Central Administrative Tribunal - Bangalore
T G Gaonkar vs Bharat Sanchar Nigam Ltd on 14 December, 2022
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OA.No.170/00111/2019/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00111/2019
DATED THIS THE 14TH DAY OF DECEMBER, 2022
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
T.G. Gaonkar
S/o Ganapathi Gaonkar,
Aged about 62 years,
Retd. Accounts Officer,
Office of the General Manager,
Telecom, Hubballi,
R/o: #122, Rajeevanagar,
Near: Askahsya Colony,
Vidyanagara,
Hubballi-580031. ...Applicant
(By Advocate Shri M. Raghavendrachar)
Vs.
The Chairman and
Managing Director,
Bharath Sanchar Nigam Ltd.,
Ground Floor,
Eastern Court Complex,
Near MTNL Sanchar Haat,
Janapath, New Delhi-110001. ....Respondent
(By Shri N. Amaresh, Senior Panel Counsel)
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OA.No.170/00111/2019/CAT/BANGALORE
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To set aside the order dated 18.10.2018 bearing No.15-
16/KTK-2011-VM.II vide Annexure 10 passed by the respondent, vide which a penalty of "100 % cut in pension for a period of 5 years for the service rendered in BSNL" has been imposed on the applicant, and issue further directions to draw and pay all consequential benefits with costs.
b) Pass such other order or directions as this Hon'ble Tribunal deems fit in the circumstances of the case."
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was issued a charge sheet under Rule 36 of BSNL CDA Rules, 2006 vide Memorandum No. TGG/R.36/2012-13/1 dated 19.04.2012 by GMT Bijapur Karnataka Circle. The charge sheet broadly contained the following Articles of Charges:3
OA.No.170/00111/2019/CAT/BANGALORE I. The applicant while functioning as Accounts Officer (CMTS) office of the General Manager Dharwad Telecom District Hubli has prepared manual issued slips in excel format without linking to "Sanchar Soft"
package, which is in vogue during that time in favour of M/s Rotomac Technos, BSNL Franchisee, Hubli in January 2010 in respect of CMTS products (Top up cards: 10000 TU-55/56 cards having serial numbers from 4253008080455000 to 425300808047474999 and 5000TU-110/112 cards having serial numbers from 000139220600 to 000139225599) which was activated by users before 2009. Shri T.G. Goankar has issued the topup cards worth Rs. 10,50,000/- before December 2009 but failed to remit the amount to BSNL account and as a cover up, he has issued manual issue slips in January 2010 and thereby he contravened the provision of Rule 4 (1)(a), 4 (1)(b) and 4 (1)(c) of BSNL CDA Rules, 2006.
II. The applicant has signed the CMTS stock register with false figures in respect to top up cards 55/56 and 110/112 from November 2008 to January 2010. III. The applicant has re-remitted the dishonoured cheques to bank in order to extend undue favour to the franchisee.
IV. The applicant had not maintained proper accounting system in the issue of CMTS products to franchisees in Hubli SSA."
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b) The applicant submitted his defence statement in reply to the letter dated 19.04.2012 on 20.09.2012. Initially, the charge sheet was titled as "draft charge sheet" against the applicant. Subsequently, the Chief General Manager, Maharashtra Circle on 17.05.2014 issued corrigendum stating that the draft charges to be treated as regular charge sheet.
c) The applicant submitted a detailed reply dated 23.06.2014 to this corrigendum in which he contested the conversion of the draft charge sheet to regular charge sheet by issuing the corrigendum stating that it was not in tune with letter and spirit of law. However, his representation dated 23.06.2014 was rejected by the respondents vide letter dated 25.11.2014 stating that since the corrigendum to draft charge sheet has been issued by the Disciplinary Authority, there is no illegality in the appointment of the Inquiry Officer and the Presenting Officer and thereby he was advised to appear before the Inquiry Officer as and when intimated by him.
d) Subsequently, the inquiry was conducted by the Inquiry Officer Shri S.K. Joshi, retired DGM who concluded that the charges framed against the applicant are fully proved beyond 5 OA.No.170/00111/2019/CAT/BANGALORE doubt. The report of the Inquiry Officer dated 16.11.2015, was forwarded to the applicant by General Manager Telecom/Disciplinary Authority vide letter dated 11.02.2016. The applicant submitted his detailed reply vide his representation dated 26.02.2016 to the GM Telecom Hubli.
e) The Disciplinary Authority ( CGM Karnataka Circle), again forwarded a copy of the Inquiry Report to the applicant vide letter dated 12.01.2017 with a direction to submit his further representation, if any, on the findings of the Inquiry Officer so that the same could be considered before taking a final decision in the matter. The applicant again submitted his detailed representation dated 19.01.2017.
f) Subsequently, a final order was issued by the CMD, BSNL on 18.10.2018 where the CMD, BSNL imposed a penalty of "100% cut in pension for a period of 5 years for the service rendered in BSNL" on the applicant.
g) The applicant has submitted that the GM, Bijapur only framed draft charges. Subsequently, the Chief General 6 OA.No.170/00111/2019/CAT/BANGALORE Manager, Maharashtra Circle, issued the letter to the effect that the draft charges are to be treated as regular charges. The applicant has submitted that there is no provision to rectify this defect and there is no power under the Rule to review the charges, therefore, the whole proceedings are vitiated.
h) The applicant has further submitted that the findings of the Inquiry Officer is cryptic and arbitrary and with non- application of mind and there is no discussion on the evidences. Hence the impugned orders are bad in law.
i) The applicant further submitted that he had worked between 01.01.2009 to January 2010, whereas the sales took place during 2008 and the applicant is no way concerned about those aspects. He further submitted that there is no basis to come to conclusion about the loss caused to the department. Further, in the evidence of SW-1 Shri B.G. Bandikeri, the loss is estimated to the extent of Rs. 20,000/-. Therefore, the assessment of loss has no basis and is illegal.
3. The respondents have filed their written statement wherein they have averred as follows:
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a) The applicant was an Accounts Officer, therefore, his Disciplinary Authority for imposing minor and major penalties as per BSNL CDA Rules are as follows:
Disciplinary Authority for imposing minor penalties - General Manager Disciplinary Authority for imposing major penalties - Chief General Manager
b) As per the provisions of the Rule No. 34 (3) of BSNL CDA Rules 2006, the Disciplinary Authority who is competent to impose minor penalty (i.e. GM in this case) can institute major disciplinary proceedings against an employee.
Therefore, as per provisions of the BSNL CDA Rules, 2006, Memorandum of charges was issued by GM, BSNL, Bijapur vide letter No. TGG/R-36/2012-13/1 dated 19.04.2012. The applicant vide his letter dated nil (received on 20.09.2012) submitted his reply to GM Bijapur denying the allegations.
c) The Chief General Manager, Maharashtra Circle, issued a corrigendum stating that the draft charge sheet is to be treated as a regular charge sheet. As per provisions of BSNL CDA Rules, the Disciplinary Authority has appointed Inquiry 8 OA.No.170/00111/2019/CAT/BANGALORE authority for enquiring into the truth of imputation of misconduct/charges. The Presenting Officer was also appointed.
d) The applicant represented that conversion of draft charge sheet to regular charge sheet denies fair and reasonable opportunities and indicates prejudice in the interest of the applicant. The applicant was informed that the order of CGM treating draft charge sheet as regular charge sheet and appointment of IO, PO is in order.
e) The inquiry was conducted and the applicant along with his Defence Assistant attended the inquiry proceedings. In the meanwhile, the applicant was transferred to Hubli (Karnataka Circle) on 31.07.2015. The copy of the Inquiry Report was forwarded to the applicant for submission of his representation, if any. The applicant vide his representation dated 26.02.2016 submitted his reply to the Inquiry Report provided to him. The CGM, Karnataka Circle vide letter No. INQ/3-152/TGG/2013/19 dated 12.01.2017 again forwarded the copy of the report to the applicant for submission of his representation, if any. The applicant vide his representation 9 OA.No.170/00111/2019/CAT/BANGALORE dated 19.01.2017 submitted his reply to CGM, Karnataka Circle.
f) The final order was issued by CMD, BSNL, CO, New Delhi vide letter No. 15-16/KTK/2011/VM II dated 18.10.2018.
g) The applicant in his application to the Hon'ble CAT mentions that the matter is to be placed before CMD, BSNL, CO, New Delhi who has got the power of withholding of pension. It is herewith brought to the kind notice of the Hon'ble CAT that the order for pension cut has been issued by CMD, BSNL, CO, New Delhi.
h) The applicant in his application to the Hon'ble CAT submits that CMD BSNL, New Delhi has not obtained ratification of the proposed penalty from Administrative Ministry. This statement of the applicant is false. The ratification for penalty has been obtained from Department of Telecommunications vide letter No. 68-33/2017-VIG II dated 27.09.2018. This fact has also been mentioned in the final order issued by CMD, BSNL, CO, New Delhi vide letter No. 15- 16/KTK/2011/VM II dated 18.10.2018.
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i) The denominations and the number of cards (for which fraud misconduct has been done by the applicant) are on record. The total loss as per records is Rs. 10.5 lakhs. The period of working of the applicant is already established. His lapses in performing duty is proved and documented in the final order decision issued by CMD, BSNL, Corporate office, New Delhi.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the initial memorandum dated 19.04.2012 indicated that it was a "draft" charge sheet issued against the applicant. However, the applicant, after issuance of this draft charge sheet, chose to submit his defence statement vide letter dated 20.09.2012. Subsequently, a corrigendum was issued by the Chief General Manager, Maharashtra Circle vide which it was stated that the draft charge sheet issued to the applicant may be considered as regular charge sheet. Since this order was issued by the Chief General Manager, Maharashtra Circle, who is admittedly the Disciplinary Authority of the applicant, hence there is no reason to not consider the draft charge sheet as a regular 11 OA.No.170/00111/2019/CAT/BANGALORE charge sheet and the contention of the applicant on this ground cannot be countenanced.
6. Subsequently, the Disciplinary Authority appointed the Inquiry Officer and the Presenting Officer as per the BSNL CDA Rules, 2006 and the applicant presented himself to the inquiry proceedings.
7. The Inquiry Report submitted by the Inquiry Officer gave a finding that all the charges framed against the applicant are fully proved beyond doubt. Based on this report of the Inquiry Officer, which was duly communicated to the applicant and, after considering his representations, the CMD, BSNL has issued the final penalty order.
8. Since during the pendency of the proceedings the applicant had retired on 31.01.2017, hence as per Rule 61 of the BSNL, CDA Rules 2006 the provision for retired executives would be applicable as provided under Rule 4 (2)(a). The provisions in this rule are as follows:
"(4)(2)(a) The disciplinary proceedings referred to in sub-
rule 4(1), if instituted while the absorbed employee was in 12 OA.No.170/00111/2019/CAT/BANGALORE service whether before his retirement or during his re- employment, shall, after the final retirement of the absorbed employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the absorbed employee had continued in service:
Provided that where the disciplinary proceedings are instituted by an authority subordinate to the Chairman/Managing Director, that authority shall submit a report recording of its findings to the Chairman/Managing Director."
9. As per the above rules, the CMD was the authority to impose the major penalty on a retired employee. Hence, there appears to be no error as far as the process of enquiry and imposition of penalty is concerned.
10. However, a perusal of the Inquiry Report submitted by the Inquiry Officer dated 16.11.2015 indicates that the Inquiry Officer, after recording the charges framed and recording the brief history, has simply noted the articles of charges and then given his finding on each article of charge as AGREED. In his report, there is no apparent effort to analyze the evidence made available to him during the course of the enquiry, or to consider the points 13 OA.No.170/00111/2019/CAT/BANGALORE submitted in his defence by the applicant in response to the charge sheet. The inquiry officer was required under law to give his report after noting the articles of charges, examining the evidence available to him, and analyzing the defence statement of the charged officer in relation to each of the articles of charges. The Inquiry Officer has, in a most perfunctory manner, simply noted his finding as "AGREED" after each article of charge, and recorded the following in his findings:
"From all documents, confirmations, the report of P.O., report of C.O., witnesses, it is found that the charges framed against Shri T.G. Gaonkar, A.O. MS Hubli are fully proved beyond doubt."
11. Keeping the above points in view, the report of the Inquiry Officer, having failed to elucidate the reasons based on which he has come to his conclusions, is bad in law. It should not have been accepted by the Disciplinary Authority to be the basis for imposing the final penalty on the applicant in this case.
12. Consequently, the Inquiry Report dated 16.11.2015 submitted by the Inquiry Officer Shri S.K. Joshi, and the impugned order dated 18.10.2018 issued by the Disciplinary Authority imposing a 14 OA.No.170/00111/2019/CAT/BANGALORE penalty on the applicant based on this defective Inquiry Report, are set aside.
13. The matter is remitted back to the Inquiry Officer to analyze the material evidence available on record, consider the points raised by the applicant in his defence, and submit a fresh Inquiry Report after applying his mind, and recording the reasons thereof in support of his findings.
14. Compliance shall be made by the Inquiry Officer in an expedite manner in any event not later than 8 weeks from the date of receipt of a certified copy of this order.
15. It is needless to observe that if the Inquiry Officer viz., Shri S.K. Joshi is not available, the respondents shall appoint a new Inquiry Officer to examine the matter and to prepare a fresh Inquiry Report. In case a new Inquiry Officer is appointed, then an opportunity of hearing shall also be given to the applicant. The fresh Inquiry report after recording the reasons for drawing the conclusion/findings shall be submitted by the Inquiry Officer to the competent Disciplinary Authority.
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16. With the aforesaid observations and directions, the OA stands disposed of.
17. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/