N.K. Balakrishnan, Judicial Member.
1. This application has been filed by applicant to quash Annexures A2 to A4, A6, A9, A11, A13 and A15 and for a direction to be issued to respondents 1 to 6 to exonerate the applicant from the charges leveled against him. A further direction is sought to permit him to occupy the quarter No. CR-01, P&T Staff quarters, Thevara till the date of his retirement.
2. The gist of the case stated by the applicant is thus:
The applicant is now working as Telecom Mechanic in the BSNL. He has been in service for 34 years and has been occupying the departmental quarter for more than 32 years. It is alleged that the 7 th respondent had made a baseless complaint against the applicant alleging misbehaviour. Annexures A2 and A3 notices were sent to the applicant directing to vacate the quarter. Annexure A6 order was subsequently passed by the 5th respondent giving a warning to the applicant and again directing him to vacate the quarter. The appeal filed by the applicant was rejected vide Annexure A9. By Annexure A11 the review filed by the applicant was rejected by the 3 rd respondent. Annexures A13 and A15 notices were issued by respondents 4&6 directing the applicant to vacate the quarter. The applicant contends that Annexures A2 and A3 notices were sent to the applicant directing him to vacate the quarter which was issued without hearing the applicant. Annexure A6 order was also passed in violation of BSNL (CDA) Rules. Annexures A9 and A11 orders were passed without applying their mind. The applicant has no house or property of his own. The notices and orders issued against the applicant are liable to be set aside.
3. The respondents 2 to 6 (hereinafter referred to as respondents) filed reply statement contending as follows:
The applicant has been staying in the staff quarters provided to him since 30.8.2007. The staff quarter which he was occupying was of 'C' Type but as a matter of fact he is entitled only for a 'B' Type quarter. On 27.1.2013 the 7th respondent, staying in a nearby quarter gave a complaint against the applicant. That complaint was referred to Women's Committee. A report was submitted. The committee recommended that the applicant be asked to vacate the quarter. Based on that the applicant was allotted a quarter at Panampilly Nagar and directed him to vacate the quarter, which he was occupying at Thevara. He refused to accept the same. Hence the applicant was allotted another quarter at Panampilly Nagar. He was informed accordingly. Still he refused to vacate the quarter at Thevara. Hence the PGMT ordered to initiate disciplinary proceedings against the applicant. In the inquiry he was found guilty of the charges. Vide Annexure A6, he was directed to vacate the quarter immediately. Appeal filed against the same was also dismissed. Still he refused to vacate the quarters. Annexure A2 order was issued based on the decision of Estate Officer (E) of BSNL. Annexure A3 was issued as the applicant failed to vacate the quarter as instructed in Annexure A2. The applicant was issued with Annexure A4 Charge Memo since he refused to obey the lawful order issued to him. After finding him guilty of the charges, he was warned and once again he was directed to vacate the quarter he was occupying as per Annexure A6. Annexure A2 was issued based on the inquiry report. The inquiry was conducted in accordance with law.
4. A rejoinder was filed by the applicant refuting the averments made in the reply statement and raising a few more grounds. The applicant who was staying in Type B quarter was officially and legally allotted CR- 01 Type III quarter as per order dated 29.8.2007 vide Annexure A19. The applicant was not aware of the complaint submitted by the 7 th respondent nor was he aware of constitution of the Women's Committee. No inquiry was conducted as regards the complaint alleged to have been submitted by the 7th respondent. The applicant was not allotted any quarter at Panampilly Nagar.
5. Point for consideration is whether Annexure A4 charge and the subsequent orders are liable to be quashed?
6. We have heard the learned counsel appearing on eithr side and have gone through the pleadings/documents.
7. Though a prayer was made in the OA that the applicant should be permitted to continue to occupy the quarter CR-01 P&T Quarters at Thevara till the date of his retirement, it is stated that the applicant subsequently vacated that quarter on 15.7.2016. Hence that relief no longer survives to be considered.
8. The staff quarter he was occupying at Thevara was of C type.
According to the respondents applicant is entitled to only a lesser type ie., B Type quarter. It is stated by the applicant that he has been made to pay three times the licence fee because he was occupying a Type C quarter.
Anyway those are not matters to be considered in this OA. Similarly whether any other person is allotted the quarter or whether he was legally entitled to get quarter are also not matters germane for consideration in this OA.
9. Annexure A2 would show that a complaint was lodged by the 7 th respondent (Smt. Jolly Alphonsa) and based on that a Women's Committee was constituted and an inquiry was conducted by the committee into the allegation made in the complaint and the committee recommended that the applicant be asked to vacate the quarter as he was causing nuisance to the complainant and other persons residing nearby. Annexure A3 is another letter dated 5.6.2013 as per which the applicant was directed to vacate the quarter No.CR 01 P&T quarters, Thevara on or before 5.7.2013.
10. The applicant was informed that if he does not vacate the quarter on or before 5.7.2103 his occupation would be treated as unauthorized and necessary action would be taken against him for evicting from that quarter. It is vehemently argued by the learned counsel for the applicant that the applicant was not aware of the complaint or regarding the constitution of a Women's Committee as alleged in Annexure A2 and as stated in the reply statement. That contention according to Respondents is totally fallacious and unacceptable since in even in Annexure A22 dated 15.1.2015 sent to the applicant mention was made about the complaint made by the 7 th respondent; whether it was sexual harassment or whether it was something to be inquired into by the Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are not matters to be considered in this OA. 11.
It is stated that the applicant has filed another OA challenging the action taken against the applicant based on the complaint alleged to have been made by the 7th respondent and also as to the illegalities or irregularities in the procedure followed in that matter. But the learned counsel for the applicant would submit that the legality and correctness of the procedure followed by them is attacked in this case also because it was based on the alleged report of the Women's Committee the first order was issued directing the applicant to vacate the quarter. But it may be noted that order (Annexure A2) was issued on 1.5.2013. At that point of time it was not challenged before this Tribunal. Another letter dated 5.6.2013 (Annexure A3) was issued which also directed him to vacate the quarter. The applicant did not obey the orders nor did he challenge the orders at that time, before the appropriate authority.
11. The contention that he was not allotted another quarter is found to be bereft of any merit. Annexure A23(2) is the letter produced by the applicant himself. That is a letter sent to the applicant by the Assistant General Manager on behalf of PGMT, BSNL Kochi on 15.1.2015. Reference has been made to the letter dated 16.4.2014. As per Annexure A23 the applicant was informed that though he was alltoted quarter No B -42 at Panampily Nagar which is eligible for the applicant, the same was declined by letter dated 3.2.2014. Again as demands were received for Type III quarters from eligible candidates, as per the prevailing Rules, the applicant was directed to vacate the Type III quarter immediately. It was stated that the quarter occupied by the applicant was allotted to another person. In the very same letter the applicant was told that the eligible quarter (Type B) at Panampilly Nagar was offered to him and he was directed to occupy the same. He was informed that delay in actual occupation of the same may lead to revenue loss to the BSN and if the applicant is not vacating the quarter and hand over the key on or before 28.1.2015, suitable legal action including recovery would be made.
12. Annexure A25 letter would show that on receipt of the allotment letter the applicant inspected the quarter at Panampilly Nagar, Ernakulam. That was at the first instance. At that time he stated that the quarrier was not properly preserved and the condition was not suitable for him to occupy. That was the reason why as per Annexure A22 letter dated 15.1.2015 the applicant was again allotted another quarter at Panampilly Nagar itself. The above factors would show that the applicant was disinclined to vacate the quarter raising one ground or other, the learned counsel for the respondents contends. Since the applicant has subsequently vacated the quarter on 15.6.2015 other matters relating to the same need not be considered in this OA.
13. The only other issue that survives for consideration in this OA is whether the Annexure A4 charge and action taken pursuant thereto are liable to be quashed? Annexure A4 the Memorandum of Charge dated 10.12.2013 issued to the applicant is to the effect that action was proposed to be taken against him under Rule 35 of BSNL (CDA) Rules. Statement of imputations of misconduct and misbehaviour was enclosed. The statement of imputations would show that the 7 th respondent Smt. Jolly Alphonsa staying in CR-02 P&T quarter, Thevara, the quarter neighbouring to CR-01 had lodged complaints to the police authorities, BSNL and to the Chairperson of Vanitha Cell etc. alleging that the applicant misbehaved towards her. Report of the Chairperson of Women's Complaint Committee has been referred to therein. Based on the same the applicant was directed to vacate the quarter CR-01 as per letter dated 5.6.2013. But the applicant instead of obeying the same he continued to stay there unauthorizedly.
14. The substance of the allegation is that the applicant disobeyed the order to vacate the premises issued by the applicant's superior officer and he continued to stay there unauthorizedly. Even though this direction was issued after the Women's Committee had conducted an inquiry etc., that was only incidental in nature. The order that has been flouted by the applicant is the order to vacate the Quarter CR No.01. That first order was issued on 5.6.2013. There is another charge which is to the effect that the applicant had purposefully influenced the inmates and other people to write letters to BSNL authorities explaining the innocence of the applicant. That is also unbecoming of a BSNL employee, the respondents contend.
15. Annexure A6 is the order passed by the disciplinary authority. It is stated therein that in fact the applicant had stated earlier that as per his explanation dated 17.12.2013 he was ready to vacate the quarter as early as possible and requested two months time to vacate. But still he continued to occupy the quarter unauthorizedly for several months in utter defiance of the order issued by his superior officers. By Annexure A6 order the disciplinary authority strongly warned the applicant against repeating such action that are unbecoming of a BSNL employee. The applicant was informed that in future if any such instance occurs it would be viewed seriously and appropriate disciplinary action would be initiated. Therefore, it is not actually a punishment so as to invoke the jurisdiction of this Tribunal to interfere with the same, the respondents also contend.
16. Annexure A9 is the order dated 25.2.2015 passed by the appellate authority. After detailed discussion of the entire matter the appeal was dismissed. Annexure A11 is the order dated 26.11.2015 passed on the review petition. There is a further discussion of the entire matter and the review petition was also dismissed by the reviewing authority.
17. It is important to note that even thereafter the applicant was directed as per letter dated 28.12.2015 (A13) to vacate the quarter CR-01 occupied by him. A15 is another letter dated 29.1.2016 issued by the very same authority directing the applicant to vacate the quarter and informing further that disciplinary action would be taken against him if he fails to vacate the quarter.
18. Annexure A15 is another letter dated 29.1.2016 by which the applicant was directed to vacate quarter No.CR-01 Thevara immediately and he was informed that if he failed to do so he will be evicted from the quarters and disciplinary action would also be taken against him as contemplated in the BSNL(CDA) Rules, 2016. As stated earlier this OA has been filed to quash Annexures A2 to A4, A6, A9, A13 and A15. The order passed by the disciplinary authority as evidenced by Annexure A6 would only show that he was only warned against committing such acts in future. Annexure A9 is the order in the appeal and A11 is the order on the review petition. No procedural illegality was committed by the authority concerned nor is there any case that the authority who issued those orders were incompetent to do so. It was after Annexure A15 he moved this Tribunal filing this Original Application seeking quashment of Annexures A2, A4 etc., The first order was passed on 1.5.2013. It is pointed out by the learned counsel for the respondents that though the applicant sought an interim order against the direction to vacate the quarters that was not allowed by this Tribunal. Then he moved the Hon'ble High Court by filing OP (CAT) 79/2016 which was disposed of by the Hon'ble High Court on 1.3.2016.
19. It is not a case where the applicant was directed to vacate the quarter without offering or providing alternate accommodation in the nearby area. The applicant was first offered one quarter in Panampilly Nagar. Since he stated that it is not suitable, another quarter was allotted to him. Repeated letters and reminders were sent to him but he honoured those letters with contempt. When he was originally asked to vacate the quarter in 2013 he did not challenge the same. It is pertinent to note that even though Annexure A2 direction was issued in May, 2013 he managed to retain the staff quarter for three years in utter defiance of the order issued by
Please Login To View The Full Judgment!
his official superiors. It is further pointed out by the learned counsel for the respondents that the conduct of the applicant would show that he has been throughout defiant and treated the orders with contempt but still the authorities concerned, after inquiry, merely warned the applicant but still the applicant was emboldened not to vacate the quarter. Since this Tribunal did not issue any order in his favour and since the writ petition filed by him was also dismissed, he had no other alternative but to vacate the quarter. It is pointed out that though the Hon'ble High Court disposed of the OP (CAT) on 1.3.2106 still the applicant could cling on to the premises till 15.7.2016. He had been offered and allotted another quarter at Panampilly Nagar and so it is not a case where there was any denial of quarter as complained of by the applicant. 20. The matter pertaining to the complaint given by the 7 th respondent and the report if any prepared by the Women's Committee etc. are not to be considered in this case. It is stated that the applicant had filed another application before this Tribunal questioning the correctness or legality of the same. Therefore, all those contentions can be agitated by the applicant in that Original Application. We make it clear that we have not made any observation or comment regarding the complaint given by the 7 th respondent or about the correctness of the procedure pertaining to the same. That is to be dealt with in the other OA filed by the applicant. This Original Application is found to be devoid of any merit and hence it is dismissed. No order as to costs.