Gauhati High Court
Union Of India & Anr vs Madhurya Kumar Gogoi on 22 January, 2013
Bench: I A Ansari, Anima Hazarika
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZOAM AND ARUNACHAL PRADESH)
1. WP(C) 915/2010
1. Union of India,
Represented by Secretary to the Govt. of India-cum-
Chairman, Telecom Commission,
Ministry of Communications & Information Technology,
Department of Telecommunications, Sanchar Bhawan,
20-Ashoka Road, New Delhi.
2. Senior Deputy Director General (Vigilance),
Department of Telecommunications, Sanchar Bhawan,
20-Ashoka Road, New Delhi.
- Petitioners/Respondents in O.A.
- Versus -
1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1,
- Respondent/Applicant in O.A.
2. WP(C) 916/2010
1. Union of India, Represented by Secretary to the Govt. of India-cum- Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
- Petitioners/Respondents in O.A.
- Versus -
1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1
- Respondent/Applicant in O.A. WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 2
3. WP(C) 917/2010
1. Union of India, Represented by Secretary to the Govt. of India-cum- Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
- Petitioners/Respondents in O.A.
- Versus -
1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1,
- Respondent/Applicant in O.A.
4. WP(C) 918/2010
1. Union of India, Represented by Secretary to the Govt. of India-cum- Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
- Petitioners/Respondents in O.A.
- Versus -
1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1
- Respondent/Applicant in O.A. WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 3
5. WP(C) 919/2010
1. Union of India, Represented by Secretary to the Govt. of India-cum- Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.
- Petitioners/Respondents in O.A.
- Versus -
Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1
- Respondent/Applicant in O.A. PRESENT THE HON'BLE MR. JUSTICE I A ANSARI THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA Advocate present:
For the petitioners : Mrs. R. Bora, CGC,
For the respondent : Mr. K.N. Choudhury, Sr. Advocate,
Mr. B. Choudhury, Advocate,
Mr. M. Mahanta, Advocate,
Mr. J. Patowary, Advocate
Date of hearing : 30.11.2012
Date of judgment : 22.01.2013
JUDGMENT & ORDER
(Ansari, J.)
The Department of Tele-communication (in short, 'DOT'), Government of India, issued a Circular, on 17.12.1993, for granting of temporary status to Mazdoors (in short, 'TSM') working in the WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 4 department continuously after 31.03.1985 to 22.06.1988 as casual labourers. The Telecom District Engineer (in short, 'TDE'), Tezpur, made over the said Circular of the DOT to all Heads of Sub-Divisions under his Division. The respondent herein joined as TDE, Tezpur Telecom District, when the process of conferring temporary status, on Mazdoors, was in progress.
2. On 25.03.1996, the respondent herein constituted a Selection Committee, consisting of 4 (four) Members from different wings of the Department, including Accounts Officer, the Committee having been formed for the purpose of verifying the records and for recommending the names of eligible casual Mazdoors, from amongst the list of casual Mazdoors, forwarded by the Sub-Divisional Officers to the said Committee for granting temporary status to eligible mazdoors. The respondent herein was not a Member of the Selection Committee, he did not participate in the process of verification; but he was Chairman of the Selection Committee.
3. Following the recommendations made by the Selection Committee, the respondent herein, as Chairman, issued an order, on 27.05.1996, conferring the status of Temporary Mazdoor, provisionally, on 221 casual labourers. No further order was issued, in this regard, by the respondent conferring status of TSM on casual labourers working in the DOT.
4. By letter, dated 18.09.1997, the Chief General Manager, DOT, Assam Circle, Guwahati, issued instructions to Telecom District Manager, Tezpur, (in short, TDM, Tezpur) to cancel the said provisional WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 5 order, dated 27.05.1996, whereby the respondent had conferred, as indicated hereinbefore, the status of Temporary Mazdoor on 221 casual labourers and to start afresh a process of further scrutiny in order to identify , within a period of one month, those casual labourers, who were entitled to receive the status of Temporary Mazdoors.
5. The TDM, Tezpur, made over the said letter, 18.09.1997, to the respondent inasmuch as the respondent was the one, who had issued the orders provisionally conferring status of TSM on 221 casual labourers. Complying with the directions, contained in the letter, dated 18.09.1997, aforementioned, the respondent herein, being the then Divisional Engineer (P&A), accordingly passed an order, on 20.10.1997, cancelling the order, dated 27.05.1996, which conferred the status of TSM on 221 casual labourers. This order of cancellation, dated 20.10.1997, was, however, revoked, on 19.11.1997, by the TDM, Telecom, Tezpur District Circle.
6. In the backdrop of the above facts, which are not in dispute, the respondent herein was served with a Memorandum, dated 19.06.2001, issued by the Department, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, informing the respondent that an inquiry was proposed to be held against him on the ground that the respondent, in collusion with the Members of the Selection Committee, which the respondent had constituted, regularized mala fide 34 numbers of casual labourers of North Lakhimpur.
7. While the proceeding, initiated by the Memorandum, dated 19.06.2001, aforementioned was in progress, the respondent was served, WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 6 on 26.03.2002, with another Memorandum, dated 07.03.2002, proposing to hold inquiry and draw a departmental proceeding against the respondent on identical charge, as had been stated in the Memorandum, dated 19.06.2001, the difference between the said two Memoranda, served on the respondent, being that the Memorandum, dated 07.03.2002, related to regularization of 22 numbers of casual Mazdoors of SDE (P), Tezpur; whereas, the earlier Memorandum, dated 19.06.2001, was in respect of regularization of 34 numbers of casual labourers of North Lakhimpur.
8. While the two proceedings, initiated by the Memoranda, dated 19.06.2001 and dated 07.03.2002, were in progress, yet another Memorandum, dated 11.09.2003, was served on the respondent, on 17.10.2003, on identical charge; the third Memorandum, however, related to appointment of 22 numbers of casual Mazdoors under Dhemaji Sub-Division, allegedly, on the basis of forged experience certificates. Two other Memoranda, both dated 17.10.2003, were issued to, and served upon, the respondent herein on the identical charge, the accusations, made in one of these two Memoranda, dated 17.10.2003, related to appointment of 21 numbers of casual Mazdoors, under Udalguri Sub-Division, on the basis of alleged forged experience certificates, and the accusations, made in the other Memorandum, dated 17.10.2003, related to the appointment of 15 numbers of casual Mazdoors, under SDO(T), Tezpur, on the basis of forged experience certificates.
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9. On 21.10.2003, the respondent received yet another Memorandum, dated 09.10.2003, on the identical charge of appointment of 7 numbers of casual Mazdoors under SDE (Comp), Tezpur, on the basis of forged experience certificates.
10. The respondent replied to the charge, contained in each of the said six Memoranda, denying the allegations made against him in the said six Memoranda. An inquiry was, then, held by the inquiring authority of the Department into the alleged appointment as well as regularization of Mazdoors by the respondent on the basis of forged experience certificates. The inquiring authority submitted its inquiry report, on 18.12.2004, holding that the charges, which had been levelled against the respondent, were not proved.
11. The disciplinary authority, however, disagreed with the findings of the inquiry officer and issued a memorandum of disagreement, dated 24.02.2005. The respondent was, then, served, in the month of March, 2005, with a copy of the inquiry report, dated 18.12.2004, the memorandum of disagreement, dated 24.02.2005, and the Central Vigilance Commissioner's advice, dated 27.12.2005, in respect of the Charge Memo., dated 07.03.2002. In the memorandum of disagreement, dated 24.02.2005, the disciplinary authority did not give any definite finding on the charges and the reasons for disagreement, but alleged that the inquiring authority, on analysis of the materials on record, which had surfaced at the inquiry, had found that the act of conferring TSM status could have been done only after referring the cases to DOT. WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 8
12. As against the Memorandum of disagreement, dated 24.02.2005, the respondent submitted his representation on 21.03.2005.
13. The respondent, then, received the inquiry report, dated 31.01.2005, accompanied by Memorandum of disagreement, dated 01.04.2005, and the Central Vigilance Commissioner's advice, dated 07.03.2005, relating to the first proceeding, which had been initiated by the Memorandum, dated 19.06.2001. The inquiry report, dated 31.01.2005, reflected that the inquiring authority had held the charge against the respondent as proved, but not fully. By the Memorandum of disagreement, dated 01.04.2005, the disciplinary authority disagreed with the findings of the inquiry officer and held the charges as fully proved.
14. In response to the said Memorandum of disagreement, dated 26.04.2005, too, the respondent submitted his representation on 10.05.2005.
15. In the month of October, 2005, respondent received the inquiry report, dated 27.07.2005, Memorandum of disagreement, dated 04.10.2005, from the disciplinary authority and the Central Vigilance Commissioner's advice, dated 23.09.2005, relating to the third proceeding initiated against him. In the inquiry report, the inquiring authority had recorded that the allegations, levelled against the respondent by the third Memorandum, were not proved, but the disciplinary authority disagreed with the findings of the inquiry officer and held the charges as proved. The disciplinary authority not only disagreed with the findings of the inquiry officer, but also purportedly WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 9 brought, as indicated above, a new charge against the respondent that TSM status can be conferred on the Mazdoors only after referring the cases to the DOT.
16. On receipt of the inquiry report, Memorandum of disagreement and the Vigilance Commissioner's advice in respect of the third Memorandum, as mentioned above, the respondent submitted a representation, on 16.11.2005, against the Memorandum of disagreement, dated 04.10.2005, aforementioned. In his representation, the petitioner categorically stated that, as per letter, dated 21.12.1994, the Telecom District Engineer is the authority to regularize casual Mazdoors as TSM under the DOT guidelines, etc.
17. Thereafter, on 18.10.2005, the respondent received the inquiry report, dated 26.07.2005, Memorandum of disagreement, dated 18.10.2005, and the Central Vigilance Commissioner's advice, dated 28.09.2005, in respect of the fourth proceeding against the respondent. In his inquiry report, dated 26.07.2005, the inquiring authority held the charge against the respondent as not proved. However, the disciplinary authority did not agree with the findings of the inquiring authority and held the charge as proved and, while so disagreeing with the inquiring authority's finding, the disciplinary authority purportedly brought a new charge against the respondent stating that the inquiring authority, on analysis of the materials on record, had found that the TSM status could have been conferred on Mazdoors only after referring the cases to the DOT.
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18. On 17.11.2005, the petitioner submitted his representation against the Memorandum of disagreement, dated 18.10.2005, wherein he stated that as per letter, dated 21.12.1994, the Telecom District Engineer is the authority to regularize the casual Mazdoors as TSM.
19. On 18.10.2005, the respondent received the inquiry report, dated 27.07.2005, Memorandum of disagreement, dated 18.03.2005, and the Central Vigilance Commissioner's advice, dated 23.09.2005, with regard to the fifth proceeding against the respondent. In the inquiry report, the inquiring authority recorded that the charge against the respondent were not proved. However, the disciplinary authority disagreed with the findings of the inquiring authority and held the charge as proved. In the Memorandum of disagreement, the disciplinary authority brought a new charge against the respondent by stating that the inquiring authority, on analysis of the materials on record, had found that TSM status could be conferred on casual labourers only after referring the cases to the DOT.
20. The respondent submitted, on 12.11.2005, his representation against the Memorandum of disagreement, dated 18.10.2005, wherein he stated that as per letter, dated 21.12.1994, the Telecom District Engineer did possess the authority to regularize casual Mazdoor as TSM.
21. Thereafter, the respondent received the inquiry report, dated 26.07.2005, Memorandum of disagreement, dated 18.10.2005, and the Central Vigilance Commissioner's advice, dated 28.09.2005, in respect of the sixth proceeding initiated against the respondent. In the inquiry report, the inquiring authority recorded that the allegations, which had WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 11 been made against the respondent, were not proved, but the disciplinary authority disagreed with the findings of the inquiring authority and held the charge as proved. In the Memorandum of disagreement, the disciplinary authority further stated that the inquiring authority, on analysis of the materials on record, had found that TSM status could have been conferred on casual labourers only after referring the cases to the DOT.
22. On 10.11.2005, the respondent submitted his representation against the Memorandum of disagreement, dated 18.10.2005, and, in his said representation, he stated that as per letter, dated 21.12.1994, the Telecom District Engineer was the authority to regularize the casual Mazdoors by conferring TSM.
23. After the respondent had received the inquiry reports, Memoranda of Disagreement and the Central Vigilance Commissioner's advices in respect of all the six departmental proceedings, which had been initiated against the respondent on the accusations of regularizing the casual labourers by conferring TSM status as well as appointing casual labourers under the DOT basing on forged experience certificates, and after the respondent had submitted representations against the said Memoranda of Disagreement, as already indicated above, the respondent received an order, dated 02.05.2006, issued by the petitioner No. 2, namely, Senior Deputy Director General (Vigilance), DOT, New Delhi, wherein it was stated that following the outcome of the second disciplinary proceeding, a penalty of reduction of the pay of the respondent to a lower stage, by 3 stages, in the time scale of pay of Rs. WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 12 14,300-400-18,300/-, for a period of 2 (two) years, had been imposed on the respondent by the competent disciplinary authority and that the respondent would not earn increments of pay during the period of reduction and, on the expiry of such period, the reduction would have the effect of postponing his future increments of pay.
24. Barely a month thereafter and, to be precise, on 23.05.2006, the respondent received another order, dated 03.05.2006, wherein it had been stated that the competent disciplinary authority had imposed the penalty of reduction of the pay of the respondent to a lower stage by 3 (three) stages in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of 2 (two) years, and that the penalty, so imposed on the respondent, related to the 1st proceeding initiated against the respondent.
25. Aggrieved by the decision of the disciplinary authority to impose two penalties of identical nature in two of the six proceedings, the respondent challenged the initiation of the said six departmental proceedings against him on the same cause of action and also the imposition of penalties on him, as mentioned above, by filing Original Application in the Central Administrative Tribunal, Guwahati Bench, which, eventually, gave rise to O.A. No. 284/2006.
26. During the pendency of O.A. 284/2006, the respondent received another order, dated 30.05.2007, wherein it had been stated that, as per the outcome of the 3rd departmental proceeding initiated against the respondent, the competent disciplinary authority had imposed, on the respondent, a penalty of reduction of his pay to a lower stage, by one WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 13 stage, in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of two years. It was also directed by the said order, dated 30.05.2007, aforementioned that the respondent would not earn increments of pay during the period of reduction and, on expiry of such period, the reduction will have the effect of postponing his future increment of pay.
27. In the said order, dated 30.05.2007, it had been further stated that the competent disciplinary authority had imposed penalty on the respondent, in respect of the 5th departmental proceeding, as had been imposed in the 3rd and the 4th proceeding, meaning thereby that the pay of the respondent was to be further lowered by one stage, in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of two years and that the respondent would not earn increments of pay during the period of reduction and, on expiry of such period of reduction, the reduction would have the effect of postponing his future increment of pay.
28. Thereafter, another order of imposition of penalty of reduction of pay of the respondent, in respect of the 6th departmental proceeding, was received by the respondent in the month of June, 2007. In the said order, dated 20.06.2007, it had been stated that as per the outcome of the 6th departmental proceeding, initiated against the respondent, a penalty of reduction of pay, by one stage, in the time scale of pay of Rs. 14,300- 400-18,300/-, for a period of two years, had been imposed on the petitioner with further direction that respondent would not earn increments of pay during the period of reduction and, on expiry of such period of reduction, the reduction of pay would have the effect of postponing his future increment of pay.
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29. Being aggrieved by the imposition of penalties, as indicated above, and challenging orders, by which the penalties of reduction of pay, as stated hereinabove, had been imposed on the respondent, the respondent filed five Original Applications in the Central Administrative Tribunal, Guwahati Bench (hereinafter referred to as the 'Tribunal'), which gave rise to O.A.119/04, 284/06, O.A.25/08, O.A. 26/08, O.A.44/08 and O.A. 45/08. Altogether, thus, six Original Applications were filed by the respondent herein putting to challenge, inter alia, the penalties, which had been imposed on him, in the manner as mentioned above. By a common order, dated 27.03.2009, the learned Tribunal set aside the orders of imposition of penalties, which had been impugned in the said original applications, holding the orders as bad in law.
30. Being aggrieved by the decision of the learned Tribunal, contained in the order, dated 27.03.2009, allowing the respondent's said original applications, the writ petitioners, who were respondents in the said original applications, have filed these writ petitions, under Article 226 of the Constitution of India, impugning and seeking to get set aside the order, dated 27.03.2009, passed, in the original applications aforementioned, by the learned Tribunal.
31. We have heard Mrs. R. Bora, learned Central Government Counsel, appearing for the writ petitioners. We have also heard Mr. K. N. Choudhury, learned Senior counsel, for the respondent.
32. Appearing on behalf of the writ petitioners, Mrs. R. Bora, learned Central Government Counsel, has submitted that learned Tribunal has WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 15 incorrectly held that the proceedings, drawn against the respondent herein, smacked of partiality and the same suffered from the policy of pick and choose inasmuch as the respondent (i.e., the petitioner herein), while taking action against the petitioner (i.e., the respondent herein), had left out another similarly situated person, namely, Sri A.K. Sarkar, and, hence, the petitioner had been treated with discrimination.
33. The conclusion, which the learned Tribunal has so reached, is, according to the learned Central Government Counsel, wholly incorrect inasmuch as actions were taken not only against the present petitioner, who was the Chairman of the Selection Committee, but also against all the four persons of the Selection Committee including Sri A. K. Sarkar, whose case has been referred to by the learned Tribunal on the basis of the contention of the respondent herein, in his Original Applications, that as against Sri A.K. Sarkar, petitioners had not taken action in the same manner as had been done in the case of the petitioner (i.e., respondent herein).
34. In order to impress upon this Court that the present petitioners had not dealt with the case of the respondent with discrimination, it has been reiterated, on behalf of the petitioners, that disciplinary proceedings had been initiated even against the said A. K. Sarkar. Thus, the decisions of the present petitioners, while dealing with the cases of the present respondent herein, did not suffer, contends the learned Central Govt. Counsel, from any policy of pick and choose and the present petitioners ought not to have been held to have treated the respondent herein with discrimination and, hence, the learned Tribunal's orders, WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 16 which stand impugned in this set of writ petitions, need to be interfered with by this Court in exercise of its extra-ordinary jurisdiction under Article 226.
35. Repelling the submissions, made on behalf of the writ petitioners, Mr. K. N. Choudhury, learned Senior counsel, submits that the charges against the said A. K. Sarkar had been found by the Inquiry Officer to have not been proved and this finding was accepted by the Disciplinary Authority and the Disciplinary Authority, by its order, dated 20/24.11.2003, exonerated said Sri Sarkar of the charges levelled against him. Subsequently, however, Sri Sarkar was served, points out Mr. K.N. Choudhury, learned Senior counsel, with several charge-sheets. Aggrieved by the subsequent charge-sheets, which had been served on the said Sri Sarkar, Sri Sarkar put to challenge the same by way of Original Application 27/03. The learned Tribunal, while disposing of the said Original Application, on 25.08.2004, pointed out that when the 1st Memorandum of charges itself contained the names of the 221 Mazdoors, who had been conferred temporary status, and Sri Sarkar had been exonerated of the charge, which was contained in the 1st Memorandum, the subsequent charge-sheets, served on the said A. K. Sarkar, by various Memoranda, were not sustainable in law.
36. Thus, the present petitioners accepted, points out Mr. K. N. Choudhury, not only the finding of the Inquiry Officer in respect of the 1st Memorandum and exonerated the said A. K. Sarkar, but also did not file any writ petition disagreeing with the findings reached, the conclusions drawn and the reliefs granted to the said Sri A. K. Sarkar by WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 17 the learned Tribunal, by its order, dated 25.08.2004, in O.A. No.27/2003, whereby the learned Tribunal had set aside all the subsequent charge- sheets, which had been served on the said Sri Sarkar.
37. It has also been pointed out by Mr. Choudhury, learned Senior counsel, that under the instructions of the Chief General Manager (DOT), Assam Telecom Circle, Guwahati, given in the letter, dated 18.09.97, the order, dated 27.05.1996, which had been passed by the present respondent conferring TSM on the said 221 Mazdoors, had been cancelled by the order, dated 20.10.1997, issued by the respondent herein in his capacity as DE (D&A), Tezpur Telecom Circle. However, the said order of cancellation, dated 20.10.1997, was subsequently revoked by the TDM, Telecom, Tezpur District Circle, by an order, dated 19.11.1997. The order of revocation, so passed, points out Mr. Choudhury, learned Senior counsel, brought back into force the earlier order, dated 27.05.1996, which had been passed by the respondent herein granting TSM on the said 221 Mazdoors.
38. No action has, however, been taken by the present petitioners against the TDM, Tezpur, who had revoked the order of cancellation, dated 20.10.1997, and since the order of revocation has been sustained, it is obvious, points out Mr. K.N. Choudhury, learned Senior counsel, that there could not have been any disciplinary proceeding against the respondent herein nor could have any penalty been imposed on him for granting TSM status on the said 221 Mazdoors, when the order passed by the respondent herein has, eventually, been allowed by the present petitioner to prevail.
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39. It is, thus, contends Mr. Choudhury, abundantly clear, contrary to what the learned Central Govt. Counsel has attempted to project, that the respondent herein has not been dealt with impartially; rather, the petitioners have adopted, as rightly pointed out by the learned Tribunal, the policy of pick and choose inasmuch as the respondent herein has been picked up for imposition of penalty and this attitude of the present petitioners is clearly reflected by the conduct of the petitioners, when they have chosen to file the present set of writ petitions against the respondent herein; whereas a person similarly situated, namely, Sri A. K. Sarkar, has not been proceeded against and has been allowed to enjoy the benefit of not only the findings of the inquiring authority, but also the decisions of the learned Tribunal.
40. The respondent's attitude can be well adjudged, reiterates Mr. K.N. Choudhury, learned Senior counsel, by the fact that while petitioners have imposed penalty on the respondent herein for conferring TSM on 221 Mazdoors, they chose not to take any action against the TDM, Telecom, Tezpur District Circle, who revoked the order of cancellation, as pointed out above, and brought back into force the order, which had been passed by the respondent herein conferring TSM on 221 Mazdoors.
41. Let us, now, consider the merit of the rival submissions, which have been made on behalf of the parties concerned.
42. There can be no manner of doubt, as is clearly discernible from the order, dated 25.08.2004, passed, in O.A. No.27/2003, by the learned Tribunal, in the case of Sri A.K. Sarkar, that Sri A.K. Sarkar was WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 19 proceeded against by serving a Memorandum of Charge, which contained, in effect, the same allegation, which had been made against the respondent herein, namely, that TSM had been conferred on 221 Mazdoors without appropriate verification and on the basis of forged experience certificates. This charge was held to have not been proved by the inquiring authority in respect of Sri A. K. Sarkar. Similarly, in the case of the present petitioner, the finding was that the charge had not been proved. While, however, the finding of the inquiring authority, in respect of the said Sri Sarkar, was accepted by the Disciplinary Authority and the said Sri Sarkar was exonerated, the respondent herein was served with the memorandum of disagreement.
43. In fact, contrary to the contention of the petitioners that they had dealt with the case of Sri Sarkar in the same manner as had been done in the case of the respondent herein, the order, dated 20/24.11.2003, passed by the Disciplinary Authority, exonerating said A.K. Sarkar of the charges levelled against him, read as under:
"Taking into account the findings of the Inquiring Authority, records of the case and on an objective assessment of the facts and circumstances of the cases in its entirety, I, P.K. Chanda, Member (Services), Telecom Commission, hereby order to exonerate Shri A.K. Sarkar, SDOT, of the charges levelled against him, vide aforesaid Memorandum."
44. Having accepted the findings of the Inquiring Authority and having exonerated the said Sri A.K. Sarkar, when the petitioners herein served Sri Sakar with several other charge-sheets, Sri Sarkar approached the learned Tribunal by filing an Original Application, namely, O.A. No.27/2003. Having noted that when the finding on the 1st WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 20 Memorandum of Charge had been accepted by the Disciplinary Authority, the respondents could not have initiated any other disciplinary proceeding on, substantially, the same facts, the learned Tribunal set aside the charge-sheets so served on Sri Sarkar and this decision of the learned Tribunal was never put to challenge, as rightly pointed out by Mr. Choudhury, learned Senior counsel, before this Court or any other Court. Thus, in Sri Sarkar's case, the petitioners herein not only accepted the findings of the Inquiring Authority, but also the decision of the learned Tribunal; whereas they are unwilling to relent so far as the respondent herein is concerned.
45. The learned Tribunal, therefore, in the light of what have been pointed out above, cannot be said to have wrongly reached the conclusion that the petitioners herein have adopted the policy of 'pick and choose' and have been treating with the respondent herein with discrimination.
46. The inference, which the learned Tribunal has drawn, and the conclusion, which the learned Tribunal has reached, are further strengthened by the fact, as has been correctly pointed out above by Mr. K.N. Choudhury, learned Senior counsel, that the respondent herein, under the instructions of his superior authority, had cancelled the order, whereby he had conferred TSM on 221 Mazdoors. This order of cancellation was, however, revoked by the TDM, Telecom, Tezpur District Circle, bringing back into effect the very order, which the respondent herein had passed and which had become, and still remains, the basis of all the disciplinary proceedings, which have been initiated WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 21 against him (respondent herein). Amazingly enough, no action has been taken by the present petitioners against the TDM, Telecom, Tezpur District Circle, for revoking the cancellation order and for doing, in effect, what the respondent herein had done.
47. Situated thus, the learned Tribunal, in the considered view of this Court, was wholly correct in coming to the conclusion that the respondent herein is being dealt with by the present petitioners in a manner, which is discriminatory, and is an outcome of the policy of 'pick and choose', which the present petitioners have adopted as against the respondent herein.
48. In short, from a bare reading of the order, dated 24.08.2004, passed in O.A. No. 27/2003, there cannot be any doubt that a disciplinary proceeding had, indeed, been initiated against the said Sri A. K. Sarkar in the manner, as had been done against the respondent herein, and inquiry was accordingly held. In the inquiry, held against said A. K. Sarkar as well as the present respondent, the inquiring authority exonerated both, the respondent herein as well as the said A. K. Sarkar, of the charges by holding that the charges, brought against them, had not been proved. While, in the case of Sri A. K. Sarkar, the finding of the inquiring authority was accepted by the present petitioners and no memorandum of disagreement to the finding, so given, was issued to, or served upon, Sri Sarkar, the respondent herein was served, as already indicated above, with a memorandum of disagreement and penalty has been, ultimately, imposed on him. This apart, by order, dated 27.03.2009, when the learned Tribunal allowed the WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 22 Original Application, namely, OA 27/03, filed by the said A. K. Sarkar, setting aside and quashing all the Memoranda of charges, the decision of the learned Tribunal was accepted by the present petitioners and no writ petition was filed against the reliefs, which the learned Tribunal had granted to the said Sri Sarkar. On the contrary, the present petitioners chose to brush aside the inquiring authority's findings and proceeded against the respondent herein by issuing memorandum of disagreement as well as Statement of Imputation of Charge, followed by imposition of penalty, as indicated above, and, while the learned Tribunal, by order, dated 27.03.2009, allowed the present respondent's Original Applications by setting aside and quashing the imposition of penalty on the respondent herein, the petitioners have filed these writ petitions against the orders of the learned Tribunal.
49. It cannot, therefore, be said that the learned Tribunal has gone wrong, when it pointed out, in the presently impugned order, dated 27.03.2009, that the petitioners had ".......adopted pick and choose policy which is violative of Article 14 and 16 of the Constitution and thus not sustainable in the eye of law." The learned Tribunal has also categorically observed that ".........the action against the applicant is not justified and smack of partiality and vendetta and cannot be sustainable in the eye of law ........"
50. Coupled with the above, one can also not ignore the fact, if we may reiterate, that on the instructions, issued in the letter, dated 18.09.1997, by the Chief General Manager (DOT), Assam Telecom Circle, Guwahati, the respondent herein, in his capacity as DE (D&A), Tezpur WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 23 Telecom Circle, issued an order, dated 20.10.1997, cancelling the order, dated 27.05.1996, whereby status of TSM had been conferred on 221 casual labourers. This order of cancellation was, however, revoked by the TDM (Telecom), Tezpur District Circle, by its order, dated 19.11.1997. Thus, with the revocation of the order, dated 20.10.1997, the order, dated 20.05.1996, conferring TSM status on the said 221 Mazdoors, was brought back to force and sustained.
51. In the circumstances, indicated above, either disciplinary proceedings against the respondent herein ought to have been dropped, or action ought to have been taken against the TDM (Telecom), Tezpur District Circle, for revoking the order of cancellation. No action has, however, been taken by the present petitioners against TDM, Telecom, Tezpur District Circle. This attitude of the petitioners demonstrates that the respondent herein has not been dealt with in the same manner as the other persons, namely, the said A. K. Sarkar and/or the TDM, Telecom, Tezpur District Circle (who had revoked the order of cancellation, as mentioned above) have been dealt with.
52. The learned Tribunal was, therefore, not wrong, if we may reiterate, in taking the view that the respondents (i.e., the present petitioners) had adopted the policy of pick and choose and had not acted impartially. The learned Tribunal further observed that in a situation, such as, the present one, the references, made by Mr. Choudhury, learned Senior counsel, to the cases of Sengara Singh & Ors. vs. State of Punjab and others, reported in (1983) 4 SCC 225, and Bongaigaon Refinery & Petrochemicals Ltd. and others vs. Girish Chandra Sarma, WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 24 reported in (2007) 7 SCC 206, were not wholly misplaced inasmuch as Singara Singh (supra) holds that arbitrary picking and choosing for reinstatement after mass dismissal is violative of Article 14. In Singara's case (supra), while the majority of the dismissed police personnel were reinstated and the criminal prosecution, instituted against them, had been withdrawn, the same yardstick was not used by the authorities concerned in respect of Singara Singh. In Bongaigaon Refinery & Petrochemicals Ltd. and others (supra), the Supreme Court, having found that one person had been made the scapegoat for collective decision of several others, the domestic enquiry was interfered with.
53. We can also not ignore the fact, as rightly pointed out by Mr. Choudhury, learned Senior counsel, that the basic allegation against the respondent herein was that without verifying the genuineness of the recommendations of different SDOs/SDEs and the experience certificates, which had been issued by JTO/Lineman, etc., the respondent herein had issued the order, dated 27.05.1996, and thereby put the Department to huge financial loss.
54. It is trite that a distinct and different charge can arise only on a different cause of action. Unless the causes of action are different, two different charges cannot be framed. The Memorandum, which was served on the said Sri A. K. Sarkar, also contained, in essence, one and the same accusation.
55. One may refer, in this regard, to the case of M. Raghavelu vs. Govt. of A.P. and another, reported in (1997) 10 SCC 779, wherein the Court has pointed out that when persons, directly in charge of a work, WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 25 had been found not guilty of the charge framed, another person, who was indirectly in charge of the same work, could not have been punished for similar charge. The relevant observations, made by the Supreme Court, in M. Raghavelu (supra), read as under:
"5. The argument of the learned counsel for the appellant is that if the persons directly in charge of the construction work were found not guilty of the charge framed, the appellant, who was indirectly in charge of the work, cannot be punished for similar charge leveled against him. We find force in the argument of the learned counsel for the appellant and we do not think that the argument of the learned counsel for the respondent that the enquiry officer in this particular case has gone into the merits and has given different finding should be accepted. As pointed out earlier, on the basis of the same set of evidence the officers, who were directly in charge of the construction work, were exonerated of the charge and we see no reason to pick out the appellant alone for finding him guilty of the charge."
56. In the case at hand, the respondent herein was not the one, who had verified the documents/certificates, in support of the claims of the various mazdoors (casual labourers) for TSM status. The verification was, in fact, done by a Selection Committee, which consisted of, amongst others, the said Sri A. K. Sarkar, and the respondent herein merely acted on the recommendations, which had been made by the said Selection Committee. When a member of the said Selection Committee, such as, Sri A. K. Sarkar, was exonerated of the charge, the respondent herein, who was the Chairman of the Selection Committee, could not have been penalized for having acted upon the recommendations made by the Selection Committee. WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 26
57. Mr. Choudhury, learned Senior counsel, has correctly pointed out that since the said Sri A. K. Sarkar was a member of the Selection Committee, which had recommended the names of the Mazdoors for TSM status, the said Sri Sarkar had clearly played a primary role and the role played by the respondent herein, in accepting the recommendation, was secondary. When the finding of the inquiring authority, holding the said A. K. Sarkar not guilty, was accepted by the present petitioners, there was no logical cause for penalizing the respondent herein on the ground that the respondent herein had acted on the recommendations of the Selection Committee of which the said Sri A. K. Sarkar was a member.
58. Coupled with the above, further points out the learned counsel, Mr. K. N. Choudhury, that the JTOs and Supervisors, who had forwarded the names of the Mazdoors (casual labourers) to the Selection Committee, have been acquitted by the High Court by its judgement and order, dated 14.03.2007, passed in Crl. Appeal 254/2005, Crl. Appeal 258/2005, Crl. Appeal 268/2005, Crl. Appeal 269/2005 and Crl. Appeal 47/2004.
59. We are inclined to pause, for a moment, and point out, at this stage, that though the standard of charge, in a criminal trial, is different from that of a disciplinary proceeding, the fact remains that, in a departmental proceeding, when the main accused has been acquitted, there is no justification in continuing with the departmental proceeding against a co-accused on the same set of facts. In the present case, the contention of the petitioners is that the respondent herein had not WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 27 verified the genuineness of the experience certificates, submitted by the Mazdoors, and, if that be the case, the experience certificates, which had been claimed to be forged, must be, now held (on the acquittal of the said A. K. Sarkar), to have been found, on judicial scrutiny, not forged. A reference may be made, in this regard, to the case of M. V. Bijlani vs. Union of India and others, reported in (2006) 5 SCC 88, wherein the Supreme Court held as under:
"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
60. Reference may be made also the case of Lt. Governor, Delhi and others vs. HC Narinder Singh, reported in (2004) 13 SCC 342.
61. In the present case, the justification of the disciplinary authority to discard the finding of the inquiry authority, as conveyed by the memorandum of disagreement, dated 04.01.2005, is that the inquiring authority found that TSM status could have been conferred only after referring the cases to DOT. This aspect of the matter did not, however, form part of the charge on the basis of which the inquiry was held and, WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010 Page 28 hence, it was not legally permissible to proceed against the respondent herein by serving him with a memorandum of disagreement. In this regard, the reference, made by Mr. Choudhury, learned Senior counsel, to the case of Laxmi Devi Sugar Mills vs. Nand Kishore Singh (AIR 1957 SC 7), is also not wholly incorrect.
62. Because of what have been discussed and pointed out above, we do not find that the impugned orders, passed by the learned Tribunal, suffer from any infirmity, legal or factual. We, therefore, find that this set of writ petitions is wholly devoid of merit.
63. In the result and for the foregoing reasons, these writ petitions fail and the same shall accordingly stand dismissed.
64. No order as to costs.
JUDGE JUDGE Dutt-rk
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