Allowed

P.K.Salim Babu v. General Manager Telecom

Kerala HC9 Dec 2019OP (CAT)/180/2015

Case brief

AI extract

What is this about?

The High Court allowed the review petition of an employee suspended in 2010. Holding that since later proceedings were for a major penalty which only the Chief General Manager could initiate, the initial suspension by the General Manager was incompetent and must be regularized as duty with payment of dues.

What did the court decide?

Directing respondents to regularize the suspension period as duty within three months and pay the petitioner's due pay and allowances.

P.K.Salim Babu Vs General Manager Telecom — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941

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O.P(CAT).No.180 OF 2015(Z)

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AGAINST THE ORDER DATED 16.09.2015 IN R.A.NO.7/2015 IN O.A.NO.309/2011 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER/ APPLICANT IN THE REVIEW APPLICATION:

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P.K.SALIM BABU, JUNIOR TELECOM OFFICER (F.M.), B.S.N.L., KAYAMKULAM-690502.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.K.A.MANZOOR ALI SRI.T.G.SUNIL (PRANAVAM)

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RESPONDENTS/ RESPONDENTS IN THE REVIEW APPLICATION:

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1 GENERAL MANAGER, TELECOM, B.S.N.L., OFFICE OF THE GENERAL MANAGER, TELECOM DISTRICT, BSNL BHAWAN, ALAPPUZHA-688015.

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2 THE DIRECTOR (HUMAN RESOURCE DEVELOPMENT), BSNL, CORPORATE OFFICE, NEW DELHI-110 001.

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3 THE CHIEF GENERAL MANAGER, TELECOM, TRIVANDRUM, BSNL, DOOR SANCHAR BHAWAN, TRIVANDRUM-695033.

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R1-R3 BY ADV. SRI.RAJIT, SC, BSNL. R1-R3 BY SRI.V.R.KESAVAKAIMAL, SC, BSNL

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(CAT).180 of 2015

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K.Vinod Chandran & V.G.Arun, JJ.

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O.P(CAT) No.180 of 2015-Z ----------------------------------Dated this the 09^th day of December, 2019

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JUDGMENT

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K.Vinod Chandran,J:

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The issue agitated before this Court is as to whether the suspension of the petitioner-applicant was proper or not.

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2. On brief facts, it has to be noticed that the petitioner, while working as Sub Divisional Engineer ['SDE' for brevity] in the Bharat Sanchar Nigam Limited ['BSNL' for brevity] was suspended on 04.08.2010, by Annexure A1 [Annexures referred herein are those produced in the Original Application and Review Application before the Tribunal]. The suspension was revoked by Annexure A2 dated 28.10.2010. Immediately on being suspended, the petitioner had filed O.A.No.692 of 2010, which was disposed of after

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the revocation of suspension, by Annexure A3. Annexure A3, noticing the revocation, left the consideration of how the period of suspension is to be treated, to the respondents.

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3. Subsequently, far later in 2015, Exhibit P2

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charge-sheet was issued against the petitioner. Here, we have to notice that the suspension and its revocation was

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made by the General Manager, while the charge-sheet was

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O.P(CAT).180 of 2015

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issued by the Chief General Manager. The petitioner, even before the issuance of the charge-sheet, again approached the Tribunal with O.A.No.309 of 2011 claiming regularization of the period of suspension. The O.A. was disposed of by Annexure RA-1, produced along with Exhibit P3 Review Application. By Annexure RA-1, the Tribunal noticing the order dated 08.11.2010 passed in the earlier O.A.No.692 of 2010 as also the imposition of a major penalty, closed the O.A. directing the petitioner to agitate the issue in a separate proceeding at the appropriate time. O.P(CAT) No.130 of 2014 was filed from the above order. Before this Court, the petitioner claimed that the suspension itself was null and void and the period of suspension had to be regularized as duty. This Court, by Annexure RA-2 judgment, found that the specific issue was not considered by the Tribunal and left the petitioner to file a review, if so desirous. The petitioner took up the matter before the Hon'ble Supreme Court, which Special Leave Petition was dismissed as per Annexure RA-3. The petitioner then approached the Tribunal with a review, the order in which is challenged before this Court. In the impugned order at Exhibit P4, the Tribunal again noticed the earlier orders and dismissed the review.

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O.P(CAT).180 of 2015

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4. We are of the opinion that the dismissal of the review was not proper especially since the question as to whether the suspension order was issued by the competent authority or not had to be considered.

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5. Before us, the learned Standing Counsel appearing for the BSNL produces the Bharat Sanchar Nigam Limited (BSNL) Conduct, Discipline and Appeal Rules, 2006. Rules 3(7), 30 to 33 and the Schedule are pointed out. It is the contention of the Standing Counsel that for minor penalties the General Manager is competent to order a suspension and initiate disciplinary proceeding while for major penalty, Chief General Manager is the competent authority. At the time of suspension, the General Manager had issued the suspension order; but, later, proceedings for a major penalty was initiated by the Chief General Manager himself. However, just two months after the initial suspension, it was revoked by the General Manager himself. Both the authorities, i.e., General Manager and Chief General Manager, being empowered to suspend employees, there could be no contention taken of an incompetent order having been passed.

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6. We have perused the Rules of 2006 as produced before us. Rule 3(7) defines “Disciplinary Authority” as

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O.P(CAT).180 of 2015

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the authority specified in the Schedule appended to the Rules and competent to impose the penalties specified under Rule 33. Rule 33 separately lists out 'minor penalties' and 'major penalties'. Admittedly the penalty imposed on the petitioner is reduction to a lower stage for a period of five years, which is not a minor penalty. Reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years without cumulative effect is the harshest of minor penalties listed out in Rule 33. Hence, there is no dispute on the fact that the penalty imposed is a major penalty.

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7. It is trite that when proceedings are initiated for a minor penalty, there cannot be any major penalty imposed. Quite conscious of the said established position, the Chief General Manager had issued the show cause notice we referred to, as produced at Exhibit P2 in the year 2015. The question is as to whether the suspension in the year 2010 was proper or not.

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8. In the year 2010, but for suspension there was no proceeding initiated. If the proceedings taken subsequent to the suspension was for a minor penalty, definitely the authority would have had power to decide on how the period of suspension is to be treated. But, the

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O.P(CAT).180 of 2015

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proceedings initiated against the petitioner being one for major penalty, the suspension order issued by an officer not conferred with the power to initiate major penalty proceedings has to be found to be incompetent. The suspension between 04.08.2010 and 20.12.2010 having been held to be incompetent, the same has to be regularized as duty. There shall be a direction to the respondents to do so, within a period of three months and pay the petitioner the entire pay and allowances due during the said period. We make it clear that we have not made any comment on the major penalty proceedings or the imposition of penalty, which is not the subject matter before us.

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The Original Petition (CAT) would stand allowed. Parties are directed to bear their respective costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

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vku/-

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O.P(CAT).180 of 2015

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APPENDIX OF OP (CAT) 180/2015

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE O.A.NO.309/2011 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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ANNEXURE A4 TRUE COPY OF THE PROCEEDINGS F.NO.ST-T/GR.B/44 DATED 20/12/2010. ANNEXURE A1 TRUE COPY OF PROCEEDINGS NO.X-2/CON/DISCCASE/10-11/3 DATED 04/08/2010. ANNEXURE A2 TRUE COPY OF PROCEEDINGS GMT/ALP/RULE 36/PKSB/10-1/12 DATED 28/10/2010. ANNEXURE A3 TRUE COPY OF THE ORDER IN OA NO.692/2010 DATED 08/11/2010.

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EXHIBIT P2 TRUE COPY OF ORDER DATED 20.5.2015 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE REVIEW APPLICATION NO.7/2015 IN O.A.NO.309/2011 FILED BY THE PETITIONER BEFORE THE CAT.

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ANNEXURE RA-1 TRUE COPY OF THE JUDGMENT IN OA NO.309/2011 DATED 08/11/2012. ANNEXURE RA-2 TRUE COPY OF THE JUDGMENT IN OP (CAT) NO.130/2014 DATED 26/09/2014. ANNEXURE RA-3 TRUE COPY OF THE JUDGMENT IN SPECIAL LEAVE TO APPEAL (C) NO.(S) 34352/2014 DATED 15/12/2014. EXHIBIT P4 TRUE COPY OF THE ORDER IN REVIEW APPLICATION NO.7/2015 IN O.A.NO.309/2011 DATED 16.09.2015 OF THE CAT.

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE R1(A) TRUE COPY OF THE ORIGINAL APPLICATION IN OA NO.692/2010.

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[TRUE COPY]

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O.P(CAT).180 of 2015 - 8 -

P.K.Salim Babu v. General Manager Telecom

Case brief

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P.K.Salim Babu v. General Manager Telecom

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