Central Administrative Tribunal - Delhi
Smt. Suman vs Mahanagar Telephone Nigam Limited on 16 January, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-911/2011
New Delhi this the 16th day of January, 2011.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Smt. Suman,
W/o Sh. Avanish Kumar,
R/o Flat No. 523, Sector-4,
Plot No.8, Dwarka,
New Delhi-75. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Mahanagar Telephone Nigam Limited
Through its Chief Managing Director,
Corporate Office, New Delhi,
12th Floor, Jivan Bharti Building,
New Delhi.
2. The Chief General Manager Telecom
(Wireless Services),
Mahanagar Telephone Nigam Limited,
3rd Floor, CGO Complex,
New Delhi-3.
3. The General Manager,
Mahanagar Telephone Nigam Limited,
GM-West-I, Telephone Exchange,
Rajori Garden, New Delhi. . Respondents
(through Sh. H.S. Dahiya, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the penalty order dated 07.03.2009 of the Disciplinary Authority (DA) whereby his pay was reduced by one stage for one year with cumulative effect. She has also challenged the order dated 28.12.2010 of the Appellate Authority (AA) confirming the penalty imposed against her. Her prayer is to quash the charge sheet and set aside these orders and to direct the respondents to grant her all consequential benefits including arrears of differential of pay and allowances.
2. She was working as a Clerk in the Accounts (Work) Wing in the office of the respondents organization when a charge sheet was issued against her on 15.02.2007 on the allegation that she failed to point out splitting of expenditure relating to the bills submitted by M/s Ravinder Sagar in respect of painting work for Dwarka Exchange Building pertaining to the year 2004. As the appeal of the applicant was not disposed of she filed OA-3571/2010 in which a direction was given on 28.10.2010 to the AA to dispose of the appeal within six months. Accordingly, the AA passed the order on 28.12.2010 which has now been challenged.
3. The main grounds taken by the learned counsel for the applicant at the time of hearing are as follows:-
(a) The impugned orders of DA ad AA are non-speaking in nature. They have not taken into consideration the specific points raised by the applicant in her representation against the findings of the inquiry report and the appeal petition respectively.
(b) The findings of the Inquiry Officer (IO) and the DA based on her such findings are not sustainable in law as they relied on the statements of the witnesses including the applicant made at the time of preliminary inquiry. The object of the preliminary inquiry is to find out whether sufficient ground exists to initiate disciplinary proceedings against an employee; once a formal charge sheet is issued and a regular inquiry is instituted, the preliminary inquiry loses its significance. In this connection, she placed reliance on the rulings of the Honble Supreme Court in the case Union of India and Others Vs. Mohd. Ibrahim, 2001 SCC 484 and Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and Ors., 2001 SCC Vol.16 389 and the ruling of this Tribunal in OA-2479/2006 (Mohan Vs. NCTD & Ors.) decided on 25.02.2008.
(c) The respondent authorities failed to appreciate that the applicant was only a Clerk and she could not be expected to understand the significance about splitting of expenditure when the bills were being examined by the Accounts Officer (Works), whose duty it was to point out the mistake.
(d) The Accounts Officer, who was given the same charge sheet and awarded the same penalty, has been let off with a minor penalty of withholding of increment without cumulative effect whereas the applicant who was a mere Clerk has been imposed a major penalty.
(e) The IO in his findings had partly proved the charge of non-maintenance of bill registers but had exonerated the applicant of the charge of not pointing out splitting of the bills resulting in loss of money to the respondent organization. The DA without issuing a disagreement note recording his reasons for disagreement, straightaway came to hold that the charges have been proved against the applicant.
(f) The charge brought against the applicant is vague in nature inasmuch as there was no specific mention about the exact nature of duty of the applicant who was the Clerk In-charge.
(f) The charge sheet was issued after a delay of four years.
4. The respondents have submitted that the applicant was working as a Dealing Asstt. under Accounts Officer (Works) and it was her job to pre-check the bills, maintain the record of bills received, put them up for sanction. In her statement at the time of preliminary inquiry she admitted that she used to pre-check the bills. Since she has been working on the post since1996 and was quite aware of pre-check procedure, she could not come forward with the plea of ignorance now for her lapses in view of her own extensive experience from 1996 to 2005.
4.1 The charge sheet and the imputation statement very clearly state about her lapses in not pointing out the splitting of the work leading to irregular payments and loss of 19,320/- to MTNL and non-maintenance of records. Therefore, the allegation of the charges/imputations being vague is unjustified.
4.2 It was only when the matter came to the notice of the competent authority that a preliminary inquiry was conducted and thereafter the charge sheet was issued. There was no deliberate delay which could be held against the respondents.
4.3 The applicant on receipt of charge memo dated 15.02.2007 demanded a copy of Annexure-III. Thereafter, copies of the documents mentioned in Annexure-III were provided to the applicant.
4.4 The documents which included statements of witnesses recorded during preliminary inquiry were supplied to the applicant who never raised any objection about the statements nor demanded production of these witnesses for cross examination. The respondents have denied the other allegations and prayed that the O.A. should be dismissed.
5. We find that the findings of the IO as well as of DA & AA are based on the statements of witnesses recorded in the preliminary inquiry. The observations of this Tribunal made in OA-2479/2006 on this point are as follows:-
6Inasmuch as, the disciplinary authority has taken into consideration extraneous materials, as surely, and as per settled proposition of law, the evidence recorded during the preliminary enquiry could not be taken into consideration for returning a finding of guilt against a delinquent, there is no choice with this Tribunal but for setting aside the disagreement note dated 7.3.2005 made by the disciplinary authority. Inasmuch as, the orders passed by the appellate authority are also based upon the findings returned by the disciplinary authority and upon the same evidence as relied upon by him, the said orders also have to be set aside..
6. Honble Supreme Court while dealing with the same subject made the following observation :-
In that view of the matter, though we are of the considered opinion that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of employer to start a fresh proceeding cannot be taken away..
7. In view of the settled law on the subject, it is not possible to sustain the impugned orders as well as the findings in the inquiry report which were made on the basis of the statements made in the preliminary inquiry. As a result, the report dated 30.07.2008, the penalty of the DA dated 07.03.2009 and the order dated 28.12.2010 of the AA confirming the penalty are set aside. However, it is open to the respondent authority to continue the proceedings from the stage of inquiry itself, examine the witnesses giving the right of cross examination to the applicant, examine the applicant in the light of evidence appearing during inquiry and confront her with any statement which she might have made in the preliminary inquiry and thereafter proceed with the case strictly according to the rules of the Corporation.
8. The O.A. is allowed in terms of the aforesaid directions. No costs.
(Dr. A.K. Mishra) (G. George Paracken)
Member (A) Member (J)
/Vinita/