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2011 DIGILAW 20 (GAU)

Ila Chakma v. Bharat Sanchar Nigam Ltd.

2011-01-07

UTPALENDU BIKAS SAHA

body2011
ORDER U.B. Saha, J. 1. In this writ petition the Petitioner a Sr. TOA (TG) made a prayer for quashing the order dated 25.10.2004 whereby and where under the Chief General Manager and the Reviewing Authority NEI Telecom Circle, Shillong, Respondent No. 3, on review, set aside the order of the appellate authority General Manager, Telecom District, Agartala, Respondent No. 4 dated 23rd July, 2004 wherein the said authority exonerated the Petitioner from the Charge No. II labeled against her and upheld the punishment order passed by the disciplinary authority, the Deputy General Manager, Agartala, Respondent No. 5 dated 08.09.2003 and also made a prayer for quashing the order dated 1st November, 2004 passed by the reviewing authority wherein the reviewing authority exercising its powers under Rule 18 of appendix No. 37 Part-1 of P & T manual Vol-IV cancelled the candidature of the Petitioner bearing roll No. NECA/144/2000 in the 15% JTO competitive examination held on 21st and 22nd October, 2000 at Agartala Centre and declared her examination papers null and void in the said examination. 2. Heard Mr. CS Sinha, learned Counsel for the Petitioner as well as Mr. A. Lodh, learned Asstt. SG for the Respondents. 3. As agreed to by the learned Counsel for the parties and considering the nature of dispute involved in this writ petition, it is taken up for final disposal at this stage. 4. The case of the Petitioner in short is that the Petitioner appeared in a Departmental Examination for promotion to the post of Jr. Telecom Officer which was held at Agartala on 21st and 22nd October, 2000. Like the Petitioner other 35 candidates also appeared in the said examination and one Sri P.K. Banik was declared successful and given promotion to the post of Jr. Telecom Officer. Telecom Officer which was held at Agartala on 21st and 22nd October, 2000. Like the Petitioner other 35 candidates also appeared in the said examination and one Sri P.K. Banik was declared successful and given promotion to the post of Jr. Telecom Officer. Out of the 36 candidates, against 19 candidates including the Petitioner, the Deputy General manager, Agartala initiated departmental proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, hereinafter referred to as "CCS (CCA) Rules 1965") on charges of misconduct which are as follows: ARTICLES OF CHARGE Article-I: That Smti Ila Chakma, bearing Roll No. NEC A/144/2000 while appearing the Departmental Competitive Examination for promotion to the post of JTO (15% Quota) held on 21-22 October 2000 at Agartala Centre has used/attempted to use unfair means in the Examination hall thereby behaving in an indisciplined manner to get through in the Departmental Competitive Examination for promotion to the post of JTO. Article-II: That Smti Ila Chakma, bearing Roll No. NECA/144/2000 while appearing the above mentioned examination for promotion to the post of JTO (15% Quota) held on 21-22 October 2000 at Agartala Centre created a situation which caused panic to the Supervising Official as well as Invigilators. Article-III: That Smti Ila Chakma, bearing Roll No. NECA/144/2000 while appearing the above mentioned examination for promotion to the post of JTO (15% Quota) held on 21-22 October 2000 at Agartala Centre has copied the answers from other candidates. 5. After filming charges an inquiring officer was appointed where the Petitioner appeared and contested the disciplinary proceeding. Ultimately, the disciplinary authority, on going through the reports of the inquiring officer found the Petitioner not guilty on two charges i.e. Article-I and Article-III out of the three charges but found the Petitioner guilty on one charge i.e. Article II and imposed punishment, inter alia, that the pay of the Petitioner be reduced by one stage in the time-scale of pay for a period of one year with further direction that the official will earn increment of pay during the period of such reduction and on expiry of such period, the reduction will not have effect of postponing the future increments of her pay. Being aggrieved by the aforesaid order dated 08.09.2003 of the disciplinary authority the Petitioner preferred an appeal before the Appellate Authority, Respondent No. 4. Being aggrieved by the aforesaid order dated 08.09.2003 of the disciplinary authority the Petitioner preferred an appeal before the Appellate Authority, Respondent No. 4. Upon hearing the parties in the appeal, the appellate authority set aside the order of the disciplinary authority vide his order dated 29th July, 2004 (Annexure-6 to the writ petition). When the Petitioner was set free from the charges labeled against her by the Respondent authority, the Respondent No. 3, Chief General manager and the Reviewing Authority exercising his review powers under Rule 29A of the Rules 1965 reviewed the order of the appellate authority without providing any opportunity to the Petitioner and ultimately set aside the order of the appellate authority dated 29th July, 2004, wherein the appeal of the Petitioner was allowed and the order of punishment was set aside; and upheld the order of the disciplinary authority dated 08.09.2003. Not only that, by another order dated 1st November. 2004 the Respondent No. 3, Chief General Manager exercising his power under Rule 18 of the Appendix No. 37, Part-1 of P&T Manual Vol-IV cancelled the candidature of the Petitioner for the examination held on 21st and 22nd October, 2000 at Agartala Centre and declared her examination papers null and void. It would be profitable, for deciding the issue involved in the writ petition, if we reproduce Rule 18 of Appendix No. 37 Part-1 of the P & T Manual, Vol- IV taking note of which the reviewing authority set aside the order of the appellate authority. Accordingly, Rule-18 is reproduced herein under: 18. Treatment of candidates using unfair means - (a) If a departmental candidate is found guilty of impersonation, or of submitting fabricated documents or documents which have been tampered with, or of making statements which are incorrect or false, or of suppressing material information, or of using or attempting to use unfair means in the examination hall or otherwise resorting to any other irregular or improper means for obtaining admission to an examination, the Supervising Officer should submit a report to the authority competent to impose the major penalties on the candidate. (b) (i) If a departmental candidate is found to be copying from the answer papers of a neighboring candidate or from any written paper or document brought by him, or in any other way obtaining help or giving help to other candidates by irregular means, or is found to be in possession of a book which is not authorized to be used or of any written paper or document, he should be immediately expelled from the Examination Hall. (ii) Immediately after the examination in the particular paper is concluded, the Supervising Officer should record the statements of the candidate concerned and of other witnesses and of the invigilator or supervising officer who found the candidate copying or rising other unfair means. He should also collect such other evidence as may be relevant to the consideration of the case. (iii) The Supervising Officer will then forward his report with the statements and other evidence referred to at (ii) above to the authority competent to impose the major penalties on the candidate. (c) On receipt of the report mentioned in (a) or (b) or from the examiner (vide Rule 14 under Part IV) the disciplinary authority competent to impose major penalties on the candidate shall consider the matter and institute and finalize the disciplinary proceedings as expeditiously as possible. (d) In all cases covered by (a) and (b) above the Supervising Officer should submit a skeleton report showing the facts of the case to the Head of the Circle in which the candidate is working. The Head of the Circle will keep a watch over the progress of the departmental proceedings to ensure that no avoidable delay occurs in finalizing the proceedings. (e) In respect of examination conducted centrally by the Directorate, the Supervising Officer should also send to the Director-General a copy of his report submitted to the Head of the Circle. The Head of the Circle will keep a watch over the progress of the departmental proceedings to ensure that no avoidable delay occurs in finalizing the proceedings. (e) In respect of examination conducted centrally by the Directorate, the Supervising Officer should also send to the Director-General a copy of his report submitted to the Head of the Circle. (f) After the conclusion of the disciplinary proceedings, the disciplinary authority should forward a complete record of the case i.e., the report of the Supervisory Officer, the statement of the candidate and of the witnesses, the charge sheet, defence, record of oral enquiry, if any, and the punishment order to the Head of the Circle/Administration office concerned who will decide the question of debarring such candidates from appearing in the departmental examinations in respect of the officials for whom the appointing authority is the Head of the Circle/Administrative office or the subordinate authorities. Pending decision of the Head of the Circle/Administrative office, the official should not be allowed to appear in any subsequent examination conducted by the department. The powers delegated above will be exercised personally only by officers declared as Heads of Departments under SR. 2(10). (g) If the candidate concerned is an outside i.e. he is not already an employee of the Department, the reports and other documents, if any, under (a) and (b) above should be forwarded to the Director-General, who will consider the action to be taken against the candidate and pass such orders as he considers necessary. 6. Being aggrieved by the order dated 25th October, 2004 and 1st November, 2004 of the reviewing authority, Respondent No. 3, the Petitioner preferred this writ petition impugning those orders. 7. Mr. C.S. Sinha while questioning the impugned orders would contend that the impugned order dated 25th October, 2004 (Annexure-7 to the writ petition) is not only an unreasonable and unfair one but also an illegal one, the said order having been passed flouting the procedure prescribed under the provisions of Rule 29A of the CCS(CCA) Rules, 1965 and consequently the order dated 1st November, 2004 is also had in law as the said order is passed without any wrong on the part of the Petitioner. He further submits that in Rule 29A of the CCS(CCA) Rules, 1965 that though the review authority has the power to review an order of the appellate authority or any other authority exercising the suo moto power or otherwise, the said power cannot be exercised for imposing or enhancing any penalty upon a government servant without providing him/her a reasonable opportunity of making representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 or enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 14 has not already been held, in the case, no such penalty shall be imposed expect after inquiring in the manner laid down in Rule 14. In the instant case, it is the admitted position that there was an enquiry against the Petitioner under Rule 14 of the CCS (CCA) Rules, 1965 and in the said proceeding the Petitioner was punished and being aggrieved by the said order of punishment when the Petitioner sought for appeal the appellate authority set aside the order of the disciplinary authority and exonerated her from the charges labeled against her and thereafter, the review authority without providing any opportunity to the Petitioner, for representing herself, passed the impugned orders. Hence, the impugned orders are contrary to the procedural prescription under Rule 29 A of the CCS(CCA) Rules, 1965 for which itself the impugned orders are liable to be quashed. 8. Mr. Lodh while countering the arguments of Mr. Sinha submitted that it appears from Rule 29A of the CCS(CCA) Rules, 1965 that at the time of review the review authority is bound to provide some opportunity to the delinquent officer for making a representation against the order of penalty proposed by the reviewing authority. While reviewing the order passed in favour of the delinquent officer, the reviewing authority has exercised his suo moto power and committed no wrong, however on a query Mr. Lodh contended. 9. In view of the submission at bar, it would not be proper for this Court to abuse any time for taking a decision in the instant case. However, it would be proper to reproduce Rule 29A of the CCS(CCA) Rules, 1965 for better appreciation. Lodh contended. 9. In view of the submission at bar, it would not be proper for this Court to abuse any time for taking a decision in the instant case. However, it would be proper to reproduce Rule 29A of the CCS(CCA) Rules, 1965 for better appreciation. 29-A. Review.- The President may, at any time either on his own motion or otherwise, review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice: Provided that no order imposing or enhancing any penalty shall be made by the President unless the government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 14, subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary. 10. It appears from Rule 29 A, particularly, the proviso to the said Rule, that no order can be passed by the reviewing authority either imposing or enhancing any penalty unless the delinquent officer, i.e. the government servant has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 of the CCS (CCA) Rules, 1965 or otherwise. 11. This Court has also taken note of the order dated 08.09.2003 passed by the disciplinary authority, Respondent No. 5 which was ultimately upheld by the reviewing authority. 11. This Court has also taken note of the order dated 08.09.2003 passed by the disciplinary authority, Respondent No. 5 which was ultimately upheld by the reviewing authority. According to this Court, the said order is not only a non-reasoned and non-speaking order but the said order was passed without any application of mind as in the said order there is no mention regarding the evidence discussed by the inquiring officer or his findings Only a line, inter alia, after going through the reports of the Inquiry Officer and other records of inquiry and after taking all the facts and circumstances of the case into consideration, I am convinced: (a) that the Article-I and Article-III could not be proved beyond doubt. (b) that the Article-II has been proved beyond any doubt. Thereafter, the disciplinary Authority passed the order of punishment. It is unfortunate that the statutory authorities are functioning in a matter of disciplinary proceeding like an Administrative Authority. It has to be kept in mind that the CCS (CCA) Rules, 1965 prescribed a detailed procedure as to how and in what manner the Statutory/Disciplinary Authority has to act. More so, an Administrative Authority while functioning as a Statutory Authority is supposed to keep in mind that he is exercising some statutory powers which are quasi-judicial in nature. More so, the reviewing authority in his order nowhere stated for what reasons the order of the appellate authority is bad. All the authorities while exercising the statutory power should pass a speaking order giving reasons in support of their conclusion so that the delinquent officer can understand why the authority passed the order either against him or in his favour. In the instant case, no doubt the disciplinary authority nor the appellate authority even not the review authority considered the aforesaid aspects. 12. It is by this time settled that a person cannot be punished without providing any opportunity to him as that is the minimum requirement of natural justice. Somebody may think that why even after the contention the learned Counsel for the Respondents this Court made the above observation. 12. It is by this time settled that a person cannot be punished without providing any opportunity to him as that is the minimum requirement of natural justice. Somebody may think that why even after the contention the learned Counsel for the Respondents this Court made the above observation. Reason behind is that the learned Counsel of the Respondents in clear manner did not admit the error committed by the reviewing authority and we find not only in this case but in some other cases also when the disciplinary proceedings are questioned and the Court is supposed to answer, the Court is facing similar nature of orders, wherein the Disciplinary authority or inquiry officer is not following the statutory prescription and denying the natural justice to the delinquent officer. 13. For the aforesaid reasons, the order of the review authority dated 25th October, 2004 and 1st November, 2004 as impugned in this writ petition, are set aside. 14. However, the Respondent No. 3-Review Authority is at liberty to proceed with the matter and pass necessary order(s) after providing due notice to the Petitioner and an opportunity to represent her case as she is entitled to in view of the provisions of Rule 29 A of the CCS (CCA) Rules, 1965 and other statutory provisions. 15. In the result, this writ petition is allowed No order as to costs. Petition allowed.