Dismissed

The Chief General Manager Telecom v. Sri S S Shankeen

Karnataka HC19 Mar 2021WP/15639/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed clubbed writ petitions challenging the Central Administrative Tribunal's order quashing a compulsory retirement penalty. The Court held the imposing officer lacked statutory authority because his 'look after' appointment was temporary, did not meet the 45-day statutory requirement, and did not include substantive powers. The Tribunal's quo warranto finding was

What did the court decide?

Writ petitions dismissed; orders of the Tribunal confirmed. Liberty reserved to the Competent Disciplinary Authority to pass appropriate orders in accordance with law.

The Chief General Manager Telecom Vs Sri S S Shankeen — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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WRIT PETITION No.15639/2017 C/w. WRIT PETITION No.4968/2014 (S – CAT)

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IN W.P.No.15639/2017:-

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BETWEEN :

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THE CHIEF GENERAL MANAGER TELECOM KARNATAKA TELECOM CIRCLE, BSNL No.1, SWAMY VIVEKANANDA ROAD HALASURU, BANGALORE – 560008.

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THE GENERAL MANAGER TELECOM KOLAR TELECOM DISTRICT KOLAR – 563101.

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SRI N.D.RAMARAJU GENERAL MANAGER TELECOM ASHOKA ROAD, TUMKUR [ACTING HIMSELF AS DISCIPLINARY AUTHORITY AND GENERAL MANAGER TELECOM KOLAR. ...PETITIONERS

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(BY SRI VISHNU BHAT, ADV.)

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AND :

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SRI S.S.SHANKEEN S/O LATE SRI SANGAYYA AGED 57 YEARS OCC: SENIOR TELECOM OPERATING ASST [PHONES] OFFICE OF AGM (NW-O)

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CHIKKABALLAPUR - 562101 RESIDING AT BSNL QUARTERES No.C- 2, VAPASANDRA CHIKKABALLAPUR – 562101. …RESPONDENT

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(BY SRI P.A.KULKARNI, ADV.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.11.2016 PASSED BY HON’BLE CAT, BANGALORE BENCH, BANGALORE IN O.A.NO.311/2014, VIDE ANNEXURE-C AS THE SAME IS UNJUST, ARBITRARY AND WITHOUT AUTHORITY OF LAW AND CONSEQUENTLY DISMISS THE OA; AND ETC.,

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IN W.P.No.4968/2014:-

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BETWEEN :

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THE CHIEF GENERAL MANAGER TELECOM KARNATAKA TELECOM CIRCLE, BSNL No.1, SWAMY VIVEKANANDA ROAD HALASURU, BANGALORE – 560008.

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THE GENERAL MANAGER TELECOM KOLAR TELECOM DISTRICT KOLAR – 563101.

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SRI N.D.RAMARAJU GENERAL MANAGER TELECOM ASHOKA ROAD, TUMKUR [ACTING HIMSELF AS DISCIPLINARY AUTHORITY AND GENERAL MANAGER TELECOM KOLAR. ...PETITIONERS

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(BY SRI VISHNU BHAT, ADV.)

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AND :

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SRI M.RAJAPPA S/O GOJIPET MUNEPPA AGED 52 YEARS OCC: SR. TOA(P) OFFICE OF GENERAL MANAGER TELECOM, KOLAR-563101

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(UNDER ORDERS OF COMPULSORY RETIREMENT) RESIDING AT NO. 5772/5546, "SRI HARSHA" M.N. HALLI ROAD, NEAR APMC YARD, 5^TH CROSS, MATUTHI NAGAR, MULBAGAL-563131 KOLAR DISTRICT. …RESPONDENT

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(BY SRI P.A.KULKARNI, ADV.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.01.2014 PASSED BY HON’BLE CAT, BANGALORE BENCH, BANGALORE IN O.A.NO.1/2014 AS PER ANNEXURE-C AS THE SAME IS UNJUST, ARBITRARY AND WITHOUT AUTHORITY OF LAW AND CONSEQUENTLY DISMISS THE OA; AND ETC.,

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON 09.03.2021, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, S. SUJATHA, J ., PASSED THE FOLLOWING:

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O R D E R

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Since common and akin issues are involved in

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these two petitions, the matters are clubbed, heard together and disposed of by this common order.

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Marshalling of facts is necessary for the better understanding of the case.

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Sri.M.Rajappa respondent in W.P.No.4968/2014 was working as a Senior Telecom Operating Assistant (Phones), in Kolar Telecom District, Kolar Division. On

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31.3.2011 Articles of charge was issued to him by the Deputy General Manager (HR/A), BSNL, Office of the GMT Kolar leveling three charges. On denial of charges, an enquiry was initiated by appointing the Inquiry Officer to conduct the inquiry and submit the report. The Inquiry Officer submitted the reported on 25.10.2013 holding the charges as proved. On receipt of the report of the Inquiry Officer, the respondent-Rajappa was served with a letter dated 11.11.2013 affording an opportunity to submit his representation against the report of the Inquiry Officer and on receipt of the representation of the respondent, the Disciplinary Authority having not satisfied with the reply of the respondent, vide order dated 30.12.2013 imposed penalty of ‘compulsory retirement’ against which the said respondent approached the Central Administrative Tribunal (‘Tribunal’ for short), Bangalore Bench in O.A.No.1/2014. The Tribunal vide order dated 20.1.2014 allowed the application setting aside the order of penalty on the ground that the officer who has imposed

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the punishment was incompetent. Being aggrieved by the same, the Chief General Manager Telecom and others have filed Writ Petition No.4968/2014.

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The respondent Sri.S.S.Shankeen in W.P.No.15639/2017 who was working as Senior

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Telecom Operating Assistant (Phones) in Kolar Telecom Division was issued with Articles of charge by the Deputy General Manager (HR/A) BSNL. A departmental enquiry was held and the enquiry report was submitted holding thereby all the articles of charge being proved. The said enquiry report was served with the Memorandum dated 11.11.2013 to the respondent. On receipt of the representation submitted by the respondent, the 2^nd petitioner-The General Manager Telecom, Kolar, vide order dated 26.11.2013 imposed a penalty of ‘compulsory retirement’ on the respondent. The respondent approached the Tribunal in O.A.No.311/2014 challenging the said order of

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compulsory retirement. The Tribunal following the order

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passed in O.A.No.1/2014, the subject matter of W.P.No.4968/2014 which is connected herein, allowed the application subject to the result of the above Writ Petition. Being aggrieved, W.P.No.15639/2017 has been filed by the Chief General Manager Telecom.

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Learned counsel for the petitioners argued that as per Rule 34 of the Bharath Sanchar Nigam Limited Conduct, Discipline and Appeal Rules, 2006 (‘Rules’ for short), the Disciplinary Authority, as specified in the schedule or any authority, higher than it, may impose any of the penalties specified in Rule 33 on any employee. Schedule to appointing disciplinary appellate and reviewing authorities in BSNL for non executives (for absorbed Group ‘C’ and ‘D’ and equivalent directly recruited non-executives) would provide that the DGM concerned/SE/Equivalent officer is the Disciplinary Authority for the Group NE-5 to NE-11 (Group ‘C’) Maximum of scale up to Rs.12, 245/-. As per the note to the said Schedule, all the officers mentioned in the

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Schedule and their equivalents shall exercise the powers of disciplinary authorities in respect of employees working under them (including officers on deputation/deemed deputation). “GM or equivalent” is also defined in the said schedule according to which officer holding or entrusted with the charge of the office of GM or equivalent, provided that the charge is for not less than 45 days. It was submitted that the post of DGM, Kolar was held by an Assistant General Manager on looking after basis, temporarily till the regular incumbent takes charge. Since the post of DGM was held by an AGM rank officer on looking after basis, he could not have exercised the statutory power of the Disciplinary Authority. The next higher authority was the General Manager, Kolar who was the competent authority to take disciplinary action against the respondent as provided under Rule 34(1) of the Rules. There being dearth of Senior Administrative Grade (SAG) officers who can hold the post of General Manager in

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individual Telecom Districts, one General Manager was entrusted with the additional charge of two or more Telecom Districts, with full financial and administrative powers, including statutory powers conferred under the relevant Rules.

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Sri.N.D.Ramaraju, General Manager, Tumkur, was holding the additional charge as General Manager, Kolar and Hassan Telecom Districts. During the period 7.11.2013 to 30.11.2013 the said officer applied for leave which was sanctioned by the competent authority. After availing the leave, the said officer took charge of General Manager, Tumkur on 2.12.2013. The Tribunal misconceived the said leave as discontinuation in service and held that the penalty of ‘compulsory retirement’ imposed on the respondent under the said Rule 34 is bad in law.

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Learned counsel for the respondent in both the cases submitted that the petitioner No.3 is not the

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competent officer to impose the penalty of ‘compulsory retirement’ who was looking after the duties of General Manger, Kolar and Hassan Telecom Districts in addition to the duties of Tumkur Telecom District as per the rearrangement of duties as per the order dated 25.4.2013. As per the Rules, General Manager or equivalent would be the officer holding or entrusted with the charge of General Manager or equivalent, provided that the charge was for not less than 45 days, no such entrustment order was passed. Looking after the duties would be only to administer the day-to-day affairs and such duties would not include imposing of any penalty order.

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Nextly, it was contended that the petitioner No.3 was on leave from 7.11.2013 to 27.11.2013 and further extended till 30.11.2013. Thereafter, the 3^rd petitioner took charge of General Manager, Tumkur on 2.12.2013 but no order of additional duties was passed. The order dated 29.11.2013 [Annexure-A12] would not be applicable after availment of leave by the 3^rd

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petitioner. It was further submitted that the genesis of the dispute relates to the lis between one Venkateshappa and M.Rajappa who were heading two different Unions and they both belonged to scheduled caste category. The criminal cases filed against them were culminated in acquittal order passed in S.C.No.4/2012 [Venkteshappa] and Spl.C.C.No.13/2011 [M.Rajappa and others]. There was compromise between the two rivalry groups. In the said process, Sri.S.S.Shankeen was victimized. His terminal benefits are held up by the petitioners though he retired from service on 1.6.2016. Thus, it was submitted that the competency of the petitioner No.3 in imposing the order of penalty being not in conformity with the Rules, the order passed by the Tribunal deserves to be confirmed dismissing the writ petition.

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Adverting to the arguments advanced by the

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learned counsel for the parties, the point that arises for our consideration is, –

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Whether the order of the Tribunal holding order of penalty passed by the petitioner No.3 is vitiated for want of competency is justifiable?

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The fulcrum of dispute relates to the

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competency of the petitioner No.3 in passing the penalty order exercising the powers as disciplinary authority. In this regard, reliance is placed heavily by the petitioners on the order dated 25.04.2013 made in Re-arrangement of Duties in SAG of ITS Group A. In terms of the said order, the petitioner No.3 is empowered to look after the duties of General Manager, Kolar Telecom District and Hassan Telecom District in addition to the duties of Tumkur Telecom District without any extra remunerations. Rule 34 of the Rules, which deals with the Disciplinary Authority contemplates as under:

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“[1] The Disciplinary Authority, as specified in the schedule or any authority higher than it may impose any of the penalties specified in Rule 33 on any employee.

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[2] The Disciplinary Authority competent to impose any of the penalties specified in Rule 33 can institute disciplinary proceedings against the employee. Any authority higher than the Disciplinary Authority can direct the Disciplinary Authority to institute disciplinary proceedings against any employee.”

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SCHEDULE OF APPOINTING DISCIPLINARY, APPELLATE AND REVIEWING AUTHORITIES IN BSNL

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FOR NON-EXECUTIVES [FOR ABSORBED GROUP ‘C’ & ‘D’ & EQUIVALENT DIRECTLY RECRUITED NON-EXECUTIVES]:

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Appellate
Authority
for Major
Sl. Group Appointin Penalty & Reviewing
No. Category & g Disciplinary Authority Reviewing Authority for
Pay Grade Authority Major Penalty
Authority
for Minor
Penalty
Minor Penalty Major Penalty
& Appellate
Authority for
Minor Penalty
1. NE-1 to NE- STS JTS Group STS Group DGM GM
4*, Group ‘A’/SrSDE/SDE/ ‘A’/DE/CAO/E concerned/ concerned/CE
[Group ‘D’] A’/DE/CA SrAO/AO/Equival quivalent SE/Equivale /Equivalent
Maximum of O/Equiva ent Officer. officer. nt Officer Officer.
scale up to lent
Rs.6,200/- officer.
2. NE-5 to NE- DGM STS Group DGM GM CGM
11*, concerne ‘A’/DE/CAO/ concerned/SE concerned/ concerned/Eq
[Group ‘C’] d/SE/Equ Equivalent /Equivalent CE/Equivale uivalent
Maximum of ivalent officer officer. nt officer. officer.
scale up to officer
Rs.12,245/-

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NOTE:

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[1] All above mentioned officers and their equivalents shall exercise the powers of

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disciplinary authorities in respect of employees working under them. [including officers on deputation/deemed deputation].

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[2] Where officers of the level indicated in the schedule are not available, then the officers in the higher scale[s]/grade shall exercise these powers.

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[3] These authorities are for all Non Executive employees in all wings, i.e., Civil, Electrical, Arch., Finance & Telecom.

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[4] An appeal against an order of punishment specified in Rule 33 of the BSNL Conduct/Discipline and Appeal Rule 2006, shall henceforth be made by the concerned office bearer of the recognized union/association to the Director[HR], BSNL Board under the provisions of Rule 46[3] of the BSNL Conduct/Discipline and Appeal Rule 2006.

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[5] (i) “CGM or equivalent” will also include Officer holding or entrusted with the charge of the office of CGM or equivalent, provided that the charge is for not less than 45 days.

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(ii) “GM or equivalent” will also include Officer holding or entrusted with the charge of the office of GM or equivalent, provided that the charge is for not less than 45 days.

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(iii) Equivalent means equivalent Officer in the concerned wing, i.e., BSNL Finance, Civil, Electrical, Architecture, etc.”

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The private respondents would come in the

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pay scale of in CDA i.e., 3050-75-3950-80-4590 NE-5. As

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such, as per the schedule, DGM concerned/SE/Equivalent officer is the Appellate

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Authority for Major Penalty and Reviewing Authority for minor Penalty. As per the Note-4[ii] GM or Equivalent would include Officer holding or entrusted with the

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charge of the office of GM or equivalent, provided that the charge is for not less than 45 days. As per 5[iii] Equivalent means equivalent Officer in the concerned Wing i.e., BSNL Finance, Civil, Electrical, Architecture, etc.

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In the light of these Rules, the phrase “lookafter” has some significance. The relevant factors to be fulfilled for attracting the definition clause of GM or equivalent are: [1] Officer should hold or entrusted with the charge of the office of GM or equivalent [2] Such charge is for not less than 45 days.

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10. The petitioner No.3 was holding the charge

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of General Manager, Tumkur Telecom District. In terms of the order dated 25.04.2013, he has been assigned with the additional duties of General Manager, Kolar Telecom District and Hassan Telecom District. The Tribunal in O.A.No.1/2014 [D.D. 20.01.2014] while considering the said issue, has held that petitioner No.3 herein was merely detailed to “look after the duties of

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GM, Kolar District” in addition to his regular duties; he was not the concerned General Manager, Kolar Telecom District; it appears although as General Manager, he was indeed senior in the hierarchy to the DGM, as specified in the Rules, he was on leave from 07.11.2013 to 27.11.2013; this constitutes an interruption in his tenure as GMT, Kolar, even though on completion of his leave, he again assumed to charge of the post of GMT, Kolar. Relying upon the judgment of the Hon'ble Apex Court in the case of Ajaib Singh V/s. Gurbachan Singh and Others [AIR 1965 SC 1619] , it was held that the penalty order passed by the petitioner No.1 was not sustainable. In Ajaib Singh supra, the Hon'ble Apex Court has held thus:

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“[11] The next question is whether an Additional District Magistrate can be said to be of the same rank as the District Magistrate. We are clearly of the opinion that an Additional District Magistrate is below the rank of a District Magistrate and cannot be said to be of the same rank as the District

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Magistrate. We may in this connection refer to s.10(2) of the Code which shows that an Additional District Magistrate need not necessarily be conferred with all the powers of the District Magistrate under the Code or any other law for the time being in force. He can be an Additional District Magistrate though he may be exercising only some of the powers of the District Magistrate. Clearly, therefore, an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further sub-s. (3) of s. 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. Therefore even if the Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in s. 10(3) of the Code. Besides there is only one District Magistrate in a district and all other magistrates whether they be Magistrates first class or even Additional District Magistrates

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must obviously be below him in rank. As s. 3 (2) (15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank of a District Magistrate. The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside.”

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An officer below the rank of a District

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Magistrate was not empowered to exercise the power of detention under Section 3(2)(15) of the Defence of India Act No.51 of 1962. In the present case, in the Note [ii] appended to the Schedule, it is made clear that where officers of the level indicated in the schedule are not available, then the officers in the higher scale[s]/grade shall exercise these powers. It is the contention of the petitioners that DGM concerned not being available, the

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officer in the higher scale/grade i.e., GM concerned is empowered to exercise the powers of disciplinary authority.

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In this scenario, it is apt to refer to the judgment of this Court in the case of M.Maridev Vs. State of Mysore reported in [1968 (1)

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Mys.L.J.326] wherein this Hon’ble Court has observed thus:

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“The Note to Rule 32 does not expressly state that the appointment contemplated is to be in charge of the current duties of an office independently; but the meaning of the note is quite clear. It means that instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in independent charge of the current duties of a vacant post in a higher appointment as a temporary measure. When the impugned order expressly states that the in-charge appointment is made under Rule 32 on a temporary basis, it has to be construed as meaning that respondents 3 to 8 are placed in independent charge of the current duties of the vacant posts of Assistant District Excise Officers

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and nothing more. Placing a subordinate officer, in independent charge of the current duties of a vacant post in a higher appointment does not amount to his promotion to the higher post. A subordinate officer charged with the performance of the duty of a superior for a limited time and under special and temporary conditions, is not thereby transformed into the superior and permanent official. Officiating appointments, and in charge arrangements are well-understood terms in civil service. When an officer is appointed to officiate in a higher appointment, he is invested with the powers of the higher post, but when he is placed in charge of the current duties of a vacant post in a higher appointment, whether in addition to his own duties or independently, he cannot exercise any of the statutory powers of the office; he can merely perform the day-to-day office duties only. ”

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13. In B.N.Dhotrad Vs. The Board of Directors

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cum Appellate Authority and others [ILR 2006 KAR

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3163] a Division Bench of this Court has held thus:

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“14. Although, it is difficult to define the terms “Substantive Power” or “Substantive Function”, still is not uneasy to

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illustrate the concept. The policy decisions and the actions to implement them fall within the realm of “Substantive Functions”. Generally, in service jurisprudence, all the powers which the service Rules vest in the Authority or Office, expressly or by necessary implication may be termed as substantive powers. In the given case, rules vest inter alia the followings powers in the Office of Managing Directors: 1) Appointment and Promotion, 2) Disciplinary Control, 3) Recovery on account of Damage, 4) Appeal in disciplinary matters, 5) Pay fixation, 6) Transfers and Posting, etc. In addition to this, the quasi-judicial functions, perhaps come within the scope of substantive powers and therefore, the Disciplinary action is necessarily to be initiated only by the substantive appointee and not by the incharge holder of the post. Similarly, the Rule making, power to enter into contracts, the general administration of the affairs of the management are also substantive functions.”

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The order dated 25.04.2013 though empowered the petitioner No.3 to look-after the duties of

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General Manager, Kolar District in addition to Tumkur District, he did not had the power to exercise the substantive functions. As per the legal dictionary, ‘look after’ would mean “take care of”. The Tribunal has rightly held that the petitioner No.3 had no statutory, powers. Further, there was an interruption in the tenure of the petitioner No.3, in view of the leave availed by him from 07.11.2013 to 27.11.2013 and extended to 30.11.2013. The penalty order of compulsory retirement from service passed on 30.12.2013, in case of M.Rajappa does not satisfy the condition of holding the charge for not less than 45 days.

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During this period one Shri N.Janardhana Rao, Senior GM (NBC), Circle Office, Bangalore was looking after the duties of GM, Tumkur/Kolar and Telecom District in addition to his regular duties, IO’s report forwarded to the respondents was signed by Shri N.Janardhana Rao and not by petitioner No.3.

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However, as per Rule 34[1] read with Schedule, the disciplinary authority is DGM concerned, the phrase ‘concerned’ has to be

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interpreted in the facts and circumstances of the case having regard to the order dated 25.04.2013. The petitioner No.3 placed with additional charges

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of duties to look after the duties of General Manager, Kolar Telecom District and Hassan Telecom District in addition to the duties of Tumkur Telecom District cannot exercise the statutory power

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to the regular post of imposing penalty order. It is trite that any order passed without competency is a nullity in the eye of law and goes to the root of the matter.

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