Central Administrative Tribunal - Bangalore
Ramalinge Gowda vs Deptt Of Posts on 22 July, 2024
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O.A.No.170/96/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00096/2023
DATED THIS THE 22nd DAY OF JULY, 2024
Order Reserved on: 10.06.2024
Date of Order: 22.07.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Ramalinge Gowda
Age: 51 years
S/o.Saneegowda
Ex GDS BPM/D.P
Mudlamailahalli B.O
A/W B.G Nagar SO-571 448
Mandya Postal Dn
Mandya - 571 401
Residing at:
Mudlameilhalli - 571 448
Kasaba Hobli
Nagamangala Taluk ...Applicant
(By Advocate Shri.P.Kamalesan)
Vs.
1. Union of India
Represented by Secretary
Department of post
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O.A.No.170/96/2023/CAT/BANGALORE
Dak Bhavan
New Delhi - 110 001
2. Chief Post Master General
Karnataka Circle
Bangalore- 560 001
3. Post Master General
S.K.Region
Bangalore -560 001
4. Director of Postal Services
S.K.Region
Bangalore - 560 001
5. Superintendent of Post Offices
Mandya Postal Division
Mandya - 571 401 ...Respondents
(By Advocate Shri.K.Gajendra Vasu)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application is filed under Section 19 of the Administrative Tribunal Act, 1985, claiming the following reliefs:
"1. Quash the O/O Superintendent of Post Offices, Mandya Dn, Mandya - 571 401 Memo No.F4-6/17-18 dated 2.8.2021 vide Annexure A6 order by respondent No.5.
2. Quash the O/O Post Master General, South Karnataka Region, Bangalore - 560 001 letter No.Sk/STA/9-3/22/2021/1 dated 13/1/2022 vide Annexure A-8 order by respondent No.3.3
O.A.No.170/96/2023/CAT/BANGALORE
3. Set aside the O/O Post Master General, South Karnataka Region, Bangalore - 560 001 Memo No.SK/STA/9-5/07/2022/11 dated 26/7/2022, Annexure A10 order by respondent No.3.
4. Consequently direct the respondents to Review the penalty of removal from service since the penalty is disproportionate to changes in the charge memo.
5. Grant any other relief as deemed fit into the facts and circumstances of the case, in the interest of justice and equity. "
2. On the grounds as mentioned in paragraphs 5(a) to 5(h), the applicant assails the impugned orders and requests to set them aside and grant him other reliefs claimed. The basic facts of the applicant as mentioned in his Original Application is that while he was working as GDS BPM at Mudlamellahalli B.O a/w BG Nagar SO at Mandya Postal Division, the Inspector of Posts had ordered 'Off duty' for him from 17.11.2017, which was ratified by the Superintendent of Post Offices, Mandya on 30.11.2017 and the Superintendent of Mandya Division initiated disciplinary proceedings on 28.12.2018 and the I.O and P.O were appointed and after inquiry the I.O submitted report holding that all the Articles of charges are proved against the applicant.
3. The applicant submitted an elaborate reply. The 4 O.A.No.170/96/2023/CAT/BANGALORE Disciplinary Authority issued proceedings dated 2.8.2021 imposing the penalty of removal from service. The applicant submitted an appeal which was rejected by the Appellate Authority. The applicant preferred Revision Petition and the Revisionary Authority modified the penalty of removal from engagement as 'compulsory discharge from engagement with monetary benefits i.e., SDBS, Gratuity etc. The applicant has come against the said impugned orders of the authorities before this Tribunal seeking the aforementioned reliefs.
4. On notice, the respondents have filed their reply statement. No rejoinder has been filed by the applicant.
5. The O.A came up for final hearing on 10.6.2024. The learned counsel Shri.P.Kamalesan for the applicant and Shri.Gajendra Vasu for the respondents were present and heard.
6. We have carefully gone through the entire record and considered the rival contentions.
7. Careful examination of the contentions mentioned in 5 O.A.No.170/96/2023/CAT/BANGALORE paragraph 5 of the Original Application shows that none of the contentions raised herein are procedural in nature which convinces us that applicant also do not find any procedural infirmity in the process of Disciplinary inquiry or arriving at the I.O's report or the order of the Disciplinary Authority or the order of the Appellate Authority or Revisional Authority, as none of these points raised speaks of any procedural lacunae or about any violation of the principles of natural justice. All the contentions raised in some way or the other relate to evidence adduced before the I.O and how those evidences have been interpreted by the I.O, the Disciplinary Authority, Appellate Authority and the Revisionary Authority and how they have drawn inferences to come to a conclusion and consequential order of penalty.
8. As per the Hon'ble Apex Court's various pronouncements in a disciplinary case, power of Tribunal and Courts of judicial review of such orders are quite limited and within the confines of the observations and directions and ruling of the Hon'ble Apex Court. Some of the relevant cases laws are: 6
O.A.No.170/96/2023/CAT/BANGALORE
a) In the case of Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 the Hon'ble Supreme Court has held as under:-
"At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. v. S. Sree Rama Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723 : (1964) 2 LLJ 150] , State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975 SCC (L&S) 349 :
(1976) 1 SCR 521] , Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC (L&S) 455 : (1981) 3 SCR 22] and Nelson Motis v. Union of India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382 : AIR 1992 SC 1981]".
b) In the case of Lalit Popli v. Canara Bank, (2003) 3 SCC 583 the Hon'ble Supreme Court has held as under:-
7
O.A.No.170/96/2023/CAT/BANGALORE "17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
c) In OAs challenging the orders in disciplinary proceedings, the scope of interference of the Tribunals is very limited. In a catena of judgments by the Hon'ble Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority which are affirmed or diluted by the Appellate Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting the enquiry. The Hon'ble Apex Court in the case of S.R.Tewari vs. Union of India 2013(7) Scale Page 417 has held that "The role of the court in the matter of departmental proceedings is very limited 8 O.A.No.170/96/2023/CAT/BANGALORE and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice".
d) In a large number of cases including the case of Bank of India v. Apurba Kumar Saha ; (1994) 2 SCC 615, State Bank of India and Others v. Ramesh Dinkar Punde (2006) 7 SCC 212, State of Andhra Pradesh v. Sree Rama Rao; AIR 1963 SC 1723,Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup; AIR 1957 SC 82, State Bank of Bikaner and Jaipur v. Prabhu Dayal Graver, 1995(6) SCC (L&S) 279=1996(1) SLJ 145 (SC), Deokinandan Sharma v. UOI and Ors., 2000 SCC (L&S) 1079, State Bank of India vs. Ram Lal Bhaskar & Another (2011 STPL (web)
904) and Union of India & Ors. Vs. Raghubir Singh and 9 O.A.No.170/96/2023/CAT/BANGALORE another, CWP No. 1154/2014 decided on 06.05.2014 by Punjab and Haryana High Court, the underline theme is that the High Court/tribunal does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re- appreciate the evidence and come to a different and independent finding on the evidence. They have to see whether there is violation of natural justice and fair play or any procedural irregularity committed by the inquiry officer, Disciplinary authority and due procedure was adopted strictly in accordance with the service rule.
e) Recently, the Hon'ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a 10 O.A.No.170/96/2023/CAT/BANGALORE second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;11
O.A.No.170/96/2023/CAT/BANGALORE
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary 12 O.A.No.170/96/2023/CAT/BANGALORE is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
f) The Hon'ble Apex Court in the case of B.C.Chaturvedi v.
Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence. In this regard, the Hon'ble Apex Court has been pleased to observe as under:-
"The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing 13 O.A.No.170/96/2023/CAT/BANGALORE the appeal of the Union of India and dismissing that of the delinquent.
Per Ramaswamy and Jeevan Reddy, JJ "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules 14 O.A.No.170/96/2023/CAT/BANGALORE prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
g) In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3) SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the 15 O.A.No.170/96/2023/CAT/BANGALORE disciplinary authority or the appellate authority as the case may be."
h) Not only this the Hon'ble Apex Court has even pleased to observe in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan Vs. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Hon'ble Apex Court has been pleased to observe as under:-
"10. This Court in Om Kumar and Others vs. Union of India, (2001) 2 SCC 386 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."16
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i) In the case of Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 the Hon'ble Supreme Court has held as under:-
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More 17 O.A.No.170/96/2023/CAT/BANGALORE importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."
j) In the case of State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Hon'ble Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice.
k) It is settled principle that if any material is sought to be used in an enquiry, the copies of material must be supplied to the party against whom such an enquiry is held. The Disciplinary Authority as well as Appellate Authority did not consider this aspect of the matter and expressed their 18 O.A.No.170/96/2023/CAT/BANGALORE concurrence to the finding of the Inquiry Officer, without applying their independent and free mind. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Enquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. As regards the opportunity before passing of the final order, the Hon'ble Apex Court has discussed in detail in the case of B.N. Kansal Vs. State of U.P. reported in 1988 Suppe. SCC 761.
l) In Commissioner of Income-tax, Bombay & Ors. v.
Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182, this Court held that various parameters of the court's power of judicial review of administrative or executive action on which the court can interfere had been well settled and it would be redundant to recapitulate the whole catena of decisions. The Court further held: "It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a 19 O.A.No.170/96/2023/CAT/BANGALORE wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same."
m) The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature.
n) Thus, the court has to be satisfied that the order had been passed by the authority only on the grounds of illegality, irrationality and procedural impropriety before it interferes. The court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. 20
O.A.No.170/96/2023/CAT/BANGALORE Union of India, AIR 1996 SC 11; People's Union for Civil Liberties & Anr. v. Union of India & Ors., AIR 2004 SC 456; and State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, AIR 2005 SC 2080).
o) In Air India Ltd. v. Cochin International Airport Ltd. & Ors., AIR 2000 SC 801, this Court explaining the scope of judicial review held that the court must act with great caution and should exercise such power only in furtherance to public interest and not merely on the making out of a legal point. The court must always keep the larger public interest in mind in order to decide whether its intervention is called for or not. 16. There may be a case where the holders of public offices have forgotten that the offices entrusted to them are a sacred trust and such offices are meant for use and not abuse. Where such trustees turn to dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav & Anr. v. State of Haryana & Ors., AIR 1994 SC 2166).
p) The court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Thus, the court is devoid of the 21 O.A.No.170/96/2023/CAT/BANGALORE power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay through its Registrar v. Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., AIR 1997 SC 2286; Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214; and Union of India & Ors. v. Manab Kumar Guha, (2011) 11 SCC 535).
q) The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386, this Court observed as under: "But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the 22 O.A.No.170/96/2023/CAT/BANGALORE offence as to shock the conscience and amount in itself to conclusive evidence of bias.
r) The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (Emphasis added) (See also:
Union of India & Anr. v. G. Ganayutham (dead by Lrs.), AIR 1997 SC 3387; State of Uttar Pradesh & Ors. v. J.P. Saraswat, (2011) 4 SCC 545; Chandra Kumar Chopra v.
Union of India & Ors., (2012) 6 SCC 369; and Registrar General, Patna High Court v. Pandey Gajendra Prasad & Ors., AIR 2012 SC 2319).
s) In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC 484, this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own 23 O.A.No.170/96/2023/CAT/BANGALORE conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof.
t) In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the 24 O.A.No.170/96/2023/CAT/BANGALORE Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
u) In State of Meghalaya & Ors. v. Mecken Singh N. Marak, AIR 2008 SC 2862, this Court observed that a Court or a Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges.
In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681).
v) The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the 25 O.A.No.170/96/2023/CAT/BANGALORE disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
w) In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053, this Court explained the observations made in Ranjit Thakur (supra) observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur (supra) are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. 26
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9. Critical examination of all the above Rulings of the Hon'ble Apex Court clearly shows that the Tribunals and the Hon'ble High Courts do not sit as Appellate Authority and re-appreciate the evidences before the I.O, Disciplinary Authority and the Appellate Authority of the Department and hence the evidence cannot be completely re-appreciated afresh.
10. But the 8 grounds which have been agitated in the Original Application by the applicant, all relate to the appreciation of evidences in some form or the other. Hence, we are re-examining them, one by one, for the purpose of finding if they are relevant.
11. In 5(a), the applicant submits that the charge memo contains 4 Articles of charges. The Article 1 relates to accepting Rs.7000/- on 4.2.2016 and Rs.3000/- on 17.3.2017 and failed to account in B.O accounts. The Account holder is PW1-Basavaraju, who opened SSA A/c No.8235331698. The PW 1 Sri.Basavaraju while deposing on 25.2.2020, categorically stated that he composited on 11.1.2016, and thereafter he has not done any transactions. Further deposed that the statement was given as per the dictation of postal officials. The PW1 27 O.A.No.170/96/2023/CAT/BANGALORE Sri.Basavaraju never complained nor stated in inquiry, that he has deposited Rs.7000/- on 4.2.2016 nor 3000/- on 17.3.2017 and he has deposed that only Rs.5100 was his balance as on 11.1.2016 and further deposed that two entries in Pass Book dated 4.2.2016 and 17.3.2017, were made by someone from Mangalore. It is pertinent from the records of the inquiry that Article I of the charge was related to the applicant when he was working as the Branch Post Master Mudlamellahatti BO account with G.G.Nagara S.O during the period from 2.3.1991 to 17.11.2017 and during the said period he was the Head of Office and this Article I is about non-accounting of following deposit accepted by the Charged GDS towards SSA Account duly entering it in the corresponding SSA Pass Book on the date mentioned below:
Sl. SSA account Name and address of the Date of Amount No. number depositor non-credit of non-
credit 1 8235331698 Kum.Rakshitha MB, 04.02.2016 7000/-
D/o.Basavaraju, 17.03.2017 3000/-
Mudlamellahalli BO
Sri.Basavaraju MB, S/o.Boregowda, Mudlamellahalli Village who was examined as Pw.1 in the inquiry sitting held on 25.2.2020, has identified:
i) ExP.3 as SSA pass book of Kum.Rakshitha MB, daughter of 28 O.A.No.170/96/2023/CAT/BANGALORE Pw.1, having balance of Rs.5100/- as on 11.1.2016. Further Pw1 deposed that the deposit of Rs.7000 dated 04.02.2016 and deposit of Rs.3000 dated 17.3.2017 might have been made by his wife.
ii) ExP5 as the statement given by Pw.1 with respect to discrepancy noticed in ExP.3.
Further, another witness Sri.Shivaramu LS, then SPM, BG Nagara SO presently PA, Bellur SO was examined as Pw.4 in the inquiry sitting held on 7.8.2020 has also identified:
i) Exp.4 as the finance ledger card in respect of account number pertaining to ExP.3
ii) ExP.11 as the BO daily account of Mudlamellahalli BO A/W BG Nagar SO dated 4.2.2016 and Pw.4 identified the signature found on ExP.11 in place of SPM as of Pw.4 And
iii) ExP.12 as the BO daily account of Mudlamellahalli BO A/W BG Nagara SO dated 17.3.2017.
Further, Sri.N.Nanjundaraju K.V, then IP Srirangapatna Sub 29 O.A.No.170/96/2023/CAT/BANGALORE Division, now on deputation as Area Sales Manager IPPB Mandya Branch who was examined as Pw.5 in the inquiry sitting held on 7.8.2020 has identified:
i) ExP.2 as the report sent by him to SPOs Mandya Division on 22.11.2017 duly signed by Pw.5 in connection with non-credits noticed in ExP.3 and ExP.7
ii) ExP.23 as the SSA journal of Mudlamellahalli BO A/W BG Nagara SO for the period from 24.3.2015 to 26.10.2017
iii) ExP.25 as the Branch office account book of Mudlamellahalli BO A/W BG Nagara SO for the period from 01.12.2014 to 31.12.2016
iv) ExP.26 as the Branch Office account book of Mudlamellahalli BO A/W BG Nagara SO for the period from 01.01.2017 to 17.11.2017.
Further, another Sri.Dinesha P, then ASP® O/o SSPOs Mangaluru division Mangaloru now Supdt. Of Post Offices, Guntur Division, Guntur who was examined as Pw.6 in the inquiry sitting held on 20.11.2020 has identified:
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i) ExP.1 as the report dated 17.11.2017 sent by Pw.6 to SPOs Mandya division in connection with misappropriation noticed in ExP.3
ii) ExP.3 as SSA passbook of Kum.Rakshitha MB having balance of Rs.15100 as on 17.3.2017
iii) ExP.5 as the statement given by Pw.1 with respect to ExP.3 in which Pw.1 stated that he had deposited Rs.7000 on 4.2.2016 and Rs.3000 on 17.3.2017 in ExP.3
iv) ExP.6 as the statement given by CGDS given on 17.11.2before Pw.6
v) ExP.26 as the Branch office account book of Mudlamellahalli BO A/W BG Nagara SO for the period from Jan- 2017 to Nov-2017.
Considering all the above evidences into account and having nothing adverse was elicited during cross examination of witnesses and the charged GDS has not cited any witness in his behalf etc. inferences were drawn. During the questions by IO on 12.1.2021, the Charged GDS has not deposed anything which could be believable to the extent that the charges levelled against CGDS could be disproved. 31
O.A.No.170/96/2023/CAT/BANGALORE Based on the facts, documents and deposition of witnesses, the Articles of charges levelled against the accused officer was considered as proved beyond doubt by the I.O and same has been accepted by the Disciplinary as well as the Appellate and Revisionary Authorities. From the records, it is evident that voluminous evidences have been produced to prove the charge. And it is incorrect to say that if the evidence of the preliminary depositor has not been there, then relevant document and its entries cannot be proved and the contradiction between the pass book and other records maintained by the office cannot be proved and substantiated. Although, from the statement of the father of the account holder, it appears that he has apparently turned hostile and tried to give evasive answers. But in spite of that he says that his wife may have given Rs.7000/- and Rs.3000/- on 17.3.2017 which in any way otherwise also is proved from the entries which are there in the pass book of the account holder and the said pass book is identified by witnesses. The pass book is a public document maintained in a certain way and its entries can be proved by other officials also who know about the said pass book. It is not the case of the applicant that the pass book itself was completely a forged one and it did not belong to the SSA account holder on which Article I of the charge is made out. And it is not the case of the applicant that 32 O.A.No.170/96/2023/CAT/BANGALORE the entries therein were fictitious and the said entry did not match with what was there in the documents maintained in the office, which proved that the amount which was taken from the depositor was not finally deposited and accounted in the office. And those documents proved the case conclusively. Although in a case of disciplinary inquiry, preponderance of probabilities of evidence is sufficient and the case need not be proved beyond doubt. But in this case, a public document is proved and its entries proved beyond doubt which speaks of the modus operandi of the applicant and conclusively substantiate the case of the respondents. And we do not find any infirmity in the inquiry and conclusions of the Inquiry Officer and its acceptance by the Disciplinary Authority, the Appellate Authority and the Revisionary Authority. Hence, we do not find any merit in the argument of the applicant in para 5(a).
12. In paragraph 5(b), the applicant says that the Disciplinary Authority failed to cite, Smt.Manjula, account holder of SSA- 8235336714, as witness, nor the I.O summoned her to examine, there is gap of evidence, since PW1 Sri.Basavaraj denied that he never deposited that, but may be his wife Smt.Manjula might have deposited the same. Therefore, it is imperative on part of the prosecution to 33 O.A.No.170/96/2023/CAT/BANGALORE examine the Account holder Smt.Manjula to verify whether she deposited amounts on 4.2.2016 and 17.3.2017. Therefore, there is no evidence to prove that the amount of Rs7000/- and Rs.3000/- were deposited on 4.2.2016 and 17.3.2017. In such a scenario the I.O held that Article I was proved, which is contrary to evidence adduced during the enquiry. This conclusion and proposition by the applicant is erroneous as the public document of pass book and its comparison with other entries in the office ledgers maintained in the office need not be proved only by the pass book holder or the depositor, as it can be proved by the other officials who has knowledge about such case and as is discussed in paragraph 5(a), in this case also several witnesses have given their statements and various documents have been relied and based on the statement of Sri.Basavaraju, Sri.Shivaramu LS, Sri.Nanjundaraju KV, Sri.Dinesh P etc and the creditability of their statements and various Exhibits which have been identified as Exhibits P.7, P8, P9, P10, P11, P12, P22, P23, P25, P26 etc, charges have been considered as proved after its examination and cross examination of the witnesses etc. And the charged GDS has not cited any witness on his behalf and during the questions by IO on 12.1.2021, the charged GDS has not deposed anything which could be believable to the extent that the charges levelled against CGDS could 34 O.A.No.170/96/2023/CAT/BANGALORE be disproved and based on the facts, documents and deposition of witnesses the charges of the Article II against the officer was considered as proved by the IO and other officers which we also do not find to be in any way irregular or unacceptable. Hence, the said charge is also proved and the contentions of the applicant is incorrect.
13. Further in 5©, the applicant says that Article II of charge memo was also having identical facts. The PW1 denied that he has not made deposits of Rs.7000/-, 3000/- on 4.2.2016, 17.3.2017 last transactions by him was on 11.1.2016. The account holder of SSA A/c 8235336714, Smt.Manjula not examined during the inquiry. In the absence of examination of prime witness, holding charges in Article II as proved, is without any substantial evidence. The contention of the applicant here is against the evidences adduced during the inquiry as there are so many witnesses who have been cited as prosecution witness. And the contention that for proving the official document, the recipient of pass book and the person who deposited the amount are only to be examined and his statement is the only evidence which can prove the entries of official document which is maintained in a certain way is erroneous. Entries in the pass book have presumptive value. There is no contention that the whole pass book as a document itself 35 O.A.No.170/96/2023/CAT/BANGALORE was forged and fictitious and not maintained in proper way as mentioned in the charges and the entries were bogus. Hence such pass book entries can be proved by other witnesses from the office who know about them. Based on the statement of the witnesses and the documents produced, charge is proved beyond doubt. Hence this contention of the applicant also is not convincing.
14. Further paragraph 5© (2nd) talks about Article III which relates to non-accounting of Rs.100/- on 25.10.2016, in RD A/c No.823527881, the AC/ holder is LTM, and she was not aware of the contents of statement given by her. The applicant contends that such an evidence cannot be relied upon. The I.O held as charges proved, without any evidence for arriving such conclusion.
15. Similarly in 5(d) applicant says that Article IV relates to non- credit of 200/- in R/D Account No.8235304487 in name of Thimmegowda on 27.9.2016. Though Thimmegouda was cited as witness PW4, the prosecution failed to produce him in the enquiry, and the I.O arrived conclusion based on his statement recorded in the preliminary enquiry which is contrary to law on the subject. But from the very perusal of record, one can find that Article III and IV are also 36 O.A.No.170/96/2023/CAT/BANGALORE on the same type of modus operandi and the oral and documentary evidence produced before the Inquiry and appreciated by the IO and other officers were sufficient to prove the charges and there is no need for any further evidence to prove the same or to substantiate it and this establishes that all the 4 charges may be part of bigger gamut of similar irregularities possible and so they were quite serious in nature. And we have no doubt that available evidence proves it conclusively much better than mere preponderance of probabilities.
16. In paragraph 5(e), the applicant argues that therefore I.O report as charges Article I to IV 'proved' without any substantial evidence adduced during the inquiry is unsustainable under law. This is erroneous as the evidence in disciplinary case need to be only preponderance of probabilities and not to be proved beyond reasonable doubt as in the case of any criminal case. Hence we do not find any merit in this ground also.
17. Further, in paragraph 5(f), the applicant further says that the disciplinary authority failed to analyse independently, regarding the evidence recorded in inquiry, mechanically, issued proceedings removing the applicant from engagement is contrary to GDS conduct 37 O.A.No.170/96/2023/CAT/BANGALORE and engagement rules. Therefore, the disciplinary authority order of removal from engagement is bad in law. This paragraph does not give factually any aspect of discrepancies. We have gone through the proceedings followed by the disciplinary authority which are fairly detailed and has analysed various aspects of the case and evidence and based on the appreciation of the whole record, the disciplinary authority has passed the order. We do not find any infirmity in the same. So this contention of the applicant is also not convincing.
18. Further in paragraph 5(g), the applicant says that the Appellate Authority and the Revisionary Authority also failed to analyse the charge memo, defense statement of applicant, I.O report, etc but simplified the decision to reject the appeal, in a routine way, which is contrary to principles of natural justice. This averment is also quite vague and does not contain any details which can be scrutinised. We have gone through the Appellate and Revisional authorities orders which are fairly detailed and they have independently applied their mind and come to their own respective conclusions. The revisionary authority, considering the entire history and details of the case, has changed the quantum of penalty from 'compulsory discharge from engagement with monetary benefits (i.e., SDBS etc.) with gratuity 38 O.A.No.170/96/2023/CAT/BANGALORE proportionate to engagement period rendered by GDS, as per conditions laid down in Department of Posts O.M No.17-31/2016- GDS dated 17th June 2018. Hence it is clear from the very same order that they have independently applied their mind and their orders are speaking for themselves. Hence, we do not find any merit in the contentions of the applicant in the abovementioned paragraphs.
19. Further in paragraph 5(h), the applicant submits that it was not a grave misconduct which warrants removal from engagement. The punishment imposed is disproportionate to the charges alleged in the charge memo, that too in the absence of substantial evidence to prove the allegation against the applicant. Hence judicial review is necessitated. We find that in his act in 4 instances which are quoted above, there is a recurrent and a definite modus operandi, wherein the depositors who have deposited money, which are shown in the pass books, but the applicant has failed to account the same in the documents maintained in the office. So clear defalcation of government money was there. And it cannot be said that because the applicant has later given back the money so his crime is mitigated. Post facto giving back the amount after a few instances are caught, does not mitigate the gravity of misconduct, which certainly 39 O.A.No.170/96/2023/CAT/BANGALORE warranted the strongest possible punishment.
20. The respondents have relied on the judgment of the Hon'ble Supreme Court in the case of Union of India and Others v. M.Duraisamy in Civil Appeal No.2665 of 2022, wherein the Apex Court has, inter-alia with other things, held that post-facto depositing of the defrauded amount cannot mitigate the gravity of misconduct and not in any way affect the quantum of punishment. The relevant paragraph of the same is as follows:
"10. None of the grounds/reasoning on which the order of punishment of removal has been interfered with by the Tribunal and affirmed by the High Court are germane and can be sustained. Once it was found that the delinquent officer who was serving in the post office had defrauded to the extent of Rs.16,59,065/- and that too, by way of fraudulent withdrawal in as many as 85 RD accounts and by way of non-credit of deposits in 71 RD accounts, no sympathy on such an employee was warranted. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the 40 O.A.No.170/96/2023/CAT/BANGALORE department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. Therefore, in the facts and circumstances of the case, both, the Tribunal as well as the High Court have exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority and to substitute the same to that of compulsory retirement. "
21. We find that the revisionary authority has been quite lenient and he has moderated the earlier order of the disciplinary authority which had removed the applicant from engagement with immediate effect and the period of put off duty is ordered to be treated as such. The revisionary authority has substituted compulsory retirement from engagement with monetary benefits (i.e., SDBS etc) with gratuity proportionate to engagement period rendered by GDS, as per conditions laid down in Department of Posts O.M No.17-31/2016- GDS dated 17th June 2018. Clearly the revisionary authority has applied his independent mind and is lenient in giving punishment. So from any angle, the argument of the applicant that his punishment is disproportionate to the gravity of misconduct is not convincing. Hence, none of the contentions of the applicant has any force. 41
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22. Now considering the case as per the Hon'ble Apex Court judgment in the case of Union of India v. P.Gunasekaran [2015 (2) SCC 610] in paragraphs 12,13, & 20, the present enquiry is held by a competent authority, is according to the procedure prescribed in that behalf, and there is no violation of the principles of natural justice in conducting the proceedings. We do not find that the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case. We also do not find that the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; and that the conclusions, on the very face of it, is not so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. We do not find that the disciplinary authority had erroneously failed to admit the admissible and material evidence, and the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding, and that the finding of fact is based on no evidence. We clearly find that in this case the finding are based on clear evidences on record, oral as well as documentary. Hence, the inquiry and consequent orders were in order.
23. Further, although as per the Apex Court judgment, the Tribunal 42 O.A.No.170/96/2023/CAT/BANGALORE or court is devoid of the power to re-appreciate the evidences, we have re-examined it for the clarity as all the contentions taken by the applicant was related to only evidences. But none of his arguments are acceptable. So we have no doubt in our mind that the applicant has not been able to substantiate his case, and hence we are unable to interfere with the conclusions of the Inquiry Officer and other Officers. Even the proportionality of punishment is satisfactory and there is no ground made out for this court to interfere with the impugned order. Hence, we pass the following order:-
The Original Application is dismissed. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/SV/