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2018 DIGILAW 822 (GAU)

Ardhendu Shekhar Deb v. Union of India

2018-05-17

AJIT SINGH, SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. A. Dasgupta, learned senior counsel assisted by Ms. B. Das, learned counsel for the petitioner. We have also heard Mr. D. Bagchi, learned Standing Counsel, Bharat Sanchar Nigam Ltd. (BSNL) representing the respondents. 2. In this writ petition, the judgment and order dated 27/08/2014 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench in OA No. 266/2010, rejecting the application filed by the petitioner against the order of penalty imposed upon him, has been put under challenge. 3. The facts of the case, briefly stated, are that the Department of Telecommunication, Government of India, had undertaken the work of trenching and laying of Optical Fiber cable (OFC) in the section Imphal-Moreh falling in the remote corner of the State of Manipur. The work for the entire stretch including sub-sections 10 and 11 of the route was carried out under the supervision and control of the Divisional Engineer OFC Project Guwahati. The contractor had submitted 1st R.A. bill for an amount of Rs. 11,76,271/-. In order to verify the claim of the contractor, a team of three Officials consisting of the Director OFC, the Divisional Engineer OFC and the writ petitioner had visited Imphal sometime in the year 1996, so as to carry out sample tests of the trial pits. On completion of the survey, the petitioner had signed the bill by recommending a deduction of 5% from the total amount. The bill was also passed by the Director, OFC and DE, OFC. Accordingly, a sum of Rs. 11,17,457/- was paid to the contractor against the 1st RA bill submitted against Sub-Section-10 after deducting a sum of Rs. 58,814/-. 4. In the year 2000, Bharat Sanchar Nigam Limited (BSNL) was incorporated as a Government of India Enterprise and the employees of erstwhile Department of Telecommunications including the petitioner were all absorbed under the BSNL. While serving under the BSNL, a Memorandum of Charge dated 01/04/2005 was served upon the petitioner containing the following Article of Charges:- "Annexure-I Article of Charge framed against Shri A.S. Deb, Sub-Divisional Engineer, Optical Fibre Cable (OFC)/Survey, BSNL, Guwahati. While serving under the BSNL, a Memorandum of Charge dated 01/04/2005 was served upon the petitioner containing the following Article of Charges:- "Annexure-I Article of Charge framed against Shri A.S. Deb, Sub-Divisional Engineer, Optical Fibre Cable (OFC)/Survey, BSNL, Guwahati. That, Sri A.S. Deb, while working as Sub-Divisional Engineer, OFC, Survey, Department of Telecom, (now BSNL) Guwahati during the period 1996-97 failed to maintain absolute integrity and devotion to duty and committed gross misconduct in as much as he had conducted test check of the OFC trenching work in sub-section 10 of Imphal-Moreh route along with S/Sri Ram Prasad, the then DE/OFC, Guwahati and M.N. Khan, the then Director, OFC, Guwahati but failed to detect the non-availability of RCC works/protections, rocky soil in the areas during their checking. Said Sri A.S. Deb along with Sri Ram Prasad, DE and Sri M.N. Khan, Director have stated in their report that no rock was observed all along the route even they recommended for deduction of 5% only from the total bill amount for depth difference they had detected. The said Sri A.S. Deb, SDE, then signed the bill dtd. 05.1.1996 for Rs. 11,76,271.00 and submitted the same to Sri Ram Prasad, DE who had passed the bill after deducting only 5% which was not appropriate with their findings during the test checking. After deducting 5% the remaining amount of Rs. 11,17,457.00 was paid to the contractor Late B.C. Agarwal whereas no RCC protection and no rocky soil was found in the areas for which the said Sri A.S. Deb, SEDE had submitted the bill. Sri A.S. Deb, SDE, Survey also prepared the third RA bill dtd 27.12.1996 for Rs. 1,15,052.00 in respect of Sub-Section 11 of Imphal-Moreh route wherein the nature of soil and RCC protection shown by said Sri A.S. Deb were found false. The bill was passed by Sri Ram Prasad DE and payment was made to the contractor, Late B.C. Agarwal. The aforesaid acts of omissions and commissions on the part of Sri A.S. Deb, SDE/Survey constitute gross misconduct and acted in a manner of unbecoming a public servant, thereby contravening Rule No. 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964." 5. Upon receipt of the Memorandum of Charges, the petitioner had submitted his reply denying the allegation brought against him. The aforesaid acts of omissions and commissions on the part of Sri A.S. Deb, SDE/Survey constitute gross misconduct and acted in a manner of unbecoming a public servant, thereby contravening Rule No. 3(1)(i)(ii) & (iii) of CCS Conduct Rules, 1964." 5. Upon receipt of the Memorandum of Charges, the petitioner had submitted his reply denying the allegation brought against him. Not being satisfied with the reply, the authorities had decided to conduct a Departmental Enquiry against the petitioner and accordingly, Shri B.C. Kakaty, D.E. (retired) Office of the Chief General Manager, N.E. Task Force, Guwahati, was appointed as the Enquiry Officer. The Enquiry Officer had submitted his report dated 25/06/2007 opining that the charges brought against the petitioner were not proved. Notwithstanding the said finding recorded by the Enquiry Officer, the Disciplinary Authority had issued a Memorandum dated 07/04/2008 indicating its decision to disagree with the findings of the Enquiry Officer, thereby holding that the charges brought against the petitioner were proved. Accordingly, the petitioner was granted 15 days time to make a representation, if so advised. 6. On 22/01/2008, the petitioner had submitted his representation contesting the observations made by the Disciplinary Authority disagreeing with the Enquiry Report and holding the charges as proved. However, by the order dated 28/03/2009, the Disciplinary Authority had rejected the contentions of the petitioner and imposed the penalty of reduction by one stage in the time scale of pay for a period of 2 (two) years upon him. In the said order it was also provided that the petitioner would not earn increments of pay during that period and on expiry of the period of two years, the reduction would not have the effect of postponing his future increments. 7. Aggrieved by the order dated 28/03/2009, the petitioner had preferred an appeal before the Appellate Authority i.e. the Director, HRD, BSNL, which was disposed off by the order dated 06/08/2010, whereby the period of penalty imposed by the Disciplinary Authority of Reduction by one stage in the time scale of Pay for a period of two years was brought down to one year. 8. Assailing the orders dated 28/03/2009 and 06/08/2010 passed by the appellate authority, the petitioner had preferred OA No. 266/2010 before the learned Central Administrative Tribunal, which was dismissed by the impugned judgment and order dated 16/05/2012. Hence, this writ petition. 9. 8. Assailing the orders dated 28/03/2009 and 06/08/2010 passed by the appellate authority, the petitioner had preferred OA No. 266/2010 before the learned Central Administrative Tribunal, which was dismissed by the impugned judgment and order dated 16/05/2012. Hence, this writ petition. 9. Although the order of the learned Tribunal has been assailed on numerous grounds taken in the petition, yet, during the course of argument, Mr. Dasgupta, has confined his submissions primarily to the manner in which the Disciplinary Authority had recorded its disagreement with the findings of the Enquiry Officer without giving proper opportunity of being heard to the petitioner. The learned senior counsel has argued that it was incumbent upon the Disciplinary Authority to record a tentative finding on the point of disagreement and hear the petitioner before taking a final decision in the matter. But in the present case, submits Mr. Dasgupta, the Authority had already decided to disagree with the Enquiry Report which view had been expressed in the Memorandum dated 07/04/2008. By referring to the decision of the Supreme Court rendered in the case of Punjab National Bank and others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 , Mr. Dasgupta submits that recording of its own findings by the Disciplinary Authority holding that the charges were proved without affording an opportunity to the delinquent official would be in utter violation of the Principles of Natural Justice and hence, unsustainable in the eye of law. 10. It is also the submission of Mr. Dasgupta that the charges brought against the petitioner are completely baseless and unreasonable inasmuch as the petitioner was merely a signatory to the bill which was prepared by the Project Engineer and was signed by his superior authorities including the Director OFC. According to Mr. Dasgupta, based on a sample checking of the area it was not possible for the petitioner to find out whether the entire area did consist any rocky soil or not and the same was a matter for the Project Engineer to ascertain based on the field condition. Mr. Dasgupta has also produced a copy of the judgment and order passed by the learned Special Judge, CBI, Assam, Additional Court No. 1 in Special Case No. 5/2006 (CBI Vs. Mr. Dasgupta has also produced a copy of the judgment and order passed by the learned Special Judge, CBI, Assam, Additional Court No. 1 in Special Case No. 5/2006 (CBI Vs. M.L. Sharma and others) to contend that the disciplinary proceeding against the petitioner was initiated on the recommendation of the CBI but the petitioner has been acquitted in the criminal case on the same charge, which could not be proved against him. 11. Mr. D. Bagchi, learned Departmental Counsel, on the other hand, contends that the petitioner having failed to point out that the contractor had submitted false bill pertaining to rocky soil even after conducting a survey whereby it was found that there was no rocky soil in the entire stretch of the sub-section, was clearly guilty of utter negligence which had led to substantial financial loss to the department. Under the circumstances, the order of penalty was wholly justified and did not call for any interference by this Court. 12. We have considered the submissions made by the learned counsel for the parties and have also perused the materials available on record. 13. It appears from the Memorandum dated 07/01/2008 that the Disciplinary Authority had disagreed with the findings of the Enquiry Officer on the grounds that the Charged Officer had himself recorded after the survey that the condition of the soil was soft and hard only. Rocky soil was not observed all along the route length of sub-section and therefore, he ought not to have passed the 1st RA bill with a recommendation of only 5% deduction rather than deduction of the entire amount raised on account rocky soil. Secondly, the CO had prepared and processed the 3rd RA bill of Sub-section 11 for Rs. 1,15,052/- without taking due care to verify the nature of soil. In the said memorandum it has further been observed that on account of omissions and commissions on the part of Officers from the level of JTO to the Director including the CO excess payment had been made to the contractor. 14. In his reply dated 22/01/2008 the petitioner had mentioned that in the note sheet it was mentioned that in some portion rock was observed. 14. In his reply dated 22/01/2008 the petitioner had mentioned that in the note sheet it was mentioned that in some portion rock was observed. He had also stated that he did not prepare the bills nor had he signed the Measurement Books and the instruction to deduct 5% from the bill was the outcome of the discussions held amongst the team of Officers wherein the petitioner was the junior most. The petitioner had further stated that their observation regarding non-existence of any rock soil was on the basis of sample test and was hypothetical in nature. It had also been stated that the bill for Sub-section 11 was prepared by the JTO OFC(P) and the note sheet of the file was not provided to him. 15. The points raised by the petitioner in his reply dated 22/01/2008 were significant enough to invite a proper consideration by the Disciplinary Authority before a final decision to reverse the finding of the Enquiry Officer was taken. However, from a perusal of the order dated 28/03/2009 we find that none of those points have been dealt with by the Disciplinary Authority. The only point that has been noted in the said order is that the CO could not refute the charges nor could he bring up any new information, which in our considered opinion, was factually incorrect. 16. The Disciplinary Authority was also of the view that save and except stating that the decision of 5% deduction was based on the discussions held with the senior officers, no other explanation was furnished by the CO. What would be significant to note here-in that as regards the question of the department having suffered financial losses, the Disciplinary Authority did not record any independent finding but had merely relied upon the Enquiry Report dated 25/06/2007, with which, it had disagreed. 17. A careful reading of the order dated 28/03/2009 leaves no room for doubt that the Disciplinary Authority had firmly made up its mind to disagree with the findings of the Enquiry Report and to hold that the charges brought against the CO were proved even before issuing any notice to the petitioner enabling him to submit his representation. It appears that the Disciplinary Authority in this case had acted with a predetermined mind-set which was dispensed only in one direction, which was to hold that the petitioner was guilty of the misconduct. It appears that the Disciplinary Authority in this case had acted with a predetermined mind-set which was dispensed only in one direction, which was to hold that the petitioner was guilty of the misconduct. As a result of such predisposition of the Disciplinary Authority, the charged officer did not get an opportunity to put forward his case and persuade the Authority to take a view that was favourable to him before a final decision was taken in the matter. In other words, the present is a clear case where a post decisional notice had been served upon the petitioner leaving the charged officer with no opportunity to protect his interest in the matter. As such, the Disciplinary Authority has acted in violation of the principles of natural justice in reversing the decision of the Enquiry Officer. It is, therefore, apparent that the memorandum dated 07/01/2008 was nothing but a mere formality carried out with a view to impose penalty upon charged officer. 18. In the case of Kunj Behari Misra (supra), while dealing with a case of similar nature, the Supreme Court had observed that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the Enquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, would require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 19. Following the decision in the case of Kunj Behari Misra (supra) the Supreme Court has further held in the case of Yoginath D. Bagde vs. State of Maharashtra reported in (1999) 7 SCC 739 that the requirement of giving opportunity of hearing to the charged employee before reversing the finding of the Enquiry Officer is in consonance with Article 311(2) of the Constitution and has to be regarded as a constitutional right. In that case the final decision to disagree with the Enquiry Officer was already taken before issuing the show cause notice. Interfering with the order of penalty, the Supreme Court had held that post decisional hearing in such matter was of no avail. 20. Taking note of the categorical submission of the learned senior counsel appearing for the petitioner that his client was not involved in the preparation of the bill but had merely signed the same as per the decision taken by the three member committee led by his superior officers, we made an enquiry with the learned departmental counsel as to whether the other concerned officials including the Project Engineer, who had prepared the bill had been held guilty of misconduct in this case. By the order dated 15/05/2018, we had also directed the Law Officer of the BSNL Task Force, North East Region to remain personally present along with the relevant records. Although the Law Officer is present before this court, yet, he could not answer our queries as to whether any departmental proceeding had been initiated against the other officials and if done so, the results thereof. 21. As noted above, the penalty imposed upon the petitioner in this case was based on an order of the Disciplinary Authority disagreeing with the findings of the Enquiry Officer without giving an opportunity of hearing to the petitioner. As such, having regard to the ratio laid down in the decisions of the Hon'ble Supreme Court in the cases of Kunj Behari Misra (supra) and Yoginath D. Bagde (supra) we are of the un-hesitant opinion that the impugned order dated 28/03/2008 as well as the appellate order dated 06/08/2010 are unsustainable in the eye of law. 22. In view of what has been held above, it would not be necessary for this court to deal with the other grounds urged by the petitioner. For the reasons stated above, we set aside the orders dated 28/03/2008 and 06/08/2010. The judgment and order dated 27/08/2014 passed by the learned Central Administrative Tribunal(CAT) also stands interfered with. 23. Before parting with the record, we wish to mention here-in that ordinarily, in a matter of this nature, the department would be given the liberty to proceed afresh after complying with the principles of natural justice and other procedural requirements. The judgment and order dated 27/08/2014 passed by the learned Central Administrative Tribunal(CAT) also stands interfered with. 23. Before parting with the record, we wish to mention here-in that ordinarily, in a matter of this nature, the department would be given the liberty to proceed afresh after complying with the principles of natural justice and other procedural requirements. But in this case, the incident of alleged misconduct relates to the year 1996 and we are informed that the petitioner has already retired from service on attaining the age of superannuation. We have also noted that in the absence of any evidence against him, the petitioner has been honourably acquitted in the criminal proceeding. Under the circumstances, we are not inclined to grant liberty to the department to conduct de novo proceeding against the petitioner in this case. The Writ Petition Stands allowed. There will be no order as to costs.