High Court
Case Details
WP(C) 915/2010 BEFORE HON’BLE MR JUSTICE I A ANSARI HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (Ansari, J.)
Legal Reasoning
The Department of Tele-communication (in short, ’DOT’), Government of In dia, issued a Circular, on 17.12.1993, for granting of temporary status to Mazdo ors (in short, ’TSM’) working in the department continuously after 31.03.1985 to 22.06.1988 as casual labourers. The Telecom District Engineer (in short, ’TDE’ ), Tezpur, made over the said Circular of the DOT to all Heads of Sub-Divisions under his Division. The respondent herein joined as TDE, Tezpur Telecom Distric t, when the process of conferring temporary status, on Mazdoors, was in progress . 2. On 25.03.1996, the respondent herein constituted a Selection Committee, consisting of 4 (four) Members from different wings of the Department, includin g Accounts Officer, the Committee having been formed for the purpose of verifyin g the records and for recommending the names of eligible casual Mazdoors, from a mongst the list of casual Mazdoors, forwarded by the Sub-Divisional Officers to the said Committee for granting temporary status to eligible mazdoors. The resp ondent herein was not a Member of the Selection Committee, he did not participat e in the process of verification; but he was Chairman of the Selection Committee . 3. Following the recommendations made by the Selection Committee, the respo ndent herein, as Chairman, issued an order, on 27.05.1996, conferring the status of Temporary Mazdoor, provisionally, on 221 casual labourers. No further order was issued, in this regard, by the respondent conferring status of TSM on casua l labourers working in the DOT. 4. By letter, dated 18.09.1997, the Chief General Manager, DOT, Assam Circl e, Guwahati, issued instructions to Telecom District Manager, Tezpur, (in short, TDM, Tezpur) to cancel the said provisional order, dated 27.05.1996, whereby th e respondent had conferred, as indicated hereinbefore, the status of Temporary M azdoor on 221 casual labourers and to start afresh a process of further scrutiny in order to identify , within a period of one month, those casual labourers, wh o were entitled to receive the status of Temporary Mazdoors. 5. The TDM, Tezpur, made over the said letter, 18.09.1997, to the responden t inasmuch as the respondent was the one, who had issued the orders provisionall y conferring status of TSM on 221 casual labourers. Complying with the directio ns, contained in the letter, dated 18.09.1997, aforementioned, the respondent he rein, being the then Divisional Engineer (P&A), accordingly passed an order, on 20.10.1997, cancelling the order, dated 27.05.1996, which conferred the status of TSM on 221 casual labourers. This order of cancellation, dated 20.10.1997, was, however, revoked, on 19.11.1997, by the TDM, Telecom, Tezpur District Circl e. 6. In the backdrop of the above facts, which are not in dispute, the respon dent herein was served with a Memorandum, dated 19.06.2001, issued by the Depart ment, under Rule 14 of the Central Civil Services (Classification, Control and A ppeal) Rules, 1965, informing the respondent that an inquiry was proposed to be held against him on the ground that the respondent, in collusion with the Member s of the Selection Committee, which the respondent had constituted, regularized mala fide 34 numbers of casual labourers of North Lakhimpur. While the proceeding, initiated by the Memorandum, dated 19.06.2001, afo 7. rementioned was in progress, the respondent was served, on 26.03.2002, with anot her Memorandum, dated 07.03.2002, proposing to hold inquiry and draw a departmen tal proceeding against the respondent on identical charge, as had been stated in the Memorandum, dated 19.06.2001, the difference between the said two Memoranda , served on the respondent, being that the Memorandum, dated 07.03.2002, related to regularization of 22 numbers of casual Mazdoors of SDE (P), Tezpur; whereas, the earlier Memorandum, dated 19.06.2001, was in respect of regularization of 3 4 numbers of casual labourers of North Lakhimpur. While the two proceedings, initiated by the Memoranda, dated 19.06.2001 8. and dated 07.03.2002, were in progress, yet another Memorandum, dated 11.09.2003 , was served on the respondent, on 17.10.2003, on identical charge; the third Me morandum, however, related to appointment of 22 numbers of casual Mazdoors under Dhemaji Sub-Division, allegedly, on the basis of forged experience certificates . Two other Memoranda, both dated 17.10.2003, were issued to, and served upon, the respondent herein on the identical charge, the accusations, made in one of t hese two Memoranda, dated 17.10.2003, related to appointment of 21 numbers of ca sual Mazdoors, under Udalguri Sub-Division, on the basis of alleged forged exper ience certificates, and the accusations, made in the other Memorandum, dated 17. 10.2003, related to the appointment of 15 numbers of casual Mazdoors, under SDO( T), Tezpur, on the basis of forged experience certificates. On 21.10.2003, the respondent received yet another Memorandum, dated 09. 9. 10.2003, on the identical charge of appointment of 7 numbers of casual Mazdoors under SDE (Comp), Tezpur, on the basis of forged experience certificates. 10. The respondent replied to the charge, contained in each of the said six Memoranda, denying the allegations made against him in the said six Memoranda. An inquiry was, then, held by the inquiring authority of the Department into the alleged appointment as well as regularization of Mazdoors by the respondent on the basis of forged experience certificates. The inquiring authority submitted its inquiry report, on 18.12.2004, holding that the charges, which had been leve lled against the respondent, were not proved. 11. The disciplinary authority, however, disagreed with the findings of the inquiry officer and issued a memorandum of disagreement, dated 24.02.2005. The respondent was, then, served, in the month of March, 2005, with a copy of the in quiry report, dated 18.12.2004, the memorandum of disagreement, dated 24.02.2005 , and the Central Vigilance Commissioner’s advice, dated 27.12.2005, in respect of the Charge Memo., dated 07.03.2002. In the memorandum of disagreement, dated 24.02.2005, the disciplinary authority did not give any definite finding on the charges and the reasons for disagreement, but alleged that the inquiring authori ty, on analysis of the materials on record, which had surfaced at the inquiry, h ad found that the act of conferring TSM status could have been done only after r eferring the cases to DOT. 12. ent submitted his representation on 21.03.2005. 13. The respondent, then, received the inquiry report, dated 31.01.2005, acc ompanied by Memorandum of disagreement, dated 01.04.2005, and the Central Vigila nce Commissioner’s advice, dated 07.03.2005, relating to the first proceeding, w hich had been initiated by the Memorandum, dated 19.06.2001. The inquiry report , dated 31.01.2005, reflected that the inquiring authority had held the charge a As against the Memorandum of disagreement, dated 24.02.2005, the respond In response to the said Memorandum of disagreement, dated 26.04.2005, to gainst the respondent as proved, but not fully. By the Memorandum of disagreeme nt, dated 01.04.2005, the disciplinary authority disagreed with the findings of the inquiry officer and held the charges as fully proved. 14. o, the respondent submitted his representation on 10.05.2005. 15. In the month of October, 2005, respondent received the inquiry report, d ated 27.07.2005, Memorandum of disagreement, dated 04.10.2005, from the discipli nary authority and the Central Vigilance Commissioner’s advice, dated 23.09.2005 , relating to the third proceeding initiated against him. In the inquiry report, the inquiring authority had recorded that the allegations, levelled against the respondent by the third Memorandum, were not proved, but the disciplinary autho rity disagreed with the findings of the inquiry officer and held the charges as proved. The disciplinary authority not only disagreed with the findings of the inquiry officer, but also purportedly brought, as indicated above, a new charge against the respondent that TSM status can be conferred on the Mazdoors only aft er referring the cases to the DOT. On receipt of the inquiry report, Memorandum of disagreement and the Vig 16. ilance Commissioner’s advice in respect of the third Memorandum, as mentioned ab ove, the respondent submitted a representation, on 16.11.2005, against the Memor andum of disagreement, dated 04.10.2005, aforementioned. In his representation, the petitioner categorically stated that, as per letter, dated 21.12.1994, the Telecom District Engineer is the authority to regularize casual Mazdoors as TSM under the DOT guidelines, etc. 17. Thereafter, on 18.10.2005, the respondent received the inquiry report, d ated 26.07.2005, Memorandum of disagreement, dated 18.10.2005, and the Central V igilance Commissioner’s advice, dated 28.09.2005, in respect of the fourth proce eding against the respondent. In his inquiry report, dated 26.07.2005, the inqu iring authority held the charge against the respondent as not proved. However, the disciplinary authority did not agree with the findings of the inquiring auth ority and held the charge as proved and, while so disagreeing with the inquiring authority’s finding, the disciplinary authority purportedly brought a new charg e against the respondent stating that the inquiring authority, on analysis of th e materials on record, had found that the TSM status could have been conferred o n Mazdoors only after referring the cases to the DOT. 18. On 17.11.2005, the petitioner submitted his representation against the M emorandum of disagreement, dated 18.10.2005, wherein he stated that as per lette r, dated 21.12.1994, the Telecom District Engineer is the authority to regulariz e the casual Mazdoors as TSM. 19. On 18.10.2005, the respondent received the inquiry report, dated 27.07.2 005, Memorandum of disagreement, dated 18.03.2005, and the Central Vigilance Com missioner’s advice, dated 23.09.2005, with regard to the fifth proceeding agains t the respondent. In the inquiry report, the inquiring authority recorded that t he charge against the respondent were not proved. However, the disciplinary auth ority disagreed with the findings of the inquiring authority and held the charge as proved. In the Memorandum of disagreement, the disciplinary authority broug ht a new charge against the respondent by stating that the inquiring authority, on analysis of the materials on record, had found that TSM status could be confe rred on casual labourers only after referring the cases to the DOT. 20. The respondent submitted, on 12.11.2005, his representation against the Memorandum of disagreement, dated 18.10.2005, wherein he stated that as per lett er, dated 21.12.1994, the Telecom District Engineer did possess the authority to regularize casual Mazdoor as TSM. 21. Thereafter, the respondent received the inquiry report, dated 26.07.2005 , Memorandum of disagreement, dated 18.10.2005, and the Central Vigilance Commis sioner’s advice, dated 28.09.2005, in respect of the sixth proceeding initiated against the respondent. In the inquiry report, the inquiring authority recorded that the allegations, which had been made against the respondent, were not prove d, but the disciplinary authority disagreed with the findings of the inquiring a uthority and held the charge as proved. In the Memorandum of disagreement, the d isciplinary authority further stated that the inquiring authority, on analysis o f the materials on record, had found that TSM status could have been conferred o n casual labourers only after referring the cases to the DOT. 22. On 10.11.2005, the respondent submitted his representation against the M emorandum of disagreement, dated 18.10.2005, and, in his said representation, he stated that as per letter, dated 21.12.1994, the Telecom District Engineer was the authority to regularize the casual Mazdoors by conferring TSM. 23. After the respondent had received the inquiry reports, Memoranda of Disa greement and the Central Vigilance Commissioner’s advices in respect of all the six departmental proceedings, which had been initiated against the respondent on the accusations of regularizing the casual labourers by conferring TSM status a s well as appointing casual labourers under the DOT basing on forged experience certificates, and after the respondent had submitted representations against the said Memoranda of Disagreement, as already indicated above, the respondent rece ived an order, dated 02.05.2006, issued by the petitioner No. 2, namely, Senior Deputy Director General (Vigilance), DOT, New Delhi, wherein it was stated that following the outcome of the second disciplinary proceeding, a penalty of reduct ion of the pay of the respondent to a lower stage, by 3 stages, in the time scal e of pay of Rs. 14,300-400-18,300/-, for a period of 2 (two) years, had been i mposed on the respondent by the competent disciplinary authority and that the re spondent would not earn increments of pay during the period of reduction and, on the expiry of such period, the reduction would have the effect of postponing hi s future increments of pay. 24. Barely a month thereafter and, to be precise, on 23.05.2006, the respond ent received another order, dated 03.05.2006, wherein it had been stated that th e competent disciplinary authority had imposed the penalty of reduction of the p ay of the respondent to a lower stage by 3 (three) stages in the time scale of p ay of Rs. 14,300-400-18,300/-, for a period of 2 (two) years, and that the penal ty, so imposed on the respondent, related to the 1st proceeding initiated agains t the respondent. 25. Aggrieved by the decision of the disciplinary authority to impose two pe nalties of identical nature in two of the six proceedings, the respondent challe nged the initiation of the said six departmental proceedings against him on the same cause of action and also the imposition of penalties on him, as mentioned a bove, by filing Original Application in the Central Administrative Tribunal, Guw ahati Bench, which, eventually, gave rise to O.A. No. 284/2006. 26. During the pendency of O.A. 284/2006, the respondent received another or der, dated 30.05.2007, wherein it had been stated that, as per the outcome of th e 3rd departmental proceeding initiated against the respondent, the competent di sciplinary authority had imposed, on the respondent, a penalty of reduction of h is pay to a lower stage, by one stage, in the time scale of pay of Rs. 14,300-40 0-18,300/-, for a period of two years. It was also directed by the said order, d ated 30.05.2007, aforementioned that the respondent would not earn increments of pay during the period of reduction and, on expiry of such period, the reduction will have the effect of postponing his future increment of pay. 27. In the said order, dated 30.05.2007, it had been further stated that the competent disciplinary authority had imposed penalty on the respondent, in resp ect of the 5th departmental proceeding, as had been imposed in the 3rd and the 4 th proceeding, meaning thereby that the pay of the respondent was to be further lowered by one stage, in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of two years and that the respondent would not earn increments of pay du ring the period of reduction and, on expiry of such period of reduction, the red uction would have the effect of postponing his future increment of pay. 28. Thereafter, another order of imposition of penalty of reduction of pay o f the respondent, in respect of the 6th departmental proceeding, was received by the respondent in the month of June, 2007. In the said order, dated 20.06.2007 , it had been stated that as per the outcome of the 6th departmental proceeding, initiated against the respondent, a penalty of reduction of pay, by one stage, in the time scale of pay of Rs. 14,300-400-18,300/-, for a period of two years, had been imposed on the petitioner with further direction that respondent would not earn increments of pay during the period of reduction and, on expiry of such period of reduction, the reduction of pay would have the effect of postponing h
Legal Reasoning
is future increment of pay. 29. Being aggrieved by the imposition of penalties, as indicated above, and challenging orders, by which the penalties of reduction of pay, as stated herein above, had been imposed on the respondent, the respondent filed five Original Ap plications in the Central Administrative Tribunal, Guwahati Bench (hereinafter r eferred to as the ’Tribunal’), which gave rise to O.A.119/04, 284/06, O.A.25/08, O.A. 26/08, O.A.44/08 and O.A. 45/08. Altogether, thus, six Original Applicati ons were filed by the respondent herein putting to challenge, inter alia, the pe nalties, which had been imposed on him, in the manner as mentioned above. By a c ommon order, dated 27.03.2009, the learned Tribunal set aside the orders of impo sition of penalties, which had been impugned in the said original applications, holding the orders as bad in law. 30. Being aggrieved by the decision of the learned Tribunal, contained in th e order, dated 27.03.2009, allowing the respondent’s said original applications, the writ petitioners, who were respondents in the said original applications, h ave filed these writ petitions, under Article 226 of the Constitution of India, impugning and seeking to get set aside the order, dated 27.03.2009, passed, in t he original applications aforementioned, by the learned Tribunal. 31. We have heard Mrs. R. Bora, learned Central Government Counsel, appearin g for the writ petitioners. We have also heard Mr. K. N. Choudhury, learned Seni or counsel, for the respondent. 32. Appearing on behalf of the writ petitioners, Mrs. R. Bora, learned Centr al Government Counsel, has submitted that learned Tribunal has incorrectly held that the proceedings, drawn against the respondent herein, smacked of partiality and the same suffered from the policy of pick and choose inasmuch as the respon dent (i.e., the petitioner herein), while taking action against the petitioner ( i.e., the respondent herein), had left out another similarly situated person, na mely, Sri A.K. Sarkar, and, hence, the petitioner had been treated with discrimi nation. 33. The conclusion, which the learned Tribunal has so reached, is, according to the learned Central Government Counsel, wholly incorrect inasmuch as actions were taken not only against the present petitioner, who was the Chairman of the Selection Committee, but also against all the four persons of the Selection Com mittee including Sri A. K. Sarkar, whose case has been referred to by the learne d Tribunal on the basis of the contention of the respondent herein, in his Origi nal Applications, that as against Sri A.K. Sarkar, petitioners had not taken act ion in the same manner as had been done in the case of the petitioner (i.e., res pondent herein). 34. In order to impress upon this Court that the present petitioners had not dealt with the case of the respondent with discrimination, it has been reiterat ed, on behalf of the petitioners, that disciplinary proceedings had been initiat ed even against the said A. K. Sarkar. Thus, the decisions of the present petit ioners, while dealing with the cases of the present respondent herein, did not s uffer, contends the learned Central Govt. Counsel, from any policy of pick and c hoose and the present petitioners ought not to have been held to have treated th e respondent herein with discrimination and, hence, the learned Tribunal’s order s, which stand impugned in this set of writ petitions, need to be interfered wit h by this Court in exercise of its extra-ordinary jurisdiction under Article 22 6. 35. Repelling the submissions, made on behalf of the writ petitioners, Mr. K . N. Choudhury, learned Senior counsel, submits that the charges against the sai d A. K. Sarkar had been found by the Inquiry Officer to have not been proved and this finding was accepted by the Disciplinary Authority and the Disciplinary Au thority, by its order, dated 20/24.11.2003, exonerated said Sri Sarkar of the ch arges levelled against him. Subsequently, however, Sri Sarkar was served, points out Mr. K.N. Choudhury, learned Senior counsel, with several charge-sheets. Agg rieved by the subsequent charge-sheets, which had been served on the said Sri Sa rkar, Sri Sarkar put to challenge the same by way of Original Application 27/03. The learned Tribunal, while disposing of the said Original Application, on 25. 08.2004, pointed out that when the 1st Memorandum of charges itself contained th e names of the 221 Mazdoors, who had been conferred temporary status, and Sri Sa rkar had been exonerated of the charge, which was contained in the 1st Memorandu m, the subsequent charge-sheets, served on the said A. K. Sarkar, by various Mem oranda, were not sustainable in law. 36. Thus, the present petitioners accepted, points out Mr. K. N. Choudhury, not only the finding of the Inquiry Officer in respect of the 1st Memorandum and exonerated the said A. K. Sarkar, but also did not file any writ petition disag reeing with the findings reached, the conclusions drawn and the reliefs granted to the said Sri A. K. Sarkar by the learned Tribunal, by its order, dated 25.08. 2004, in O.A. No.27/2003, whereby the learned Tribunal had set aside all the sub sequent charge-sheets, which had been served on the said Sri Sarkar. 37. It has also been pointed out by Mr. Choudhury, learned Senior counsel, t hat under the instructions of the Chief General Manager (DOT), Assam Telecom Cir cle, Guwahati, given in the letter, dated 18.09.97, the order, dated 27.05.1996, which had been passed by the present respondent conferring TSM on the said 221 Mazdoors, had been cancelled by the order, dated 20.10.1997, issued by the respo ndent herein in his capacity as DE (D&A), Tezpur Telecom Circle. However, the s aid order of cancellation, dated 20.10.1997, was subsequently revoked by the TDM , Telecom, Tezpur District Circle, by an order, dated 19.11.1997. The order of revocation, so passed, points out Mr. Choudhury, learned Senior counsel, brought back into force the earlier order, dated 27.05.1996, which had been passed by t he respondent herein granting TSM on the said 221 Mazdoors. 38. No action has, however, been taken by the present petitioners against t he TDM, Tezpur, who had revoked the order of cancellation, dated 20.10.1997, and since the order of revocation has been sustained, it is obvious, points out Mr. K.N. Choudhury, learned Senior counsel, that there could not have been any disc iplinary proceeding against the respondent herein nor could have any penalty bee n imposed on him for granting TSM status on the said 221 Mazdoors, when the orde r passed by the respondent herein has, eventually, been allowed by the present p etitioner to prevail. 39. It is, thus, contends Mr. Choudhury, abundantly clear, contrary to what the learned Central Govt. Counsel has attempted to project, that the respondent herein has not been dealt with impartially; rather, the petitioners have adopted , as rightly pointed out by the learned Tribunal, the policy of pick and choose inasmuch as the respondent herein has been picked up for imposition of penalty a nd this attitude of the present petitioners is clearly reflected by the conduct of the petitioners, when they have chosen to file the present set of writ petiti ons against the respondent herein; whereas a person similarly situated, namely, Sri A. K. Sarkar, has not been proceeded against and has been allowed to enjoy t he benefit of not only the findings of the inquiring authority, but also the dec isions of the learned Tribunal. 40. The respondent’s attitude can be well adjudged, reiterates Mr. K.N. Chou dhury, learned Senior counsel, by the fact that while petitioners have imposed p enalty on the respondent herein for conferring TSM on 221 Mazdoors, they chose n ot to take any action against the TDM, Telecom, Tezpur District Circle, who revo ked the order of cancellation, as pointed out above, and brought back into force the order, which had been passed by the respondent herein conferring TSM on 221 Mazdoors. Let us, now, consider the merit of the rival submissions, which have bee 41. n made on behalf of the parties concerned. 42. There can be no manner of doubt, as is clearly discernible from the orde r, dated 25.08.2004, passed, in O.A. No.27/2003, by the learned Tribunal, in the case of Sri A.K. Sarkar, that Sri A.K. Sarkar was proceeded against by serving a Memorandum of Charge, which contained, in effect, the same allegation, which h ad been made against the respondent herein, namely, that TSM had been conferred on 221 Mazdoors without appropriate verification and on the basis of forged expe rience certificates. This charge was held to have not been proved by the inquiri ng authority in respect of Sri A. K. Sarkar. Similarly, in the case of the pres ent petitioner, the finding was that the charge had not been proved. While, how ever, the finding of the inquiring authority, in respect of the said Sri Sarkar, was accepted by the Disciplinary Authority and the said Sri Sarkar was exonerat ed, the respondent herein was served with the memorandum of disagreement. In fact, contrary to the contention of the petitioners that they had dea 43. lt with the case of Sri Sarkar in the same manner as had been done in the case o f the respondent herein, the order, dated 20/24.11.2003, passed by the Disciplin ary Authority, exonerating said A.K. Sarkar of the charges levelled against him, read as under: (cid:28)Taking into account the findings of the Inquiring Authority, records of the cas e and on an objective assessment of the facts and circumstances of the cases in its entirety, I, P.K. Chanda, Member (Services), Telecom Commission, hereby orde r to exonerate Shri A.K. Sarkar, SDOT, of the charges levelled against him, vide aforesaid Memorandum. (cid:29) 44. Having accepted the findings of the Inquiring Authority and having exone rated the said Sri A.K. Sarkar, when the petitioners herein served Sri Sakar wit h several other charge-sheets, Sri Sarkar approached the learned Tribunal by fil ing an Original Application, namely, O.A. No.27/2003. Having noted that when the finding on the 1st Memorandum of Charge had been accepted by the Disciplinary A uthority, the respondents could not have initiated any other disciplinary procee ding on, substantially, the same facts, the learned Tribunal set aside the charg e-sheets so served on Sri Sarkar and this decision of the learned Tribunal was n ever put to challenge, as rightly pointed out by Mr. Choudhury, learned Senior c ounsel, before this Court or any other Court. Thus, in Sri Sarkar’s case, the pe titioners herein not only accepted the findings of the Inquiring Authority, but also the decision of the learned Tribunal; whereas they are unwilling to relent so far as the respondent herein is concerned. 45. The learned Tribunal, therefore, in the light of what have been pointed out above, cannot be said to have wrongly reached the conclusion that the petiti oners herein have adopted the policy of ’pick and choose’ and have been treating with the respondent herein with discrimination. 46. The inference, which the learned Tribunal has drawn, and the conclusion, which the learned Tribunal has reached, are further strengthened by the fact, a s has been correctly pointed out above by Mr. K.N. Choudhury, learned Senior cou nsel, that the respondent herein, under the instructions of his superior authori ty, had cancelled the order, whereby he had conferred TSM on 221 Mazdoors. This order of cancellation was, however, revoked by the TDM, Telecom, Tezpur District Circle, bringing back into effect the very order, which the respondent herein h ad passed and which had become, and still remains, the basis of all the discipli nary proceedings, which have been initiated against him (respondent herein). Ama zingly enough, no action has been taken by the present petitioners against the T DM, Telecom, Tezpur District Circle, for revoking the cancellation order and for doing, in effect, what the respondent herein had done. 47. Situated thus, the learned Tribunal, in the considered view of this Cour t, was wholly correct in coming to the conclusion that the respondent herein is being dealt with by the present petitioners in a manner, which is discriminatory , and is an outcome of the policy of ’pick and choose’, which the present petiti oners have adopted as against the respondent herein. 48. In short, from a bare reading of the order, dated 24.08.2004, passed in O.A. No. 27/2003, there cannot be any doubt that a disciplinary proceeding had, indeed, been initiated against the said Sri A. K. Sarkar in the manner, as had b een done against the respondent herein, and inquiry was accordingly held. In th e inquiry, held against said A. K. Sarkar as well as the present respondent, the inquiring authority exonerated both, the respondent herein as well as the said A. K. Sarkar, of the charges by holding that the charges, brought against them, had not been proved. While, in the case of Sri A. K. Sarkar, the finding of the inquiring authority was accepted by the present petitioners and no memorandum o f disagreement to the finding, so given, was issued to, or served upon, Sri Sark ar, the respondent herein was served, as already indicated above, with a memoran dum of disagreement and penalty has been, ultimately, imposed on him. This apar t, by order, dated 27.03.2009, when the learned Tribunal allowed the Original Ap plication, namely, OA 27/03, filed by the said A. K. Sarkar, setting aside and q uashing all the Memoranda of charges, the decision of the learned Tribunal was a ccepted by the present petitioners and no writ petition was filed against the re liefs, which the learned Tribunal had granted to the said Sri Sarkar. On the co ntrary, the present petitioners chose to brush aside the inquiring authority’s f indings and proceeded against the respondent herein by issuing memorandum of dis agreement as well as Statement of Imputation of Charge, followed by imposition o f penalty, as indicated above, and, while the learned Tribunal, by order, dated 27.03.2009, allowed the present respondent’s Original Applications by setting as ide and quashing the imposition of penalty on the respondent herein, the petitio ners have filed these writ petitions against the orders of the learned Tribunal. 49. It cannot, therefore, be said that the learned Tribunal has gone wrong, when it pointed out, in the presently impugned order, dated 27.03.2009, that the petitioners had (cid:28) & &.adopted pick and choose policy which is violative of Articl e 14 and 16 of the Constitution and thus not sustainable in the eye of law. (cid:29) Th e learned Tribunal has also categorically observed that (cid:28) & & &the action against t he applicant is not justified and smack of partiality and vendetta and cannot be sustainable in the eye of law & &.. (cid:29) Coupled with the above, one can also not ignore the fact, if we may reit 50. erate, that on the instructions, issued in the letter, dated 18.09.1997, by the Chief General Manager (DOT), Assam Telecom Circle, Guwahati, the respondent here in, in his capacity as DE (D&A), Tezpur Telecom Circle, issued an order, dated 2 0.10.1997, cancelling the order, dated 27.05.1996, whereby status of TSM had bee n conferred on 221 casual labourers. This order of cancellation was, however, re voked by the TDM (Telecom), Tezpur District Circle, by its order, dated 19.11.19 97. Thus, with the revocation of the order, dated 20.10.1997, the order, dated 20.05.1996, conferring TSM status on the said 221 Mazdoors, was brought back to force and sustained. 51. In the circumstances, indicated above, either disciplinary proceedings a gainst the respondent herein ought to have been dropped, or action ought to have been taken against the TDM (Telecom), Tezpur District Circle, for revoking the order of cancellation. No action has, however, been taken by the present petitio ners against TDM, Telecom, Tezpur District Circle. This attitude of the petition ers demonstrates that the respondent herein has not been dealt with in the same manner as the other persons, namely, the said A. K. Sarkar and/or the TDM, Telec om, Tezpur District Circle (who had revoked the order of cancellation, as mentio ned above) have been dealt with. 52. The learned Tribunal was, therefore, not wrong, if we may reiterate, in taking the view that the respondents (i.e., the present petitioners) had adopted the policy of pick and choose and had not acted impartially. The learned Trib unal further observed that in a situation, such as, the present one, the referen ces, made by Mr. Choudhury, learned Senior counsel, to the cases of Sengara Sing h & Ors. vs. State of Punjab and others, reported in (1983) 4 SCC 225, and Bonga igaon Refinery & Petrochemicals Ltd. and others vs. Girish Chandra Sarma, report ed in (2007) 7 SCC 206, were not wholly misplaced inasmuch as Singara Singh (sup ra) holds that arbitrary picking and choosing for reinstatement after mass dismi ssal is violative of Article 14. In Singara’s case (supra), while the majority of the dismissed police personnel were reinstated and the criminal prosecution, instituted against them, had been withdrawn, the same yardstick was not used by the authorities concerned in respect of Singara Singh. In Bongaigaon Refinery & Petrochemicals Ltd. and others (supra), the Supreme Court, having found that on e person had been made the scapegoat for collective decision of several others, the domestic enquiry was interfered with. 53. We can also not ignore the fact, as rightly pointed out by Mr. Choudhury , learned Senior counsel, that the basic allegation against the respondent herei n was that without verifying the genuineness of the recommendations of different SDOs/SDEs and the experience certificates, which had been issued by JTO/Lineman , etc., the respondent herein had issued the order, dated 27.05.1996, and thereb y put the Department to huge financial loss. 54. It is trite that a distinct and different charge can arise only on a dif ferent cause of action. Unless the causes of action are different, two differen t charges cannot be framed. The Memorandum, which was served on the said Sri A. K. Sarkar, also contained, in essence, one and the same accusation. 55. One may refer, in this regard, to the case of M. Raghavelu vs. Govt. of A.P. and another, reported in (1997) 10 SCC 779, wherein the Court has pointed out that when persons, directly in charge of a work, had been found not guilty o f the charge framed, another person, who was indirectly in charge of the same wo rk, could not have been punished for similar charge. The relevant observations, made by the Supreme Court, in M. Raghavelu (supra), read as under: (cid:28)5. The argument of the learned counsel for the appellant is that if the persons directly in charge of the construction work were found not guilty of the charge framed, the appellant, who was indirectly in charge of the work, cannot be puni shed for similar charge leveled against him. We find force in the argument of t he learned counsel for the appellant and we do not think that the argument of th e learned counsel for the respondent that the enquiry officer in this particular case has gone into the merits and has given different finding should be accepte d. As pointed out earlier, on the basis of the same set of evidence the officer s, who were directly in charge of the construction work, were exonerated of the charge and we see no reason to pick out the appellant alone for finding him guil ty of the charge. (cid:29) 56. In the case at hand, the respondent herein was not the one, who had veri fied the documents/certificates, in support of the claims of the various mazdoor s (casual labourers) for TSM status. The verification was, in fact, done by a Se lection Committee, which consisted of, amongst others, the said Sri A. K. Sarkar , and the respondent herein merely acted on the recommendations, which had been made by the said Selection Committee. When a member of the said Selection Commi ttee, such as, Sri A. K. Sarkar, was exonerated of the charge, the respondent he rein, who was the Chairman of the Selection Committee, could not have been penal ized for having acted upon the recommendations made by the Selection Committee. Mr. Choudhury, learned Senior counsel, has correctly pointed out that si 57. nce the said Sri A. K. Sarkar was a member of the Selection Committee, which had recommended the names of the Mazdoors for TSM status, the said Sri Sarkar had c learly played a primary role and the role played by the respondent herein, in ac cepting the recommendation, was secondary. When the finding of the inquiring au thority, holding the said A. K. Sarkar not guilty, was accepted by the present p etitioners, there was no logical cause for penalizing the respondent herein on t he ground that the respondent herein had acted on the recommendations of the Sel ection Committee of which the said Sri A. K. Sarkar was a member. Coupled with the above, further points out the learned counsel, Mr. K. N 58. . Choudhury, that the JTOs and Supervisors, who had forwarded the names of the M azdoors (casual labourers) to the Selection Committee, have been acquitted by th e High Court by its judgement and order, dated 14.03.2007, passed in Crl. Appeal 254/2005, Crl. Appeal 258/2005, Crl. Appeal 268/2005, Crl. Appeal 269/2005 and Crl. Appeal 47/2004. 59. We are inclined to pause, for a moment, and point out, at this stage, th at though the standard of charge, in a criminal trial, is different from that of a disciplinary proceeding, the fact remains that, in a departmental proceeding, when the main accused has been acquitted, there is no justification in continui ng with the departmental proceeding against a co-accused on the same set of fact s. In the present case, the contention of the petitioners is that the responden t herein had not verified the genuineness of the experience certificates, submit ted by the Mazdoors, and, if that be the case, the experience certificates, whic h had been claimed to be forged, must be, now held (on the acquittal of the said A. K. Sarkar), to have been found, on judicial scrutiny, not forged. A referen ce may be made, in this regard, to the case of M. V. Bijlani vs. Union of India and others, reported in (2006) 5 SCC 88, wherein the Supreme Court held as under : (cid:28)It is true that the jurisdiction of the court in judicial review is limited. Di sciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proc eedings are not required to be proved like a criminal trial, i.e., beyond all re asonable doubts, we cannot lose sight of the fact that the Enquiry Officer perfo rms a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the char ges on the basis of materials on record. While doing so, he cannot take into con sideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with . (cid:29) 60. . HC Narinder Singh, reported in (2004) 13 SCC 342. 61. In the present case, the justification of the disciplinary authority to discard the finding of the inquiry authority, as conveyed by the memorandum of d isagreement, dated 04.01.2005, is that the inquiring authority found that TSM st atus could have been conferred only after referring the cases to DOT. This aspe ct of the matter did not, however, form part of the charge on the basis of which the inquiry was held and, hence, it was not legally permissible to proceed agai nst the respondent herein by serving him with a memorandum of disagreement. In this regard, the reference, made by Mr. Choudhury, learned Senior counsel, to th e case of Laxmi Devi Sugar Mills vs. Nand Kishore Singh (AIR 1957 SC 7), is also Reference may be made also the case of Lt. Governor, Delhi and others vs not wholly incorrect. 62. Because of what have been discussed and pointed out above, we do not fin d that the impugned orders, passed by the learned Tribunal, suffer from any infi rmity, legal or factual. We, therefore, find that this set of writ petitions is wholly devoid of merit. 63. nd the same shall accordingly stand dismissed. 64.
Decision
In the result and for the foregoing reasons, these writ petitions fail a No order as to costs.