Delhi High Court
Mahanagar Telephone Nigam ... vs Salim Ansari on 20 March, 2017
$~10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 9160/2015
Date of decision: 20th March, 2017
MAHANAGAR TELEPHONE NIGAM LIMITED & ANOTHER
..... Petitioners
Through Mr. Saket Sikri & Mr. Vaibhav Kalra,
Advocates.
versus
SALIM ANSARI ..... Respondent
Through Mr. Shanker Raju & Mr. Nilansh Gaur,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
Salim Ansari, the respondent before us, was charge sheeted vide
memorandum dated 14th June, 2005 on the following articles of charge:-
"That the said Shri Ansari SDE while working as COC-
XI(N) staff no. (GO-101519) under G.M. (Dev.), MTNL,
New Delhi during the period 2001-02, 2002-03, 2003-04
and 2004-05 has committed an act of gross misconduct
and misbehaviour in as much as he has not maintained the
proper records in respect of received telephone poles
were not from different stores of Area SDEs and entries
of most of the telephone poles not made in the stock-
registers (Annex. „A‟) and bungled the poles in
connivance of staff members and contractors. Approx.
1956 telephone poles have been bungled and causing
heavy loss to MTNL i.e. Rs.25,03,680 (Annex. „B‟). He
is responsible for the loss of Rs.14,57,920 out of
Rs.25,03,680 caused to MTNL due to his gross
negligence, malafide intention and misappropriation of
1139 poles on his part alone (Annex. „B‟).
By the aforesaid act, the said Shri Saleem Ansari, SDE
failed to maintain absolute integrity, devotion to duty and
acted in a manner unbecoming of a Company employee
in violation of Rule 4 (1) (i), (ii) and (iii) of MTNL
Conduct, Discipline and Appeal Rules, 1998."
2. Enquiry proceedings were held and the Disciplinary Authority by
order dated 3rd February, 2007 imposed penalty of reduction to a lower scale
by three stages in the time scale of pay for a period of three years with
cumulative effect and directed recovery of Rs.4,45,634/-, equal to 50% of
the loss suffered by the employer-Mahanagar Telephone Nigam Limited
(MTNL), the petitioner before us. The aforesaid amount was calculated at
depreciated value of the received poles. The petitioner had filed an appeal
against the said penalty, which was dismissed by the Appellate Authority
vide order dated 7th April, 2008.
3. The respondent was issued the second charge sheet dated 15th June,
2007 on the following articles of charge:-
"Statement of Article of Charge
That the said Shri Saleem Ansari, SDE, while working
as COC-XI (N) staff No. GO-101519 under GM (Dev.),
MTNL, New Delhi during the period 2001-05 has
committed an act of gross misconduct and misbehaviour
in a manner as much as he has not followed due
procedure and not taken proper care to maintain the
correct records in respect of DP posts/poles (recovered)
which were received from different stores of SDEs as
entries of and bungled the poles in connivance with the
staff members and contractors. The bungled poles are
3297 and the loss caused to MTNL due to bungling is
Rs.42,20,160/- (As per Annexure „B‟ enclosed).
The said Sh. Saleem Ansari, is responsible for the loss
amounting to Rs.18,45,760/- out of Rs.42,20,160/- caused
to MTNL, due to his gross negligence, malafide intention
and misappropriation of 1442 poles on his part alone viz.
on proportionate basis (Annexure A-1 read with
Annexure-„B‟).
By the aforesaid act, the said Sh. Saleem Ansari, SDE
(GO-101519) has filed (sic) to maintain absolute
integrity, devotion to duty and acted in a manner
unbecoming of a Company Employee in violation of Rule
4(1)(ii) & (iii) of MTNL, Conduct, Discipline and Appeal
Rules, 1998."
4. The Enquiry Officer was appointed and held proceedings and vide his
report dated 8th January, 2010 held that the aforesaid articles of charge stand
proved. A copy of the enquiry report was furnished, to which the
respondent submitted his representation. The Disciplinary Authority vide
order dated 7th July, 2011 imposed punishment of removal from service on
the respondent with immediate effect.
5. On appeal, the Appellate Authority modified the penalty of removal
from service to that of compulsory retirement from service with effect from
the date of issuance of the original penalty order.
6. The respondent, who had accepted the punishment in the first charge
sheet, filed OA No. 683/2012 challenging the order of compulsory
retirement passed in the second charge sheet, which has been allowed by the
Principal Bench of the Central Administrative Tribunal (Tribunal, for short)
by the impugned order dated 15th July, 2015 on two grounds. The
petitioners had indulged in splitting of charges and principle of double
jeopardy would apply. Issue of the second charge memorandum and
initiation of the disciplinary proceedings was, therefore, contrary to law.
Secondly, the respondent was discriminated and subjected to
disproportionate punishment for other officers similarly chargesheeted and
guilty have been awarded lesser punishments.
7. We have heard learned counsel for the petitioners and the counsel for
the respondent and are inclined to accept the present writ petition for reasons
noted below.
8. This is not a case of criminal prosecution and, therefore, Article 20(2)
of the Constitution has no application. Rule of double jeopardy is violated
when a person tried for the same charge for which he has been tried earlier
and has been convicted. In Union of India and Another versus
Purushottam, (2015) 3 SCC 779, the Supreme Court examined the case law
on the subject of double jeopardy and referred to three facets; (i) autrefois
acquit; (ii) autrefois convict and (iii) protection against multiple
punishments. It has been held that the principle of double jeopardy does not
preclude subsequent criminal prosecution when the earlier proceedings are
civil and not criminal and conversely also the same principle would apply
unless there is an express rule to the contrary. Departmental proceedings or
disciplinary proceedings being civil in nature, even if punitive, would not be
outlawed by Article 20(2) of the Constitution.
9. In the present case, the Memorandum of charge in the two
proceedings were separate and distinct. The first departmental proceedings
initiated vide memorandum dated 14th June, 2005 was for not maintaining
proper records with respect to 1139 telephone poles and failure to maintain
entries in the stock register. The acts of negligence and misconduct, it was
alleged, had resulted in bungling of poles, with connivance of the staff with
the contractors. It is important to refer to the statement of imputation of
misconduct with regard to the first charge sheet, which reads as under:-
"That the said Shri Saleem Ansari SDE while working as
COC-XI(N) staff No. GO-101519 under GM (Dev.)
MTNL, New Delhi during the period 2001-02, 2002-03,
2003-04 and 2004-05 has committed an act of gross
misconduct and misbehaviour in as much as he has not
maintained the proper records in respect of received
telephone poles from different stores of area SDEs and
most of the telephone poles not entered in the stock
registers as indicated in Annexure-„A‟ attached.
All the requisition slips prepared by him for taking
poles from different stores of Area SDEs and in turn
issued slips of Area SDEs were checked by Shri Saleem
Ansari SDE on 24.03.2005 when his statement was
recorded.
It has been confirmed that the requisition slips were
given by him mainly to Shri Balvinder Singh PM and
Shri Azad Singh CS. Shri Ansari has received directly
470 poles under his signatures from different stores of
Area SDEs and 669 on fake signatures of different
officials and on attested signature of B.P. Gupta
contractor (Annexure „A‟ read with Annex. „B‟).
Shri Saleem Ansari has not disclosed the names of the
contractors who received the pleas(sic) on site. He has
confirmed that there is no entry of all the poles shown in
Annex. „A‟ in the stock registers.
It is further observed that Shri Saleem Ansari has
prepared the requisition slips and received the poles from
different stores without consent of his DE (CCN-V),
namely Shri Y. Sharma. Mr. Ansari sent his one
requisition slip dated 17.12.03 of 100 poles for DEs
counter signature and the same counter signed and
confirmed by Shri Y. Sharma DE (CCN-V) on 24.3.05.
It is further observed that the stores received against
requisition slips prepared by Shri Ansari are recovered
(old) complete/without sockets and soleplate telephone
poles but entries of the same has been made as Tube A4,
B-8, C-8 and socket C (components of the pole) in the
stock registers of COC-XI (N) unit. Thus, he has neither
checked the entries of slips in stock registers nor he
instructed his store-in-charge, namely, Shri Ranbir Singh
PM (PM-924) how to make correct entries in respect of
received poles.
It seems from all facts, records ad (sic, and)
circumstances the poles are bungled and misappropriated
in connivance with Shri Saleem Ansari SDE along with
Shri Balvinder Singh PM and Shri Azad Singh CS and by
the contractors and consequently MTNL has suffered a
heavy loss, the details of which are given in Annexure
„B‟.
Total loss caused by alone to MTNL is Rs.14,57,920/-
due to directly receipt of 470 poles and on fake signature
slips 669 poles. Total poles are thus equal to
470+669=1139. In the last of his statement Shri Saleem
Ansari SDE has accepted his mistake and agreed for any
suitable action.
By the aforesaid act, the said Shri Saleem Ansari SDE
has failed to maintain absolute intergrity, devotion to duty
and acted in a manner unbecoming of a Company
Employee in violation of Rule 4(1)(i), (ii) and (iii) of
MTNL Conduct, Discipline and Appeal Rules, 1998."
10. The said imputation refers to requisition slips prepared by the
respondent for taking poles from different stores of Area Sub-Divisional
Engineer and issuing requisition slips for the same to Area Sub-Divisional
Engineer, which were to be checked by the respondent. The aforesaid
charge sheet was specific to approximately 1956 telephone poles. On the
basis of administrative lapses, false signatures etc. adverse inference was
drawn, to hold that the respondent was involved. The punishment order in
the first charge sheet has attained finality. It is not under challenge.
11. The second charge sheet, on the other hand, as per imputation of
conduct and misbehaviour was on the following foundation:-
"That the said Shri Saleen(sic) Ansari SDE while
working as COC-XI (N) under GM (Dev.) MTNL,
New Delhi during the period 2001-05 has committed
an act of gross misconduct and misbehaviour in a
manner as much as he has not followed due procedure
and not taken proper care to maintain the correct
records in respect of DP posts/poles (recovered)
received from different stores of Area SDEs and most
of the poles were not entered in the stock registers of
COC-XI(N) unit (As per Annexure-I enclosed).
That the said Sh. Saleem Ansari has not paid "due
care and proper attention" before, during and after the
receipt of poles as the poles were received on his
requisition slips either under his own signatures or on
fake signatures of Sh. Balvinder Singh, P/M, Shri Azad
Singh. C/S Sh. Ramesh Chandra, RM and Sh. Pancham
Singh Rawat, PM (PM-1132) without issue on
authority letters authorising the officials for collecting
the poles for COC-XI(N) unit. The requisition slips of
taking poles from Area SDEs have been authenticated
by Sh. Saleem Ansari, SDE and the slips were given by
him mainly to Sh. Balvinder Singh, PM and Sh. Azad
Singh, C/S in majority case, whereas Sh. Ranbir Singh,
PM (Store in charge of COC-XI(N) unit should have
been deputed with authority letter for collecting the
poles from different area SDEs.
That the said Sh. Saleem Ansari has received the
poles from stores without consent of Sh. Y. Sharma,
DE (CCN) in charge as Mr. Y. Sharma, DE has denied
his signatures on the slips and the said Sh. Saleem
Ansari has confirmed that there is no entry of the poles
in majority cases, as per Annexure A-1 in the stock
register of COC-XI (N) unit (As per details in
Annexure A-1 enclosed)
That the said Sh. Saleem Ansari has not got his slips
cancelled in cases when the poles were not
taken/received for COC-XI (N) unit, nor he instructed
Sh. Ranbir Singh, PM store-in-charge how to make
correct entries in respect of received poles/DP posts
because the entries were make as Tube A-4, B-8, C-8
and socket "C" etc. (Components of the poles) and not
as a complete pole viz. no transparency observed by
the said Sh. Saleem Ansari.
That the said Sh. Saleem Ansari, bunged away 3297
recovered DP posts/poles and misappropriated in
connivance with Sh. Balvinder Singh, PM, Sh. Azad
Singh, CS and contractors and consequently, MTNL
has suffered a heave (sic) loss, the details of which are
given in Annexure-B read with Annexure A-I. Total
loss caused to MTNL by him alone is Rs.18,45,760/-
due to directly receipt of 85 poles and on fake
signatures on receipts (Slips) of 1357 poles.
By the aforesaid act, the said Sh. Saleem Ansari
SDE (GO-101519) has failed to maintain absolute
integrity, devotion to duty and acted in a manner
unbecoming of Company employees in violation of
Rule 4 (I) (i), (ii) and (iii) of MTNL, Conduct,
Discipline and Appeal Rules, 1998."
12. The statement of imputations was different. It may be pertinent to
mention here that the second charge sheet was issued after letter dated 12th
April, 2005 from one Suresh Pal Chaudhary was received in the office of the
petitioner-MTNL in May 2005. Pursuant to the information furnished,
internal investigation was conducted. On the basis of the said investigation,
it was prima facie established that MTNL officer/officials in connivance
with the contractors had bungled 6198 poles thereby causing a loss of
Rs.79,43,440/- to the MTNL. These facts were ascertained subsequent to
the issuance of the first charge sheet. The Vigilance Officer vide report
dated 2nd March, 2006, on examination of evidence, had recommended
initiation of major/minor penalty along with recoveries from 33 officers
mentioned in the report. On the basis of vigilance report, comments of the
Disciplinary Authority were sought. The Director (HR)‟s comments were
also obtained. Thereafter, penalty proceedings were initiated vide order
dated 12th June, 2006 and the respondent was served with the second charge
sheet on 15th June, 2007.
13. The facts narrated above would reflect and show that the second
charge sheet could not have been issued when the first charge sheet was
issued. The first charge sheet was dated 14th June, 2005. Till this date,
preliminary investigation in the allegations in the complaint had not been
completed. It was unknown whether or not the allegations in the complaint
were correct or incorrect. It would not have been fair for the petitioner to
include a charge or allegations with regard to bungling of 3297 poles
without proper verification and satisfaction that the allegations were correct.
14. Learned counsel for the respondent has submitted that as per the
noting dated 2nd March, 2006, the Vigilance Department had issued charge
sheets against several officers alongwith directions for recovery of money
for the loss caused. It was indicated that the case was under inquiry. The
assertion is incorrect. The said noting relates to 1956 poles which had been
bungled. This noting is not with regard to the bungling of 3297 poles, which
became the subject matter of the second charge-sheet. This noting does not
support the case of the respondent that there was deliberate or concerted
attempt to split the charges and to cause prejudice.
15. It is obvious and accepted that the respondent had contested the
second charge sheet. The petitioners were able to establish and prove the
said charge. The punishment of removal from service imposed by the
Disciplinary Authority modified to that of compulsory retirement. Evidence
led in the two cases was entirely separate and distinct. It can be said that the
two memorandums related to bungling of poles, but the changes were
different and distinct in the sense that proof of the first charge, would not
establish the second charge. Evidence and material led in both the
memorandums were independent. Even if there was a criminal case, the
plea of double jeopardy or splitting of charge could not have been raised by
the respondent for two separate charges could have been framed under the
Code of Criminal Procedure, 1973.
16. On the question of disproportionate punishment or discrimination, we
have to only observe that the charge of this nature if proved is serious and
mandates and requires stern action and punishment. The law does not
recognise negative equality. Punishment of compulsory retirement imposed
by the Appellate Authority is not unjust and unconscionable for the Court or
the Tribunal to interfere.
17. In view of the aforesaid discussion, the present writ petition is
allowed, and the impugned order dated 15th July, 2015 passed by the
Tribunal allowing OA No. 683/2012 is set aside. OA No. 683/2013 is to be
treated as dismissed. We affirm the order of punishment of removal from
service passed by the Appellate Authority.
18. At this stage, counsel for the respondent submits that the respondent
has not received his retirement or pensionary dues. Counsel for the
petitioner has assured that if this is correct, steps would be immediately
taken and payments, if any, which have to be made in terms of the order of
compulsory retirement, would be made to the respondent within a period of
four weeks from the date a copy of this order is received by them. No costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
MARCH 20, 2017
VKR
