Mahanagar Telephone Nigam ... vs Shri R.P. Doharey
2014 Latest Caselaw 5284 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on : 28.10.2014

+      W.P.(C) 6534/2013, C.M. NO.14223/2013
       MAHANAGAR TELEPHONE NIGAM LIMITED
                                              ..... Petitioner
                       Through : Sh. Vaibhav Kalra, Advocate.

                          Versus

       SHRI R.P. DOHAREY                     ..... Respondent

Through : Sh. M.K. Bhardwaj, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. By these proceedings under Article 226 of the Constitution, Mahanagar Telephone Nigam Limited (MTNL) challenges an order of the Central Administrative Tribunal (CAT) dated 06.03.2013 in O.A. No.3071/2010. By the impugned order, the CAT modified the minor penalty to the extent that the date of its becoming effective was directed to be altered to 31.12.2001, instead of the original date, i.e. 27.09.2004.

2. The brief facts are that the applicant, who at the relevant time was working as officiating Sub-Divisional Engineer (SDE), was charged for major misconduct under Rule 14 of the CCS(CCA) Rules, 1965 on 23.02.1999. After holding an inquiry, a report was furnished

W.P.(C) 6534/2013 Page 1 to the disciplinary authority on 03.10.2001. Since the advice of the Central Vigilance Commission (CVC) had to be secured before imposing any penalty, the matter was referred to that body; the latter, on 19.08.2002, required that de novo proceedings be drawn from the stage of completion of evidence, and the Inquiry Officer had to ask the delinquent/applicant about his explanation. The pre-existing Inquiry Officer refused to conduct the proceedings; ultimately a new Inquiry Officer was appointed on 05.04.2003 by the MTNL. At his instance, the inquiry was completed and the report furnished to the disciplinary authority again - reiterating the respondent/applicant's culpability - on 31.05.2004. The applicant was furnished with a copy of the report. He represented against the findings on 02.09.2004. After considering all his materials, including the representation, the disciplinary authority, on 27.09.2004, imposed a penalty of reduction in one stage of pay scale without cumulative effect. The applicant unsuccessfully appealed against this order; he approached the CAT on an earlier instance but was asked to seek review which he again did unsuccessfully. He thereafter approached the CAT by filing O.A. No.3071/2010.

3. Various contentions were urged before the CAT, including that the charges were not proved; that the procedure adopted was unfair and that the penalty was not appropriate as it was unfair, given the long delay. In its conclusions, especially paras 12 and 13 of the impugned order, the CAT rejected the charge of procedural irregularity or illegality and returned positive finding that the applicant

W.P.(C) 6534/2013 Page 2 had been afforded all opportunity in accordance with the rules. However, in para 14, the CAT recorded the finding that there was inordinate delay in the conduct of the inquiry. Basing itself upon a circular/Office Memorandum dated 04.10.1952, which required expeditious completion of disciplinary proceedings as well as the DOPT circular dated 14.09.1978, the CAT directed modification of the penalty order in the following terms:

"22. In view of the above facts and in the interest of justice, we direct the Respondents to hold that the Applicant was deemed to have imposed with the punishment on 31.12.2001 the currency of punishment was over by 31.12.2002. Consequently all the benefits arising out of such predating of the punishment shall also follow,

23. The Respondents shall therefore, pass appropriate orders in terms of the aforesaid directions within a period of two months from the date of receipt of a copy of this order and the orders granting consequential benefits shall also be passed within one month thereafter. With the above direction, this OA is disposed of. No order as to costs."

4. The MTNL argues that the impugned order is in clear error of law in as much, as, after returning a finding that rules of natural justice had been complied with and there was no illegality in the conduct of the inquiry, the CAT nevertheless proceeded to modify the penalty imposed. Highlighting that, in fact, the assumption that there was a culpable delay justifying the modification of penalty order was wholly unwarranted, learned counsel urged that the inquiry proceedings in fact were completed way back in 2001. The matter had to be reopened because of the directions of the CVC. Even then, the inquiry was completed within two years. The findings of delay, by a straight jacket

W.P.(C) 6534/2013 Page 3 reliance on the Office Memorandum issued by the DOPT - or any other body's circular, in the circumstances, was not warranted.

5. Learned counsel for the applicant urged that this Court should desist from interfering with the impugned order. It was argued that the circumstances in which the delay occurred would not be material, if one takes into account the fact that the conduct of the proceedings took five years in culmination. The imposition of even a minor penalty, in effect, amounted to a major penalty because of the sealed cover procedure followed by the MTNL during the pendency of the proceedings. Not only was the stoppage of increment imposed as a minor penalty, but for the five years period, even the legitimate promotions due to the applicant were withheld. Having regard to these facts, submitted learned counsel, the alteration of the date of effect of the minor penalty was justified.

6. It is evident from the previous narration of facts that the inquiry proceedings were initially completed in 2001; the MTNL was under compulsion to reopen the proceedings on account of directions of the CVC. Even those were complied with and the report of the Inquiry Officer was furnished within two years of such direction. The penalty order was made in 2004 itself. In the light of these facts, the reliance placed by the CAT on the judgment of the Supreme Court reported as M.V. Bijlani v. UOI and Ors. 2006 (5) SCC 88 - which, in turn, had relied upon State of M.P. v. Bani Singh and Anr. 1990 (Suppl.) 1 SCC 738 is inapposite. In M.V. Bijlani (supra), there was a 12 year delay in initiation of disciplinary proceedings. In Bani Singh (supra), the

W.P.(C) 6534/2013 Page 4 initiation was five years after the officer had handed-over the charge of the office or post in which he is said to have committed misconduct. Furthermore, the inquiry proceedings culminated after seven years of the charge. Even the appellate authority took seven years to decide the matter, thus ensuring the entire time taken was almost 20 years. In both these cases, the delay was of more than ten years. In those facts, certainly, the findings of the Court regarding the unfairness of the proceedings were not only justified, but also called for. In the present case, however, considering the de novo proceedings were completed within two years, and in the background of the CAT's findings that there was no unfairness in the conduct of the proceedings, as well the absence of any finding that the charges had not been proved warranting the minor penalty, the direction to alter the date of effect of the penalty by advancing it by 2 years was wholly unjustified.

7. This Court is also unpersuaded by the applicant's argument that unfairness would be writ large if the date of effect of the penalty is left undisturbed. In all cases where the disciplinary proceedings are pending, the fate is unknown and due to the inchoate nature of the ultimate outcome, the sealed cover procedure seeks to protect not only the interest of the employee who might be exonerated but the interest of the employer as well in the eventuality of the employee being visited with penalty, for a misconduct that he was charged with. UOI v. K.V. Jankiraman (1991) 4 SCC 109 has explored all these situations. This Court need not go into the matter, save to reckon that the nature of public employment is such that once the charge of

W.P.(C) 6534/2013 Page 5 misconduct is levelled, sealed cover procedure affords - both protection to the employee, and a guidance to the employer to strike a balance. Such balance having been struck in the present case, imposition of penalty at the culmination of the disciplinary proceedings necessarily follows. The factor of sympathy or compassion in such cases cannot play a role, especially when there is no manifestly unfair delay. In these circumstances, the direction of the CAT quoted above was wholly uncalled for, and is hereby set aside.

8. The writ petition has to succeed and is allowed without any order as to costs.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) OCTOBER 28, 2014 'ajk'

W.P.(C) 6534/2013 Page 6