Central Administrative Tribunal - Mumbai
Deshraj Pandey vs Bharat Sanchar Nigam Limited on 22 February, 2024
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1 OA BSS/2019
Central Administrative Tribunal,
Mumbai Bench,
Mumbai.
0.A.865/2019
Dated this Haptad oy, _ the gabe day of February, 2024
Coram: Ms.Harvinder Kaur Oberoi, Member (Judicial
Mr.Shri Krishna, Member (Administrative).
Shri Deshraj Pandey,
Asstt. Office Superintendent,
O/o the Chief General Manager,
BSNL Admn Bidg, Juhu Danda,
Santacruz (W), Mumbai -- 406 054.
Residing at : BSNL Quarter Type 3/305,
Wireless Compound, Borivali (W),
Mumbai ~ 400 091, . Applicant.
{ By Advocate Shri G.B. Kami ).
Versus
1. Bharat Sanchar Nigam Ltd.,
Through Chairman & Managing Director,
Bharat Sanchar Bhawan H C Mathur,
Lane Janpath, New Delhi -- 110 001,
2. The Chief General Manager,
BSNL, Telecom Maharashtra Circle,
Admn Bldg., Juhu Road, Santacruz (W),
Mumbai ~ 400 054.
3. Sr. General Manager CHR&A),
BSNL, Telecom Maharashtra Circle,
Admn Bldg. Juhu Road, Santacruz (W),
Mumbai ~ 400 054.
4. Deputy General Manager (HR & Admn),
BSNL, Telecom Maharashtra Circle,
Admn Bldg. Juhu Road Santacruz (W),
Mumbai ~ 400 054. Respondents.
=
2 . OA.865/2019
( By Advocate Dr. V.S. Masurkar }.
Order reserved on : 15.02.2024
Order pronounced on 322 02.2024
ORDER
Per: Shri Krishna, Member (A)
The applicant is agerieved by the impugned order dated 8.03.2019 whereby his representation to treat him on duty during the period of suspension from 16.10.2014 to 23.06.2016 has been rejected has filed this O.A. seeking the following reliefs:
"a) To allow the Original application.
b} This Hon'ble Tribunal may be pleased to call for record of the case and after going through its propriety and legality be pleased set aside and quash the impugned orders dated 28.03.2019 being arbitrary, unreasoned, non speaking and illegal, c} This Hon'ble Tribunal may please be directed the respondent to give full pay and allowances to the applicant wef 22.12.2014 after the ninety days of suspension till the date of revocation Le. 24.06.2016 as the suspension after 90 days became invalid since not reviewed.
d} This Hon'ble Tribunal further may please be directed to the Respondent to consider to reinstate his salary for the suspension period since the applicant is acquitted from the criminal charges, and minor penalty is awarded, ¢) This Hon'ble may pleased be directed to consider the all suspension period as duty for all purpose, since the applicant is acquitted from criminal charges and minor penalty is awarded.
3 OA.BHS/2019
f) To pass any other just and appropriate orders this Hon'ble Tribunal. may deem fit, proper and necessary if the facts and circumstances of the case.
g) The cost of this original application please be provided."
2. Brief facts of the case are that the applicant was working as Sr.Telecom Office Assistant. On the basis of a complaint dated 23.12.2010 filed by the resident of Vikhroli and 44 other persons, a criminal complaint was registered against the applicant in the year 2010- 11 at Parksite Police Station, Mumbai under various sections of IPC. The applicant was arrested on 23.09.2014 and kept in the police custody for a period of more than 48 hours. He was released on bail on 14.10.2014, He submitted a copy of bail order to the applicant on 27.10.2014. The applicant was issued deemed suspension order with effect from 03.12.2014. Thereafter, the applicant reached an out of Court settlement with the complainant and on that basis Additional Chief Metropolitan Magistrate, Vikhroli had acquitted the applicant vide order dated . 13.12.2014,
3. 'The applicant claims that he submitted a copy of the above order to the respondents on 18.12.2014. However, the respondents did not revoke his suspension till 24.06.2016. The applicant submitted a representation dated 11.07.2016 to regubitine his suspension period and pay him full salary post revocation of the suspension. Thereafter, the 4 OA 86572019 applicant approached this Tribunal by filing an O.A.723/2018 in which the Tribunal vide order dated 03.12.2018 directed the respondents to consider the representation of the applicant within 90 days and to pass a reasoned and speaking order on his requests regarding regulating period of suspension from 23.09.2014 to 24.06.2016. Pursuant to the directions of this Tribunal, the respondents have passed the impugned order. 4, The counsel for the applicant subniits that the applicant was acquitted by the Court on 13.12.2014 je. hefore the 90 days of suspension period was over. He submitted that as per Rule 30(5\e) of BSNL CDA Rules, 2006, it has been provided that an order of suspension made or deemed to have been made under sub-role 301) or 30(2) of this rule shall not be valid afer a period of ninety days unless it is extended after reviews, for a further period before the expiry of ninety days. The proviso to above rule provides that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule 30(2), if the employes continues to be under detention at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the employee detained in custody is released from detention or the date on which the fact of his release irom detention is intimated to his Appointing Authority, whichever is later, S. itis the argument of the counsel for the applicant that since 3 OA.865/2019 the respondents have. not reviewed his suspension before completion of 90 days and not extended his suspension order by passing an order of extension of suspension his suspension period should be regularized.
6. Counsel for the applicant placed reliance on the decision of Hon'ble Supreme Court in the case of Union of India & Ors, Vs. Dipak Mati dated 15.12.2009 in SLP (C) Ne.66612006 and placed a special emphasis on Paras 2,3,4,5,10 and 11 of the judgment:
"2, The aforesaid amendment came into effect from 2°? June, 2004, but as a Review Committee was not constituted, the respondent's suspension was not reviewed as required by the amended Rules. The respondent, therefore, claimed that the suspension order must be deemed to have lapsed and accordingly, he approached the Central Administrative Tribunal by filing O.A.No.540/2004 for a declaration that the suspension order dated 10"
August, 2002, became invalid on the expiry of 90 days from the date on which Sub-Rules (6) and (7) of Rule 10 came into force, since the same had not been extended by the Review Committee.
3. There is no dispute that the suspension of the respondent was not extended. The Tribunal, accordingly, allowed the application filed by the respondent and by its order dated 29 March, 2005, quashed the suspension order dated 10" August, 2002. The said order of the Tribunal was questioned before the High Court on the ground that while Sub-Rules (6) and (7) of Rule 10 came into force only on 2" June, 2004, the application had been made prematurely in July, 2004 even before the expiry of three months. It was contended that since the matter was subjudice on account of the pendency of the Original Application filed by the respondent before the expiry of 90 days from 2"
June, 2004, the petitioners were unable to review 6 OA.865/2019 the respondent's case.
4, Dealing with the said contention the High Court held that since there was no interim stay in O.A.No.540/2004 filed by the respondent, there was nothing to prevent the petitioners from reviewing the suspension within 90 days from 2™ June, 2004. On such ground the High Court dismissed the writ petition,
5. It is against the said order of the High Court that the present Special Leave Petition has been filed, .
er eee
10. Having carefully considered the submissions made on behalf of the parties and having also considered the relevant dates relating to suspension of the Respondent and when the Petitioner's case came up for review on 20" October, 2004, we are inclined to agree with the views expressed by the Central Administrative Tribunal, as confirmed by the High Court, that having regard to the amended provisions of Sub-rules (6) and (7) of Rule 10, the review for modification or revocation of the arder of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categoricallly provided under Sub-rule (7), the order af suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.
1}. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this 7 | OA.865/2019 case, what is important is that by operation of Sub- rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was extended afier review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid afer 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."
7. He has also relied on the judgment of the Principal Bench of this Tribunal in the case of Prabha Joshi Vs, Govt. of NCTD dated. 02.12.2013 in OANe34282012, OANe343v2012 and OANG37 70/2612.
8. On notice, the respondents have filed their reply and resisted the O.A. It has been submitted that the impugned order is speaking order and passed strictly in accordance with the rules on the subject and, therefore, the O.A. is Hable to be dismissed with cost. 9, It has been submitted that while working in CTO, Mumbai during the year 2010-11, a criminal complaint was registered against the applicant in Parksite Police Station, Mumbai under Sections 313/10, 420 and 34 of IPC and the same was intimated by Sr. Police Inspector, Parksite Police Station vide his letter dated 10.12.2010. A complaint letter dated 23.12.2010 received from Shri Vikas Sandeep Guldagade, a resident of Vikhroli, Mumbai along with list of 44 people with evidence 8 0A.865/2019 stating that the applicant has deseived him, his relatives and friends for Rs.50 lakhs for arranging employment in BSNL, Mumbai for them and also gave the list of selected candidates on BSNL letter head, He has deceived letters dated 02.01.2009, 09.10.2069 and 10.12.2009 on the letter head of Bharat Sanchar Nigam Limited, G/o General Manager, Mumbai ~ 400001, offering various appointments to the candidates and also the copy of the pay slips / cheques deposited in ICICI Bank Account No.623501 154037, Goregaon (East) Branch,
10. It has been submitted that the applicant was unauthorized absent from duty with effect from 01 08.2010 to 07.08.2014. During the said unauthorized absence period criminal case was lodged against the applicant and he was away from duty to avoid arrest fom police authority. Finally, the police authorities arrested him on 23.09.2014, The DGM (HR/Admn) issued deemed Suspension order dated 03.12.2014 with effect from the date of detention by police authority Le, 23.99.2014 to 15.10.2014, the applicant was in police/judicial custody. It has been submitted that the accused applicant and the complainant settled the dispute out of the Court in Lok Adalat held by Addl, Chief Metropolitan Magistrate, Vichroli, Mumbai on 14.10.2014.
i. A disciplinary case was pending against the applicant which co-related with the criminal case, the Disciplinary Authority intimated on 18.02.2016 to Accounts Section and to the applicant that subsistence 9 OQA.S65/2019 allowance paid to the applicant may be continued at the rate of 50% of his basic pay since his suspension has not been revoked. It has been submitted that the impugned order dated 28.03.2019 has been issued by the respondents after careful consideration of the facts of the case and analysis of the representation of the applicant dated 11.07.2016 and accordingly as per the provisions contained in the Rule 32 of BSNL CDA Rules, 2006, the period of suspension of the applicant was treated accordingly. It has Been submitted that the Court recorded the terms of compromise between the applicant and the complamant. The charged official has not been acquitted on merit and he has not been exonerated in the departmental proceedings, hence the action of the BSNL Management is in order.
12. it has been submitted that the suspension of the applicant was revoked from 24.06.2016, therefore, ihe suspension period from 16.10.2014 to 23.06.2016 cannot be treated as a period spent on duty. He submitted provisions of Rule 32 of BSNL CDA Rules, 2006 which reads as under
"Rule 32, Treatment of the period of suspension -
(1) When the employee under suspension is reinstated, the competent authority may grant him the following pay and allowance for the period of -
suspension;
(a) If the employee is exonerated and not awarded any of the penalties mentioned in Rule 33, 18 OA.86S/2019 the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him: and,
(b) If otherwise, such proportion of pay and allowances as the competent authority may prescribe.
(2) In a case falling under sub-clause {a), the period of absence from duty will be treated as 4 period spent on duty. In case falling under sub-
clause (5) it will not be treated as period spent on duty unless the competent authority so directs,"
13. It has been submitted that in view of the facts of the case, the judgments relied upon by the applicant is not similar to the facts and circumstances of the present case and hence the benefit of the judgments relied upon by the applicant cannot be extended to him. 14, In the rejoinder filed by the applicant and in the sur rejoinder filed by the respondents almost the same arguments which were submitted in the OLA. and reply of the respondents have been reiterated,
18. During the course af final arguments, Dr.Masurkar, counsel appearing for the respondents has submitted that there is provision for statutory appeal against the suspension order and the applicant has not fled any appeal against the suspension order and also against the impugned order which is a speaking order. He submitted that his acquittal on the basis of compromise reached with the private complainants in the Lok Adalat by allowing the complainant to withdraw ho OA.865/2019 the complaint was a matter between the applicant and police and the Court about which the respondents was not informed. He submitted that the applicant was issued a charge-sheet dated 24.04.2012 under Rule 36 of BSNL CDA Rules, 2006 for unauthorized absence of duty from 01.08.2010, found guilty and a penalty of withholding of next increment of pay when due for a period of 3 months without cumulative effect was imposed,
16. He submitted that the applicant has claimed that he has submitted a hand written representation on 18.12.2014 to SDE ¢ G-H), C.T.0., Mumbai-1 is a self certifying claim as it has no receipt from the _ respondent department. It is not known who has received it. It has no -- seal and stamp of the respondents. More so, the SDE to whom the letter claimed io have been addressed is not Competent Authority to decide about revocation of suspension. He submitted that the applicant was very well aware of this fact. As the subsequent representation dated 11.07.2016 has been submitted te the Competent Authority Le. | ' SrGeneral Manager (HR & Admn.}, O/o CGMT, MH Circle, BSNL, Mumbai -- 54 enclosing therewith copies of Court Order, revocation and posting order and the same has been duly acknowledged. In contest to letter dated 11.07.2016, the letter dated 18.12.2014 is without any enclosures.
17, He submitted that Rule 23 of BSNL CDA Rules provides 2 OA.865/2019 that filing statutory appeal which applicant failed to file and straight away approached this Tribunal and an ex-parte order was passed by the Tribunal at the admission stage directing the respondents to pass Speaking order on his representation dated 11.07.2016 and accordingly the respondents have complied with it. It has been submitted that since the applicant has not availed the altemate remedy of statutory appeal, this O.A. deserves to be dismissed with cost.
18. We have heard both the learned counsels at length and perused the pleadings and documents Hled on record. 19, The issue in this O.A. is whether the applicant is entitled for full pay and allowances with effect ftom 22.12.2014 after 90 days of suspension till the date of revocation ie. 24.06.2016 as the suspension after 90 days became invalid as it was not reviewed and whether the applicant is entitled for salary during the suspension period since the applicant is acquitted from the criminal charge and minor penalty has been awarded and whether he can be treated on duty during the period of suspension, |
20. There is no dispute that on the basis of the complaint a criminal case was lodged by the Parksite Police Station on the basis of . private complaints during the year 2010-11 under Section 313/10, 420 and 34 of IPC and the applicant was arrested by the Police on 23.09.2014. Tt is also not in dispute that the applicant was % i wa OA .B6S/2019 unauthorizedly absent from duty with effect from 61.08.2010 to 07.08.2014, ad, The above suspension order was issued on 03.12.2014 with effect from the date of detention by the Police ie. 23.09.2014 and, therefore, the period of 90 days gets over on 21.12.2014. The provisions of Rule 32 of BSNL CDA Rules, 2006 reads as under:-
"Rule 32. Treatment of the period of suspension - (1) When the employee under suspension is remstated, the competent authority may grant him the following pay and allowance for the period of suspension;
(a) If the employee is exonerated and not awarded any of the penalties mentioned in Rule 33, _ the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him: and,
(b) Hf otherwise, such proportion of pay and allowances as the competent authority may prescribe.
(2) In a case falling under sub-clause (a), the period of absence from duty will be treated as a period spent on duty. In case falling under sub-
clause (b) it will not be treated as period spent on duty unless the competent authority se directs."
22. A perusal of the above rule makes it clear that in a case under Clause (a) of sub-Rule (1) of Rule 32, the period of absence from duty was treated as period period spent on duty. However, in a case under Clause (b), it will not be treated as period spent on duty unless the if OA.865/2019 authority was directed. It is also not in dispute that the period of suspension beyond 90 days was not reviewed by the Review Committee and the deemed SUSPENSION Was not extended beyond 21.12.2014, It is also not in dispute that the applicant reached a compromise with the private complainants and his case was settled with them in the Lok Adalat by allowing the private complainant to withdraw the complaint regarding the amount of Rs.50 lacs alleged to have been collected by the applicant from the private complainant, Jt js also not in dispute that the disciplinary proceedings have been initiated against the applicant by issuing a charge-memeorandum in which he was found guilty and a penalty of withholding of next increment of pay when due for a period of three months without cunrulative effect was imposed on the applicant. The applicant has accepted the penalty and has not preferred ' any appeal against the said penalty order,
23. In view of the above facts of the case, we find that the case ofthe applicant js covered by Rule 30(5)(b) of BSNL CDA Rule, 2006 which states that "where an employee is suspended or js deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise}, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the employee shall continue to be x 13 OA.865/2019 under suspension until the termination of all or any of such proceedings."
24. We find that the Competent Authority has not passed any order to continue the suspension of the applicant until termination of all any such proceedings. The review committee found for revocation of suspension of the applicant in their report dated 08.06.2016 and recommended revocation of suspension and accordingly the Competem Authority issued revocation order on 24.06.2016 for revocation of the applicant. Thus the continuance of the suspension of the applicant from 4 12.2014 till 24.06.2016 was not in accordance with the rules stated above. We, therefore, find merit in the submissions of the applicant that the above period should be treated as period spent on duty, However, considering the fact that the applicant even after revocation of the suspension order has joined his duties only on 04.07.2016.
25. Regarding claim of the applicant that he has made representation for his reinstatement on 18.12.2014 to the SDE (G-T)), CTO, Mumbai-1, we find that the same was not made to the Competent Authority and it does not have any acknowledgement receipt. Moreover, the applicant has net enclosed any evidence with the above application that he has been acquilted on 13.12.2014 and, therefore, the Competent Authority could not have acted upon the said application. We find that the applicant has made proper representation to the Competent Authority 16 OA. 865/2019 vide his representation dated 11.07.2016 which was addressed to the Competent Authority i.e. Sr. General Manager (HR & Admn), along with copies of Court order, revocation order and posting order after his suspension order was revoked and he has already joined the duties on 04.07.2016, 26, tn view of the above facts, we are of the considered view that the period from 22.12.2014 to 24.06.2016 should be treated as period spent on duty for the purpose of counting of service and pensionary benefits. However, the applicant will not be entitled to full salary as he was already paid 50% of his basic pay during the suspension period on the principle of "no work no pay".
27. In view of the above discussion, the O.A. is partly allowed. The respondents are directed to treat the period from 22.12.2014 to 24.06.2016 as spent on duty. The impugned order dated 28.03.2019 is directed to be modified to the extent of treating the applicant's suspension period from 22.12.2014 to 23.06.2016 as period spent on duty.
28. There shall be no order as to costs.
(Shit krisiniay (Harvinder Katy Oberol) Member (A} Member (J).
H we 'en a A ws