Bombay High Court
Mr. Rajendrakumar Rajaram Gawde vs Union Of India And Ors on 6 July, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 209 OF 2015
Mr. Rajendrakumar Rajaram Gawde,
Age : 56 years, Occ : Nil
Ex-planner Grade I, of Telecom Factory,
Bharat Sanchar Nigam Ltd., Deonar
Mumbai-400 088.
R/o. D-63, Sarita, Vishwakarma Nagar,
Mulund (West), Mumbai-400 080. .....Petitioner
Orig. Applicant
: V E R S U S :
1. Union of India
Through, the Chief General Manager,
Telecom Factory, Bharat Sanchar Nigam
Ltd., Deonar, Mumbai-88.
2. The Deputy General Manager (MM)
Telecom Factory, Bharat Sanchar
Nigam Ltd., Deonar, Mumbai-400 088.
3. Sr. Engineer (IS), Disciplinary Authority,
Telecom Factory, Bharat Sanchar Nigam,
Ltd., Deonar, Mumbai-088. ....Respondents
--------
Mr. J.S. Kini, i/by. Mr. Suresh Dubey, Advocate for the
petitioner.
Mr. A.S. Rao, Advocate for respondents.
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CORAM :- SMT. V.K. TAHILRAMANI, &
SANDEEP K. SHINDE, JJ.
DATE :- 6 th JULY, 2017.
JUDGMENT (PER :- SANDEEP K. SHINDE, J) :-
1. This petition is preferred against the order dated
3rd September, 2014 passed by the Central Administrative
Tribunal, (CAT) Bombay Bench in O.A. No. 431 of 2010
whereby the Learned Member refused to interfere with the
order of the Disciplinary Authority imposing penalty of
compulsory retirement and order dated 22nd March, 2010
passed by the Appellate Authority and the order dated 4th
May, 2010 passed by the Revisional Authority confirming
the order passed by both the lower authorities.
2. The petitioner joined the services in December,
1982 as a Planner, Grade-II. Three chargesheets were
issued, first on 30th April, 1997, second 13th August, 1997
and third on, 13th October, 1998. Pursuant to the first
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chargesheet, enquiry was held and his services were
terminated by imposing punishment of removal from service
on 22nd July, 1999. In Appeal, the Appellate Authority
converted the termination into "compulsory retirement".
Petitioner raised industrial dispute against the punishment
of "compulsory retirement" under the provisions of the
Industrial Disputes Act, 1947, the petitioner being a
"Workman" under Section 2(s) of the Industrial Disputes
Act, 1947. That after the conciliation proceedings and the
failure report of conciliation, the Government of India
referred the dispute to Central Government Industrial
Tribunal at Mumbai ("CGIT" for short). The Tribunal by
Award dated 6th July, 2007 allowed the Reference and
directed the respondents to take the applicant back in
service as a fresh hand in different department.
3. The respondents being aggrieved by the Award
dated 6th July, 2017 filed Writ Petition No. 7584 of 2009
before this High Court, which is yet pending.
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4. That in pursuance to the Award passed by the
CGIT, the petitioner was allowed to resume at Mumbai.
5. It is the petitioner's case, that after his
resumption, the third chargesheet dated 13th October, 1998
was reopened and after holding enquiry, punishment of
compulsory retirement was inflicted on him vide order dated
28th December, 2009. The appeal against the order dated
28th December, 2009 met with the same fate. He preferred
revision but the said Authority confirmed the orders passed
by the two Authorities below it.
6. The petitioner, thus approached the CAT against
the order dated 28th December, 2009 imposing punishment
of compulsory retirement, as well as, the order passed by the
authority in revision.
7. The CAT dismissed the said O.A. vide order dated
9th September, 2014 against which this petition under
Articles 226 and 227 of the Constitution of India is preferred.
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8. Heard Mr. Kini, the Learned Advocate appearing
for the petitioner and Mr. Rao, Learned Advocate for
respondents no.1 to 3.
9. Mr. Kini, would urge that,
(i) since the chargesheet was issued on 13 th
October, 1998, the respondents were legally
precluded to reopen the said chargesheet after
the lapse of 11 years period, as it became stale
and incapable of being enquired into,
(ii) the enquiry report was without any
reasoning, on issue of 11 years delay and more
so, the reasons supplied for justifying the delay of
11 years were devoid of any merits,
(iii) that in the year 1998 when chargesheet was
issued to the petitioner, Certified Standing
Orders were applicable as were in force,
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however, in the year 2000 Bharat Sanchar
Nigam took over the factory, namely Telecom
Factory and the Certified Standing Orders of the
Telecom Factory automatically ceased to apply to
Bharat Sanchar Nigam Limited and there could
not be an automatic continuation of Certified
Standing Orders of Telecom Factory to BSNL. As
such, the Tribunal has erred in recording the
finding that, the services of the petitioner were
governed by the Certified Standing Orders,
(iv) that there are material contradictions in the
evidence of the respondent's witnesses, Mr. B.
Sahu and Mr. F. Ram and in view of it, the
Enquiry Officer ought to have discarded the
evidence of these witnesses, but the Tribunal has
overlooked this fact.
10. Mr. Rao, has supported the findings recorded by
the Tribunal.
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11. That in October, 1998 the petitioner was the
employee of Post and Telegraph Department and his services
were governed by the provisions of the Certified Standing
Orders. It appears from the record that, the petitioner filed a
reply to the chargesheet on 17th October, 1998. It is obvious
from the record that the disciplinary proceedings did not
proceed further for the reason that in the previous
disciplinary proceedings, (pursuant to first chargesheet), the
applicant was found guilty and on the charge of misconduct,
he was removed from service vide order dated 22 nd July,
1999. He was reinstated by order of CGIT from 24th March,
2008. It is therefore obvious that, when enquiry was
initiated in 1998, it remained in abeyance on account of
removal of applicant from service until 2007/2008 till he
was reinstated by the order of CGIT. However, by this time,
the establishment of Post and Telegraph was merged with
BSNL in the year 2000. As such, when the enquiry again
commenced in 2008-09, it was not a de-novo enquiry and/or
fresh enquiry but an enquiry which had commenced in 1998.
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However, it stood suspended as the petitioner was
terminated and not in service from July, 1999 till July,
2007. It appears from the record, that petitioner was
chargesheeted for violation of Rule 21 of the Central Civil
Services (Conduct) Rules, 1964. In statement of imputation,
it is stated that the applicant committed an act of serious
misconduct contrary to Rule 31(j) and 31(a) of the Certified
Standing Orders read with Rule 3(1)(II) of the Central Civil
Services (Conduct) Rules, 1964. In the given set of facts, we
do not find any error is committed by the Tribunal in holding
that the services of the petitioner were subject to the
provisions of Central Civil Services (Conduct) Rules, 1964.
We therefore hold that, the enquiry held by the disciplinary
authority and the punishment imposed by the Appellate and
the Revisional Authority suffers no infirmity in law.
12. The next contention, is about the delay in holding
the enquiry and therefore the charges levelled against him
were incapable of being enquired into. Admittedly, the
petitioner was not in service since July, 1999 till he was
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reinstated by the order of CGIT. It appears that the
authorities had taken prompt steps to complete the enquiry
(in respect of chargesheet dated 13th October, 1998) which
culminated, into enquiry report dated 12th October, 2009.
This being so, it cannot be said that the disciplinary
authorities were wrong in proceeding with the enquiry after
11 years from the laying of the chargesheet. Thus, we find
no merit in the contention of the petitioner that the delay
itself would vitiate the enquiry. On this issue, the finding
recorded by the Tribunal cannot be faulted with.
13. Mr. Kini has taken us through the evidence of the
two witnesses and pointed out some discrepancies and
submitted that the evidence of these two witnesses was not
dependable. We do not find any merit in this contention, in as
much as, the disciplinary authorities are required to
appreciate the evidence on the preponderance of the
probabilities before coming to the conclusion that the charge
levelled is proved against the delinquent.
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14. That even otherwise, the scope of a judicial review
of the orders passed in disciplinary proceedings is extremely
narrow. No exceptional circumstances were pointed out
warranting our interference. In the result, the petition
deserves no consideration and the same is dismissed. No
order as to costs.
(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)
