C.W.P. No. 16784 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16784 of 2009 Date of Decision 06.07.2010 Jit Singh Sidhu -----Petitioner Versus Central Administrative Tribunal and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. N.P. Mittal, Advocate for the petitioners. Mr. Anil Rathee, Advocate for the respondent No.2 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. This petition filed under Article 226 of the Constitution by the retired Junior Telecom Officer- Jit Singh Sidhu, is directed against the order dated 7.9.2009 passed by the Central Administrative Tribunal, Chandigarh Bench (for brevity 'the Tribunal') in T.A. No. 34/PB/2009 declining his prayer for quashing the order dated 28.4.2007 (Annexure P-9) passed by the Director (Human Resource Department), Bharat Sanchar Nigam Limited and also upholding the order dated 26.2.2004 (Annexure P-6) passed by the Chief General Manager, Punjab Telecom Circle, Chandigarh. It is appropriate to mention that vide order dated 26.2.2004, the Chief General Manager, C.W.P. No. 16784 of 2009 -2- Punjab Telecom Circle, Chandigarh has inflicted the penalty of withholding of increments for three years with cumulative effect after recording finding that the petitioner is guilty of misconduct. He has proved to have joined hands with other officials during the period 22.9.1990 to 7.3.1991 and had indulged in the illegitimate and fraudulent exercise of recording fake and contrived subs. meter readings in the case of a large number of favoured subscribers of Moga Telephone Exchange so as to project recording of nominal calls in their cases on fortnightly basis. Accordingly, it resulted in actual under billing to the extent of around 1,21,000 units for the billing period ending on 15.1.1991 and 15.2.1991. The Facts in brief are that the petitioner was appointed as Repeater Station Assistant in the department of Telecom on 8.9.1968. He qualified departmental examination for recruitment to the post of Junior Telecom Officer (JTO). Accordingly, he was selected and appointed as such w.e.f. 7.12.1981. On 12.8.1993, he was served a charge memo under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity '1965 Rules'). According to Article of charges, he joined hands with Shri Mangat Ram Bali, Selection Grade Telephone Operator to manipulate the reading of telephone subscribers meter reading in Moga Trunk Exchange. In the regular inquiry concluded on 1.8.1996 (Annexure P-2) charges levelled against him were not proved. Accordingly, the disciplinary authority under the Rules, namely, Deputy General Manager (Planning and Administration), C.W.P. No. 16784 of 2009 -3- Ferozepur Telecom District, vide order dated 7.10.1996 (Annexure P- 3) exonerated him. However, on 3.10.1997, Chief General Manager, Punjab Telecom Circle, went into detailed evidence recorded by the Inquiry Officer and in purported exercise of his revisional authority as per Rule 29(1) (iii) (vi) of 1965 Rules, disagreed with the findings recorded by the inquiry officer and the consequential order passed by the Disciplinary Authority. A detailed reasoned order was recorded on 3.6.1997 (Annexure P4) and the same was duly served on the petitioner. The petitioner replied the aforesaid order. However, the revisional authority vide order dated 26.02.2004 did not find any substance in the reply sent by the petitioner and proceeded to inflict the punishment of withholding of increment for three years with cumulative effect. He challenged the order dated 26.02.2004 (Annexure P6) before the Director (Human Resource Department), B.S.N.L. who also dismissed the appeal by upholding the view taken by the Chief General Manager. Petitioner still felt aggrieved by the rejection of appeal at the hands of the Director (H.R.D.) and challenged the aforesaid order. The Tribunal vide order dated 7.9.2009 (Annexure P-11) has repelled the argument that the revisional authority could not have revised the order, passed by the disciplinary authority after expiry of period of six months under Rule 29 of 1965 Rules. The rationale for rejecting the aforesaid argument is that the competent authority did not have opportunity to exercise its authority in the absence of any knowledge about the action taken on the Enquiry Report by the C.W.P. No. 16784 of 2009 -4- Disciplinary Authority. The operative part of the order passed by the Tribunal reads thus: “Admittedly, the offence of the applicant was grave enough to warrant a major penalty. Argument of the applicant that the order passed by the disciplinary authority could not have been revised after six months under Rule 29 cannot be accepted as the competent authority did not have opportunity to exercise its authority, unless it came to know of the action taken by the disciplinary and appellate authority in this matter. As soon as the matter came to his notice, after perusal of the same, he gave a show cause notice to the applicant to afford him sufficient opportunity to defend his case and passed the impugned order only after considering the representation filed by the applicant and material on record. Since the charges had already been inquired into as per rules, there was no need to remand the case to the disciplinary or the inquiring authority for further inquiry. Therefore, after giving opportunity to the applicant to put up his defence, if he so desired, the competent authority has passed the order which has been upheld by the Ministry also. Therefore, we do not feel that there is any illegality in the order passed by the competent authority, as upheld by the C.W.P. No. 16784 of 2009 -5- Ministry. The applicant has also not attributed any bias against the competent authority which would render the impugned order invalid or vitiated. It may be pointed out that corruption is a major public issue today and any form of corruption in public life is not tolerable and must be dealt with sternly, but the respondents in the instant case have left off the applicant by taking a lenient view in the matter. We, therefore, find no jurisdiction to interfere with the decision of the competent authority. The OA is bereft of merit and is accordingly dismissed. No costs.” Mr. N.P. Mittal, learned counsel for the petitioner has raised a technical issue before us by arguing that the Chief General Manager-respondent No.4 was not competent authority in 1997 to exercise powers of revision vested in the Adviser, (HRD), Department of Telecommunication as per provisions of Section 29(1)(vi). According to learned counsel, conferring power on the Chief General Manager vide letter No. 8-161/03-Vig-II dated 27.1.2004 issued by the Government of India, Ministry of Communication would not operate retrospectively as the case was reopened by the Chief General Manager by issuing letter dated 3.10.1997 (Annexure P-4), although punishment was imposed on 26.2.2004. The argument seems to be that the case has been reopened by the so called revisional authority on 3.10.1997 which has no competence on that C.W.P. No. 16784 of 2009 -6- date. Mr. Anil Rathee, learned counsel for the respondent has argued that the charges against the petitioner are grave and he has given a very lenient treatment. The competence of the Chief General Manager to exercise power under Rule 29(1)(vi) of the Rules is absolutely intact by virtue of the provision under Rule 29(1)(vi) of the Rules. Having heard learned counsel for the parties, we are of the considered view that the misconduct committed by the petitioner of manipulating the reading of telephone meter in order to benefit the telephone subscribers stands proved on record. The charges are serious in nature and, no doubt is left that the petitioner indulged in the aforesaid misconduct. Accordingly, the punishment of withholding of increments for three years with cumulative effect again by no stretch of imagination could be regarded as unjust. Therefore, we are of the considered view that the writ petition at the instance of retired Junior Telecom Officer does not warrant admission and is, thus, liable to be dismissed. We may examine the argument of Mr. N.P. Mittal, learned counsel for the petitioner in the light of Rule 29 which deals with the power of revision. It would be appropriate to make reference to Rule 29 which reads thus: “29. Revision.-(1) Notwithstanding anything contained in these rules: (i) the President; or C.W.P. No. 16784 of 2009 -7- (ii) the Comptroller and Auditor-General, in the case of a Government Servant serving in the Indian Audit and Accounts Department, or (iii) the member (Personnel), Postal Services Board in the case of a Government Servant serving in or under the Postal Services Board and Adviser, Human Resource Development, Department of Tele-communications Board in the case of Government Servant serving in or under the Telecommunications Board; or (iv) the head of a department directly under the Central Government, in the case of a Government Servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such head of a department; or (v) the Appellate Authority, within six months of the date of the order proposed to be revised; or (vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and revised any order made under these rules or under the rules repealed by Rule 34 from which an appeal C.W.P. No. 16784 of 2009 -8- is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the commission where such consultation is necessary, and may- (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance, or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit : Provided that no order imposing or enhancing any penalty shall be made by any [revising] authority unless the Government Servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, C.W.P. No. 16784 of 2009 -9- and except after consultation with the commission where such consultation is necessary: Provided further that no power [revision] shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser, (Human Resource Development), Department of Telecommunications or the Head of Department, as the case may be, unless- (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. (2) No proceeding for [revision] shall be commenced until after- (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for [revision] shall be dealt within the same manner as if it were an appeal under these Rules.” A perusal of Rule 29, it is evident that the Rule 29 opens with a non-obstante clause. In other words, over and above anything contained in the Rules, the power of revision could be exercised by virtue of sub-Rule (vi) by any other authority specified in this behalf by the President by a general or special order. It is on the basis of the aforesaid power that such an authority either on its own motion or otherwise, call for the records of any inquiry and it C.W.P. No. 16784 of 2009 -10- would, thus, be competent to revise any order made under this Rule. The President has conferred revisional power on the Chief General Manager/ General Manager vide notification dated 28.12.1993, which has been produced by Mr. Rathee, learned counsel for the respondent (Mark 'X'). A copy of the notification was also handed over to Mr. N.P. Mittal, learned counsel for the petitioner. The aforesaid notification reads thus: “Ministry of Communications (Department of Telecommunications) New Delhi, the 28th December, 1993. S.O. 218- In exercise of the powers conferred by clause (vi) of sub-rule (1) of Rule 29 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, the President hereby specifies that:- in the case of a Government servant serving in the Department of Telecommunications for whom the appellate authority is subordinate to the authority designated as Chief General Manager/ General Manager (where there is no Chief General Manager) in the Department, the Chief General Manager/ General Manager as the case may be shall be a revising authority for the purpose of exercising the powers under rule 29. (No. 12-2/88-Vig. III) Mrs. Gargi Mukherjee, Director (DE&VP)” A perusal of the aforesaid notification would show that if a government servant, serving in the department of C.W.P. No. 16784 of 2009 -11- Telecommunication, has been treated by an appellate authority, which is subordinate to the authority designated as Chief General Manager/ General Manager, then they shall be the revising authority for the purpose of exercising power under Rule 29. It is on the basis of the aforesaid notification that letter dated 27.1.2004 was sent by the Ministry of Telecommunication and Information Technology, Department of Telecommunication to the Chief General Manager, Telecom (Mark 'Y'). According to the aforesaid letter, the appellate and reviewing authority are to be determined with respect to competence of disciplinary authority that has passed the punishment order. In the present case, the order dated 7.10.1996, exonerating the petitioner, was issued by the Deputy General Manager and as such the appellate authority would be the General Manager to which disciplinary authority namely Deputy General Manager is immediately subordinate to as per Rule 24(1)(ii) of the Rules. Accordingly, Chief General Manager would be revising authority as the General Manger is the appellate authority and subordinate to the Chief General Manager. The argument of Mr. Mittal based on clause (iii) of Sub Rule 29(1) is absolutely misconceived. According to the learned counsel, only Adviser, Human Resource Development, Department of Tele Communication Board could have exercised revisional power. The 2nd proviso which lays down that Adviser, Human Resource Development, Department of Telecommunications is not to exercise power unless the Appellate Authority is sub-ordinate to him even in cases, like the one in hand, no appeal has been preferred. C.W.P. No. 16784 of 2009 -12- Therefore, we do not find any substance in the submission made by the learned counsel for the petitioner. Hence, we have no hesitation to reject the aforesaid argument. As a sequel to the above discussions, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (AJAY TEWARI) J UDGE July 6, 2010 Atul