Central Administrative Tribunal - Allahabad
Rajesh Kumar Singh Son Of Late Ram Murat ... vs Union Of India Through Secretary on 28 September, 2016
Central Administrative Tribunal, Allahabad Bench, Allahabad
Original Application No. 245/2004
Reserved on 9.9.2016
Pronounced on 28.9.2016
Honble Mr. Justice Dinesh Gupta, Member (J)
Honble Mr. O.P.S. Malik , Member (A)
Rajesh Kumar Singh son of late Ram Murat Singh r/o C-33/215, A-1 B Hari Nagar Chandua, Varanasi.
Applicant
By Advocate:- Sri M.K. Upadhyaya
Versus
1. Union of India through Secretary, Ministry of Communication, New Delhi.
2. Director, Postal Services, Office of Post Master General, Allahabad.
3. Superintendent of Post Offices, West Division, Varanasi.
Respondents
By Advocate: Sri Dharmendra Tiwari for Sri N.P. Shukla
ORDER
BY HONBLE MR. JUSTICE DINESH GUPTA, MEMBER (J) The present O.A. is preferred by the applicant u/s 19 of the AT Act, with the following reliefs:-
i) to issue an order or direction in the nature of mandamus to quash the order dated 20.12.2002 (Ann -1) and order dated 26.9.2003 (Annexure -2) with all consequential benefits.
ii) to issue an order or direction in the nature of mandamus commanding the respondents to grant all the benefits from 25.12.1993.
iii) to pass any other and further order in the circumstances of the case which Honble Tribunal may deem fit and proper may also be passed.
iv) to allow the cost of application filed by the applicant.
2. The brief facts emerges from the O.A. are as follows:-
2.1 That the applicant had filed an original applicant No. 1867 of 1994 against the order dated 25.12.1993 and 20.12.1994 by which the disciplinary authority has passed removal order against the applicant and on 20.12.1994, the appellate authority has rejected the appeal of the applicant.
2.2 That after considering the facts and arguments by the relevant parties, the Tribunal pleased to decide the OA. vide order dated 26.4.2002 and quashed the orders dated 25.12.1993 and 20.12.1994.
2.3 Against the order dated 26.4.2002, the respondents preferred the writ petition No. 29468/2002 before the Honble High Court and the aforesaid writ petition was dismissed at admission stage vide order dated 5.8.2002.
2.4 That after dismissal of the aforesaid writ petition, the respondent No. 2 directed the respondent No. 3 vide order dated 19.9.2002 and asked the respondent No. 3 to hold de-novo proceedings against the applicant.
2.5 Respondent No. 2 passed again removal order against the applicant vide order dated 20.12.2002 and after passing of the aforesaid order, the applicant approached the Tribunal by way of filing Civil Contempt Application No. 17/2003. The Tribunal vide order dated 25.2.2003 quashed the order dated 19.9.2002 and 20.12.2002.
2.6 That respondent No. 3 again vide order dated 26.9.2003 punished the applicant with removal from service.
2.7 That the applicant again filed a contempt petition No. 206/2003 against the respondents. However, the said contempt petition was dismissed with liberty to the applicant to file fresh O.A. 2.8 The applicant filed O.A. No. 245/2004 and the said O.A. was allowed vide order dated 8.3.2006 against which the Union of India again filed a writ petition No. 39425/2006 which was allowed vide order dated 31.3.2014. The applicant filed a review Application No. 14895 of 2014 and the review petition was allowed vide order dated 22.1.2016 by which the High Court recalled the order dated 31.3.2014 and set aside the order of the Tribunal dated 8.3.2006 and remitted the matter back to the Tribunal to examine the applicants plea of dismissal to be inflicted being at par with similarly placed persons and to examine the nature of the allegations leveled against the applicant vis-`-vis other employees keeping in view the fact that finding of guilt against the applicant had attained finality under the previous order of the Tribunal. After remition of this case, the Court considered the case of the applicant. However, in the mean time, original record was weeded out. Hence as per the direction of Head of Department, file was reconstituted and thereafter the matter was posted for hearing.
3. Heard learned counsel for applicant Sri M.K. Upadhyaya and Sri Dharmendra Tiwari proxy for Sri N.P. Shukla, learned counsel for respondents.
4. Learned counsel for respondents submitted that applicant who was charge sheeted and was removed from service filed earlier an O.A. which was allowed by this Tribunal and the matter was remanded back to the appellate authority to take decision regarding quantum of punishment on the ground that there were other cases of embezzlement and only the applicant and one another person were removed from service and the court considered the punishment excessive and remanded the matter to the appellate authority to take a decision regarding quantum of punishment. The matter was challenged by the respondents by way of filing writ petition. However, the said writ petition was dismissed at the admission stage. The respondents again passed an order of removal from service of the applicant and the matter was again challenged by filing the present O.A. and the O.A. was allowed and the applicant was reinstated in service with all benefits and with pay and allowances. The said order was again challenged by the respondents by way of filing a writ petition which was allowed without giving opportunity to the applicant. The applicant immediately field review petition which was finally heard and allowed and the order of allowing the writ petition was recalled and the order of reinstatement of the applicant was also set aside and the matter was sent back to the Tribunal to examine the applicants plea of punishment. The counsel emphasized on the relevant portion of the remand order passed on the review petition and submitted that this Tribunal was directed by the High Court to examine the applicants plea of punishment to be inflicted at par with similarly placed persons and examining the nature of the allegation levelled against the applicant vis-`-vis other employees keeping in view the fact that finding of guilt against the applicant had attained finality under the previous order of the Tribunal. The counsel further submitted that when the Tribunal directed the respondents to reinstate the applicant with full benefits and the respondents writ petition was pending in the High Court but there was no stay order, the applicant preferred contempt petition against the respondents for non-compliance of the order passed by the Tribunal and the respondents complied with the orders passed by this Tribunal and reinstated the applicant with full benefits and also paid the full salary and arrears of salary etc.
5. However, when the writ petition was allowed ex-parte, the applicant was again removed from service and during pendency of review petition, the applicant remained out of service and ultimately he attained the age of superannuation on 29.2.2016. The applicants counsel further submitted that now the only course available for the Tribunal to further remand the matter to the Appellate Authority to reconsider the punishment of the applicant in the light of observations of the High Court while deciding the review petition and as per the observations of the High Court, the Appellate Authority of the respondents has no option but to pass punishment order except removal of service of the applicant.
6. Learned counsel for respondents submitted that there is a consistent view of the High Court as well as of the Honble Apex Court that Tribunal cannot act as an appellate court and to dictate the terms to the appellate authority to take a decision in respect of punishment.
7. In the present case after remand, the appellate authority after taking into consideration the role of applicant and role of similarly placed persons and other circumstances, maintained the order of removal of the applicant from service and court has no power to interfere in the discretion of the appellate authority in imposing the penalty/punishment. Counsel for respondents also relied upon the case of Regional Manager U.P.S.R.T.C. Etawah and others Vs. Hoti Lal and another reported in (2003) 3 SCC 605 and State of Haryana Vs. Ram Kumar Mann reported in (1997) 3 SCC 321 and submitted that in the case of Regional Manager, UPSRTC Vs. Hoti Lal (supra), the Honble Apex Court has taken the same view as submitted by the respondents.
8. Considering the rival submissions of the parties, it is necessary to bring out certain facts and development in the case time to time and order passed by the various court and Tribunal.
9. While allowing the O.A., the Tribunal relying upon the judgment of Honble Apex Court in the case of Director General of Police and others Vs. G. Dasayan reported in 8 SCC (L&S) 557, allowed the O.A. with the following observations:-
In our opinion ,the view expressed by the Honble Supreme Court is squarely applicable in the applicants case. We do not find any distinguishable feature on which basis the applicant could be awarded extreme penalty of removal from service. In the present case the amount of Rs. 8000/-which the applicant had paid was recovered from the employees namely Rajeshwar Rai and Chintamani Tripathi, applicant could also be made liable to pay the amount giving to the loss suffered by the department. Appellate as well as the disciplinary authority have not recorded any finding in their order with this angle . In our opinion, the ends of justice require that this matter be sent back to the appellate authority for consideration on the quantum of punishment in the light of observations made.
The O.A. is accordingly partly allowed. The impugned orders dated 25.12.1993 (Ann- 1) and 20.12.1994 (Ann. 2) are quashed so far as they award the punishment of removal against the applicant. The matter shall be considered by the respondent No. 3 i.e. Director Postal Services on quantum of punishment. As the matter is very old the order shall be passed within 3 months after providing hearing to the applicant.
There shall be no order as to costs.
10. Against this order, the respondents preferred a writ petition which was dismissed at the admission stage. The observations of the High Court in dismissing the writ petition is very relevant to guide the respondents authority in taking the decision regarding deciding the case of applicant on quantum of punishment:-
We heard learned counsel for the petitioner at the admission stage. We find that there is specific averments in the O.A. of the respondents that there were 154 cases in similar embazellement and out of 154 , only two persons including the applicant were removed from service by way of punishment and the others were imposed minor penalties of recovery etc. The petitioner (the respondent in O.A.) have not specifically denied the averments and have not disclosed the reason for discrimination in punishment in similar cases. Hence this petition has no force and is liable to be dismissed.
The writ petition is dismissed at the admission stage.
11. When the writ petition of the respondents was dismissed by respondent No. 2, Director Postal Services under some misconception seek respondent No. 3 , Superintendent of Post Offices for taking de-novo proceedings and Superintendent of Post Offices again passed the order of removal and confirmed by the Appellate Authority. However, in the contempt petition filed by the applicant, both the orders of respondent No. 2 and respondent No. 3 were quashed and the respondent No. 2 again vide order dated 26.9.2003 punished the applicant with removal from service. The operative portion of the said order is quoted below:-
Aggrieved by the appellate order ibid Sri Rajesh Kumar Singh moved an application No. 17/2003 to Honble CAT, Allahabad making the appellate order as an issue of contempt order of Honble CAT, Allahabad and finally disposing off the said application, the Honble CAT Allahabad on 25.2.2003 clearly said that the case of contempt was not made out. However, they again directed the DPS Allahabad, the appellate authority in this case do decide the appeal again of the appellant on the quantum of punishment. And in compliance of their orders, the appeal dated 14.2.94 which has been decided twice by my predecessors.
The appellant is directly involved in the misappropriation of government money through payment of bogus money orders for which he was removed from service. On the grounds mentioned above, I do not find any justification to interfere in the punishment awarded to the applicant, which is commensurate with the gravity of the case. I Udai Krishna, Director, Postal Services , Allahabad Region Allahabad hereby reject the appeal of the applicant.
12. The applicant again approached this Tribunal by filing O.A. No. 245/2004 which was allowed vide order dated 8.3.2006. The Tribunal was of the view while considering the OA. that since the respondents failed to comply with the orders of this Tribunal earlier with letter and spirit and fail to consider on the quantum of punishment, the only course left over to the Tribunal to direct the reinstatement of the applicant with full benefits and arrears of pay etc. This order was challenged by the respondents in the High Court by way of filing another writ petition and now this time, this writ petition was heard ex-parte and Court allowed the writ petition with the certain observations on 31.3.2014:-
There is nothing, either in the order of the Tribunal or in the order of the writ petition, which restricted the power of the Disciplinary Authority to impose major penalty of removal of the respondent from service. The direction of the Tribunal was only to reconsider the quantum of punishment, with reference to the quantum of punishment awarded to other employees, in similar situation. Therefore, the Tribunal is not justified in holding that the major penalty of removal of the respondent from service could not be imposed by the Disciplinary Authority after remand of the case.
13. The applicant immediately filed a review petition which was finally heard and decided by the High Court vide order dated 22.1.2016 and the Honble High Court while remitting the matter again back to the Tribunal by setting aside the order of the Tribunal by which the applicant was reinstated, recalled their own order dated 31.3.2014 by which the writ petition was allowed and sent the matter to the Court with certain observations:-
In view of the facts and circumstances of the case noticed above, we allow the review application set aside the order of the Tribunal dated 8.3.2006 and remit the matter back to the Central Administrative Tribunal to examine the applicants plea of punishment to be inflicted being at par with similarly placed persons and to examining the nature of allegations levelled against the applicant vis-`-vis other employees keeping in view the fact that finding of guilt against the petitioner had attained finality under the previous order of the Tribunal. Since the applicant has retired and the matter has remained pending since long, it would be appropriate to request the Tribunal to proceed with all expedition in deciding the claim petition, preferably within a period of four months from the date of presentation of certified copy of this order. Order dated 31.3.2014 is recalled. The writ petition is allowed subject to the observations made above
14. In the light of the above observations of the High Court and the Tribunal in the previous litigations, the matter is now again before this bench. The Tribunal in the O.A. No. 1867/1994 sent back the matter the Appellate Authority to consider the case of the applicant keeping in mind that the enquiry initiated against the applicant and other employees including 154 in number, only two , the applicant and one other were awarded penalty of removal from service and others were awarded minor punishment. This view of the Tribunal was affirmed by the High Court while dismissing the writ petition of the respondents. The dismissal of the writ petition confirmed the observations /findings of the Tribunal and the Appellate Authority of the respondents were liable to consider the case of the applicant in the light of observations made by the Tribunal affirmed by the High Court. However, the appellate authority failed to discharge its duty by considering the case of the applicant with other similarly situated persons as evident from the order passed by the Appellate authority while confirming the order of removal of the applicant from service. In the appellate authority order, there is nothing on record to demonstrate that the appellate authority while taking the decision considered discriminatory removal of the applicant with other postmen who were charged similarly in other towns. But the High Court also observed that only the applicant and one another postman was removed from service while others were imposed with minor penalty of recovery etc. Since there is no reason in the order passed by the punishing authority or appellate authority for discrimination in punishment with similar cases, the matter was remanded back to the appellate authority. The appellate authority when failed to consider the case of the applicant in the light of the observations made by the Tribunal as well as by the High Court, the matter was again challenged by the applicant by way of filing the present O.A. It is true that now the Tribunal in O.A. No. 245/2004 took a wrong decision in reinstating the applicant with full salary and other benefits, the High Court has clearly observed in the remand order or order in review petition that We, however, find that finding of guilt on the basis of evidence led, was not interfered with by the Tribunal in its earlier order dated 26th April 2002. The only aspect which was required to be examined afresh was with regard to quantum of punishment to the applicant quo other similarly placed persons.
15. The High Court was of the view that the order of reinstatement and absolving the applicant from all the charges levelled against him was not correct and therefore, while remitting the matter, set aside the order of reinstatement.
16. It is not disputed that the High Court also recalled its own order dated 31.3.2014 by which the writ petition was earlier allowed and also observed that the order allowing the writ petition was passed in ignorance of the earlier directions issued by the Tribunal and affirmed by this Court vide order dated 5.8.2002. Hence reliance of the respondents on the order passed by the High Court on 31.3.2014 allowing the writ petition will be of no help to them as the same was recalled.
17. It is also not disputed that after reinstatement order passed by the Tribunal, the respondents complied with the order passed by the Tribunal and reinstated the applicant and paid the applicant his whole back wages and salary and other benefits. However, they again removed the applicant when writ petition was allowed. It is not disputed that the applicant has attained the age of superannuation on 29.2.2016. It is also important to mention that while remitting the case and deciding the Review petition, the High Court clearly observed that we find substance in the contention advanced by the learned counsel for the applicant that the observations extracted above, was in ignorance of the earlier directions issued by the Tribunal, as affirmed by this Court vide order dated 5.8.2002. Consequently, the punishment of removal from service could not have been imposed upon the applicant particularly in view of the findings returned in the order of punishment itself.
18. Now the Court has to examine the plea of the applicant in the light of the observations of the High Court and the Tribunal in earlier orders. At this stage, it is necessary to bring out the facts of enquiry, as extracted from the punishment order as well as counter affidavit filed by the respondents.
19. The matter started with the case of bogus payment of 50 money orders amounting to Rs.87,500/-came to light in Mammoorganj, sub Post Office in the year 1991. All these money orders were payable to one Sri Dhirendra Singh House No.B-20/77 Bhelupura, Varanasi and were purported to have been issued from Samaipur, Raigada Bazar, FPO 617 and Norma Post Offices. Out of the above 50 money orders four were purported to have been issued from Raigada Bazar Post office, each of the value of Rs. 2000/- totaling to Rs. 8000/- were paid by the applicant to its payee at the post Office itself without obtaining any identification by the reliable person. The applicant was expected to visit the residence of the payee mentioned in the money order forms to confirm the identity of the so called payee before the payment of money orders given to him but the applicant has failed to do so and made the payments of those money orders in illegal manner. In the enquiry, it was found that the so called payee to whom the applicant paid the amount of the above money orders never resided on the address given on the money orders forms and his whereabouts were unknown until he was caught by the police.
20. Same facts also borne out from the order passed in earlier O.A. in which the applicant had submitted that as many as 154 postmen in various delivery town of Varanasi came in hot water as they were all held for embezzlement, but out of 154, only two persons , the applicant and one Sri Markendey Ram have been awarded punishment of removal. In the present case, the applicant said the example of 18 money orders in his O.A. which were distributed to different postmen but they were awarded minor punishment.
21. Some facts also borne out from the order passed by the Superintendent of Post in his order dated 20.12.2002 (Although the said order has been quashed by the Tribunal in contempt petition). In this order, it is also borne out that the applicant was given 4 money orders of amount of Rs. 2000/- each,, two on 12.8.1991 and two on 18.9.1991 and they were given to the payee without taking any witness or without going to the house of the payee and the applicant made the payment in the post office itself. The order further observed that in the Varansi, there were two divisions of posts and in the above case, there are different categories of officers consist of 24 Dy. Post Master/ Assistant Post master / Postal Assistant and 20Postmen were found guilty. Rest 110 employees ( who are not belonging to postmen but to different categories) were considered their roles and one Markendey Ram and Rajesh Kumar Singh, applicant treating themselves on similar footing awarded penalty of removal and some employees were awarded punishment of recovery and some were given censure entry. Hence in other cases, the department has not taken action as they taken with the employees of similar footing.
22. From these facts which comes out of the counter replay as well as from the relevant facts and allegations of the applicant himself that the applicants role was only to deliver the money orders. At the most, he can be said to be Courier and only charge against him that instead of giving money orders to the payee at his house, he delivered the amount to the payee when the payee was available in the post office. There is no iota of evidence or averments of any of the parties that applicant was involved in the embezzlement or he took any undue advantage. The similar postmen who also delivered money orders to the payee without ascertaining his identity, they were awarded only the punishment of recovery of said amount which was alleged to have been delivered by them. The Tribunal while allowing the OA. earlier, was also of the view that since the applicant was guilty of deliver the amount without ascertaining the identity of the payee, he could also be awarded punishment of recovery of said amount which is Rs. 8000/- in amount. There is no allegation against the applicant which distinguish his case from rest of the postmen. It is also borne out in the light that the postmen is nothing to do with the records of money orders. The process of delivery of money order is very simple. The money order form along with other documents received in the post office after scrutiny was ultimately given to the postmen along with money for delivery. Thus, the role of the postmen is only to deliver the amount to genuine payee.
23. The postmen cannot be presumed to find out whether the money order is fake or not. He is only responsible to deliver the same to the payee and in this case, the only charge against the applicant is that he failed to deliver the money order to the payee with proper identification. The applicants contention is that other postmen who also delivered the money order without ascertaining the real whereabouts, they were not given the penalty of removal from service.
24. The respondents counsel relied upon the case of Regional Manager, UPSRTC Etawah Vs. Hoti Lal (supra) has no relevance since the order of the Tribunal while sending back the matter to the Appellate Authority to consider the role of the applicant at par with other similarly situated delinquent employees and writ petition of the respondents was dismissed affirming the observations of the Tribunal and the respondents failed to challenge the order of the writ petition by approaching the Apex Court. Hence the observations of the Tribunal and High Court has attained finality and now it will not lie in the mouth of the respondents to say that Court has no power to restrain the authority in respect of imposing the punishment.
25. So far as the case of State of Haryana Vs. Ram Kumar Mann (supra) is on different footing as such has no relevance in the present case.
26. Thus the observations of the Tribunal and High Court in respect of role of the applicant and discretion of the respondents authority in taking different view in the case of similarly situated persons and the matter was sent back to the appellate authority with these observations. However, the Appellate Authority failed to take into consideration the observations made by the Tribunal as well as by the High Court and passed the order which cannot be sustained. Hence the order passed by the appellate authority is liable to be quashed and O.A. deserved to be allowed. Accordingly Original Application is allowed and order dated 20.12.2002 is quashed.
27. Since much water has flown from the order passed in earlier O.A. by this Tribunal i.e. in 2006 and now we are in 2016, and in the mean time the applicant was reinstated and removed from service again and applicant has already attained the age of superannuation on 29.2.2016, we are left with no option but to send the matter back to the appellate authority to pass appropriate order other than order of removal from service in the light of observations of this order and observations of the order passed by the High Court and Tribunal at different levels which are also inflicted or reflected in this order.
28. Since the applicant has already attained the age of superannuation, we expect that the appellate authority will take a decision in this regard as expeditiously as possible preferably within a period of three months from the date of this order and communicate the decision to the applicant. No order as to costs.
(O.P.S. MAILK) (JUSTICE DINESH GUPTA)
MEMBER (A) MEMBER (J)
HLS/-
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