Central Administrative Tribunal - Delhi
Shri Salim Ansari vs Mahanagar Telephone Nigam Ltd on 15 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.683/2012 Reserved On:02.07.2015 Pronounced On:15.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Salim Ansari S/o Shri Rasul Ansari Aged about 53 years R/o A-1/260, Janak Puri, New Delhi-110058. Applicant By Advocate: Shri Nilansh Gaur. Versus 1. Mahanagar Telephone Nigam Ltd. Through its Chairman-cum-Managing Director, Corporate Office, 5th Floor, 9, CGO Complex, New Delhi. 2. Director Human Resources Mahanagar Telephone Nigam Ltd. Through its Chairman-cum-Managing Director, Corporate Office, 4th Floor, 9, CGO Complex, New Delhi. Respondents By Advocate: Shri Saket Sikri and Ms. Sumedha Dang. ORDER
G. George Paracken, Member(J) The Applicant has challenged the disciplinary proceedings initiated against him culminated in the order of the Appellate Authority compulsorily retiring him from service.
2. The brief facts of the case: The Respondent-Department received complaints of bungling of telephone poles from different areas under the General Manager, Shakti Nagar, New Delhi in connivance with the staff. Applicant was also one of the staff against whom such allegations have been made. The Respondents have decided to initiate disciplinary proceedings against all of them. Accordingly, the Applicant was proceeded under Rule 25 of the MTNL (CDA) Rules, 1998 for imposing major penalty, vide Memorandum No.GM(RHN)/DISC/SA/SDE/GO-101519/2005-0613 dated 14.06.2005. The Article of Charge levelled against him was that he bungled 1956 telephone poles causing financial loss of Rs.14,57,920/-. The details of the charge was as under:-
That the said Shri Ansari SDE while working as COC-XI(N) staff no.(GO-101519) under G.M. (Dev.), MTNL, New Delhi during the period 2001-02, 2002-03, 2003-04 and 2004-05 has committed an act of gross misconduct and misbehaviour in as much as he has not maintained the proper records in respect of received telephone poles were not from different stores of Area SDEs and entries of most of the telephone poles not made in the stock-registers (Annex. A) and bungled the poles in connivance of staff members and contractors. Approx. 1956 telephone poles have been bungled and causing heavy loss to MTNL i.e. Rs.25,03,680 (Annex. B). He is responsible for the loss of Rs.14,57,920 out of Rs.25,03,680 caused to MTNL due to his gross negligence, malafide intention and misappropriation of 1139 poles on his part alone (Annex. B).
By the aforesaid act, the said Shri Saleem Ansari, SDE failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Company employee in violation of Rule 4 (1) (i), (ii) and (iii) of MTNL Conduct, Discipline and Appeal Rules, 1998.
It was supported by a Statement of Imputation of misconduct which is also reproduced as under:-
That the said Shri Saleen Ansari SDE while working as COC-XI(N) staff No.GO-101519 under GM (Dev.) MTNL, New Delhi during the period 2001-02, 2002-03, 2003-04 and 2004-05 has committed an act of gross misconduct and misbehaviour in as much as he has not maintained the proper records in respect of received telephone poles from different stores of area SDEs and most of the telephone poles not entered in the stock registers as indicated in Annexure-A attached.
All the requisition slips prepared by him for taking poles from different stores of Area SDEs and in turn issued slips of Area SDEs were checked by Shri Saleem Ansari SDE on 24.03.2005 when his statement was recorded.
It has been confirmed that the requisition slips were given by him mainly to Shri Balvinder Singh PM and Shri Azad Singh CS. Shri Ansari has received directly 470 poles under his signatures from different stores of Area SDEs and 669 on fake signatures of different officials and on attested signature of B.P.Gupta contractor (Annexure A read with Annex. B).
Shri Saleem Ansari has not disclosed the names of the contractors who received the pleas on site. He has confirmed that there is no entry of all the poles shown in Annex.A, in the stock registers.
It is further observed that Shri Saleem Ansari has prepared the requisition slips and received the poles from different stores without consent of his DE (CCN-V), namely Shri Y. Sharma. Mr. Ansari sent his one requisition slip dated 17.12.03 of 100 poles for Des counter signature and the same counter signed and confirmed by Shri Y. Sharma DE (CCN-V) on 24.3.05.
It is further observed that the stores received against requisition slips prepared by Shri Ansari are recovered (old) complete/without sockets and soleplate telephone poles but entries of the same has been made as Tube A4, B-8, C-8 and socket C (components of the pole) in the stock registers of COC-XI(N) unit. Thus, he has neither checked the entries of slips in stock registers nor he instructed his store-in-charge, namely, Shri Ranbir Singh PM (PM-924) how to make correct entries in respect of received poles.
It seems from all facts, records and circumstances the poles are bungled and misappropriated in connivance with Shri Saleem Ansari SDE along with Shri Balvinder Singh PM and Shri Azad Singh CS and by the contractors and consequently MTNL has suffered a heavy loss, the details of which are given in Annexure B.
Total loss caused by alone to MTNL is Rs.14,57,920/- due to directly receipt of 470 poles and on fake signature slips 669 poles. Total poles are thus equal to 470+669=1139. In the last of his statement Shri Saleem Ansari SDE has accepted his mistake and agreed for any suitable action.
By the aforesaid act, the said Shri Saleem Ansari SDE has failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Company Employee in violation of Rule 4 (1) (i), (ii) and (iii) of MTNL Conduct, Discipline and Appeal Rules, 1998.
3. The aforesaid proceedings culminated in the Disciplinary Authoritys order dated 03.02.2007 imposing upon him the penalty of reduction to a lower stage by three stages in the time scale of pay for a period of three years with cumulative effect and recovery of Rs.4,45,634/- (Rupees Four Lacs Forty Five Thousand Six Hundred and Thirty Four only) which is equal to 50% of the loss suffered by the MTNL (i.e. Rs.8,91,128) duly calculated at the depreciation value of the recovered poles. The appeal filed against the aforesaid order was dismissed by the Appellate Authority vide order dated 07.04.2008.
4. During the pendency of the aforesaid proceedings, the Respondents issued another Memorandum of Statement of Articles of Charge to the Applicant, again under Rule 25 of the MTNL (CDA) Rules, 1968 vide Memo No.MTNL/DIS/25/SA/SDE/GO-101519/III/5 dated 15.06.2007. In this Memorandum, the Charge against him was that he bungled 3297/- poles causing loss of Rs.42,20,166/-. The details of the statement of imputation of misconduct and misbehaviour against him were as under:-
Statement of Article of Charge That the said Shri Salee Ansari, SDE, while working as COC-XI(N) staff No.GO-101519 under GM (Dev.), MTNL, New Delhi during the period 2001-05 has committed an act of gross misconduct and misbehaviour in a manner as much as he has not followed due procedure and not taken proper care to maintain the correct records in respect of DP posts/poles (recovered) which were received from different stores of SDEs as entries of and bungled the poles in connivance with the staff members and contractors. The bungled poles are 3297 and the loss caused to MTNL due to bungling is Rs.42,20,160/- (As per Annexure B enclosed).
The said Sh. Saleem Ansari, is responsible for the loss amounting to Rs.18,45,760/- out of Rs.42.20,160/- caused to MTNL, due to his gross negligence, malafide intention and misappropriation of 1442 poles on his part alone viz. on proportionate basis (Annexure A-1 read with Annexure-B).
By the aforesaid act, the said Sh. Saleem Ansari, SDE (GO-101519) has filed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Company Employee in violation of Rule 4(1) (ii) & (iii) of MTNL, Conduct, Discipline and Appeal Rules, 1998.
Statement of Imputation of Misconduct and Misbehavior That the said Shri Saleen Ansari SDE while working as COC-XI(N) under GM (Dev.) MTNL, New Delhi during the period 2001-05 has committed an act of gross misconduct and misbehaviour in a manner as much as he has not followed due procedure and not taken proper care to maintain the correct records in respect of DP posts/poles (recovered) received from different stores of Area SDEs and most of the poles were not entered in the stock registers of COC-XI(N) unit (As per Annexure-I enclosed).
That the said Sh.Saleem Ansari has not paid due care and proper attention before, during and after the receipt of poles as the poles were received on his requisition slips either under his own signatures or on fake signatures of Sh.Balvinder Singh, P/M, Shri Azad Singh. C/S Sh. Ramesh Chandra, RM and Sh.Pancham Singh Rawat, PM (PM-1132) without issue on authority letters authorizing the officials for collecting the poles for COC-XI(N) unit. The requisition slips of taking poles from Area SDEs have been authenticated by Sh.Saleem Ansari, SDE and the slips were given by him mainly to Sh.Balvinder Singh, PM and Sh. Azad Singh, C/S in majority case, whereas Sh. Ranbir Singh, PM (Store in charge of COC-XI(N) unit should have been deputed with authority letter for collecting the poles from different area SDEs.
That the said Sh.Saleem Ansari has received the poles from stores without consent of Sh.Y. Sharma, DE (CCN) in charge as Mr.Y.Sharma, DE has denied his signatures on the slips and the said Sh. Saleem Ansari has confirmed that there is no entry of the poles in majority cases, as per Annexure A-1 in the stock register of COC-XI(N) unit (As per details in Annexure A-1 enclosed) That the said Sh.Saleem Ansari has not got his slips cancelled in cases when the poles were not taken/received for COC-XI(N) unit, nor he instructed Sh. Ranbir Singh, PM store-in-charge how to make correct entries in respect of received poles/DP posts because the entries were make as Tube A-4,B-8, C-8 and socket Cetc. (Components of the poles) and not as a complete pole viz. no transparency observed by the said Sh. Saleem Ansari That the said Sh.Saleem Ansari, bungled away 3297 recovered DP posts/poles and misappropriated in connivance with Sh. Balvinder Singh, PM, Sh.Azad Singh, CS and contractors and consequently, MTNL has suffered a heave loss, the details of which are given in Annexure-B read with Annexure A-I. Total loss caused to MTNL by him alone is Rs.18,45,760/- due to directly receipt of 85 poles and on fake signatures on receipts (Slips) of 1357 poles.
By the aforesaid act, the said Sh. Saleem Ansari SDE(GO-101519) has failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of Company employees in violation of Rule 4 (I) (i), (ii) and (iii) of MTNL, Conduct, Discipline and Appeal Rules, 1998.
5. The Enquiry Officer, vide his report dated 08.01.2010 held that the aforesaid Articles of Charges against the Applicant have been proved. The relevant part of the said report is reproduced as under:-
9.0 CONCLUSION :
On the basis of assessment of evidence made above in para 8.00 following conclusions are drawn in this case:
1. As discussed above in para 8.00, that SPS has not followed due procedure and not taken proper care to maintain the correct records in respect of DP posts/ poles (recovered) which were received from different stores of SDEs. The SPS has requisitioned and received in a huge quantity recovered poles from the stores of area SDE with out justify the need of such quantity of recovered poles. The SPS has applied different tactics to got issue the poles authorizing the special officials to collect the recovered poles. He did not get dumped recovered poles in his store & failed to get entered the received recovered poles in the stock register could not justified the need of such huge number of recovered poles. This shows that there is connivance with the staff members and contractors.
2. On seeing the issue slips on the record the SPS has authorized more than two officials as well as the private contractor to collect the recovered poles. The Store In-charge of the SPS has also confirmed that his COC-XI (North) used to authorize another officials to collect the recovered poles from the store of the area SDEs. The issuing authority i.e. areas SDEs have also confirmed that the recovered poles were issued to the COC-XI(N) after confirmation from the SPS. The SPS has not made any complaint regarding non-receipt of recovered poles. This fact also confirmed by his DE (CCN-II) in his statement, that the SPS has not consulted his immediate officer, nor bring in the knowledge of Store In-charge before issuing the issue slips for recovered poles, could not get entered in the stock register and can not justify its utilization in his area as such this component of is also sustained.
3. As discussed above the SPS neither has consulted his immediate officer, nor bring in the knowledge of Store In-charge before issuing the issue slips for recovered poles and its utilization in his area as such this component of is also sustained.
10.0 FINDINGS On the basis of evidence produced before the Inquiry by the prosecution as well as Defence side, including prosecution and defence brief as analyzed in para 8.00 and conclusions drawn above in para 9.00 following findings are in this case:
The charges against Shri Saleen Ansari, SDE (GO-101519), as narrated in Annexure I and further elaborated in Annexure II of charges that he failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Company employee and thus, contravened the provisions of the Rule 4(1)(i), (ii) & (iii) of MTNL (CDA) Rules, 1998 are FULLY PROVED.
6. After considering the representation against the aforesaid report, the Disciplinary authority, vide order dated 07.07.2011, imposed upon him the punishment of removal from service with immediate effect. The relevant part of the said order reads as under:-
After going through the records, facts and circumstances of the case in its entirety and submission made by the charged officer, it is observed that the charged officer has requisitioned and received huge quantity of recovered poles from the stores of area SDE without justifying the need of such quantity of recovered poles, applied different tactics to get issued the poles by authorizing other officials as well as contractors to collect the recovered poles and failed to get the entry of received (recovered) poles in the stock register. It is evident that Ext S-21/18, 22/7 ad 24/7 were issued by SPS but entry in stock registers against Ext.22/7 was not made. Also Ext S-21/5 is a issue slip signed by Shri Saleem Ansari and signature of Shri Ramesh Chander (SW-II), RM is also attested by him on the issue slips Ext.S-21/5 whereas Shri Ramesh Chander denies having signed the same. The deposition of Shri Azad Singh (SW-18) that the charged officer introduced him to the contractor who lifted the recovered poles itself establishes the conspiracy in bungling of stores. Thus, it is found that recovered poles issued by various SDEs against issue slips signed by COC-IX (N) were never deposited in stores, stores were issued to authorized representative of charge officer on slips issued by him but he could not give proper accounting and use of poles issued by area SDEs against these slips by which act the charged officer caused the loss amounting Rs.18,45,760/- to MTNL due to his gross negligence, mala fide intention and misappropriation of 142 poles on his part alone.
FURTHER Shri Saleem Ansari, SDE, erstwhile employee of DOT, was absorbed in MTNL vide PO No.Director (Estt.)/MTNL Absorption/Delhi/26030 dated 24.01.2004. It is observed that Shri Saleem Ansari is a compulsive offender and retaining him in organization will vitiate the culture of organization and bring loss/theft. Hence penalty of removal of Removal from Service was recommended to DOT for ratification as per provision under Rule 31-A of MTN (CDA) Rules, 1998. Now, the Competent Authority in DOT has ratified the proposed penalty vide No.68-4/2011-Vig.II dated 19.05.2011.
NOW, therefore, I, S.P. Pachauri, Director (HR), MTNL in exercise of powers conferred upon me under Rule-24 of MTNL (CDA) Rules, 1998 and competent to impose any of the penalties provided under Rule 23(f) to (j) ibid on any Company employee to which Shri Salem Ansari, SDE (GO-101519) belongs, hereby impose the penalty of Removal from Service with immediate effect on Shri Saleem Ansari, SDE (GO-101519).
7. Applicant made an appeal against the aforesaid order and the Appellate Authority modified the penalty of removal from service to that of compulsory retirement from service with effect from the date of issuance of the original penalty order passed by the Appellate Authority.
8. The Applicant has, therefore, challenged the aforesaid second charge, report of the Enquiry Officer on it and the orders of the Disciplinary Authority dated 07.07.2011 and the Appellate Authority dated 23.12.2011 in this Original Application. As far the enquiry is concerned, the Applicant submitted that he has been subjected to double jeopardy. According to him, the Respondents had already conducted an investigation in the matter and they were fully aware of the total number of poles alleged to have been bungled away by him and others. In his case, they have with mala fide intention, arbitrarily split the charge into two separate bunglings showing two numbers of poles bungled with identical facts during his same tenure. According to him, the splitting of charge was made intentionally with a view to punish him twice for the same charge. He has also submitted that if the reasoning given by the Disciplinary Authority/Appellate Authority for splitting the charge is to be accepted, then they could have split the charges not only into two but into several charges and could have conducted separate disciplinary proceedings in respect of all of them. Further according to him, in his case alone, the Respondents have taken such an arbitrary and illegal action.
9. He has also submitted that the charge against him was factually incorrect because maintaining the correct record of the poles and making entries in the stock register did not pertain to him as they were not included in his charter of duties. Rather, those duties and responsibilities were exclusively attributed to the Stock Incharge Shri Ranbir Singh. Once the Respondents had held him guilty of the said charge, then imputing those allegations and holding him also guilty was not in accordance with law. He has also stated that the Respondents have made absolutely wrong allegations against him holding him responsible for bungling 1442 poles but actually the actual number of poles entrusted to him was only 90 which have been installed at different locations. He has also submitted that the Respondents did not try to prove the actual conspiracy in the matter.
10. As far as the report of the Enquiry Officer was concerned, he stated the Enquiry Officer has violated Rule 25 (15) of the MTNL (Discipline) Rules, which is in pari-materia with Rules 14(18) of the CCS (CCA) Rules, 1965 inasmuch as the Enquiry Officer denied him additional documents including rules on which relevance has been made; the Enquiry Officer did not consider his defence and no discussion was made on the same in the report and the conclusion in the report was not based on any legal evidence, rather it was based on suspicion, surmises and conjectures. As far as the Disciplinary Authoritys order is concerned, the Applicant has submitted that he has been subjected to arbitrary and hostile discrimination in the matter of penalty. According to him, in the aforesaid bungling episode, 25 officers were charge sheeted and he was only one of them. Whereas all other officers have been given minor penalty but he was the only person who has been given the severest punishment of removal from service. Further according to him, while doing so, the Disciplinary Authority did not apply its mind and no reason has been given for doing so. As regards the Appellate Authority is concerned, he has stated that, though it has modified the order of penalty imposed by the Disciplinary Authority, it has been done in a mechanical manner without giving any reasons.
11. In this regard, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of Rajendra Yadav Vs. State of M.P. and Others 2013 (3) SCC 73 wherein it has been that the Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The relevant part of the said judgment reads as under:- 12. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.
13. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Others v. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. In Shaileshkumar Harshadbhai Shah case (supra), the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
14. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re- instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.
12. The learned counsel for the Applicant has also relied upon the order of this Tribunal in OA No.99/2012 Shri Chaman Lal Vs. North Delhi Municipal Corporation decided on 15.02.2013 wherein it has been held that even if it is presumed that the third floor was being unauthorizedly constructed along with other floors during the tenure of the applicant, the respondents should have in all fairness to the applicant included the charge of unauthorized construction on third floor also along with the unauthorized construction on basement, ground floor, first floor and second floor. By not doing so, they have split one charge into two and have issued separate charge sheets for them. The relevant part of the said order reads as under:-
On perusal of the material made available to us, we have come to the conclusion that the cases of the applicant and Sh. V.K. Singhal were identical. However, in the instant case, the applicant stated that he had not received any reply to his representations made before the respondents. The respondents counsel stated that the representations of the applicant had been decided but was unable to produce a copy of the order passed on these representations. We, therefore, summoned the original records of the respondents and perused the same. We found that while deciding the representations, the respondents have failed to take cognizance of the fact that first charge sheet was issued to the applicant on the basis of inspection conducted by the Court Commissioner in 2006. In that charge sheet, there was no mention of constructions going on at third floor also. It has also not been disputed by the respondents that the applicant was posted in that area only upto 18.04.2004. If the unauthorized construction was not noticed in an inspection conducted in 2006 then in all probabilities this unauthorized construction would have taken place only after 2006 i.e. much after the period during which the applicant was posted in that area. Even if it is presumed that the third floor was being unauthorizedly constructed along with other floors during the tenure of the applicant, the respondents should have in all fairness to the applicant included the charge of unauthorized construction on third floor also along with the unauthorized construction on basement, ground floor, first floor and second floor. By not doing so, they have split one charge into two and have issued separate charge sheets for them. A perusal of the record of the respondents reveals that they do not have any material to establish at what time this construction took place. If this is so, it would again be unfair to penalize the applicant for the same when admittedly he had moved out from that area on transfer in 2004 itself.
13. The Respondents in their reply have denied that there was any double jeopardy in his case as alleged by the Applicant. The Appellate Authority, in its order, has also stated that even though subject of the charge sheet was same, the quantity and the date of occurrence of the bungling of the poles were different hence there is no case of double jeopardy. They have also denied the allegation of the Applicant that he has not been given additional documents, referring to para 2(iii) of the enquiry report wherein it has been stated that Applicant had received the charge memo along with documents. The Applicant was also permitted to inspect the originals of the listed documents and thereafter to submit a list of additional documents/defence witnesses. Further according to the report, the additional documents which were found to be relevant were furnished to the Applicant but the additional documents at Sl.No.5 was not given as the custodian of the same was not mentioned in his request.
14. The learned counsel for the Respondents has also submitted the Applicant has not been given any retirement benefits so far due to the pendency of this Original Application.
15. Learned counsel for the Respondents has relied upon the judgment of the Honble High Court of Delhi in the case of Sub Inspector Rajinder Khatri Vs. Government of NCT of Delhi and Others 191 (2012) DLT 39 wherein the observation of the Honble Supreme Court that the exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors. The relevant part of the said order reads as under:-
7. In Administrator, Union Territory of Dadra and Nagar Haveli v. Gulabhia M. Lad: (2010) 5 SCC 775 there was a joint inquiry conducted against the respondent and two other delinquents and major penalty of removal from service was imposed on all of them. The appeal filed by the respondent was dismissed. The appeal filed by the other two was partly allowed and the punishment in the case of one person was modified to that of compulsory retirement whereas in case of other person it was modified to reduction of lower stage of pay by 05 stages with cumulative effect. The OA filed by the respondent was allowed by the Tribunal holding that similarly placed persons had been treated differently and that awarding different punishments could not be sustained. The Writ Petition filed by the department having been dismissed, the matter was taken to Supreme Court. Allowing the appeal, Supreme Court inter alia held as under:
The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts. In a matter of imposition of punishment where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision making. A single distinguishing feature in the nature of duties or degree of responsibility may make difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co-delinquents differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination. (emphasis supplied) 1
8. In Chanderpal v. NCT of Delhi & Ors.: 2002 VIII AD (Delhi) 252 a Full Bench of this Court was of the view that awarding different punishments to different officials, who were served charge-sheets on the same allegations would not amount to discrimination. The issue referred to the Full Bench in that case was as to whether an order of the Appellate Authority had to be set aside only on the ground that on purported similar charges, the Appellate Authority himself had set aside the order of punishment. After considering various judgments of Supreme Court on the subject, the Full Bench, inter alia, held as under:
A writ of mandamus can be sought for by a person when there exists a legal right in himself and a corresponding legal obligation on the respondents.
Equality clauses enshrined in Articles 14 and 16 of the Constitution of India would apply only when the petitioner has been deprived of a legal right. A delinquent officer in no circumstances can based his claim invoking equality clause where its foundation is based on illegality. He cannot be permitted to urge that although he is guilty of commission of a misconduct he should not be punished only because others have been let off either by mistake or otherwise.
16. He has also relied upon the judgment of the High Court in the case of S.M. Dongarwar Vs. PEC Limited (A Government of India Enterprise) MANU/DE/2153/2013 wherein it has been held as under:-
14. The rule of double jeopardy proscribes a person from being tried in respect of the same charges for which he has been tried earlier and acquitted or convicted. A person accused of an offence is entitled to enter peremptory plea of autrefois acquit or autrefois convict (autrefois means previously in french). Thereby pleading that the accused has already been acquitted or convicted of the same offence for which he is now been tried and thus cannot be proceeded against for the second time.
This rule of double jeopardy is embodied in Article 20 (2) of the Constitution of India which reads as under:-
(2) No person shall be prosecuted and punished for the same offence more than once. XXX XXX
16. In the case of Albrecht v. United States: (1927) 273 U.S. 1 : 71 Law Ed 505, Justice Brandeis delivered the unanimous opinion of the U.S. Supreme Court as under:-
There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information, four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit, and punishing also the completed transaction. The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act, but the general principle is well established. It is apparent from the above that the rule of double jeopardy is founded identity of offences and not the commonality of facts.
XXX XXX
23. A plain reading of the two charge-sheets also indicates that the gravamen of accusation/offences alleged by the respondent in the chargesheet dated 24.08.2005 and the statement of charges issued on 20.06.2011 are completely different. Whereas the allegations in the charge-sheet dated 24.08.2005 relate to irregularities in keeping of records, operation of locker of the respondent and non-realisation of certain cheques and consideration for the certain gold bars delivered to M/s Paresh Exports Pvt. Ltd, the charges leveled in the charge-sheet issued on 20.06.2011 are of fraudulent conduct, misappropriation and collusion of appellant with M/s Paresh Exports Pvt. Ltd. resulting in a loss to the respondent company. Thus, it is apparent that the causes of action for the two charge-sheets are different.
17. We have heard the learned counsel for the Applicant Shri Nilansh Gaur and the learned counsel for the Respondents Shri Saket Sikri along with Ms. Sumedha Dang. We have also perused the departmental records. In our considered view, the Respondents are not justified in splitting the charge into two and awarding two punishments to the Applicant for the same misconduct. Here the alleged misconduct against the Applicant is about bungling of poles. It is not the case of the Respondents/Disciplinary Authority that the entire bungling of 3297 poles stated to have been made by the Applicant during the period from 2001-2005 was not in their knowledge while they were issuing the charge memo dated 14.06.2005 stating that he was involved in bungling of 1139 poles. Therefore, they should have included the 1956 poles stated to have been bungled by the Applicant in the second charge sheet. The actual misconduct on the part of the Applicant is bungling of the poles and the number of poles bungled is part of the details of the misconduct. The Appellate Authority himself in its order has admitted that subject of the charge sheet is same but quantity and date of occurrence of incident of missing of poles is different.
18. Again as rightly submitted by the learned counsel for the Applicant, the other officers who have bungled the poles have been given comparatively minor penalties. Further, it is seen that the penalties imposed were not based on the number of poles bungled. The Respondents themselves have filed a list of officers/officers against whom major penalties have been awarded for bungling of poles:-
LIST OF OFFICERS/ OFFICIALS FOR POLE BUNGLIING CASE (MAJOR PENALTY) FIRST CASE SI. No. Name & Designation of the Officers/ Officials Date of charge sheet Charges Role of charged officers/ officials whether issued of store or recipient of stores Decision of DA: Date of decision Decision of Appellate Authority Remarks
1.
Shri Saleem Ansari, SDE, (GO-101519) 14.06.2005 Bungling of 1139 poles.
Indentor Reduction of lower stage by three stages of pay for period of three years and recovery of Rs. 4.45,634, 03.09.2007. Appeal rejected Review rejected 19.03.2009.
2. Shri Azad Singh, CS-5688 07.05.2005 Bungling of 637 poles.
Recipient Reduction by two stages in pay scale for a period of one years without cumulative effect and Recovery of Rs. 2,71,786/- 14.10.2008 Reduction by two stages in pay scale for a period of one years without cumulative effect and Recovery of Rs1,35,893/- 28.02.2009
3. Shri Balvinder Singh, PM-5070 07.05.2005 Bungling of 180 poles.
Recipient Reduction by two stages in pay scale for a period of one year without cumulative effect and recovery of Rs. 76800-/ from his pay. 14.10.2008 No appeal filed.
LIST OF OFFICERS/ OFFICIALS FOR POLE BUNGLIING CASE (MAJOR PENALTY) SECOND CASE SI. No. Name & Designation of the Officers/ Officials Date of charge sheet Charges Role of charged officers/ officials whether issued of store or recipient of stores Decision of DA Decision of Appellate Authority Remarks
1. Shri Saleem Ansari, SDE, (GO-101519) 15.06.2007 Bungling of 1442 poles.
Indentor Removal from Service 07.07.2011 Compulsory Retirement from Service.
23.12.2011
2. Shri Azad Singh, CS-5688 07.05.2005 Bungling of 1099 poles.
Recipient Reduction by six stages in pay scale for a period of three years without cumulative effect and Recovery of Rs. 12,42,880/-From his pay.
Reduction by six stages in pay scale for a period of three years without cumulative effect and Recovery of Rs. 6,21,440/- ( 50% of the amount) from his pay.
3. Shri Balvinder Singh, PM-5070 07.05.2005 Bungling of 789 poles.
Recipient Reduction by five stages in pay scale for a period of three years with cumulative effect and Recovery of Rs. 10,09,920/- from his pay.
Appeal pending.
4. Shri Ranbir Singh, PM-924 Bungling of 95 poles.
Recipient.
Reduction by two stages in pay scale for a period of one year without cumulative effect and Recovery of Rs. 1,21,600/- No appeal.
5. Shri S.K. Rastogi, PM-2478 Bungling of 243 poles.
Recipient.
Withholding of increment of pay for a period of two years with cumulative effect.
No appeal.
6. Shri D V Singh, GO-103172 Bungling of 1226 poles Indentor Reduction by three stages in pay scale for a period of three years without cumulative effect. Appeal Rejected
7. Shri Virender Singh, PM-2754 Bungling of 36 poles.
Recipient Reduction by one stages in the pay scale for a period of one year without cumulative effect and Recovery of Rs. 46,080/-. No appeal.
8. Shri Matibar. MZ-18263 Bungling of 515 poles Recipient Stoppage of two increments with cumulative effect and stoppage on efficiency bar.
No appeal.
9. Shri B.K. Sinha, SDE, (GO-20053984) Bungling of 778 poles.
Recipient.
Compulsory Retirement from Service.
Reduction by three stages in the time of pay for a period of three years with cumulative effect & recovery of Rs. 1,28,000.
10. Shri Ramesh Chand, PM-920 Bungling of 778 poles Recipient.
Reduction by one stage in his pay for a period of one year with cumulative effect and recovery of Rs. 2,30,400/-. Reduction by one stage in his pay for a period of one year with cumulative effect and recovery of Rs. 1,15,200/-.
11. Shri Ram Balak Tiwari, PM-4441 Bungling of 53 poles.
Recipient Exonerated
12. Shri Balram, SDE, JE-4287 Bungling of 54 poles.
Indentor Reduction by one stage in the time scale of pay for a period of one year without cumulative effect. Appeal Rejected.
13. Shri Rajender Prasad Singh, PM-3476 Bungling of 46 poles.
Recipient.
Exonerated.
14Shri N K Verma.
SDE (GO-33000) Bungling of 46 poles.
Indentor Reduction by one stage in time scale of pay for a period of one year with cumulative effect. Appeal Rejected.
15. Shri Baldev Raj, PM-1673 Bungling of 26 poles.
Indentor Withholding of one increment for a period of one year with cumulative effect.
Appeal Rejected.
16. Shri S K Malhotra, SDE (GO-34959) Bungling of 26 poles.
Indentor Reduction by one stage in time scale of pay for a period of one year with cumulative effect. No appeal.
17. Shri A K Gahlot, SDE (GO-35600) Bungling of 55 poles.
Indentor Reduction by one stage in the time scale of pay for a period of one year with cumulative effect. No appeal.
18. Shri Sewa Ram, MZ-18986 Bungling of 63 poles Indentor Exonerated.
19. The Apex Court in the case of Lt. Governor, Delhi and Others Vs. HC Narinder Singh 2004 (13) SCC 342 held that for the same misconduct different punishments cannot be imposed upon the delinquents. The relevant part of the said judgment reads as under:-
4. Reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would amount to double jeopardy. The Tribunal was, therefore, right in law in annulling such an action. We are not expressing any opinion on the ambit or scope of any rule.
5. For the reasons stated above, we do not find any merit in this appeal and dismiss the same with no order as to costs.
20. Further it is seen from the departmental file, that the Vigilance Officer has prepared the draft charge sheet against the Applicant for a major penalty proceedings and submitted the same to the Disciplinary Authority through the intermediary officers and the Disciplinary Authority simply signed it. Neither the Vigilance Officer nor the departments officials have disclosed in their note that in an identical case, the Applicant has already been charge sheeted. In fact the Disciplinary Authority was not aware about the earlier departmental proceedings on the very same issue. He has also not applied its mind and approved the draft charge in a routine and mechanical manner. The said notings are reproduced below:-
P-1/C:- No.Vig/GC-38/307/Mobile/06/56 dated 23.03.2007 received from VO-I. PUC may kindly be seen. The VO-I has furnished draft charge sheet for initiating major penalty proceedings under Rule 25 of MTNL, CDA Rules, 1998 against S/Shri Saleem Ansari, SDE, D.V. Singh, SDE, B.K. Sinha, SDE, Naresh Kumar, SDE, S.K. Malhotra, SDE & Bal Ram, JTO.
Kindly advise whether we may ask for the documents from VO-I or write to AGM(A) regarding status of the designation as well as place of posting of these officers.
File is submitted for further orders.
Sd/- Sd/- Sd/- D.A. SSS(Disc.) SDE(Disc.) 03.04.2007 03.04.2007 XXX XXX XXX
Reference orders on P-1/N may kindly be seen. The draft charge sheet in r/o Shri Salem Ansari, SDE has been corrected and resubmitted for the approval/signature of the Executive Director placed at P.5/C (2 copies).
Submitted please.
SSS(Disc.) SDE(Disc.)
08.06.2007
Submitted for approval and signature please.
Sd/-
08.06.2007
DE(Admn)
A draft charge sheet for major penalty in r/o Shri Saleem Ansari, SDE (GO-101519) is submitted for approval and signature of E.D. please.
Sd/-
ED 11.06.2007 DGM (Vig) Draft charge sheet submitted for approval and signature please.
Sd/-
DGM (Vig) 12.06.2007 GM (Vig) Sd/-
14.06.2007 Executive Director Sd/-
15.06.2007.
The Apex Court in the case Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others JT 2011 (4) SC 252 held that the Disciplinary Authority cannot issue a charge sheet in a routine manner but he has to apply his mind. Further, the Apex Court has held that the Disciplinary Authority should pass some positive order taking into consideration the material on record before passing an order to initiate disciplinary proceedings. The relevant part of the said judgment reads as under:-
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
29. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).
Thus, the above referred to order could not be sufficient to initiate any disciplinary proceedings.
30. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
31. In Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. (See also State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors. AIR 2010 SC 3745).
32. As in the instant case, there had been no proper initiation of disciplinary proceedings after the first round of litigation, all other consequential proceedings stood vitiated and on that count no fault can be found with the impugned judgment and order of the High Court.
21. We, in the above facts and circumstances of the case, are of the considered view that the splitting of the charge against the Applicant for the alleged misconduct of bungling of poles based on the number of poles bungled was totally arbitrary and illegal. Therefore, the second impugned charge memorandum and the disciplinary proceedings followed in the culmination of the imposition of the penalty of compulsory retirement from service imposed upon the Applicant is nothing but an act of double jeopardy. Consequently, the report of the Enquiry Officer dated 08.01.2010, Disciplinary Authoritys order dated 07.07.2011 and the Appellate Authoritys order dated 23.12.2011 are not sustainable and they are accordingly quashed and set aside. We, in the above facts and circumstances of the case direct the Respondents to reinstate the Applicant in service w.e.f. 07.07.2011, with all consequential benefits. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh