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Judgment
P. Madhavan, Member J
This is an Original Application filed by the applicant seeking the following reliefs:
"i) Call for records leading to Annexure A7 and Annexure A11 and set aside the same as legally and factually unsustainable;
ii) Direct the first respondent to reinstate the applicant and treat her to have continued in service untrammeled by Exhibit P7 and disburse all consequential benefits including arrears of pay and allowances to the applicant;
ii)(a) Call for the records leading to Annexure A12 and declare that Rule 43 of BSNL CDA Rules is illegal and unsustainable to the extent it does not include the penalty of compulsory retirement where prior review is required before it is finalized.
iii) Declare the applicant to be reinstated in service with immediate effect and she is not liable to be imposed with the penalty of compulsory retirement as ordered in Annexure A7; and
iv) Such other reliefs that the Honourable Tribunal deem fit in the facts and circumstances of the case."
The applicant in this case is aggrieved by the impugned orders at Annexures A7 and A11 issued by the respondents. According to the applicant Annexure A7 penalty order giving compulsory retirement to the applicant was issued without supplying the charge memo, without conducting a formal inquiry, without supplying the copy of the inquiry report, etc. So it is violative of principles of natural justice. According to the applicant the punishment imposed in this case is by the General Manager and he is not the competent authority to impose punishment. She also alleges that being a member of the Scheduled Tribe community she is being harassed by the upper class officials under the leadership of the 6th respondent. The respondents had issued a lookout notice against her as if she is a hardcore criminal. This has affected her mentally, socially and officially. According to her the entire charges raised were baseless and it was done in gross violation of the principles of natural justice. The appellate authority had kept the appeal for 2½ years and disposed of the appeal just before the date of her superannuation in order to deprive the applicant a chance of reinstatement. She mainly challenges Annexures A7 and A11 on the ground that they are illegal, arbitrary and against the eye of law. The said orders are expression of malice and prejudice entertained by the respondents against the applicant who belongs to Scheduled Tribe community. The disciplinary authority that had imposed the punishment is not competent to impose the penalty as per BSNL CDA Rules. The suspension order issued to her as Annexure A2 was pre-dated and was attempted to be served on the applicant. The charge memo and the inquiry report were not served on the applicant. The respondents had conducted the inquiry behind the back of the applicant which is against the principles of natural justice. The applicant was not even supplied the original copy of the inquiry report even though she had applied for the inquiry report. The paper publication against her was incomplete and insufficient to know about the charge. The charges leveled against the applicant were vague and frivolous to be rejected at the threshold itself. According to the applicant the entire proceedings arise out of bias and prejudice entered upon by DET, Mavelikkara. The penalty imposed is disproportionate to the charges leveled against her.
The respondents entered appearance and filed a detailed reply statement. According to them the allegations made in the OA are unfounded and it is baseless. There is no purpose for the respondents to adopt a discriminatory attitude towards the applicant. The charge sheet dated 4.7.2011 intimating the proposal to hold an inquiry under Rule 36 of the BSNL CDA Rules, 2006 was issued by the Area Manager, Alappuzha to the applicant through Divisional Engineer Telecom, Mavelikkara. She refused to accept the same and hence the charge memo was sent in the available residential address of the applicant and it was returned with endorsement 'not claimed'. Subsequently, the respondents have issued a paper publication in Malayalam dailies on 11.8.2011 informing the applicant regarding the charge and asking her to participate in the inquiry proceedings and if she fails to do the same, the proceedings will be held exparte. It was submitted that when the whereabouts of the applicant were not known the matter was reported to the local police. There is no malice or prejudice against the applicant as alleged. There is no merit in highlighting the issue of lookout notice and to say that the respondents are prejudiced against her. The applicant has suffered earlier punishments also. There had occurred an instance where penalty of withholding of increment was imposed on 10.7.2006 for the "misconduct" of keeping office files in her personal custody and not allowing to hand over the same inspite of repeated requests. She had also committed misbehavior with public, her own colleagues, refusing to accept the inquiry communications earlier, etc. The denial of promotion to the applicant was for valid and justifiable reason and not on the basis of any enmity. The applicant in this case was in the habit of coming late to the office and absenting herself from duty without information or knowledge. On the basis of the report received from the Divisional Engineer, Mavelikkara. It was under the orders of Area Manager she was permitted to draw salary for the dates mentioned in Annexure A1 letter. The applicant was placed under suspension with immediate effect and the order was given to her but she refused to accept it. Thereafter, Annexure A2 suspension order was sent to the known address of the applicant. The refusal to accept Annexure A2 suspension order occurred in the presence of witnesses and there is nothing to dispute the same. It is clearly mentioned in the suspension order that disciplinary proceedings are being initiated against her. As per Rules, no leave can be granted during the suspension period. The official is not on duty during this period and no leave can be granted to such a person. It is because of this reason the leave application filed by the applicant was cancelled. So the said leave was not granted. The applicant in this case was absent on 21.4.2011 and she had not put her signature in the attendance register. According to the respondents, on that date she might have come late and therefore, she might not have marked attendance. As per Annexure A5(a) the vigilance officer who inspected the office later saw the applicant in the office and therefore, wrote a comment in the attendance register that the applicant was present and had not marked attendance. The visit of the vigilance officer was after the commencement of the office hours. It occurred only because the applicant was late in coming to the office. According to the respondents the applicant had willfully absented herself from the inquiry proceedings. The inquiry was conducted exparte and the inquiry officer had submitted his report on 12.4.2012 finding that the charges leveled against the applicant are proved. The inquiry report was sent to the applicant by registered post with a request to make a representation if any, within 15 days on 2.5.2012. The applicant on receipt of the letter reported back stating that the inquiry report was not legible. Subsequently, the respondents had issued another copy of the inquiry report through SDE, Mavelikkara asking her to give necessary representation, if any, within a period of 15 days. The SDE handed over the communication dated 28.5.2012 in the presence of witnesses but the applicant refused to receive it. The refusal was witnessed by one TTA and Sr. TOA of the said office. Even though the Divisional Engineer had called the applicant personally and tried to hand over the inquiry report she refused to receive the same.
Another aspect submitted by the respondents is that since the Deputy General Manager (respondent No. 3) was one of the witnesses in the inquiry the file was made over to the 1st respondent for taking further action. The General Manager had examined the report and imposed the penalty of compulsory retirement on her. There is no basis for the allegation that she was denied the opportunity of hearing. There is no illegality in the order passed by the General Manager as the disciplinary authority the Deputy General Manager was a witness in the inquiry. The applicant was earlier awarded with minor penalty by postponing of one increment for a period of one year as per order dated 1.7.1992. She was suspended from service on 25.4.2003 till it was revoked on 23.6.2003. She was also imposed with a penalty of withholding of next increment for a period of one year without cumulative effect as per order dated 10.7.2006. There had occurred incidence of misbehavior to the public, colleagues and security personnel of the office by the applicant and she also refused to obey the instructions of the superiors. In such circumstances a punishment was also imposed of reduction of pay by three stages for a period of two years as per order dated 26.10.2009. The respondents had to order dies non on 25 occasions due to unauthorized absence of the applicant. According to the respondents they have given all possible opportunity of hearing to the applicant during the proceedings and they had also attempted to serve the charge memo, inquiry report, etc. on the applicant directly and through substituted service.
We have heard the counsel appearing for the applicant and counsel appearing for the respondents in this case. The applicant mainly contended that the respondents in this case are on enmity with the applicant as she belongs to Scheduled Tribe community. The applicant in this case was harassed many times by those who belonged to upper castes in the office and she was not permitted to mark her attendance in the attendance register. She mainly contended that the disciplinary authority as far as the applicant is concerned is the DGM but the penalty imposed on her was by the General Manager. Hence the order of the General Manager is not in accordance with the rules and is liable to be set aside. It was also contended that the charges leveled against the applicant are vague and unclear and that itself is a reason for setting aside the order. The applicant was not given sufficient opportunity to contest her case and this has occurred in the failure of the principles of natural justice.
On the other hand the learned counsel for the respondents would contend that the respondents have always insisted on intimating the applicant at every stage. Since the applicant had refused to accept the suspension order it was sent to her by post. When the charge memo was issued, the applicant did not accept the same and evaded service of the same to her. So the respondents had published the charge memo in the leading newspaper and it is produced in this case as Annexure A8. So according to the respondents there is absolutely no reason to hold that the procedure adopted by the respondents are against the procedure prescribed in the BSNL CDA Rules, 2006. The applicant was given sufficient opportunity to appear and file a detailed statement but she refused to do the same and had absented herself from the inquiry. Now she cannot complain that she was prejudiced by the exparte order. There is also no merit in the contention that the applicant was being harassed by the respondents. There is absolutely no reason to mention how the respondents are inimical to her and what is the motive of the respondents to harass her. The applicant is in the habit of not coming to the office in time and she had failed to attend the duties entrusted to her. She had suffered various other penalties even prior to this proceeding and the disciplinary authority had considered all these aspects and passed the impugned order as per Annexure A7. The appellate authority had also considered all these aspects and passed Annexure A11 order confirming the order of the disciplinary authority.
We have carefully gone through various pleadings and documents produced in this case. It is admitted by both sides that the disciplinary proceedings were conducted exparte. According to the applicant she was not given copy of the charge memo and notice regarding the proceedings against her. But on going through the final order passed by the respondents it can be seen that the respondents had taken every steps for intimating the applicant at various stages of the disciplinary proceedings. The charge memo was issued to her by registered post AD but she refused to accept the same. Then the respondents had to publish the same in daily newspaper intimating her that if she fails to participate in the inquiry the proceedings will be conducted exparte. Annexure A8 clearly shows that such a notice was published on 5.8.2011 itself by the Area Manager of BSNL Telecom, Alappuzha. Inspite of these steps, the applicant did not participate in the inquiry and has not filed any statement nor has examined any witnesses in support of her case. The inquiry officer conducted the inquiry and found that the applicant is guilty of the charges leveled against her. Since the Deputy General Manager was a witness in the inquiry, it was found not proper to act as disciplinary authority and hence General Manager was advised to act as a disciplinary authority and he had passed Annexure A7 order. As per the said order the applicant has violated BSNL CDA Rules 4(1)(a), 4(1)(b), 4(1)(c) and 4(1)(d) which led to imposition of the punishment of compulsory retirement. On going through the procedure adopted and details submitted in the final order passed by the General Manager it can be seen that there has not occurred any procedural irregularity in this case. The respondents had conducted the inquiry as per the requirement of the rules in a fair manner and came to a finding that the applicant was guilty under the rules and imposed the penalty of compulsory retirement.
The applicant had raised another contention that the respondents were against the applicant and they had imposed the penalty in order to remove her from service. There is no merit in the said contention and the facts laid down do not have any basis in the records produced before this Tribunal. So this argument has no legs to stand in the circumstances of the case. Even though the inquiry was conducted exparte, we do not find any reason to interfere with the final order passed in this case.
The respondents have relied upon a decision of the Hon'ble Supreme Court in Bank of India v. Apurba Kumar Saha - (1994) 2 SCC 615 wherein it is held as under:
"4. Having regard to the arguments addressed by learned Counsel on both sides we have gone through the papers and seen that the High Court's view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. The records of the disciplinary proceedings show that the respondent had avoided filing of the written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate in the disciplinary proceedings. A Bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the Bank-employer had resulted in violation of principles of natural justice of fair hearing."
The said case arose out of a case where a bank employee was proceeded exparte by the Department. So we do not find any reason to interfere with the impugned order passed by the disciplinary authority in this case. At this juncture the counsel for the applicant contended that the main charges leveled against the applicant was that the applicant failed to maintain BB register with respect to the 604 broad band connections working in Mannar area and she had not reported the progress in respect of the said work to the controlling officers. Another article of charge was irregular attendance in the office and inspite of repeated warnings the applicant continued with the same behavior and she had deliberately evaded the acceptance of the official communications issued to her and committed willful disobedience of the superiors. It was alleged that she had falsified the register unauthorizedly marking her attendance on the date of her absence days i.e. on 5.5.2011 and 6.5.2011. Going through the above charges the applicant submits that the matters of the allegations are minor in nature and the punishment is very severe and disproportionate to the gravity of charges.
We have heard both sides and the counsel for the respondents had invited our attention to the earlier instances where the applicant had two punishments through departmental action and also the circumstances in which dies non had to be implemented on the applicant on 25 instances earlier. On a perusal of the records produced in this case, it appears that there are reasons for imposing a major penalty on the applicant. Now the applicant has retired and there is no purpose in interfering in the matter on the ground of disproportionate punishment as the applicant has retired from service receiving all benefits etc. In the circumstances, we are not inclined to interfere with the punishment imposed.
In the result we hereby dismiss the OA. No order as to costs.