Bombay High Court
Sardar Amit Shaikh vs The General Manager (Hr And Op), Office ... on 3 July, 2018
Author: M. S. Sonak
Bench: V. K. Tahilramani, M. S. Sonak
DSS JUDGMENT-WP- 11505-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11505 OF 2015
Sardar Amir Shaikh ...Petitioner
Versus
The General Manager, BSNL,
Satara & Ors. ...Respondents
Mr. A. S. Rao for the Petitioner.
Mrs. Neeta Masurkar a/w. Ms Nieyaati V. Masurkar for the
Respondent Nos.1 to 3.
Mr. P.S. Gujar for Respondent No.3.
CORAM: SMT. V. K. TAHILRAMANI, Acting C. J. &
M. S. SONAK, J.
Date : 03.07.2018
ORAL JUDGMENT :
1] Heard the learned counsel for the parties. 2] Rule. With the consent of and at the request of the learned counsel for the parties, Rule is made returnable forthwith.
3] The challenge in this petition is to the judgment and order dated 5.04.2013 made by the Central Administrative Tribunal (CAT), Mumbai dismissing Original Application No. page 1 of 14 DSS JUDGMENT-WP- 11505-15 402 of 2010 instituted by the petitioner to question the penalty of withholding increments for a period of one year on account of misconduct in relation to use of unfair means at departmental examinations.
4] When the petitioner was working as a Senior Accountant, TA Section, Pune Telecom, a charge memorandum dated 15.06.1999 was issued to him alleging unfair means in the departmental examination. The said charge-sheet was thereafter withdrawn on the ground that some technical lacunae had crept therein. Thereafter, the charge-sheet dated 3.7.2000 was issued to the petitioner. The statement of article of charge reads thus:
"ARTICLE - I That the said Shri.S.A. Shaikh, Sr. Accountant, TA Section, Pune Telecom, while writing examination paper No. VII, of Departmental Examination JAO Part II (Telecom Wing), under Roll No.MIIT/JAO-II/99 (62) held on 20.2.99 at Multi Purpose Hall, Premlila Vithaldas Polytechnic SNDT Women's University, Juhu Road, Mumbai - 51 was found keeping 102 chits, hand written in ink in the compass with him with the intention as and when gets a chance to copy it. It is alleged that said Shri Shaikh acted in a manner unbecoming of a Government servant and failed to maintain absolute integrity thus he violated provisions of CCS (Conduct) Rules, 1964 Rule No. 3 (i) (iii)."
page 2 of 14 DSS JUDGMENT-WP- 11505-15 5] Along with the charge-sheet dated3.7.200, the petitioner was furnished a statement of imputations of misconduct in support of the article of charge, list of documents, by which the article of charge was proposed to be sustained and the list of witnesses by whom the charge was proposed to be sustained. The list of documents reads as follows:
"List of documents by which the articles of charges framed against Shri. S.A. Shaikh, Sr Accountant, TA Section, Pune Telecom, Pune are proposed to be sustained.
1) Report of Centre Supervising Officer Letter No. JAO/Part-II/VBB/Mumbai/4 dtd.3.3.99.
2) 102 nos. of clips duly signed by the candidate.
3) Statement of said Shri. S.A. Shaikh duly signed by him in the presence of invigilators. 20.2.1999 (page 99)
4) Statement of invigilators duly signed in presence of Chief Supervisor."
6] The enquiry officer submitted a report, in which, he held that the charge against the petitioner was not proved. The disciplinary authority, disagreed with the conclusion recorded by the enquiry officer and therefore, imposed a penalty of censure upon the petitioner. This Court, by judgement and order dated 3.10.2007 in Writ Petition No. 1417 of 2007 set aside the penalty of censure, since, the disciplinary authority had not afforded the petitioner proper page 3 of 14 DSS JUDGMENT-WP- 11505-15 opportunity of hearing by stating reasons for difference of opinion with the enquiry officer. Specific liberty, however, was granted to the disciplinary authority to proceed with the matter in accordance with law from the stage of submission of enquiry report to the disciplinary authority in accordance with the Service Rules.
7] The disciplinary authority, in pursuance of the remand, indicated the reasons for disagreement with the enquiry officer and required the petitioner to show cause as to why further action be not taken against him. The petitioner submitted his response and after consideration thereof, the disciplinary authority, by order dated 10.1.2008, imposed upon the petitioner penalty of withholding of one increment for a period of one year without any cumulative effect. The petitioner's appeal was dismissed by the appellate authority by order dated 4.6.2008. The CAT, by impugned judgment and order dated 5.4.2013, has dismissed the O.A. questioning the orders imposing penalty upon the petitioner. Thereafter, a review petition was taken out by the petitioner, which has also been dismissed by judgment and order dated 1.8.2013. Hence, the present petition.
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DSS JUDGMENT-WP- 11505-15
8] Mr. A.S. Rao, learned counsel for the petitioner,
submits that the enquiry officer had correctly held that the charge leveled against the petitioner had not been proved. He submits that the disciplinary authority has incorrectly disagreed with the findings recorded by the enquiry officer and this is a good ground to set aside the penalty imposed upon the petitioner. Mr. Rao submits that the disciplinary authority has given undue weightage to the petitioner's statement dated 20.2.1999 and has incorrectly treated such statement as admission of the charge. Mr. Rao submits that in the first place, such statement was extracted by exerting undue pressure and coercion. Secondly, such statement, nowhere admits that the petitioner had copied anything from the chits in the compass box. Mr. Rao submits that if the answer-paper of the petitioner were to be properly scrutinize, it would be evident that the petitioner had not copies anything from 102 chits that were found in the compass box at the time of examination. Mr. Rao submits that there is no categorical proof that the compass box was found on the table on which the petitioner was answering the examination paper.
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DSS JUDGMENT-WP- 11505-15
9] For all the aforesaid reasons, Mr. Rao submits that the
finding that the charge against the petitioner was proved is vitiated by perversity and unreasonableness. He submits that the penalty imposed upon the petitioner is also disproportionate. For all these reasons, he submits that the impugned judgments and orders are liable to be set aside and the petitioner is liable to be granted all the reliefs claim for by him in the O.A. before the CAT.
10] Ms Masurkar, learned counsel for the respondents, submits that strict rules of Evidence Act are inapplicable to the disciplinary proceedings. She submits that the petitioner's statement dated 20.2.1999 is more than sufficient to prove the charge against the petitioner. She submits that the theory of coercion or undue pressure was entirely an afterthought. The penalty imposed is, in fact, minor and for a charge of this nature, a major penalty was in fact warranted. She submits that there is no violation of principles of natural justice and since the finding recorded by the discriplinary authority after expressing disagreement with the enquiry officer, is supported by oral as well as documentary evidence on record, this court, may not page 6 of 14 DSS JUDGMENT-WP- 11505-15 interfere with the impugned judgments and orders. 11] The rival contentions now fall for our determination. 12] The charge against the petitioner is based upon the incident which took place on 20.2.1999 when the petitioner was answering the departmental examination, which is a pre-requisite for further promotion. The petitioner was caught by the exam invigilators with a compass box inside the examination hall. This compass box, when opened by the invigilator was found to contain 102 chits written in ink. The allegation against the petitioner is that the compass box with such 102 chits were brought into the examination hall, despite instructions against bringing the same, with intention to copy there, the moment the petitioner gets a chance to do so 13] The petitioner's immediate reaction on being caught in this manner was to give a statement on 20.2.1999 to the Chief Supervisor of Examination in presence of invigilator. This statement is relevant and the same reads as under :
"To, The Chief Supervisor page 7 of 14 DSS JUDGMENT-WP- 11505-15 Examination of JAO Part -II SNDT College, Mumbai.
Roll No.MHT/JAO-II/99/62(B) Name Shri S.A. Shaikh.
Some Chits were found in compass at the time of writing paper No. VII on 20.2.99.The chits were in compass but I have not copied them in my paper. Hereafter I will take care to avoid such lapses. I appolize for the same. Hence I request your honour not to take any action against me.
I have signed in token the Chits available with me in the examination hall on the table.
Thanking you,
1) In some chits I have signed Yours faithfully
in full sd/-
2) Initial signed in chits. S.A. Shaikh
sd/- Pune Telecom
PGMT Pune-2
WITNESS BY INVIGILATORS
1) R.R. Ramaswamy ASV sd/-20.2.99
2) O.P. Chandu ASV sd/-20.2.99
3) Adill Ganesh R. S.S. sd/-20.2.99
(TCA (II)
4) S.V. Joglekar S.S. Sd/-20.2.99
sd/-
S.R. Joshi
10.7.2000
Chief Accounts Officer
(T.A.) Pune-5."
14] As indicated earlier, the petitioner was initially issued
with a charge-sheet dated 15.6.1999. In response to the same, the petitioner filed a reply dated 2.7.1999, which again reads as follows:
"To From
Chief accounts Officer (TA) Shri S.A. Shaikh
O/o P.G.M. Pune Telecome. Sr. Acctt. TA Section
Pune-411 005. Swa. Savarkar
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DSS JUDGMENT-WP- 11505-15
Bhavan Pune-5.
Dt. 2-7-99
Subject:- Inquiry under rule 14 of CCS (CCA) Rule 1965.
Reference:- Your memo No. PTN/CAO/Disc/99/3 dt.15/6/99.
Respected Sir, With reference to your above cited memo, I would like to put few lines for your kind consideration please The examination was in Mumbai and I have very limited knowledge of Mumbai city. Consequently, I reached to the examination centre late by five to ten minutes. The timing of the paper was 10-00 hrs to 12- 00 hrs. Both these things raised my tension to the maximum and I failed to keep the compass, which containing some slips, out of the examination hall. I had prepared these slips to read while travelling in the bus/train. At about 11.30 hrs. the invigilator opened the compass, on finding such slips in it he immediately expelled me out of the examination hall. However, I explained the position and also I apologised in writing to the invigilator. The invigilator accepted it and permitted me to appar for the remaining papers.
Sir, I wish to inform you that, in the examination, I neither copied nor attempted to copy anything from the slips in the compass box. This can be very well seen from the answer papers which itself is the real truth of my statement.
I have also apologised and also assured that I will be more careful in future and avoid such recurrance.
I humbly, request you sir, taking into all the above fats, to take lenient view and consider my case sympathetically as your decision will decide my future in the department.
Thanking you in anticipation.
Yours faithfully, sd/-
(Shri S.A. Shaikh)"
page 9 of 14 DSS JUDGMENT-WP- 11505-15 15] Consequently, between 20.2.1999 and 15.6.1999 a period of almost four months, the petitioner nowhere alleged that the statement given by him on 20.2.1999 was extracted from him by exertion of undue pressure or coercion. Then again, in response to the charge-sheet dated 15.6.1999, the petitioner, in his reply dated 2.7.1999 has again, not stated that the statement given by him on 20.2.1999 was a result of coercion or exercise of undue pressure.
16] The statement dated 20.2.1999 was produced on record in the course of enquiry. The petitioner did not dispute either his signature or the fact that such statement was indeed given by him. The statements of invigilators duly signed in presence of Chief Supervisor were also produced in the course of enquiry. 102 chits having signatures of the petitioner were also produced on record during the enquiry proceeding. Despite all these materials, the enquiry officer chose to conclude that the statements given by the petitioner were under pressure and in the absence of such statements, the charge against the petitioner cannot be held as proved. The enquiry report also page 10 of 14 DSS JUDGMENT-WP- 11505-15 seems to suggest that mere possession of incriminating material in the examination hall is not sufficient, but further, it was necessary to prove that the petitioner had in fact copied from such incriminating materials. According to us, this was a clear mis-direction and the disciplinary authority, quite correctly disagreed with the findings recorded by the enquiry officer.
17] Apart from the other oral and documentary evidence on record, the two statements of the petitioner are sufficient to establish the charge against the petitioner. There is absolutely no material on record to sustain the belated defence of undue pressure or coercion. The enquiry officer was clearly not right in accepting such a flimsy defence and thereby ignoring not only the statement of the petitioner, but other documentary and oral evidence on record. 18] The disciplinary authority has given cogent reasons for disagreement and it is only after considering the petitioner's defence that minor penalty has been imposed upon the petitioner. According to us, there is nothing disproportionate in the penalty imposed. In fact, according to us, in imposing page 11 of 14 DSS JUDGMENT-WP- 11505-15 such a minor penalty, the respondents have been quite lenient with the petitioner.
19] There were instructions issued to the examinees about not bringing any such material into the examination hall. Therefore, bringing in the examination hall a compass box with 102 chits with matter written thereon, which matter, was obviously relevant to the paper which the petitioner was answering, undoubtedly, constitutes unfair means. The fact that the petitioner was not caguht actually copying from the chits or that the material from the chits is not found to be reflected in the answer paper, is, quite irrelevant, in the facts and circumstances of the present case. The case of the respondents is that such material was brought into the examination hall with the intention of copy as and when opportunity presented itself. Therefore, merely the fact that the petitioner was caught before such opportunity presented itself for actually copying from the chits, is not, some mitigating factor, which the petitioner, can rely upon. Further, the defence that the petitioner had reached slightly late and therefore, in a hurry, forgot to keep this material outside the examination hall is also, not some page 12 of 14 DSS JUDGMENT-WP- 11505-15 defence, which inspires much confidence. 20] The contention that the petitioner is not proved to have actually copied from the incriminating material and therefore, the charge cannot be held as proved, stands answered by the decision of the Hon'ble Supreme Court in case of Central Board of Secondary Education vs Vineeta Mahajan (Ms) and Another (1994) 1 SCC 6. In this case, it is held that the recovery of incriminating material from the possession of candidate is the sine qua non for the misconduct under the rules framed by CBSE. The fact that the candidate has not used the material will not be helpful in escaping the conclusion that the candidate is not guilty of the unfair means. The mere fact that the candidate was found in possession of the incriminating material is sufficient to prove the charge of use of unfair means.
21] The disciplinary authority, has correctly appreciated the material on record and on such basis, held the charge as proved against the petitioner. The disciplinary authority has quite correctly disagreed with the findings recorded by page 13 of 14 DSS JUDGMENT-WP- 11505-15 the enquiry officer. The enquiry officer had ignored the vital and relevant material and further, even misconstrued the gravamen of the charge against the petitioner. In fact, the view taken by the enquiry officer conflicts with the view taken by the Hon'ble Supreme Court in case of CBSE vs. Vineeta Mahajan (supra). As noted earlier, there is absolutely nothing disproportionate in the minor penalty imposed upon the petitioner.
22] Upon cumulative consideration of all the aforesaid facts and circumstances as well as the law on the subject, we see no good ground to interfere with the impugned judgment and order. The petition is, therefore, dismissed. Rule is discharged. There shall, however, be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
Dinesh Digitally signed by
Dinesh Sadanand Sherla
Sadanand Date: 2018.07.11
Sherla 16:04:09 +0530
Dinesh Sherla
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