not stand to gain. As held in the case of Namdeo s/o Dashrath Nikhare (supra) and in terms of Rule 69(2) of CCS (Pension) Rules, 1972, pensionary benefits can be withheld only when disciplinary or judicial proceedings are pending at the time of retirement of an employee. As indicated earlier, no judicial or departmental proceeding was pending against the applicant and, therefore, the respondents were not right in withholding the pension of the applicant.

29. Having regard to the discussions made above, the only logical inference that can be drawn is that the action of the respondents in withholding the pensionary benefits was not legal and proper. Hence, following order is passed:-

(i) Application is allowed.

(ii) Condition of withholding pension subject to production of caste validity certificate in order dated 31st January, 2020 (Annexure- A-3 colly.) to the extent of para 3 stands set aside.

(iii) The respondents shall release pensionary benefits and ex-gratia payment to the applicant in terms of the VRS Scheme within three months from the date the respondents receive certified copy of this order.

(iv) Pending MAs, if any, stand closed. No costs.

(Justice M.G. Sewlikar) Member (J) nk.

Nicky DN: C=IN, O=Personal, OID.2.5.4.65= 5701472963214eacaf7214eb1c705990, Phone= 319c15ca9eb1feefdf068e6ccd39ee2956895f6f91a3b405297 e23829af5a475, PostalCode=823002, S=Bihar, SERIALNUMBER= 78a0e5fc01b6b3d12eabec40e7f8c4bf366c1f4f6f5bd93fc66b Kumari bdd397444faa, CN=Nicky Kumari Reason: I am the author of this document Location:

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