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2012 DIGILAW 486 (PAT)

Bharat Sanchar Nigam Limited v. Sudama Singh

2012-03-21

ADITYA KUMAR TRIVEDI, SHIVA KIRTI SINGH

body2012
ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Petitioner/employer has invoked writ jurisdiction with a prayer for quashing the order dated 02.02.2011 passed by Central Administrative Tribunal, Patna Bench, Patna, in O.A. No. 273/09 by which the order of dismissal of Respondent No.1 dated 15.01.2008 followed with appellate order dated 02.02.2009 have been set aside and the matter has been remitted to the Enquiry Officer with a direction to give an opportunity to Respondent No.1 to participate in the departmental enquiry as well as to bring the documents i.e., forged and tampered certificates on record in accordance with law. 2. The facts leading to present petition could be summarized like this. In pursuance of advertisement dated 25.03.1989 for appointment of Junior Telecom Officer, sole Respondent, Sudama Singh (henceforth known as delinquent) along with others applied. Delinquent was selected and accordingly was so communicated on 09.07.1991. Subsequently, he was directed to submit original certificates, mark-sheet along with other documents which he did and subsequently, he was directed to undergo training and after completion thereof, was appointed as Junior Telecom Officer. In due course of time, he was performing his duty, CBI detected foul play at his end and on account thereof, an FIR was registered on the alleged fact that he had made interpolation in matriculation certificate as well as he had also filed fake certificate of Bihar College of Engineering. The aforesaid documents were got verified from the respective offices and the reports of concerned officials were communicated to C.B.I disclosing that the same happens to be interpolated and fake one. Accordingly, delinquent was asked for reply and the same was submitted. Subsequently thereof, served with charge-sheet of major penalty in accordance with Rule 14 of C.C.S Rules but instead of submitting reply in defence, delinquent began to escape. Not only this, the delinquent on one pretext or other absented himself from participating in departmental enquiry and lastly seeing dilly dally tactics, proceeding was held ex parte wherein witnesses were examined and the reports submitted by the authorities concerned were brought up on record. After concluding inquiry, report was submitted before the disciplinary authority, who, after scrutinizing the report, concurred and then on the factum of punishment, ordered for dismissal of delinquent from the service after having been approved by the authority concerned. After concluding inquiry, report was submitted before the disciplinary authority, who, after scrutinizing the report, concurred and then on the factum of punishment, ordered for dismissal of delinquent from the service after having been approved by the authority concerned. Delinquent had made departmental appeal whereupon the appellate authority by reasoned order acceded with the findings and dismissed the appeal. Then, thereafter delinquent had preferred O.A. No.273 of 2009 wherein the order of the disciplinary authority as well as appellate authority have been set aside which led to filing of instant petition at the behest of BSNL, the employer. 3. Contention on behalf of the petitioner is that order passed by the Central Administrative Tribunal, Patna Bench, Patna happens to be bad in law as well as on facts, hence is fit to be set aside. He further submitted that the Central Administrative Tribunal, Patna Bench, Patna had misconstrued the real fact that by legal and reliable evidence, the petitioner had brought up on record the concerned letters written by the authorities concerned to the C.B.I from which it transpires that there happens to be interpolation of date of birth in the matriculation certificate while no certificate was granted to the delinquent from Bihar College of Engineering, Patna for the relevant period 1988. Then submitted that the learned Central Administrative Tribunal, Patna Bench, Patna had wrongly and illegally held under paragraphs-7 of the order that neither the original matriculation certificate nor the original certificate issued by the Bihar College of Engineering, Patna were brought up on record, therefore finding of enquiry officer as well as putting reliance thereon by the disciplinary authority as well as appellate authority happens to be bad. The fact is that the two respective letters issued by the Head of the authorities of the institution concerned disclosing the same to be interpolated/fake was not at all under challenge at the end of delinquent. Also submitted that finding recorded under paragraph-8 of the judgment that the delinquent had applied for the post on the basis of his being graduate B.Sc.Physics (Honours) is not at all tenable in light of Annexure-1, the appointment letter by which he has been directed apart from others, to submit original certificates and mark-sheets of the attested copies of mark-sheet so attached with application form. Had the delinquent applied for on the basis of B.Sc. Had the delinquent applied for on the basis of B.Sc. Physics (Honours) then there was occasion for him to submit original certificate alleged to be issued by Bihar College of Engineering, Patna. Therefore, the learned Central Administrative Tribunal, Patna Bench, Patna while setting aside the respective orders was totally misguided in appreciating the real theme already existing on the record. 4. The procedure for conduction of departmental enquiry and appreciation of evidence produced, is quite different from the procedure adopted for criminal prosecution. The departmental proceeding is decided on the basis of preponderance of probability, and for that the learned C.A.T. would have considered whether oral evidence as well as documentary evidence happens to be sufficient to see and infer that the report so submitted are giving a first hand look over quality of document as fake, forged submitted at the hands of delinquent. At the other hand, the report so brought up on record conclusively proves regarding nature of document to be fake and forged, hence the successive finding during Departmental Proceeding appears to be based upon factual position. 5. Also submitted that the delinquent was very much apprehensive regarding his misdeeds which now stood exposed and so to put hurdle in between, in stead of participating in the departmental enquiry filed CWJC No. 9055 of 2006 which was disposed of on 03.04.2007 wherein the Hon’ble Court had directed the delinquent to participate in the departmental enquiry which the delinquent disobeyed. Further, there was positive direction to conclude the departmental proceeding within four weeks. Delinquent again filed CWJC No. 10392 of 2007 and the same was disposed of vide order dated 25.09.2008 directing the delinquent to avail of the forum prescribed for challenging the order of the disciplinary authority according to its own wisdom. Also submitted that the disciplinary authority on its own had scrutinized and considered the finding of the enquiry officer according to four corners of law and in likewise manner the appellate authority also discussed by elaborate order. 6. Contrary to it, refuting the submission advanced on behalf of petitioner, learned counsel for the delinquent submitted that the enquiry officer was very much biased with the delinquent and under revengeful manner, without following the right procedure submitted its report against him. 6. Contrary to it, refuting the submission advanced on behalf of petitioner, learned counsel for the delinquent submitted that the enquiry officer was very much biased with the delinquent and under revengeful manner, without following the right procedure submitted its report against him. It has further been submitted that the disciplinary authority also failed to acknowledge the deficiencies persisting in the enquiry report and concurred with the view and accepted the same and further on the score of punishment, inflicted dismissal. The appellate authority also by-passed the salient feature which, if would have been considered, would not have resulted in dismissal of the appeal. 7. It has further been submitted that those deficiencies and infirmities were rightly pin pointed by the learned Central Administrative Tribunal, Patna Bench, Patna under paragraphs- 7 and 8 of its judgment, which makes the successive orders illegal and against the procedural law. 8. Further elaborating, it has been submitted that the application form happens to be the root which, if brought up on record would have disclosed on what basis the delinquent had applied for against the advertisement for Junior Telecom Officers. Further submitted that the aforesaid application form in its original form happens to be in custody of the department itself which knowingly and intentionally been withheld to be brought up on record. In likewise manner, it has been submitted that neither the matriculation certificate in its original form nor the certificate purported to be issued by the Bihar College of Engineering, Patna all having in custody of petitioner has been placed. Therefore, the genuineness of document over which petitioner has put note of interrogation, was not at all brought up on record. Contrary to it, two correspondences have been brought up on record which has got no reliability as the maker of the document has not been examined. 9. Furthermore, it has been submitted that at the initial stage of enquiry, though the delinquent had asked for an adjournment on account of physical ailment (fracture) and the same was acceded with at the end of enquiry officer, subsequently filed petition for permitting him to seek an assistance of law practitioner in defending his plea but the learned enquiry officer, as he was suffering from biasness, rejected the same. Further, submitted that even having the proceeding conducted in ex-parte manner is not going to conclude according to wish and desire of employer rather the enquiry officer should be fair and independent in its conduct and should submit its enquiry report without any favour and fervor. As such, the order of the learned Central Administrative Tribunal, Patna Bench, Patna happens to be just, legal and proper and is maintainable in the eye of law. 10. It has further been averred that two parallel proceeding cannot be allowed to proceed against the delinquent. Hence, departmental proceeding should have been stayed till the conclusion of criminal proceeding and the same was permissible in the eye of law. To support this plea, it has been submitted that opening of defence in departmental proceeding will cause prejudice to him to the extent at defending criminal prosecution. 11. Then last but not least, it has been submitted that status of two reports submitted by respective Departmental heads and brought up on record has been scrutinized by the learned C.A.T. and found it insufficient to prove the charge so farmed against the delinquent. Hence the same is fit to be confirmed. Apart from this, the manner where under Departmental proceeding has been conducted and nature of document which has been brought upon record have been taken into consideration by the learned C.A.T. and all those have been found to be placed under portentous manner. 12. First of all identity of Inquiry Officer has to be judged as biasness is the theme which could smash the whole process. From the record, it is evident that save and except using word “bias” nothing more has been alleged, shown and punched. What impact it has and how it could be pleaded and placed, for that we would like to refer a decision reported in 2001 (2) SCC 330 wherein at paragraph-5, it has been held as follows:- “ 5. Whereas fairness is synonymous with reasonableness—bias stands included within the attributes and broader purview of the word “malice” which is common acceptation means and implies “spite” or ‘ill will”. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice…. In almost all legal enquiries, “intention as distinguished from motive is the all-important factor” and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. ” 13. In 2003 (2) SCC 132 , the Hon’ble Apex Court has held that:- “The burden of proving mala fides lies very heavily on the person who alleges it. A mere allegation is not enough. The party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.” 14. As stated above, we have not be able to trace out a single incidence to justify the plea of the delinquent that enquiry was conducted by the enquiry officer under biasness. 15. Now coming to the second aspect touching the plea whether on account of non acceptance of the plea of the delinquent in not acceding with his prayer to get himself represented through legal practitioner, has caused prejudice to the delinquent. 16. The answer is itself visible from Sub-rule 8 (a) of Rule 14 of CCS (CCA) RULES which prescribes the methodology how a delinquent would defend himself during departmental proceeding. For better appreciation the same is incorporated hereinbelow:- 14 (8) (a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or, the Disciplinary Authority, having regard to the circumstances of the case, so permits: Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the Inquiring Authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits. Note.-- The Government servant shall not take the assistance of any other Government servant who has [three] pending disciplinary cases on hand in which he has to give assistance. 17. The said provision has also been subject to consideration before the Hon?ble Apex Court in a case of Dinesh Chandra Pandey v. High Court of Madhya Pradesh & Anr. Reported in 2010 AIR SC 3056 and the relevant paragraph is 7 which is as follows:- 7. The bare reading of this Rule shows that the Government servant may take the assistance of any other Government servant to represent his case but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the authority is a “legal practitioner” or the disciplinary authority, having regard to the circumstances of the case, so permits. The expression “may” cannot be read as “shall”. The normal Rule is that a delinquent officer would be entitled to engage another officer to present his case. But if the presenting officer is a “legal practitioner”, he may normally be permitted to engage a legal practitioner. The third category is where the disciplinary authority having regard to the circumstances of the case so permits. It is, therefore, not absolutely mandatory that the disciplinary authority should permit the engagement of a legal practitioner irrespective of the facts and circumstances of the case. There is some element of discretion vested with the authority which, of course, has to be exercised properly and in accordance with the settled principles of service jurisprudence. The Courts have taken a view that where expression “shall” has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in the case of Sarla Goel v. Kishan Chand [ (2009) 7 SCC 658 ] : (AIR 2009 SC (Supp) 2721 : 2009 AIR SCW 6549), took the view that where the word “may” shall be read as “shall” would depend upon the intention of the legislature and it is not to be taken that once the word “may” is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and while ensuring that intent of the Rule is not frustrated. Further, in the case of Malaysian Airlines Systems BHD (II) v. Stic Travels (P.) Ltd., [ (2001) 1 SCC 509 ] : ( AIR 2001 SC 358 ), this Court took the view that word “may” in Section 11 (1) of the Arbitration and Conciliation Act, 1996 is not to be construed as “must” or “shall”, as the word “may” has not been used in the sense of “shall”, the provision is not mandatory. In the light of these principles, we are of the considered view that the expression “may”, used in Rule 14(8) of 1966 Rules would have to be construed as directory and not absolutely mandatory with reference to the facts and circumstances of a given case. Of course, it would be desirable that wherever the presenting officer is a legal practitioner, the delinquent officer should be given the option and may be permitted to engage a legal practitioner if he so opts. 18. Therefore, the act of the enquiry officer in not permitting the delinquent to be defended by a legal practitioner cannot be said to be against the natural justice and further had not violated the cause of delinquent. 19. In a leading decision reported in 1999(3) SCC 679 , Capt. M. Paul Anthony v. Bharat Gold Mines Ltd, the Hon’ble Apex Court has conscientiously held that proceeding in a criminal case and departmental proceeding can go on simultaneously, with certain exceptions that have been carved out to the said basic principles. In another decision reported in 1996 (6) SCC 417 , State of Rajasthan v. B.K. Meena & Ors, it has been held in paragraph-10. “The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceedings is that “the defence of the employee in the criminal case may not be prejudiced.” This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, “advisability” “desirability”, or propriety, as the case may be, of staying the departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case, Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court’s decisions.” (Emphasis supplied) Further, it has been held that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceeding the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and if, established, what sentence should be imposed upon him. It has further been held that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. 20. Therefore, from the aforesaid citations, it became abundantly clear that mere pendency of criminal proceeding will not give a hallmark in staying the departmental proceeding as a course of routine. Delinquent has not been able to show an extraordinary theme which could justify his submission more so, in the background of the fact that the said point has not been canvassed before the learned Central Administrative Tribunal, Patna Bench, Patna of alleged shortcomings during conduction of Departmental proceeding. Further, such pleas of the delinquent did not succeed before this Court in writ petitions filed by him in 2006 and 2007 as is evident from orders of this Court contained in Annexures 6 and 8. 21. Further, such pleas of the delinquent did not succeed before this Court in writ petitions filed by him in 2006 and 2007 as is evident from orders of this Court contained in Annexures 6 and 8. 21. It has been argued on behalf of the petitioner that the points which have been considered by the learned Central Administrative Tribunal, Patna Bench, Patna under its paragraphs-7 and 8 of the impugned judgment is not at all legally appreciable in the background of the fact that the charges, names of witnesses, the documents to be relied upon was served upon the delinquent in accordance with Rule 14 of CCS Rules but as the delinquent failed to put his appearance during continuance of departmental proceeding before the enquiry officer, and failed to challenge the legality thereof coupled with his defence, whatever it may be, will not make those documents deficient for proving charge as those documents stood unchallenged. Not only this, while the delinquent had challenged the charge-sheet and proceeding keeping himself away from the departmental proceedings under CWJC No.9055 of 2006 (Annexuer-6), no such plea was ever raised. Though an opportunity was given by the Hon’ble Court while disposing of the prayer of the delinquent vide order dated 03.04.2007 to participate in the departmental proceeding which was directed to be concluded within four months from production/communication of the order by the, delinquent himself failed to obey. Subsequent filing of CWJC No. 10392 of 2007 (Annexure-8) had also resulted fruitless so far this aspect is concerned. So it was submitted that in the aforesaid background, the reports which were called for by the CBI from the respective heads asking for authentication of the documents concerned and further having the aforesaid unchallenged reports legally brought up on record by examining officials of the CBI is sufficient to show that the documents relating to charge, tendered by the delinquent were fake. Contra, it has been submitted on behalf of delinquent that the learned Central Administrative Tribunal, Patna Bench, Patna had rightly held that original documents have not been produced and so, mere on the basis of the report submitted by the officials of the concerned offices, the department cannot be spared from bringing the original certificates validly on record to show that these are the documents which were submitted by the delinquent. In likewise manner, it has also been submitted that the learned Central Administrative Tribunal, Patna Bench, Patna has rightly held that non bringing of application form submitted by the delinquent appears to be fatal to the interest of department as had it been placed, would have enabled the enquiry officer to see the educational qualification so disclosed therein and would have considered whether it happens to be degree of B.E. (Bachelor of Engineering) or B.Sc. Physics (Honours) as claimed. 22. From the materials available on the record, it is crystal clear that the delinquent on one pretext or other even having been given an opportunity by the Hon’ble Court has failed to turn up before the enquiry officer and therefore knowingly withheld himself to participate during departmental proceedings. As per Sub Rule-20 of Rule-14, in the aforesaid event, ex parte conduction of departmental proceedings will commence. On account of absence of delinquent during conduction of proceeding, the materials so placed happens to be un-controverted and unchallenged. That being the position, now only it has to be seen whether these materials were sufficient to lean against the delinquent. Apart from this the delinquent at an earlier occasion had replied to the Department as is evident from the appellate order, (Annexure-10) wherein he had admitted filing of matriculation certificate (tampered one). In likewise manner, he had also accepted filing of the certificate relating to Bihar College of Engineering, Patna. Though, under paragraph-10 of the counter affidavit he has disowned to have passed Bachelor of Engineering from Bihar College of Engineering and further submission of tampered matriculation certificate. As per Annexure-1, column 1, the delinquent was required to submit original document relating to copy of document which was annexed with application form and the delinquent had not replied that those documents were not furnished by him. So, these happen to be contradictory stand taken by the delinquent on this score. Learned C.A.T., while dealing with the issue under para 7 & 8 of judgment overlooked this aspect and further failed to appreciable that the materials whatever are available on the record did support the charge in the background of mode of its appreciation to the extent of preponderance of probability. 23. Ex parte proceedings will not create the ground of careless handling and approach rather the same scale is required to see absolvement of responsibility. 23. Ex parte proceedings will not create the ground of careless handling and approach rather the same scale is required to see absolvement of responsibility. As such, while forming an opinion, the material so placed should be properly appreciated to the extent which could justify the ultimate conclusion. Side by side, it should also be seen that during conduction of departmental enquiry there should not be violation of natural justice as the departmental enquiry has to be conducted in accordance with rules of natural justice guided by the Article 311 (2) of the Constitution of India which happens to be the back-bone. 24. In a decision reported in (2011) 11 SCC 535 the scope of interference by the High Court in a departmental enquiry has been sketched, and for that it is relevant to quote para-13:- “It is well settled that the High Court by exercising the power of judicial review from the order of the disciplinary authority does not act as a court of appeal and appraise evidence. It interferes with the finding of the enquiry officer only when the finding is found to be perverse.” 25. In the background of aforesaid legal illume, we would not have gone into scrutinizing the judgment of the learned Central Administrative Tribunal, had it been in consonance with the factual aspect and the basic principle that during course of conduction of departmental proceedings charges are to be seen proved by adopting the theory of preponderance of probability. The learned Central Administrative Tribunal, Patna Bench, Patna had failed to appreciate whether the evidence and the documents whatever been brought up on the record by the department satisfy the charges in the background of theory of preponderance of probability and instead thereof embarking upon the pleading of the delinquent which was not at all maintainable in the background of his own laches and negligence by keeping himself away during conduction of departmental proceeding. 26. Consequent thereupon, the order impugned is set aside. Thus, the petition is allowed.