Manjula Das, Member (J):
1. Being aggrieved with the memorandum of charges dated 11.9.2003 and the order dated 4.2.2013 whereby imposing penalty of withholding of 25% of monthly pension for three years, the applicant approached before this Tribunal for the following reliefs:
'a) That the Hon’ble Tribunal may be pleased to set aside the impugned memorandum dated 11.09.2003 and order dated 04.02.2013 imposing penalty of withholding of 25% (twenty five percent) of his monthly pension for 5 (five) years,
b) That the Hon’ble Tribunal further be pleased to direct the respondents to settle the pension with all consequential benefit since 2003,
c) The Hon’ble Tribunal further be pleased to grant any further or other relief that it deem fit in the interest of natural justice.'
2. The brief facts narrated by the applicant is that he was employed under the Department of Telecommunication and retired from service on 31.10.2009. During 1995-96 while he was working as Sub Divisional Officer (Phones), Tezpur the then Telecom District Manager (TDE), Tezpur, vide letter dated 25.3.1996 constituted a four Member selection committee to verify and recommend the names of eligible casual labourers working in the divisions according to the Department of Telecommunication circular dated 17.12.1993. The applicant stated that being the Member of the Selection Committee he along with other three members verified the documents and office records and thereafter recommended the names of the eligible casual mazdoors for conferring temporary status.
3. The applicant stated that the Telecom District Manager, Tezpur on the basis of the recommendations conferred TSM to 221 casual mazdoors provisionally on 27.5.1996. Subsequently, the provisional order of conferment of temporary status was cancelled by the Divisional Engineer (Planning) through order dated 20.10.1997 on the basis of instructions of the Chief General Manager, Telecom.
4. The applicant stated that against the said backdrop the authorities initiated disciplinary proceedings against the applicant through charge memo No.8-182/2001-Vig.II, dated 11.9.2003 on the allegation that the applicant recommended 221 casual labourers for appointment as temporary status mazdoor in Tezpur SSA including 22 in Dhemaji Sub Division in the capacity of a Member of the Departmental Promotion Committee on the basis of forged experience certificates. Subsequently, the authorities initiated five more disciplinary proceedings against the applicant for recommending the names of ineligible casual labourers along with other selection committee members. It was stated by the applicant that after receiving the other memorandum of charges the applicant represented stating to combine/club together all the charge memorandums and to initiate a single proceeding as the charges were identical and based on the same cause of action. The applicant challenged the legality and validity of initiating different proceeding on the same cause of action before this Tribunal vide OA No. 4 of 2004 and the said OA was disposed of by this Tribunal on 11.4.2005 with direction to conclude all the proceedings within one year. But the Department took another 8 years to complete the disciplinary proceedings.
5. Applicant stated that the Inquiry officer after completion of inquiry proceedings submitted his report with his finding that the charges are not proved. The disciplinary authority disagreed with the finding and issued a memorandum to the applicant with points of disagreement which was different from the memorandum of charge violating the instructions and Rule 15 of the CCS (CCA) Rules, 1965.
6. It was further stated by the applicant that the disciplinary authority also did not apply its own mind to the facts and circumstances of the case and acting under direction of the UPSC imposed the penalty of 25% cut in the monthly pension for a period of three years and applicant was also not given a reasonable opportunity to represent against the advice of the UPSC. This itself is violative of the principles of natural justice. It was further stated by the applicant that there was also a disparity in awarding punishment as another Member of the same selection committee was exonerated by the disciplinary authority.
7. By reverting to the averments made by the applicant the respondent No. 3 i.e. BSNL vide their written statement dated 29.5.2014 stated that the conferment of 22 casual mazdoors of Dhemaji Sub Division as TSM(P) on false documents was initiated by the Department of Telecommunication against the applicant and the then DE/Tezpur SSA and now retired, being a Member of the Selection Committee. It was submitted by the respondent BSNL that the applicant was an employee of the Department of Telecommunication and the applicant was subsequently charge sheeted and final order etc. were issued by the competent authority of Department of Telecommunication, New Delhi. The BSNL Circle office, Guwahati, Assam & SSA Head office has no role in the matter.
8. The Joint Controller of Communication Accounts, in the Office of the Controller of Comm. Accounts, Assam Telecom Circle, Guwahati filed a written statement on behalf of the respondents by stating that he has been authorized to file the said written statement on behalf of all the respondents. By the said written statement the respondents reverted the averments made by the applicant by stating that the disciplinary proceedings were initiated under Rule 14 of the CCS (CCA) Rules, 1964 which were quasi judicial in nature and was initiated after following the due procedure based on the irregularities pointed out by the CBI and in consultation with the CVC.
9. It was stated by the respondents that the Inquiry Officer given his finding on the allegations after taking into account the evidence on above and held that the charge has not been proved. The disciplinary authority dis-agreed to the findings of Inquiry Officer and proposed to hold the same as proved. It was further stated that the UPSC who is an independent statutory body have tendered their advise after a thorough examination of their records. The competent authority examined all the records and at the advice tendered by the UPSC decided to accept the advice after due consideration and proper application of mind and accordingly, imposed the penalty on the applicant. The respondents stated that neither there has been any violation of principles of natural justice nor the provisions of the statutory rules. It was further stated by the respondents that the penalty imposed on the applicant is commensurate with the gravity of the offence committed by the applicant. Six cases were initiated on the basis of separate investigation by the CBI and the reports were received at different points of time and the evidence and beneficiaries were different in each case.
10. The respondents further stated that the applicant committed serious nature of misconduct as much as he defined the instructions of the Government of India, Department of Telecommunication and appointed the ineligible casual labourers as TSMs in violation of the orders and with mala fide intention for which he deserved to be given exemplary punishment. However, the entire disciplinary proceedings from the stage of issue of charge sheet till issuance of the orders of penalty has been conducted as per the law laid down, rules and regulations and the respondents have not violated any of the provisions of the statutory rules. Final orders in this case has been passed by the President after due consultation with the UPSC as per statutory rules.
11. Mr. S.K. Sikidar learned counsel for the applicant at the outset submitted that the disciplinary authority has not furnished a copy of the recommendation of the UPSC which was taken into consideration while imposing the punishment on the applicant. Moreover, the disagreement note of the disciplinary authority against the finding of the Inquiry Officer is not part of the original article of charge and therefore, is wholly arbitrary, against the principles of natural justice and not in conformity with the procedure laid down in law.
12. Learned Counsel further submits that the Department of Telecommunication, New Delhi issued a circular dated 17.12.1993 instructing all the circle had to confer temporary status to casual mazdoors engaged during the period 31.3.1985 to 22.6.1988 and working continuously where they were initially engaged and who were not absent for the last 365 days. Accordingly, the circular of the Department of Telecommunication dated 17.12.1993 was forwarded to all the TDEs for taking action in this regard. The circular was forwarded to SDOs/SDEs in the Division to forward the names of the eligible casual mazdoors working under them and fulfilled the criteria as per the circular of DOT Headquarters. In response to that all the Sub Divisions under TDE, Tezpur recommended/forwarded the names of casual mazdoors who were eligible for conferment of TSM as per circular dated 17.12.1993. The selection committee met on 9.4.1996 at 11.00 hours at the chamber of SDE (HRD), Tezpur who was also the Member of the Selection Committee and after verification of the all the records the committee recommended the names of 227 casual mazdoors out of which the TDE had conferred TSM provisionally to 221 casual mazdoors, vide his letter dated 27.5.1996. It was submitted by the learned counsel, that as per the Chief General Manager, Assam Telecom Circle, Guwahati, issued instruction to Telecom District Manager, Tezpur vide letter dated 20.10.1997 to cancel the provisional order dated 27.5.1996.
13. Learned counsel further submits that the applicant thereafter also was promoted to the post of Divisional Engineer in the year 1997. However, vide memorandum dated 11.9.2003 he was informed that an inquiry under Rule 14 of CCS(CCA) Rules, 1965 was proposed to be held against him. In the charge memorandum it was urged that the applicant committed serious irregularities in as much as he recommended 221 casual labourers for appointment as temporary status mazdoor in Tezpur, SSA including 22 in Dhemaji Sub Division in the capacity of a member of the Departmental Promotion Committee on the basis of forged experience certificate. Applicant did explain elaborately vide his letter dated 8.12.1994 in the inquiry proceeding. However, the applicant was issued with other memorandums Nos. 8-168/2001-Vig.II, dated 11.9.2003, 8-168/2001- Vig.II, dated 11.9.2003, 8-187/2001, dated 11.9.2003& 8-163/2001-Vig.II, dated 9.10.2003 on the identical and similar charge. Against the above memorandum of charges the applicant submitted representation denying the charges and to combine/club together all the charge memorandums and initiate a single departmental proceeding as the charges framed against the applicant were identical and based on the same cause of action i.e. the applicant recommended the names of the casual mazdoors along with three other members and the selection committee was constituted by TDE, Tezpur through his letter dated 25.3.1996.
14. Learned counsel given stretch on his argument that the recommendations made by the applicant as well as other selection committee members were subsequently cancelled by the authorities but the same was not paid any heed which caused serious prejudice to the applicant.
15. Learned counsel further argued that the order passed by the Tribunal dated 11.4.2005 in OA No. 4 of 2004 was specific for completing the departmental proceedings within one year from the date of receipt of the order. However, the respondent authority concluded the proceedings by issuing the penalty order dated 4th February, 2013 imposing the punishment of withholding of 25% of his monthly pension for five years.
16. According to the learned counsel for the applicant the delayed proceedings is not at all sustainable in view of the above order passed by this Tribunal as well as in view of the catena of judgments passed by the Hon’ble Apex Court.
17. Further, the learned counsel for the applicant submitted that the UPSC advice was not forwarded to the applicant. In this regard learned counsel for the applicant referred to the decision of the Apex Court in Union of India & Ors. v. S.K. Kapoor - 2011 (4) SCC 589, in the above judgment the Hon’ble Apex Court held that non-furnishing of the recommendations of the UPSC vitiates the entire inquiry proceedings. It was further submitted by the learned counsel that the cause of action of the case is of the year 1996-97 and after seven years the charge sheet was issued. Such long delay in the action of the respondents authority in issuing the charge sheet is not at all sustainable under the law. However, the proceedings also continued even after the retirement of the applicant in the year 2009.
18. It was further submitted by the learned counsel that one of the then member of the Selection Committee Mr. A.K. Sarkar was also exonerated of the charges and there is no justifiable reasons to pass a different order imposing punishment on the applicant.
19. On the other hand by countering the arguments advanced by Mr. S.K. Sikidar, Mr. M.R. Das, learned counsel appearing on behalf of respondent No. 3 submitted that as the employee/applicant was working in the Department of Telecommunication and the disciplinary inquiry was initiated by the Department of Telecommunication, the present respondent has no role in the matter.
20. Mr. Das on behalf of respondents Nos. 1 & 2 which is the Department of Telecommunication submits that there is no procedural irregularities in the proceedings initiated against the applicant on imposition of punishment.
21. It was further submitted by the learned counsel for the respondents Nos. 1 & 2 that the final order for imposition of punishment on the applicant is dated 4.2.2013 whereas the revised instructions of DOP&T vide OM No. 11012/8/2011-Estt.(A) which provides to communicate the recommendation of the UPSC to the charge official was issued on 6.1.2014. Hence, the final order was issued after following the rules/instructions prevailing in February, 2013.
22. To reply to the query above regarding the communication of the UPSC advice to the delinquent, learned counsel for the applicant submitted that the office memorandum dated 6.1.2014 by the DOP&T was issued on the basis of the decision rendered by the Hon’ble Apex Court in S.K. Kapoor’s case (supra) on 16.3.2011. The applicant is entitled to get a copy of the UPSC advice so as to represent his matter. However, in the present case the same has not been done. The respondents while conducting the departmental proceedings and imposition of punishment thereafter, have not all followed the principle laid down by the Apex Court in the matter of S.K. Kapoor (supra) and as such, the proceeding of imposition of punishment is not at all sustainable under the law.
23. Heard Mr. S.K. Sikidar learned counsel for the applicant, Mr. K. Das, Additional CGSC (R1&2) and Mr. M.R. Das, Standing Counsel for BSNL (R3) and perused the orders placed before us and the documents relied upon.
24. The main issue involved in the mater is procedural irregularity as stressed by the learned counsel for the applicant reaching to the imposition of punishment is not in conformity with the Apex Court decision as well as the violation of principles of natural justice. The other issues amongst other is that one of the Member of the Selection committee against whom the proceedings were initiated was exonerated by the disciplinary authority however in the present case, already the inquiry officer found him not guilty but the disciplinary authority with the disagreement note continued the proceeding for long years for which the applicant is suffered that too after his retirement. The other issue raised by the applicant is for inordinate delay for initiation of the proceedings, vide memorandum of charges dated 11.9.2003. The article of charge is extracted under:
'That Shri D. Payeng while posted and functioning as SDE(P), Tezpur during 1996 now DE O/O GMT Jorhat committed serious irregularities in as much as he recommended 221 Casual Labourers for appointment as Temporary Status Mazdoor in Tezpur SSA including 22 in Dhemaji Sub Division in the capacity of a Member of Departmental promotion committee on the basis of forged experience certificates.
By his above acts, Shri D. Payeng failed to maintain absolute integrity, devotion to duty and behaved in a manner unbecoming of a Govt servant ad thereby contravened the Rule 3(1) (i) (ii) and (iii) of CCS (Conduct) Rules, 1964.
By order and in the name of the President.'
25. Thereafter the inquiry was held where the Inquiry Officer has given its finding vide inquiry report dated 11.3.2010 which is as under:-
'I feel that the proceeding against Shri D. Payeng in view of the allegation of forged experience certificate without any supporting documents may not be sound taking into consideration that CO was one of the member of four member selection committee.
Hence from the above discussion it clearly reveals that there was no act of misconduct on the part of charged officer while carrying out verification of eligible casual mazdoors as per the records produced before the inquiry.
Accordingly I hold that the charges leveled against Sri D. Payeng DE (Retired) as mentioned under Annexure-I of the memorandum of charge sheet could not be sustained.
In other words the leveled charges against Sri. D. Payeng DE (Retired) the charged officer stands Not Proved.'
26. It is noted that the disciplinary authority however disagreed to the Inquiry Officer’s report and vide memorandum dated 9.11.2010 made a disagreement note and proceeded in the matter which laid finally the imposition of penalty of 25% cut in monthly pension vide order dated 4.2.2013 for a period of five years on the applicant.
27. If we come to the issue of inordinate delay of the issuance of the charge memorandum it is admitted that the incident relates back to 1996-97 and the proceedings drawn up against the applicant is vide memo dated 11.9.2003 i.e. after the lapse of seven years. In Damodar Valley Corporation & Ors. v . V. Ballari Sarkar – 2010 (1) SLR 496 the Hon’ble Apex Court held that 'disciplinary proceedings should be conducted immediately after commission of the alleged act or soon after discovery of the same. Disciplinary proceedings cannot be initiated after lapse of considerable period'. In this regard we note that this Tribunal vide order dated 11.4.2005 in OA No.4 of 2004 specifically directed the respondents to complete the proceedings as expeditiously as possible at any rate within one year from the date of receipt of a copy of the order. However, the disciplinary authority delayed the proceedings despite clear and specific orders from this Tribunal. Moreover, after receiving of the CVC advice as well as the UPSC advice the respondent authority has also consumed sufficient time for conclusion of the disciplinary proceedings. Further in P.V. Mahadevan v. M.D. Tamilnadu Housing Board - 2005 (6) SCC 636 the Hon’ble Apex Court held that 'allowing respondents to proceed further with departmental proceeding at a distant point of time will be very prejudicial to the applicant. Hence, charge memo was quashed in the same case'.
28. Further the protracted disciplinary inquiry against the Government employee should be avoided not only in the interest of Government employee but also in public interest. The Apex Court also noted that the litigant suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferance of the applicants due to the protracted disciplinary proceedings would be much more than the punishment. The said principle canonized in well known dictum. 'INTEREST REPULICA UT SIT FINISH LITUM' meaning thereby that it is the policy of the State that law should not be protected otherwise great operation might be done under the colour and pretence of law.
29. In the present case we have observed that Department has consumed sufficient time for its reaching to imposition of penalty in 2013 after retirement of the applicant in 2009.
30. Further we come to the point as to whether the UPSC advice was supplied to the applicant to represent
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his case before the concerned authority. The respondents Department submits that the office memorandum of DOP&T was issued on 6.1.2014 whereas the CVC and UPSC advice were much before that and hence, was not supplied to the delinquent officer i.e. the applicant. In S.K. Kapoor’s case (supra) the Hon’ble Apex Court vide its judgment dated 16.3.2011 held that 'it is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same'. It was further held that 'there may be a case where the report of the Union Public Service is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice'. In the present case the Department has not at all followed the principles of natural justice as well as the issue laid down by the Hon’ble Apex Court in S.K. Kapoor’s case (supra). 31. By taking into the consideration the entire conspectus of the case we are of the view that there is substantially inordinate delay in issuing the charge sheet and also procedural lapses on the part of the respondent authority by not giving a copy of the UPSC advice to the applicant as is held by the Hon’ble Apex Court in S.K. Kapoor’s case (supra), thus not following the principles of natural justice. Moreover, one of the Member of the committee has also been exonerated by the disciplinary authority. The recommendation of the committee in its meeting for conferment of the temporary status to the 221 casual labourers has already been cancelled by the TDM, Tezpur. 32. Hence, we deem it fit and appropriate to interfere in the matter by quashing the impugned memorandum dated 11.9.2003 and the order dated 4.2.2013 imposing the penalty of withholding of 25% of monthly pension of the applicant for five years. Ordered accordingly. 33. The Original Application is allowed as above. No order as to costs.