Judgment:
1. The applicant who is working as a Telegraph Operator under the respondents is aggrieved by the penalty imposed on him by the Disciplinary Authority (D.A.) vide order dated 2.1.1996 (Annexure A-26), the order dated 29.3.1996 (Annexure A-28) passed by the Appellate Authority (A.A.) and rejection of his review and revision petitions vide order dated 12.9.1996 (Annexure A-30) and dated 17.6.1998 (Annexure A-32) and has prayed that the said orders be quashed and set aside with all consequential benefits.
2. According to the applicant, while he was working as a Telegraph Operator in the Central Telegraph Office, Rajkot, he was issued a charge-sheet vide Memo dated 23.9.1992 (Annexure A-1) levelling charges that he levelled wild and false allegations against the Senior Officers of the Department vide his letter dated 12.3.1992 and thereby acted in a manner unbecoming of a Government Servant in violation of Rules 3(i), (iii) of CCS (Conduct) Rules, 1964. He gave his reply vide his representation dated 24.10.1992 (Annexure A-2) denying the charges. An Inquiry Officer (I.O.) was appointed vide letter dated 5.12.1992 (Annexure A-3). After conducting an inquiring copy of the report to the I.O. was supplied to him vide letter dated 13.5.1995 (Annexure A-23) and he submitted his defence vide his letter dated 7.7.1995 (Annexure A-25). A penalty of reduction of his pay to a lower stage of Rs. 950-1400 for a period of five years without cumulative effect was imposed by the D.A. vide order dated 2.1.1996 (Annexure A-26). He gave his appeal vide his representation dated 14.2.1996 (Annexure A-27) and the A.A. vide his order dated 29.3.1996 (Annexure A-28) reduced the penalty of reduction of his pay to a period of three years without cumulative effect. His review petition dated 31.5.1996 (Annexure A-29) and revision application dated 12.9.1996 (Annexure A-30) were rejected vide order dated 10.3.1997 (Annexure A-31) and order dated 17.6.1998 (Annexure A-32). Aggrieved by these orders, he has approached this Tribunal.
3. The respondents have contested the O.A. and have filed detailed reply.
4. We have heard Mr. B.B. Gogia and Mrs. P.J. Davawala, the learned Counsel for the applicant and the respondents respectively and have carefully gone through the pleadings and the material on record. We have also examined the written arguments submitted by Mr. Gogia.
5. The main ground taken Mr. Gogia for the applicant is that the charges do not constitute misconduct as he had only drawn attention of higher authorities about the words stated by the Additional Superintendent, Mr. G.G. Aakhunji while he had gone to him in the capacity of office bearer of the union. According to him this is a case of no evidence as this is a case of statement of one against one i.e.
between the applicant and Mr. G.G. Aakhunji. He has contended that the inquiry has been conducted in violation of Sub-rule 18 of Rule 14 of CCS (Conduct) Rules which shows predetermination of the Inquiry Officer as revealed from the hearing of 20.3.1995 (Annexure A-19) and there is a prejudice and bias against the applicant as revealed from the confidential letter dated 18.9.1992 (Annexure A-15) from Vigilance Officer addressed to General Manager, Telecom, Rajkot. According to him, there is ho application of mind by the D.A., A.A., and Reviewing Authority and Revisional Authority and non-supply/non-inspection of documents and non-allowing of Defence witness/evidence has prejudiced his defence (Annexure A-11). He has also contended that the report of the I.O. dated 31.5.1995 is perverse and without application of mind (Annexure A-24), pages 70 and 74. He has further contended that the involvement of witnesses and also acting as D.A. vitiates the proceedings and that the punishment is harsh and disproportionate. Mr.
Gogia has relied on the following judgments in support of his case : (i) Mahendra Kumar v. U.O.I. and Anr. in case of 1984(1) SLJ 39 (Annexure A-33).
(ii) Govind Ragho Khairnar v. Municipal Corporation of Greater Mumbai and Ors. reported in 1998 LAB I.C. 1996 Paras 21, 23 (Annexure A-38).Ministry of Finance and Anr. v. S.B. Ramesh LIC, reported in 1998 Lab. I.C. 623=1998(2) SLJ 67 (SC) (Annexure A-36).
6. The main ground advanced by Mrs. P.J. Davawala for the respondents is that Union Office bearers are not expected to use unlawful and objectionable language in their correspondence and hence the charges levelled against him from part of misconduct. According to her, the D.A. has passed order of penalty after examining the report of I.O. along with evidence produced during the inquiry and hence it is not a case of no evidence. She has contended that the action of the Inquiry Officer is not biased/predetermined and all opportunities of defence have been given to the applicant as per rules. According to her, there is no prejudice on the part of the D.A. in initiating disciplinary proceedings against him as he has been given reasonable opportunity at all stages and the D.A., A.A., Reviewing Authority and Revisional Authority have passed the order after due application of mind.
According to her, all relevant documents were either given or inspection thereof provided and the I.O. was independent to the D.A. as Mr. Aakhunji, SW1 was discharging his duties of the then S.S. T.T.Rajkot along with his own duties as Supdt. CTD, Rajkot which is a co-incidence but it does not mean that the Inquiry Officer was influenced in any way. She has argued that the applicant was free to take up this point at the relevant time but he did not do so. She has also contended that the punishment is proportionate to the charges and the penalty imposed by the D.A. has been reduced by the A.A. She has further contended that the report of I.O. is based on evidence on record. She has submitted that none of the cases cited by Mr. Gogia have any application to the present case.
7. We have given careful consideration to the rival contentions and first of all take up the main contention of Mr. Gogia for the applicant that the charges does not constitute a misconduct. In this connection we would like to reproduce the article of charges framed against him as under.
That the said Shri I.I. Ajab Telegraph Overseer (O) C.T.O. Rajkot and Circle Secretary N.U.T.T.E. Gr. 'D' Gujarat Circle preferring a letter vide No. N.IV/Guj.Cir/7-92 dated 12.3.1992 to Shri M.G. Kulkarni Chief G.M. Telecom, Ahmedabad has levelled wild and false allegations against senior officers of the Department. The said Shri I.I. Ajab Telegraph Overseer (O) C.T.O. Rajkot and Circle Secretary N.U.T.T.E. Gr. 'D' is therefore alleged to have acted in a manner unbecoming of a Govt. servant, thereby violating provision of Rule 3(1)(ii) of CCS (Conduct) Rule, 1964.
It would be seen from the above that the charge is based on a letter written by the applicant on 12.3.1992 referring to what the Additional Superintendent Mr. G.G. Aakhunji stated to him during his meeting about demand of Rs. 25,000/- by GM(O) Mr. Mangla from another employee Mr.
N.S. Shah for seeking a posting at Ahmedabad and offer of monetary benefits for his supervisor for his own extension at Rajkot. The letter dated 12.3.1992 clearly reveals that the applicant was called by Mr.
Aakhunji and during that meeting the above statements were allegedly made by the former. It also reveals that Mr. Aakhunji wanted the applicant to withdraw the complaint made against him and threatened that if the same is not withdrawn, he would spoil his career. During the visit of the Vigilance Officer on 7.5.1992 for fact finding inquiry no statement of Mr. Aakhunji was recorded and it is only on 19.5.1992 that he wrote a letter on being asked to give a written statement by the Vigilance Officer'. This letter only denies in a general way that he had discussion with the applicant and that he had stated any such thing as reported in the applicant's letter dated 12.3.1992.
8. In order to decide whether the above charge can be treated as a misconduct under CCS (Conduct) Rules, we have examined the judgments relied upon by Mr. Gogia and are of considered view that the ratio laid down in the case of Mahendra Kumar v. U.O.I. and Anr. and Govind Ragho Khairnar v. Municipal Corporation of Greater Mumbai is clearly applicable in the present case. In the case of Mahendra Kumar v. U.O.I.and Anr.; the Hon'ble High Court of AP while dealing with the question as to what is a conduct unbecoming of a Government Servant had held that writing a letter to officers expressing an apprehension that he has too soon identified himself with one group is not a conduct unbecoming of a Government servant. In the case of Govind Ragho Khairnar, the Hon'ble Supreme Court was dealing with misconduct under Municipal Servants Conduct and Discipline Rules and had observed that the statement made about corruption prevalent in the Corporation will not perse visit an employee with consequences of removal or dismissal.
It had further observed that the statement must be wrongly made as a misstatement and the Corporation must not only prove that a mistatement was made but must also prove that it was so made knowingly. Applying the ratio of the above judgments, we find that in case of charge of misconduct arising out of writing letters alleging corruption against other officers two things must be satisfied before a charge can be treated as a misconduct (i) Mere apprehension cannot be a misconduct, (ii) It must be proved that the statement was made wrongly and knowingly. In the instant case, the applicant had admittedly written a letter dated 12.3.1992 to Chief GMT informing him above certain allegations made by the Additional Supdt. Mr. G.G. Aakhunji during his meeting with him in his presence about demand of bribe of Rs. 25,000/- by GM(O) Mr. Mangla for securing a posting for an employee at Ahmedabad (Mr. N.S. Shah) as also payment of bribe to his superior for getting extension for himself at Rajkot. Though Mr. Aakhunji denied having any discussion with the applicant in regard to the letter dated 12.3.1992, and also disagreed with the contents thereof, the onus of proving that the allegations were false was on the respondents but except a bare denial by Mr. Aakhunji, there is no evidence to prove that the allegations are false and baseless and that they were made knowingly by the applicant. The applicant has very clearly stated in his statement before the vigilance Officer on 7.5.1992 that he has written the letter dated 12.3.1992 without prejudice and mala fide intention and that he has no personal enmity with any officers. He has further stated that the letter was written under misunderstanding and was not intentional.
Moreover, it is relevant to point out that in his letter dated 12.3.1992, the applicant has not directly made by allegation of corruption or bribery against any superior officers but has only reported to the Chief GMT what the Additional superintendent Mr.
Aakhunji had allegedly told him during his meeting with him in his capacity as union officer bearer.
9. Under the circumstances applying the ratio laid down in the case of Mahendra Kumar and Govind Ragho Khairnar, we are of the considered view that writing of letter dated 12.3.1992 reported what Mr. Aakhunji had stated before him about allegation of corruption/bribery against other senior officers of the department cannot be considered to be a misconduct under CCS (Conduct) Rules particularly when there is no evidence brought on record to show that the same is intentional or the allegations made are false. The charge also does not fall in any of the categories of acts/omissions which are treated as misconduct under Sub-rule 24 of Rule 3 of CCS (Conduct) Rules. Since the charge cannot be treated as a misconduct under CCS (Conduct) Rules, any action based on such charge would also be unlawful and illegal. Under the circumstances, we do not consider it necessary to go into the other contentions of Mr. Gogia and hold that the chargesheet, inquiry proceeding and the penalty imposed on him cannot be sustained in the eye of law.
10. In view of the above, we allow the O. A. and quash and set aside the chargesheet dated 23.9.1992 alongwith the order of penalty dated 2.1.1996 passed by the D.A., the order dated 29.3.1996 passed by A.A., the order dated 12.9.1996 and dated 17.6.1998 passed by the Reviewing Authority and the Revisional Authority with all consequential benefits.