Central Administrative Tribunal - Mumbai
Dated This Thursday The 9Th Day Of August vs Union Of India on 9 August, 2012
1 OA.600/2000 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A.No.600/2000 Dated this Thursday the 9th Day of August, 2012. Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A). Sat Prakash Ramniwas Tyagi, R/at: 24, Nilgiri Society, Datta Mandir Chowk, Nasik Road, Maharashtra 422 101. .. Applicant. ( By Advocate Shri Ramesh Ramamurthy ). Versus 1. Union of India, through the Secretary, Department of Telecommunications, Sanchar Bhavan, 20, Ashoka Road, New Delhi 110 001. 2. The Chief General Manager, MTNL, Mumbai, 15th Floor, Telephone Bhavan, Prabhadevi, V.S. Road, Dadar, Mumbai 400 028. 3. The Dy. General Manager (CCF), MTNL, Mumbai, Telephone Bhavan, Prabhadevi, V.S. Road, Dadar, Mumbai 400 028. ..Respondents. ( By Advocate Shri V.S. Masurkar ). O R D E R
Per : R.C. Joshi, Member (A).
In this O.A., the Applicant has impugned order dated 17.08.1995 passed by the Disciplinary Authority, order dated 04.08.1997 passed by the Appellate Authority and order dated 10.12.1998 passed by the Reviewing Authority.
2 OA.600/20002. The Applicant was appointed as Junior Telecom Officer in MTNL in 1979 and posted in Mumbai in 1981. He was placed under the suspension vide order dated 04.02.1988 (Exhibit-D). A charge sheet vide dated 16.11.1989 was issued to him under Rule 14 of the CCS (CCA) Rules, 1965 (Exhibit-E) alleging interalia that the Applicant was responsible for loss of cable given to him for laying and had made false entries in the record to cover up the said loss. It was the contention of the Applicant that the Applicant had been issued another charge sheet vide dated 09.09.1988 containing identical charges which was also modified vide corrigendum dated 20.02.1989. It was contended that the new charge sheet dated 16.11.1989 was issued without dropping/closing the earlier charge sheet dated 09.09.1988. Further an FIR was lodged with the Juhu Police Station on or about 09.02.1988 in connection with the same offence under Section 409 and 420 of IPC.
3. The Applicant had denied the charges and an enquiry was ordered and the Inquiry Officer submitted his report dated 07.01.1991 holding the Applicant guilty of charges contained in Articles 1 to 4 (Exhibit-G). A copy of the inquiry report was sent to the Applicant vide letter dated 15.11.1984. The Applicant replied vide letter dated 05.12.1994. The Disciplinary Authority thereafter passed an order 3 OA.600/2000 vide dated 17.08.1995 imposing the penalty of compulsory retirement from service. The Disciplinary Authority also passed an order treating the period of suspension as not spent on duty. The Applicant, thereafter, filed an appeal dated 18.10.1995 to the Appellate Authority and asked for a personal hearing to be granted to him. The said appeal was not disposed of. The Applicant filed an O.A.nO.495/1997 before this Tribunal seeking a direction for disposal of the said appeal. However, during the pendency of the said OA, the Appellate Authority disposed of the appeal vide order dated 04.08.1997, rejecting the same. The Applicant was not granted personal hearing and the Appellate Authority did not deal with any of the contentions raised by the Applicant in the appeal. Thereafter, O.A.No.495/1997 was disposed of by this Tribunal vide order dated 01.09.1997. The Applicant preferred a Review Petition under Rule 29A of the CCS (CCA) Rules to the President dated 12.08.1996. As there was a delay in the disposal of the said Review Petition, the Applicant filed an OA No.501/1998. This Tribunal disposed of the said OA bearing No.501/1998 vide order dated 14.09.1998 with a direction to the Respondent to dispose of the said Review Petition. The Review Petition was rejected vide order dated 10.12.198. It is also contended by the Applicant that the charges in the criminal case 4 OA.600/2000 were also identical to the charges levelled in the departmental proceedings and the evidence adduced was also similar. Further, in the criminal case, the Applicant was acquitted vide order dated 15.03.1996.
It was Applicant's contention that in view of the acquittal by the criminal court, the order passed by the Disciplinary Authority of compulsory retirement as well as the Appellate and Reviewing Authority's order need to be quashed and set aside considering the judgement pronounced by the Hon'ble Supreme Court in the case of Captain M. Paul Anthony Vs. Bharat Goldmines Ltd. [(1999) 3 SCC 679].
4. The Applicant has prayed for the following reliefs:
(a) that this Hon'ble Tribunal be pleased to hold and declare that in the light of the acquittal by the Competent Criminal Case, the Applicant is entitled to setting aside of the order of compulsory retirement as well as the orders passed in Appeal and Review and to reinstatement in service with all consequential benefits in the light of the ratio laid down by the Hon'ble Supreme Court in Captain Paul Anthony's case.
(b) that this Hon'ble Tribunal be pleased to hold and declare that in view of the non-dropping of the earlier chargesheet dated 09.09.1988 which was issued for identical charges, the present chargesheet dated 16.11.1989 as regards Articles 1 to 4 was not maintainable and consequently the order of penalty based only on the proving of these charges (1 to 4) is liable to be set aside including orders passed on appeal and review and the Applicant is entitled to the relief of reinstatement 5 OA.600/2000 in service benefits.
with all consequential
(c) that this Hon'ble Tribunal be pleased to hold and declare that no evidence has been led in the departmental enquiry against the Applicant to prove Articles of Charge No.1 to 4 and therefore the Applicant is entitled to have the order of penalty set aside with consequential relief of reinstatement in service with all attendant benefits.
(d) that this Hon'ble Tribunal be pleased to set aside the order dated 17.08.1995 of the Disciplinary Authority, Appeal order dated 04.08.1997 and Review order dated 10.12.1998 and direct the Applicant be reinstated in service with all consequential benefits.
(e) that such other and further order or orders be passed as the facts and circumstances of the case may require.
(f) that costs of this application be provided for.
5. Learned Counsel on behalf of the Respondents in the pleadings has stated that the Applicant is a permanent employee of the MTNL. He had given an option for permanent absorption in the MTNL and was absorbed accordingly. The Applicant was issued a charge sheet vide dated 16.01.1989. Prior to issue of this charge sheet, another charge sheet has been issued on 09.09.1988 which was subsequently cancelled vide Respondents letter dated 07.09.1989. A criminal complaint was also filed against the Applicant in the Juhu Police Station on 09.02.1988. An inquiry was held pursuant to the charge sheet dated 16.11.1989 and the Inquiry Officer submitted his report on 6 OA.600/2000 07.01.1991, a copy of which was sent to the Applicant on 09.04.1991. The Disciplinary Authority after considering the report of the Inquiry Officer, a representation dated 05.12.1994 preferred by the Applicant passed an order dated 17.08.1995 compulsorily retiring the Applicant from service. The Applicant preferred an Appeal before the Appellate Authority requesting for grant of personal hearing.
6. The Respondents further mentioned that the criminal proceedings are distinct from Departmental proceedings and are independent of each other. In the criminal proceedings, the charges are required to be proved beyond reasonable doubt before the Court of law whereas departmental proceedings are decided on the basis of preponderance of probability. Therefore, if the accused is acquitted in the criminal proceeding, it does not ipso facto imply that the charges contained in the departmental proceedings are also to be quashed on this ground. It was also contended that the charges in the present case are of very serious nature in which the Applicant was alleged to have laid only 777 meters cable out of 1400 meters and the balance 623 meters of 1000/6.5 cable costing Rs.3,25,000/-was not accounted for by him. The Applicant had, therefore, caused a loss of Rs.3,25,000/-to MTNL, Mumbai. The 7 OA.600/2000 Applicant had been charged making fraudulent and incorrect entries in the documents with an intention to defraud MTNL. The Applicant is further charged for failure to report that 623 meters of cable was missing from his possession which was not returned back to the stores and thus failed to maintain absolute integrity, devotion to duty and acted in a way unbecoming of a Govt. servant. The Respondents, therefore, urged that the Applicant has failed to make out any case and there is no merit whatsoever in the present OA and, therefore, the same may be dismissed.
7. We have gone through the pleadings, perused the documents enclosed and have extensively heard the rival sides.
8. The Applicant in the present case had joined MTNL as Telecom Operator in 1958 and was appointed as Junior Telecom Officer in 1979 at MTNL, Mumbai. The Applicant was issued charge sheet vide dated 16.11.1989. The following articles of charges were framed against him: ARTICLE-I That the said Shri Sat Prakash, JTO St.No.26303, while functioning as Junior Telecom Officer in the office of AWCE (VPL-I)/DWCE(ADR), MTNL during the period October 87 to January, 1988 was entrusted with 1400 mtrs. Of 1000/6 = JF cable in seven drums whereas he laid only 777 meters of the said cable and the balance of 623 meters of cable of 1000/6 = costing Rs.3,25,000/-was not 8 OA.600/2000 accounted for by him and was found missing from his possession. (The cost of 623 metres of the missing cable comes to Rs.3,25,000/-(Rs.Three lakhs twenty five thousand only) and thus Shri Sat Prakash, JTO, St No.26303 caused a loss of Rs.3,25,000/-to MTNL Ltd., Bombay. By this action, Shri Sat Prakash, JTO showed lack of absolute integrity devotion to duty and acted in a way unbecoming of a Govt. servant thereby violating Rule 3(1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II That during the aforesaid period and while functioning in the office of AWCE (VPL-I)/DWCE(ADR) the said Shri Sat Prakash, JTO St. No.26303 made fraudulent entries in the cabinet summary register showing that he had laid 1400 metres of 1000/6 = cable whereas actual measurement at site indicated that 777 metres of the cable has only been laid. Thus he took 623 metres of cable in his possession with the intention of making pecuniary gain and mislaid the Assistant Engineer, (his controlling officer) by deliberately writing the incorrect figures in the cabinet summary register and thus lacking in absolute integrity, devotion to duty and acting in a way unbecoming of a Govt. servant violating Rule No.3 (1)(i)(ii) & (iii) of CCS(Conduct) Rules, 1964.
ARTICLE-III That during the aforesaid period while functioning in the office of AWCE (VPL-I)/DWCE(ADR) the said Shri Sat Prakash, JTO, St. No.26303 has failed to report the availability of 623 metres, 1000/6 = excess cable with him and did not return it back to the stores and also he did not bring to the notice of AE/DE that the balance 1000/6 = cable was missing from his possession and thus failed to maintain absolute integrity, devotion to duty and acted in a way unbecoming of a Govt. servant violating Rule No.3(1)(i)(ii)&(iii) of CCS 9 OA.600/2000 (Conduct) Rules, 1964.
ARTICLE IV That during the aforesaid period while functioning in the office of AWCE (VPL-I)/DWCE(ADR) the said Shri Sat Prakash, JTO, St.No.26303 tried to prove that no cable is lost by him by procuring similar but different size of cable i.e. 1200/6 =. The lost cable was 1000/6 = PIJF type (Polythence insulated jelly filled cable) whereas the cable procured by him was of 1200/6 = paper insulated. Thus he tried to deceive the MTNL, that no cable is lost by procuring similar looking but different size of cable in seven pieces, thus lacking in absolute integrity, devotion to duty and acting in a way unbecoming of a Govt. servant violating Rule No.3 (1)(i)(ii)&
(iii) of CCS (Conduct) Rules, 1964. ARTICLE-V That during the aforesaid period while functioning in the office of AWCE (VPL-I)/DWCE(ADR) the said Shri Sat Prakash, JTO, St. No.26303 failed to intimate the availability of 1200/6 = cable with him to his AE/DE and did not return the seven bits of 1200/6 = cable including 23 M of 1200/6 = PJ cable collected from Malabar Hill stores on the requisition of AWCE (VPL-I) for some other work found available in his stock to the stores of the AWCE(VPL-I) until the loss of 1000/6 = cable was detected and thus failed to maintain absolute integrity, devotion to duty and acted in a way unbecoming of a Govt. servant, violating Rule No.3(1)(i)(ii) of CCS (Conduct) Rules, 1964.
ARTICLE-VI That during the aforesaid period while functioning in the office of AWCE (VPL-I)/DWCE(ADR) the said Shri Sat Prakash, JTO, St. No.26303 though not issued with any 1200/6 = cable by AWCE (VPL-I) since 15.09.1984 as per cable stock register of AWCE(VPL-I), unauthorisedly possessed seven bits of 10 OA.600/2000 1200/6 = cable totalling 173 metres misappropriating MTNL/DOT stores and thus lacking in absolute integrity devotion to duty and acting in a way unbecoming of a Govt. servant violating Rule No.3(1)(i)(ii) and (iii) of CCS (conduct) Rules, 1964. Prior to the issue of the above charge sheet dated 16.11.1989, an earlier charge sheet was issued vide dated 09.09.1988 which was subsequently cancelled vide Respondents letter dated 07.09.1989. This letter was received by the Applicant on 21.09.1989. Thereafter, a fresh charge sheet was issued to the Applicant vide dated 16.11.1989. We are, therefore, not inclined to consider the argument advanced by the Applicant that he was issued two charge sheets and the Applicant could not have issued and proceeded with the chargesheet dated 16.11.1989 without withdrawing the earlier charge sheet dated 09.09.1988.
9. It is also noted that the Inquiry Officer in his request has held the charges contained in Article 1,2,3 and 4 as 'proved'. However, the articles of charge contained in Article 5 and 6 have 'not been proved'. A perusal of the Inquiry Officer's report brings out that the inquiry proceedings were held in accordance with the prescribed procedure and principle of natural justice was followed during the inquiry. The Applicant was given full opportunity to defend his case.
11 OA.600/200010. We have also gone through the orders passed by the Appellate Authority and Reviewing Authority, we find reasoned order have been passed by the Appellate Authority and the Reviewing Authority and we have not come across any perversity in the order passed by the Disciplinary Authority, Appellate Authority or the Reviewing Authority.
11. It is seen from the case papers that in Article I of the chargesheet, the charges levelled against the Applicant was that the Applicant was entrusted with 1400 meters of 1000/6.5 cables in 7 drums whereas he laid only 777 meters of the said cables and the balance of 623 meters of 1000/6.5 cables was not accounted for by him and was found missing from his possession thereby costing Rs.3,25,000/- to M.T.N.L., Mumbai.
12. The Article II was that the Applicant had made fraudulent entries in the cable register showing that he has laid 1400 meters of 1000/6.5 cable whereas the actual measure of the said indicated that 777 meters of 1000/6.5 was actually laid. Further, the charge contained in Article-III was that the Applicant had failed to return 623 meters of 1000/6.5 cable with him and he did not return to the stores and also did not bring to the notice of AE/DE that the balance 1000/6.5 cable was missing from his position. It is, however, seen that the charges 12 OA.600/2000 contained in the criminal case are not the same. The case papers also reveal that the charges levelled against the Applicant was substantiated on the basis of evidence. It is also seen that the witnesses had deposed during the inquiry proceedings and the Applicant or his Defence Assistant did not take any objection. It is also seen that the Inquiry Officer had followed the prescribed procedure by giving reasonable opportunity to the Applicant during the inquiry proceedings and the Applicant did not approach the Inquiry Officer and record any objection during the inquiry proceedings. Had the Applicant raised any objection the same would be reflected in the daily proceeding sheets. The Applicant was afforded reasonable opportunity to inspect the original documents and had failed to submit any evidence before the Inquiry Officer. It is seen that the Inquiry Officer relied not only on the admission of the Applicant recorded on 02.02.1988 during the preliminary inquiry, but also on other exhibited documents namely Gate-Pass Book No.82 dated 23.10.1987 (Exhibit S-1), cabinet summery register for the month of October, 1987 and December, 1987 [Exhibit S-2 (i) & (ii)], AT forms for cable lying work [Exhibits S-9(i) to (x)], preliminary inquiry proceedings held on 02.02.1988 and the oral evidence of SW-5 and DW-3 and came to the conclusion that the 13 OA.600/2000 charges under Article-I,II,III & IV are proved and Article-V & VI are not proved.
13. A perusal of the case papers reveals that the Applicant was proceeded against for specific charges as contained in the charge sheet dated 18.11.1999. The inquiry proceedings were initiated in accordance with the Rules and procedure prescribed and the Applicant had not alleged any bias or malafide in the conduct of disciplinary proceedings. Further, he was given full opportunity to defend his case during inquiry proceedings. No objection was raised by the Applicant during the inquiry proceedings and he had signed the daily order sheets without any demur. The Applicant was imposed the penalty of compulsory retirement from service.
14. It is the contention of the Applicant that he was acquitted in the criminal case filed against the Applicant, therefore, the charges levelled against him should be quashed and he should be reinstated in service in the light of ratio laid down by the Hon'ble Supreme Court in the case of Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd. [(1999) 3 SCC 679]. We have seen in the criminal case filed against the Applicant, Applicant was acquitted on the ground that the prosecution failed to prove the charges beyond reasonable doubt. Further, the Applicant was found guilty in departmental 14 OA.600/2000 proceedings conducted under Rule 14 of CCS (CCA) Rules, 1965 by the Disciplinary Authority.
15. The Hon'ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G. Vittal Rao [(2012)1 SCC(L&S)171] in a similarly situated case have held as follows:
11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311(2)(b) [sic Article 311(2) second proviso (a)]* of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.
12. In Nelson Motis v. Union of India this Court held: (SCC p. 714, para 5) 5. ... The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding.
13. In State of Karnataka v. T. Venkataramanappa, this Court held 15 OA.600/2000 that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct for the reason that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt but in the departmental proceeding, such a strict proof of misconduct is not required.
14. In State of A.P. v. K. Allabakash, while dismissing the appeal against acquittal by the High Court, this Court observed as under:
(SCC p. 177, para 2) 2. ...that acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him. 15 . While dealing with a similar issue, a three-Judge Bench of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd., held as under: (SCC p. 776, para 11)
11. ...In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different.
They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree 16 OA.600/2000 of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. .....
.....
24. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in a criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony does not lay down the lay of universal application. Facts, charges and nature of evidence, etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.
25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. [Vide Air India Corpn. v.
17 OA.600/2000V.A. Rebellow, Francis Klein & Co.(P) Ltd. v. Workmen and BHEL v. M. Chandrasekhar Reddy.]
32. The domestic enquiry found the delinquent employee guilty of all the charges. The enquiry report was accepted by the disciplinary authority and there is grievance on behalf of the respondent workman that statutory provisions/principles of natural justice have not been observed while conducting the enquiry. The disciplinary authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non-
commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in a fair manner and charges have rightly been proved against the delinquent employee. However, considering the difference in the standard of proof required in domestic enquiry vis-avis that applicable to a criminal case, the Labour Court repelled the argument of the respondent workman that once he stood acquitted he was entitled to all reliefs including reinstatement and back wages. The learned Single Judge as well as the Division Bench had simply decided the case taking into consideration the acquittal of the delinquent employee and nothing else.
16. In view of above, therefore, it is clear that the acquittal in a criminal case does not automatically lead to review of the punishment imposed on the Applicant after holding departmental inquiry as per Rule 14 of the CCS (CCA) Rules, 1965.
17. Considering the facts and circumstances of the case and gravity of the charges, we are convinced that penalty imposed on the Applicant is not 18 OA.600/2000 shockingly disproportionate. We are, therefore, not inclined to interfere in the present Original Application.
18. In view of the above, therefore, Original Application being bereft of any merit is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.