N. Narayanan v. Bharat Sanchar Nigam Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944** ## **OP (CAT) NO. 103 OF 2016** **AGAINST THE ORDER IN OA 402/2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER:** N. NARAYANAN S/O.LATE PARAMESHWARAN NAIR, GROUP-D, OFFICE OF THE SUB DIVISIONAL ENGINEER, BSNL, TELEPHONE EXCHANGE, AMALANAGAR, THRISSUR RESIDING AT NANDILATH HOUSE, KAIPARANBU P.O., THRISSUR DISTRICT, PIN: 680 546 BY ADVS. SRI.M.R.HARIRAJ SRI.P.A.KUMARAN ## **RESPONDENTS:** - 1 BHARATH SANCHAR NIGAM LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SANCHAR BHAVAN, NEW DELHI 110 001. - 2 CHIEF GENERAL MANAGER TELECOM, BSNL, KERALA CIRCLE, TRIVANDRUM 695 033. - 3 PRINCIPAL GENERAL MANAGER TELECOMMUNICATION, BHARAT SANCHAR NIGAM LTD. SANCHAR BHAVAN, THRISSUR 680 022. - 4 AREA MANAGER NORTH OFFICE OF PRINCIPAL GENERAL MANAGER TELECOM BSNL, TUDA -2- O.P (CAT) No.103/2016 ROAD, THRISSUR 680 022. - 5 DIVISIONAL ENGINEER PHONES III THRISSUR 680 022. BY ADVS. SMT.I.SHEELA DEVI, SC, BSNL, SR. ADV. K.RAMKUMAR THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3- O.P (CAT) No.103/2016 ## **JUDGMENT** ## S.V.Bhatti, J. The applicant/an employee in BSNL aggrieved by the order dated 03.12.2015 in O.A No.402/2012 of the Central Administrative Tribunal, Ernakulam Bench, is the petitioner in this Court. 2. On 20.03.1997, the respondents served the memo of charges on the alleged misbehaviour of the petitioner with a superior officer of the BSNL. During the currency of the disciplinary proceeding, on 22.07.1998, the petitioner was sent for training for promotion and appointment as Telecom Mechanic. The petitioner claims to have completed the training successfully and should have been promoted but for the pendency of disciplinary proceedings against the petitioner. The enquiry officer vide report dated 10.01.2010 has found that charge-I is partially proved and charge-II is not proved or -4- O.P (CAT) No.103/2016 established. The disciplinary authority, without serving notice on the petitioner, disagreeing with the Inquiry officer’s report, imposed the penalty of reduction to a minimum of the pay scale for two years vide order dated 16.05.2000. 3. To shorten the narrative, we can straight away refer to the order dated 25.01.2010 in TA No.74/2008, wherein the Tribunal quashed the punishment orders dated 16.05.2000, 10.11.2000 and 28.12.2006 of the appellate and revisional authorities. For the view the Tribunal has taken, liberty was granted to the disciplinary authority to initiate steps under subrule (2) of Rule 15 of the CCS (CCA) Rules 1965. The operative portion of the order of the Tribunal reads thus: “14. In the above facts and circumstances of the case, we quash and set aside Ext.P-2 order dated 16.5.2000, Ext.P3 order dated 10.11.2000 and Ext.P-5 order dated 28.12.2006. However, we grant liberty to the Disciplinary Authority to discharge his statutory duties strictly in accordance with the sub Rule (2) of the Rule 15 of CCS (CCA). Rules, 1965. The Disciplinary Authority shall specify its own tentative reasons for disagreement with -5- O.P (CAT) No.103/2016 the findings of the Inquiry Officer and shall provide an opportunity to the petitioner to make a representation against it as well as the Inquiry Officer's report. Thereafter, the Disciplinary. Authority, untrammeled by the events which has already taken, place, may pass appropriate fresh order in accordance with the rules. The petitioner may, thereafter, avail all the departmental remedies available to him as provided under the rules to challenge the Disciplinary Authority's order, if it offends him in any manner. Accordingly, this T.A is allowed. There shall be no order as to costs.” 4. The above liberty led to the reconsideration resulting in the order dated 31.05.2011 reduction of pay for two stages for two years, and the punishment was made effective from 01.06.2011. On the appeal filed by the petitioner, the punishment was modified as reduction of pay by one stage for one year. The revision filed by the petitioner resulted in dismissal. The petitioner filed Original Application No.402/2015 challenging the order of the punishment of reduction of pay by one stage for one year and also that imposition of punishment from 01.06.2011 is illegal and would result in extraordinary hardship to the petitioner and denies the consideration of the -6- O.P (CAT) No.103/2016 petitioner’s case for promotion from 2000 till 2011. 5. We have heard Adv. M.R Hariraj for the petitioner and learned Sr. Adv. K. Ramkumar and Sr. Adv. Sheela Devi I. learned Standing Counsel for BSNL. 6. Mr M.R Hariraj has compartmentalised his submissions into two portions. The first portion deals with the findings recorded by the disciplinary authority, which have been arrived at without any evidence. 7. We are not adverting to all the contentions now canvassed before us for two reasons. Firstly, the contentions which are canvassed before the Tribunal are reiterated. However, with more refinement commensurate to the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the efficacy of such an argument can be examined once an error or jurisdictional error is pointed out in -7- O.P (CAT) No.103/2016 the judicial review undertaken by the Tribunal. To conclude the first portion of the argument, we excerpt the following paragraphs from the order of the Tribunal. “21. It is argued by the learned counsel for the applicant that the evidence of Smt. Indira does not radiate confidence. We have gone through the deposition of that witness as well. She has stated that PW3- Jyothi Menon was seen coming out weeping, and she immediately told PW2 and others that the applicant abused her using vulgar language. That is a circumstance so proximate in time and place. The words so spoken by PW3, when it has proximity of time and place and continuity of the action and when it communicated the design, intention or which transpired immediately preceding those words, or gestures so connected to the fact in issue is a conduct relevant even in a criminal trial. Hence that evidence cannot be ignored by the authority who is to accept the evidence on that point. It was rightly accepted by those authorities. The argument vehemently advanced by the learned counsel for the applicant that it is easy for a woman to make such an allegation against a man and to wreak vengeance is not acceptable here, as the evidence was found otherwise credible. The evidence given by PW3 gets corroboration from the evidence of PW2 and the circumstances pointed out earlier. The standard of proof required in a departmental inquiry is not such as required in a criminal trial. 22. The decision of the Supreme Court in Noida Enterpreneurs Association Vs. Noida and -8- O.P (CAT) No.103/2016 others (2007) 10 SCC 385 has been relied upon by the learned counsel for the respondents in support of the same. The test of wednesbury principle of reasonableness is to be applied to find out whether the decision rendered by the disciplinary authority, confirmed by the appellate authority was illegal or whether it suffered from procedural impropriety or is it one, which a sensible decision maker could on the material before him or within the frame work of law could arrive at. In support of that the learned counsel for the respondents relied upon the decision in Union of India Vs. G. Ganayutham - (1997) 7 SCC 463. It is submitted by the Learned counsel for the respondents that on going through the entire evidence and finding rendered by the disciplinary authority, it can be seen that no irrelevant matters had crept into the mind of the disciplinary authority so as to find fault with him. There is nothing to show that the decision suffers from absurdity or perversity. It is not for the Tribunal to go into the correctness of the choice made by the decision making authority even if it is possible for the Tribunal to take another view also. The Tribunal cannot substitute its own decision to that of the administrator/decision making authority. The decision in Ganayutham (supra) was followed by the Supreme Court in PC Kakkar's case (2003) 4 SCC 364.. Drawing inspiration from the decisions of the Supreme Court cited supra, the learned counsel further argues that the Tribunal cannot interfere with the finding unless the decision rendered by the disciplinary authority is illegal or suffered from impropriety or was shocking to the conscience of the court that it was totally in defiance of logic or moral standards. 23. It is vehemently argued by the learned counsel for the applicant that the finding was -9- O.P (CAT) No.103/2016 entered by the disciplinary authority on mere surmises and conjunctures. We are not persuaded to accept that argument also. Reasonable deductions or inferences made on the accepted credible statements given by the complainant or witnesses does not tantamount to nor is it akin to surmises suppositions or conjunctures. From proved facts reasonable inferences and deductions can certainly be drawn by the authority competent to decide the issue. That is how a decision is to be taken from the proved facts and circumstances. It falls within the realm of decision making process. Such inferences cannot be brushed aside stating that they are only surmises or conjunctures. On going through the statement of PW3 (complainant) and PW2 (Smt. Indira) we are certain that there is nothing artificial or incredible in the statements given by them. 24. We are also reminded of the fact that judicial review by the Tribunal is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. The Court/Tribunal is denuded of the power to reappreciate the evidence and to come to its own conclusion on the proof of a particular charge. The scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the Court cannot arrive on its own independent finding (see the decisions of the Hon'ble Supreme Court in High Court of Judicature at Bombay through its Registrar v. Udaysingh S/o. Ganpatrao Naik Nimbalkar & Ors. - AIR 1997 SC 2286, Govt. of A.P. & Ors. v. Mohd. Nasrullah Khan - AIR 2006 SC 1214 & Union of India & Ors. v. Manab Kumar Guha - 2011 (11) SCC 535) -10- O.P (CAT) No.103/2016 25. Regarding Charge No.II (that the applicant did not show devotion to duty), learned counsel for applicant has pointed out certain discrepancies as to the time when the applicant was stated to have left the work spot. Even according to him he left at 4 00pm (he was expected to be at the work spot upto 5 pm). The learned counsel for applicant further states that there was reason to leave the place at 4.00 pm. Be that as it may, that charge is only ancillary to Charge No.I. The allegation is that the applicant left the work spot even before completion of the work. Since charge No.1 which could be proved is found to be a very serious one it is actually unnecessary to delve deep into the proof of Charge No.II. Though there may be slight inconsistencies given by the evidence witnesses as to the time factor we are not inclined to hold that the finding is vitiated by malafides or that the decision so rendered is whimsical or capricious so as to upset the same. We are not here to reappreciate the evidence on that point as well. 26. As stated earlier the main charge against the applicants that he misbehaved towards his superior-lady officer (PW3) and abused her in vulgar and filthy language. It is also proved fact that he followed the complainant on her way to the office and abused using amorous words against her. There is absolutely nothing to interfere with the finding of guilt entered against the applicant. 27. It is a case where the disciplinary authority awarded only a penalty of reduction of pay by two stages for two years without cumulative effect. According to the learned counsel for the respondents considering the gravity of the offence the penalty imposed by the disciplinary authority was very lenient. Still the appellate authority -11- O.P (CAT) No.103/2016 reduced the penalty by reducing the pay only of one stage, for one year only, without cumulative effect. Therefore, the punishment imposed on the applicant is not shockingly disproportionate to interfere with the same. The challenge against the same is devoid of any merit. 28. The learned counsel for the applicant submits that in any event the a declaration may be granted to the applicant holding that the applicant is entitled to be promoted as Telecom Mechanic on expiry of the period of penalty: reckoning the date of penalty as 16.5.2000. This plea raised by the applicant is strongly resisted by the learned counsel for the respondents. It is pointed out that the disciplinary authority even at the earlier point of time had shown maximum leniency awarding only a penalty of reduction of pay by two stages without cumulative effect. Even as per Annexure A2, the appellate order impugned in this case, the appellate authority showed maximum leniency by causing reduction of pay by one stage for one year only without cumulative effect with the hope that it would lead to a quietus of matter but the applicant unnecessarily dragged on the matter The applicant cannot/now contend that the penalty order must be deemed to have come into effect on 16.5.2000. As this Tribunal found that the penalty imposed on the applicant is not strikingly disproportionate it will be improper on the part of the Tribunal to fix another date as the date when the penalty is to come into effect. If the request now made by the applicant is accepted it would virtually nullify the effect of penalty, the learned counsel for the respondents submits. It is too late in the day for the applicant to contend that the date of order of penalty should be treated as 16.5.2000 as against Annexure A1 order confirmed -12- O.P (CAT) No.103/2016 by Annexure A2 appellate order. The Tribunal cannot substitute a date to suit the convenience of the applicant as the date of commencement of the penalty. The applicant himself was responsible for the delay, the learned counsel for the respondents submits. Whatever that be, it has already been found that maximum leniency was shown by the disciplinary authority and appellate authority in the matter of penalty. Therefore, we find no justification for altering the date of commencement of the penalty imposed as per Annexure A2. Original Application is hence dismissed. No order as to costs.” 8. We have difficulty firstly in appreciating the contention that Tribunal erred in any way in appreciating the misconduct alleged against the petitioner, the evidence brought on record, the reasons recorded by the disciplinary authority for disagreeing with a few findings recorded by the Inquiry Officer and the proportionality of punishment desirable in a case at present. We are in complete agreement with the findings recorded by the Tribunal. The first contention on the findings recorded by the disciplinary authority etc., do not warrant further consideration and is accordingly rejected. -13- O.P (CAT) No.103/2016 9. It is further contended that even if the imposition of the punishment is justifiable, the competent authorities erred in law by making the punishment effective from 01.06.2011. Such a course would deny considering the petitioner’s case for promotion for merely ten years, i.e between 2000 to 2010, of valuable service. Therefore, it is argued that the effective date of imposing the penalty should be atleast from 16.05.2000, that is, the date on which the punishment was, at the first instance, imposed on the petitioner. 10. Learned Sr. counsel rightly invited our attention to the view expressed by the Tribunal, which is already excerpted, and the petitioner cannot ask for retrospective application of a punishment imposed pursuant to a direction issued by the Tribunal in TA No.74/2008. The consideration of the case is under Rule 15 (2) of CSS (CCA), and the effective date is correctly made. This contention fails and is rejected. -14- O.P (CAT) No.103/2016 ## 11. The ancillary ground raised is by inviting our attention to the following prayer in the Original Petition: “ii. In alternative to declare that applicant is entitled to be promoted as Telecom Mechanic on expiry of the period of the penalty reckoning the date of penalty as 16.05.2000 and directs the applicant to consider him for promotion with effect from 16.05.2001 with all consequential benefits.” 12. Mr Hariraj contends that the petitioner is not considered for promotion as Telecom mechanic for the past 13 years on the ground that either the Original Application is pending or Original Petition is pending in this Court. The nonconsideration of the petitioner after the expiry of the currency of the punishment period is illegal and arbitrary. 13. The non-consideration for promotion is not disputed by the respondents. Therefore, we are of the view that the denial of promotion post the expiry of the punishment period results in an uninformed punishment to the petitioner. Hence, -15- O.P (CAT) No.103/2016 we direct the respondents to consider the petitioner for promotion in accordance with the Rules by treating the effective date of punishment as 01.06.2011 and promoting him as per his eligibility/entitlement within two months from the date of receipt of the copy of the judgment. The original petition is disposed of with the above observations. **S.V.BHATTI JUDGE** **BASANT BALAJI JUDGE** _JS_ -16- O.P (CAT) No.103/2016 ## **APPENDIX OF OP (CAT) 103/2016** PETITIONER EXHIBITS - Exhibit P1 P1: A TRUE COPY OF THE ORIGINAL APPLICATION 402/2012 ALONG WITH THE ANNEXURES FILED BY THE PETITIONERS - ANNEXURE A18: A TRUE COPY OF REVISION ORDER NO.AM (N)/RULE 36/NN-11-12/8 DATED 30.11.2011 ISSUED BY THE 3RD RESPONDENT. - ANNEXURE A17: A TRUE COPY OF THE REPRESENTATION MADE BY APPLICANT DATED 24.09.2011. - ANNEXURE A16: A TRUE COPY OF AN APPEAL MADE BY THE APPLICANT DATED 22.06.2011 AGAINST A1. - ANNEXURE A15: A TRUE COPY OF THE DETAILED REPRESENTATION DATED 31.07.2010 MADE BY THE APPLICANT AGAINST THE DISAGREEMENT RECORDED BY DISCIPLINARY AUTHORITY. - ANNEXURE A14: A TRUE COPY OF THE LETTER NO.X/OCBI/SDE/NN/102011/1 DATED 16.07.2010 ALONG WITH THE DISAGREEMENT RULE. - ANNEXURE A13: A TRUE COPY OF THE ORDER IN TA 74/2008 DATED 25.01.2010. - ANNEXURE A12: A TRUE COPY OF THE JUDGMENT IN OP NO.32823/2000. - ANNEXURE A11: A TRUE COPY OF THE ORDER NO.OCBI/SDE/NN/0001/DATED 16.05.2000. - ANNEXURE A10: A TRUE COPY OF THE REPRESENTATION MADE BY THE APPLICANT DATED 17.2.2000. - ANNEXURE A5: A TRUE COPY OF THE COURSE CERTIFICATE DATED 25.9.1998 ISSUED BY THE SUB DIVISIONAL ENGINEER -17- O.P (CAT) No.103/2016 ## TRAINING. - ANNEXURE A9: A TRUE COPY OF THE APPOINTMENT NO.STA/2317/98/100 DATED 6.8.1999 ISSUED BY THE ASSISTANT GENERAL MANAGER OF THE 3RD RESPONDENT. - ANNEXURE A8: A TRUE COPY OF THE INQUIRY REPORT DATED 10.1.2010 ALONG WITH LETTER NOX/CCBI/IDE/NO.99-00/1-1 DATED 25.1.2000 WAS FORWARDED TO THE APPELLANT. - ANNEXURE A7: A TRUE COPY OF THE DEFENCE STATEMENT DATED 2.4.1997. - ANNEXURE A6: A TRUE COPY OF THE CHANGE MEMO NO.XCON/PF/NN/1 DATED 20.3.1997. - ANNEXURE A4: A TRUE COPY OF THE RELIEVING ORDER NO.TRG-98-99 PME 19 DATED 25.9.1998 ISSUED BY THE SDE TRAINING CENTRE, THRISSUR. - ANNEXURE A3: A TRUE COPY OF THE ORDER DIRECTING TO ATTEND TRAINING CLASS. - ANNEXURE A2: A TRUE COPY OF THE APPELLATE ORDER DATED 30.7.2011 NO.AM (NO.) RULE 36/NN/2011-12 ISSUED BY THE 3RD RESPONDENT. - ANNEXURE A1: A TRUE COPY OF ORDER OF PENALTY DATED 31.5.2011 NO.X/CON FDL/NN/2011-12/3 ISSUED BY THE 4TH RESPONDENT. - EXHIBIT P2: P2: THE TRUE COPY OF REVISION ORDER NO.AM(N)/RULE 36/NN-11-12/8 DATED 30/11/2011 ISSUED BY THE 3RD RESPONDENT - EXHIBIT P3: P3: A TRUE COPY OF THE REJOINDER DATED 27/6/2013 FILED BY THE PETITIONERS - EXHIBIT P4: P4: THE TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 16/5/2015 FILED BY THE -18- O.P (CAT) No.103/2016 ## RESPONDENT EXHIBIT P5: P5: A TRUE COPY OF THE FINAL ORDER DATED 3/12/2015 IN OA 402/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH