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2014 DIGILAW 1349 (DEL)

Mahanagar Telephone Nigam Ltd. & Ors. v. Premwati

2014-04-29

DEEPA SHARMA, GITA MITTAL

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Gita Mittal, J. (Oral):-- 1. By the instant writ petition, a challenge is laid to an order dated 22nd August, 2013 passed in OA No. 3583 of 2012 by the Central Administrative Tribunal, Principal Bench, New Delhi whereby the order dated 25th April, 2011 passed by the disciplinary authority awarding penalty of compulsory retirement from service and the order dated 15th March, 2012 of the appellate authority affirming the same have been set aside. The undisputed facts to the extent necessary for the purpose of present consideration are set out hereinafter. 2. Consequent upon her husband’s death, the respondent was appointed as a regular majdoor on 12th January, 2000 on compassionate basis. While serving in the office of the SDE, Nehru Place, New Delhi, she was served with a charge memo dated 12th March, 2010 proposing to take disciplinary action against her under clause 37 of the certified standing order of the Mahanagar Telephone Nigam Limited (MTNL) on the following charges:- “ARTICLE-1 Article of charges levelled against Smt.Premwati, Work Assistant (M.Z.-26458) posted in the office of General Manager (Nehru Place), Mahanagar Telephone Nigam Limited, New Delhi. That aforesaid Smt.Premwati, Work Assistant (M.Z.-26458) during the year 2008-2009, when she was posted as Work Assistant in the office of Sub Divisional Engineer, Nehru Place, remained absent from her duties unauthorizedly from 31.05.2008 to till date without submitting any information or document. By the aforesaid act, Smt. Premwati, Work Assistant (M.Z.-26458), had mis-conducted under section 35(vi) of Mahanagar Telephone Nigam Limited Standing Certified Orders for Group `C’ & `D’ (Non Executives).” 3. In order to substantiate the allegations that the respondent was absenting herself from duties w.e.f. 31st May, 2008 without any information or production of documents, the petitioners relied on letters dated 9th July, 2008; 29th July, 2008; 7th August, 2008; 12th November, 2009 and 31st May, 2008. Except for the letter dated 12th November, 2009 which was addressed to the respondent at her residential address, all other letters were addressed to the respondent’s official address and were served upon her in office itself. This fact by itself belied the allegations of the petitioners that the respondent was absent from duty w.e.f. 31st May, 2008 and has been heavily relied upon by the Tribunal in passing the impugned order. 4. The respondent also denied the charges vide representations dated 15th April, 2010; 30th April, 2010; 26th May, 2010 & 28th July, 2010. This fact by itself belied the allegations of the petitioners that the respondent was absent from duty w.e.f. 31st May, 2008 and has been heavily relied upon by the Tribunal in passing the impugned order. 4. The respondent also denied the charges vide representations dated 15th April, 2010; 30th April, 2010; 26th May, 2010 & 28th July, 2010. She explained that she was fraudulently and wrongly shown absent even though she was present in office and that, one Shri R.P. Maurya, Sub Divisional Engineer (OCB-TDM) did not give her the attendance sheet to mark her attendance. 5. Our attention is drawn to the letter dated 18th June, 2008 addressed by Shri R.P. Maurya, SDE to the respondent wherein it is stated by him that the respondent was wilfully not marking attendance but staying in the switch room. Shri Maurya, thereafter, addressed another letter dated 9th July, 2008 stating that she was absenting herself from duty w.e.f. 31st May, 2008 without information. The letter dated 18th June, 2008 again contradicts the contents of the letter dated 9th July, 2008. 6. The respondent has also submitted that she complained about these actions of her superior who prevented her from marking her attendance by not including her name in the attendance register. Furthermore, the attendance register was produced during the inquiry proceedings and scrutinized by the inquiry officer. The Tribunal has noted that the respondent’s name does not feature in the attendance register. Thus, the plea of the respondent to the effect that not only was she present in the office but was prevented from marking her attendance by the failure of her superiors to include her name in the attendance register is supported by the documentary evidence. 7. The respondent has challenged the inquiry on several other legal issues. It is pointed out that the inquiry initiated and conducted against her was really in the nature of an eye wash and that the same consisted of merely some questions being put to her on the 7th October, 2010 and 22nd November, 2010 without anything more. Our attention is drawn also to the specific request by the respondents to give questions in writing and also seeking copies of the statement which was attributed to her. The respondent had contended that this was not done. Our attention is drawn also to the specific request by the respondents to give questions in writing and also seeking copies of the statement which was attributed to her. The respondent had contended that this was not done. The respondent had duly pointed out the contradictions in the charges as well as the evidence on record which supported her innocence by way of representations dated 10th February, 2011 & 16th March, 2011. It was also pointed out in the letter dated 10th February, 2011 that the attendance sheets in which she had marked her attendance, had also been destroyed by the supervising officer and that she had given representation in this regard but to no avail. In the letter dated 1st February, 2011 addressed to GM (NP), the respondents pointed out that Shri Ishwar Chand Goyal, the SDM (MM) had hidden her written complaint as well as proof thereof and falsely framed charges against her. Despite the above material on record, the inquiry officer has submitted a report dated 22nd January, 2011 holding the charges as proved against the respondents. 8. The respondent’s request to the petitioners by the letter dated 16th March, 2011 addressed to the Executive Director, Khurshid Lal Bhawan, seeking her transfer was also not considered. 9. The Disciplinary Authority accepted the report of the inquiry officer and unfortunately passed the order dated 25th April, 2011 imposing the punishment of compulsory retirement upon the respondent. The respondent assailed this order by way of a formal appeal dated 2nd November, 2011 followed by reminder on 17th January, 2012. The Appellate Authority rejected the appeal by an order dated 15th March, 2012. 10. Given the above narration of facts, the respondent had challenged the action of the order passed by disciplinary and appellate authorities against her by way of an application before the Central Administrative Tribunal inter alia on the ground that there was no evidence in support of the charges and that, on the contrary, the evidence brought on record clearly supported her innocence. 11. The Tribunal has closely scrutinized the record of the inquiry and has extracted the report of the Inquiry Officer wherein it had been noted that the attendance register had been scritunized in which the name of the respondent was not mentioned in the computer. 11. The Tribunal has closely scrutinized the record of the inquiry and has extracted the report of the Inquiry Officer wherein it had been noted that the attendance register had been scritunized in which the name of the respondent was not mentioned in the computer. This statement and evidence were approved by Shri Maurya which was corroborated by the evidence of testimony of Shri Jagmohan Singh. The Tribunal has also extracted the respondent’s statement to the effect that she was coming to office but was not given the attendance register as well as the complaint she had made in this regard. 12. We have noted above the petitioners’ reliance on the letters dated 9th July, 2008 and 18th June, 2008 (purporting to be reminders to the respondent to join service) which letters were served upon the respondent while she was in office. The Tribunal had thereupon concluded that there was no evidence to support the charges. Nothing has been pointed out to us which would enable us to differ with the view taken by the Tribunal so far as this aspect is concerned. 13. We may note that the Tribunal has considered other legal issues as well which would go to the root of the exercise of jurisdiction by the inquiry officer. The respondent was deprived of an opportunity of effectively cross-examining the prosecution witnesses as their statements in the examination-in-chief were not provided to her. Reliance is placed on the pronouncement reported at 1973 (1) SLR 329 (Calcutta) Collector of Customs v. Mohammad Mabibul Haque, the Tribunal has placed reliance on the principle of natural justice. We agree with the finding of the Tribunal that the inquiry was conducted in violation of the principles of natural justice. 14. Our attention has also been drawn to Clause 38 of the certified Standing Orders of the MTNL which provides the right of appeal against the order of the Disciplinary Authority and mandates that the Appellate Authority shall also abide by the principles of natural justice. The Appellate Authority is also required to consider as to whether the punishment was proportionate to the gravity of the charges. The Tribunal has agreed with the respondent’s objection that the requirement of Rule 38 has not been met as the Appellate Authority has failed to apply its mind to the material on record in rejecting the respondent’s challenge to the order of the disciplinary authority. The Tribunal has agreed with the respondent’s objection that the requirement of Rule 38 has not been met as the Appellate Authority has failed to apply its mind to the material on record in rejecting the respondent’s challenge to the order of the disciplinary authority. 15. Reliance was also placed on the principles laid down by the Supreme Court in AIR 1996 SC 484 B.C. Chaturvedi v. Union of India & 1996 (3) SCC 364 State Bank of Patiala v. S.K. Sharma wherein the parameters of judicial review into disciplinary proceedings have been laid down. Our jurisdiction has to lie within the four corners of the parameters laid down by the Supreme Court. 16. We find that Clauses 35, 36, 37 (E) (i) & (ii) of the certified Standing Orders of the MTNL deal with powers conferred on the Disciplinary Authority. Under clause 37 (E)(ii)(3) a duty is cast upon the Disciplinary Authority to give findings on each article of charge before coming to the conclusion that a penalty specified in Rule 36 should be imposed on the workman. The workman is entitled to an opportunity of making a representation. In the instant case, no such opportunity was granted. Yet another violation of principles of natural justice is the manner in which the respondent was harassed and denied permission to enter the premises where the disciplinary proceedings were conducted. 17. In this background, nothing has been pointed out to us to take a view that the findings of the Tribunal so far as the proceedings in the disciplinary inquiry as well as the orders of the Disciplinary Authority and the Appellate Authority are required to be disturbed. We find that the impugned order is in consonance with the requirement of law and well settled principles of natural justice. 18. The respondent is represented by counsel and is present in court. It is on record that she has not been permitted to perform duties since the 31st May, 2008 and has not been paid salary ever since. The respondent was placed at the lowest rank in the hierarchy of posts within the petitioners organisation. She was given appointment on compassionate basis upon the demise of her husband, was an employee of the MTNL who died in harness. The respondent was placed at the lowest rank in the hierarchy of posts within the petitioners organisation. She was given appointment on compassionate basis upon the demise of her husband, was an employee of the MTNL who died in harness. The above narration would show the harassment to which this lady has been subjected to while in service, especially the indignity and humiliation to which she has been exposed. The action of her superiors in not even mentioning her name in the attendance sheet and not permitting her to mark her attendance must have caused humiliation and indignation of the worst kind. 19. We have referred above the several representations made by the respondent. The degradation which the respondent underwent finds expression in her ultimate request for a transfer out of the division which was also not considered. Not only was ignominy heaped on her but she was subjected to disciplinary proceedings and has been compelled to take legal action before the Tribunal. Despite an order in her favour, she has still not been able to get restoration of her job. 20. The respondent is present in court and has submitted that she is struggling to eke out bare survival. She has single handedly, deprived of her source of income, raised her three daughters, one of whom was married in extreme difficulty in the year 2011. The respondent submits that her other two daughters are aged 24 years and 22 years and she has not been able to arrange for their marriages because of lack of any financial resources for the purpose. 21. The Tribunal had accepted the respondent’s challenge by the order which was passed as back as on 22nd August, 2013 and directed the petitioners herein to reinstate the respondent in service forthwith with all consequential benefits. A period of two months was given by the Tribunal from the date of receipt of copy of the order to comply with the directions. A period of eight months has passed since the passing of the order in the respondent’s favour. Even if we were to deduct the period of two months given for compliance of the order, still six months have passed since the order was passed, without any relief having been given to the respondent. A period of eight months has passed since the passing of the order in the respondent’s favour. Even if we were to deduct the period of two months given for compliance of the order, still six months have passed since the order was passed, without any relief having been given to the respondent. Learned counsel for the respondent informs us that in these circumstances, the respondent has been compelled to file an application seeking execution of the order. We must remember that apart from physical and financial harassment caused to the respondent, contesting litigation does not come free. 22. The instant writ petition was completely unwarranted. Valuable judicial time has also been wasted in its consideration. We are of the view that the petitioners are required to be burdened with heavy costs. 23. This writ petition is, therefore, dismissed with costs which are quantified at Rs. 50,000/-. The costs shall be paid to the respondent within two weeks. 24. The petitioners are present in court and are represented. The present order has been dictated in open court. In this background, the petitioners are not required to await copy of the order to comply with the directions. 25. The petitioners shall ensure compliance with the directions made in the order dated 22nd August, 2013 by the Tribunal. The orders in terms of the direction by the Tribunal shall also be passed within a period of two weeks from today and forthwith communicated to the respondent. 26. The respondents shall serve detailed computation of the payments admissible to the respondent within two weeks. Payments of the amount payable to the respondent in terms of the orders of the Tribunal shall be effected within four weeks thereafter. This writ petition is dismissed in the above terms. Dasti.