Sunday, July 14, 2013

Bom OA No 743/2011 on 08-05-2013

Bom  OA No 743/2011 on 08-05-2013



Dated this  Wednesday, the 8th day of May, 2013


Shyam C. Moorjani,
S/o Shri Choithram T.Moorjani,
R/o E-2, M.T.N.L. Staff Qtrs.
S.V.Road, Goregaon (West),
Presently Posted as Executive Engineer (Civil),
Planning in the O/o DGM Civil Planning, MTNL,
Bandra Mumbai, 400050                     ... Applicant

(By Advocate Shri S.K.Gawade)


1. Director (HR),
MTNL Corporate Office,
Jeevan Bharati Tower-I,
124, Connaught Circus,
New Delhi- 110 001

2. The Chief Engineer (BW)
MTNL, 8th Floor,
Bandra Telephone Exchange,
Bandra (West),
Mumbai 400050    ... Respondents

(By Advocate Shri R.R.Shetty)


Per : Smt. Leena Mehendale, Member (A)

In this OA filed on 17.11.2011, the applicant is challenging the charge-sheet issued to him on 19.08.2011 (Annexure A-1).  He had earlier approached to this Tribunal in OA No.611/2011 dated 19.09.2011 and it was directed that the Disciplinary Authority should take a decision on the representation of the applicant dated 12.09.2011.  Accordingly, the Disciplinary Authority  considered the representation and issued order dated 21.10.2011 (Annexure A-11) rejecting the representation.  Hence, the present OA is filed once again challenging the charge-sheet.  The challenge is mainly on the ground of delay.  Although, the learned counsel has mentioned the ground of malafide, he has not explained that, how the Disciplinary Authority can have any ground of malafide against him.  Hence, the only question is before us is to see, what is the delay, how it is explained by the respondents and whether it is causing any jeopardy to the applicant, if he is required to undergoes the enquiry.

2. The charge-sheet reveals that the charge is of improper and poor supervision at the sight, when the applicant was Assistant Engineer (Civil) and was entrusted with the supervision of construction work of two buildings named Ganga and Yamuna, both having grounds plus seven structures and having the tender amount of around Rs.1.5 crores.  The construction began in 1993, when the applicant was the In-charge Assistant Engineer.  He was transferred in 1994, when buildings were somewhere half-way through and they were completed in 1995.  In the Reply statement, the respondents have elaborately explained the chronology of events from where it is seen that the buildings were completed in June, 1995 and were made available for occupation in 1996. Cracks developed and first noticed in the structure within 5 years. A committee of MTNL & BSNL  was formed, who also took the consultation of VJTI being an expert body.  The report of the VJTI was available in July, 2003. After that rehabilitation work was undertaken in 2005,  which was completed on 2007 but apparently did not succeed.  However, the matter was referred to Chief Technical Examiner, CVC, who inspected the building and gave the inspection report in 2008 and also advised that the matter may be referred to higher technical body such as Structural Engineering Research Centre (SERC), Chennai.  Final report of SERC was available in 2009, whereafter permission from the CVC was taken to issue the charge-sheet and CVC concurrence was available in December, 2010 and the charge-sheet was issued to the present applicant as well as two other Junior Engineers, who were Junior to the present applicant on 19.08.2011, but were also entrusted with routine supervision, on site.

3. The learned counsel for the applicant has pleaded that the delay of 18 years between 1993 to 2011 is an inordinate delay and, therefore, the charge-sheet should be quashed. He has produced several citations, but relies mainly on (i)R.V.Bansal Vs. The Commissioner MCD, 2010 (1) AISLJ, 147 (CAT), (ii) P.V.Mahadevan Vs. M.D. Tamil Nadu Housing Board, 2005 (6) SCC 636 and (iii) Ashok Aggarwal Vs. Union of India, OA No.1202/2008 decided by CAT, Principal Bench on 20.03.2009.  All these three, deals with engineering aspects of construction.

4. The learned counsel for the respondents would rely mainly on State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570, which deals with the question of delay as under:-
“how long a delay is too long always depends upon the facts of the given case.  Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted”.

5. We, therefore, have to consider, whether the delay will cause any prejudice or jeopardy to the applicant.  We observe that, this is a matter, where record of the construction is kept on week to week basis for the purpose of releasing provisional payments to the contractors.  The IO will therefore be referring to such documents and the applicant would also be  allowed to refer to them. Whether, the charge-sheet of poor supervision in the RCC structure is tenable or not can be examined only by a proper enquiry officers, who has the Technical knowledge of the field. Since the Disciplinary Authority is relying upon several registers, which were maintained during the construction and the reports of various committees, who commented upon the quality of the constructions, the applicant would be in a position to use the same documents for his defence too. The applicant is still in service and having received his due promotions from time to time, he has presently working as Executive Engineer.  Hence, it is not a case, where he would have forgotten his basic engineering knowledge, which might cause jeopardy in defending himself.

6. We also find that the applicant had made a representation to the Disciplinary Authority as per the directions given by the Court in OA No.611/2011.  That long representation mainly contends the technical aspects of this case, but did not put thrust on the ground of delay.  In the present OA, he has taken the ground of delay, but it is not explained as to how, the delay will be prejudicial to him in defending himself in the Departmental Enquiry.

7. We find from the case of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha, the following principle regarding D.E., delay and gravity of misconduct:

“13. Thus, the law on the issue can be summarized to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues.  Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”

8. In view of the above discussion, we conclude that the charge-sheet cannot be quashed at this stage and the applicant should go through the enquiry.  At the request of the learned counsel for the applicant, we direct that the Disciplinary Authority will ensure that the enquiry including the order by the Disciplinary Authority is completed within six months from the date of receipt of this order.  It is further undertaken by the learned counsel for the respondents that all the documents referred to in Annexure A-3 to the charge-sheet will be made available to the applicant within two weeks.  The applicant should cooperate in the enquiry and not delay it from his side. The enquiry officer should conduct the enquiry as far as possible on a day to day basis, so as to complete it speedily.

9. With these observations, the OA is dismissed. No order as to costs.

(Smt. Chameli Majumdar)                          (Smt. Leena Mehendale)
         Member (J)                                               Member (A)


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