Central Administrative Tribunal - Mumbai
Shantilal Bhagchand Barwal vs Bsnl on 2 January, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBATL
ORIGINAL APPLICATION Nos.193 & 182 of 2029
Dated this Monday the 2°' day of January, 2023.
CORAM: Mrs. Harvinder Kaur Oberoi, Member {J} .
Shantiial Bhagchand Barwal
Age 59 yrs. Occ: Retired
R/at Pinakeshwar Shop, Survey No.56/29,
Jalgaon Road, Harsul, Aurangabad 431 001.
Mobile No. 9404384207,
Email mano barwalsbgie:
yall.com.
Bhaskar Pandurang Janmale
Age 60 years, Occ: Retired
R/a th front of Shivaji College.
Reenapur, Te
. Dist. Latur:
Mobile: 94
Email boil.
eenapur,
413 527.
21800.
06196 1@email com.
ry
Oo
Sanchar Nigam Ltd.,
Chief Managing,
'har Bhawan, H.C. Mathur
Lane, New Delhi 011 001.
'The General Manager Telecom,
BSNL, Town Centre, Cideo,
Aurangabad ~ 431 003,
The Chief General Manager
Telecom Maharashtra Circle
BSNL Bhavan, duhu Read, Santacrus
West, Bombay - 34.
Chiuef Cortrel of Communication
Accounts Maharashtra & Goa Circle
Applicant in
OA I193/2022
Applicant in
OA 82/2022
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NEP Peary 3 7 eee
af Fe Bk, Sespondents
{By Advocate Br. VS. Masurkar - RI to Ra
Advocate Shri P. Shosia - 84}
ORDER
& Vhe applicants in these two Original Applications have approached this Tribunal with similar prayers. Since the applicants have a common cause and similar facts and prayer, they are being considered together under a common order. Por the purpose of convenience, the facts are being taken as pleaded in OA No. 193/2022,
2. By these OAs, the applicants are seeking release of pension which has been withheld 'om account of non- furnishing of the Caste validity certificate by the applicant,
3. The brief facts of the case are that the applicant joined the services with the Department af Telecommunications at District Jalna and was appointed as a Regular Mazdoor wel 23.12.1989, He was appointed as Poone Mechanic frora 05.04.1997 and posted under X-Bar ' Exgn ofo SDE (X-Bar) Jalna. He was ultimately absorbed in BSNL after having worked on casual basis, for more than a decade. Applicants submit that they were absorbed as per scheme of the respondents themselves after they had worked for long period with the utmost dedication and sincerity.
They submit that their appointment was due to this scheme 'of regularizing casual workers and not due to any syyilinent exercises. PRey therefore submit PRESSE BRE gS PMe@y UPRAPeLOre SUN TEs Ria AS Byoteyekep Fp Cues Sop és eaeer by whe eee oyyrege Yr cy ba TR OAT gney pelorg to ST Category that dic met avail any benefit of a + Pere r. er, m opweymaveg! axaaeieuxoe: oc ayt wryres Eee ere BS Uy Were CAsVal Workers and mot Epo me epee a we 3 >t . soe : . - 2% we SEF y pA apy Sehigeyaere ct Py SLY EE ED - ce ma tbarssttrs t ye OS: ghee rye RREUTIST AMY reserved vacarrmy. Ht Is subiriiifed that & gene: al complaint was received by the respondents (BSNL Corporate Office), hat there were many employees in BSNL, having fake Caste Ceridicate and a roving enquiry was initiated and all the ST employees inchiding applicants were asked to submit their caste validity certificates. Although, they have been allowed to retire under the VRS scheme of the respondents and are in receipt of provisional pension, their retiral dues including regular pension, ex-gratia payments under the : scheme have not been released till date.
4. = Applicant further submits that at the time of seeking ¥RS, he was: neither facing any departmental proceeding nor any Judicial proceeding nor he was under
stispension and also thede vias no departmental recovery proceedings against him. N ot 'only this, vigilance clearance _ was also given to the applicant by the respondent authority. As sich, applicant om fulfilling all conditions under the VRS scheme was allowed to retire and take VRS. It is submitted that under the VRS scheme floated by the respondents themselves, once applicant was found eligible for VRS and granted the same, respondents cannot deny benehtts under the scheme on the ground of non-availability of Caste validity £ eertiiicate. Therefore, the action of respondents of VOCE ESOP Of pension, payment of ex-s and leave emoashiient, is | legal ane werge, Further, it is legally net permissible for the respondents to withhold and/or mot to the fnancial benefits in the of provisions of CCS Pension Rule, 1072 and leave Rules 1972, x Rule No. 39{8) and the VRS Scheme floated by respondents.
on That after taking VRS Scheme BSNL department is bound to pay entire retirement benefits to the BSNL employees. The applicant further stated that in the struck cif from roll order dated 31.01.2020, while relieving from duty, it is mentioned that all pensionary benefits will be paid alter, production. of Caste V alidity Certificate. That, this condition has been added after the © applicants had submitted their application for VRS and is not part of the scheme of VRS-2019.
6. - Respondents have filed their reply and have stated that the applicant is struck off from the strength w.e.tf. 01.2020, with a condition that all pensioriary benefits will be released after a¥oduction of Caste Validity Certificate. The applicant was repeatedly instructed 'by the employer to obtain and produce his cast validity certificate. However, he ignored the requests, as such, he was allowed VRS only on this condition, [tis further submitted that instructions to get the caste validity certificate were issued from the end of department to all similarly placed employees in view of the fact that, & cxanplaint was with BENE ine about appointment seught by cerhaim employces on the basis of fake /false/forged caste certificate. The name oi gaid corpleint. Therefore, im order to confirm abont the truthfaulmess lyimg behind such.
allegation comapiaini, i was incumbent on thE p part oF BSNL department to ascertain the validity about "ST" caste status enjoyed by applicant during their entire span of Service. However, the applicants failed to respond to these instructions, Fe | They further stated that since the applicants were the employee of respondents at 'the rélevant time, in this case, it is necessary to follow the instructions as per service rules and jor BSNL policy which governs the present "applicants. AS @ result of euch situation, the applicants have been instructed to submit caste validity as per the working procedure of state /district level caste scrutiny committees in Maharashtra state as per BSNL Corporate Office guidelines /divections which in turn are based on DOPT nuidelines and service rules as such, the present applicants 98 are bound to follow these guidelines/rules issued from time to ime.
&. MA No.650 /2022 in OA No. 1822/2022 and MA No.653/2022 in OA Mo.193/2022 have been fied by Respondent No.4 for deletion of their names from the array of party. The same are Msmissed as they arc relevant anc necessary party since they would be the one who has to pay a Respondents further state that in spite of eware about the complaints awainst many officials of the BSNL and its investigation undertaken by BSNL st their administrative level, the applicants preferred to opt for VRS scheme which was accepted by the department but owing to pendency of complaint due to il response fram the side of applicants, they were retired provisionally under instructions that, all retital and/ or consequential benefits would be paid /released subject to availability of caste validity from oe ey committee, eee 10, " Respondents amits | 'thar the applicants have eases the caste/ tribe ertificate to Respondent no.2 during initial <ppein oo service by which applicants 3 of Maharashtra Act No. XEUHI of 2001. Therefore, atter eee of the false/fake caste certificate complaint, . applicants have been instructed to submit the caste validity certificate as per existing rules of the respondents on the matier and in accordance with sections 6/3} G & of Maharashtra Act No.XXU of 2001. Applicants had availed benefits of reservation either directly or indirectly during their service career. Hence, they are Hable to furnish caste/tribe validation certificate in accordance with section 6 & 8 of Maharashtra Act Noa. XE of 2001.
a8 goo yeas pes mhy BAS rete Ne ae eee myer Sea tA mag 4,4 TEL VET Akoht em URE GaSe OF Paed ak r fe es eo See 'eT eee xt = Ss engyy He. o eet on Pe yy Sse the apphcamte were clear from vigilance angie, due to :
fie PRAevTigy oO \: = 3 wdecken off orp sey Sa pene cpg dd pen ee ga ert rey meeps oy them as on the date af voluritery retirement, Ihe PAYMENL of retirernent benefits was required to be withheld and such action on the gart of BSNL is fustifiable in view of the extent guidelines issued by the Hon'ble Apex Court.
12. Heard the learned coursels for the parties and I have carefully perused the case record and materials available on record, The issue involved in the present case is whether achon of respondents: in 1 withholding retiral dues im spite of having actepied the VRS application of applicants is "legal. Further whether the e respondent's insistence of caste in validity certificate from applicants at fag end of service i ; 2. oo In the (vee 2000,. the. Maharashtra Scheduled Caste s, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis}, 2000 was en nacted ta provide caste certificates to the persons pelonging to the Scheduled Castes, Scheduled Tribes, De-
Notified Tribes (Vimukta Jatis} Nomadic Tribes, Other Back- ward Classes and Special Backward Category ("the said Act") and for matters connected therewith or incidental thereto. The said Act received the assent of the President on the 16th May, 2001 which was first published in Government Gazette, extraordinary Part TY on 23rd May, 2001, jsn wpl-10G702- #02 1U).dec. The said Act come into force by Government No-
a st y Epa PS oS LAY N aya er oto " rer = ray x Peers: % ification dated l¥th Oeteher, 2001 we RETR VECTORS ZOO] 2 it eklwaen dew bess vemeeee TREAT leon Tbe tren eeweta per Dd bert j#, Sometime in the vear ZOO], the Metharasnira stars Public Services Reservation Act came to be gassed which was brought into effect in 2004. Under the said Act, only thre reserved candidates would be appointed on the reserved post and all other appointments made thereon would be invalid. Section 15 of the said Act, however, provided that the said provision will not apply where selection procedure had al- ready begun and appointment already made.
18. : Counsel for the applicant invited my attention to : the documents pertaining to appointment of applicant, specially. the fact that - applicant Was @ mazdoor/casual "employee 9 who served the respondents for a period af more : than 10 years dedicatedly. Owing to scheme of reguiarizing : casual workers, applicant came to be appointed on regular basin on his own merit and not against any reserved category post. None of the documents pertaining to < appointment point out to caste status of the applicant. Only after regularization applicant's caste status is recorded in his service book for the first time. As such applicant has not taken any benefit on the reserved caste status. Respondents in their reply do not specify as what benefit, if any, was availed by applicant, If is not the specific case of respondents that applicant was promoted against reserved category post.
ié. During arguimenis counsel pointed out to the letter Nadu Circle office .
:
UVa issued by tee Takei meres Ret woth haidiee of vefiral dues wherein if has been ordered thal withnoidiig of relira: Ques due ta non availability of caste Validity Certificates ts inappropriate and the same should be re leased. The said.
letter is reproduced hereunder for easy reference:-
26.07.2019 "Sub: Community verification of officials belonging to the reserved communities prior to authorization of pension.
Kindly reference D.O. No.STC/60- 75/2019 dated 24.07, 2019 and . DO.
No. TRG/ Pension' General. on the issue of settlement of terminal benefits' 'pension. of all ST __ retirees due to non- -auailability of caste verification certificate in the Service Book retired/retiring employees, The issue has been reviewed by the competent aut thority and it has been decided that withholding pension cases of employees on superannuation for. alleged pendency of caste verification 1s inappropriate. Verification of caste eertyicate 1S | the responsibility of appointing authority at the time of appointment or during the service period. "An employee cannot be debarred from his entitlement for terminal benefits/ pension on Super rannuation after he/she serves for a specific period as prescribed under CCS (Pension) Rules. The pending pension cases may be settled by obtaining an undertaking from the employees who had retired/retiring af. required and practically possible}, The CPMG, Tamil Nadu is hereby advised to investigate the issue regarding non-verification of caste certificates of all the pending pension cases and take appr apriate action thereupon without withholding the pension cases.
PAO, Chennai mey ensure early settlement of pension cases and submit a report & Headquarters at the earliest."
Av. Counsel thus submits that when in the Tarn released the dues then the same should be done by the present respondents Le, Maharashtra Circle also. Apphcanits raniot be discriminated against vis-a-vis their courter parte in Tamil Nadu.
ig. Learned. counsel for the applicant has produced the oorderfiudgment of this Tribunal No.S07/20282 dated 06.10.2022 wherein similar issue has been decided and passed the following orders;
"Learned counsel Mr. Mohsin Khan, holding for Mr, RT, Diwate ey leamed. counsel jor. the applicant submit iS. that the applicant was appointed not on aSts off fas caste but was appointed as a. cand! late belonging to open category, He submits 1 that the applicant wes promoted in the cadre of 'Phone Mechanics and this: promotion qwas given to them as an. employee belonging to an open category and not as a candidate belonging to Reserved Category. In the affidavit fled by the respondents, BSNL Corporate office has nowhere aleged that the applicant has availed benefit of their caste while gelling 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 affidaut in reply filed by the respondents, BSNL Corporate Office has nowhere aleged that the applicant has availed benefits of A aste while getting promotion, There is ne averment im the affidavit in reply either, that Puce abtained EPR PNOUINGTIE that he Aas mot soughy carcdidate belonging to Reserved Category but they got the employment as um open category candidates, Therefore. the applicants are entitled to pension. There was no occasion for the respondents to withhold the pension. in this wiew of the matter, the respondents ought ta have granted the. pe sion, Learned courisel for the applicant 'submits hat the 'applicant us ented to i it of non-release of the pension on tt Rrule i e772.
in view ) of passed: : :
Application: is allow ds The re espondents are directed to release the pension of the applicant forthwith, with interest as admissible in terms of CCS Pension Rules 1972".
19, Thus, action of the respondents in withholding retiral dues is not only discriminatory but bad in law also. Finding the present case covered on all fours by the order passed by the coordinate bench, the present GAs are eilewed. Respondents are directed to release the pension and pensionary benefits along with the ex-gratia payments to the applicant within a period of four weeks from the date of ee (Harvinder Kaur Oberol) Member (3) Sher al yh.
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