Central Administrative Tribunal - Mumbai
Somshekar Kashinath Babaladi vs M/O Finance on 31 July, 2024
1 OA No.145/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.145/2014
Date this Wednesday the 31st day of July, 2024.
CORAM: Ms. Harvinder Kaur Oberoi, Member (J)
Mr. Shri Krishna, Member (A)
Shri Somshekhar Kashinath Babaladi
Age 65 years,
Retired Superintendent of Central Excise,
Thane-II Commissionerate,
R/at 1A/201, Geeta Arcade, Shital Nagar,
Mira Road (East), Dist. Thane 401 107. ... Applicant
(By Advocate Shri V.P. Shirke)
VERSUS
1. Union of India,
Through the Secretary,
Ministry of Finance, Department of
Revenue, Central Board of Excise &
Customs, North Block, New Delhi 110 001.
2. Commissioner of Central Excise
Thane II Commissionerate,
th
4 Floor, Navparbhat Chambers, Ranade Road,
Dadar (West), Mumbai 400 028. ... Respondents
(By Advocate Shri N.K. Rajpurohit )
ORDER
Per: Shri Krishna, Member (A)
By way of present OA, the applicant a retired 2 OA No.145/2014 th Government servant has challenged the order dated 06 August, 2013 whereby a penalty of forfeiture of the entire monthly pension and entire gratuity permanently has been imposed under Rule 9 of the CCS (Pension) Rules, 1972. The penalty has been imposed in pursuance to the Charge nd Memorandum dated 02 September 2008 wherein the following charge was leveled against him:
ARTICLE That the said Shri Somshekhar Kashinath Babladi, (hereinafter referred as Sh. S.K. Babladi), Suprintendent [ Reted. ), has fraudulently claimed and availed the concessions/benefits of reservation which are available only to the candidates belonging to "Scheduled Tribes", without actually belonging to the said category, for his initial appointment in the year 1976 as Inspector [OG] Central Excise and subsequent promotion in the grade of superintendent Central Excise in the year 1991. The said Sh. S.K. Babladi, actually belonging to the caste 'Hindu Golla' which is notified to be 'Other Backward Class (OBC)' vide notification no. BC- 12016/34/76-SCT-
V dated 27.07.1977 issued by Ministry of Home Affairs, Govt. of India, has failed to declare his correct caste status and instead fraudulently continued to enjoy the benefit of 'Scheduled Tribes status till his voluntary retirement on 30.09.2004 [A.N] from Central Excise Cornmissionerate, Thane- II, Mumbai.
3 OA No.145/2014
2. Thus, by the aforesaid acts of commission and omission, Shri S. K Babladi has failed to maintain absolute integrity and acted in a manner which is unbecoming of a Govt. servant thereby contravened the provision of Rule 3(1)(i) and 3(1)(iii) of CCS (Conduct) Rules, 1964".
2. Facts in brief are that;
2.1 The applicant belongs to the Hindu caste Golla. As per the applicant, this caste 'Golla' is a traditional tribal caste recognized as a 'Nomadic Tribes' in the State of Karnataka. Qualification vice, the applicant had completed his Bachelor of Science (B.Sc.) in 1969 and Master's Degree in 1971 from the Karnataka University, Dharwad. He was enrolled in the Regional Employment Exchange at Dharwar in 1973. The applicant had mentioned his caste as Golla stating that he belongs to the Nomadic Tribes community. 2.2 On requisition from the Central Excise Department, the applicant was sponsored by the Regional Employment Exchange in the year 1976. On his sponsorship by the Employment Exchange, the Central Excise Collectorate, Mumbai sent a call letter to the applicant to participate in the selection for appointment as Inspector. The applicant then 4 OA No.145/2014 underwent a written and physical test and thereafter subjected to an interview. As per the applicant, his case was processed on the basis of the information sent by the Employment Exchange and therefore no fault in misrepresenting his caste can be attributed to him. The applicant was selected for the th post of Inspector vide order dated 10 June 1976. According to the applicant, he was considered an ST candidate and granted age relaxation. Although, no orders or any document exist or has been filed by him.
2.3 The applicant in his pleadings has submitted that at the time of interview he stated that he belongs to Golla caste. The interviewer was from Mysore and he remarked that Golla community is considered as ST in Mysore and Bangalore. The applicant claims that he could not understand the difference between the Nomadic Tribes and Scheduled Tribe and agreed to the remark of the interviewer.
It would be pertinent to note that none of the documents pertaining to these events before the joining of the applicant are available.
5 OA No.145/20142.4 After joining, the applicant was required to fill out the attestation form. In the attestation form to the question "
Are you a member of SC/ST? He has answered "No, but Nomadic Tribes, Golla".
2.5 In 1979, a seniority list of Inspectors, was published in which the caste of the applicant was indicated as ST. He was promoted to the next higher post of th Superintendent of Central Excise on 26 June 1991. The promotion was granted considering him as an ST candidate against a reserved post. Subsequently, due to the applicant's wife being unwell, he submitted his application for voluntary retirement in June 2004.
rd 2.6 On 23 June 2004, the applicant received a letter informing him that the Joint Commissioner (P&V), Central Excise, Mumbai -I had enquired concerning the applicant's caste status and that in the Service Book, his caste is mentioned as "Hindu Golla" without mentioning the same as ST caste. Clarification was sought from the applicant as to how his caste was shown as ST since the caste certificate was 6 OA No.145/2014 not available in the Service Book. The applicant did not reply th to this letter. On 13 September 2004, he received another letter requesting him to submit his caste certificate. His application for voluntary retirement was accepted and he was th released by the order dated 30 September 2024. However, in the release order it was stated that the applicant may produce caste certificate so that necessary action for his pensionary benefit and other emoluments due for voluntary retirement can be taken. Gratuity and commutation of pension were also not released. Ultimately provisional pension was st sanctioned and arrears were paid on 01 October 2006.
nd Charge Memorandum was issued on 02 September 2008. 2.7 The applicant has challenged the disciplinary proceedings primarily on the maintainability of the Charge Memorandum. He submits that the Charge Memorandum is nd th dated 02 September 2008 and the penalty dated 06 August 2013 is void and violating Rule 9 of CCS (Pension) Rules, 1972. According to the counsel appearing on behalf of 7 OA No.145/2014 the applicant under Rule 9, the disciplinary proceedings shall not be in respect of any event which took place more than four years before its institution. The charge-sheet was issued under Rule 9, therefore, the respondents are required to satisfy the condition under Rule 9(2)(b)(ii). 2.8 A mere perusal of the charge memorandum would show the charge alleged against the applicant is (I) claiming and availing concessions/benefits of reservation for initial appointment in the year 1976 and (ii) claiming and availing the concession/benefits of reservation at the time of promotion in the grade of Superintendent of Central Excise in the year 1991. Since both events of 1976 are beyond the four years period envisaged under Rule 9. Thus, the Charge Memorandum is violative of Rule 9 and, therefore, liable to be quashed and set aside.
2.9 The Inquiry officer in his report has proved the charges against the applicant. However, he recommended as follows:
"....However the Disciplinary Authority may like 8 OA No.145/2014 to consider the CO's submission that the inquiry proceedings have been initiated against him after a period of over four years after the event in respect of which this inquiry has been instituted [Rule 9 (2)(b)(ii) of CCS (Pension) Rules, 1972 may be referred)"
2.10 The Disciplinary Authority sought the UPSC's advise. UPSC advised that this is a case of continuous cause of action. Counsel for the applicant countering the UPSC advice argued that the term 'event' used in Rule 9 is of the event of a particular date. The concept of the continuous cause of action cannot apply to an event.
2.11 Further, counsel stated that the impugned order of punishment was passed by the Disciplinary Authority solely based on the advice of the UPSC and ignoring the comment of the Inquiry Officer. As per the counsel, once the Disciplinary Authority had accepted the IO's report, he ought to have considered the comment made by the Inquiry Officer concerning the Charge Memorandum being beyond the period of four years.
3. The respondents have filed their reply and have relied upon the settled case law concerning the limited powers of the Tribunal while adjudicating disciplinary matters. It has 9 OA No.145/2014 been stated that the scope of judicial review is limited, the court should not interfere with administrative decisions unless it is illogical or shocking to conscious of the Court. On merits, it was stated that the Department started an inquiry rd about the applicant's caste claim vide letter dated 23 June 2004. On coming to know of the same, the applicant th submitted his application for voluntary retirement on 29 June 2004. Although the Department accepted his voluntary th retirement on 30 September 2004, but with a condition that he may produce a 'Caste Certificate' as had already been called for from him by the respondents. The caste of the applicant i.e. Hindu Golla falls in OBC category and not ST as claimed by him. Since the applicant did not produce the caste certificate, he could not have availed benefits of the reserved category, as such the applicant deserves the punishment.
4. Concerning the arguments of the applicant that the Charge Memorandum was beyond four-years period as specified under Rule 9, the respondents stated that the Departmental inquiry is within the prescribed period. It was 10 OA No.145/2014 stated that the applicant, who was availing the benefit of belonging to ST category is liable to produce a caste certificate as and when it is called for. The cause of action thus arose when the applicant was called to produce the same in 2004. The Department approached the District Social Welfare th Officer, Gulbarga who issued a letter dated 29 June, 2005 clarifying that this Hindu 'Golla' caste was not an ST but rather an OBC caste. The Charge Memorandum issued in 2004 was thus not beyond four years of the event rather it was within four years of events/revelation of facts. The applicant th had taken voluntary retirement on 30 September 2004. The same was allowed only conditionally. After seeking information from the District Social Welfare Officer, Gulbarga, th who clarified only on 29 June 2005. As such, the Charge nd Memorandum dated 02 September, 2008 is within the time frame prescribed under the rules. Respondents also stated that the applicant was very well aware that he does not belong to the ST category. The applicant had accepted the promotion 11 OA No.145/2014 knowing very well that it was against an ST vacancy. If the applicant truly believed that he is from 'Nomadic tribes' then he ought to have refused the same. The respondents further stated that he opted for voluntary retirement only when he came to know that the Department had initiated a process to verify his caste status. In order to mitigate damage to his service, he sought voluntary retirement which was due to the departmental verification and not due to family problems.
5. Further, it was stated that he requested seeking promotion as Assistant Commissioner in Group 'A' when a ST candidate junior to him was promoted in the year 2002. Therefore, he cannot now state that he was unaware of his being treated as an ST even though his caste was not in the ST category. He preferred to remain silent and has enjoyed the benefits till his retirement.
6. The counsel for the applicant has relied on the decision of the Hon'ble Apex Court in the case of Brajendra Singh Yambem Vs. Union of India & Another, (2016) 9 SCC 20 12 OA No.145/2014 th decided on 26 August, 2016 and has referred to para 38 of the judgment which reads as under:
"...38. It is a well established principle of law that if the manner of doing a particular act is prescribed under any statute then the act must be done in that manner or not at all. The aforesaid legal position has been laid down by this Court in the case of Babu Verghese & Ors. v. Bar Council of Kerala & Ors.[7], the relevant paragraphs of which are extracted hereunder :
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law." The aforesaid important aspect of the case should have been considered by the Division Bench of the High Court instead of mechanically accepting the argument advanced on behalf of the respondents 13 OA No.145/2014 that the case of the appellant squarely falls under Rule 9(2)(b)(i) read with Rule 9 (2)(b)(ii) of CCS (Pension) Rules, 1972. Therefore, the findings recorded by the Division Bench in the impugned judgment are erroneous in law and are liable to be set aside".
7. We have heard the learned counsel for the parties and have perused the pleadings and documents available on record.
8. A valiant attempt was made by the counsel appearing on behalf of the applicant to prove the innocence of the applicant. He stated that the applicant while filling the attestation form had clarified that the caste 'Golla' is a 'Nomadic Tribes'. The respondents on their own considered him as a Scheduled Tribe candidate and continued to treat him as one. He, therefore, stated that the applicant cannot be faulted for the misunderstanding of the respondents.
9. On the other hand, the counsel for the respondents vehemently argued that the benefits for the Scheduled Caste and Scheduled Tribe candidates are provided under the constitutional scheme. No doubt, the mistake was also on the part of the respondents for considering the applicant as an ST 14 OA No.145/2014 candidate. However, it was the applicant's duty also to inform the respondents about the mistake. The applicant has continued to benefit from his ST status for which he was not at all entitled. On the question of delay in filing of Charge Memorandum dated nd 02 September, 2008 under Rule 9 of CCS (Pension) Rules, the counsel argued that there is no delay since the applicant before retirement itself had been directed to produce the caste/ST certificate. The applicant instead of producing the same, preferred to take voluntary retirement in September 2004. The voluntary retirement was also allowed subject to the condition that he would produce the certificate duly verified by the Caste Scrutiny Committee. The disciplinary proceedings under Rule 9 were initiated within four years of the same. Non-submission of the required certificates amounts to refusal on the part of the applicant. Therefore, it cannot be said that there was any delay.
10. Rule 9(2)(b)(ii) of CCS (Pension) Rules, 1972 says as under:
"9 (2) (b) provides that the Departmental proceedings, if not instituted while the 15 OA No.145/2014 Government servant was in service, whether before his retirement, or during his re-employment -
(ii) shall not be in respect of any event which took place more than four years before such institution, and
11. In the present case inquiry was initiated into the caste status of the applicant in June 2004. Only after that applicant submitted his application for VRS. The same was accepted conditionally w.e.f 30.09.2004. The charge memorandum was issued on 02.09.2008, well before expiry of four-year period. As such the charge memorandum cannot be held illegal on this ground.
12. The counsel for the respondents has relied upon the judgment of this Tribunal in in OA No.19/2013 in the case of Shri Sadanand Raghunath Gharat Vs. Union of India & Ors. decided th on 04 January, 2019. In that case also in similar circumstances the tribunal was pleased to reject the OA.
13. In Chairman And Managing Director Food Corporation of India vs Jagdish Balaram Bahira, (2017)8 SCC 670 decided on 6 July, 2017 it has been held that Burden of proving that person 16 OA No.145/2014 seeking admission in educational institution/employment under reserved category belonged to that category, lies on him/her who made such claim on basis of caste certificate. Such person presumed to be aware of caste/tribe to which he/she belongs and must establish his/her claim - on failure to do so, claim would be regarded as fraudulent. Further Hon'ble Apex court has held that action to withdraw the benefits availed on the basis of the false claims as legal.
14. Given the above, we find that the applicant deserves the punishment imposed on him. The action of the respondents is correct and no fault can be attributed to them. Therefore, we do not find any illegality in the impugned order. Resultantly, OA is dismissed. Pending MAs, if any, also stand closed. No costs.
(Shri Krishna) (Harvinder Kaur Oberoi)
Member (A) Member (J)
dm.