IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.06.2011 CORAM THE HON'BLE MR.JUSTICE ELIPE DHARMA RAO & THE HON'BLE MR.JUSTICE M.VENUGOPAL W.P.NO.363 OF 2011 1.Bharat Sanchar Nigam Limited rep. by the Principal General Manager BSNL Telephone Bhawan, No.2 Bharathi Park Street, Coimbatore – 641 043 2.The Deputy General Manager (Now-CFA), CBT Office of the Principal General Manager (Telecom) BSNL, Telephone Exchange, Ram Nagar Coimbatore 3.The Sub-Divisional Engineer (Groups) BSNL, Sulur, Coimbatore District – 641 402 4.M.Mani, CAO-PLG The Inquiry Officer Office of the Principal General Manager Telephone Bhavan, No.2, Bharathi Park Street Coimbatore – 641 043 ..Petitioners Vs. 1.The Registrar Central Administrative Tribunal Madras Bench, Chennai – 600 104 2.S.N.Ravirajan ..Respondents Prayer: Writ petition under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the first respondent relating to the order dated 16.11.2010 passed in O.A.No.1209/2010 on the file of the Central Administrative Tribunal, Chennai and to quash the same. For Petitioners : Mr.K.M.Vijayan, SC for : Mr.K.R.Ramesh Kumar For Respondent 2 : Mr.V.Prakash, SC for : Ms.Ramapriya Gopalakrishnan https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the court was made by Justice Elipe Dharma Rao) This writ petition has been filed against the order dated 16.11.2010 passed by the Central Administrative Tribunal, Chennai in O.A.No.1209/2010. The applicant in the said original application is the second respondent herein and the respondents therein are the petitioners herein. 2. The brief facts of the case are as follows: The case of the applicant is that, he is working as a Telecom Mechanic in the Office of the Sub-Divisional Engineer (Groups), BSNL, Sulur, Coimbatore District. He belongs to Backward Class Community. His date of birth is 22.07.1959 and he has passed 9th standard. He completed the same in the year 1973 in the Municipal High School, Dr.Nanjappa Road, Anupparpalayam, Coimbatore – 18. He joined the services of the Department of Telecommunications on 14.04.1982 as temporary Mazdoor and worked in that capacity till 31.03.1993. He was involved in the work of digging for erection of lines and poles. After he completed eleven years of service, he was regularised in the post of Mazdoor on 01.04.1993. Prior to his regularization, the Sub-Divisional Engineer (Groups), Department of Telecommunications, Sulur, Coimbatore District, verified his school leaving certificate to find out his date of birth and also the details regarding his past experience. On 17.11.1997, he was promoted as Telecom Mechanic. On 26.12.2001, the Director of the Department of Telecommunications issued an order absorbing him permanently in the service of BSNL with effect from 01.10.2000. The nature of work of the applicant is to attend to phone faults, line faults and to give new telephone connections to customers. A test was conducted by the Department for promotion to the post of Telecom Mechanic. After successfully clearing the said test, he was given training for a period of two months to perform the work of Telecom Mechanic. On 22.07.2010, he was served with a charge memo dated 17.07.2010 by the second petitioner informing him that it was proposed to take action against him under Rule 36 of the BSNL Conduct, Discipline and Appeal Rules, 2006 (hereinafter referred to as the "Rules"). The charge levelled against him was that, he gave false information regarding his date of birth at the time of his appointment as Mazdoor in the Department; he exhibited lack of integrity; acted in a manner unbecoming of a public servant thereby contravening Rule 4(1)(a) and 4(1)(c) of the said Rules; he intimated his date of birth as 22.07.1959 at the time of his initial appointment as regular Mazdoor, by producing a school certificate dated https://hcservices.ecourts.gov.in/hcservices/ 24.06.1973 issued by the Head Master of the Municipal High School, Dr.Nanjappa Road, Anupparpalayam, Coimbatore - 18 and on verification, it was found that the school transfer certificate submitted by him was bogus. Being a Group "C" employee, he is governed by the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. On 08.09.2010, an official of the BSNL was appointed as the enquiry officer to conduct an enquiry with regard to the charges levelled against the applicant. He submitted his explanation to the said charge memo on 15.09.2010. On 21.09.2010, the applicant submitted a representation to the Disciplinary Authority to appoint an independent enquiry officer. On 23.09.2010, the second petitioner (disciplinary authority) issued an order stating that the appointment of the enquiry officer was in order. The second petitioner also issued another letter to the applicant on 23.09.2010 directing him to attend the enquiry proceedings as and when summoned by the enquiry officer. Challenging the charge memo dated 17.07.2010 issued by the second petitioner, he filed O.A.No.1209/2010 before the Central Administrative Tribunal, Chennai Bench seeking to quash the same. The Tribunal, by order dated 16.11.2010, allowed the original application. Aggrieved by the same, the petitioners have filed the present writ petition. 3. We have heard Mr.K.M.Vijayan, learned senior counsel appearing for the petitioners and Mr.V.Prakash, learned senior counsel appearing for the applicant. We also perused the entire materials available on record. 4. Mr.K.M.Vijayan, learned senior counsel appearing for the petitioners submitted that the second respondent / applicant has submitted bogus transfer certificate and therefore, the disciplinary proceedings initiated against him cannot be said to be bad. The second respondent has violated his own undertaking given at the time of his appointment as regular Mazdoor in the Department during February 1993 that he can be proceeded with if the information furnished by him is found to be false. The petitioners have rightly initiated departmental proceedings against the second respondent since, at the time of his absorption in the BSNL, the second respondent has given an undertaking that he would abide by the rules and regulations framed by the BSNL, which he had not done. Therefore, the order under challenge is liable to be set aside. 5. Mr.V.Prakash, learned senior counsel appearing for the second respondent / applicant submitted that the disciplinary proceedings initiated against the applicant is wholly without jurisdiction and unsustainable in law. Disciplinary proceedings have been initiated against the applicant under the provisions of https://hcservices.ecourts.gov.in/hcservices/ the BSNL Conduct, Discipline and Appeal Rules, 2006. However, the said Rules do not apply to the applicant since, he is a "workman" within the meaning of section 2(s) of the Industrial Disputes Act, 1947 and an "employee" covered under the provisions of the Industrial Employment (Standing Orders) Act, 1946. Therefore, the impugned charge memo is liable to be set aside. 6. It is no doubt true that the second respondent / applicant joined the services of the Telecom Department on 14.04.1982 as a temporary casual mazdoor and worked in that capacity till 31.03.1993. Thereafter, he came to be appointed as temporary regular mazdoor. On 17.11.1997, he was promoted to the post of Telecom Mechanic and on 26.12.2001, the Director of the Department of Telecommunications issued an order absorbing him permanently in the services of BSNL with effect from 01.10.2000. Charge memo dated 17.07.2010 was issued by the second petitioner to the applicant on 22.07.2010 informing him that it was proposed to take action against him under Rule 36 of the Rules referred to above. The charges levelled against the applicant are that, he submitted false information regarding his date of birth at the time of his initial appointment as regular mazdoor in the Department; by doing so, he exhibited lack of integrity; acted in a manner unbecoming of a public servant thereby contravening Rule 4(1)(a) of the said Rules; he intimated his date of birth as 22.07.1959 at the time of his initial appointment as regular mazdoor by producing a school transfer certificate dated 24.06.1973 issued by the Head Master, Municipal High School, Dr.Nanjappa Road, Anupparpalayam, Coimbatore – 18 and that, on verification, it was found that the said certificate was bogus viz., his date of birth was 05.01.1951. An enquiry officer was appointed on 18.08.2010 and the applicant also submitted his explanation dated 15.09.2010 to the said charge memo denying the charges levelled against him. According to him, he did not furnish any false information regarding his age and qualification at the time of his employment and he never exhibited lack of integrity or acted in a manner unbecoming of a public servant thereby contravening Rule 4(1)(a) and Rule 4(1)(c) of the said Rules. As rightly pointed out by the learned senior counsel appearing for the applicant, disciplinary proceedings have been initiated against the applicant as per the provisions contained in the Rules referred to above. Rule 2 of the Rules referred to above is applicable to all the employees of BSNL, except those employees who are governed by the Industrial Employment (Standing Orders) Act, 1946. As per Rule 3 of the said Rules, "employee" means, "(a) a person in the employment of the company including employees whose service are https://hcservices.ecourts.gov.in/hcservices/ temporarily placed at the disposal of the company or a subsidiary or any PSU but does not include casual employee, work charged or contingent staff or workmen as defined in Industrial Disputes Act, 1947 and those governed by Industrial Employment (Standing Orders) Act, 1946; and (b) persons on deputation to the company from Central / State Government or a subsidiary of the company or any other PSU." 7. It is clear from the above Rule that the said Rule is not applicable to those employees who are governed by the Industrial Employment (Standing Orders) Act, 1946 and as per Rule 3(8) of the said Rules, "workman" within the meaning of section 2(s) of the Industrial Disputes Act, 1947 and "employee" covered under the Industrial Employment (Standing Orders) Act, 1946 are excluded. There is also a communication dated 21.12.2006 from the Government of India, Ministry of Labour and Employment to the Telephone Supervisor (Operative) with regard to the applicability of Industrial employment (Standing Orders) Act, 1946 to the persons employed in the BSNL stating that the said Act is applicable to BSNL as per section 1(3) of the Act. Section 1(3) of the Act reads thus: "(3) It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months. Provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less than one hundred as may be specified in the notification." Having regard to the Rules referred to above, the charges framed against the applicant cannot be legally sustained. Though Group "C" employees of BSNL are covered by the provisions of the Industrial Employment (Standing Orders) Act, 1946, yet, the company has not framed any Standing Orders for its employees in accordance with section 3 of the said Act. There is a communication dated 09.02.2007 from the Government of India, Ministry of Labour and Employment stating about the https://hcservices.ecourts.gov.in/hcservices/ applicability of section 12A(1) of the Industrial Employment (Standing Orders) Act, 1946, as per which, notwithstanding anything contained in sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the standing orders as finally certified under this Act came into operation under section 7 in that establishment, the prescribed model standing orders shall be deemed to be adopted in that establishment, and section 13A shall apply to such model standing orders as they apply to the standing orders so certified. Schedule 1B deals with the Model Standing Orders on additional items applicable to all industries and Clause 1(iv)(b) of the Industrial Employment (Standing Orders) Rules, 1946, reads as follows: "The date of birth of a workman, once entered in the service card of the establishment shall be the sole evidence of his age in relation to all matters pertaining to his service including fixation of the date of his retirement from the service of the establishment and all formalities regarding recording of the date of birth shall be finalised within three months of the appointment of a workman." 8. In this case, admittedly the applicant joined the services of the Department of Telecommunications on 14.04.1982 as a temporary mazdoor and at the time of his appointment, he gave his date of birth as 22.07.1959. In support of the same, he produced the transfer certificate dated 24.06.1973 issued by the Municipal High School, Dr.Nanjappa Road, Anupparpalayam, Coimbatore – 18. He was also regularized as mazdoor on 01.04.1993. Therefore, after a period of nearly 28 years after the appointment of the applicant as casual mazdoor and 17 years after he was regularized as mazdoor, the petitioners have issued the charge memo stating that the information given by him regarding his date of birth at the time of his appointment was false. The applicant, being a Group "C" employee, is governed only by the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 and as per clause 1(iv)(b) of the Industrial Employment (Standing Orders) Rules, 1946, since the date of birth of a workman, once entered in the service card of the establishment shall be the sole evidence of his age in relation to all matters pertaining to his service including fixation of the date of his retirement from the service of the establishment and all formalities regarding recording of the date of birth shall be finalised within three months of the appointment of a workman, https://hcservices.ecourts.gov.in/hcservices/ the disciplinary proceedings initiated against the applicant after the period of nearly 17 years from the date of regularization of his service as mazdoor, cannot be legally sustained. 9. Though Mr.K.M.Vijayan, learned senior counsel appearing for the petitioners submitted that the issue regarding the applicability of either the BSNL Conduct, Discipline and Appeal Rules or the Standing Orders, was not raised before the Tribunal, yet, Mr.V.Prakash, learned senior counsel appearing for the applicant submitted that the above issue was raised as issue No.4.4 in the original application filed before the Tribunal. Mr.V.Prakash, learned senior counsel also submitted that in the reply filed by the petitioners before the Tribunal, no comments were made by the petitioners and since it is a legal issue, which goes to the root of the matter, even assuming that the applicant had not raised the said issue before the Tribunal, yet, there is no bar for the applicant to raise the said issue at the time of disposal of the writ petition. Mr.K.M.Vijayan, learned senior counsel relied upon the decision reported in (2009) 13 SCC 600 (State of Chhattisgarh Vs. Dhirjo Kumar Sengar) to contend that the applicant has committed fraud in obtaining the appointment. 10. Having regard to the facts noted above, we are of the opinion that the said decision of the Hon'ble Supreme Court of India is not applicable to the facts of this case. Therefore, we are unable to agree with the said submission made by the learned senior counsel appearing for the petitioners. Learned senior counsel appearing for the petitioners also brought to the notice of this court the averments contained in paragraph No.7 of the reply statement filed by the petitioners to the original application. We perused the same and though it is stated therein that the rules and regulations of BSNL cannot be challenged by any absorbed employee of BSNL company and that, at the time of exercising option, the applicant had categorically declared in writing in the option form that he will abide by the rules and regulations of BSNL and therefore he cannot go back from his own commitments, yet, we hold that the rules and regulations have to be read as Standing Orders. Rule 2 of the BSNL Conduct, Discipline and Appeal Rules itself clearly states that the said Rule shall apply to all the employees of BSNL, except those employees who are governed by the Industrial Employment (Standing Orders) Act, 1946. Since, on the facts of this case, we have found that the applicant is covered only by the Industrial Employment (Standing Orders) Rules, we hold that the Disciplinary Proceedings initiated by the petitioners against the applicant cannot be legally sustained. Consequently, we find no ground to interfere with the order under challenge and the writ petition is https://hcservices.ecourts.gov.in/hcservices/ dismissed. No costs. Connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vsl To 1. The Registrar Central Administrative Tribunal Madras Bench, Chennai – 600 104 1 cc to Mr. Ramapriya Gopalakrishnan, Advocate, Sr. 34580 1 cc to Mr.K.R. Ramesh Kumar, Advocate, Sr. 34597 W.P.NO.363 OF 2011 GV (CO) kk 1/7 https://hcservices.ecourts.gov.in/hcservices/