Mahanagar Telephone Nigam Ltd. ... vs Premwati
2016 Latest Caselaw 4746 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision : 22nd July, 2016

       REVIEW PET. NO.271/2014 & CM No. 10609/2015 in
+               W.P.(C) 7150/2013

       MAHANAGAR TELEPHONE NIGAM
       LTD. AND ORS.                ..... Petitioners
                     Through: Ms. Jyoti Singh, Sr. Adv.
                              Mr. Vaibhav Kalra, Adv.

                               versus

       PREMWATI                              ..... Respondent
                               Through:      Respondent in person.
                                             Ms. Rekha Palli, Sr. Adv. as
                                             amicus curiae with Ms.
                                             Punam Singh and Ms. Ankita
                                             Patnaik, Advs.
       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE DEEPA SHARMA

                           JUDGMENT (ORAL)

GITA MITTAL, J.

REVIEW PET. NO.271/2014 & CM No. 10609/2015

1. We have heard learned counsel for the parties on this petition. The respondent is present in person. The counsel appointed by her was not appearing in the matter. In order to obviate any prejudice to the respondent, by an order dated 13th of May 2016, we had appointed Ms. Rekha Palli, learned Senior Counsel as amicus curiae on her behalf, who is present in court.

2. We have heard Ms. Jyoti Singh, learned Senior Counsel for the petitioners as well as Ms. Rekha Palli, learned Senior Counsel appearing as amicus curiae for the respondent, on this review petition. The petitioners have sought review of our order dated 29 th of April 2014 dismissing the writ petition of the petitioners whereby a challenge was laid to the order dated 22nd August, 2013 passed by the Central Administrative Tribunal, Principal Bench, New Delhi accepting O.A.No.3583/2012. As a result, the tribunal had set aside the order dated 25th April, 2011 passed by the disciplinary authority awarding penalty of compulsory retirement of the respondent Premwati from service as well as the order dated 15th of March 2012 of the appellate authority affirming the same.

3. The undisputed facts giving rise to the present petition are that the husband of the respondent was an employee of the Mahanagar Telephone Nigam Ltd. ('MTNL' hereinafter). Consequent upon his death, the respondent was appointed as a regular majdoor on 12th January, 2000 on compassionate basis. Inter alia on grounds of her unauthorized and unexplained absence from duties, 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 MTNL. In order to substantiate the charge against her, the MTNL had relied on letters dated 9th July, 2008; 29th July, 2008; 7th August, 2008 and 12th November, 2009 (noted in para 3 of our order dated 29th April, 2014) which had been addressed to the respondent. Except the letter dated 12th November, 2009 which was addressed to the respondent at her residential address, the other letters appear to be addressed at her official address.

4. It is urged that while considering the matter on merits on the 22nd August 2013, the learned tribunal had sought production of the original records of the corporation with regard to the respondent. This record is stated to have been produced and retained by the Tribunal while reserving the judgment in the matter.

5. By the final judgment dated 22nd August, 2013, the Tribunal accepted the challenge by the respondent to the disciplinary proceedings primarily on the ground that the above noted letters bore the official address of the respondent. Therefore, the Tribunal refused to believe that the respondent was absent from service, for the reason that the very service of these letters at the office would show that she was physically present there.

We were persuaded to reject the MTNL's writ petition by our order dated 29th April, 2014 challenging the order of the tribunal for the same reason.

6. The review petitioner, however, points out that the Tribunal has fallen into an error in noting that the respondent was served with the letters at the office. It is submitted that when the original records were scrutinized in the MTNL upon its return from the Tribunal, it is revealed that, the above letters, though bear the official address, but they have actually been sent to Premwati, the respondent herein, at her residence by registered speed post. It is submitted that the original records actually contained the original receipts of the dispatch of these letters.

It is submitted that this court also accepted the very finding returned by the tribunal and therefore, the order dated 29th April, 2014 suffers from an error apparent on the face of the record.

7. It is to be noted that the primary ground for acceptance of the respondent's case by the Tribunal was the factum of service of the above letters which were relied upon by the MTNL to substantiate its charge that the respondent was absent despite notice. Therefore, the above record and the submissions in the review petition have to be placed before the Tribunal.

8. So far as the other ground with regard to opportunity to participate in the inquiry is concerned, Ms. Jyoti Singh, learned Senior Counsel for the petitioner points out that the same is also not supported by the record of the disciplinary proceedings. Our attention is drawn to the manner in which the respondent conducted herself in the proceedings on the 7th of October 2010 and 22nd of November 2010. In answer to question no.10 put to her on the 7 th of October 2010, the respondent demanded the enquiry officer to send the question in writing to her home by post to enable her to answer his questions. She was similarly obstructive and abrasive in other answers given by her.

Learned senior counsel would contend that full and fair opportunity to defend the inquiry was actually afforded to the respondent and in fact the respondent had every opportunity of effectively cross-examining the witnesses in accordance with the certified standing orders of the MTNL. It is submitted that the Tribunal has overlooked these proceeds.

9. It is noted that this record was not available before us when we passed the order dated 29th April, 2014.

10. We are informed that in compliance with the orders passed by this court on 13th February, 2015, the respondent was permitted to

resume her services. However, she has continued to remain erratic in reporting for duty. The petitioners have placed before us a tabulation for the period between February, 2015 and April, 2016 wherein, out of the total of 336 working days, the respondent has remained present only for 74 days and has absented herself on 262 days. Even on the days when she was present, the respondent failed to render full working day of service. The respondent, who is present in court, vehemently disputes this position.

We may note that so far as the conduct of the respondent after joining service was concerned, we had given opportunity to the MTNL to take action against her in accordance with law.

11. The petitioner has informed us that the respondent has failed to complete the requirements which include submission of a PAN card to enable them to transfer her salary by RTGS mode, as permitted by us. It is open to the respondent to give a copy of her PAN card to the petitioners to enable them to transfer the amount as may be due and payable by the RTGS mode. If she does not do so, it shall be at her own peril.

12. In view of the above, we are satisfied that our order dated 29th April, 2014 suffers from an error apparent on the face of the record and merits review and recall.

13. Ms. Rekha Palli, learned Senior Counsel appearing as amicus curiae for the respondent submits that the Central Administrative Tribunal has actually returned findings of fact and the petitioners are entitled to an opportunity to contest the stand of the respondent. We find substance in this submission.

In view thereof, it is directed as follows :

(i) The order dated 29th April, 2014 passed by us is hereby recalled.

(ii) Liberty is given to the petitioners to seek review of the order dated 22nd August, 2013 passed in O.A.No.3583/2012 by the Central Administrative Tribunal, Principal Bench, New Delhi. Inasmuch as the matter has remained pending in this court from as back as November, 2013, in case the review is filed within four weeks from today, the same shall not be rejected on grounds of the same being beyond the statutory period of limitation but shall be heard and adjudicated on merits.

(iii) So far as the service of the respondent as well as payments due and payable to her are concerned, the parties are given liberty to make their respective claims and submissions in this regard and they shall abide by the orders which Central Administrative Tribunal may pass.

The writ petition and review petition are disposed of in the above terms. Pending application is also disposed of.

Dasti to parties.

GITA MITTAL, J

DEEPA SHARMA, J

JULY 22, 2016 aj