tripura, mizoam and arunachal pradesh) - …ghconline.gov.in/judgment/wpc9152010.pdf ·...

WP(C) 915/2010, WP(C) 916/2010, WP(C) 917/2010, WP(C) 918/2010 & WP(C) 919/2010

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,

TRIPURA, MIZOAM AND ARUNACHAL PRADESH)

1. WP(C) 915/2010

1. Union of India, Represented by Secretary to the Govt. of India-cum-Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi.

2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi. - Petitioners/Respondents in O.A.

- Versus –

1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1, - Respondent/Applicant in O.A.

2. WP(C) 916/2010

1. Union of India, Represented by Secretary to the Govt. of India-cum-Chairman, Telecom Commission, Ministry of Communications & Information Technology, Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi. 2. Senior Deputy Director General (Vigilance), Department of Telecommunications, Sanchar Bhawan, 20-Ashoka Road, New Delhi. - Petitioners/Respondents in O.A.

- Versus –

1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1 - Respondent/Applicant in O.A.


3. WP(C) 917/2010



- Versus -

1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1, - Respondent/Applicant in O.A.

4. WP(C) 918/2010



- Versus - 1. Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1 - Respondent/Applicant in O.A.


5. WP(C) 919/2010



- Versus -

Sri Madhurya Kumar Gogoi, S/o. Late Debeswar Gogoi, Presently serving as Deputy General Manager (Planning), Office of the General Manager, Assam Telecom Circle, BSNL, Panbazar, Guwahati-1 - Respondent/Applicant in O.A.

P R E S E N T

THE HON’BLE MR. JUSTICE I A ANSARI THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA

Advocate present: For the petitioners : Mrs. R. Bora, CGC,

For the respondent : Mr. K.N. Choudhury, Sr. Advocate, Mr. B. Choudhury, Advocate, Mr. M. Mahanta, Advocate, Mr. J. Patowary, Advocate

Date of hearing : 30.11.2012

Date of judgment : 22.01.2013

JUDGMENT & ORDER

(Ansari, J.)

The Department of Tele-communication (in short, ‘DOT’),

Government of India, issued a Circular, on 17.12.1993, for granting of

temporary status to Mazdoors (in short, ‘TSM’) working in the


department continuously after 31.03.1985 to 22.06.1988 as casual

labourers. The Telecom District Engineer (in short, ‘TDE’), Tezpur, made

over the said Circular of the DOT to all Heads of Sub-Divisions under

his Division. The respondent herein joined as TDE, Tezpur Telecom

District, when the process of conferring temporary status, on Mazdoors,

was in progress.

2. On 25.03.1996, the respondent herein constituted a Selection

Committee, consisting of 4 (four) Members from different wings of the

Department, including Accounts Officer, the Committee having been

formed for the purpose of verifying the records and for recommending

the names of eligible casual Mazdoors, from amongst the list of casual

Mazdoors, forwarded by the Sub-Divisional Officers to the said

Committee for granting temporary status to eligible mazdoors. The

respondent herein was not a Member of the Selection Committee, he did

not participate in the process of verification; but he was Chairman of the

Selection Committee.

3. Following the recommendations made by the Selection

Committee, the respondent herein, as Chairman, issued an order, on

27.05.1996, conferring the status of Temporary Mazdoor, provisionally,

on 221 casual labourers. No further order was issued, in this regard, by

the respondent conferring status of TSM on casual labourers working in

the DOT.

4. By letter, dated 18.09.1997, the Chief General Manager, DOT,

Assam Circle, Guwahati, issued instructions to Telecom District

Manager, Tezpur, (in short, TDM, Tezpur) to cancel the said provisional


order, dated 27.05.1996, whereby the respondent had conferred, as

indicated hereinbefore, the status of Temporary Mazdoor on 221 casual

labourers and to start afresh a process of further scrutiny in order to

identify , within a period of one month, those casual labourers, who

were entitled to receive the status of Temporary Mazdoors.

5. The TDM, Tezpur, made over the said letter, 18.09.1997, to the

respondent inasmuch as the respondent was the one, who had issued

the orders provisionally conferring status of TSM on 221 casual

labourers. Complying with the directions, contained in the letter, dated

18.09.1997, aforementioned, the respondent herein, being the then

Divisional Engineer (P&A), accordingly passed an order, on 20.10.1997,

cancelling the order, dated 27.05.1996, which conferred the status of

TSM on 221 casual labourers. This order of cancellation, dated

20.10.1997, was, however, revoked, on 19.11.1997, by the TDM, Telecom,

Tezpur District Circle.

6. In the backdrop of the above facts, which are not in dispute, the

respondent herein was served with a Memorandum, dated 19.06.2001,

issued by the Department, under Rule 14 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965, informing the

respondent that an inquiry was proposed to be held against him on the

ground that the respondent, in collusion with the Members of the

Selection Committee, which the respondent had constituted, regularized

mala fide 34 numbers of casual labourers of North Lakhimpur.

7. While the proceeding, initiated by the Memorandum, dated

19.06.2001, aforementioned was in progress, the respondent was served,


on 26.03.2002, with another Memorandum, dated 07.03.2002, proposing

to hold inquiry and draw a departmental proceeding against the

respondent on identical charge, as had been stated in the Memorandum,

dated 19.06.2001, the difference between the said two Memoranda,

served on the respondent, being that the Memorandum, dated

07.03.2002, related to regularization of 22 numbers of casual Mazdoors

of SDE (P), Tezpur; whereas, the earlier Memorandum, dated 19.06.2001,

was in respect of regularization of 34 numbers of casual labourers of

North Lakhimpur.

8. While the two proceedings, initiated by the Memoranda, dated

19.06.2001 and dated 07.03.2002, were in progress, yet another

Memorandum, dated 11.09.2003, was served on the respondent, on

17.10.2003, on identical charge; the third Memorandum, however,

related to appointment of 22 numbers of casual Mazdoors under

Dhemaji Sub-Division, allegedly, on the basis of forged experience

certificates. Two other Memoranda, both dated 17.10.2003, were issued

to, and served upon, the respondent herein on the identical charge, the

accusations, made in one of these two Memoranda, dated 17.10.2003,

related to appointment of 21 numbers of casual Mazdoors, under

Udalguri Sub-Division, on the basis of alleged forged experience

certificates, and the accusations, made in the other Memorandum, dated

17.10.2003, related to the appointment of 15 numbers of casual

Mazdoors, under SDO(T), Tezpur, on the basis of forged experience

certificates.


9. On 21.10.2003, the respondent received yet another

Memorandum, dated 09.10.2003, on the identical charge of appointment

of 7 numbers of casual Mazdoors under SDE (Comp), Tezpur, on the

basis of forged experience certificates.

10. The respondent replied to the charge, contained in each of the

said six Memoranda, denying the allegations made against him in the

said six Memoranda. An inquiry was, then, held by the inquiring

authority of the Department into the alleged appointment as well as

regularization of Mazdoors by the respondent on the basis of forged

experience certificates. The inquiring authority submitted its inquiry

report, on 18.12.2004, holding that the charges, which had been levelled

against the respondent, were not proved.

11. The disciplinary authority, however, disagreed with the findings

of the inquiry officer and issued a memorandum of disagreement, dated

24.02.2005. The respondent was, then, served, in the month of March,

2005, with a copy of the inquiry report, dated 18.12.2004, the

memorandum of disagreement, dated 24.02.2005, and the Central

Vigilance Commissioner’s advice, dated 27.12.2005, in respect of the

Charge Memo., dated 07.03.2002. In the memorandum of disagreement,

dated 24.02.2005, the disciplinary authority did not give any definite

finding on the charges and the reasons for disagreement, but alleged

that the inquiring authority, on analysis of the materials on record,

which had surfaced at the inquiry, had found that the act of conferring

TSM status could have been done only after referring the cases to DOT.


12. As against the Memorandum of disagreement, dated 24.02.2005,

the respondent submitted his representation on 21.03.2005.

13. The respondent, then, received the inquiry report, dated

31.01.2005, accompanied by Memorandum of disagreement, dated

01.04.2005, and the Central Vigilance Commissioner’s advice, dated

07.03.2005, relating to the first proceeding, which had been initiated by

the Memorandum, dated 19.06.2001. The inquiry report, dated

31.01.2005, reflected that the inquiring authority had held the charge

against the respondent as proved, but not fully. By the Memorandum of

disagreement, dated 01.04.2005, the disciplinary authority disagreed

with the findings of the inquiry officer and held the charges as fully

proved.

14. In response to the said Memorandum of disagreement, dated

26.04.2005, too, the respondent submitted his representation on

10.05.2005.

15. In the month of October, 2005, respondent received the inquiry

report, dated 27.07.2005, Memorandum of disagreement, dated

04.10.2005, from the disciplinary authority and the Central Vigilance

Commissioner’s advice, dated 23.09.2005, relating to the third

proceeding initiated against him. In the inquiry report, the inquiring

authority had recorded that the allegations, levelled against the

respondent by the third Memorandum, were not proved, but the

disciplinary authority disagreed with the findings of the inquiry officer

and held the charges as proved. The disciplinary authority not only

disagreed with the findings of the inquiry officer, but also purportedly


brought, as indicated above, a new charge against the respondent that

TSM status can be conferred on the Mazdoors only after referring the

cases to the DOT.

16. On receipt of the inquiry report, Memorandum of disagreement

and the Vigilance Commissioner’s advice in respect of the third

Memorandum, as mentioned above, the respondent submitted a

representation, on 16.11.2005, against the Memorandum of

disagreement, dated 04.10.2005, aforementioned. In his representation,

the petitioner categorically stated that, as per letter, dated 21.12.1994, the

Telecom District Engineer is the authority to regularize casual Mazdoors

as TSM under the DOT guidelines, etc.

17. Thereafter, on 18.10.2005, the respondent received the inquiry

report, dated 26.07.2005, Memorandum of disagreement, dated

18.10.2005, and the Central Vigilance Commissioner’s advice, dated

28.09.2005, in respect of the fourth proceeding against the respondent.

In his inquiry report, dated 26.07.2005, the inquiring authority held the

charge against the respondent as not proved. However, the disciplinary

authority did not agree with the findings of the inquiring authority and

held the charge as proved and, while so disagreeing with the inquiring

authority’s finding, the disciplinary authority purportedly brought a

new charge against the respondent stating that the inquiring authority,

on analysis of the materials on record, had found that the TSM status

could have been conferred on Mazdoors only after referring the cases to

the DOT.


18. On 17.11.2005, the petitioner submitted his representation against

the Memorandum of disagreement, dated 18.10.2005, wherein he stated

that as per letter, dated 21.12.1994, the Telecom District Engineer is the

authority to regularize the casual Mazdoors as TSM.

19. On 18.10.2005, the respondent received the inquiry report, dated

27.07.2005, Memorandum of disagreement, dated 18.03.2005, and the

Central Vigilance Commissioner’s advice, dated 23.09.2005, with regard

to the fifth proceeding against the respondent. In the inquiry report, the

inquiring authority recorded that the charge against the respondent

were not proved. However, the disciplinary authority disagreed with

the findings of the inquiring authority and held the charge as proved.

In the Memorandum of disagreement, the disciplinary authority

brought a new charge against the respondent by stating that the

inquiring authority, on analysis of the materials on record, had found

that TSM status could be conferred on casual labourers only after

referring the cases to the DOT.

20. The respondent submitted, on 12.11.2005, his representation

against the Memorandum of disagreement, dated 18.10.2005, wherein he

stated that as per letter, dated 21.12.1994, the Telecom District Engineer

did possess the authority to regularize casual Mazdoor as TSM.

21. Thereafter, the respondent received the inquiry report, dated

26.07.2005, Memorandum of disagreement, dated 18.10.2005, and the

Central Vigilance Commissioner’s advice, dated 28.09.2005, in respect of

the sixth proceeding initiated against the respondent. In the inquiry

report, the inquiring authority recorded that the allegations, which had


been made against the respondent, were not proved, but the

disciplinary authority disagreed with the findings of the inquiring

authority and held the charge as proved. In the Memorandum of

disagreement, the disciplinary authority further stated that the inquiring

authority, on analysis of the materials on record, had found that TSM

status could have been conferred on casual labourers only after referring

the cases to the DOT.

22. On 10.11.2005, the respondent submitted his representation

against the Memorandum of disagreement, dated 18.10.2005, and, in his

said representation, he stated that as per letter, dated 21.12.1994, the

Telecom District Engineer was the authority to regularize the casual

Mazdoors by conferring TSM.

23. After the respondent had received the inquiry reports,

Memoranda of Disagreement and the Central Vigilance Commissioner’s

advices in respect of all the six departmental proceedings, which had

been initiated against the respondent on the accusations of regularizing

the casual labourers by conferring TSM status as well as appointing

casual labourers under the DOT basing on forged experience certificates,

and after the respondent had submitted representations against the said

Memoranda of Disagreement, as already indicated above, the

respondent received an order, dated 02.05.2006, issued by the petitioner

No. 2, namely, Senior Deputy Director General (Vigilance), DOT, New

Delhi, wherein it was stated that following the outcome of the second

disciplinary proceeding, a penalty of reduction of the pay of the

respondent to a lower stage, by 3 stages, in the time scale of pay of Rs.


14,300-400-18,300/-, for a period of 2 (two) years, had been imposed on

the respondent by the competent disciplinary authority and that the

respondent would not earn increments of pay during the period of

reduction and, on the expiry of such period, the reduction would have

the effect of postponing his future increments of pay.

24. Barely a month thereafter and, to be precise, on 23.05.2006, the

respondent received another order, dated 03.05.2006, wherein it had

been stated that the competent disciplinary authority had imposed the

penalty of reduction of the pay of the respondent to a lower stage by 3

(three) stages in the time scale of pay of Rs. 14,300-400-18,300/-, for a

period of 2 (two) years, and that the penalty, so imposed on the

respondent, related to the 1st proceeding initiated against the

respondent.

25. Aggrieved by the decision of the disciplinary authority to impose

two penalties of identical nature in two of the six proceedings, the

respondent challenged the initiation of the said six departmental

proceedings against him on the same cause of action and also the

imposition of penalties on him, as mentioned above, by filing Original

Application in the Central Administrative Tribunal, Guwahati Bench,

which, eventually, gave rise to O.A. No. 284/2006.

26. During the pendency of O.A. 284/2006, the respondent received

another order, dated 30.05.2007, wherein it had been stated that, as per

the outcome of the 3rd departmental proceeding initiated against the

respondent, the competent disciplinary authority had imposed, on the

respondent, a penalty of reduction of his pay to a lower stage, by one


stage, in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of

two years. It was also directed by the said order, dated 30.05.2007,

aforementioned that the respondent would not earn increments of pay

during the period of reduction and, on expiry of such period, the

reduction will have the effect of postponing his future increment of pay.

27. In the said order, dated 30.05.2007, it had been further stated that

the competent disciplinary authority had imposed penalty on the

respondent, in respect of the 5th departmental proceeding, as had been

imposed in the 3rd and the 4th proceeding, meaning thereby that the pay

of the respondent was to be further lowered by one stage, in the time

scale of pay of Rs. 14,300-400-18,300/-, for a period of two years and that

the respondent would not earn increments of pay during the period of

reduction and, on expiry of such period of reduction, the reduction

would have the effect of postponing his future increment of pay.

28. Thereafter, another order of imposition of penalty of reduction of

pay of the respondent, in respect of the 6th departmental proceeding,

was received by the respondent in the month of June, 2007. In the said

order, dated 20.06.2007, it had been stated that as per the outcome of the

6th departmental proceeding, initiated against the respondent, a penalty

of reduction of pay, by one stage, in the time scale of pay of Rs. 14,300-

400-18,300/-, for a period of two years, had been imposed on the

petitioner with further direction that respondent would not earn

increments of pay during the period of reduction and, on expiry of such

period of reduction, the reduction of pay would have the effect of

postponing his future increment of pay.


29. Being aggrieved by the imposition of penalties, as indicated

above, and challenging orders, by which the penalties of reduction of

pay, as stated hereinabove, had been imposed on the respondent, the

respondent filed five Original Applications in the Central

Administrative Tribunal, Guwahati Bench (hereinafter referred to as the

‘Tribunal’), which gave rise to O.A.119/04, 284/06, O.A.25/08, O.A.

26/08, O.A.44/08 and O.A. 45/08. Altogether, thus, six Original

Applications were filed by the respondent herein putting to challenge,

inter alia, the penalties, which had been imposed on him, in the manner

as mentioned above. By a common order, dated 27.03.2009, the learned

Tribunal set aside the orders of imposition of penalties, which had been

impugned in the said original applications, holding the orders as bad in

law.

30. Being aggrieved by the decision of the learned Tribunal,

contained in the order, dated 27.03.2009, allowing the respondent’s said

original applications, the writ petitioners, who were respondents in the

said original applications, have filed these writ petitions, under Article

226 of the Constitution of India, impugning and seeking to get set aside

the order, dated 27.03.2009, passed, in the original applications

aforementioned, by the learned Tribunal.

31. We have heard Mrs. R. Bora, learned Central Government

Counsel, appearing for the writ petitioners. We have also heard Mr. K.

N. Choudhury, learned Senior counsel, for the respondent.

32. Appearing on behalf of the writ petitioners, Mrs. R. Bora, learned

Central Government Counsel, has submitted that learned Tribunal has


incorrectly held that the proceedings, drawn against the respondent

herein, smacked of partiality and the same suffered from the policy of

pick and choose inasmuch as the respondent (i.e., the petitioner herein),

while taking action against the petitioner (i.e., the respondent herein),

had left out another similarly situated person, namely, Sri A.K. Sarkar,

and, hence, the petitioner had been treated with discrimination.

33. The conclusion, which the learned Tribunal has so reached, is,

according to the learned Central Government Counsel, wholly incorrect

inasmuch as actions were taken not only against the present petitioner,

who was the Chairman of the Selection Committee, but also against all

the four persons of the Selection Committee including Sri A. K. Sarkar,

whose case has been referred to by the learned Tribunal on the basis of

the contention of the respondent herein, in his Original Applications,

that as against Sri A.K. Sarkar, petitioners had not taken action in the

same manner as had been done in the case of the petitioner (i.e.,

respondent herein).

34. In order to impress upon this Court that the present petitioners

had not dealt with the case of the respondent with discrimination, it has

been reiterated, on behalf of the petitioners, that disciplinary

proceedings had been initiated even against the said A. K. Sarkar. Thus,

the decisions of the present petitioners, while dealing with the cases of

the present respondent herein, did not suffer, contends the learned

Central Govt. Counsel, from any policy of pick and choose and the present

petitioners ought not to have been held to have treated the respondent

herein with discrimination and, hence, the learned Tribunal’s orders,


which stand impugned in this set of writ petitions, need to be interfered

with by this Court in exercise of its extra-ordinary jurisdiction under

Article 226.

35. Repelling the submissions, made on behalf of the writ petitioners,

Mr. K. N. Choudhury, learned Senior counsel, submits that the charges

against the said A. K. Sarkar had been found by the Inquiry Officer to

have not been proved and this finding was accepted by the Disciplinary

Authority and the Disciplinary Authority, by its order, dated

20/24.11.2003, exonerated said Sri Sarkar of the charges levelled against

him. Subsequently, however, Sri Sarkar was served, points out Mr. K.N.

Choudhury, learned Senior counsel, with several charge-sheets.

Aggrieved by the subsequent charge-sheets, which had been served on

the said Sri Sarkar, Sri Sarkar put to challenge the same by way of

Original Application 27/03. The learned Tribunal, while disposing of

the said Original Application, on 25.08.2004, pointed out that when the

1st Memorandum of charges itself contained the names of the 221

Mazdoors, who had been conferred temporary status, and Sri Sarkar had

been exonerated of the charge, which was contained in the 1st

Memorandum, the subsequent charge-sheets, served on the said A. K.

Sarkar, by various Memoranda, were not sustainable in law.

36. Thus, the present petitioners accepted, points out Mr. K. N.

Choudhury, not only the finding of the Inquiry Officer in respect of the

1st Memorandum and exonerated the said A. K. Sarkar, but also did not

file any writ petition disagreeing with the findings reached, the

conclusions drawn and the reliefs granted to the said Sri A. K. Sarkar by


the learned Tribunal, by its order, dated 25.08.2004, in O.A. No.27/2003,

whereby the learned Tribunal had set aside all the subsequent charge-

sheets, which had been served on the said Sri Sarkar.

37. It has also been pointed out by Mr. Choudhury, learned Senior

counsel, that under the instructions of the Chief General Manager

(DOT), Assam Telecom Circle, Guwahati, given in the letter, dated

18.09.97, the order, dated 27.05.1996, which had been passed by the

present respondent conferring TSM on the said 221 Mazdoors, had been

cancelled by the order, dated 20.10.1997, issued by the respondent

herein in his capacity as DE (D&A), Tezpur Telecom Circle. However,

the said order of cancellation, dated 20.10.1997, was subsequently

revoked by the TDM, Telecom, Tezpur District Circle, by an order,

dated 19.11.1997. The order of revocation, so passed, points out Mr.

Choudhury, learned Senior counsel, brought back into force the earlier

order, dated 27.05.1996, which had been passed by the respondent

herein granting TSM on the said 221 Mazdoors.

38. No action has, however, been taken by the present petitioners

against the TDM, Tezpur, who had revoked the order of cancellation,

dated 20.10.1997, and since the order of revocation has been sustained, it

is obvious, points out Mr. K.N. Choudhury, learned Senior counsel, that

there could not have been any disciplinary proceeding against the

respondent herein nor could have any penalty been imposed on him for

granting TSM status on the said 221 Mazdoors, when the order passed

by the respondent herein has, eventually, been allowed by the present

petitioner to prevail.


39. It is, thus, contends Mr. Choudhury, abundantly clear, contrary to

what the learned Central Govt. Counsel has attempted to project, that

the respondent herein has not been dealt with impartially; rather, the

petitioners have adopted, as rightly pointed out by the learned Tribunal,

the policy of pick and choose inasmuch as the respondent herein has been

picked up for imposition of penalty and this attitude of the present

petitioners is clearly reflected by the conduct of the petitioners, when

they have chosen to file the present set of writ petitions against the

respondent herein; whereas a person similarly situated, namely, Sri A.

K. Sarkar, has not been proceeded against and has been allowed to enjoy

the benefit of not only the findings of the inquiring authority, but also

the decisions of the learned Tribunal.

40. The respondent’s attitude can be well adjudged, reiterates Mr.

K.N. Choudhury, learned Senior counsel, by the fact that while

petitioners have imposed penalty on the respondent herein for

conferring TSM on 221 Mazdoors, they chose not to take any action

against the TDM, Telecom, Tezpur District Circle, who revoked the

order of cancellation, as pointed out above, and brought back into force

the order, which had been passed by the respondent herein conferring

TSM on 221 Mazdoors.

41. Let us, now, consider the merit of the rival submissions, which

have been made on behalf of the parties concerned.

42. There can be no manner of doubt, as is clearly discernible from

the order, dated 25.08.2004, passed, in O.A. No.27/2003, by the learned

Tribunal, in the case of Sri A.K. Sarkar, that Sri A.K. Sarkar was


proceeded against by serving a Memorandum of Charge, which

contained, in effect, the same allegation, which had been made against

the respondent herein, namely, that TSM had been conferred on 221

Mazdoors without appropriate verification and on the basis of forged

experience certificates. This charge was held to have not been proved by

the inquiring authority in respect of Sri A. K. Sarkar. Similarly, in the

case of the present petitioner, the finding was that the charge had not

been proved. While, however, the finding of the inquiring authority, in

respect of the said Sri Sarkar, was accepted by the Disciplinary

Authority and the said Sri Sarkar was exonerated, the respondent herein

was served with the memorandum of disagreement.

43. In fact, contrary to the contention of the petitioners that they had

dealt with the case of Sri Sarkar in the same manner as had been done in

the case of the respondent herein, the order, dated 20/24.11.2003, passed

by the Disciplinary Authority, exonerating said A.K. Sarkar of the

charges levelled against him, read as under:

“Taking into account the findings of the Inquiring Authority, records of

the case and on an objective assessment of the facts and circumstances of

the cases in its entirety, I, P.K. Chanda, Member (Services), Telecom

Commission, hereby order to exonerate Shri A.K. Sarkar, SDOT, of the

charges levelled against him, vide aforesaid Memorandum.”

44. Having accepted the findings of the Inquiring Authority and

having exonerated the said Sri A.K. Sarkar, when the petitioners herein

served Sri Sakar with several other charge-sheets, Sri Sarkar approached

the learned Tribunal by filing an Original Application, namely, O.A.

No.27/2003. Having noted that when the finding on the 1st


Memorandum of Charge had been accepted by the Disciplinary

Authority, the respondents could not have initiated any other

disciplinary proceeding on, substantially, the same facts, the learned

Tribunal set aside the charge-sheets so served on Sri Sarkar and this

decision of the learned Tribunal was never put to challenge, as rightly

pointed out by Mr. Choudhury, learned Senior counsel, before this

Court or any other Court. Thus, in Sri Sarkar’s case, the petitioners

herein not only accepted the findings of the Inquiring Authority, but

also the decision of the learned Tribunal; whereas they are unwilling to

relent so far as the respondent herein is concerned.

45. The learned Tribunal, therefore, in the light of what have been

pointed out above, cannot be said to have wrongly reached the

conclusion that the petitioners herein have adopted the policy of ‘pick

and choose’ and have been treating with the respondent herein with

discrimination.

46. The inference, which the learned Tribunal has drawn, and the

conclusion, which the learned Tribunal has reached, are further

strengthened by the fact, as has been correctly pointed out above by Mr.

K.N. Choudhury, learned Senior counsel, that the respondent herein,

under the instructions of his superior authority, had cancelled the order,

whereby he had conferred TSM on 221 Mazdoors. This order of

cancellation was, however, revoked by the TDM, Telecom, Tezpur

District Circle, bringing back into effect the very order, which the

respondent herein had passed and which had become, and still remains,

the basis of all the disciplinary proceedings, which have been initiated


against him (respondent herein). Amazingly enough, no action has been

taken by the present petitioners against the TDM, Telecom, Tezpur

District Circle, for revoking the cancellation order and for doing, in

effect, what the respondent herein had done.

47. Situated thus, the learned Tribunal, in the considered view of this

Court, was wholly correct in coming to the conclusion that the

respondent herein is being dealt with by the present petitioners in a

manner, which is discriminatory, and is an outcome of the policy of ‘pick

and choose’, which the present petitioners have adopted as against the

respondent herein.

48. In short, from a bare reading of the order, dated 24.08.2004,

passed in O.A. No. 27/2003, there cannot be any doubt that a

disciplinary proceeding had, indeed, been initiated against the said Sri

A. K. Sarkar in the manner, as had been done against the respondent

herein, and inquiry was accordingly held. In the inquiry, held against

said A. K. Sarkar as well as the present respondent, the inquiring

authority exonerated both, the respondent herein as well as the said A.

K. Sarkar, of the charges by holding that the charges, brought against

them, had not been proved. While, in the case of Sri A. K. Sarkar, the

finding of the inquiring authority was accepted by the present

petitioners and no memorandum of disagreement to the finding, so

given, was issued to, or served upon, Sri Sarkar, the respondent herein

was served, as already indicated above, with a memorandum of

disagreement and penalty has been, ultimately, imposed on him. This

apart, by order, dated 27.03.2009, when the learned Tribunal allowed the


Original Application, namely, OA 27/03, filed by the said A. K. Sarkar,

setting aside and quashing all the Memoranda of charges, the decision

of the learned Tribunal was accepted by the present petitioners and no

writ petition was filed against the reliefs, which the learned Tribunal

had granted to the said Sri Sarkar. On the contrary, the present

petitioners chose to brush aside the inquiring authority’s findings and

proceeded against the respondent herein by issuing memorandum of

disagreement as well as Statement of Imputation of Charge, followed by

imposition of penalty, as indicated above, and, while the learned

Tribunal, by order, dated 27.03.2009, allowed the present respondent’s

Original Applications by setting aside and quashing the imposition of

penalty on the respondent herein, the petitioners have filed these writ

petitions against the orders of the learned Tribunal.

49. It cannot, therefore, be said that the learned Tribunal has gone

wrong, when it pointed out, in the presently impugned order, dated

27.03.2009, that the petitioners had “…….adopted pick and choose policy

which is violative of Article 14 and 16 of the Constitution and thus not

sustainable in the eye of law.” The learned Tribunal has also categorically

observed that “………the action against the applicant is not justified and

smack of partiality and vendetta and cannot be sustainable in the eye of law

……..”

50. Coupled with the above, one can also not ignore the fact, if we

may reiterate, that on the instructions, issued in the letter, dated

18.09.1997, by the Chief General Manager (DOT), Assam Telecom Circle,

Guwahati, the respondent herein, in his capacity as DE (D&A), Tezpur


Telecom Circle, issued an order, dated 20.10.1997, cancelling the order,

dated 27.05.1996, whereby status of TSM had been conferred on 221

casual labourers. This order of cancellation was, however, revoked by

the TDM (Telecom), Tezpur District Circle, by its order, dated

19.11.1997. Thus, with the revocation of the order, dated 20.10.1997, the

order, dated 20.05.1996, conferring TSM status on the said 221

Mazdoors, was brought back to force and sustained.

51. In the circumstances, indicated above, either disciplinary

proceedings against the respondent herein ought to have been dropped,

or action ought to have been taken against the TDM (Telecom), Tezpur

District Circle, for revoking the order of cancellation. No action has,

however, been taken by the present petitioners against TDM, Telecom,

Tezpur District Circle. This attitude of the petitioners demonstrates that

the respondent herein has not been dealt with in the same manner as the

other persons, namely, the said A. K. Sarkar and/or the TDM, Telecom,

Tezpur District Circle (who had revoked the order of cancellation, as

mentioned above) have been dealt with.

52. The learned Tribunal was, therefore, not wrong, if we may

reiterate, in taking the view that the respondents (i.e., the present

petitioners) had adopted the policy of pick and choose and had not acted

impartially. The learned Tribunal further observed that in a situation,

such as, the present one, the references, made by Mr. Choudhury,

learned Senior counsel, to the cases of Sengara Singh & Ors. vs. State of

Punjab and others, reported in (1983) 4 SCC 225, and Bongaigaon

Refinery & Petrochemicals Ltd. and others vs. Girish Chandra Sarma,


reported in (2007) 7 SCC 206, were not wholly misplaced inasmuch as

Singara Singh (supra) holds that arbitrary picking and choosing for

reinstatement after mass dismissal is violative of Article 14. In Singara’s

case (supra), while the majority of the dismissed police personnel were

reinstated and the criminal prosecution, instituted against them, had

been withdrawn, the same yardstick was not used by the authorities

concerned in respect of Singara Singh. In Bongaigaon Refinery &

Petrochemicals Ltd. and others (supra), the Supreme Court, having

found that one person had been made the scapegoat for collective

decision of several others, the domestic enquiry was interfered with.

53. We can also not ignore the fact, as rightly pointed out by Mr.

Choudhury, learned Senior counsel, that the basic allegation against the

respondent herein was that without verifying the genuineness of the

recommendations of different SDOs/SDEs and the experience

certificates, which had been issued by JTO/Lineman, etc., the

respondent herein had issued the order, dated 27.05.1996, and thereby

put the Department to huge financial loss.

54. It is trite that a distinct and different charge can arise only on a

different cause of action. Unless the causes of action are different, two

different charges cannot be framed. The Memorandum, which was

served on the said Sri A. K. Sarkar, also contained, in essence, one and

the same accusation.

55. One may refer, in this regard, to the case of M. Raghavelu vs.

Govt. of A.P. and another, reported in (1997) 10 SCC 779, wherein the

Court has pointed out that when persons, directly in charge of a work,


had been found not guilty of the charge framed, another person, who

was indirectly in charge of the same work, could not have been

punished for similar charge. The relevant observations, made by the

Supreme Court, in M. Raghavelu (supra), read as under:

“5. The argument of the learned counsel for the appellant is that if

the persons directly in charge of the construction work were found

not guilty of the charge framed, the appellant, who was indirectly

in charge of the work, cannot be punished for similar charge

leveled against him. We find force in the argument of the learned

counsel for the appellant and we do not think that the argument of

the learned counsel for the respondent that the enquiry officer in

this particular case has gone into the merits and has given

different finding should be accepted. As pointed out earlier, on

the basis of the same set of evidence the officers, who were directly

in charge of the construction work, were exonerated of the charge

and we see no reason to pick out the appellant alone for finding

him guilty of the charge.”

56. In the case at hand, the respondent herein was not the one, who

had verified the documents/certificates, in support of the claims of the

various mazdoors (casual labourers) for TSM status. The verification

was, in fact, done by a Selection Committee, which consisted of,

amongst others, the said Sri A. K. Sarkar, and the respondent herein

merely acted on the recommendations, which had been made by the

said Selection Committee. When a member of the said Selection

Committee, such as, Sri A. K. Sarkar, was exonerated of the charge, the

respondent herein, who was the Chairman of the Selection Committee,

could not have been penalized for having acted upon the

recommendations made by the Selection Committee.


57. Mr. Choudhury, learned Senior counsel, has correctly pointed out

that since the said Sri A. K. Sarkar was a member of the Selection

Committee, which had recommended the names of the Mazdoors for

TSM status, the said Sri Sarkar had clearly played a primary role and the

role played by the respondent herein, in accepting the recommendation,

was secondary. When the finding of the inquiring authority, holding

the said A. K. Sarkar not guilty, was accepted by the present petitioners,

there was no logical cause for penalizing the respondent herein on the

ground that the respondent herein had acted on the recommendations

of the Selection Committee of which the said Sri A. K. Sarkar was a

member.

58. Coupled with the above, further points out the learned counsel,

Mr. K. N. Choudhury, that the JTOs and Supervisors, who had

forwarded the names of the Mazdoors (casual labourers) to the Selection

Committee, have been acquitted by the High Court by its judgement

and order, dated 14.03.2007, passed in Crl. Appeal 254/2005, Crl.

Appeal 258/2005, Crl. Appeal 268/2005, Crl. Appeal 269/2005 and Crl.

Appeal 47/2004.

59. We are inclined to pause, for a moment, and point out, at this

stage, that though the standard of charge, in a criminal trial, is different

from that of a disciplinary proceeding, the fact remains that, in a

departmental proceeding, when the main accused has been acquitted,

there is no justification in continuing with the departmental proceeding

against a co-accused on the same set of facts. In the present case, the

contention of the petitioners is that the respondent herein had not


verified the genuineness of the experience certificates, submitted by the

Mazdoors, and, if that be the case, the experience certificates, which had

been claimed to be forged, must be, now held (on the acquittal of the

said A. K. Sarkar), to have been found, on judicial scrutiny, not forged.

A reference may be made, in this regard, to the case of M. V. Bijlani vs.

Union of India and others, reported in (2006) 5 SCC 88, wherein the

Supreme Court held as under:

“It is true that the jurisdiction of the court in judicial review is limited.

Disciplinary proceedings, however, being quasi-criminal in nature, there

should be some evidences to prove the charge. Although the charges in a

departmental proceedings are not required to be proved like a criminal

trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact

that the Enquiry Officer performs a quasi-judicial function, who upon

analysing the documents must arrive at a conclusion that there had been

a preponderance of probability to prove the charges on the basis of

materials on record. While doing so, he cannot take into consideration

any irrelevant fact. He cannot refuse to consider the relevant facts. He

cannot shift the burden of proof. He cannot reject the relevant testimony

of the witnesses only on the basis of surmises and conjectures. He cannot

enquire into the allegations with which the delinquent officer had not

been charged with.”

60. Reference may be made also the case of Lt. Governor, Delhi and

others vs. HC Narinder Singh, reported in (2004) 13 SCC 342.

61. In the present case, the justification of the disciplinary authority to

discard the finding of the inquiry authority, as conveyed by the

memorandum of disagreement, dated 04.01.2005, is that the inquiring

authority found that TSM status could have been conferred only after

referring the cases to DOT. This aspect of the matter did not, however,

form part of the charge on the basis of which the inquiry was held and,


hence, it was not legally permissible to proceed against the respondent

herein by serving him with a memorandum of disagreement. In this

regard, the reference, made by Mr. Choudhury, learned Senior counsel,

to the case of Laxmi Devi Sugar Mills vs. Nand Kishore Singh (AIR

1957 SC 7), is also not wholly incorrect.

62. Because of what have been discussed and pointed out above, we

do not find that the impugned orders, passed by the learned Tribunal,

suffer from any infirmity, legal or factual. We, therefore, find that this

set of writ petitions is wholly devoid of merit.

63. In the result and for the foregoing reasons, these writ petitions fail

and the same shall accordingly stand dismissed.

64. No order as to costs.

JUDGE JUDGE

Dutt-rk

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