Central Administrative Tribunal - Delhi
Murari Lal vs Mahanagar Telephone Nigam Ltd on 7 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI T.A. NO. 176/2009 New Delhi, this the 7th day of January, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Murari Lal, S/o Shri Prathi Singh, R/o 55-A, Pocket-A, MIG Flat, GTB Enclave, Delhi .Applicants (By Advocate: Shri S.C. Sagar) Versus 1. Mahanagar Telephone Nigam Ltd., Through Executive Director, Khurshid Lal Bhawan, New Delhi 2. Bharat Sanchar Nigam Ltd., Through Director (HRD), Statesman House, Barakhamba Road, New Delhi 3. Union of India Through Deputy Secretary, Govt. of India, Ministry of communications and Information Technology, Department of Telecommunication, Sanchar Bhawan, New Delhi .Respondents (By Advocate: Ms. Rachana Joshi with Sh. M.M. Sudan and Shri Rajesh Katyal) O R D E R By Dr. Veena Chhotray, Member (A):
The Applicant working as a Junior Engineer (Civil) with the MTNL is challenging the imposition of the following penalty imposed under Rule 11 of CCS (CCA) Rules, 1965 by the Disciplinary Authority vide the order dated 9.3.2005:-
Reduction by two stages in the time scale of pay for a period of two years with immediate effect upon Shri Murari Lal, JE (Civil). It is further directed that Shri Murari Lal, JE(C) will not earn increment of pay during the period of such reduction and on expiry of this period the reduction will have the effect of postponing of his future increment of pay. This punishment was modified by the Appellate Authoritys order dated 1.1.2008 (Annexure-Q) as here under:
Reduction to two stages in the time scale of pay for a period of two years with immediate effect with the further direction that Shri Murari Lal, JE (Civil) will earn increment of pay during the period of such reduction and on expiry of this period, the reduction will not have the effect of postponing of his future increment of pay. As the charges in this case had not been found substantiated and were, therefore, held as not proved vide Inquiry Report dated 23.6.2004 (Annexure I), disagreeing with the findings in the Inquiry Report, the Disciplinary Authority had issued a disagreement note dated 7.12.2004 (Annexure-J) giving the charged official an opportunity to make a representation. Considering the representation dated 12.1.2005 the aforesaid penalty was imposed by the DA.
This was a cases in which major penalty proceedings had also been initiated against the concerned Executive Engineer. Shri M.C. Jain for the same cause of action and despite the Inquiry Officer not holding the charge as proved and the Disciplinary Authority disagreeing and proposing a suitable major penalty, acting on the UPSCs advice to exonerate the Officer the same had been accepted by the Disciplinary Authority and the proceedings dropped vide the order dated 5.7.2005 (Annexure-O).
Similarly, the other co-delinquent, the Assistant Engineer Shri P.A. Chandwani had been exonerated acting on the advice of the UPSC, despite the initial disagreement of the DA with the I.Os findings, vide the order dated 3.1.2006. In the above background, the TA sought the following reliefs:-
to direct the Respondents to set aside the impugned orders i.e. the Memo of disagreement dated 7.12.2004 and the order dated 9.3.2005 passed by the Disciplinary Authority (Respondent No.1) against the Petitioner awarding major punishment on him (as Annexure-J and L);
to set-side the order dated 1.1.2008 passed by the Appellate Authority (Respondent No.2) against the Petitioner modifying the punishment. (Annexure-Q);
to uphold the report of Inquiry Officer/Inquiry Authority dated 15.6.2004 (as Annexure-I) based upon reasoning and truthful facts pursuant to which the charges had been dropped/exonerated;
to give the benefits of the orders dated 5.7.2005 and 2.1.2006 (as Annexure-O and P) passed by the Respondent No.3/Union of India/UPSC relating to the other delinquent officers namely Sh. M.C. Jain, E.E. (C-IV) and Sh. P.A. Chandwani, A.E. (Civil) endorsing the findings wherein both were exonerated from the Articles of Charge in view of the Inquiry Officer report/Inquiry Authority vide order dated 5.6.2004 and 20.10.2004 alongwith the Petitioners inquiry report dated 15.6.2004;
to pass any order/relief/direction(s) may deem fit and proper in the interest of justice in favour of the petitioner.
2. A major penalty proceeding under Rule 14 of CCS (CCA) Rules, 1965 was initiated against the applicant vide the Memo dated 20.7.2002 (Annexure -F). The Article of Charges ran as under:
(i) That the said Sh. Murari Lal while working as JE(Civil) under Executive Engineer (C-IV) % SE (Civil), East, MTNL, Delhi committed an act of gross misconduct during the year 2000.
(ii) Sh. Murari Lal, JE (Civil) being Site Incharge of the works failed tog et the Duct construction works completed as per specifications laid down in the agreements made between the contractors and Executive Engineer (Civil), MTNL, Delhi in Trans Yamuna Area of MTNL, Delhi resulting in sub-standard and poor quality of works.
SNO. NAME OF THE WORK AGREEMENT NO. NAME OF THE CONTRACTOR SAMPLE NAMED AS
1. Construction of Local duct Network in Mayur Vihar, Ph.1. (Pratap Nagar) TE area, Delhi EE (CIV)/MTNL/99-2K/42 M/s Vijay Kumar Goyal A
2. Construction of local duct network for sub CBD Shahdara TE area Delhi SHD, Section-I EE(C-IV)/MTNL/99-2K/22 M/s Hindustan Const. Corporation B
3. Section-II MH CBD-015 to 032 & MH 015 to MH-39 EE(C-IV)/ MTNL/99-2k/21 Sh. Rajender Prasad Gupta C Thus, the said Sh. Murari Lal, JE(Civil), failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Govt. servant thereby violating Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
3. The stand of the applicant is that the impugned penalty has been imposed against him without any basis or foundation at all. The learned counsel for the applicant Shri S.G. Sagar would particularly stress that the Inspection Committee was not a Technical Committee constituted as per the prescribed guidelines. The Ground H of the TA refers to the CVC guidelines vide OM dated 27.09.1996 in this context. It would also be averred that the sampling adopted was not correctly done, nor was it representative in character. As per the petitioner, there was no standard of probability found out at any stage about authenticity of facts holding him guilty (Ground-B).
As the charge against the applicant rested primarily on the report of the S.E. Shri A.S. Siddiqui who had been cited as a listed prosecution witness, his non-examination during the inquiry and thereby depriving the Charged Official of an opportunity to cross-examine this initial evidence to absolve himself of the charges has also been taken as a serious infirmity vitiating the entire proceeding (Ground-D).
The main defence arguments, as we would glean out of the multiple grounds stated in the TA and as highlighted by the learned counsel Shri Sagar during his submissions, would be two-fold. First, this was a case where after a detailed inquiry, the I.O. had arrived at well reasoned findings about the charge not being substantiated and had clearly exonerated the applicant of all the charges. Despite that the Disciplinary Authority, ignoring the Inquiry Report had taken a contrary stand and imposed the aforesaid penalty quite unjustifiably. The second strand of argument would be that for the same cause of action, the concerned Assistant Engineer and the concerned Executive Engineer against whom also separate disciplinary proceedings had been initiated, were ultimately exonerated and the disciplinary proceedings dropped. Thus, a clear case of discrimination, to the prejudice of the applicant is contended.
The ground of delay, inter alia has also been raised (Ground-B). The TA submits that for a cause of action pertaining to the year 2000, the departmental inquiry was initiated in 2002; the inquiry concluded in 2004, the punishment of the DA imposed in 2005 and despite the submission of his appeal dated 8.7.2005 the order of the Appellate Authority modifying the original penalty, but still reiterating the basic one was passed as late as January 2008.
4. While the cause of action in this case had arisen during the period the applicant was working under the MTNL (1999 2004), subsequently he had been got absorbed under the BSNL. Therefore, the charge sheet, the inquiry and the order of the Disciplinary Authority were passed by the MTNL, but the applicants appeal dated 8.7.2005 addressed to the parent department of Telecom was transferred to the BSNL. Thus, the order of the Appellate Authority was passed by the BSNL. It is also relevant to state at this point that the Presidential order exonerating the concerned Assistant Engineer and the Executive Engineer were passed by the Department of Telecom. Thus, in one way or the other all the three official-respondents come into picture. Separate counter affidavits have been filed on behalf of the MTNL (Respondent No.1) and the BSNL (Respondent No.2). The counter affidavit by Respondent-1 has reiterated the legal principle that the Disciplinary Authority is well within its rights to differ from the findings of the Inquiring Authority and evoking the Wednesbury principle of exercising of judicial power, it has been averred that it does not provide any occasion for the judicial for a to step into the shoes of the Appellate Authority and to re-appreciate evidence. In support several judicial rulings have been cited viz. Bank of India & Anr vs Degala Suryanarayan, (1999) 5 SCC 762, High Court of Judicature at Bombay vs Shashikant S. Patel &Anr, (2000) 1 SCC 416,and Om Kumar & Ors vs Union of India, (2001) 2 SCC 0386.
Both the respondents have sought to rebut the contention regarding defective sampling by taking the plea that the charged official himself was present during the occasions when the samples were taken and had not objected to it. The respondent no.2 has carried the argument much further and alleged such non-objection on the part of the charged official as intentional.
The ground of discrimination vis-`-vis the concerned Assistant Engineer and the Executive Engineer who had been exonerated has also been rebutted by both the respondents. Differentiating the levels of supervisory responsibilities of the JE, AE and the Executive Engineer, the respondent no.2 (BSNL) has averred that they have a responsibility for carrying out 10%, 50% and 100% responsibility for exercising supervision over the execution of the work. Since the responsibility of the applicant as the Junior Engineer was 100%, all the three officers cannot be considered as identically situated and there cannot be any plea of discrimination. As per the respondents, since the action has been taken by competent authorities after observing full principles of natural justice, there is no justification for judicial interference and the OA is fit to be dismissed.
5.1 One of the main planks of the defence pleas is complete exoneration as per the Inquiry Report. As per the settled law though the final decision regarding imposition of penalty rests with the disciplinary authority, the departmental inquiry constitutes the foundation for the same. For that purpose the Disciplinary Rules prescribe an elaborate procedure. The manner of conduct of inquiry and the resultant findings form the touchstone to test the observance of the principles of natural justice, fairness and objectivity. Further, it is a settled principle that in disciplinary inquiries without getting constrained by the strict rules of evidence, the inquiring authority is expected to take a view regarding the charges as proved or not by applying the test of a common prudent person acting reasonably. We may at this point respectfully refer to the observations of the Apex Court in State of Haryana vs. Rattan Singh, (1977) SCC (L&S) 298, as reiterated in the recent judgment in North West Karnataka Road Transport Corporation vs. H.H. Pujar, (2009) 1 SCC (L&S) 251:
..The essence of a judicial approach is objectivity, exclusion of extraneous material or consideration and observance of rules of natural justice. 5.2 The inquiry report in this case was a detailed one and a copy is annexed as Annexure-I with the TA. Para-2 of the report contains detailed steps which reveal a scrupulous observance of the prescribed procedures and fairness with provision of adequate opportunity of defence to the charged official. On behalf of the prosecution six witnesses were produced though the S.E. Siddiqui originally listed as PW-5 had to be dropped since despite being given chance to appear he had failed to appear. Besides, the number of documentary exhibits (12, 12A) produced by the prosecution; a long list of additional documents asked for by the defence had been allowed. Besides, the assistance of Defence Assistant on behalf of the Charged Officer, one defence witness had been examined as per the request.
5.3 The assessment of the evidence is contained in para 8.0 of the inquiry report. The Inquiry Officer had taken note of the fact that the unreliability of the samples had been corroborated by the important prosecution witnesses themselves i.e. the concerned Ex. Engineer and the Assistant Engineer. Specific infirmities in collecting the samples (vii to be precise) and corroborated by all the prosecution witnesses had been mentioned in the inquiry report. The defence submission that unless the materials like cement, sand and coarse aggregate were got tested simultaneously, the results were not reliable was taken note. Further, citing the methods prescribed by the Bureau of Indian Standards, the sampling was found to be suffering from serious limitations.
The Inquiry Officer had also noted the very prima facie inconsistency in the report of the S.E. Shri Siddiqui holding all the samples as failed whereas that was not the case even as per the concerned Assistant Engineer and the Executive Engineer.
5.4 After the detailed assessment of evidence, the Inquiry officer had arrived at following conclusive findings. Para 9 contained such findings and considering their critical bearing, is reproduced in toto:
9.0 CONCLUSION:
On the basis of evidence adduced during the Inquiry and their assessment made in the above paragraphs 8.00, following conclusions are drawn in the case.
1. Charge sheet is framed on the basis of Ext.S-6 viz. comments of SE (Civil) on the test results of the samples of PVC pipe & CC mixture collected by vigilance team from the work sites. SE(Civil) has commented that based on Laboratory results all the three samples of PVC pipe and CC Mixture have failed in one or the other tests.
2. EE(Civil) and AE (Civil) while appearing as prosecution witnesses SW-1 & SW-2 has deposed that above comments of SE(Civil) are not correct. Ext. S-6(b), which is a compilation of all the test results of the samples sent by Vig. Cell to the Laboratories, clearly shows that two samples have passed the tests and only one sample failed and on the basis of failure of one sample entire lot can not be rejected.
3. SE (Civil) who is the author of Ext. S-6 was not produced before the Inquiry, hence defence did not get an opportunity to cross examine him and authenticity of Ext.S-6 could not be established and hence evidence of the document can not be relied upon.
4. Defence side has established that the method of sampling was not as per required standard and also basic material like cement, sand and coarse aggregate were not collected and hence were not tested along with the samples, therefore, test results of Ext.S-6 can not be relied upon.
5. EE (Civil) & AE (Civil) have stated while deposing before the Inquiry that tests for PVC pipes received and CC mixtures were carried out at the time of execution of the work and these were found as per specifications lid down in the agreement between contractor and MTNL.
6. AE (Civil) & EE (Civil) while deposing before this Inquiry as prosecution witnesses stated that Sh. Murari Lal, JTO used the correct standard for PVC pipes & CC as laid down in the agreement.
From the fact detailed at (1) to (5) it is concluded that charge leveled against the C.O. that he failed to get the Duct construction work completed as per specifications laid down in the agreements made between the contractor and EE (Civil) MTNL Delhi resulting sub standard and poor quality of work is not established. The Inquiry Officers report was categorical that the charges had not been sustained and hence not proved.
Considering the enquiry report before us we are inclined to take with due seriousness the defence submissions about the well reasoned and objective findings in the inquiry report having been brushed aside while taking the final decisions.
6. As mentioned above, the Disciplinary Authority in this case had not agreed with the findings of the inquiry officer and had vide Memorandum dated 7.12.2004 issued a disagreement note giving the charged officer an opportunity to represent against the view being taken by the Disciplinary Authority (Annexure-J). The charged official in his representation dated 12.1.2005 (Annexure-I) had submitted to the Disciplinary Authority that the objections being raised by the latter were not factually correct and had reiterated the stand how the charges against him had not been found sustainable. The Disciplinary Authoritys order confirming his disagreement with the Inquiry Officer and imposing the aforesaid penalty was passed vide the order dated 9.3.2005 (Annexure-L).
It is no more res integra that the disciplinary authority is within its legitimate domain to disagree with the findings in the inquiry report. Further, the judicial review also forbids the stepping of the judicial fora into the shoes of the executive and acting as the administrative authority. However, needless to say the powers vested in the disciplinary authority carry with it the corresponding responsibility of fairness and objectivity.
A careful perusal of the disagreement note as well as the final order passed by the Disciplinary Authority make us gather the impression that the detailed reasoning in the inquiry report seems to have been brushed aside by the Disciplinary Authority without adequate reasons. As pointed out by the Charged Official the stand of the Disciplinary Authority seems to be struck by apparent contradictions. On the one hand, the deposition of SW-1, SW-2, the concerned Executive Engineer and the Assistant Engineer, have been relied upon by the Disciplinary Authority to prove his point that the samples were collected in their presence, on the other their depositions have been considered as undependable on the ground that they were the co-accused. The obvious facts that these officers who had an important role in the entire cause of action had been produced by the department itself to prove the persecution point and that they had subsequently been exonerated, have not merited any consideration with the Disciplinary Authority. Similarly, the D.A. has depended upon the report of the S.E., A. Siddiqui, without considering the authenticity of the same as per the finding in the inquiry report.
We have no hesitation to observe that the Disciplinary Authoritys order seems sketchy and inadequate particularly since it disagrees with a detailed and reasoned inquiry report.
7. The applicant is also aggrieved with the order of the Appellate Authority which though reducing the rigor of the punishment did not completely absolve him of the charges. The appellate order dated 1.1.2008 while considering the submissions of the delinquent had taken note of the advice of the UPSC in the case of the other two co-accused, i.e. the A.E. and the E.E. The following observations are relevant and extracted as here under:
In the appeal filed by Shri Murali Lal, JE, the point now to consider is whether the penalty imposed against him by authority for failure to get sub-standard and poor quality execution of works is still in order in the light to advice tendered by UPSC against two co-accused officers in respect of charges of supervisory failure of execution of the same works. It is noted that while tendering the 2nd stage advice in the case of two co-accused, the UPSC clearly stated that the charges are not conclusively established because of the wrong sampling method adopted by the Vigilance Team, and that the quality of materials used conform to the specification and relevant IS Codes. As for the disagreement recorded by the disciplinary authority, the Commission has observed that the findings of IO were based on documentary evidences rather than the depositions of the two witnesses (co-accused officers) whose statements were considered as not sustainable. (emphasis supplied) However, what follows is the argument that as the JE himself was present at the time of the sampling he knowingly did not object to the wrong prosecution. As in the Disciplinary Authoritys order, the Appellate Authoritys orders are found to be sketchy and full of surmises.
8. To conclude, on a detailed scrutiny the grievances of the applicant seem justified. This was a case in which for a cause of action pertaining to the year 2000 the final Appellate Authoritys order was passed after eight years. The charges pertaining to failure to get certain works executed as per the specifications in the agreement had been found to be not substantiated in the inquiry report on the basis of evidence adduced. Despite the clear and reasoned report of the Inquiry Officer, the Disciplinary Authority had disagreed and passed sketchy and inadequate orders. The same also happened to be the case with the Appellate Authority. This was also the case in which the Assistant Engineer and the Executive Engineer concerned had been exonerated.
Considering all the facts of the case, we find this as one justifying judicial intervention. The OA is allowed and the impugned orders quashed. The order to be implemented with all consequences as per law within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) /PKR/