Saturday, October 15, 2011

OA NO.237/2009 on ?????????-07-2010





S.Madhusudhana Bhat,
S/o S.Seenam Bhat,
Aged about 51 years,
Working as SDE, (OP),
O/o General Manager Telecom,
BSNL, Bellary Dist. ...Applicant

(By Advocate Shri M.R.Achar)


1. The Managing Director/Chairman,
Bharath Sanchar Nigham Limited,
New Delhi – 110 011.

2. The Chief General Manager Telecom,
Karnataka Telecom Circle,
BSNL, No.1, S.V.Road, Ulsoor,
Bangalore – 560 008. ...Respondents

(By Additional Central Government Standing Counsel Shri V.N.Holla)

O R D E R (ORAL)??????????


“The cost of democracy is constant vigilance” - said Abraham Lincon. The vigilance and good-system must prevail in Government departments – they cannot be slack and make individual suffer.

2. This application is filed under the Section 19 of Administrative Tribunals Act, 1985. It is the case of the applicant, initially appointed as JTO on 22.3.1986 in the organisation of BSNL, he completed 12 years of service on 21.3.1998 from which date onwards he becomes due for consideration under the scheme of lateral advancement, which was subsequently given in the cadre of JTO officer by order dated 8.1.2001. On the face of it, the order was subject to
non-disciplinary or vigilance proceedings either pending or contemplated against the person. The respondents would like us to believe that there was a vigilance case contemplated. It is undisputed that applicant was charge sheeted on 11.12.2001 and on ensuing enquiry he was found guilty and was punished by withholding increment for 2 years with cumulative effect. In the meantime the lateral advancement promotion ordered on 8.1.2001 was withheld against which the applicant made his representation on 26.3.2007 with request to release the same. It was communicated to him on 7.1.2008 that the order could not be implemented on the ground that the applicant was undergoing the punishment for those acts of commission and omission done by him during the period prior to the date of order of the lateral advancement. The applicant thereafter submitted 4 more representations to senior authorities but the same have not been considered.

2. The main ground as argued by the learned Counsel for applicant rests on the fact that on 8.1.2001, (this is the date of lateral advancement order) there was no charge sheet against him, but the charge sheet was given on the very next day on 9.1.2001 and that too was withdrawn on technical grounds. New charge sheet was given only as late as 11.12.2001. Hence any claim of the respondents that a departmental enquiry was contemplated on the day of issuance of order does not hold water. The memo of charges first served on him on 9.1.2001 seems a hurried makeshift arrangement which contained technical flaws on account of hurry and had to be withdrawn and the real contemplation apparently must have started later because it took nearly 12 months for the department to finally issue a proper charge sheet on 11.12.2001 and finish the enquiry on 20.2.2007 after 6 years. The learned Counsel would rely upon the judgement of the Hon'ble Apex Court in UOI Vs. Janikiram reported in AIR 1992 page 2010 (SC), wherein their Lordships have clarified that initiation of enquiry
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means the date of charge sheet. The learned Counsel would also submit that
although the claim of the applicant pertains to the period 2001, it does not fall under the case of the delay because the applicant has been making representations to the authorities for considering his case. In any case he prays for condoning delay if at all and this was granted by admitting case for final hearing.

3. The learned Counsel for the respondents agree that though the applicant became eligible for lateral promotion after completion of 12 years of service on 22.3.1998 however, the centralised DPC for all JTOs was conducted only on 11.12.2000 where after the applicant was also held eligible for lateral promotion alongwith others and the relevant order was issued on 8.1.2001 but this order was subject to any pending or contemplated departmental proceeding. He would further argue that such a disciplinary proceeding was contemplated by the department as will be seen from the fact that on 9.1.2001 charge sheet handed over to him. This completely fails to enthuse us because if at all such a contemplation really existed it would have had its mention on the DPC which was held just few days back and which must have been attended by all the relevant senior and assisting officers. We feel that had it been so mentioned the department would remain vigilant and not include him in the list of promotion. The learned Counsel would also like to argue that the said lateral promotion order dated 8.1.2001 was only in the nature of temporary list and was valid for one year and it seized to be operative after a period of one year and six months when a fresh list was prepared. According to the respondents the applicant will be due for lateral promotion only after a fresh DPC is conducted now.

4. We find this to be a classic case where departmental laxity has come to undue financial disadvantage of the applicant. Had the DPC been held within
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a reasonable time after the applicant completed his 12 years i.e., any time after
1998 he would have got the promotion in natural course. Firstly, the department took 3 years to hold the DPC and issue relevant lateral promotion orders. Secondly, the department seems to have woken up with a sudden jerk to issue a technically faulty order to him on 9.1.2001 to escape the consequences of their own order dated 8.1.2001. Thirdly, a charge sheet was served on him on 11.12.2002 but the Disciplinary Enquiry was completed only after 6 years and the punishment withholding two increments with cumulative effect was made to start and end thereafter (i.e., between 2007 to 2009) and the applicant was further held ineligible for implementation of order dated 8.1.2001 till the punishment period got over in 2009 and further the department is willing to consider his case for promotion only as and when a fresh DPC takes place after the punishment period is over. All this is the case of complete slackness of the department, the disadvantage of which is tried to be passed on to an individual who is thus made to suffer. We fully agree with the learned Counsel for the applicant that had he been given the lateral promotion either in 1998 when he was due or in January, 2001 when the order was issued, he would no doubt have suffered the punishment of withholding of two increments, but in a higher scale. We also would go by the judgement of the Apex Court that clinches the issue of departmental proceedings as being the date of charge sheet. We do not agree with the respondents that the date of charge sheet was 9.1.2001 or that there was a contemplation of enquiry which could not have been noticed just one day prior to the date of a technically faulty charge sheet or on the date of DPC just few days before. We hold the date of charge sheet to be 11.12.2001 by which date the applicant should have been treated as promoted by way of lateral advancement.

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5. Accordingly, we hold that the order dated 7.1.2008 is bad in law. The applicant should be treated as promoted on the same date on which his next
junior in the list issued on 8.1.2001 has been given the scale. All the consequential benefits including the consequential loses arising out of the punishment of two increment being withheld with cumulative effect should be assessed by the department and paid to the applicant within 3 months. No order as to costs.



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