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R. Kasturi Raman v/s Bharat Sanchar Nigam Ltd. & Others

    Original Application No. 63 of 2012

    Decided On, 28 August 2015

    At, Central Administrative Tribunal Bombay Bench Mumbai

    By, THE HONOURABLE DR. MRUTYUNJAY SARANGI
    By, MEMBER (A) & THE HONOURABLE MR. ARVIND J. ROHEE
    By, MEMBER (J)

    For the Applicant: G.B. Kamdi, Advocate. For the Respondents: V.S. Masurkar, Advocate.



Judgment Text

Dr. Mrutyunjay Sarangi, Member (A).

1. The applicant who works as Sub Divisional Engineer in the office of the Principal General Manager at Telephone Bhavan, Kala Talao, Kalyan has filed this OA challenging the punishment imposed on him by the Disciplinary Authority by his order dated 19.03.2009, subsequently modified by the Reviewing Authority to a penalty of 'withholding the next increment for a period of one year without cumulative effect'.

2. The facts of the case, as they appear from the OA, are as follows;

i) The applicant was working as Sub Divisional Engineer (Computer) in Kalyan Telecom District when he was served with a charge-sheet dated 11.02.2009 under Rule 35 of the BSNL CDS Rule 2006. The statement of imputation of misconduct in the charge-sheet reads as follows;

'1. That during the year 2000, Shri R. Kasturi Raman was Sub-Divisional Engineer (Computer) in Kalyan Telecom Dist. and in his capacity as such he has initiated a note for taking approval of the competent authority for outsourcing the printing job of telephone bills without any in-house exercise. Shri R. Kasture Raman while functioning as such moved the proposal for inserting technical specification i.e. 'the printer should have the capability of two colour duplex one pass with one engine' through amendment no.1 in NIT without giving any reason. The said specification was exclusively suiting to M/s. Xerox Modicorp Ltd. and restricted competition in case of an open tender.

2. Further Shri R. Kasturi Raman, while functioning as such moved the proposal for amendment no.2 regarding deletion of word 'docuprint' from NIT which was cosmetic in nature and having no bearing on the merits of the tender. Shri R. Kasturi Raman while functioning as SDE (Computer) did not advise Shri K.V. Rao in the matter of complaint of M/s. CMS Computers that technical specification i.e. one engine was specifically suiting to one vendor and eliminating others. On the other hand, while recording noting for the amendment no.2, Shri R. Kasturi Raman has emphasized the necessity of one engine as technical requirement without giving any plausible reason. This proves that R. Kasturi Raman has also got vested interest in the award of tender to M/s. Xerox Modicorp Ltd.

3. Thus thereby, Shri R. Kasturi Raman has failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Public Servant and therefore, he has contravened Rule 4(1)(a), (b) and (c) of BSNL CDA Rules, 2006.'

ii) It is the applicant's contention that the incident in the charge-sheet related to the year 2000 whereas charge-sheet was issued to him in 2009 after a delay of 9 years.

iii) He has submitted his reply to the charge-sheet wherein he denied the allegations levelled against him. He states that in the year 2000, when he was working as SDE (Computer) in Kalyan Telecom District of BSNL the then General Manager Shri C. Nityananadan had called him to his office and conveyed his intention of implementation of outsourcing of telephone bill printing job in Kalyan SSA to improve the appearance of bill as was done in MTNL, Mumbai and Bangalore Telephone District. During the period when Shri Nityanandan was on leave Shri T.V. Rao Incharge General Manager, Kalyan deputed six officers to Bangalore Telecom District to study the technical and financial implications of the proposal initiated by Shri Nityanandan. Shri K.V. Rao, the then Dy. General Manager (Planning) BSNL Kalyan had handed over the extract of Technical specifications and tender document of Bangalore and Aurangabad to the applicant with the direction to modify the tender document for Kalyan SSA. The amendments were drafted under the instructions of Shri K.V. Rao, after the latter had discussions on the technical specifications of the tender with experts from M/s. Xerox Modicorp. Ltd.

iv) The applicant also states that the second amendment to delete the word 'docuprint' from NIT was also drafted and issued as per instructions and directions from Shri K.V. Rao DGM (Planning) based on the complaint received from M/s. CMS Computers Ltd. Against M/s. Xerox Modicorp. Ltd.

v) It is the applicant's contention that he was not aware of any complaint, since the complaints were addressed by name to Shri C. Nityanandan, General Manager, BSNL Kalyan, Shri Joglekar, Director of Finance and Accounts, Shri K.V. Rao, Dy General Manager (Planning) BSNL, Kalyan. The applicant has acted only according to the instructions of the higher authorities and he put up notes for approval, which were approved by the competent authorities.

vi) The applicant had mentioned in his reply to the charge-sheet that he had acted according to the instructions of the General Manager and the DGM of the Kalyan SSA. However, these facts were not considered by the Disciplinary Authority, General Manager (O), BSNL, Kalyan while passing the punishment order. Relevant portion of the said order is as follows;

'...................Lack of knowledge could not be accepted as an excuse. Moreover, on receipt of the complaint from M/s. CMS Computers Ltd, Shri R. Kasturi Raman, SDE suggested an amendment deleting the 'docuprint' and mentioning one engine was the technical requirement of the tender, even though it was highlighted in bold letters and stated in the complaint that it would technically eliminating all the competition. Furthermore, the amendment No.2, attributed by the aforesaid complaint, was not having the approval of the competent authority too. This omission signified the irregularities and negligence on the part of Shri R. Kasturi Raman, SDE.'

vii) The applicant preferred an appeal against this order to the Appellate Authority, Chief General Manager, Maharashtra Circle, Mumbai-54 who in his order dated 20.05.2009 rejected the appeal filed by the applicant. The applicant subsequently filed a Review Petition against the order of the Appellate Authority and the Director (HR) & Reviewing Authority, BSNL, New Delhi in his order dated 08.08.2011 considered the Review Petition and modified the penalty imposed by the Disciplinary Authority to that of 'withholding the next increment for a period of one year without cumulative effect'.

viii) It is the applicant's contention that the charge-sheet was issued after a delay of 9 years and no defence witnesses were available in the Kalyan SSA due to the fact that then officers/officials had either been transferred or retired after a lapse of 9 years.

ix) The applicant also submits that he had demanded a copy of the CBI Report on this matter but the same was not supplied to him by the Disciplinary Authority.

x) It is his contention that the penalty of reduction in one stage for a period of one year, although it comes under minor penalty, cannot be given without inquiry as per Rule No.33(e) of BSNL CDA Rules 2006. The Disciplinary Authority has failed to observe the rules and procedure and imposed the punishment without inquiry. This shows that he has acted in a biased manner. Similarly, the Appellate Authority and the Reviewing Authority have not considered the various points raised by him. The Reviewing Authority has admitted that the punishment of reducing to lower stage punishment of withholding one increment cannot be given without conducting an inquiry in the matter.

3. Aggrieved by this action of the Disciplinary Authority, Appellate Authority and the Reviewing Authority, the applicant has filed this OA praying for the following reliefs;

'a) This Tribunal will be pleased to call for record while to the issuance of the impugned punishment orders and after going through its properly and legally be pleased to quash and set aside the impugned charge-sheet dated 11.02.2009 and also the punishment order dated 19.03.2009 passed by the Disciplinary Authority, the order dated 20.05.2009 passed by the Appellate Authority and order dated 08.08.2011 passed by the Reviewing/Revisioning Authority with all consequential benefits of promotion, arrears of pay etc. if any.

b) Any other and further orders as this Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.

c) The cost of this original application be provided.'

The applicant had not prayed for any interim order.

4. The applicant has based his prayer on the following grounds;

i) It is the contention of the applicant that the impugned orders are absolutely illegal, wrong and arbitrary and violative of Articles 14 and 21 of the Constitution of India.

ii) It is his contention that the impugned orders are capricious and malicious. There is no evidence that the applicant acted for personal gain or advantage of any nature.

iii) The delay in initiation of disciplinary proceeding resulted in denial of natural justice to the applicant.

iv) No evidence has been produced to prove the allegation and charges against the applicant who was denied access to CBI report/investigation report.

v) No departmental investigation was conducted and charges against the applicant was without proper procedure.

vi) The impugned orders were passed without any application of mind and the defence of the applicant has not been taken into account by the Disciplinary Authority, Appellate Authority and the Reviewing Authority.

vii) The applicant has pleaded that the impugned orders are illegal, unconstitutional, vindictive, unsustainable, malafide and should be set aside with all consequential benefits.

5. The Respondents in their reply dated 11.04.2012 have refuted all the allegations made by the applicant. They have stated that the General Manager (O), BSNL, Kalyan had issued a minor penalty charge-sheet dated 11.02.2009 under the provisions of Rule 35 of the BSNL Conduct, Discipline and Appeal Rules, 2006. The Charge is mainly that the applicant initiated a note for taking approval of the competent authority for outsourcing the printing job of the telephone bills without any in-house exercise and that too with specifications which were available only with M/s. Xerox Modicorp Ltd., thereby restricting competition in case of an open tender. It is the respondents' contention that the applicant in his reply to the charge-sheet on 16.02.2009 simply shifted the blame to Shri K.V. Rao, the then Deputy General Manager, Telecom (Planning) on the ground that he had no knowledge of printing and that is why he should be exonerated. The applicant did not ask for any document nor did he ask for detailed inquiry as conducted in a case of major penalty charge-sheet. The respondents state that the order of the Disciplinary Authority, Appellate Authority and the Reviewing Authority are detailed and reasoned orders taking into account the points raised by the applicant and therefore, are valid and sustainable. The respondents have admitted that the applicant has asked for investigation report of the CBI but the respondents denied him access to this report as it is a confidential document and in the light of instructions under the Ministry of Home and Affairs OM dated 25.08.1961 such document need not be supplied to the applicant. It is the respondents' contention that the applicant had raised new points before the Appellate Authority which he had not raised before the Disciplinary Authority. One such point relates to the amendment of the proposal for inserting technical specification i.e. the printer should have the capability of two colour duplex at one pass with one engine. The applicant admitted that it was moved by him but he also stated that he was not having knowledge regarding printing technology. Without knowledge of printing technology he should not have processed the above mentioned amendment proposal. It is the respondents' contention that most of the grounds mentioned by the applicant in the OA were not agitated before the Disciplinary Authority/Appellate Authority/Revisionary Authority and have been introduced for the first time in the OA.

6. The respondents have cited the judgment of the Hon'ble Supreme Court in Food Corporation of India, Hyderabad & Ors. Vs. A. Prahalada Rao & Anr., 2002 (2) SC SLJ 407 wherein it was held that there was no infirmity when no regular inquiry was held before imposing the minor penalty of recovery of an amount on account of preliminary loss. In the case of State of Tamil Nadu Vs. S. Subramaniam, AIR 1996 SC 1232 the Hon'ble Apex Court held that the power of the Central Administrative Tribunal is limited only to the judicial review of the process of the administrative action and excludes the consideration of evidence, record and findings which belongs to the domain of the Disciplinary Authority. Similarly in Government of Tamil Nadu Vs. K.N. Ramamurthy, 1998 (1) SLJ (SC) 63 the Hon'ble Supreme had held that the Tribunal cannot interfere in findings if there is no flaw in procedure.

7. The applicant filed a rejoinder on 02.05.2012 enclosing the copy of the Rules 33, 35, 36 and 54 of the BSNL CDA Rules 2006. The applicant also submitted a rejoinder to the reply filed by the respondents. It is the applicant's contention that it is not correct that he did not ask for a document and that he did not ask for detailed inquiry as adopted in his minor charge-sheet. It is for the Disciplinary Authority to list the documents/evidence in support of the charges and and that is not the job of the charged official. As per the principle of natural justice, the Disciplinary Authority should have have followed correct procedure and conducted an inquiry before imposing punishment on the applicant. The applicant has reiterated that the delay of 9 years in issuing the charge-sheet has seriously prejudiced the case against him. The applicant has also reiterated Rule 36(1) of the BSNL CDA Rules 2006, as per which no order for imposing any of the penalties specified in clause (e) (minor penalty) and (f) to (j) of Rule 33 shall be made, except after an inquiry held in accordance with the Rules. The applicant has cited the ruling of the CAT, Calcutta Bench in TA No.4/1985 Sanskari Pada Mukherji Vs. Union of India decided on 04.04.1986 wherein it was held that non-supply of the preliminary report of the CBI and the previous statement of the witness examined during the inquiry deprived the petitioner of properly defending his case. The applicant has submitted that the Reviewing Authority had modified the punishment without conducting a proper inquiry and this rendered the punishment illegal and invalid. The applicant reiterated the ground of denial of natural justice to him due to the inordinate delay in initiating the inquiry proceedings against him. The applicant has questioned the reliance placed by the respondents on the judgment of the Hon'ble Apex Court in State of Tamil Nadu Vs. S. Subramaniam (supra) on the ground that a finding of fact based on no evidence in a departmental inquiry is an error of law which can be corrected by the Tribunal. The applicant has cited the observations of the Hon'ble Supreme in the case of Union of India Vs. H.C. Goel, AIR 1964 SC 364 in this regard. The applicant has also cited the judgment of the CAT, Jodhpur Bench in Aidan Puri Vs. Union of India, 1986 20 SLJ (CAT) 72 Jodhpur wherein it has been held that CAT can interfere with punishment if it is found that the same is arbitrary or grossly excessive or is out of all proportion to the misconduct found to have been committed by the delinquent public servant. It is also the contention of the applicant that ruling in the case of Government of Tamil Nadu Vs. K.N. Ramamurthy (supra) is not applicable in his case since there is a flaw in the procedure in disciplinary case against him. The applicant has also relied on a number of other judgments in his rejoinder. He has cited the case of R.S. Sagar Vs. Union of India, 93 (2001) DLT 194 Delhi High Court decided on 01.06.2001 in which the Writ Petition was allowed and the charge memo and the order of punishment of censure alongwith order of reviewing authority were quashed due to inordinate and unexplained delay in initiating disciplinary proceeding which had caused serious prejudice to the petitioner. Similarly in the case of K.L. Sharma S.E. Vs. Union of India 2004 (30 SLJ 154 CAT) the Cuttack Bench of the CAT quashed the order of the Disciplinary Authority on account of delay in initiation of disciplinary action and since the principle of natural justice was not followed. In the case of Transport Commr Vs. Radha K. Moorthy, 1995 SCC (1) 332, the Hon'ble Supreme Court had held that the charges framed against the charged official were vague since except charge-sheet no other particulars of charges or supporting particulars were supplied. In the case of Lal Audraj Singh Vs. State of Madhya Pradesh, AIR 1967 MP 284 the Hon'ble Madhya Pradesh High Court has taken a view that a master cannot impose any punishment on a servant for misconduct which he has condoned. It is the applicant's contention that since no action was taken against him for nine years and he was promoted as Assistant Conservator of Forests during these intervening years with annual increment and was also permitted to cross the efficiency Bar, the authorities should not have initiated action against him after a lapse of 9 years.

8. The respondents filed MA No.913/2012 on 04.10.2012 for taking reply to the rejoinder. In the reply to the rejoinder, the respondents have reiterated that the applicant had deliberately inserted the technical specifications i.e 'the printer should have the capability of two colour duplex at one pass with one engine' through amendment no.1 in Notice Inviting Tender (NIT) without giving any reason. The said specification was suitable only to M/s. Xerox Modicorp Ltd. and restricted competition in case of an open tender. Subsequently the applicant moved the proposal for amendment no.2 regarding deletion of word 'docuprint' from the Notice Inviting Tender (NIT) and while recording noting for the amendment no.2 he emphasized the necessity of one engine as technical requirement without giving any plausible reason. The respondents have alleged that the applicant did not advise Shri K.V. Rao in the matter of the complaint of M/s. CMS Computers that technical specification i.e. one engine, was specifically suited to only one vendor M/s. Xerox Modicorp Ltd. and eliminated others. This itself proves that the applicant had vested interest in the award of tender to M/s. Xerox Modicorp. This fact has been mentioned by the CBI/ACB in which procedural irregularities in awarding the tender to benefit M/s. Xerox Modicorp Ltd. have been proved. The disciplinary action against the applicant was initiated based on the report of the CBI/ACB and, therefore, the punishment imposed on him is appropriate and adequate. The punishment imposed by the Disciplinary Authority that 'the pay of Shri R.K. Raman, SDE be reduced from Rs.32810 to Rs.31850/- in the time scale of pay Rs.24900-50500 for the period of one year without cumulative effect with immediate effect', although a minor penalty could not have been imposed without conducting an inquiry and that is the reason why Reviewing Authority reduced the punishment to 'withholding the next increment for a period of one year without cumulative effect'. The respondents have also contended that the Disciplinary Authority had considered the advice of the CVC and since the case against the applicant is a composite case of CBI/ACB in which procedural irregularities in awarding the tender to benefit M/s. Xerox Modicorp Ltd. was proved. The applicant was also an officer involved in it. The punishment imposed on him is justified and is sustainable. The applicant has failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Public Servant and contravened Rule 4(1) (a) (b) and (C) of the BSNL CDA Rules, 2006. The case of the applicant was initiated as per the advice of CVC letter No.008/P&T/101-18931 dated 21.08.2008 and that explains the delay in initiating disciplinary action against him (copy enclosed at Annexure R-1 to the reply to rejoinder).

9. During the arguments the applicant had also cited a few cases in addition to one already included in the rejoinder. In the case of L. Anand Vs. the Secretary to Government in WP No.747/2007 decided on 12.04.2010 by the Hon'ble Madras High Court it was held that if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers and a decision must be arrived at on some evidence, which is legally admissible. The provisions of Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. It was also held by the Hon'ble Madras High Court that for satisfying the Court decree/award, no officer can be proceeded with, unless motive or some personal gain is alleged against the said officer. The applicant has also cited the judgment of the Hon'ble Apex Court in State of Madhya Pradesh Vs. Bani Singh and Anr., AIR 1990 SC 1308 in which it has been held that due to inordinate and unexplained delay in initiating the disciplinary proceeding it will be unfair to permit the departmental proceedings to be proceeded with. In the case of M.L. Sharma Vs. Bharat Sanchar Nigam Ltd. in OA No.2596/2012 dated 08.10.2013 of the Principal Bench of CAT it was held that delay due to CBI investigation cannot be justified and applicant could not be tried under a different set of rules. The applicant has also cited the judgment of the Hon'ble Apex Court in the case of Mohd. Quaramuddin Vs. State of Andhra Pradesh, 1994 SCC (5) 118 that there was a violation of natural justice since no Vigilance commission report was supplied to the delinquent.

10. During the argument the Respondents have relied upon the case of Food Corporation of India, Hyderabad & Ors. Vs. A. Prahalada Rao & Anr (supra). They have also cited the judgment of the Hon'ble Apex Court in Food Corporation of India & Ors. Vs. Sarat Chandra Goswami, 2014 (6) SLR 242 (SC) wherein the Hon'ble Apex Court observed that once it is held that there has to be formation of opinion and such an opinion is assailable in a legal forum, the said opinion has to be founded on certain objective criteria. It must reflect some reason. It can neither be capricious nor fanciful but demonstrative of application of mind. Therefore, it has to be in writing. It may be on the file and may not be required to be communicated to the employee but when it is subject to assail and, eventually, subject to judicial review, the competent authority of the Corporation is required to satisfy the Court that the opinion was formed on certain parameters indicating that there was no necessity to hold an inquiry. Thus the High Court had correctly understood the principle stated in A. Prabhakar Rao (supra) and the Apex Court did not find any fault with the same.

11. We have heard the learned counsels from both the sides and perused all the documents submitted by them.

12. The applicant in the present case has been imposed with the following penalty by the Disciplinary Authority 'the pay of Shri R. Kasturi Raman, SDE be reduced from Rs.32810/- to Rs.31850/- in the time scale of pay Rs.24900-50500(revised) for the period of one year with immediate effect. It is further directed that Shri R. Kasturi Raman, SDE will earn increment of pay during the period of reduction and that on expiry of this period, the reduction will not have the effect of postponing his future increments of pay'. Although the Appellate Authority upheld the punishment, subsequently the Reviewing Authority has reduced the penalty to 'withholding the next increment for a period of one year without cumulative effect'. The limited question before us is whether the penalty imposed on the applicant is valid in law and sustainable.

13. A perusal of the documents submitted by the applicant and the respondents show that it was the applicant who had officially moved the Notice Inviting Tender (NIT) containing certain clauses which appeared to favour one particular vendor namely, M/s. Xerox Modicorp Ltd. From the explanation given by the applicant at various stages, including the appeal filed before the Appellate Authority and before the Reviewing Authority the applicant has taken the stand that the particular clauses in the NIT were inserted at the instance of the then General Manager and Deputy General Manager (Planning) BSNL. He has also taken the plea that his noting in the note file proposing amendments were vetted by the DE (SWP), BSNL, Kalyan and Deputy General Manager (Planning), BSNL, Kalyan. The DGM (Planning), BSNL had specifically noted 'Approved and release'. It is the contention of the applicant that since the amendment clauses were approved by his superiors, he cannot be held responsible for any lapse as alleged by the respondents. He has also held that he was too small an officer in the whole process and was only carrying out the dictates of the superiors to get the proposal finalized and to initiate the tender as a matter of routine (Annexure A-7). Going by the merits of the case, we are of the opinion that the culpability of the applicant can be properly examined only if the other officers involved in the decision making process are also examined through a proper inquiry process. Whereas the applicant cannot exonerate himself by taking the plea that he was a subordinate officer, the fact that his proposal in a note file has been approved by his superiors cannot also be ignored.

14. The applicant had asked for a perusal of the investigation report of the CBI which was denied to him. In his Review Application he has mentioned that CBI in their investigation had not collected any evidence to prove anything under Section 120-B IPC read with Section 420 IPC and 13(1)(d) with 13(2) PC Act and offences under these sections. It is his contention that since CBI did not find any evidence against him, the case was referred to the BSNL for departmental inquiry only. No criminal case was to be filed against him.

15. The ground of delay taken by the applicant is not relevant in the present case since the respondents have produced documents to show that the action of the applicant in the matter of the tender was under investigation by CBI and the CVC advice was also obtained. Such processes are time presuming and the applicant's plea of delay vitiating the punishment order does not seem to be justified.

16. However, along with the merit of the case, when we come to examine the validity of the procedure followed in the case of the applicant, we find a serious flaw in it. We have perused the BSNL Conduct, Discipline and Appeal Rules, 2006 which came into effect from 10.10.2006. The applicant was charge-sheeted under Rule 35 of the BSNL, CDA Rules in Memo No.KYN/VIG/X-1/RKR/08-09 dated 11.02.2009. Rule 36 of the BSNL CDA Rules clearly states as follows;

'1) No order for imposing any of the penalties specified in clause (e) (minor penalty) and (f) to (j) of Rule 33 shall be made except after an inquiry is held in accordance with this rule.

2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into, or appoint any public servant (herein after called the Inquiring Authority) to inquire into the truth thereof.

3) Where it is proposed to hold an inquiry, the disciplinary authority shall draw up or cause to be drawn up .

(a) the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge.

(b) each article of charge to be supported by.

i) a statement of all relevant facts including any admission or confession made by the employee,

ii) a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained.'

17. It is found from the penalty imposed by the Disciplinary Authority vide order dated 19.03.2009 that it falls under Clause (e) of Rule 33. This being the case as per Rule 36(1) of the CDA Rule, the Disciplinary Authority should have conducted a detailed inquiry as provided under Rule 36 before imposing the punishment. If such an inquiry had been held, all relevant documents could have been made available to the applicant and the other officials who had approved tender proposal and had signed the file relating to the tender would have also been examined. In that process the plea of the applicant that he was asked to submit the tender file in a particular way could have also been established. This is a fatal error of procedure in the disciplinary case in the present OA. The Appellate Authority upheld the punishment given by the Disciplinary Authority without considering whether the p

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unishment imposed had been imposed after a disciplinary inquiry as provided in the Rule 36 of the BSNL CDA Rules. The Reviewing Authority on the other hand, tried to correct the error but simply reduced the penalty to 'withholding the next increment for a period of one year without cumulative effect' which falls under clause (c) of Rule 33 (A) (minor penalty). We do not find this action of the Reviewing Authority justified, since the Disciplinary Authority had not followed the proper procedure and the Reviewing Authority did not examine the reasonableness of the Disciplinary Authority's order in the light of this flaw. The Respondents have taken the ground in their pleadings without offering any explanation on why Disciplinary Authority did not follow the correct procedure as laid down in Rule 36 (1) of BSNL CDA Rules. The applicant has relied upon the CAT, Calcutta Bench judgment in the case of Sankari Pada Mukherjee Vs. Union of India (supra) to plead for access to different documents including investigation report of CBI. We find justification in his request for important and relevant documents for defending the charge against him. 18. We however, do not accept his ground of delay and his reliance on the judgment of M.L. Sharma Vs. Bharat Sanchar Nigam Ltd. (supra), Lal Audraj Singh Vs. State of Madhya Pradesh (supra) and R.S. Sagar Vs. Union of India (supra). In the present case, the respondents have sufficient justification for the delay in initiating disciplinary proceeding due to the CBI investigation and the process of obtaining the advice of the CVC. On the other hand the respondents have relied upon the judgment of the Hon'ble Supreme Court in the State of Tamil Nadu Vs. S. Subramaniam (supra) and Government of Tamil Nadu Vs. K.N. Ramamurthy (supra) regarding the scope of judicial review. We respectfully note the law laid down by the Hon'ble Supreme Court and hold that since in the present OA there has been a flaw in procedure in not following Rule 36(1) of the BSNL CDA Rules the Disciplinary Authority could not have imposed without following a due process of disciplinary inquiry. 19. We, therefore, hold that the liability of the applicant needs to be examined through a proper disciplinary inquiry as per proper procedure whereas the culpability/liability of the other departmental officials needs to be checked also, if necessary by examining them as witnesses and examining the relevant documents. All documents relied upon during the disciplinary inquiry should be made available to the applicant. A proper inquiry can only determine the culpability or otherwise of the applicant and the truth about the involvement of others can come out only through such inquiry. 20. In view of the above, the impugned orders imposing punishment are set aside. However, we remand the case back to the Disciplinary Authority to start a proper disciplinary inquiry against the applicant with the same charges on which he has been proceeded against, and to complete the inquiry as per rules within a period of six months from today. The applicant be given full opportunity to defend himself during inquiry. The Original Application is disposed of accordingly. No order as to costs.
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