Central Administrative Tribunal - Allahabad
Ram Sugan Verma vs M/O Communications on 4 January, 2019
RESERVED.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This is the 4th day of January 2019.
ORIGINAL APPLICATION No. 1002 of 2012
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
Ram Sugan Verma son of late Shri Balram R/o Village and P.O. Barahata,
District Basti.
...............Applicant.
By Advocate: Shri B.N Singh
VERSUS
1. Union of India through its Secretary, Ministry of Communication and
Information Technology Department of Post Dak Bhawan, New Delhi.
2. The Supdt. Of Post Offices, Basti Division, Basti.
3. Dr. S.R Singh, Supdt., of Post Offices, Basti Division, Basti.
..........Respondents
By Advocate : Shri S. Srivastava
ORDER
BY HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
1. The present Original Application has been filed by the applicant seeking the following reliefs:-
"(i) To issue a suitable order or direction to call for record and set aside impugned orders dated 25.10.2011 and 7.6.2012 (Annexure A-1).
(ii) To issue a suitable order or direction to the respondents to reinstate in service to the applicant with all consequential benefits.
(iii) To pass such other and further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iv) To award cost of the petition in favour of the applicant".
2. Case of applicant Ram Sugan Verma is that while working as G.D.S. Branch Post Master Barhata was served a charge-sheet dated 30.3.2010 by respondent No.3 (Annexure A-3). The Inquiry Officer in his enquiry report dated 3.10.2011 (Annexure A-5) held the charges to be proved 2 without considering the entire facts of the case and taking into account grounds which were not in the charge-sheet. He filed his representation against the enquiry report which was not accepted by the Disciplinary Authority (D.A.) and whichimposed the penalty of removal from service vide order dated 25.10.2011 (Annexure A-1). His appeal against the order of the D.A. was rejected by the appellate authority (A.A) vide order dated 7.6.2012 (Annexure A-2). Applicant submits that the charge-sheet was issued by respondent No. 3 to take revenge against the applicant since Shyam Sunder Chaudhary son of applicant had filed a complaint to the P.M.G. that respondent NO. 3 ignored his merit and overlooked him for appointment to the post of Branch Post Master and the appointments were cancelled by the P.M.G. and further respondent No. 3 was punished by the Appellate Authority under R.T.I. Act for not providing information to S. S. Chaudhary.
3. Before proceeding further, the charges against applicant is that while posted as Branch Post Master, Barhata he has received two letters to be delivered to one Shimla Devi but that the applicant did not serve the letters upon Shimla Devi and return them back to the sender. Accordingly, charge-sheet was served upon the applicant in terms of disciplinary proceedings under Rule 10 of Gramin Dak Sevak (Conduct and Employment) Rules 2001.
4. The defence taken by the applicant to the aforementioned charge as per the averments in the O.A. are as under:-
"4.11 That, it is mention here that the charge against the applicant is that registered letter dated 1.9.2009, 5.3.2009 not disputed and return back to the senders and one letter dated 10.6.2008 distributed to Smt. Shimla Devi who belong to Village Rakhia. The aforesaid registered letter dated come on address of Smt. Shimla Devi w c/o Sri Shiv Dayal R/o Village Rakhia. But in fact earlier Smt. Shimla was married with Shri Shiv Dayal R/o Village Philkhan but divorce was made between Smt. Shimla Devi and Shri Shiv Dayal on 21.2.99 before Gram Pancht U/s 29(2) of Hindu Marriage Act, 1955. Smt. Shimla after divorce from Sri Shiv Dayal she lives with Sri Shyam as wife in village Rakhia. There are two children born from Sri Shyam Gupta and all documents Smt. Shimla maintain as wife of Sri Shyam. Shri Shiv Dayal not lives in village Rakhia therefore the registered letter cannot be distributed to Smt. Shimla Devi hence return to the senders, therefore, the applicant not committed any mistake or 3 violation of departmental rule. The letter dated 10.6.2008 distributed because letter come on only address of Smt. Shimla Devi.
4.12 That it is relevant to mention here that as per Kaptanganj Vidhan Sabha election Nirwachan Niyamawali 2009, the voter list clearly show Sri Shyam is husband of Smt. Shimla Devi. It is further submitted the Gram Pradhan of Rakhia also given certificate that Sri Shiv Dayal not live in Village Rakhia."
5. In the counter affidavit filed by respondents, it has been averred that the complaint filed by Smt. Shimla Devi in the year 2011was found to be proved after the enquiry and that Shimla Devi had also lodged complaint previously against the applicant for not delivery of postal articles and demand of illegal gratification for her. This complaint was received in the year 2009. It has been further averred that the disciplinary proceedings were completed after providing opportunity to the defence and were carried out in accordance with rules and regulation and that the punishment of removal from services has been imposed upon the applicant keeping in view that he was found guilty of non-delivery of postal articles to the addressee deliberately with ill- motive. That the findings of the disciplinary proceedings are based on evidence adduced during the enquiry and that non-delivery of the articles to the addressed tarnished the image of department of Postal Service. As such the O.A. be dismissed.
6. The applicant filed rejoinder affidavit wherein he reiterated the averments made by him in the O.A. He has further taken the plea that the letter was addressed to Shimla Devi c/o Shiv Dayal R/O. Rakhia but in fact earlier Shimla Devi was married to Shiv Dayal but after the divorced in the year 1999 she started living with Shyam as his wife in Village Rakhia and out of this wedlock two children were born. Shiv Dayal does not live in Village Rakhia and therefore the letter could not be distributed to Shimla Devi.
7. Applicant has challenged the impugned orders on the following grounds:-
A. The enquiry officer submitted inquiry report dated 3.10.2011 and arbitrary manner charges are proved without considering whole fact and taking other grounds which is not in charge-sheet.
B. The Disciplinary Authority has failed to apply his judicial mind and arbitrary imposed the punishment of removal from service.4
C. The Inquiry Officer also failed to consider the defence statement of applicant and also written brief of the applicant before submitting the enquiry report.
D. The Appellate Authority has failed to apply his judicial mind and without considering the legal grounds taking by the applicant arbitrary manner rejected the appeal vide order dated 7.6.2012.
E. The applicant demanded some additional documents to defend the case but same was not provided which is violation of principle of natural justice.
F. The penalty of removal from service is extreme because the applicant has completed long continuous service.
G. The respondents have failed to consider that allegations made against the applicant if found to be correct, could be termed as negligence on the part of the applicant since removal from service being an economical death such as severe punishment ought not to have been imposed upon the applicant.
8. We have heard and considered the arguments of learned counsels for the parties and gone through the material on record. It may be noted that Supplementary counter affidavit was filed by the respondents wherein they denied the averments of applicant in his rejoinder affidavit.
9. Learned counsel for the applicant submitted that admittedly applicant sent back the letters to the senders but he did so under the impression that Shimla Devi though married previously to Shiv Dayal but after their divorce married one Shyam with whom she was living as his wife
10. Applicant has challenged the order dated 25.10.2011 of disciplinary authority and the order dated 7.6.2012 of appellate authority.
11. It is no more res integra that the power of judicial review does not authorize the Tribunal to sit as a court of appeal either to reappraise the evidence/materials and the basis for imposition of penalty, nor is the Tribunal entitled to substitute its own opinion even if a different view is possible. Judicial intervention in conduct of disciplinary proceedings and the consequential orders is permissible only where (i) the disciplinary proceedings are initiated and held by an incompetent authority, (ii) such proceedings are in violation of the statutory rule or law, (iii) there has been gross violation of the principles of natural justice, (iv) there is proven bias and mala fide, (v) the conclusion or finding reached by the disciplinary authority is based on no evidence and/or perverse, and (vi) the conclusion or finding be such as no reasonable person would have ever reached.
512. In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Hon'ble Apex Court has held as under:
"12. 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 eye of the Court. When an inquiry is conducted on charges of a 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 be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 prescribing the mode of inquiry of 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."
13. In R.S. Saini v. State of Punjab and ors, (1999) 8 SCC 90, the Hon'ble Apex Court has observed as follows:
"We will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably 6 support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."
14. In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Hon'ble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:
"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority....."
15. In the instant case, the charge against the applicant being that he was under a duty to deliver the postal letters to the addressee which he failed to do so. His stand that the address was not correct cannot be accepted because he knew the identity of Shimla Devi and it is not his case that there were two persons by the same names. Applicant careless working i.e. non-delivery of the letters on two occasions to the same person despite delivering letters on previous occasions his misconduct and violation of rules and regulations and non delivery of the letters to Shimla Devi stand proved. The applicant duly participated in the enquiry and cross-examined the witnesses examined on behalf of the prosecution. The applicant also submitted his written defence note to the Inquiry Officer. After analyzing the evidence and materials available on record, the Inquiry Officer submitted the inquiry report, finding the charge against the applicant as proved.
16. Strangely enough, in his relief the applicant has not made any prayer regarding the report of the I.O. During the course of hearing, learned counsel for the applicant laid much emphasis on the findings of the inquiry. However, from the relief claimed, we find that the inquiry 7 report and the findings recorded therein are not under challenge. The applicant has only sought quashment of the order of penalty and the orders passed by the appellate and the reviewing authorities. In absence of there being any challenge to the inquiry report and the findings recorded therein, it is not permissible in law to examine the validity of the findings of the inquiring authority.
17. After considering the materials available on record including the applicant's representation made against the inquiry report, the Disciplinary Authority, imposed upon applicant the penalty 'removal from service'. Again the appeal against the order of Disciplinary Authority, the Appellate Authority disposed of the appeal by rejecting the appeal by a reasoned and speaking order.
18. The above observations/findings recorded by the Inquiry Officer, Disciplinary Authority and Appellate Authority are based upon evidence/materials, and it cannot be said that there was no evidence before the Inquiry Officer, Disciplinary Authority and Appellate Authority to arrive at the above findings/ conclusions against the applicant. The applicant, in discharge of his duties, was required to discharge his duties with utmost sense of integrity, honesty, devotion and diligence, and to ensure that he did nothing which was unbecoming of an employee/officer of the postal department.
19. Though the inquiry report and the findings recorded have not been challenged, however, the learned counsel for the applicant having argued that the findings are without any evidence, we did peruse the inquiry report. The charge of non delivery of the letters on two occasions has been proved against the applicant.
20. At risk of repetition, it may be stated that it is settled law that the Tribunal cannot sit as a court of appeal over the findings of the inquiring authority. The conclusions derived by the inquiring authority are based upon evidence. The adequacy of the evidence cannot be looked into by the Tribunal so long the view of the inquiring authority is one of the possible views. The argument of the applicant's counsel that the findings are perverse cannot be accepted.
21. As noticed by us hereinabove, there is no perversity in the findings recorded by the inquiry officer. The applicant has neither pointed out the relevancy of the documents not any prejudice having been caused to him as mentioned in grounds of culling in the O.A. We do not find any violation of the statutory rules. There is no specific allegation of 8 bias against any person warranting interference in the impugned penalty order. The applicant is guilty of not discharging his primary function i.e. delivery of postal articles to the addressee. The reasons given by the applicant for non-delivery do not merit acceptance.
22. Insofar as the appellate order is concerned, it is said to be without reasons. We have perused the orders. The appellate authority has recorded sufficient reasons in its order. The contention of the learned counsel for the applicant that the orders are without reasons is not correct. Suffice it to say that the administrative authority is not required to write a judgment, as is written by a court of law. The administrative authority, particularly when exercising appellate jurisdiction, is only required to disclose due application of mind to the issues raised, which has been done in the present case.
23. It is argued that the punishment is disproportionate to the charges against the applicant and mercy petition has not been considered properly in reducing the punishment. In Ranjit Thakur v Union of India & others,(1987) 4 SCC 611, the Hon'ble Supreme Court held as under:
"25. .... 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 offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the courtmartial, 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...."
24. Insofar as the question of quantum of punishment is concerned, the Hon'ble Supreme Court taking note of various earlier judgments, in Jai Bhagwan v Commissioner of Police [(2013) 11 SCC 187], held as under:
"10. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in 9 determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when Courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court."
25. Thus, it is for the competent disciplinary authority to impose the penalty as may be required on the basis of the material before it. It is not for the court to interfere in the quantum of punishment unless it pricks the conscience of the court and is so disproportionate to the offence committed as to defy prudence. In the present case, we find that major charges against the applicant have been proved. The penalty of removal from service under the facts and circumstances of the present case cannot be said to be disproportionate. We do not feel that this is a fit case where the doctrine of proportionality is attracted.
26. The contention of the learned counsel for the applicant that the inquiry suffers from manifest errors is a general statement. The inquiring authority has discussed the entire evidence adduced before it and thereafter arrived at a particular conclusion holding the charges proved against the applicant. The findings seem to be absolutely logical. The inquiry officer was only required to appreciate the evidence produced before it. It was purely an administrative matter and the inquiry officer has formulated opinion, which is not illogical. No specific instance has been pointed out which may lead to any finding contrary to the facts on record, illogical or perverse. As noticed hereinabove, all these contentions are also otherwise not required to be gone into for the simple reason that there is no prayer for quashing the inquiry report and/or the findings therein.
27. After having given our thoughtful consideration to the materials available on record and the rival submissions, in the light of the decisions referred to above, we have found no substance in the submissions of learned counsel for the applicant. No other point worth 10 consideration has been urged or pressed by the learned counsel appearing for the parties.
28. It is argued by the learned counsel for the applicant that the punishment in the present case is disproportionate to the charges proved against the applicant. In Ranjit Thakur v Union of India & others,(1987) 4 SCC 611, the Hon'ble Supreme Court held as under:
"25. .... 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 offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the courtmartial, 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...."
29. Insofar as the question of quantum of punishment is concerned, the Hon'ble Supreme Court taking note of various earlier judgments, in Jai Bhagwan v Commissioner of Police [(2013) 11 SCC 187], held as under:
"10. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when Courts are slow and generally reluctant to interfere with the quantum of punishment.11
The law on the subject is well settled by a series of decisions rendered by this Court."
30. The enquiry report does not disclose any malafide on the part of the applicant. The lapse on the part of the applicant was on account of misunderstanding on the part of the applicant which is bonafide in view of post marital disputes between the receiver of the letter i.e. Shimla Devi who is also complainant in this case. The applicant had also informed the authorities about his inability to deliver the letter to Shimla Devi and there is nothing on record to show that a specific instruction in this regard was given to the applicant which was violated. The circumstances leading to such confusion in the mind of the applicant have been mentioned by the applicant in his appeal dated 15.12.2011 (Annexure A-7) vide the portion of page 86 of the O.A. Hence, it is not proved that the applicant did not deliver the letter to Shimla Devi with ill intention on malafide but due to confusion in his mind in view of the formal background of the case. However, at the same time, we may say that the confusion or lack of ill-intention or malafide cannot be an excuse for the act of dereliction in execution of his duty, which he was duly bound to discharge.
31. In view of these circumstances as well as the law laid down by the Hon'ble Apex Court, we are of the opinion that the punishment imposed upon the applicant by the respondents is shockingly disproportionate to the gravity of charge proved against the applicant and requires a reconsideration by the respondents regarding the quantum of punishment other than 'removal or dismissal from service' to be imposed upon the applicant. Hence, the case is remanded back to the Disciplinary Authority to reconsider the quantum of punishment to be imposed upon the applicant at the earliest by way of a reasoned and speaking order and to be communicated to the applicant.
32. Accordingly, the O.A. is disposed of in terms of above order. No costs.
(Rakesh Sagar Jain) (Gokul Chandra Pati)
Member (J) Member (A)
Manish/-