Girand Singh vs The Chairman & Managing Director, Bharat Sanchar Nigam Ltd. & Ors.

By Hon’ble Dr. Anand S. Khati, Member (A):-

Since a common question of facts and law arises in the present O.A.s, they are being disposed of through this common order. However, for the sake of brevity, O.A. No. 4036/2024 (Sone Lal vs. UOI & ors.) is being taken as the lead case with the consent of the learned counsel for the parties.

The relief(s) prayed for in the lead case, reads as under:

The applicant was appointed as Telecom Office Assistant with the respondents on 01.05.1984 and was subsequently promoted as Sr. Telecom Office Assistant. A disciplinary proceeding was initiated against him vide charge-sheet dated 11.08.2014 alleging that he had secured his appointment by furnishing a forged Scheduled Tribe caste certificate showing his caste as “Baheliya”. The applicant denied the charge and contended that the caste certificate had been duly issued by the competent authority and was genuine. An inquiry was conducted, wherein the applicant also sought certain documents in his defence. Subsequently, a disagreement note was issued by the Disciplinary Authority. By the impugned order dated 07.03.2024, a 100% permanent cut in pension along with forfeiture of gratuity was imposed upon the applicant. Aggrieved thereby, the applicant has filed the present OA seeking quashing of the impugned orders and restoration/release of his pension and retiral benefits.

Learned counsel for the applicant submitted that the applicant has challenged the impugned penalty primarily on the ground that the disciplinary proceedings were conducted in violation of the principles of natural justice and that the finding of misconduct was not sustainable, particularly when the caste certificate relied upon by him was issued by the competent authority. It was further submitted that the Disciplinary Authority, while disagreeing with the Inquiry Officer’s findings, failed to properly consider the applicant’s defence and the documents sought by him during the inquiry. Learned counsel added that the applicant has also challenged the penalty of 100% permanent cut in pension along with forfeiture of gratuity as being disproportionate, arbitrary and unjust.

Learned counsel for the applicant in support of applicant’s case has relied upon the judgment dated 16.12.2015 passed by the Hon’ble Supreme Court in Prem Nath Bali vs. Registrar, High Court of Delhi & Anr., the order dated 23.12.2022 in OA No. 3815/2022 of the Principal Bench of this Tribunal. He has further relied upon the judgments of the Hon’ble Supreme Court in Kumari Madhuri Patil & Anr. v. Addl. Commissioner, Tribal Development & Ors. (1995 AIR 94), and Dayaram v. Sudhir Batham & Ors. (2012) 1 SCC 333), as well as the judgment dated 05.09.2011 of the Gauhati High Court in W.P.(C) No. 300/2007, Sri Abhishek Chandra @ Sachin Besarya v. State of Tripura.

Opposing the Original Application, learned counsel for the respondents submitted that that the applicant was appointed in the Department against the Scheduled Tribe quota on the basis of a caste certificate dated 22.07.1978, issued by the Tehsildar, Bharthana, District Etawah, showing his caste as “Baheliya” under the ST category. Subsequently, upon verification by the competent authorities, it was found that the applicant belongs to the Baheliya caste, which falls under the Scheduled Caste category and not under the Scheduled Tribe category. The caste certificate was accordingly found to be false/invalid for the purpose for which it was used.

Learned counsel for the respondents further submitted that a disciplinary proceeding was initiated against the applicant. Although the Inquiry Officer, after considering the documentary evidence and circumstances of the case, initially returned a finding that the charge was not proved, the Disciplinary Authority tentatively disagreed with the Inquiry Report and afforded the applicant an opportunity to submit his representation. The applicant submitted representations, which were duly considered along with the reports received from the District Magistrate, Etawah and the other material available on record. Thereafter, the Disciplinary Authority concluded that the applicant had availed the benefit of ST status on the basis of the false caste certificate and held the charge proved. Consequently, in exercise of powers under Rule 61 of the BSNL CDA Rules, 2006, the Disciplinary Authority imposed the penalty of 100% permanent cut in pension along with forfeiture of gratuity and ex-gratia, after obtaining the requisite ratification from the competent authority/DoT. The learned counsel for the respondents, therefore, submitted that the impugned action was taken in accordance with the applicable rules and after affording due opportunity to the applicant.

Supporting the respondents’ case, learned counsel for the respondents placed heavy reliance upon the judgment of the Hon’ble Supreme Court in CA No. 8928 of 2015 titled Chairman and Managing Director FCI and ors. Vs. Jagdish Balaram Bahira and ors.

Heard learned counsel for the parties and perused the pleadings available on record.

Having considered the rival submissions and perused the material placed on record, we find that the controversy essentially revolves around the validity of the caste certificate submitted by the applicant at the time of his appointment and the consequential penalty imposed upon him after his retirement. It is not in dispute that the applicant was appointed in the year 1984 and continued in service for more than three decades before his retirement under the BSNL VRS-2019. The caste certificate in question was issued as far back as on 22.07.1978 by the competent revenue authority. The applicant has consistently maintained that he had submitted the certificate issued by the competent authority and had not fabricated the same.

It is also relevant that the Inquiry Officer, after considering the material available on record, had initially returned a finding that the charge against the applicant was not proved. The Disciplinary Authority thereafter disagreed with the said finding and ultimately proceeded to hold the charge proved on the basis, inter alia, of the subsequent reports of the District Magistrate, Etawah. While the Disciplinary Authority was competent to disagree with the Inquiry Officer, the fact remains that the applicant had already rendered a very long period of service and the certificate relied upon by him was an old certificate issued by a competent statutory authority. There is no material brought on record to conclusively establish, contemporaneously with his appointment, that the applicant himself had fabricated the certificate or had knowingly forged the same.

The Hon’ble Supreme Court in Prem Nath Bali v. Registrar, High Court of Delhi & Anr., (supra), while dealing with the question of pension after a long period of suspension, directed re-determination and payment of pensionary dues in accordance with the applicable rules. The said decision underscores the importance of duly considering pensionary rights after an employee has rendered long years of service.

The applicant has also relied upon Kumari Madhuri Patil & Anr. v. Addl. Commissioner, Tribal Development & Ors. (supra) and Dayaram v. Sudhir Batham & Ors. (supra). In these judgments, the Hon’ble Supreme Court has emphasized that the determination of caste status and the validity of a caste certificate are required to be examined through the prescribed scrutiny mechanism and in accordance with the procedure laid down for such verification. The said judgments assume significance in the present case as the very foundation of the disciplinary action against the applicant is the alleged invalidity of the caste certificate on the basis of which he was appointed against the ST quota. The certificate in question was issued by a competent authority as far back as in the year 1978, and the applicant thereafter continued in service for more than three decades. In such circumstances, before drawing the serious consequence of treating the applicant as having knowingly furnished a false caste certificate and depriving him of his entire pensionary and retiral benefits, it was incumbent upon the respondents to establish, through the competent scrutiny mechanism and in accordance with the prescribed procedure, not only the invalidity of the certificate but also the applicant’s conscious involvement in furnishing a false certificate. The aforesaid judgments are, therefore, relevant while examining whether the subsequent reports relied upon by the respondents, by themselves, were sufficient to establish such culpability on the part of the applicant.

In the facts of the present case, we find that the aforesaid judgments relied upon by the applicant cannot be brushed aside merely by observing that they are distinguishable. The subsequent verification reports relied upon by the respondents may have a bearing upon the caste status of the applicant; however, the same do not, by themselves, conclusively establish that the applicant had knowingly fabricated the certificate or had deliberately committed fraud at the time of his appointment in the year 1984. The distinction between a case of deliberate fraud/fabrication by an employee and a case where an employee has acted upon a certificate issued by a competent authority assumes significance while determining the appropriate consequence upon pension and retiral benefits.

We are conscious of the judgment of the Hon’ble Supreme Court in Chairman & Managing Director, FCI & Ors. v. Jagdish Balaram Bahira & Ors. (supra) , relied upon by the respondents. The said judgment dealt with the consequences of obtaining appointment and consequential benefits on the basis of an invalid caste claim and, therefore, cannot be applied mechanically to the present case without examining the peculiar facts and circumstances of the matter. In the present case, the applicant had already rendered more than three decades of service, the certificate relied upon was an old certificate issued by the competent authority, the Inquiry Officer had initially held the charge not proved, and the applicant has already retired from service. The issue before us is, therefore, not merely the validity of the caste status but the justification for depriving an employee, after such prolonged service, of his entire pension and other retiral benefits.

Pension is not a bounty but a retiral benefit earned by an employee on account of long years of qualifying service. In the peculiar facts of the present case, imposition of a 100% permanent cut in pension coupled with forfeiture of gratuity and ex-gratia, after the applicant had rendered more than three decades of service, appears unduly harsh and disproportionate, particularly when the foundational allegation of deliberate fabrication/forgery by the applicant himself has not been established by any direct and cogent material.

Insofar as O.A. No. 3780/2024, (Girand Singh v. UOI & Ors.) is concerned, the facts are substantially similar to those of the lead case. The applicant was initially appointed for one month’s practical training on 03.06.1983 and, upon successful completion of the training, was considered for regular appointment as Telecom Office Assistant. The disciplinary proceedings were initiated against him after a long lapse of about 32 years, without cancellation of the caste certificate on the basis of which he had been appointed and, as contended, without furnishing a list of witnesses in the charge-sheet. In view of the aforesaid circumstances and for the reasons recorded hereinabove, the extreme penalty imposed upon the applicant, resulting in deprivation of his pensionary and retiral benefits, cannot be sustained. The impugned order in O.A. No. 3780/2024 is, accordingly, liable to be set aside.

In view of the foregoing discussion, we are of the considered view that the impugned orders challenged in the present batch of Original Applications, whereby 100% permanent cut in pension along with forfeiture of gratuity and other retiral benefits has been imposed upon the applicants, cannot be sustained in the peculiar facts and circumstances of the cases. Accordingly, the impugned orders are quashed and set aside. The respondents are directed to restore the regular pension of the applicants and release their admissible retiral benefits, including gratuity and other consequential benefits, in accordance with the applicable rules, within a period of three months from the date of receipt of a copy of this order. The claim for interest at the rate of 18% per annum is, however, not found justified and is accordingly declined.

The present batch of Original Applications, including O.A. No. 4036/2024 (Sone Lal) and O.A. No. 3780/2024 (Girand Singh), is accordingly allowed in the aforesaid terms.

Pending M.A.(s), if any, shall stand disposed of. There shall be no order as to costs.