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Judgment
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this original application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
“(a)Quash the orders bearing No:Sr.GM Kolar/Disc-case/Sri.M.Rajappa/2200/ R-36/98215190/7, dated 12.05.2023, Annexure-A5, passed by Sr.GM Telecom Kolar Respondent No.5 herein, bearing No:31-01/2023-TFS dated: 17.02.2023, passed by Dept. of Telecom New Delhi R-2, as indicated under BSNL CO New Delhi No:BSNL CO-A/15(15)/6/2022-ESTAB, Dated: 24.02.2023. R-3 herein Annexure-A6 and bearing No:Sr. GM Kolar/Disc-case/Sri. Rajappa/2200/ Rule-36/98215190/12, dated: 16.01.2024, Annexure-A7, passed by Sr.GM Kolar R-5 herein.
b)Direct the respondents to forthwith release the regular pension and the other terminal benefits like DCRG and commutation of pension due to the applicant after his retirement along with admissible interest on the delayed payment.
c)Pass any other order or direction that this Hon'ble Tribunal may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.”
Facts in brief are that the applicant while working as Senior Telecom Operating Assistant (Phones) in Kolar Telecom Division got retired from service with effect from 31.05.2021. In a major penalty disciplinary proceedings initiated by the administration against the applicant by issue of charge memo dated 31.03.2011 under Rule 36 of the BSNL (Conduct, Discipline and Appeal) Rules 2006 (‘Rules’ for short), punishment of compulsory retirement came to be passed on 30.12.2013 and on the challenge made against this order in OA No.01/2014, the said punishment order was set aside, which was challenged before the Hon’ble High Court of Karnataka in W.P.No.4968/2014 by the administration. By a common order dated 19.03.2021 Hon’ble High Court of Karnataka clubbing identical Writ Petition No.15639/2017 with Writ Petition No.4968/2014 (S-CAT), dismissed the writ petitions. However, liberty was reserved to the competent Disciplinary Authority to pass appropriate orders in accordance with law. It is the contention of the applicant that the competent Disciplinary Authority failed to exercise the liberty granted by the Hon’ble High Court till the applicant’s superannuation i.e., on 31.05.2021. On 12.05.2023, Respondent No.5 has passed the punishment order imposing the penalty of 25% pension cut for combined service of DOT & BSNL permanently. After passing the punishment order, Respondent No.5 has also issued order dated 16.01.2024 regulating the periods concerning compulsory retirement order passed initially till the reinstatement from the suspension period. Being aggrieved, the applicant has preferred this OA.
Learned Counsel Shri P.A.Kulkarni representing the applicant submitted that the impugned punishment order at Annexure A5 is purportedly passed in exercise of powers available under Rule 61 of the Rules which is akin to the powers available under CCS (Pension) Rules. The impugned punishment order is totally untenable in law as the allegations contained in the charges (1) to (3) would not fall under the category of grave misconduct or negligence in terms of the Hon’ble Apex Court’s decision in D.V.Kapoor vs. Union of India and others reported in (1990) 4 SCC 314. In the absence of any mention in the charge memo alleging committal of grave misconduct or in the absence of a finding to that effect in the impugned punishment order before imposing the punishment, it would amount to misuse/high-handed exercise of the disciplinary control vested in the authority and the same would be in infringement of Articles 14 and 16 of Constitution of India. In the instant disciplinary proceedings initiated against the applicant while in service, there is no justification for exercising of the power to continue the proceedings against him after his retirement nor it is open for the authority to impose the penalty of 25% pension cut. Non exercising of liberty granted by the Hon’ble High of Karnataka in W.P.No.4968/2014 in time i.e., before retirement of the applicant on 31.05.2021, in the facts and circumstances of the present case should create quietus in the matter. As such the power to proceed further under Rule 61 of the Rules, would be impermissible. Hence OA deserves to be allowed granting the reliefs claimed.
Detailed reply statement has been filed on behalf of the respondents. It is stated that the applicant was working as Senior Telecom Operating Assistant (Phones) in the then Kolar Telecom District, BSNL from 18.01.1993 and he was also office bearer functioning as District Secretary of BSNL Employees Union (BSNLEU) Kolar SSA. The applicant went to the Office of the AGM (NWO) Chinthamani along with some other officials and interfered in the functioning of that office and also indulged himself in manhandling and assaulted Shri A.Venkateshappa, SDE (NWO) Groups Chinthamani on 04.01.2011 in the Office of the AGM (NWO) Chinthamani. The applicant was absconding from then to till the date of suspension i.e., 10.01.2011. He was issued with a memorandum of charges dated 31.03.2011 by the then Disciplinary Authority the DGM Kolar as per the BSNL CDA Rules, 2006. The said disciplinary proceedings culminated in penalty of compulsory retirement from the service of the applicant with immediate effect vide order dated 30.12.2013 and on the challenge made by the applicant to the said order before this Tribunal in OA No.01/2014, the punishment order passed by the Disciplinary Authority was quashed. On further challenge by the administration in W.P.NO.4968/2014, the same came to be dismissed reserving liberty to the competent Disciplinary Authority to pass appropriate orders in accordance with law. In compliance with the said order, the Disciplinary Authority has taken steps to pass appropriate orders as per BSNL CDA Rules, 2006 and accordingly the case was referred to DOT through corporate office for ratification of penalty in view of the Rule 43 of BSNL CDA Rules, 2006 and 37A of CCS Pension Rules. The case was ratified by the competent authority i.e., DOT and penalty of 25% pension cut in the monthly pension for the combined service of DOT and BSNL permanently was imposed on the applicant vide memo dated 17.02.2023. Accordingly, final order was issued by the Senior General Manager, Kolar vide order dated 12.05.2023 imposing penalty of 25% pension cut for the combined service of DOT and BSNL permanently. Reiterating the same, learned Counsel Shri K.Gajendra Vasu representing the Respondents No.3 to 5 submitted that the applicant is not eligible for any of the reliefs claimed in the OA. It is further submitted that aggrieved by the penalty order dated 12.05.2023, the applicant made representation dated 25.06.2023, it was received by the then PGM office on 16.08.2023, i.e., much beyond the limit of 30 days of receiving the final order. The applicant was paid full pension as admissible after he got retired provisionally with effect from 31.05.2021 on attaining the age of superannuation till imposition of penalty. Justifying the action of the respondents in issuing the impugned penalty order, learned Counsel seeks for dismissal of the OA.
We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
Statements of Articles of charges dated 31.03.2011 issued by the Disciplinary Authority, as per the BSNL CDA Rules, 2006, reads thus:
“Article-I. That the said Sri. M.Rajappa, while functioning as Sr.TOA (P), working in AO (A &P) section O/o GMTD Kolar during the period from 18-01-1993 to till date of suspension (i.e. 10-01-2011) was unauthorizedly absent for duty from 04-01-2011, By the above act, Sri. M.Rajappa Sr. TOA (P) failed to maintain devotion to duty and acted in a manner which is unbecoming of a public servant and thereby, contravened Rule, 4 (1) (b),4 (1) (c) & 5 (18) of BSNL CDA Rules 2006
Article-II. That during the aforesaid period & while functioning in aforesaid office, on 04-01-2011 the said Sri. M.Rajappa went to the O/o AGM (NWO) Chinthamani along with some other officials and interfered in the functioning of that office. By interfering in the work of some other office Sri. M.Rajappa had acted in a manner which is unbecoming of a public servant and thereby, contravened Rule 4(1) (C), 5 (12), 5 (20), 5 (29) and Rule 5 (38) of BSNL CDA Rules 2006.
Article- III. That the said Sri M.Rajappa, while functioning as Sr. TOA(P), working in AO (A&P) section office of GMTD, Kolar had indulged himself in manhandling & assaulted Sri. A Venkateshappa, SDE (NWO) Groups Chinthamani on 04-01-2011 in the office of AGM (NW-O) Chinthamani. By physically assaulting an employee, Sri. M.Rajappa had acted in a manner which is unbecoming of a public servant and thereby, contravened Rule 4 (1) (C) 5 (12), 5(17), 5 (20) & 5 (38) of BSNI. CDA Rules 2006.”
After appointing the inquiry authority and conducting the inquiry, the penalty order of compulsory retirement from service was issued to the applicant with immediate effect. On the challenge made to the said order in OA No.01/2014, this Tribunal vide order dated 20.01.2014 allowed the application setting aside the order of penalty on the ground that the officer who passed the order is incompetent. Being aggrieved, Writ Petition No.4968/2014 was filed before the Hon’ble High Court of Karnataka. The said writ petition was connected with Writ Petition No.15639/2017, involving the identical issue and by a common order dated 19.03.2021 came to be dismissed reserving liberty to the competent Disciplinary Authority to pass appropriate orders in accordance with law. Accordingly, fresh punishment order has been passed by the competent Disciplinary Authority vide impugned order dated 12.05.2023 imposing the penalty of 25% monthly pension cut for combined service of DOT and BSNL permanently on the charged employee – applicant.
Rule 61 of BSNL CDA Rules, 2006 deals with the disciplinary provisions for retiring employees. The same reads thus:
“(1)The employee against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned employee will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payments of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to Provident Fund and he will be entitled for the provisional pension as per applicable rule.
(2)………………………………….
(3)………………………………….
(4)(1) Chairman/Managing Director is the competent authority to issue sanction to institute the departmental proceedings against the absorbed employees after retirement for withholding a pension for combined service of BSNL and DOT period (herein referred as pension) or gratuity or both either full or in part or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Company, if, any disciplinary or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement: ……………………………………………
(4)(2)(a) The disciplinary proceedings referred to in sub-rule 4(1), if instituted while the absorbed employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the absorbed employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the absorbed employee had continued in service: …………………………………………….”
Penalties are prescribed under Rule 33 of the Rules. It is true that 25% pension cut is not mentioned in Rule 33 and it cannot be mentioned also since the same deals with the employees who were in service. Rule 61(4)(1) – which deals with disciplinary provisions for retiring employees concerned, is in pari materia with Rule-9 of CCS (Pension) Rules, 1972, - the phrase, “the pensioner is found guilty of grave misconduct or negligence during the period of service”, employed therein, has been considered by the Hon’ble Apex Court in D.V.Kapoor, supra. It is observed thus:
“6.Rule 8(5), explanation (b) defines 'grave misconduct' thus'
"The expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets, Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public of the security of the State."
7.In one of the decisions of the Government as compiled by Swamy's Pension Compilation, 1987 Edition, it is stated that:
"Pensions are not in the nature of reward but there is a binding obligation on Government which can be claimed as a right. Their forfeiture is only on resignation, removal or dismissal from service. After a pension is sanctioned, its continuance depends on future good conduct, but it cannot be stopped or reduced for other reasons."
8.It is seen that the President has reserved to himself the right to withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), Explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuity with which misconduct or irregularity was committed. It is not necessary to further probe into the scope and meaning of the words 'grave misconduct or negligence' and under what circumstances the findings in this regard are held proved. It is suffice that charges in this case are that the appellant was guilty of wilful misconduct in not reporting to duty after his transfer from Indian High Commission at London to the Office of External Affairs Ministry, Government of India, New Delhi. The Inquiry Officer found that though the appellants derelicted his duty to report to duty, it is not wilful for the reasons that he could not move due to his wife's illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension in consultation with the Union Public Service Commission.
9.As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the Presi- dent is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60.”
In the light of the aforesaid judgment, the matter is examined. The charges framed against the applicant and the inquiry report’s finding that the said charges are proved, indicates the gravity of charges. The Rule position stated in the charge memo are as under:
“The applicant Contravened provisions of
1)Rule 4(1)(b)- maintain devotion to duty;
2)Rule 4(1)(c)- do nothing which is unbecoming of a Public Servant;
The applicant committed the misconduct
1)Rule 5(18)-Absence from the employee's appointed place of work without permission or sufficient cause.;
2)Rule 5(12)- Drunkenness or riotous or disorderly or indecent behaviour in the premises of the Company or outside such premises where such behaviour is related to or connected with the employment.
3)Rule 5(17)- Commission of any act, which amounts to a criminal offence involving moral turpitude
4)Rule 5(20)- Commission of any acts subversive of discipline or of good behaviour 5) Rule 5(29)- Attending or holding meeting other than in the course of duty within the Company's premises without prior written permission of the Competent Authority 6) Rule 5(38)- Interference or riotous or disorderly or indecent behaviour in the premises of the company.”
Though the word ‘grave misconduct’ is not defined under the Rules, the same has to be examined under the facts and circumstances of the case. As observed by the Hon’ble Apex Court in D.V.Kapoor, supra, myriad situation may arise depending on the ingenuity with which misconduct or irregularity is committed, on the grounds of charges, it may be noted that assault on superior and disrupting the office, cannot be spared as it amounts to gross indiscipline.
In Hombe Gowda Education Trust and another vs. State of Karnataka and others reported in (2006) 1 SCC 430, the Hon’ble Apex Court has emphasized the need to maintain discipline in industrial undertakings. In para-30 of its judgment, the Hon’ble Apex Court has held thus: “30. This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces/industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.”
In V.Ramana v. A.P.SRTC and others reported in (2005) 7 SCC 338, the Hon’ble Apex Court has held thus:
“11.The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12.To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.”
In M.P.Electricity Board v. Jagdish Chandra Sharma reported in (2005) 3 SCC 401, the Hon’ble Apex Court held thus:
“9.In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the work place, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the workplace in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his services, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have already referred to the views of this Court. To quote Jack Chan, "discipline is a form of civilly responsible behaviour which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large". ……………………………………………………………………….”
In Orissa Cement Ltd. Vs. V.Adikandasahu reported in 1960 (1) LLJ 522, the Hon’ble Apex Court considering the use of abusive language against a superior, justified punishment of dismissal.
In the backdrop of legal principles enunciated by the Hon’ble Apex Court as discussed herein above, it cannot be held that the nature of charges framed against the applicant would not come within the ambit of gross misconduct to withhold the pension continuing the proceedings under Rule 61(4) of the Rules. Being Union leaders, law cannot be taken to their hands to disturb the working atmosphere of the office i.e., to enter into the office of AGM (NWO) Chintamani and interfering with the functioning of that office, sans taking approved leave (unauthorisedly absent) on the date of the incident i.e., 04.01.2011, further physically assaulting an employee. Creating chaos and indiscipline in the office thereby manhandling the office staff/officer would certainly comes within the ambit of ‘grave misconduct’.
Now the next question would be, whether imposing the penalty of 25% pension cut for combined service of DOT and BSNL permanently to the applicant, is proportionate to the proved charges.
The applicant was the office bearer functioning as Divisional Secretary of BSNL Employees Union, whereas one Shri S.S.Shankeen, applicant in OA No.250/2024 was the District President. Similar charges were issued to the said Shri S.S.Shankeen and the same punishment of compulsory retirement from service at the first instance, was issued. Subsequently the same was set aside by this Tribunal and confirmed by the Hon’ble High Court of Karnataka reserving liberty to the competent Disciplinary Authority to pass appropriate orders in accordance with law. Pursuant to which, the punishment order has been issued by the competent authority imposing of penalty of 25% cut in monthly pension for combined service of DOT and BSNL for a period of 8 years in the case of Shri S.S.Shankeen – applicant in OA No.250/2024. In our considered view, the present case also ought to have been concluded by imposing the similar punishment of 25% cut in monthly pension for combined service of DOT and BSNL for a period of 8 years on the applicant instead of permanently as the proved charges are identical. Thus, the quantum of punishment being disproportionate compared to that of other employee, Shri Shankeen, involved in similar charges proved, the similar punishment requires to be imposed on the applicant as well.
The suspension period from 10.01.2011 to 31.03.2011 treated by the Disciplinary Authority as ‘dies-non’ without break in service, treating the intervening period between the date of compulsory retirement and date of reinstatement (30.12.2013 to 22.02.2014) as ‘on duty’, remains undisturbed as the suspension period shall not be considered as on duty as per Rule 32(2) of the Rules. Hence we pass the following:
O R D E R
The order of punishment dated 12.05.2023 (Annexure A5) issued by the Disciplinary Authority in exercise of the powers conferred under Rule 34 and 61(4)(2)(a) of BSNL CDA Rules, 2006 and in conformity with DOT ratified order dated 24.02.2023, imposing the penalty of 25% pension cut for combined service of DOT and BSNL permanently, is modified to that of 25% monthly pension cut for combined service of DOT and BSNL for a period of eight years on the applicant.
Ratification order dated 24.02.2023 (Annexure A6) issued by the Assistant General Manager (Estt. III), Respondent No.3, is also modified reducing the penalty of 25% cut in monthly pension for combined service of DOT and BSNL permanently, to eight years.
OA stands disposed of in terms of above. No order as to costs.