Central Administrative Tribunal - Delhi
Dharamvir Singh Khatri vs Chief Managing Director on 25 January, 2010
Central Administrative Tribunal Principal Bench OA No.1486/2009 New Delhi, this the 25th day of January, 2010 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Dharamvir Singh Khatri S/o Late Shri Sardar Singh R/o House No.1961/10, Arya Samaj Road, Near Sabji Mandi, Pana Uddan, Narela, New Delhi 110 040. Applicant. (By Advocate : Sh. Rajiv Manglik) Versus 1. Chief Managing Director, BSNL Corporate Office, BSNL Bhawan, Janpath, Connaught Place, New Delhi 110 001. 2. CGM North Telecom Region (Maint) Kidwai Bhawan, New Delhi. 3. General Manager Telegraph Services, O/o CGM North Telecom Region (Maint) Kidwai Bhawan, New Delhi. 4. Chief Superintendent Central Telegraph Office, Eastern Court, Janpath, New Delhi. Respondents. (By Advocate : Sh. K. P. Sundar Rao with Ms. Subhashini and Mr. Khanna) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Dharamvir Singh Khatri, the Applicant herein, is working as T/Man (Outdoor) with BSNL and while working at the Telegraph Office, Kashmiri Gate, Delhi, he was charge sheeted vide Charge Memo dated 3.11.2007 (Annexure-A5) under Rule 36 of Bharat Sanchar Nigam Limited (BSNL) CDA Rules, 2006. The charge was that on 21.9.2007, while working as T/Man, the Applicant used abusive language against his Senior Officer, Shri Bharat Ram, Telegraph Overseer, manhandled him by pressing his throat and threw blows, whereby he committed an act of gross misconduct and violated Rule 4 (1)(C) of BSNL, CDA Rules, 2006. An inquiry was conducted. Considering the Inquiry Officers Report, the Disciplinary Authority vide order dated 28.4.2008 (Annexure-A3) imposed the punishment of compulsory retirement from service on the Applicant. He preferred an appeal dated 26.5.2008 (Annexure-A9) against the said order. The Appellate Authority vide his order dated 4.10.2008 (Annexure-A2) modified the punishment from compulsory retirement from service to reduction to lower time scale of pay of Rs.4720-150-6790 from the pay scale of Rs.5700-160-8100 for a period of 5 years with further order that the Applicant would not earn any increment during the said period and on the completion of the punishment, he would come back to his normal pay scale. The Applicant being aggrieved by the said order, submitted a review petition to the Chief General Manager, BSNL- the Reviewing Authority, who upheld the orders of the Appellate Authority and rejected the Review Petition vide his order dated 9.2.2009 (Annexure-A1).
2. Having been aggrieved by these orders, the Applicant has moved this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
(i) To quash and set aside order dated 09.02.2009 and order dated 04.10.2008 and charge memo dated 28.04.2008; and To direct the respondents to grant all consequential benefits to the applicant after setting aside the order of the penalty and restore the pay and allowances of the applicant as hither-to-fore; and To direct the respondents to pay all the arrears of pay and allowances within a fixed time frame as decided by this Honble Tribunal;
(iv) To award exemplary costs; and
(v) To pass any other order as this Honble Tribunal deem fit in the interest of justice.
3. The learned Counsel for the Applicant, Shri Rajiv Manglik, very forcefully put forward his contentions. (i) The Disciplinary Authority did not provide a copy of the Inquiry Report prior to the imposition of penalty of compulsory retirement from service. He submitted that the Disciplinary Authority passed the order dated 28.4.2008 whereas the copy of the IOs Report was given on 16.5.2008. He clarified that the day to day proceedings in the Inquiry were given to the Applicant only in May 2008 but not on the day of the inquiry. This he termed as illegal and in support thereof Shri Manglik laid his reliance on the judgment of Honble Apex Court in Union of India Versus Mohd. Ramzan Khan [1991 (1) SCC 588]. (ii) Two witnesses were examined by the Inquiry Officer behind the back of the Applicant and even without informing the inquiry date to the Applicant. (iii) The Applicant was not provided with Defence Assistant and as such the Respondents violated the principles of natural justice. He was not allowed to cross examine the witnesses. (iv) Though the complainant named only one witness but the Inquiry Officer examined more witnesses and relied on their evidence though they were not present at the time of the incident. (v) Further, Shri Manglik highlighted that the complainant and the Applicant reached a compromise but the IO instead of recommending to drop the case, found the charge as established. This, he terms, against the principles of compromise and he relied on the judgment of Honble Supreme Court in the Madan Mohan Abbot Versus State of Punjab [AIR 2008 SCC 1969]. (vi) He also raised the contention that the Applicant took some medicine due to pain in his body on the date of incident and he was not aware of what happened. (vii) He also raised the issue of proportionality of punishment. He argued that on the basis of the above grounds, the OA should be allowed and the punishment orders quashed and set aside.
4. Per contra, Shri K. P. S. Rao, the learned Counsel for the Respondents assisted by Ms. Subhashini, very strongly opposed the contentions raised by Shri Manglik. Shri Rao contended that the Inquiry Officer, Disciplinary, Appellate and Reviewing Authorities followed the disciplinary procedure both in letter and spirit. There was no violation of the principles of natural justice. The Applicant was given 10 days time to indicate the name of the Defence Assistant which he did not do so. The IOs Report was given to the Applicant in March 2008 and requested to submit his representation which was received in April, 2008 and thereafter only the Disciplinary Authority passed his orders. With regard to daily proceedings in the Inquiry, Shri Rao referred to Annexure-A7 to submit that the Applicant has been signatory to the daily inquiry and is fully aware of the contents. IO has recorded the evidence of 2 more witnesses who were also at the incident place. During the inquiry the Applicant was given opportunity to cross examine the witnesses but he did not do so. Shri Rao also submitted that the judgments of Honble Supreme Court relied on by the Counsel for Applicant are different in facts from the present case. He, therefore, argued that the OA should be dismissed.
5. We heard the rival contentions and perused the pleadings. On our directions, the Respondent BSNL produced 2 relevant Files before us which we went through very closely. Those are (i) File No.85-09/2007-CS (Disc-I) and (ii) File No.SDC (OPTNS)/Disc-36/DVK/PO.
6. Before we analyse the facts and undertake the adjudication of the case, we intend to examine the imputation of misconduct which the Disciplinary Authority issued as part of the only charge. The same is extracted below :-
That Shri Dharamvir Khatri functioning in the capacity of T/man (O) used abusive language against Shri Bharat Ram, T/Overseer, Telegraph Office, Kashmiri Gate, Delhi and man-handled him on 21.09.2007 at 1445 hrs. In this regard, Shri Bharat Ram, T/Overseer made a complaint dated 21.09.2007 to the JTO I/C Telegraph Office, Kashmiri Gate, Delhi. The Incharge, T.O. Kashmiri Gate, Delhi called the explanation of this incident from Shri Dharamvir Khatri, T/Man (O) vide letter dated 22.09.2007 to which the C.O. not replied. Shri Bharat Ram again requested to take action into the matter vide his application dated 24.09.2007. Incharge, T.O. Kashmiri Gate, Delhi issued a reminder dated 26.09.2007 to Charged official to submit his explanation within 48 hrs. charged official then denied the charges leveled against him vide his reply dated 27.09.2007.
7. It is noted that though there was a preliminary enquiry into the alleged misconduct, the same was neither the basis of the charge memo, nor was a relied on document. Hence, we are not taking into account the contents of the preliminary enquiry report. The Inquiry Officer (IO) conducted an enquiry and submitted his report dated 28.2.2008. The relevant part of his report which in Hindi, reads as follows :-
8. On the receipt of the IOs Report, the Disciplinary Authority sent to the Applicant a copy on 12.3.2008 and requested for his representation. The Disciplinary Authority examined the evidence gathered in the inquiry and the Applicants representation and passed the order dated 28.04.2008 imposing the punishment. The relevant part of the order is extracted below :-
I have carefully gone through the relevant papers in the file and considered the representation of the C.O. The submission of C.O. in his representation dated 15.04.2008, that he was not aware of this happening is not acceptable because in his earlier reply to the charge sheet he has submitted that there was only altercation between us and there was no manhandling. Both the submissions of the C.O. are contradictory in itself. Thus, the explanations given by the charged official are found unsatisfactory and plea taken by him is not tenable. Irrespective of the compromise between the two, the C.O. is fully guilty. Keeping all the facts and circumstances in mind I pass the following order :-
ORDER I, R. P. Gond, Chief Superintendent and Disciplinary Authority in this case in exercise of the powers conferred upon me under Rule-34 of BSNL, CDA Rules-2006 and being competent to impose any of penalties enlisted under Rule-33 of the said rules, hereby impose the penalty of COMPULSORY RETIREMENT from service upon Shri Dharambir Chatri, T/man (O/D), staff No.2040 Telegraph Office, Kashmiri Gate Delhi with immediate effect.
9. The Applicant submitted an appeal against the above order on 26.05.2008 and has raised 3 grounds. The Appellate Authority took into account these grounds and more specifically the intimation given by the Complainant on 28.01.2008 to the Administration that he had forgiven the Applicant, and modifying the penalty imposed by the Disciplinary Authority, he passed the following orders :-
Considering the totality of the case, Appellate Authority is of the opinion that since victimized official has pardoned Sh. Dharamvir Singh Khatri for his act and even requested administration to terminate subsequent proceedings, it would be most prudent to modify the punishment from compulsory retirement to REDUCTION TO A LOWER STAGE (SCALE Rs.4720-150-6970) FOR A PERIOD OF FIVE YEARS WHEREIN HE WOULD GET NO INCREMENT IN THE LOWER SCALE OF PAY Rs. 4720-150-6970. HOWEVER SHRI DHARAMVIR SINGH KHATRI WOULD GET ROUTINE INCREMENT AFTER THE EXPIRY OF FIVE YEARS PERIOD.
Order I, Deepak Sinha, General manager (TS) NTR, New Delhi in exercise of the powers conferred upon me under Rules 51 of BSNL, CDA Rules 2006 pass an order as Appellate Authority to the cadre to which Sh. Dharamvir Singh Khatri, T/Man (O/D) (Compulsory Retired) belongs to modify the penalty of COMPULSORY RETIREMENT FROMS ERVICE TO REDUCTION TO LOWER TIME SCALE OF PAY OF Rs.4120-150-6970 FROM THE TIME SCALE OF PAY Rs.5700-160-8100 FOR A PERIOD OF FIVE YEARS WITH IMMEDIATE EFFECT. IT IS FURTHER DIRECTED THAT SHRI DHARAMVIR SINGH KHATTRI, WILL NOT EARN ANY INCREMENT IN PAY DURING THE PERIOD OF REDUCTION TO THE SCALE Rs.4700-150-6970 AND THAT ON THE EXPIRY OF THIS PERIOD. HE SHALL COME BACK TO HIS NORMAL PAY SCALE Rs.5700-160-8100 AND SHALL DRAW INCREMENT THEREAFTER AS USUAL AS PER RULES.
10. A Review Petition was filed by the Applicant against the said order of the Appellate Authority. The Reviewing Authority examined each of 3 grounds, which the Applicant has raised in this OA, and also the quantum of punishment from the proportionality angle and held that no intervention was required. As such, the Review was rejected by the Reviewing Authority in his order dated 9.2.2009 (Pages 10-12).
11. Now we take up the issues raised by the Counsel for the Applicant. The order of the Disciplinary Authority unambiguously states that the IOs Report was given to the Applicant on 12.3.2008 which he responded with a representation. Our perusal of the relevant files confirms this aspect. Hence the contention raised by Shri Manglik that the Applicant was supplied with IOs report after the penalty order was issued, is not borne out in the records.
12. It is noted that the list of documents in the charge memo includes 5 statements of Shri A. A. Khan, Bharat Ram, Jai Prakash, Ramesh Chand and Sukhbir Singh and these 5 persons have been cited as witnesses in the Charge Memo served on the Applicant. These 5 witnesses tendered their evidence in the inquiry. We note that the I.O. conducted enquiry on 4 days i.e. on 22.1.2008, 28.1.2008, 6.2.2008 and 14.02.2008, when he examined witnesses. Except on 14.02.2008, all other days the Applicant (Charged Officer) was present and he signed the Inquiry Proceedings. Only on 14.02.2008, the Applicant did not attend the inquiry where 2 witnesses (Ramesh Chand and Jayaprakash) were examined. Their evidence is reflected in the I.Os Report dated 28.2.2005. The Disciplinary Authority, as per his order dated 28.04.2008, has stated that the I.Os report was given to the Applicant on 12.3.2008 to which he submitted his representation on 15.4.2008. Thus, we find that the contentions of non supply of I.Os Report is an afterthought. On 22.05.2008, he submitted a letter requesting copies of 3 types of documents viz. (1) Preliminary Report (2) Daily order sheet and (3) Complaints. On th same day copy of those documents were again supplied to the Applicant.
13. On perusal of the files (File No.85-09/2009-CS (Disc.I) and File No.SDE (OPTNS)/DISC-36/DVK/PO) it reveals that the Presenting Officer has compiled the proceedings of the inquiry held on 22.01.2008, 28.01.2008, 6.02.2008 and 14.02.2008 prepared a note and transmitted the same to the Incharge Telegraph Office, Kashmere Gate, Delhi vided his letter dated 16.02.2008 with request to hand over the details to the Applicant under acknowledgement. It is also noticed that the acknowledgement slip of the Applicant is attached which reveals that the Applicant has received all those records dated 23.02.2008 at 11:30am. Thus, the contention raised by the Counsel for the Applicant that the Applicant was not aware of the evidence tendered by 2 witnesses on 14.02.2008 in the case is unfounded. Therefore, we come to the considered conclusion that the Applicant has been supplied with Inquiry Officers Report and inquiry proceedings much before he submitted his representation and passing of the final orders by the Disciplinary Authority.
14. The moral principle of the repentance is the best atonement and forgiveness is the noblest revenge, is not applicable in the present case. There is no sign of repentance of the Applicant. He tries to cover up his acknowledged misconduct with the plea that he took some medicine due to body pain and he was not aware of what happened. This is noticed to be an afterthought. The Disciplinary Authority has considered the issue of compromise raised by the Applicant, and has found the Applicant guilty of the misconduct. We find that the Applicant trying to take shelter under compromise cover does not provide him adequate protection. It is noted that the misconduct took place when the Applicant was on official duty and during office hours. Even if he was pardoned by the Complainant, the Authorities of BSNL are duty bound to maintain official decorum and discipline. In that context the disciplinary action has both relevance and importance. We also find that the Applicant was granted opportunity to cross examine and also engage the Defence Assistant. But he did not avail the same. The matter of self denial in the inquiry by remaining silent and not demanding for cross examination and engagement of defence assistance at a later stage in the appeal, review and in this OA, is not legally admissible.
15. We now come to the issue of proportionality of punishment imposed on the Applicant compared to the proved misconduct. It is trite that unless the punishment imposed on the Applicant shocks the conscience of the Tribunal, there is no scope for us to interfere. The Applicants misconduct has been found to be correct and the charge was held as proved. We note that the Appellate Authority has considered the proportionality angle and modified the punishment. We are of the considered opinion that the Appellate Authority has imposed appropriate punishment by recording cogent reasons in support thereof and we do not find the same as disproportionate.
16. At this stage, we examine the settled legal position on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note our power is limited. We went through catena of judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like.
17. Keeping in mind the above settled legal position on the subject and considering above facts and circumstances of the case and our analysis thereon, we come to the considered conclusion that there are relevant evidence in finding the misconduct as proved and we do not find any trace of irrelevant matters influencing the action of the Disciplinary, Appellate and Reviewing Authority. We also do not find any procedural infirmity. There is no violation of the principles of natural justice. The decision so arrived at in our considered opinion was neither absurd nor perverse. We also find the proportionality angle has been properly and adequately addressed by the Appellate Authority in modifying the penalty. In all fours, we find that the Applicant has not made a case in his support. In the result, the Original Application being devoid of merits is dismissed leaving the parties to bear their respective costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
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