Bharath Sanchar Nigam Limited vs Smt. Rajeshwari Ramesh

Jayant Patel, J.—The present petition is directed against the order dated 12-6-2015 whereby the Tribunal for the reasons recorded in the order has held that the order of recovery was bad in law and the same is set aside by observing that the applicant therein was entitled to all benefits including the terminal benefits in terms of pay fixation vide order dated 2-8-2011. The Tribunal has further directed the respondent-authorities to consider the representation of the applicant for the benefit of NEPP with effect from 1-7-2011.

We have heard Mr. Rama Bhat K., learned Counsel, appearing for the petitioners and Mr. Chandan S. Rao, learned Counsel, appearing for the respondent.

The contention raised on behalf of the petitioners was that as per the Rule 33-B(g) of Bharat Sanchar Nigam Limited (Conduct, Discipline and Appeal) Rules, 2006, if the penalty is prescribed to the lower time scale of pay, ordinarily there shall be a bar to the promotion of the employee. Further, the pay reduction was required to be maintained even after the expiry of the period. The Tribunal did not consider the said aspects properly and hence this Court may consider in the present matter.

We have gone through the order of the Disciplinary Authority. The operative portion of the order of the Disciplinary Authority reads as under:

"ORDER

I.S. Parthiban Disciplinary Authority and Area Manager (South), BSNL, DVG Road, Bangalore in exercise of the powers conferred upon me, vide Rule 34 of BSNL (CDA) Rules, 2006 hereby order that the post of Smt. Rajeshwari Ramesh be reduced from Senior Section Supervisor to Section Supervisor for a period of three years from the date of this order and the pay of Smt. Rajeshwari Ramesh is to be fixed at the minimum of the scale of Section Supervisor with immediate effect. On expiry of the penalty she may be considered for promotion subjected to the eligibility criteria."

The aforesaid order shows that penalty was prescribed for a period of three years and the pay of the respondent was to be fixed at the minimum pay scale that too for a period of three years. It was also provided that upon the expiry of the penalty, the respondent shall be considered for promotion subject to the eligibility criteria. When the Disciplinary Authority itself limited the lower pay scale for a period of three years, naturally upon the expiry of the said period the employee concerned-the respondent herein will be required to be restored in the pay scale with the post in question as existed prior to the position of the penalty. Further, as observed by the Disciplinary Authority after the expiry of the period she would also be entitled to the promotion subject to fulfilling of the eligibility criteria. The attempt made to contend that for permanent period the employee concerned-the respondent herein would remain in the minimum pay scale even after the expiry of the period of three years runs counter to the order of the Disciplinary Authority and the interpretation put forward by the petitioner cannot be accepted at all. The Tribunal has rightly found that upon the completion of three years as on 5-2-2014 when the pay scale was re-fixed in the grade of Section Supervisor, cannot be said to be illegal. The Tribunal has also found that upon the re-fixation of the pay scale vide order dated 2-8-2011, the other benefits if available in accordance with law may also be given.

In any case, if the pay was fixed and the salary was already paid, such amount cannot be recovered after retirement, when there was no misrepresentation or fraud by the employee concerned. Reference may be made to the decision of this Court in W.P. No. 3402 of 2016, dated 2-3-2016.

If the aforesaid is considered and read with the reasons recorded by the Tribunal, we do not find any case is made out for interference. Hence, the petition is dismissed.