Ram Deo vs Union Of India & Ors.

The applicant has filed the O.A under section 19 of the Administrative Tribunals Act, seeking the following relief(s): -

The brief facts of the case, as per pleadings in the O.A., are that the applicant was appointed on 01.05.1974 as Telegraph Man in Post & Telegraph and thereafter he was promoted from time to time and ultimately he was promoted as Sub-Divisional Engineer w.e.f. 8.12.2004. The entire service period of the applicant is unblemished and has been throughout satisfactory. However, on 18.02.2013, applicant was issued a charge sheet alleging therein that he has extended ISD facility to certain subscribers without verifying their details, which caused revenue loss to the BSNL. The charges levelled against the applicant were vague in as much as he had neither any role to play in the verification process nor in extending the alleged ISD facility. The applicant was also not afforded any first stage advice of vigilance as such he denied the charges levelled against him. However, without considering the reply made by the applicant, the disciplinary authority appointed inquiry officer on 06.04.2013. On 03.04.2014, applicant requested the inquiry officer to supply him certain relevant documents to enable him to defend his case. The inquiry officer while adjourning the inquiry for 23.5.2014 allowed applicant's request and directed the Presenting Officer to supply all the documents mentioned therein. However, none of the documents were supplied to the applicant on 23.05.2014, next date fixed by the Inquiry Officer. The Presenting Officer on 05.08.2014 supplied merely few documents and most of the documents were denied on the ground of being not available. Even the call details of the respective subscribers, which in any case were available, have not been supplied to the applicant. On the directions of this Hon'ble Court Inquiry Officer submitted the inquiry report wherein the charges, levelled against the applicant were held to be proved. Thereafter, the inquiry report was sent to Chief Vigilance Officer and second stage advice was obtained, but the same was also not being supplied to the applicant on the ground of being confidential. Vide order dated 19.03.2016, the respondent No. 2 imposed the punishment upon the applicant whereby his pension has been reduced to the extent of 20%. Thereafter, applicant filed a revision before respondent No. 1 on 09.08.2016. The respondent No. 1 also rejected the revision of applicant on erroneous and non-existent grounds vide order dated 19.12.2017. Aggrieved with the aforesaid orders of respondents, the applicant has filed the present O.A.

The respondents have filed the counter reply stating therein that the applicant was not only responsible to check the physical record, but he should also ensure that process of verification done by subordinate staff and Field Officer had been proper completed or not however, the applicant failed to do so. It is submitted by the respondents in the counter reply that the outgoing facility of ISD subscribed should be disconnected after reaching on prescribed 110% of credit limit by CSR In-charge but as a commercial officer, applicant failed to check address audit and paying habit verification with TRA/Commercial wing in a time frame of 24 hours. It is further submitted that the applicant is assuming in himself that the TAP facility is not available in MTNL network but he himself failed to perform his duty properly at the primary stage of providing of ISD & associated facility and revenue realization from outstanding payment list generated by zonal billing centre which resulted as occurrence of huge unpaid bill amount to BSNL. It is further submitted by the applicant that the applicant was served with the charge sheet due to his negligence and not due to any conspiracy. It is also submitted by the respondents that all the relevant and available documents were provided to applicant by the Presenting Officer after permission of Inquiry Officer. The respondents taken the shelter of circular dated 29.11.2012 submitted that providing of CVC’s 1^st stage advice with charge sheet to accused is not mandatory. The respondents have submitted that providing of ISD and International roaming with conference facility etc. are sensitive mater and checking of each and every steps of such cases is great responsibility on every officer in hierarchy. It is submitted that the Inquiry Officer was submitted its report on the basis of sufficient cogent material/evidence. The respondents have also submitted that the case of applicant does not fall under Rule-61 of BSNL CDA Rules, 2006 as the disciplinary proceedings started before the retirement of applicant. The applicant has been awarded punishment on sufficient ground of lapses in duty as alleged in charge sheet and the quantum of punishment is based on the merit of the stated that the case. It is further respondents have not flouted any of the provision of Article 14 and 16 of the Constitution of India. Hence, the O.A. being devoid of merit may be dismissed.

The applicant has also filed the rejoinder reply reiterating the facts mentioned in the O.A.

Heard the learned counsel for the parties, perused the pleadings on record and considered the rival submissions made by counsel for the parties.

The applicant has challenged the impugned order dated 19.03.2016 whereby his pension has been reduced to the extent of 20% and the revisional order dated 15.12.2017 whereby the punishment order was upheld. The principal question for consideration in the present O.A. is whether the disciplinary proceedings initiated against the applicant and the consequential orders dated 19.03.2016 and 19.12.2017 can be sustained in law, particularly in view of the applicant's grievance regarding non-supply of relevant documents, non-furnishing of vigilance advice, and alleged denial of a reasonable opportunity to defend himself.

The applicant has retired from service on 31.07.2013 and prior to five months of his retirement, the charge sheet dated 18.02.2013 was issued. We have gone through the charge sheet, which contained only one charge i.e. Article-I, which is quoted herein below: -

In the above charges, it is alleged that the applicant did not scrutinize the documents required for ISD facility and did not properly examine the documents, submitted by the customers for providing ISD facility or conferencing facility. Counsel for the applicant submitted that as per charges, the applicant has issued conferencing facility to three subscribers already having ISD facility and provided ISD facility to three subscribers already having conferencing facility. Counsel for the applicant submitted that these numbers were already allotted to the subscribers and alleged charge is only with regard to providing ISD/Conference facility to the existing customers. It is further relevant from the record that with regard to communication, the applicant has no role as physical verification and other processing was done by the field staff namely Ram Vriksha (Phone Mechanic), Atta Hussain (Phone Mechanic) and Sri V.P. Singh (SDE/Field Officer of the Area) and for further request to provide ISD/Conference facility to the existing customers, due process has been adopted and being Commercial Officer in the Office of Principal General Manager, the applicant has to scrutinize the record of these subscribers and paid/unpaid bill, which was online, therefore, these cases were forwarded for verification and formal order by the General Manager who is competent to sanction the same. The submission of counsel for applicant is that the procedural lapses or negligence is not on the part of applicant as he is not the person to initiate the communication after checking the relevant record. It is incumbent upon to Field Staff, Phone Mechanic or to SDE/Field Officer of the area and being Commercial Officer, he did on the basis of documents, which were required and after satisfying with the same, same was forwarded to the General Manager for approval. There is no ulterior motive or for seeking any benefit by providing this facility. Further, from the record, it is relevant that the bill dated 09.01.2011 of these subscribers raises a huge amount of more than Eleven Lakh as outstanding and it is the duty of concerned exchange to examine or remind the subscribers with regard to such transaction against the security amount and in the instant case, the numbers were issued by the B.S.N.L. However, the cause of action with regard to this transaction appears within the M.T.N.L. region. So, in such a huge loss, there was no role of applicant and the punishment of 20% cut of pension/post retirement cannot be justified merely on the ground that there is a negligence in scrutinizing the document. Counsel for the applicant further submitted that the negligence or procedural lapse does not amount to misconduct in departmental proceeding unless there is a bad motive, dishonesty or gross negligence amounting to dereliction of duty and in the instant case neither the motive nor the dishonesty has been proved against the applicant by the Inquiry Officer. The charge-sheet dated 18.02.2013 alleged that the applicant had failed to discharge his duties properly in connection with the provision of ISD facilities to certain subscribers, resulting in financial loss to BSNL. The applicant denied the charges and disputed his responsibility for the alleged irregularities. Per contra, the respondents have submitted that the applicant, being a responsible commercial officer, was required to ensure proper verification of subscribers and compliance with the prescribed procedure before extending ISD and other associated facilities. According to the respondents, the applicant failed to discharge these duties, thereby exposing BSNL to financial loss. The first issue requiring consideration is the applicant's specific allegation that, despite his request dated 03.04.2014, the documents required for effectively defending himself were not supplied in their entirety. The pleadings indicate that the Inquiry Officer had directed the Presenting Officer to supply the documents sought by the applicant. However, according to the applicant, only few documents were furnished on 05.08.2014, while the remaining documents were stated to be unavailable. The applicant has also specifically complained that the call details of the subscribers concerned, which were material to the allegations, were not supplied. The respondents have asserted that all relevant and available documents were supplied with the permission of the Inquiry Officer. However, a general assertion regarding the supply of documents does not, by itself, resolve the specific grievance raised by the applicant. The material question is whether the documents sought were relevant to the charges and whether their non-supply impaired the applicant's ability to effectively cross-examine witnesses, rebut the evidence relied upon by the department, or establish his defence.

So far as not providing the complete list of relied upon documents, which is the basis for alleged misconduct, which form basis of any disciplinary proceeding, without providing such documents is in violation of principle of natural justice and Presenting Officer or the Inquiry Officer ought to produce the same and in absence thereto, the applicant could not demonstrate his innocence. It is also submitted that the CVC advice has not been provided to the applicant, which is contrary to law settled by the Hon’ble Supreme Court in the case of ‘Union of India V. R.P. Singh 2014 (7) SCC 340’ and finding so recorded by the Inquiry Officer is perverse. It is also submitted that there is violation of Article 14 and 16 of the Constitution of India as the other staff such as Phone Mechanic, field staff and S.D.E. were exonerated while the applicant has been held responsible for the loss caused to the B.S.N.L. Therefore, the punishment of 20% cut in pension for a period of five years cannot be justified as compared to the charges levelled against the applicant. In the punishment order dated 19.03.2016 and revisional order dated 19.12.2017, the respondents have not considered these aspects while imposing the punishment. It is evident that the applicant's liability cannot be determined merely by reference to his designation or hierarchical position. The department was required to establish the specific duties entrusted to him, the particular acts of omission or commission attributable to him, and the evidentiary basis connecting such omissions with the alleged irregularities. A conclusion unsupported by the evidence, or one reached without affording the employee a fair opportunity to meet the case against him, cannot be sustained merely because the charges have been recorded as proved in the inquiry report.

The imposition of a penalty affecting pensionary benefits has serious civil consequences. Such an order must, therefore, be founded upon a procedurally fair inquiry, relevant evidence, and a reasoned consideration of the employee's defence. The revisional authority, in turn, is required to consider the grounds raised in revision in accordance with the applicable rules and cannot dispose of material objections by merely reiterating the conclusions of the disciplinary authority. In the present case, the applicant has raised specific objections concerning the non-supply of relevant documents, non-disclosure of vigilance advice, and the evidentiary basis of the findings recorded against him. These objections go to the fairness of the proceedings and cannot be treated as mere technical irregularities without examining whether they caused prejudice to the applicant. The respondents have relied upon the circular dated 29.11.2012 to contend that furnishing first-stage CVC advice along with the charge-sheet was not mandatory. However, the question concerning the first-stage advice is distinct from the question whether the applicant was denied access to material relied upon against him at a subsequent stage. The validity of the proceedings must be determined by examining the applicable rules and the actual procedure followed in the applicant's case, rather than by relying upon a general assertion regarding confidentiality or non-mandatory disclosure. Similarly, the respondents' contention that Rule 61 of the BSNL CDA Rules, 2006 is not attracted because the disciplinary proceedings commenced before the applicant's retirement does not, by itself, answer the applicant's challenge to the fairness and legality of the inquiry. The applicability of the relevant service rules and the validity of the impugned penalty must be assessed separately.

Upon consideration of the rival pleadings, we are of the view that the applicant's grievance concerning the denial of an effective opportunity of defence raises a substantial issue which directly affects the validity of the inquiry and the consequential orders. The respondents' general denial is insufficient to overcome such a challenge unless the inquiry record establishes that the necessary material was made available, the applicant was afforded a fair opportunity to meet the allegations, and the findings were supported by relevant evidence. In these circumstances, the impugned orders cannot be sustained without satisfactory compliance with the requirements of natural justice and the applicable disciplinary rules.

In view of the foregoing discussion, and having regard to the principles of natural justice and fairness governing departmental disciplinary proceedings, we find merit in the O.A. to the extent that the impugned disciplinary action cannot be sustained in the absence of a demonstrably fair and legally compliant inquiry. Accordingly, the O.A. is allowed and the impugned order dated 19.03.2016 passed by respondent No. 2, whereby the applicant's pension was reduced by 20%, and the revisional order dated 19.12.2017 passed by respondent No. 1 are hereby quashed and set aside. The respondents shall restore the applicant's pensionary benefits in accordance with the rules applicable to him and release the consequential arrears arising from the setting aside of the impugned orders, subject to adjustment of any amounts already paid. The consequential exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order, to the extent applicable to the implementation of the directions herein.

There shall be no order as to costs.