Central Administrative Tribunal - Hyderabad
K Bhagawan vs Dept Of Posts on 25 November, 2024
1
OA.No.255/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATIONS NO.021/00255/2017
ORDER RESERVED ON 13.11.2024
DATE OF ORDER: 25.11.2024
CORAM:
HON'BLE DR. LATA BASWARAJ PATNE, JUDICIAL MEMBER
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE
MEMBER
K.Bhagawan
S/o. K.Dattatreya
Age: 33 years
GDSBPM (Removed)
Kotchera B.O a/w, Madnoor S.O. .....Applicant
(By Advocate Sri M.Venkanna)
Vs.
1. The Union of India Rep. by its Secretary
Ministry of Communications & I.T.
Department of Posts - India
Dak Bhavan, Sansad Marg
New Delhi - 110001.
2. The Director of Postal Services
Telangana Region
Dak Sadan, Abids
Hyderabad - 500001.
3. The Senior Superintendent of Post Offices
Nizamabad Division
NIZAMABAD. ....Respondents
(By Advocate Sri P.Krishna, Sr.PC for CG)
*****
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OA.No.255/2017
ORDER
PER: HON'BLE MR. VARUN SINDHU KUL KAUMUDI, ADMINISTRATIVE MEMBER
1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking therein the following relief:
"To quash and set aside the Appellate order vide Memo No.PMG(H)/ST/21-4/69/KB/NZB/2017 Dated 08.02.2017 issued by the 2nd Respondent and confirming the punishment of removal made by the 3rd Respondent vide Memo No.F6-7/15-16 dated 29.09.2016 and consequently reinstate the applicant with all appurtenant benefits in the interest of justice and be pleased to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case, as submitted by the applicant, are as follows:
i. The applicant, while working as BPM, Kotchera BO, was proceeded against under Rule 10 of the Department of Posts GDS (Conduct & Engagement) Rules, 2011, vide Memo No.F6-7/15-16, dated 30.06.2016, on the following charges:
"That the said Sri K.Bhagwan, GDS BPM (under off Duty), Kotchera BO while working as GDS BPM, Kotchera BO a/w. Madnoor SO during the period from 17.09.2003 to 10.12.2015 had kept cash short to the tune of Rs.83,727/- (Eighty three thousand seven hundred and twenty seven rupees only) in Kotchera BO office cash and produced the following cash and stamp balances on 10.12.2015 during the course of visit made by Sri Gautham Kumar Hari Vedi, Inspector Posts, Bodhan Sub Division.
Opening balance of Kotchera BO On physical verification by IP Bodhan dated 10.12.2015 as per balance Sub Division, the following cash and acknowledged by Madnoor S.O. stamp balances were found at Kotchera BO a/w. Madnoor SO on 10.12.2015 Opening Cash Balance Rs.83,727/- Opening Cash Balance Nil Postage Stamps Nil Postal Stamps Nil Revenue Stamps Nil Revenue Stamps Nil Total Rs.83,727/- TOTAL Nil (Cash of Rs.83,727/- was found short in office cash of Kotchera B.O.) 3 OA.No.255/2017 Thus, cash of Rs.83,727/- (Eighty Three thousand seven hundred and twenty seven rupees only) was found short in office cash which was got charged to UCP on 10.12.2015 in the accounts of Kotchera BO a/w. Madnoor SO.
Sri Gautham Kumar Hari Vedi, Inspector Posts, Bodhan Sub- Division prepared an inventory on 10.12.2015 duly showing the BO cash and stamp balances on 10.12.2015 and actually available in the BO on 10.12.2015 duly signed by Sri K.Bhagwan, GDSBPM (under off-duty), Kotchera BO a/w. Madnoor SO and witnessed by Sri Chakradhar R/o Kotchera village and Sri B.Gangadhar, Mail Overseer, Bodhan Sub Division.
Sri K.Bhagwan, GDSBPM (under off-duty), Kotchera BO a/w Madnoor SO in his statement dated 10.12.2015 given before Inspector Posts, Bodhan Sub Division clearly admitted that he had kept shortage of Rs.87,727/- in office cash during the course of visit of Inspector Posts, Bodhan Sub Division on 10.12.2015 and he had utilized the money to his personal needs. He himself voluntarily credited the shortage of amount of Rs.83,727/- under UCR at Madnoor SO on the following dates.
S.No. UCR receipt No. Date of UCR Amount credited under UCR
1. A145 28-12-2015 Rs.28,790/-
2. A148 29-01-2016 Rs.20,000/-
3. A149 10-02-2016 Rs.36,727/-
It is therefore alleged that Sri K.Bhagwan, GDSBPM (under off-duty), Kotchera BO a/w. Madnoor SO by his acts of omission and commission stated above had failed to follow the provisions of Rule-11 of Rules for Branch Offices corrected upto 28th September, 2007 and thereby failed to maintain absolute integrity and devotion to duty as required of him under Rule 21 of GDS (Conduct and Engagement) Rules, 2011."
ii. On receipt of the charge sheet, the applicant submitted the statement of defence in which he pleaded guilty. According to him, this statement of defence was given at the behest of the Inspector of Posts who had conducted the inspection behind his back, when he was busy in attending on his mother at Hospital. There was no inventory made and a seizure report was prepared in the presence of independent witnesses making out the shortage alleged to have been found during the said inspection.
4OA.No.255/2017 iii. Not satisfied with the explanation submitted by the applicant, the 3rd Respondent appointed the Inquiry Officer(IO) / Presenting Officer(PO) to hold the Inquiry, vide Memo No.IO/R- 10/02/BPM/KB/15-16, dated 12.07.2016.
iv. The Preliminary Enquiry(PE) was held on 22.07.2016 where the applicant was asked by the IO whether he wanted to plead guilty to the allegations made in the Article of Charge. The IO also explained the gist of the charge and, according to the applicant, the IO and the PO suggested to the applicant to admit the charges and assured him that they would ensure that the 3rd Respondent would take a lenient view and impose a minor penalty. Therefore, the applicant pleaded guilty, as per the Daily Order Sheet, dated 22.07.2016, of the above proceedings.
v. The Presenting Officer, after the perfunctory inquiry and after obtaining the forced and induced admission from the applicant, submitted his brief, vide Memo No.PO/Rule-10/KB/2016, dated 11.08.2016. On receipt of the PO's brief, the applicant submitted his defence brief, dated 20.08.2016, wherein he admitted the charge on the same lines as during the P.E. on 22.07.2016, with a fond hope that he would be let off with minor penalty.
vi. The Inquiry Officer, vide his Memo No.F6-7/15-16, dated 01.09.2016, forwarded the IO's report, wherein the lone charge was said to have been proved. Upon receipt of the IO's Report, the applicant submitted a detailed representation, dated 23.09.2016, accepting the charge of 5 OA.No.255/2017 keeping the cash short at Kotchera BO, having utilized it for the treatment of his mother.
vii. The applicant argues that the 3rd Respondent, without application of mind and despite the fact that there was no inquiry at all on mere admission of the charge by the applicant, imposed the harsh and disproportionate punishment of removal vide the impugned Memo, dated 29.09.2016. Aggrieved by the said punishment, the applicant preferred an appeal, dated 25.01.2017, that came to be rejected by the Appellate Order, dated 08.02.2017, mechanically upholding the punishment of removal, imposed by the 3rd Respondent. viii. Respondents had also lodged a criminal complaint on the said allegations at PS Madnoor. The Hon'ble Judicial First Class Magistrate, at Bichkunda, vide C.C.No.86 of 2016, acquitted the applicant vide his judgment, dated 09th November, 2016, recording the following findings:
"10. In the instant case, it is the case of prosecution that the accused misappropriated the Government money and used for his personal and in order to prove the charged offence, it is always necessary to adduce the evidence from the said of the aggrieved. In the instant case the prosecution has examined the aggrieved person as PW.1, who testified that on 10.12.2015 he visited Kodchira Branch post office and on verification of cash and postage stamps found shortage of Rs.83,727/- and on inquiring the reasons with concerned branch post master, he reported that he used the amount for personal and later he verified the accounts book and found the shortfall, as such he made inventory of cash and postage stamps and reported the same to Sub Post Master, Madnoor and on directions of superior office, he suspended the accused on the same day and lodged report with police. Though the evidence of PW.2 it is clear that the accused was not present on the relevant date and no panchanama was conducted by PW.1. The investigating officer has not examined any other independent witness other than the cited and there is no independent and corroborative piece of evidence. Though PW.1 deposed supporting the case of prosecution, his evidence is of no value, since he categorically deposed that he has no documentary evidence to show that the accused usurped the Government amounts and 6 OA.No.255/2017 utilized for his personal usage and he has not filed documentary proof that the accused worked at the relevant time of misappropriation and he cannot give exact dates when and where the accused usurped their funds and he has not filed documentary proof to show that the accused entrusted with post office amount. The investigating officer examined as PW.4 has not collected any documentary proof to say that accused committed misappropriation and not a single document is seized and no panchanama was conducted either by PW1 or by PW4 and thereby PW4 failed to collect any documentary evidence and they have not place any such material before this court. Therefore, I am of the view that the testimonies available on record i.e., PWs.1 to 4 evidences are not sufficient to conclude the case in favour of the prosecution.
As far the reasons stated above, the prosecution failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable U/s. 409 IPC with which he stands charged.
12. In the result, the accused is acquitted U/sec.248 (1) Cr.P.C. for the offense punishable U/s.409 IPC. The bail bonds of accused shall stand cancelled."
ix. An appeal, dated 25.01.2017, was submitted to the 2nd Respondent, urging inter-alia the ground of honourable acquittal in the criminal case, with the request to reinstate him into service, while setting aside the punishment of removal, but the 2nd Respondent, without considering any of the points raised, confirmed the punishment.
3. The main grounds advanced by the applicant are as follows:
i. The applicant was induced and rather intimidated into admitting to the guilt with a false promise that he would be let off with a small punishment. The IO, instead of acting as an arbitrator, had taken the sides of the prosecution and joined with the Presenting Officer to persuade the applicant to admit the charge in order to avoid protracted inquiry and also to see that the applicant is out of employment for good.
ii. Removal of the applicant was contrary to the provisions under Article 311 of the Constitution of India which contemplates that there shall be no 7 OA.No.255/2017 reduction in rank, compulsory retirement and removal or dismissal, unless the Government servant is informed of the charges and is heard.
iii. The 2nd Respondent, even after being informed of the fact that the applicant was honourably acquitted confirmed the punishment of removal imposed by the 3rd Respondent.
4. The learned counsel for the applicant has relied upon the order, dt. 28.02.2024, in OA.No.1517/2015, decided by the Tribunal, by a Bench wherein one of us (Hon'ble Dr.Lata Baswaraj Patne, M(J)) was a Member.
5. Respondents have filed their reply statement wherein they have averred as follows:
i. The version of the applicant is that the Inspector Posts, Bodhan Sub Division, had made a surprise visit to the Kotchera Branch Post Office in account with Madnoor Sub Post Office, on 10.12.2015 at 10:45 hrs. The applicant, who was working as Gramin Dak Sevak Branch Postmaster was not available at the Branch office. The Mail Overseer Bodhan Sub Division made a phone call to the applicant and asked him to come back to the Branch office. The applicant informed that he will return back in 15 minutes. The Inspector Posts and the Mail Overseer, Bodhan Sub Division, waited at the Branch Office till 18.00 hrs, but the applicant did not turn up. The Inspector Posts, Bodhan Sub Division, ascertained the Branch Office cash and stamp balances held by the Branch Post Office from the account office, i.e., Madnoor Sub Office, as Rs.83,727/-. The applicant arrived at the BO 8 OA.No.255/2017 at 1900 hrs and informed that he did not have the cash and also admitted that he had utilized the money for his personal needs. The applicant also agreed to credit the missing amount of Rs.83,727/- on 11.12.2015.
ii. Admitting his guilt, the applicant voluntarily credited the amount in instalments of Rs.28,790/- on 28.12.2015, Rs.20,000/- on 29.01.2016 and Rs.36,727/- on 10.02.2016, at the Madnoor Sub office, the total amount being Rs.85,517/- including the penal interest. iii. The applicant was proceeded against under Rule-10 of the Gramin Dak Sevak (Conduct and Engagement) Rules, 2011, vide memo No.F6-7/15-16, dated 30.06.2016. The Inquiry Officer conducted the preliminary sitting on 22.07.2016. In the preliminary sitting itself, the applicant unconditionally admitted his guilt and requested to stop the inquiry, vide his letter, dated 22.07.2016. On the basis of the report, dated 30.08.2016, final proceedings were issued vide 3rd Respondent memo No.F6-7/15-16 dated 29.09.2016, awarding the penalty of "Removal from Engagement". Aggrieved with the punishment, the applicant preferred an appeal, dated 25.01.2017, to the Appellate Authority, i.e. the Director of Postal Services, office of the Postmaster General, Hyderabad Region, Hyderabad(R2). The appeal was rejected by R2, vide memo No.PMG(H)/ST/21-4/69/KB/NZB/2017, dated 08.02.2017, as being time barred, without going into the merits of the case, as the applicant had failed to submit the appeal within '3' months from the date of receipt of the punishment order. 9 OA.No.255/2017 iv. According to the Respondents, the unconditional acceptance of the applicant is enough to prove his guilt. It is submitted that the allegations made by the applicant are baseless and false and an afterthought to escape the consequences of his guilt. The inquiry was an opportunity to the applicant to submit his defence and prove his innocence.
v. It was for the applicant to contest and express his wish to permit him to nominate Assisting Government Servant(AGS) to argue the case on his behalf, and not the IO and the PO. Since the applicant himself admitted the article of charges unconditionally in the deposition, dated 22.07.2016, before the Inquiry Officer, in the first sitting itself and requested to conclude the inquiry, the question of appointing the AGS does not arise. On the request of the applicant, to conclude the inquiry on 22.07.2016, the Presenting Officer submitted his brief on 11.08.2016 and the applicant himself submitted his defence, dated 20.08.2016, in which he once again admitted his guilt. vi. The IO's report was sent to the charged officer, on 01.09.2016 and, in turn, the applicant submitted his defence, dated 23.09.2016. He again admitted that he had utilized the Govt. money for treatment of his mother, which clearly shows that the applicant acted against the rules and is liable to face the consequences for the same. vii. The applicant preferred an appeal to the appellate authority, i.e., the Director of Postal Service, O/o the Postmaster General, Hyderabad Region, Hyderabad, on 25.01.2017, and the same was rejected by the 10 OA.No.255/2017 appellate authority, vide memo No. PMGH/ST/21- 4/69/KB/NZB/2017, dated 08.02.2017, as time barred. viii. Punishment in the DE was ordered, based on the gravity of misconduct on the part of the applicant and also because his acquittal in the criminal case was not an honourable acquittal as claimed by him, but was based on insufficient evidence. There is no bar on disciplinary action against him even though he was acquitted due to lack of evidence, according to the Department of Personnel & Training OM No. F.No.11012/6/2017-Estt.(A), dated 21.07.2016, as per the Respondents.
ix. Learned counsel for the Respondents has relied upon the following rulings of the Hon'ble Supreme Court of India in which observations have been made on similar lines:
a. Parma Nanda vs. State of Haryana and Others 1989 (2) Supreme Court 177 b. UT of Dadra & Nagar Haveli vs. Gulabhia M. Lad, (2010) 5 SCC c. Director General, RPF v. Ch.Sai Babu (2003) 4 SCC 331 d. State Bank of India vs. Samarendra Kishore Endow (1994 (1) SLR 516)
6. It is prayed by the Respondents that the OA may be dismissed being devoid of merits.
7. Heard learned counsels for both the parties and perused the materials on record.
8. The learned counsel for the applicant has relied upon the order, dt. 28.02.2024, in OA.No.1517/2015, decided by this Tribunal, by a Bench wherein one of us 11 OA.No.255/2017 (Hon'ble Dr.Lata Baswaraj Patne, M(J)) was a Member. The relevant paras are extracted below:
11. We have carefully perused the Order dated 22.06.2018 in OA/665/2017, passed by a third Member on reference, in the said case, issue as to whether the admission made by the applicant therein was unconditional voluntary / unequivocal or he was induced or compelled to make the admission by IO and DA was examined in detail and this Tribunal, came to the conclusion that his admission was involuntary and equivocal and resultantly, the impugned penalty was set aside. .........
x x x x x x x
35. In view of the discussions made herein above, I am of the view that in this case the principles of natural justice have been violated. The adequate opportunity has not been given to the applicant to defend. Rule- 14 (4), (5) and (6) were violated by the DA. The applicant has not been provided with the copies of the documents demanded by her. In these circumstances, if she made an admission of the charges before the IO and DA, the admission made cannot be the sole basis for awarding the punishment especially when the flavour of admission cannot be said to make the same voluntarily or unequivocal. It is virtually involuntary and equivocal admission. Moreover, if there is violation of Rules which affects the right to defend and fair opportunity, they cannot be overlooked. The Courts should go through such violation when person has been punished after ignoring such mandatory requirements.
x x x x x x
37. In view of the above, I am of the firm opinion that the view expressed by the Hon'ble Judicial Member, that rule of Principles of Natural Justice have been violated is well founded. The admission cannot be stated to be made voluntarily or unequivocal. In terms of wordings used by the applicant in respect of the admission made at two different stages, such admission cannot be the sole basis for holding the applicant guilty unless the other material establishes the guilt of the applicant is available.
In such circumstances the legal prejudice is deemed to have been caused to the applicant on account of violation of principles of natural justice and mandatory rules as discussed herein above. The reference is accordingly answered.
38. Hence in view of the above, the order of punishment No. F-4-01/15- 16/1, dated 27.04.2016 and the appellate order No.Inv/13-KBUR/2017, dated 03.07.2017 deserves to be set aside.
39. Accordingly the OA is allowed. The impugned orders dated 27.04.2016 passed by the Disciplinary Authority and order dated 03.07.2017 passed by Appellate Authority are set aside.
40. As the applicant has already retired on 30.04.2018, the question of her reinstatement into service does not arise. However she would be entitled to get all the consequential benefit till the date of her retirement. 12 OA.No.255/2017
37. Liberty is granted to the Respondents that they may proceed with the enquiry from the stage of serving the charge sheet against the applicant in accordance with law and Rules."
If the facts of the case are examined in the light of the above order, it is clear that the IO conducted the preliminary inquiry on 29.12.2014 and recorded that the applicant admitted all the charges, as such there is necessity for PO brief and the inquiry was concluded. On the very same day, i.e. 29.12.2014, the IO submitted his report stating that the applicant admitted the charges unconditionally and as such, the charges leveled against him are proved beyond doubt. In view of the above finding given by the IO, it is to be seen whether the applicant admitted the charges unconditionally or under compulsion. The applicant in his representation to the 4th Respondent stated as under:
"I worked in the department since 17 years and I worked without any complaint from any one. I belong to Backward community. I look after 90 years old aged ailing mother, wife suffering from asthama and school going children and a daughter. I have to meet the expenditure of school fee and medical fee from my own earnings. I do not have any other source of income. As mentioned above, treat my mistakes as first instance and pleased to reinstate me into service, for which I invoke with, folded hands."
Even in the appeal, dated 16.03.2015, the applicant stated that, "the IO had persuaded me to admit the charges assuring that nothing adverse would happen to me since I have credited the amount on the spot."
xxxx xxxxx xxxxx xxxxxx xxxxxx "The Inquiry Officer should have explained to me that I was not obliged to admit to the guilt and there was a facility of nominating another Government Officer to represent the case on my behalf. The Inquiry Officer wanted to conduct the inquiry in a perfunctorily manner without having concern as to the consequences of the said conducting of the inquiry and made his findings that the charges are proved vide his inquiry Officer report vide 3rd cited."
This shows that the applicant had to admit charges, involuntarily and without understanding the consequences thereof. Hence, the finding of the IO holding the charges as proved for that conducting detailed enquiry. Merely on the basis of such admission by the applicant would definitely amount to denied of principles of natural justice to the applicant.
12. Similar issue as dealt by the Coordinate bench at Chennai in OA/714/2016 and the said OA was allowed relying upon several judgments of the Hon'ble Court. Relevant observation i.e. para.11 & 12 are extracted hereunder:
11. The Hon'ble High Court of Madras in the matter of S. Jacintha in WP No.14320 of 2014 dated 13.02.2017 has considered similar issue, i.e., the charges levelled were admitted by the petitioner therein. It has been observed by the High Court that inquiry should be held in terms of relevant regulations governing the service conditions and the inquiry officer, disciplinary authority and the appellate authority, as the case may be, may take a fresh decision on the basis of the conclusion of the inquiry, without 13 OA.No.255/2017 being influenced by the earlier admission of the charges by the petitioner therein. Relying on the above judgments, the learned counsel for the applicant submitted that the punishment of removal from service is shockingly disproportionate.
12. Relying upon the above said judgments, this Tribunal in a similar matter, OA No.460/2015, in the matter of K. Boopesh Vs. UOI, by its order, dated 08.07.2022, observed that even though delinquent has admitted the charges, it was necessary to the authorities to hold an inquiry under the prescribed rules. It is also held that even in the matter of misappropriation of fund, admission of charge by the delinquent employee and where no proper Inquiry was conducted, this Tribunal has set aside the penalty of dismissal/removal from service and remitted back the matter to conduct the inquiry afresh. It is also to be noted that the authorities relied by the Respondents is not applicable to the facts of the present case. Admittedly, the Respondents have not followed the procedure to conduct the inquiry even though the delinquent has admitted the charge. The judgments relied upon by the Respondents are not applicable to the present case whereas the judgments relied upon by the applicant squarely cover the present case. Therefore, in our considered view the impugned orders, dated 06.08.2015, 26.10.2015 & 25.02.2016, are against law. Hence, we hereby quash and set aside the said orders with a direction to consider the matter afresh looking at the unblemished continuous service rendered by the applicant.
The matter is remitted back to the Respondents who shall, after fresh consideration, by giving a fair opportunity to the applicant and by following the due process of law, pass appropriate orders, within a period of three months from the date of receipt of a certified copy of this order. The OA is disposed of as above. No order as to costs.
13. In view of the above, the decision, of the disciplinary authority and, appellate authority do not sustain in the eyes of law. The same is hereby quashed and set aside. The matter is remitted back for Denova enquiry. Accordingly, the said enquiry may be conducted within a six months. The applicant has to be reinstated into services with no back wages, on the principle of no work no pay. The said inquiry as directed has to be completed by passing final order by the disciplinary authority within six months from the date of receipt of the copy of the order."
5. In the present case, the situation being exactly the same as in OA.No.1517/2015, as discussed above, we find no grounds to differ from the conclusion arrived at and the order pronounced therein.
6. In the result, the order, dated 29.09.2016, of the Disciplinary Authority (R3) and the order, dated 08.02.2017, of the Appellate Authority (R2), which are impugned, are quashed and set aside. The applicant shall be reinstated 14 OA.No.255/2017 forthwith. However, liberty is granted to the respondents to proceed with the enquiry from the stage of serving the charge sheet against the applicant and take further action in accordance with law and rules, keeping the judicial observations above in view.
7. The OA is disposed of, accordingly. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Dr. Lata Baswaraj Patne)
Administrative Member Judicial Member
25.11.2024
/ps/
Digitally signed by PANDIRLAPALLI SANDHYA
PANDIRLAPA
DN: c=IN, o=CENTRAL ADMINISTRATIVE TRIBUNAL,
ou=DEPARTMENT OF PERSONNEL AND TRAINING,
postalCode=500004, l=Hyderabad, st=Telangana, street=NO 5-10-193 1ST FLOOR HACA BHAWAN HYDERABAD, 2.5.4.20=ec4f909cdddc28931061bef733616fb5c65493d179209a LLI SANDHYA 8c2cfaa0a510742c22, serialNumber=35e33c0d6e61374d1b11744a97265175a0ceaf8b a7768772f41813a4eb590082, [email protected], cn=PANDIRLAPALLI SANDHYA Date: 2024.11.26 17:44:25 +05'30'