Mahanagar Telephone Nigam Ltd. & ... vs Premwati
2014 Latest Caselaw 2122 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

          +      W.P.(C) No.7150/2013 & CM No.15395/2013

                                    Date of Decision: 29th April, 2014

     MAHANAGAR TELEPHONE NIGAM LTD. & ORS.... Petitioners
                Through : Mr.R.V. Sinha, Adv. with Mr.R.N.
                          Singh, Adv.

                          versus

     PREMWATI                                      ..... Respondent

Through : Mr.Amit Kumar, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA

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 12 th

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. 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 7 th

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. 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. 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 Vs.

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.

15. Reliance was also placed on the principles laid down by the

Supreme Court in AIR 1996 SC 484 B.C. Chaturvedi Vs. Union of

India & 1996 (3) SCC 364 State Bank of Patiala Vs. 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

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.

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.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE APRIL 29, 2014 aa