Central Administrative Tribunal - Mumbai
Date Of Decision : September 04 vs The General Manager on 4 September, 2012
1 T.A. NO. 2001/2012 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI T.A.2001/2012 Date of decision : September 04, 2012 CORAM:-Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A) Bimal Roy Chowdhury Assistant (Personnel) Mineral Exploration Corporation Limited, Seminary Hills, Nagpur - 06. ... Applicant ( By Advocate Shri R.K. Shrivastava ) Versus 1. The General Manager, M.E.C.L., Seminary Hills, Nagpur 6. 2. The Chairman-cum-Managing Director, M.E.C.L., Seminary Hills, Nagpur 6. ... Respondents ( By Advocate Shri R.G. Agarwal ) O R D E R (Oral) Per : R.C. Joshi, Member (A)
In this Transfer Application, the Applicant is seeking the following reliefs:
a) call for the original file, record and papers for perusal and perusal of the same be further pleased;
b) to quash the enquiry report, order of penalty dated 30.09.1997 and the order of Appellate Authority dated 20.12.1997;
c) to stay the effect and operation of the orders dated 30.09.1997 passed by the respondent No.1 and the order dated 20.12.1997 passed by the respondent no.2 till the decision of the present petition;2 T.A. NO. 2001/2012
d) to stay specifically the maximum recovery and the penal interest in accordance with the orders dated 30.09.1997 and 20.12.1997 during the pendency and till the decision of this petition;
d-1) to quash the impugned order of transfer and posting dated 09.01.1998 being malafide and illegal;
d-2) to stay the impugned order of transfer and posting dated 09.01.1998 during the pendency and till the decision of the present petition.
e) to saddle exemplary costs on the respondents;
f) to grant any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case and in the interest of justice.
2. We have gone through the pleadings and carefully perused the documents on record and have extensively heard Shri R.K. Shrivastava, learned counsel for the Applicant and Shri R.G. Agarwal, learned counsel for the Respondents.
3. The Applicant while working as an Assistant (Personnel)in the Mineral Exploration Corporation Limited (in short 'MECL'), a Government of India Undertaking, was charge sheeted vide dated 30.01.1997 and the charge sheet contained the following Article of charge, which is reproduced herein below for convenience:
Memorandum Shri Bimal Roy Chowdhury, Asstt. (Pers.), MECL, Nagpur is hereby required to state as to why disciplinary action should not be initiated against him under the MECL Discipline & Appeal Rules by which he is 3 T.A. NO. 2001/2012 governed on account of the following charges:
That as per Rules 4.1.5 of MECL House Building Advance Rules an amount of Rs.97,300/-(Rs. Ninety Seven Thousand Three Hundred only) was sanctioned to Shri Bimal Roy Chowdhury, Asstt. (Pers.) as HRA vide order No. 22(594)/ HBA/BRC/89/3522 dt. 15.11.1989 for purchase of flat at Pushp Sandhya Apartments, Katol Road, Gittikhandan, Nagpur. The amount of HBA was released and drawn by Shri Bimal Roy Chowdhury as under:
S.N. Date of release Amount (Rs.) Cheque No. and date of instalment
1. 23.11.89 38,920/-958002, 23.11.1989
2. 30.10.90 38,920/-317754, 01.11.1990
3. 27.12.90 19,460/-046246, 28.12.1990 As per terms and condition No. xvi of the aforesaid sanction order dated 15.11.1989, the amount so drawn or the instalment so drawn by the applicant should be utilised for the purpose of purchase of flat, otherwise the amount together with interest shall be refunded to the company forthwith.
As per Rule 8.4 (a) of MECL HBA Rules, Shri Bimal Roy Chowdhury was required to effect equitable mortgage in favour of the company of the flat purchased with the assistance of HBA to secure the principle amount of advance, interest and all other costs, charges and expenses incurred for the purpose.
In accordance with provisions of Rule 15.3 of HBA Rules, if any breach of these rules is committed or attempted to be committed the company is entitled to immediately recall the outstanding advance alongwith accrued interest and to enforce its security or take appropriate action.
Shri Bimal Roy Chowdhury has neither submitted required documents for the mortgages of the flat in support of utilisation of HBA nor refunded the amount with interest till date.
It is thus alleged that Shri Bimal Roy Chowdhury has not utilised the HBA for the purpose for which it was drawn but with ulterior motices and malfaide 4 T.A. NO. 2001/2012 intention has defrauded the company for pecuniary.
The aforesaid act on the part of Shri Bimal Roy Chowdhury amounts to misappropriation of company's funds and also deemed to have caused an act subversive of discipline & good behaviour and amounts to misconduct withing the meaning of Rule 5.1.1, 5.1.5 and 5.1.20 of MECL Discipline & Appeal Rules.
5. A perusal of the charge sheet reveals that the Applicant had obtained a House Building Advance of Rs.97,300/-from the Respondents ostensively for the purchase of a flat. Since the Applicant did not submit any documents about the purchase of the flat and did not also refund the amount involved in the House Building Advance, the Respondents recall the entire amount of loan advanced @ Rs. 97,300/-in accordance with Rule 15.5 of the HBA Rule. However, the Applicant failed to refund the amount and as a consequence the Applicant committed a misconduct under Rule 5.1.1, 5.1.5 and 5.1.20 of MECL Discipline & Appeal Rules.
6. The Applicant in his reply did not deny the receipt of the House Building Advance of Rs.97,300/but contended that the builder had delayed the construction of the apartment and in delivering the possession of the same and, therefore, violated the terms of the agreement with the Applicant. The Applicant, therefore, cancelled the booking and had received the refund amount from the builder which was retained by the Applicant.
7. In the meanwhile, a Departmental Enquiry was 5 T.A. NO. 2001/2012 ordered and the Respondents appointed an Inquiry Officer who gave reasonable opportunity to the Applicant to give his defence and submitted his report vide dated 27.07.1997 holding the charges levelled against the Applicant as proved. The Disciplinary Authority after considering the report of the Inquiry Officer and the facts and circumstances of the case, issued the impugned order dated 30.09.1997 (Annexure- M) imposing the 'penalty of reduction of the Applicant to the lower post of Upper Division Clerk'. Further, the HBA was also ordered to be recovered from the Applicant with interest at the rate paid by MECL on Commercial Over Drafts borrowings plus 2%. The Applicant preferred an appeal against the order passed by the Disciplinary Authority vide dated 11.08.1997 which was considered by the Appellate Authority. The Appellate Authority, thereafter, dismissed the appeal preferred by the Applicant vide his order dated 20.12.1997 confirming the penalty imposed by the Disciplinary Authority vide dated 30.09.1997.
8. It was the contention of the Respondents that the Applicant, thereafter, filed Writ Petition No.10/1998 in the Hon'ble High Court at Nagpur Bench who granted status quo till 14.01.1998. Thereafter, the Hon'ble High Court vide order dated 18.02.1998 directed that the Petitioner is not pressing for stay of his reduction to the lower post and as the 6 T.A. NO. 2001/2012 Petitioner was transferred vide order dated 09.01.1998, the said transfer order came to be stayed until further orders. It was further pointed out by learned counsel for the Respondents that subsequently the Applicant had not objected to his transfer and continued to work at respective place of his posting and retired on superannuation on 30.06.2012. It was, therefore, submitted by the Respondents that the reliefs claimed in the Writ Petition had become infructuous since the penalty imposed by the Respondents of reduction of the Applicant to the lower post of Upper Division Clerk had been accepted by the Applicant during pendency of the Petition itself as recorded by the Hon'ble High Court vide order dated 18.02.1998 (Annexure R-1). Regarding the recovery of the amount of House Building Advance misappropriated by the Applicant with bank rate on overdraft + penal interest of 2%, it was stated that the Applicant had agreed to the same under the various terms and conditions in accordance with the letter of sanction of the House Building Advance dated 15.11.1989.
9. We have carefully considered the contentions raised by the Applicant as well as the Respondents. We have also perused the sanction order conveying the grant of House Building Advance to the Applicant vide dated 15.11.1989. The said sanction letter clearly outlines the amount sanctioned to the Applicant of 7 T.A. NO. 2001/2012 Rs.97,300/-and clearly provides that the monthly instalments payable to the Company shall be paid in 223 instalments of Rs.700/- per month and the recovery will commence from June, 1991. The terms and conditions at clause xiv of the said sanction letter clearly prescribed the following amount reproduced herein below for convenience:
(xiv) The amount so drawn or the instalment so drawn by the applicant, shall be utilised for the purpose of purchase of flat within one month of the drawal of the amount so disbursed otherwise the amount together with interest shall be refunded to the Company forthwith.
10. On careful consideration of the terms and conditions vide sanction letter dated 15.11.1989, it would at once be noticed from clause 14 that the House Building Advance sanctioned to the Applicant and so drawn by him was to be utilised for the purpose of purchasing the flat within 1 month of the drawal of the amount so disbursed otherwise the amount together with interest to be refunded to the company forthwith. It was further mentioned in Clause xv of the said sanction letter that If the amount of advance is retained beyond one month without completing the transaction as laid down under the above conditions or if the acquisition of the flat and mortgage of the flat is not completed within 3 months from the date of release of 1st instalment/full amount of House Building Advance and required documents are not submitted immediately 8 T.A. NO. 2001/2012 thereafter, the normal rate of interest will be charged for the first month and for the period in excess of one month, penal rate of interest, as fixed by the company, shall be charged.
11. The Applicant had also executed a personal Bond with the Respondents in which House/flat to be purchased was specified as Flat No.A-18 in Block 'A' on ground floor of the Pushp Sandhya Scheme alongwith proportionate undivided share in the piece of property bearing Kh. No.161/1, City Survey No.516/2, Mouza Borgaon, situated as Katol Road, Tahsil and District Nagpur...... This personal bond was executed by the Applicant on 17.11.1989. Therefore, the Applicant was clearly aware that the amount of House Building Advance drawn by him was to be utilised for purchase of the flat mentioned in the said bond within a specified period. We cannot now consider the Applicant's plea that the builder from whom he was purchasing the flat, had delayed the construction and, therefore, he wanted to purchase another flat in a different building and, hence, he had retained the said loan amount without refunding it to the Respondents. The Rules in this regard also specified that in case if the Applicant was unable to purchase the said flat for which he had executed a personal bond he ought to have refunded the amount of House Building Advance taken by the Applicant without retaining him with himself for which he ought 9 T.A. NO. 2001/2012 to have taken a fresh sanction from the Respondnets after returning the House Building Advace drawn by him vide sanction letter dated 15.11.1989.
12. In view of above, therefore, the Applicant has been rightly alleged to have committed a misconduct for which the Applicant is himself responsible.
13. However, a perusal of the record reveals that the above alleged misconduct was committed by the Applicant in 1991. However, the Applicant was issued a charge-sheet vide dated 30.09.1997 after an unexplained delay of more than 6 years for which Respondents have not been able to give any justification before us. The delay in issuing the charge-sheet to the Applicant without any justifiable and convincing ground is fatal in the present case.
14. In view of the above, we are convinced that the penalty charges levied on the Applicant at 2% ought to be waived by the Respondents. In the result, the Original Application is allowed in part. The Respondents are directed to waive the penalty charges levied at 2% the non refund of House Building Advance in accordance with the terms and conditions of the sanction order vide dated 15.11.1989. The Respondents should recalculate the entire liability of the Applicant after considering waiver of the 2% penalty charges within one month and issue fresh orders conveying the recovery of the House Building Advance to 10 T.A. NO. 2001/2012 be recovered from the Applicant and refund the balance amount due to the Applicant within 2 months from the date of receipt of a copy of this order. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma.
dm.