Allahabad High Court
Sri Suresh Kumar Agrawal vs Bharat Sanchar Nigam Limited And 3 ... on 21 November, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 18524 of 2019 Petitioner :- Sri Suresh Kumar Agrawal Respondent :- Bharat Sanchar Nigam Ltd.and 3 others Counsel for Petitioner :- Arun K. Singh Deshwal Counsel for Respondent :- B.K.Singh Raghuvanshi Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. This writ petition under Article 226 of the Constitution of India has been filed against order dated 4.9.2019 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as 'Tribunal') in Original Application (hereinafter referred to as 'OA') No. 330/00012 of 2017 (Suresh Kumar Agrawal Vs. Bharat Sanchar Nigam Ltd. and three others) whereby aforesaid OA filed by applicant-petitioner has been dismissed.
2. We have heard Sri Arun Kumar Singh Deshwal, learned counsel for applicant-petitioner and Sri B.K. Singh Raghuvanshi, learned counsel representing respondents.
3. Petitioner Suresh Kumar Agrawal, an employee of Bharat Sanchar Nigam Ltd. (hereinafter referred to as 'BSNL') was initially appointed in the Department of Telecommunications, Government of India. Subsequently, on absorption, he became an employee of BSNL.
4. During course of employment of applicant-petitioner, departmental proceedings were initiated against applicant-petitioner. Following charge was alleged, vide memorandum dated 18.9.2010:-
" Article 1 That the said Sh. S.K. Agarwal while posted and working as SDE Phones Najibabad under the GMTD Bijnor during the period 2009-10 committed serious irregularities in discharge of his official duties which amount to misconduct- During the aforesaid period from 01.04.2009 to 15.02.2010 Shri S.K. Agarwal was working as SDE Phones of Najibabad sub division and he was also the controlling officer CSC Najibabad for the control of daily collection of TRC revenue of Basic Telephones and of CMTS in cash as well as in cheques and its daily remittance to bank account of BSNL operating in the name of AO (Cash) O/0 GMTD Bijnor. He was also responsible to ensure the proper maintenance of records of collection and remittance of TRC revenue at CSC counter and also to insure timesly submission of the monthly primary abstract by the CSC in charge Najibabad to the AO (Cash) O/o GMTD Bijnor. During this period Shri O.P. Pandye Sr. TOA (TL) collected the TRC revenue of Basic Telephones and of CMTS in cash as well as in chaques in capacity of CSC in charge but not remitted the total cash collection of revenue to the BSNL account properly and in time on regular basis instead continued to retain the cash in his custody and in this way, misappropriated Rs.432838/- (Rs. Four Lac Thirty Two Thousands Eight Hundreds Thirty Eight only) & used the same for his peronal interest. This fact was confirmed by the surprise visit of CSC Najibabad by a team of Shri B.P. Singh CAO and Shri L.M. Singh DEP who visited the said CSC on 15.02.2010 suprisingly and checked the TRC cash of counter as well of the cash chest available there and submitted its report. I. Due to non remittance of cash collection to the bank on daily basis the company suffered a loss of Rs.36429/% (Rs. Thirty Six Thousands Four Hundred Twenty Nine only) by way of interest which was to be accrued on revenue credits of company in the name of AO (Cash) O/o GMTD Bijnor.
2. The CSC in charge Shri O.P. Pandey did not maintain any proper records of cheque reconciliation to insure and keep a watch on the clearance of remitted cheque to the bank and its credit to the BSNL account in time. Also no record for take over/ make over register logbook for daily details of unremitted cash balance made over to chest for safe custody."
5. Departmental enquiry was initiated against applicant-petitioner and Enquiry Officer after conducting an enquiry including oral enquiry submitted report. Charge alleged against applicant-petitioner was found proved. Applicant-petitioner submitted his representation dated 17.11.2011. Upon consideration of entire material, Disciplinary Authority, i.e. Senior G.M.T.D., Bijnor passed order dated 1.12.2011 whereby penalty of reduction to lower stage in the time scale of pay for a period of 6 (six) months, with further directions that the employee will not earn increments of pay during the period of such reduction and on expiry of above period, the reduction will not have the effect of postponing the future increments of his pay.
6. Aforesaid order dated 1.12.2011 was allowed to become final for want of further challenge by applicant-petitioner.
7. Subsequently, a revised order dated 18.7.2012 came to be passed by Senior G.M.T.D. Bijnor whereby penalty of reduction to 2 (two) stage lower in the time scale of pay for a period of 6 (six) month with further directions that the employee will earn increments of pay during the period of such reduction and on expiry of above period, the reduction will not have the effect of postponing the future increments of his pay against Shri S.K. Agarwal JTO O/o GMTD Bijnor was imposed. Date of imposition of penalty was to remain the same as already communicated, vide order dated 1.12.2011.
8. Ultimately, applicant-petitioner superannuated from his services on 28.2.2014. Even though under Rules of Telecom Department, retiree is required to submit his pension papers eight months in advance but for reasons best known to applicant-petitioner, he submitted his pension papers only after his retirement, i.e., on 18.3.2014.
9. After applicant-petitioner had superannuated from his services, it was discovered that there was wrong fixation of pay, which was fixed at Rs.37,740/- on 19.2.2004. Accounts Branch raised an objection regarding wrong fixation of pay of applicant-petitioner. Consequently, an order dated 9.5.2014 came to be passed by G.M.T.D. Bijnor, whereby pay of applicant-petitioner was re-fixed at Rs.36,640/-with effect from 1.1.2007 as provided for in the order dated 9.5.2014 itself. For ready reference, scheme provided for re-fixation of pay of applicant-petitioner in order dated 9.5.2014 is reproduced herein below:-
" 1. Name of Employee =Suresh Kumar Agarwal
2. HRMS No. =197504886
3. Designation = JTO
4. Existing Pay as on 01.01.2007 =12475/-
5. Date of 1st Promotion =01.10.2006
6. Date of 2nd Promotion =01.08.2012 Period Existing Pay Scale in 1st PRC Pay scale in 2nd PRC (68.8%) Pay scale in 2nd PRC (78.2% ) Notional Fixation in IInd PRC 68.8% Pay Fixation in IInd PRC 78.2% Remark 11875-300-17275 20600-46500 20600-46500 24900-50500 01.01.07 12475/-
(27380/-) 28900/-
-
-
-
01.10.07
-
28210/-
29770/-
-
-
-
Due to DNI October 01.10.08
-
29060/-
30670/-
-
-
-
01.10.09
-
29940/-
31590/-
-
-
-
01.10.10
-
30840 32540/-
-
-
-
01.10.11
-
31770 33520/-
-
-
-
01.08.12
-
32730 34530/-
1040/-
(33720/-) 35570/-
Due to TBP w.e.f. 01.08.2012 01.08.13 (34740/-) 36640/-
The DNI of the officer in the scale 24900-50500 has been fixed as August of each year."
10. Thereafter, again an objection was raised and consequently, pay of applicant-petitioner was again revised to Rs.34,500/- in place of Rs.35,570/-. For ready reference, tabulation contained in order dated 23.7.2014 is reproduced herein below:-
"1. Name of Employee =Suresh Kumar Agarwal
2. HRMS No. =197504886
3. Designation = JTO
4. Existing Pay as on 01.01.2007 =12475/-
5. Date of 1st Promotion =01.10.2006
6. Date of 2nd Promotion =01.08.2012 Period Existing Pay Scale in 1st PRC Pay scale in 2nd PRC (68.8%) Pay scale in 2nd PRC (78.2% ) Notional Fixation in IInd PRC 68.8% Pay Fixation in IInd PRC 78.2% Remark 11875-300-17275 20600-46500 20600-46500 24900-50500 01.01.07 12475/-
(27380/-) 28900/-
-
-
-
01.10.07
-
28210/-
29770/-
-
-
-
Due to DNI October 01.10.08
-
29060/-
30670/-
-
-
-
01.10.09
-
29940/-
31590/-
-
-
-
01.10.10
-
30840 32540/-
-
-
-
01.10.11
-
31770 33520/-
-
-
-
01.08.12
-
(31770/-) 33520/-
930/-
(32700/-) 34500/-
Due to TBP w.e.f. 01.08.2012 01.08.13 (33690/-) 35540/-
11. After aforesaid orders have been passed, Department released gratuity and commuted value of pension amounting to Rs.16,36,848/-, vide Bank Draft dated 8.9.2014 which was received by applicant-petitioner on 23.9.2014. Aforesaid bank draft was misplaced and, therefore, applicant-petitioner submitted an application on 26.9.2014 for issuance of duplicate bank draft. Duplicate bank draft of above noted amount was released in favour of applicant-petitioner on 8.11.2014.
12. In respect of his grievances, applicant-petitioner is alleged to have represented before Department, vide letters/representations dated 4.5.2016 and 6.12.2016.
13. Feeling dissatisfied with the conduct of Department and also revision of his pay as noted above, applicant-petitioner approached Tribunal by means of above mentioned OA for following reliefs:-
" (A) Issue direction to respondents to return the amount of Rs.1,69,955/- alongwith interest, recovered from the retiral benefits of the petitioner in the garb of excess payment due to wrong fixation of pay of the petitioner on 01.07.2007 and on 01.08.2012. (B) Issue direction to respondents for payment of interest on delayed disbursement of gratuity as well as commuted persion of the petitioner. (C) Order dated 09.05.2014 as well as order dated 23.07.2014 of respondent NO.3 may be quashed and last drawn salary may be fixed as Rs.37,740/- (D) Issue direction to respondents for fixation of last drawn salary of applicant as Rs.37,740/-. (E) Such relief as may be deemed proper be also granted in the aforesaid circumstances by the Hon'ble Tribunal."
14. OA filed by applicant-petitioner was contested by Department and accordingly they filed a detailed counter affidavit disputing claim of applicant-petitioner. Apart from above, it was also pleaded that applicant-petitioner has approached Tribunal beyond period of limitation and no application explaining delay was filed, therefore, OA is barred by limitation, and is liable to be dismissed on this ground alone. If it was further pleaded that applicant petitioner has not approached Tribunal with clean hands as factum regarding orders dated 1.12.2011 and 18.7.2012 whereby pay of applicant-petitioner was re-fixed consequent upon punishment imposed upon him was not disclosed. Department urged that since applicant-petitioner has not approached Tribunal with clean hands, he is not entitled to any relief from Tribunal.
15. Applicant-petitioner filed a rejoinder affidavit whereby he rejoined the averments made in OA.
16. Tribunal upon consideration of material on record and evaluation of submissions raised, arrived at the conclusion that applicant-petitioner is not entitled to any relief and OA is liable to be dismissed. Consequently, OA filed by applicant-petitioner was dismissed by Tribunal, vide Judgment and order dated 4.9.2019. Aggrieved by aforesaid Judgment and order, applicant-petitioner has now approached this Court by means of present writ petition.
17. Mr. Arun Kumar Singh Deshwal, learned counsel for petitioner has challenged impugned Judgment and order dated 4.9.2019 passed by Tribunal by submitting that same is manifestly illegal and arbitrary, therefore, liable to be quashed by this Court.
18. Elaborating his arguments learned counsel for petitioner submits that findings recorded by Tribunal are manifestly illegal, perverse and erroneous. Consequently, conclusion drawn by Tribunal cannot be sustained. He urged that applicant-petitioner had approached Department, vide representations dated 4.5.2016 and 6.12.2016, therefore, there was no deliberate delay or laches on part of applicant-petitioner. Consequently, OA filed by applicant-petitioner could not have been dismissed on the ground of limitation. He then submits that case of applicant-petitioner was squarely covered by Judgment of Apex Court in State of Punjab and others Vs. Rafiq Masih (White-washer), 2015 (4) SCC 334, Bharat Shanchar Nigam Ltd. and three others Vs. Hukum Singh and another, ...................Mahendra Pratap Singh Vs. State of U.P. and others, 2011 (6) ADJ 344 (DB) (LB). He contends that since wrong fixation of pay was not attributable to applicant-petitioner, therefore, same could not be recovered. Referring to prayer no. (b) in OA, learned counsel for applicant-petitioner submits that admittedly, applicant-petitioner superannuated from his services on 28.2.2014 whereas amount pertaining to his gratuity- cum-commutation of pension was released, vide cheque dated 8.11.2014. As such, Department is liable to pay interest on aforesaid amount for delayed payment. He also submits that finding recorded by Tribunal that applicant-petitioner has not specifically stated about orders dated 1.12.2011 and 18.7.2012, is erroneous inasmuch as aforesaid facts were not such facts which were necessary for deciding the issues which arose for determination. Law is well settled that concealment of facts means concealment of material facts relevant to the controversy. As orders dated 1.12.2011 and 18.7.2012 were not material facts, therefore, applicant-petitioner cannot be held guilty of concealing material facts.
19. Per contra, Mr. B.K. Singh Raghuvanshi, learned counsel representing respondents has supported impugned Judgment and order passed by Tribunal on the strength of findings recorded therein as well as observations made therein.
20. Upon perusal of impugned Judgment, we find that Tribunal concluded that applicant-petitioner has filed O.A. beyond period of limitation. Tribunal has referred to Section 21 of Administrative Tribunals Act, 1985 which reads as under:-
"21. Limitation- (1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of subsection (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months; (2) Notwithstanding anything contained in sub-section (1), where-
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (a) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
21. In reference to aforesaid provisions, Tribunal concluded that O.A. has been filed in the year 2017 challenging orders dated 9.5.2014 and 23.7.2014. As no delay condonation application has been filed, delay in filing OA cannot be condoned and therefore Tribunal rightly dismissed OA filed by applicant petitioner as barred by limitation.
22. Tribunal further held that applicant-petitioner is guilty of concealing material facts as no details regarding order dated 1.12.2011 as modified by order dated 18.7.2012 has been mentioned in OA. Admittedly, vide aforesaid orders, punishment was imposed upon applicant-petitioner and they did have the effect of altering the pay scale of applicant-petitioner. This was a material fac. The wrong fixation was found due to mistake in effecting this punishment.
23. Apart from above, Tribunal further concluded that claim raised by applicant-petitioner regarding delayed payment of gratuity and commuted pension is misconceived inasmuch as Rules of Telecom Department required that a retiree would submit his pension papers eight months in advance from date of superannuation. Applicant-petitioner superannuated from his services on 28.2.2014 but submitted pension papers only after his retirement on 18.3.2014. As such, Department was not liable to pay interest on delayed payment of gratuity and commuted pension.
24. Apart from above, Tribunal repelled the contention of applicant-petitioner that he is entitled for two increments, i.e., one increment for time bound promotion and another for next increment as he gave his option for time bound promotion from date of his notional increment as per Circular dated 23.6.2009. Tribunal further observed that applicant has not been able to establish his case for wrong fixation as aforesaid Circular does not support the contention of applicant-petitioner.
25. Lastly, Tribunal has come to the conclusion that applicant-petitioner is not entitled to the benefit of Judgment of Apex Court in the case of Rafiq Mashih (white-washer) (supra) as recovery has already been made. Tribunal has also observed that applicant-petitioner has himself given his consent for making recovery. As such, on the aforesaid findings, Tribunal dismissed claim petition filed by applicant-petitioner.
26. Having gone through the Judgment and order dated 4.9.2019 given by Tribunal, we specifically asked learned counsel for petitioner to point out illegality or perversity in the findings recorded by Tribunal as noted above. However, learned counsel for petitioner only insisted that in view of Judgment of Apex Court in case of Rafiq Mashih (white-washer) (supra), no recovery can be made. Once petitioner himself has given his consent for making recovery which fact has not been disputed in the entire writ petition, we do not find any good ground to interfere in writ petition.
27. Writ petition lacks merit. It is, accordingly, dismissed.
Order Date :- 21.11.2019 Ram Murti