The Disciplinary Authority, Chief General Manager vs R. Balachandran

M. Sathyanarayanan, J.—By consent, the main writ petition itself is taken up for final disposal. The first respondent herein, challenging the order, dated 14.11.2011, passed by the first petitioner, by and under which, a penalty of 12% reduction in the full pension otherwise permissible for a period of two years with immediate effect was imposed, with a further direction for restoration of the full pension after completion of two years, filed O.A. No. 1461 of 2012, before the Central Administrative Tribunal.

The said original application came to be allowed, by order dated 07.11.2013, after contest and aggrieved by the same, the official respondents in the said original application had filed this writ petition.

The facts of the case would disclose that the first respondent herein joined the services of Postal and Telegraphs Department as Postal Assistant in the year 1967 and after passing the Post and Telegraph Accounts Service Examination, Part I in the year 1973 and Part II in the year 1975, was promoted and posted in the Telecommunication Wing as Junior Accountant in the year 1975, as Junior Accounts Officer in the year 1978 and as Accounts Officer in the year 1989 and as Senior Accounts Officer in the year 1992 and on 17.03.2000, the first respondent herein was promoted as Chief Accounts Officer on ad hoc basis vide Sl. No. 16 of the Promotion list No. 7-1/SEA, dated 11.04.2000.

On account of Liberalisation and Privatization Policy adopted by the Central Government, Bharath Sanchar Nigam Limited (in short, BSNL) came to be formed, wherein the telecommunication services have been taken over to the said statutory Corporation, which came into existence on 01.10.2000 and on formation of BSNL, all the officers serving in the Postal and Telecommunication Department were deemed to have been deputed to BSNL and option was also asked as to whether they would like to remain in Government service or opt to switch over to BSNL. The first respondent has exercised his option and has chosen to go to BSNL and accordingly, he continue to serve as Chief Accounts Officer, BSNL.

While the first respondent working in that capacity, the Central Bureau of Investigation has registered a case in R.C. No. 24/A/2003 against one M. Rajesh Kachchap, Deputy General Manager (North East), Office of the Chief General Manager, BSNL and also against the respondent herein for the alleged commission of offences under Sections 120B read with 420, 467, 468, 471 of the Indian Penal Code and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The Central Bureau of Investigation, after investigation, has prayed for closure of the First Information Report and it was also accepted and the criminal proceedings initiated under the abovesaid case against the said Rajesh Kachchap and the first respondent herein was closed by the learned Principal Special Judge for Central Bureau of Investigation Cases, Chennai, on 20.01.2005.

The Central Bureau of Investigation, while filing the closure report, has observed that irregularities were done without any mala fide intention and because of that, there is no loss to the Government of India.

Thereafter, me Disciplinary Authority has issued a charge memorandum, dated 05-10-2005, and the following are the contents of the charge memorandum:--

"Article-I: That on 20.06.2002, Shri. Rajesh Kachchap then Deputy General Manager (North East) fraudulently obtained the signature of Shri. R. Rangaduri, then Engineering Officer to General Manager (North), Chennai Telephones on blank printed certificate bearing the name seal of Shri R. Rangadurai which was pasted with the Bill No. 007 dated 17-06-2002 for a sum of Rs. 15,600/- without showing it to Shri R. Rangadurai. Shri. R. Balachandran then CAO/IFA (North East) was present in the chamber of Shri. Rajesh Kachchap, DGMF & A (North) and was party to the various points raised by Shri. R. Rangadurai, then E.O. to G.M. (North), with reference to authorising cash payment, stock taking and furnishing photocopy of said bill to Shri. R. Rangadurai. When Shri. R. Balachandran then CAO (North East) was contacted by Shri. R. Rangadurai then E.O. to G.M. (North) on 21.06.2002 to get a copy of the said bill, Shri R. Balachandran, then CAO (North East) bluntly informed that he was not aware of any transaction that took place on 20.06.2002 in the chamber. Only at the intervention of Shri A. Hariharan, the then Asst. General Manager (Technical) in the Office of the G.M. (North), Shri R. Balachandran, then CAO (North East) did come forward and furnish a copy of the bill dated 17-06-2002 to Shri R. Rangadurai, then E.O. to G.M. (North) saying that the DGM F & A (N) was doing so many things on his own and he did not want to be a party to it. Thus Shri. R. Balachandran instead of tightening up the procedures for payment of the bills submitted without sanction of competent authority, chose to keep aloof and exhibited indifference to the goings on in the section under his control thereby lacking in devotion to duty and contravening Rule 3(1)(ii) of CCS (Conduct) Rules, 1964.

Article-II: That Shri. R. Balachandran while functioning as CAO and IFA in the Office of the Dy. General Manager (North East), BSNL, Chennai Telephones allegedly committed misconduct and irregularities as detailed below during the period from March-2001 to August-2002. Shri. R. Balachandran, CAO (North East) called Shri. K. Swaminathan, then working as A.O. (C & A) in the absence of regular incumbent to the post, to his chamber, coerced and issued oral instructions to make immediate payment in respect of the bills submitted by Shri. Rajesh Kachchap then Dy. General Manager (F & A) North who was available in the CAO''s chamber without allowing him the time to scrutinize the bills and follow the usual procedure prescribed by the Department in the processing of the bills submitted for payment. Also, whenever the cashier was not available the CAO orally ordered payment of the bills submitted by the DGM F&A (North) from the TR collection counter. The above mentioned oral instructions were issued without following them up in writing immediately afterwards. Thus Shri. R. Balachandran, by the above acts contravened Rule 3(2)(m) and 3(1)(ii) of CCS (Conduct) Rules, 1964.

Article III: Shri. R. Balachandran, then CAO (North East) falsely claimed a sum of Rs. 1,570/- by producing a manual cash voucher dated 1-5-2002 from M/s. Breeze Hotel, Chennai for lunch buffet for P&T audit party by suppressing the original computer bill No. 2247 dated 1-5-2002 (Bill Time 16.20 hrs) incurred for consumption of items like Wine, Vodka etc. It is alleged that Shri. R. Balachandran, then CAO (North East) had spent the amount only for his personal purpose. Shri. R. Balachandran, then CAO (North East)/IFA claimed the false bill only to his personal advantage. Whereas he has submitted another bill for having spent on Buffet lunch for three persons of audit for an amount of Rs. 781/- on the same day (i.e.) on 1-5-2002 vide Bill No. 920 dated 1-5-2002 (Bill Time: 15.04 Hrs.) Thus the officer has made false claims from the department for personal gains by submitting a fabricated bill for a sum of Rs. 1,570/-. Thus Shri. R. Balachandran, CAO has failed to maintain absolute integrity and thereby contravened Rule 3(1)(i) of CCS (Conduct) Rules, 1964.

Article IV: Shri. R. Balachandran, then CAO (North East)/IFA had claimed a cash payment of Rs. 1,600/- by submitting a Bill No. 1207 dated 1-8-2002 given by M/s. Durable Chrome Factory, 842, Anna Salai, Chennai-600002 with regard to purchase of brief case as per his entitlement for official purpose. During the investigation it was found that the original bill submitted by the officer contained the item of one pair of shoes costing Rs. 699/- only. Shri. R. Balachandran, then CAO (North East)/ERA had altered the amount in the cash bill by inserting the figure "1" before the figure of ''699'' and changed the amount to his advantage as Rs. 1,699/-. While the item purchased through cash bill is only for Rs. 699/- he altered the amount for a sum of Rs. 1,699/-. In addition, he allegedly changed the date of the bill from 1-8-2002 to 12-8-2002 to cover up the approval given for the purchase of brief case dated 12-8-2002. He received the amount by cash on 14-8-2002 by himself certifying as "received contents and restricted to entitlement of Rs. 1,600/-". Thus Shri. R. Balachandran, CAO-I failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant thereby contravening Rule 3(1)(i) & (iii) of CCS (Conduct) Rules, 1964."

The Enquiry Officer has conducted enquiry and held that all the charges framed against the first respondent have been proved and the Disciplinary Authority, after furnishing the copy of the enquiry report to the first respondent and after obtaining his explanation, has passed the impugned order, dated 14-11-2011, effecting cut in pension, as stated above, and challenging the legality of the said order, the original application has been filed.

The official respondents, who are the petitioners herein, have filed their reply in the said Original Application contending, among other things, that the original application has been filed without exhausting the statutory remedy of appeal under Rule 45 of the BSNL Conduct, Discipline and Appeal Rules, 2006 and insofar as the merits of the case is concerned, it is the stand of the official respondents that the Enquiry Officer, after due consideration of the materials placed before him, has rightly found that the charges framed against the first respondent herein have been proved and the Disciplinary Authority, on a thread-bear analysis of the entire materials placed before him, has rightly imposed the order of penalty and interference is not warranted at the hands of the Tribunal.

Before the Tribunal, apart from the merits of the case, it was contended by the original applicant/first respondent herein that as per the decisions of the Government of India, which were incorporated in the Central Civil Services (Pension) Rules, final order under Rule 9 will be issued only in the name of President and admittedly, the impugned order of punishment was passed by the first respondent therein/first petitioner herein. It was further contended that since the respondent/original applicant was in the services of Telecommunication Department and after formation of BSNL, he has exercised his option and became an employee of BSNL, without the prior approval of the competent authority, such an order could not have been passed.

It was also contended that in respect of other charged employee, viz., Mr. Rajesh Kachchap, Deputy General Manager (North East), BSNL, he filed an original application for quashment of the charge memo in O.A. No. 301 of 2007 before the Central Administrative Tribunal, Ernakulam Bench at Kerala and it was also quashed and since the respondent/original applicant stands on same footing, the impugned order of punishment is liable to be quashed.

The Tribunal, after taking into consideration the materials placed before it, has found that the Central Administrative Tribunal at Ernakulam Bench has quashed the disciplinary proceedings initiated against the original applicant in O.A. No. 301 of 2007 and also found that the disciplinary proceedings have been vitiated for not complying with the requirements and in the light of the said reason, quashed the impugned order of punishment, with a direction to the official respondents to grant further monitory benefits which includes higher scale due as Deputy General Manager with effect from 01.10.2004 on par with his immediate junior and all the associated benefits in accordance with the relevant Rules.

The official respondents, aggrieved by the abovesaid order passed by the Tribunal, dated 07.11.2013, in O.A. No. 1461 of 2012, had filed this writ petition.

Mr. S. Udayakumar, learned Standing Counsel appearing for the petitioners would vehemently contend that the charges framed against the first respondent herein are grave and serious in nature and after affording full and reasonable opportunity, the second petitioner/Enquiry Officer has concluded that all the charges framed against the first respondent herein have been proved beyond probabilities and the first appellant, viz., the Disciplinary Authority, after affording the opportunity of submitting explanation, has rightly imposed the punishment of cut in pension, and the first respondent herein was permitted to retire on 31.08.2008 without prejudice to the pendency of the disciplinary proceedings.

It is the further submission of the learned Standing Counsel for the petitioners that the Tribunal, in exercise of its powers, cannot act as Appellate Authority to go into the merits of the enquiry report as well as the findings recorded by the Disciplinary Authority and on that ground also, the impugned order passed by the Tribunal is liable to be quashed. The learned Standing Counsel would further submit that challenging the legality of the order passed in O.A. No. 301 of 2007, the petitioners herein had filed W.P. (C) No. 27258 of 2008 before the High Court of Kerala at Eranakulam and the order passed by the Central Administrative Tribunal, dated 25.03.2008, was set aside and the matter was remanded to complete the enquiry and pass further order and in the light of the said order also, the reliance placed by the Tribunal on the said order passed by the Central Administrative Tribunal at Ernakulam Bench is unsustainable and hence, prays for interference.

Per contra, the learned counsel appearing for the first respondent/original applicant would vehemently contend that even as per the closure report of the Central Bureau of Investigation, irregularities were done without any mala fide intention and there is no loss caused to the Government of India and it is merely a procedural violation. It is further contended by the learned counsel for the first respondent that admittedly, the first respondent herein is not the passing authority and he was only the Chief Accounts Officer and above him, there are hierarchy of officers to consider the note put up by him and pass the order and admittedly, the top level officers have not been proceeded with departmentally. Lastly it is contended by the learned counsel for the first respondent that in terms of Rule 9 of the Central Civil Services (Pension) Rules and Rule 37-A(24)(c), the first petitioner is not competent to pass the impugned order of punishment and taking into consideration the fact that the first respondent is aged about 66 years, he prays for confirmation of the order passed by the Central Administrative Tribunal in the light of the finding that there is no loss caused to the Government of India.

This Court, after careful consideration of the rival submissions and after perusing the materials placed on records in the form of typed set of documents, is of the considered view that the writ petition, which was filed challenging the legality of the order passed by the Central Administrative Tribunal, is liable to be dismissed for the following reason:

Admittedly, criminal prosecution was launched against the first respondent herein, while he was working as Chief Accounts Officer in BSNL, by the Central Bureau of Investigation by registering a case in R.C. No. 24/A/2003 and after thorough investigation, has filed the closure report before the Principal Special Court for Central Bureau of Investigation cases at Chennai stating that the investigation revealed that the irregularities committed were done without any malafide intention and there is no loss caused to the Government of India also and it is mere procedural violation and the said report was also accepted by the said Court and the case was closed on 20.01.2005. Thereafter, departmental proceedings were initiated against the first respondent herein by issuing charge memorandum, dated 05.10.2005.

A perusal of the charge memorandum would disclose that as per Charge No. 3, a bill has been submitted for a sum of Rs. 781/- for buffet lunch for three persons and in respect of Charge No. 4, a bill was submitted by the officer for a sum of Rs. 1699/- with regard to purchase of a brief case, whereas, during investigation, it was found that the original bill contained the item of one pair of shoes costing Rs. 699/-, and the first respondent had altered the amount in the cash bill by inserting the figure "1" before the figure of ''699'' and changed the amount to his advantage as Rs. 1,699/-.

This Court has drawn the attention of the said portion of the charge/article No. IV to the learned Standing Counsel appearing for the writ petitioners and he would submit that though the bill was submitted by the Chief Accounts Officer viz., the first respondent, believing the authenticity of the bill only, the higher officers have passed the said bill and it cannot be faulted. Insofar the contents of charge No. 4 are concerned, it is the contention of the learned counsel appearing for the writ petitioners that only a suitcase was purchased and not a pair of shoes.

As already pointed out by this Court in the earlier paragraph that the Central Bureau of Investigation has done full fledged investigation with regard to the same set of charges by registering a criminal case and after investigation, has filed a closure report before the Principal Special Court for Central Bureau of Investigation cases at Chennai and it was also accepted and the contents of the closure report would reveal that only there are technical violations and it was done without any malafide intention and there is no loss caused to the Government of India.

It is also pertinent to point out at this juncture that the spending of the amount and raising of the bills, which were passed by the higher authorities, are also not in dispute. Though it is contended by the learned counsel appealing for the writ petitioners that the higher authorities have passed the bills believing the contents of the said bills, admittedly no action has been taken against them. Therefore, this Court is of the view that on merits, the official respondents have not made out any case.

Insofar as the competency of the first petitioner is concerned, it is relevant to extract Rule 9(2)(b) and 9(5) of the Central Civil Services (Pension) Rules, which reads thus:--

"9(2)(b) The Departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,--

(i) shall not be instituted save with the sanction of the President,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government Servant."

Further, the Government of India''s decisions, which are incorporated in the Central Civil Services (Pension) Rules, would disclose that final order under Rule 9 of the said Rules will be issued in the name of the President.

Sub Rule 24(c) of Rule 37-A of the Central Civil Services (Pension) Rules reads thus:--

"37-A. Conditions for payment of pension on absorption consequent upon conversion of a Government Department into a Central Autonomous Body or a Public Sector undertaking:--

.......

(24) Upon conversion of a Government Department into a Public Sector Undertaking or Autonomous Body--

(a)....

(b)....

(c) the dismissal or removal from service of the Public Sector Undertaking or Autonomous Body or any employee after his absorption in such undertaking or body for any subsequent misconduct shall not amount to forfeiture of the retirement benefits for the service rendered under the Government and in the event of his dismissal or removal or retrenchment, the decisions of the undertaking or body shall be subject to [confirmation] by the Ministry Administratively concerned with the undertaking or body.

Admittedly, the impugned order was not issued in the name of the President of India and it has been passed by the Disciplinary Authority. It is also an admitted case that prior to the formation of BSNL, the respondent was working as Chief Accounts Officer in the services of the Telecommunications Department and after exercising his option, he became an employee of BSNL and in terms of Sub Rule 24(c) of Rule 37-A of the Central Civil Services (Pension) Rules, the order passed by the Disciplinary Authority is subject to the confirmation by the Ministry administratively concerned with the undertaking or body. In this case, no confirmation, as stated above, has been obtained from the said Ministry.

De hors Rule 61 of the BSNL Conduct, Discipline and Appeal Rules, 2006, though it is vehemently contended by the learned counsel appearing for the writ petitioners that effective alternative remedy of appeal is available under Rule 45, this Court is of the view that in view of the non-compliance of the requirements of the mandate of the abovesaid statutory Rules, the alternative remedy need not be resorted to.

It is represented by the learned counsel appearing for the first respondent that the respondent/original applicant has attained the age of superannuation dated 31.05.2008 and now, he is aged about 66 years. In the light of the said fact coupled with the closure report filed by the Central Bureau of Investigation, it is unnecessary to remand the matter once again to the Disciplinary Authority for passing a fresh order of punishment.

The Tribunal, in the concluding portion, while setting aside the order of punishment, dated 14.11.2011, directed the official respondents to pass a reasoned and speaking order on the grant of further monetary benefits which includes higher scale of pay due as Deputy General Manager with effect from 01.10.2004 on par with his immediate junior and all the other associated benefits in accordance with the relevant rules. It is the submission of the learned counsel appearing for the writ petitioners that promotion to the post of Deputy General Manager is not automatic, as the next promotion post from the post of Chief Accounts Officer is Assistant General Manager and thereafter, Deputy General Manager and it is based on merit-cum-seniority and therefore, clarification order may be issued in this regard. In the result, the writ petition is dismissed, confirming the order passed by the Tribunal insofar as the quashment of impugned order of punishment dated 14.11.2011 is concerned and with regard to the grant of further monetary benefits, including higher scale of pay due as Deputy General Manager, with effect from 01.10.2004 on par with his immediate junior and all the other associated benefits in accordance with the relevant rules, the first petitioner/Chief General Manager is directed to consider the claim of the first respondent herein for further promotion with consequential benefits, in accordance with the relevant Rules and Regulations and Circulars, and pass orders within a period of eight weeks from the date of receipt of copy of this order. Connected Miscellaneous Petitions are closed. No costs.