Central Administrative Tribunal - Delhi
Shri Jagbir Singh vs The Union Of India on 2 April, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1214/2011 Order reserved on 14.12.2012 Order pronounced on 02.04.2013 Honble Shri George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Shri Jagbir Singh S/o Late Shri Charan Singh Ex.Branch Postmaster (GDS) Auchandi Branch Post Office, Delhi-110039 R/o H.No.332, Village Auchandi Delhi-110039 Address for service of notices C/o Shri Sant Lal, Advocate CAT Bar Room, New Delhi-110001. Applicant (By Advocate: Sh. Pradeep Kumar) Versus 1. The Union of India Through the Secretary, Ministry of Communications & I.T., Department of Posts, Dak Bhawan, New Delhi-110 001. 2. The Director Postal Services ( O), Delhi Circle, Meghdoot Bhawan, New Delhi-110 001. 3. The Sr. Supdt. Of Post Offices, Delhi North Division, Delhi-110054. ..Respondents (By Advocate: Shri B.K. Berera) O R D E R
Honble Sh. G. George Paracken:
The Applicant in this Original Application has challenged the impugned Annexure A-1 Memo NO.F-1/IV-2/93 dated 29.03.2008 issued by the Sr. Suptd. Of Post Offices, North Division, Delhi imposing upon him the penalty of removal from service with immediate effect and the Annexure A-2 Memo No.Staff/H-1/25/P/2008 dated 26.03.2010 issued by the Director Postal Services (O) Delhi Circle, New Delhi rejecting his appeal filed against the aforesaid order of punishment.
2. Facts in this case are that the Applicant was put off duty vide Annexure A-3 order dated 17.02.1994 on the ground that disciplinary and criminal proceedings were pending against him with the further stipulation that he will not be entitled for any allowance for the period he remains so. The said order reads as under:-
Thereas a disciplinary criminal proceedings against Shri Jagbir Singh Extra Departmental Branch Post Master Auchandi Extra Departmental Branch Post Office Delhi-39 are pending.
Now, therefore, the undersigned in exercise of powers conferred by Rule 9 of EDAS (Conduct and Service) Rules, 1964 hereby out off from duty the said Shri Jagbir Singh with immediate effect.
It is further ordered that the said Shri Jagbir Singh will not be entitled to any allowance for the period for which he remained under put off duty.
3. Later on, when EDAS (C&S) Rules, 1964 were amended making the ED employees under put off duty eligible for 25% allowances, applicant filed OA No. 2390/2003 before this Tribunal seeking directions to pay him the said allowance and it was allowed vide order dated 19.05.2004.
4. Thereafter, vide According to Memo dated 29.03.2008, the Respondents stated that an enquiry was proposed to be held against him while he was under put of duty, under Rule 10 of GDS (Conduct & Employment) Rules, 2001 vide an earlier memo No.F-1/IV-2/93 dated 30.07.2003. The Articles of Charge against him were as under:-
ARTICLE - I It is alleged that Shri Jagbir Singh while working as Extra Departmental (Now G.D.S.) Branch Postmaster Auchandi B.O. from 8-2-1993 to 4-11-1993 received the total amount of Rs.2000/- on the dates stated in Annexure-II from the depositors of R.D. Accounts Nos. 318270 and 318280 and made their entries in the respective Pass Books, but he neither made their entries of the said amounts in the B.Os Journal, B.Os Daily Account nor he has taken the said amounts in the Government Accounts. It is, therefore, alleged that the said Shri Jagbir Singh has violated the provisions of Rule 5 of Financial Hand Book Vol.I, Rule 31(2) (iv) of Post Office Savings Bank Manual Vol.I and Rule 134 of Branch Office Rules (7th Edition). By his above acts, it is alleged that while working as Branch Postmaster Auchandi B.O. failed to maintain absolute integrity and devotion to duty and thereby violated the provisions of Rule 17 R/W Rule 21 of G.D.S (C&A) Rules, 2001.
ARTICLE - II It is alleged that Shri Jagbir Singh while working as Extra Departmental (Now G.D.S.) Branch Postmaster Auchandi B.O. on 1-6-93 and 23-10-93 he received a sum of Rs.1000/- from the depositor of accounts No. 895051 on 1-6-1993 and also received a sum of Rs.500/- from the depositor of account No. 894185 on 23-10-93 and made the entries of the said amounts in their respective Pass Books, the amounts of the said deposits has neither been shown in the Saving Bank Journal of the B.O. on 1-6-93 and 23-1093 nor has been shown in the S.B. Daily Account of the Branch Office. The said amounts have also not been taken in the Govt. Accounts. Thus, it is alleged that the said Shri Jagbir Singh while working as Branch Postmaster Auchandi on 1-6-93 and 23-10-93 violated the provisions of Rule 5 of Financial Hand Book Vol.I, Rule 31(2) (iv) of Post Office Savings Bank Man. Vol.I and also failed to maintain absolute integrity and devotion to duty thereby, violated the provisions of Rule 17 R/W Rule 21 of G.D.S (C&A) Rules, 2001.
5. The Applicant made a representation against the aforesaid charge sheet but not having satisfied with it, the Disciplinary Authority decided to proceed with the enquiry. The Inquiry Officer held the preliminary hearing on 27.11.2003, continued on 16.07.2004, concluded on 25.04.2006 and submitted the report on 21.08.2007 holding the charges were proved. On furnishing a copy of the Inquiry Report to him vide letter dated 23.08.2007, he submitted his representation dated 03.09.2007 against it to the Disciplinary Authority and requested for his reinstatement in service after rejecting the said report. As stated above, the Disciplinary Authority, rejected his submissions and imposed upon him the penalty of removal from service vide its order dated 29.03.2008. The Appellate Authority has also rejected his appeal vide its order dated 26.03.2010.
6. The main contentions of the Applicant in the aforesaid representations, appeal and this OA are the following:-
(i) The alleged incidents mentioned in charges relate to the year 1993 and the Applicant was put off duty on 17.02.1994 on the ground that a disciplinary/criminal case was pending against him. But neither any disciplinary case nor any criminal case was pending against him as on that date as stated by the Respondents in the aforesaid order. On the other hand, it was only after nine years after the date of the order putting him off from duty, the Disciplinary Authority issued the aforesaid charge-sheet vide Memo dated 30.07.2003.
(ii) There was an abnormal delay of more than 9 years in initiating the disciplinary proceedings against him; the alleged incident took place during the year 1993; the statements had been recorded in the preliminary enquiry during 1994, the applicant was placed under put off duty vide order dated 17.2.1994; the amount had been recovered under threat and promise during 1994; but after lapse of about ten years it has been reopended and the charge-sheet has been issued under Rule 10 vide Memo dated 30.07.2003; no reason has been given for re-opening the case and issuing the charge-sheet vide Memo dated 30.7.2003 after more than nine years of placing the appellant under suspension/put off duty vide order dated 17.2.1994.
(iii) The aforesaid unexplained delay in issuing the charge sheet caused not only serious prejudice to his case but also serious financial difficulties as no payments were made to him during the said long period of put off duty. In this regard, he has relied upon the judgment of the Apex Court in the case of Bani Singh Vs. State of M.P. 1988 (1) 1988 (1) ATR 592 wherein it was held that it is a well settled principle of law that unexplained long delay in issuing charge sheet causes serious prejudice to the charged official and the proceedings are vitiated. The Tribunal, therefore, quashed the charge sheet and the proceedings were vitiated. The relevant part of the said judgment is as under:-
4 The Appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunals orders and accordingly dismiss this appeal.
On the same issue of delay, the learned counsel has also relied upon the judgment of the High Court of Delhi in Shri Mahender Singh Vs. Municipal Corporation of Delhi (82) 1999 Delhi Law Times 840 wherein it was held as under:-
In this writ petition, petitioner challenges the action of the respondents in issuance of charge-sheet dated 28.09.1995 which was issued more than 11 years of the alleged irregularities committed by the petitioner more than 9 years of the submission of the comments of the audit report by the petitioner. Today, the matter was fixed for filing arguments. However, nobody appears on behalf of the respondents even when the matter was passed over for more than four times.
2. Respondents have filed counter affidavit. Curiously enough not a single averment made by the petitioner in the writ petition has been dealt with in the counter affidavit. Counter affidavit deals with the case of the promotion of the petitioner to the higher post and keeping the same in sealed cover in view of the departmental proceedings pending. There is another case filed by the petitioner being CWP No.2865/1998 and it appears, without application of mind, that counter affidavit in that case is reproduced in this case also. Although the subject matter of the two cases is totally different. Since no explanation is given by the respondents in initiating enquiry after a lapse of 11 years, this petition warrants to be allowed. Orders to this effect has been passed by this Court in the case of Shri P.K. Bharija Vs. MCD and Another, (CW 4432/1995 decided on November 21, 1997) and by Apex Court in the case of DDA Vs. Ashok Kumar, SLP ) 24710/95 decided on 25.03.1998 and DDA V. K.K. Upretti, SLP ) 1100/97 decided on 29.01.1997.
3. Accordingly, the writ petition is allowed. Rule is made absolute. The impugned charge-sheet dated 28.09.1995 is hereby quashed. There shall be no order as to costs.
(iv) During the preliminary enquiry a statement was obtained from him under pressure, threat of police action through the Assistant Supdt. of Post Offices and giving the promise to impose only minor penalty and thus a huge amount of Rs.36000/- was recovered from him on various dates during February-March, 1994. Even some more amount, i.e., Rs.340/- Rs.500/- and Rs.500/- respectively have been recovered on 11.06.1996, 03.04.1997 and 21.03.1997 amounting to a total of Rs.37,340/-.
(v) The Applicant submitted a list of 15 additional documents vide his application dated 20.01.2004 to the Inquiry officer as per his orders passed in the Daily Order sheet dated 6.1.2004. The said application dated 20.1.2004 was considered by the Inquiry Officer in the proceedings held on 20.1.2004 and passed the following orders:-
Additional documents mentioned at Sl.No.1 to 15 are found relevant to the case. The SSPOs Delhi North Dn. Delhi-110054 (Disciplinary Authority) being the custodian of the additional documents is requested to provide in original a/w two set of photo copies through P.O on the next date of hearing. The additional documents have not been produced on the next dates, i.e. 6.2.2004 nor on 20.02.2004. The Presenting Officer only produced a letter dated 23.2.2004 addressed to the Inquiry Officer and its copy was given to the appellant during the proceedings held on 27.2.2004 but none of the additional documents were provided. The Inquiry officer did not pass any order thereon when his requisition for providing the additional document considered relevant by him had not been compiled with. In the said letter the disciplinary authority held the documents mentioned at Sl. Nos. 1,2,8 & 13 are not relevant despite the fact the inquiry officer had found the same as relevant and in the subsequent letter dated 15.6.04 the disciplinary authority had stated that these documents are Unspecific. Hence cannot be arranged. Thus the non-supply/production of the additional documents considered relevant by the Enquiry Officer denied reasonable opportunity of defence and caused serious prejudice to his case. The Disciplinary Authority arrogated the power of the Inquiring Authority and considered the relevancy of the documents sought for. On the other hand, under the Scheme of the CCS (CCA) Rules, 1965, only Inquiring Authority is empowered to consider the relevancy and the Disciplinary Authority has nothing to do with it. In this regard the Applicants counsel relied upon the judgment of the Apex Court in Kashinath Dikshita Vs. Union of India and Others AIR 1986 SC 2118 wherein it was held as under:-
12. The appellant relied on Tirlok Nath v. Union of India 1967 SLR 759 (SC) in support of the proposition that if a public servant facing an inquiry is not supplied copies of documents, it would amount to denial of reasonable opportunity. It has been held in this case :
"Had he decided to do so, the documents would have been useful to the appellant for cross-examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, well have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish to the appellant with copies of the documents such as the FIR and statements recorded at Shidhipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
Reliance has also been placed on State of Punjab v. Bhagat Ram (1975) 2 SCR 370 : (AIR 1974 SC 2335) and State of Uttar Pradesh v. Mohd. Sharif (dead) through LRs. (1982) 2 Lab LJ 180: (AIR 1982 SC 937) in support of the proposition that copies of statements of witnesses must be supplied to the Government servant facing a departmental inquiry. It has been emphatically stated in State of Punjab V. Bhagat Ram by this Court as under : -
"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.
It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken."
(vi) It has been laid down that, the Rules of natural justice require that when a Govt. servant is placed under suspension, charges against him should be framed within a reasonable time and final decision taken expeditiously and terminate suspension. It has been further laid down that in disciplinary cases the total period of suspension, viz., both in respect of investigation and disciplinary proceedings, should not ordinarily exceed six months. In this case, it has taken 14 years. Even the inquiry officer took about 4 years to complete the inquiry. The inquiry was held up for more than two years for the sake of production of three prosecution witnesses as if the I.O was acting as a Prosecutor. The proceedings are vitiated on this ground alone. The appellant also had requested the Inquiry Officer vide his application dated 6.1.2005 to resume the proceedings at an early date. Those three witnesses who were reluctant to tender evidence they should have been dropped instead of applying the coercive method to force them and in that process delay the proceedings for more than two years to penalize the appellant for no fault.
(vii) The Inquiry Officer repeatedly adjourned the proceedings without any reasons on 04.06.2004, 15.06.2004 and 16.07.2004. Again, thereafter, further proceedings were held only after more than 20 months and the report was submitted only on 21.08.2007. Even then, the Enquiry Officer failed to examine three prosecution witnesses who did not appear before him to tender evidence even after issuance of repeated summons to them:-
(i) Shri Rajbir Singh S/o Shri Ram Mehar Singh;
(ii) Shri Mukesh Kumar S/o Late Sh. Swarup Singh;
(iii) Smt. Sushila Devi W/o Shri Om Prakash.
The Presenting Officer also failed to produce them. Thus, the proceedings were held up for more than 2 years for the sake of production of three prosecution witnesses as if the Inquiry Officer has the power to do so. The Applicant has also cited the instructions of the Department as contained in the D.G. Posts letter No.294/90-(E)-I Trg. dated 26.07.1990 instructing the disciplinary authorities to make every effort to finalize the disciplinary proceedings and pass final orders so that an EDA does not remain on put off duty for a period exceeding 45 days and not 120 days as ordered previously. The relevant part of the said letter is reproduced as under:-
3. It is also necessary that the disciplinary authority makes every effort to finalize the disciplinary proceedings and pass final orders so that an EDA does not remain put-off duty for a period exceeding 45 days and not 120 days as ordered previously. The Divisional Superintendent should draw up a time-table for ensuring finalization of disciplinary cases within this period. If, due to unavoidable reasons, it is not possible to finalize a case within this period, the matter should be reported immediately to the next superior authority giving full justification why the EDA cannot be taken back to duty pending finalization of the case. The superior authority should on receipt of the report immediately review the case and consider-
(i) whether there is justification to continue the EDA concerned off duty for a further period; and
(ii) what steps should be taken by the disciplinary authority to eliminate all avoidable delay in finalizing the case.
The superior authority will then make an order accordingly.
It was also ordered vide letter No.19-23/94-ED & Trg. dated 14.09.1994 that the instructions contained in their said letter dated 26.07.1990 should be observed scrupulously. However, the Applicant who is a poor E.D. employee had been put off duty w.e.f. 17.02.1994 and continued so for more than 14 years and ultimately imposed the penalty of removal from service vide order dated 29.03.2008.
(viii) The material witnesses i.e. the Sub A/C P.A of Bawana Post Office who examined the Daily Accounts of the B.O Auchandi and the Postal Assistant who issued the receipts marked as Exhibits S.10A, B & C were not produced to tender evidence to prove those documents. The appellant has been denied the opportunity of their cross examination. Shri S.S.Gaur then Sub Postmaster of Bawana post office has confirmed in this cross examination that the B.Os Summary was filed by the Sub A/C PA. He was the material witness to testify these documents and face the cross examination. The said Shri Gaur in cross examination has confirmed that no irregularity of any type was brought to his notice by the Sub A/C P.A. It is well settled principle of law that non examination of the material witnesses vitiates the proceedings.
(ix) The Enquiry Officer has not held the inquiry in accordance with the procedure prescribed in the rules but held quite arbitrarily. Rule 14 (14) of CCS (CCA) Rules, 1965 lays down that, on the date fixed for the inquiry the oral and documentary evidence by which the Articles of Charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The documentary evidence as shown in Annexure-III of the charge-sheet had not been produced in the manner prescribed. The Enquiry Officer in the proceedings held on 10-3-04 marked the following documents (listed in Annexure-III) as exhibits as noted against each:-
1)Statement of Shri Jagbir Singh Dt. 03.2.94 Ex. S-I
2) Rajbir Singh 12-02-94 S-2
3) in r/o A/C Nos.
318279 & 318280 S-3 4) Mukesh Kumar 05-03-94 S-4 5) Smt. Sushila Devi 01-11-94 S-5 6) Auchandi EDBO RD PB A/C No. 318279 S-6 7) 318280 S-7 8) 895051 S-8 9) 894185 S-9 10) ACG 67 receipt No.1616/10,15,16 S-10 A,B,C.
Nine documents were produced by Shri. A.L. Gupta (SW-I) taken on record and marked as Exhibits S-1 to S-9. The aforesaid action was quite illegal as those documents could not have been treated as documentary evidence unless the same were confirmed by the concerned witnesses and faced cross examination. SW-1 had no authority, competence and jurisdiction to produce them and confirm their contents. Under the said rule it was the function of the Presenting Officer to produce the documentary evidence on behalf of the Disciplinary Authority and of the concerned witnesses to verify/confirm or deny their contents after which the documents are marked as exhibits to become documentary evidence which has not been done in the present case. Similarly the documents marked as Exhibits S.11 & s.12 were produced by Shri Shiv Shankar Gaur (SW-2), taken on record and marked as exhibits without any authority and competence to produce them and confirms their contents. Similar process was followed through Shri Vakil Singh retired Mail Overseer (SW-3). These documents cannot be used against the appellant. The Honble Supreme Court in the case of Bareilly Electric Supply Co. V Workmen (1971 (2) SCC-617) has held that, if a letter or other document is produced to establish some fact which is relevant to the inquiry the writer must be produced.. In another case of M/s Sudhir Engineering Co. V M/S Nitro Roadways Ltd. (1995(2)A.D(Delhi.189) it has been held that admission of document in evidence does not amount to proof unless the same is confirmed by the writer of the document who is produced in the inquiry and faced cross-examination. The application of principles of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken about them and are subjected to cross examination by the party against whom they are sought to be used. In an identical issue the Ernakulam Bench of the Tribunal held as under:-
that mere production of a document without the testimony of the custodian of the same cannot convert it into documentary evidence forming part of the proceeding particularly when there is no consent or admission by the other side. It cannot be relied on or accepted in evidence and marked as part of the case for being relied upon in the inquiry. The case of the appellant is also covered by the above judgments. The proceedings are initiated and the impugned order is liable to be set-aside.
(x) The Sr. Superintendent of Post Officers who was the Disciplinary Authority as well as the Director Postal Services who was the Appellate Authority took into consideration extraneous matters which have not been included in the charge sheet thereby vitiated the entire proceedings. While in Articles 1 and 2 of the charge referred to the alleged discrepancies in the Saving Bank Account Nos. 895051 & 894185 of Rs.1000/- & Rs.500/- respectively and in the R.D. Accounts Nos. 318279 and 318280 of Rs.1000/- each and the total amount involved was Rs.3500, Sr. Supdt. of post Offices, who was the Disciplinary Authority took into consideration the charges involving Rs.36000/- and the said amount was already recovered from his family without proving the charge during the enquiry proceedings. The details of the said amount have been given in the sanction Memo dated 13.06.1994 issued by the Sr. Supdt. of Post Offices. The said Memo reads as under:-
Department of Posts Office of the Sr. Supdt. of Post Offices Delhi North DN. Delhi-54 Memo No.F1/IV-2/93-94 dated at Delhi-54 the 13.6.94.
Sanction of the SSPOs Delhi North Dn. Delhi-54 is hereby accorded for restoration of defrauded amount of Rs.1000/- (One thousand only) with interest accrued thereon in Auchandi EDBO Savings Bank A/C No.895051 in the name of Shri Mukesh Kumar S/O Shri Sarup Singh resident of Auchandi Village Delhi-110039.
On 1.6.93 Shri Jagbir Singh while working as EDBPM at Auchandi EDBO Delhi-39 accepted Rs.1000/- (One thousand only) from Shri Mukesh Kumar the depositor of Auchandi EDBO savings Bank A/C No.895051 for deposit in his pass book. Shri Jagbir Singh made the entry of deposit in the pass book, On the same date & impressed the date stamp in this pass book. But he did not a/c for the amount of Rs.1000/- to the Post office account. Shri Jagbir Singh himself has admitted that he had mis-appropriated the amount and used for his personal affairs.
The requisite indeminity Bond has been received and placed on office records.
The amount will be adjusted by per contra-debit to UCP, the amount of Rs.36000/- has been recovered from Shri Jagbir Singh and credited under the head UCR at Bawana PO, the detail of which is as under:-
SNo. Date ACG-67 Receipt No. Amount
1. 1.2.94 000010/1616 10000.00
2. 1.2.94 000015/1616 12500.00
3. 1.2.94 000016/1616 1000.00
4. 5.2.94 000041/1616 2500.00
5. 12.2.94 018/172790 2000.00
6. 15.2.94 030/172790 3000.00
7. 26.2.94 096/172790 2500.00
8. 3.3.94 21/172789 1500.00
9. 28.2.94 097/172790 1000.00 __________ 36000.00 __________ Sd/-
Sr. Supdt. of Post Offices Delhi North DN. Delhi-54
(xi) The Appellate Authority in its impugned order dated 26.03.2010 has also mentioned as under:-
The charges against the appellant are misappropriation of public money. It has been brought to notice by SSPOs Delhi North Dn. in his note to the case that an amount of Rs.37,340/- has been defrauded which has been recovered from the charged official.
(xii) During the preliminary enquiry a statement was obtained from him under pressure, threat of police action through the Assistant Supdt. of Post Offices and giving the promise to impose only minor penalty and thus a huge amount of Rs.36000/- was recovered from him on various dates during February-March, 1994. Even some more amount, i.e., Rs.340/- Rs.500/- and Rs.500/- respectively have been recovered on 11.06.1996, 03.04.1997 and 21.03.1997 amounting to a total of Rs.37,340/-.
(xiii) The action of the Disciplinary Authority was biased and perverse as said authority has initially recovered the huge amount of Rs.37340/- illegally from the Applicant under threats and pressure while the charges related to the alleged loss/fraud of only Rs.3500/-. Further, in order to prejudice the mind of the Appellate Authority, it sent a note regarding recovery of the said amount of Rs.37340/- in spite of the fact that the recovery of the said amount had nothing to do with the appeal. The Appellate Authority instead of deciding the appeal on merits rejected the appeal on the sole ground of the said note sent by the Disciplinary Authority in total disregard of the provisions of Rules and principles of natural justice.
(xiv) The Disciplinary Authority has prejudged issue and the disciplinary proceedings were held as an empty formality and an eye wash. The Disciplinary Authority arrived at its findings during the years 1994-96 itself when it forced the recovery of the alleged loss/fraud and also issued sanctions for payments to the concerned parties vide Memos.No.F.1/IV-2/93-94 dated 13.06.1994, 11-06, 12-06 and 24.05.1996 of Rs,1000/-, Rs.500/-, Rs.1000/- and Rs.1000/- respectively. Those sanction memos had been shown in the list of documents at S.Nos. 11 and 12. However, the Memo dated 13.06.1994 shows not only the Articles of Charge involving the loss/fraud of Rs.3500/- but also a huge amount of Rs.36000/- as recovered on various dates during February-March, 1994. The learned counsel for the Applicant argued that such prejudging of the issues has vitiated the proceedings and in that regard he has relied upon the order of the Calcutta Bench of this Tribunal in Mahit Mohan Sur Vs. U.O.I 1991 (2) ATJ 665 CAT (Calcutta) and the judgment of the Calcutta High Court in Nag Narayan Singh Vs. Union of India 2001 (3) ATJ 158. In the case of Mahit Mohan Sur (supra), it was held as under:-
4. At the very outset we must say that from the stage of issuance of the charge-sheet the enquiry against the applicant had proceeded and concluded in a way which is unsustainable in law. The first thing which we like to refer is in the charge-sheet itself. Copy of the charge-sheet is mentioned that from the irregularities as brought out by the staff court of enquiry convened by the Headquarters. Special Area Order, dated 10.11.1984, it was clearly established that this applicant had shown gross negligence in his duties and thus contravened Rule 3 of the CCS (Conduct) Rules, 1964. We fail to understand as to why the applicants disciplinary authority had thought it necessary to hold any enquiry again against the applicant when he himself had stated in the charge sheet itself that the charge leveled against the applicant had been established. It is quite well settled principle of law that if the charge-sheet contains an allegation of commission of the offence it should be taken that the disciplinary authority had started with a bias and prejudged the case. Considering the legal position we are constrained to hold that the charge-sheet is bad in law.
Similarly, in Nag Narayan Singh (supra), it was held as under:-
5. Thirdly, Mr. Majumdar, learned counsel appearing on behalf of the petitioner, submitted before this Court that two copies of the document of which were called upon as very much relied upon by the Inquiry Officer have not been given to the petitioner to defend the case. In such aspect he has also relied upon a Supreme Court judgment reported in 1998 (5) SLR 43, (State of U.P. Vs. Shatraugan Lal and another ) where it has held that on the principles of natural justice is that a person against whom an action was proposed to be taken has to be given an opportunity and not a mere pretense. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said an effective opportunity to defend was provided to him.
(xv) The impugned punishment & appellate orders are non-speaking and non-reasoned cryptic orders. They did not discuss the various submissions and grounds made/taken by the Applicant in his representation dated 03.09.2007 to the Disciplinary Authority and the appeal dated 04.06.2008. In this regard the Applicants counsel has relied upon the order of the Calcutta Bench of this Tribunal in Mahit Mohan Sur (supra). The relevant part of the said order is as under:-
7. Now we take up the order passed by the disciplinary authority. It is shown is annexure-K to the application. By this order the Chief Engineer, Headquarters, Eastern Command imposed a penalty of compulsory retirement as well as recovery of Rs.10,000/- on the applicant. The applicant has challenged that order on the ground that it was passed without application of mind and that the Chief Engineer, who was not his appointing authority was not competent to impose that penalty on him. We accept the contentions of the applicant. In the order as shown in Annexure-K all what we find is that the Chief Engineer had simply narrated the conclusions arrived at by the Inquiry Officer and had not made his own assessment of the materials on record in establishing the charges against the applicant. It is quite well settled that such an order quasi-judicial in nature should always be a reasoned and a speaking order. While imposing a major penalty the Chief Engineer had not thought it necessary to apply his mind. That being the position we hold that the said order cannot be sustained.
(xvi) The Disciplinary Authority and the Appellate Authority also did not follow the standing instructions of the government published as GOIs Decision No.1 below Rule 15 of CCS (CCA) Rules, 1965 (MHA, DP&AR OM No.134/1/81-AVD-1 dated 13.07.1981) which reads as under:-
As is well known and settled by courts, disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under other corresponding rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as disciplinary/appellate/reviewing authorities under the relevant rules and the orders issued by such authorities should have the attributes of a judicial order. The Supreme Court, the case of Mahavir Prasad Vs. State of U.P. (AIR 1970 SC 1302), observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of cap-rice, whim or fancy, or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.
2. However, instances have come to the notice of this Department where the final orders passed by the competent disciplinary/appellate authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached. Since such orders may not conform to legal requirements, they may be liable to be held invalid, if challenged in a court of Law. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self-contained speaking and reasoned orders conforming to the aforesaid legal requirements.
3. Instances have also come to notice where, though the decisions in disciplinary/appellate cases were taken by the competent disciplinary/appellate authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the disciplinary/appellate/ reviewing authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is therefore, essential that the decision taken by such authorities are communicated by the competent authority under their own signatures, and the order so issued should comply with the legal requirements as indicated in the preceding paragraphs. It is only in those cases where the President is the prescribed disciplinary/appellate/ reviewing authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorised to authenticate orders in the name of the President.
(xvii) The imposition of the extreme penalty of removal from service is highly disproportionate to the gravity of the allegations/charges leveled against the Applicant. In fact the Applicant has not committed any misconduct.
7. The Respondents in their reply have stated that during the year 1994 while the Applicant was working as Extra Departmental Branch Postmaster in Auchandi EDBO in Delhi North Postal Division, he misappropriated an amount of Rs.37,340/- from 7 SB accounts and 17 R.D. accounts as detailed below:-
7 S.B. accounts = Rs.5840.00 + Rs.1100.00 17 R.D. accounts = Rs.30400 ____________________ Total = Rs.37340.00.
He was, therefore, put-off from duty, vide memo dated 12.02.1994. Ex-gratia compensation amounting to Rs.45,845/-, as admissible to him, was paid to him for the period of put-off duty on 19.08.2004. Subsequently, a charge-sheet under Rule 10 of Gramin Dak Sewak (Conduct & Employment) Rules, 2001 was issued to enquire into alleged charge. On the basis of enquiry report and connected documents and representation submitted by him, competent authority ordered for his removal from service on 29.03.2008. On appeal, Appellate Authority upheld the orders of the appointing authority and rejected his appeal vide memo No.Staff/H-1/25/P/2008 dated 26.03.2010. They have further stated that at the time of issuing the put off duty order, there was no provision to give him the payment of compensation as ex-gratia for the period of putting him off duty. Secondly, the put off orders were rightly issued under Rule 9 of EDAs (Conduct & Service) Rules. The Rule 9 of EDA (Conduct & Service) Rules, 1964 has been converted to Rule 12 of GDS (Conduct & Employment) Rules, 2001 in the year 2001. There is also no provision to review the order of put off duty like the order of suspension under Rule 10 of CCS (CCA) Rules, 1965. However, the matter regarding payment of ex-gratia was reviewed and orders for payment of ex-gratia compensation equal to 25% of his TRCA for the first 90 days w.e.f. 13.01.1997, i.e., the date when the orders came into force and thereafter it was enhanced to 37.5% of his TRCA together with admissible DA.
8. As regards the contention that no proceedings were held for more than 20 months after 16.07.2004 up to 25.04.2006, they have stated that the Inquiry Officer had held proceedings on some dates and copies of the daily order sheets were provided to the Applicant. The enquiry was held up only for few months as the State Witnesses viz. Shri Mukesh, Smt. Sushila and Shri Rajbir were not attending the hearing despite serving them several summons by the IO. Finally, those three crucial witnesses attended the enquiry only when the IO notified through the gazette Notification published by the Competent Authority under No.SO 693(E) dated 06.05.2005 in exercise of the power specified in Section 5 of the relevant act for enforcement of attendance of witness. These three state witnesses were the crucial witnesses since they personally handed over the money to the Applicant which was defrauded by him while working as EDBPM and subsequently he defrauded the amount. They have also stated that fraud committed by the Applicant came to light only on 31.1.1994 and, therefore, he was put off from duty vide order dated 12.02.1994 after conducting preliminary enquiry into the case. They have also denied that the amount of loss had been recovered from his family members under threat of police action on various dates during 1994 whereas the amount of loss was voluntarily deposited by him in the Govt. accounts without any pressure. During preliminary inquiry, Applicant admitted his fault that an amount of Rs.23,500/- was voluntarily deposited by him in Govt. account without pressure and the same was corroborated by Shri A.L. Gupta, ASP (D) in his cross-examination by charged official.
9. Further, according to them, the reasons of non-supplying of the documents were explained by the Disciplinary Authority to the Inquiry Officer vide letter dated 23.02.2004 (Annexure 8 of OA) and again vide letter dated 15.06.2004 (Annexure 9 of OA). They have also submitted that statements of the officials/officers carrying preliminary enquiry/investigation is not relevant. However, preliminary enquiry report or report made by a Police after investigation are of usually confidential in nature and intended to satisfy the competent authority only to arrive at some concrete decision. They have also stated that the inspection report of ASPOs/SSPOs for the period from February, 1993 to December, 1993 were weeded out. They have also denied the submission of the Applicant that he gave his statement under any pressure and threat of police. Rather, his contention is false and fabricated. During preliminary enquiry, Applicant gave his statement without any pressure on 03.02.2004 and he admitted that there was a difference in balances in some R.D. accounts and amount of Rs.23,500/- was voluntarily deposited by him in Govt. account. These facts were also confirmed by Shri A.L. Gupta, SW-1 during enquiry proceedings while cross examining by the charged official.
10. We have heard the learned counsel for the Applicant, Shri Pradeep Kumar and the learned counsel for the Respondents, Shri B.K. Berera. We have also perused the documents available on record. It is a settled law that by virtue of Article 311 (2) of the Constitution of India, every departmental enquiry shall be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that the employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed upon him. No departmental enquiry can be conducted in a casual manner or with the close mind. The Enquiry Officer has to be wholly unbiased. In our considered view, the Respondents were quite unfair with the Applicant from the stage of putting him off duty with effect from 17.02.1994 till his appeal is rejected by the Appellate Authority vide its order dated 26.03.2010. It is seen that the Respondents, vide Annexure A-3 letter dated 17.02.1994 put off the Applicant from duty citing non-existent reasons that disciplinary/criminal proceedings were pending against him. In fact the said reason for putting the Applicant off duty was absolutely wrong, misleading and without any basis. Neither any departmental nor any criminal case was pending against him on 17.2.1994. In fact, it was only on 30.07.2003, i.e. after nine years the Respondents have issued the charge sheet under Rule 10 of the GDS (Conduct & Employment) Rules, 2001. Under the Rule 9 of the then existing EDA (Conduct & Service) Rules, 1964, an Extra Departmental Agent could be put off duty only for the reasons contained in the following provisions:-
9. Put-off duty (1) Pending an enquiry into any complaint or allegation of misconduct against an employee, the appointing authority or an authority to which the appointing authority is subordinate may put him off duty:
Provided that in cases involving fraud or embezzlement, an employee holding any of the posts specified in the Schedule to these rules may be put off duty by the Inspector of Post Offices, under immediate intimation to the appointing authority.
(2) An order made by the Inspector of Post Offices under sub-rule (1) shall cease to be effective on the expiry of fifteen days from the date thereof unless earlier confirmed or cancelled by the appointing authority or an authority to which the appointing authority is subordinate.
(3) An employee shall not be entitled to any allowance for the period for which he is kept off duty under this rule.
As observed above the Respondents have not made out any case of fraud or embezzlement against the Applicant for his put off from duty. However, the Applicant was pressurized to deposit Rs.36,000/- with the Respondents without assigning any reasons. Again, amounts worth Rs.340 and Rs.500 each were also recovered from him on 11.06.1996, 03.04.1997 and 21.03.1997 without any explanation. Thereafter, it was only on 30.07.2003, the Respondents have issued order proposing to hold an enquiry against him under Rule 10 of GDS (Conduct and Employment) Rules, 2001. Therefore, the real reason for putting the Applicant off duty was the alleged embezzlement of Rs.36,000/- for which no charge has been framed against him and tried to be proved in the departmental enquiry initiated against him later. The Respondents also, for reasons well known to him, did not file any criminal case against him. Even this fact was concealed in the enquiry report and the order of the disciplinary authority. But the Disciplinary Authority, after the enquiry was over on the Articles of Charges, issued to the Applicant, clandestinely brought to the notice of the Appellate Authority a separate note that the Applicant had defrauded Rs.37500/-. This is evident from what the Appellate Authority has stated in its order which is reproduced again here under:-
The charges against the appellant are misappropriation of public money. It has been brought to notice by SSPOs Delhi North Dn. in his note to the case that an amount of Rs.37,340/- has been defrauded which has been recovered from the charged official.
In our considered view, the procedure adopted by the Disciplinary Authority in punishing the Applicant was absolutely unfair and against the principles of natural justice. While the Applicant was not informed about the actual reason for the departmental proceedings initiated against him, the Disciplinary Authority has punished him for the said un-communicated reason and influenced the Appellate Authority to come to its decision to agree with its order of punishment. In other words, the Disciplinary Authority is guilty of punishing the Applicant for which no charge was leveled against him and the Appellate Authority relying upon extraneous matters rejected the appeal of the Applicant. In fact the Disciplinary Authority has prejudged the whole issue and recovered Rs.36,000/- from the Applicant under pressure and duress but under the cover that the Applicant had voluntarily agreed to deposit the said amount. The Disciplinary Authority has also sanctioned the payment for the said amounts to the concerned parties without going into the veracity of the matter. Thus, it is seen that the Disciplinary Authority started the enquiry itself with bias against the Applicant and prejudging the case against him which is bad in law. Vide Memo dated 13.06.1994 (supra), the Disciplinary Authority much before the enquiry has commenced accorded sanction for restoration of defrauded amount of Rs.1000/- (One thousand only) with interest accrued thereon in Auchandi EDBO Savings Bank A/C No.895051 in the name of Shri Mukesh Kumar S/O Shri Sarup Singh resident of Auchandi Village Delhi-110039. Therefore, the enquiry held against the Applicant was only an empty formality.
11. Now, let us consider the other aspects in this case which prejudiced the Applicant. There is not only abnormal but unexplained delay in initiating the disciplinary proceedings against the Applicant. The alleged incident took place in the year 1993, preliminary enquiry in the matter was held in the year 1994 but the charge-sheet was issued to the Applicant after about 10 years keeping the Applicant on put off duty. As held by the Apex Court in Bani Singhs case (supra) since there is no satisfactory explanation for the inordinate delay in issuing the charge memo, it was unfair on the part of the Disciplinary Authority to hold the enquiry and to punish the Applicant. The Apex Court in B.C. Chaturvedi Vs. U.O.I. & Another 1995 (6) SCC 749 held that delay in initiating disciplinary proceedings is an unfair procedure depriving the livelihood of a public servant offending Article 14 (2) of the Constitution and the said principle is very much applicable, considering the facts in this case. We also see that the enquiry held against the Applicant was vitiated as the same was held in violation of the principles of natural justice. While the Enquiry Officer himself was convinced that 15 additional documents sought to be supplied to the Applicant was relevant, the Disciplinary Authority did not supply the same to him in an arbitrary manner. As held by the Apex Court in Kashinath Dikshitas case (supra), such denial of relevant document amounts to reasonable opportunity to the Applicant to defend himself against the charge on which enquiry was held. Thus the Enquiry Officer as well as the Disciplinary Authority denied the opportunity to establish his innocence. Further, the Enquiry Officer held the enquiry in lackadaisical manner. Even though the enquiry was held only for a few occasions, there were intervals of more than 20 months in between the days of enquiry. It was against the clear instructions of the Respondents themselves that an EDA should not be allowed to remain on put off duty for a period exceeding 45 days to 120 days. These instructions are important as the then EDA (Conduct and Service) Rules, 1964 did not provide for any allowance during the put off duty. But the hard fact in this case is that the Applicant was forced to remain under put off duty for 14 years from 17.02.1994 to 29.03.2008. On this ground alone the entire proceedings against the Applicant including the act of the Respondents putting him off duty is liable to be quashed and set aside. Another cardinal flaw in the enquiry proceedings is that Enquiry Officer marked many of the documents as exhibits and all of them were produced by one sole witness and confirmed their contents without any authority. This is against the principle laid down by the Apex Court in the case of Bareilly Electric Supply Co. (supra) and M/s Sudhir Engineering Co. (supra) that admission of a document in evidence does not amount to proof unless the same is explained by the writer of the document who is produced in the enquiry and face cross-examination.
12. In view of the above position, this OA is allowed. Consequently, as prayed for by the Applicant, we direct the Respondents to regularize the period of put off duty as spent on duty for all purposes excluding payment of arrears of Time Related Continuity Allowance. Further, we quash and set aside the impugned Annexure A-1 order dated 29.03.2008 removing the Applicant from service and the Annexure A-2 order of the Appellate Authority dated 26.03.2010 rejecting his appeal with all consequential benefits. The Respondents shall, therefore, reinstate the Applicant in service, forthwith from the date he was put off duty with continuity in service. The aforesaid directions shall be complied with within a period of 2 months from the date of receipt of a copy of this order. No costs.
(MRS.MANJULIKA GAUTAM) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh