Central Administrative Tribunal - Bangalore
K Umesh Shenoy vs D/O Post on 2 November, 2022
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OA.No.170/273/2012/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00273/2012
Order Reserved on: 22.09. 2022
Date of Order: 02.11.2022.
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
K. Umesh Shenoy
S/o Sitarama Shenoy,
Age: 49 years,
GDS MD, Kedinje BO,
A/w Nitte SO, Karkala H.O.,
(Now removed from service),
Residing at Post Kedinje,
Nitte SO, Karkala H.O.,
Udupi District-574 110. ..Applicant.
(By Advocate Shri Javarayi Gowda for Shri A.R. Holla)
Vs.
1.Union of India,
By Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110001.
2.The Director of Postal Services,
Office of the Post Master General,
South Karnataka Region,
Bangalore -560 001.
3.The Senior Superintendent of Post Offices,
Puttur (D.K.) Division,
Puttur -574 201.
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4. The Assistant Superintendent of Post Offices,
Karkala Sub-Division,
Karkala -574 104. ....Respondents
(By Shri Vishnu Bhat, Sr. Central Government Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the Order No. F/PF/GDSMD/Kedinje dated 30.11.2009, issued by Respondent No.4 (Annexure A-4), vide which the applicant has been dismissed from employment with immediate effect.
b) To quash the Order No. F2/06/06-07 dated 06.08.2010 issued by Respondent No: 3 (Annexure A-6), vide which the appeal filed by the applicant against the penalty order dated 30.11.2009 has been rejected.
c) To quash order No. SK/STA/9-5/01/2011/I dated 25.11.2011 issued by Respondent No.2 (Annexure A-8), vide which the revision petition filed by the applicant has been rejected and the penalty order has been confirmed.
d) Direct the respondents to reinstate the applicant in his original post with all consequential benefits, including full back salary and allowances and continuity of service.
e) Grant such other relief deemed fit, having regard to the facts and circumstances of the case.3
OA.No.170/273/2012/CAT/Bangalore Bench
2. This is the 3rd round of litigation in this matter. The OA was filed in the year 2012(29.03.2012). It was disposed of vide orders dated 02.09.2013 with the following directions:
"Therefore, the impugned orders are quashed. Applicant to be reinstated with all consequential benefits. OA allowed. No order as to costs."
3. The respondents in the OA filed Writ Petition No.16589/2014 challenging this order. The Hon'ble High Court vide order dated 12.09.2014 allowed the Writ Petition and set aside the order dated 02.9.2013 passed by this Tribunal in OA.No.273/2012 and the matter was remitted back to the Tribunal to consider the matter afresh keeping in mind the observations made by the High Court in the light of the provisions governing the Postal Department and Rules thereof.
4. The Tribunal, after hearing the matter again vide order dated 13.8.2015 allowed the OA and granted the relief sought for by the applicant with all consequential benefits within two months next.
5. The orders issued by this Tribunal were again challenged through Writ Petition No.8751/2016 (S-CAT) before the Hon'ble High Court of Karnataka, Bengaluru. The Hon'ble High Court disposed of the Writ Petition vide its order dated 04.2.2021. The operative portion of the order passed by the High Court in the said Writ Petition was as follows:
"The impugned order dated 13.8.2015 made in OA.No.273/2012 by the Central Administrative Tribunal, Bengaluru Bench, Bengaluru is hereby quashed.4
OA.No.170/273/2012/CAT/Bangalore Bench The matter is remitted to the Tribunal to reconsider the matter keeping in view of the observations made by the coordinate Bench of this Court at paras-5 and 6 of the order dated 12.9.2014 made in WP.No. 16589/2014 and decide the matter on merits strictly in accordance with law within four months from the date of the receipt of the order keeping in view that the issue is pending before it since twelve years and pass appropriate orders in accordance with law.
We hope and trust that the Tribunal shall decide the matter at the earliest."
6. The matter, therefore, has been heard afresh.
7. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant joined the postal department as GDS MD in Kedinje BO a/w Nitte SO under Karkala H.O. on 01.11.1983. Disciplinary proceedings were initiated against the applicant under Rule 10 of GDS (C&E) Rules, 2001, by issuing a Memorandum dated 30.11.2006 containing 6 articles of charge. The gist of the charge against him were as follows:
i. He was imposed with the punishment of debarring him from being considered for recruitment to Group 'D' post for 3 years in terms of the memo dated 23.08.2005;
ii. that he did not deliver a letter to Smt Jayashree, residing at Bola Village, which was received on 29.5.2006;5
OA.No.170/273/2012/CAT/Bangalore Bench iii. that he did not deliver the letter addressed to Sri Brian Sandeep D Silva received on 28.5.2006 to him, but to his father; iv. that he did not deliver a letter received on 05.6.2006 addressed to Sri Sujaya Rao to him, but to his father;
v. that he did not deliver a letter dated 19.3.2006 addressed to Sri Shridhara Poojary to him, but to his son and vi. that he did not deliver a letter received on 31.5.2006 addressed to Sri Karunakara Moolya to him, but to his wife.
b) The Inquiry Officer submitted his report on 02.01.2009 holding that all articles of charge were proved against the applicant. The applicant submitted his representation on the finding of inquiry on 20.7.2009.
Respondent No.4 vide order dated 30.11.2009 imposed the penalty of removal of the applicant from service. The applicant submitted an appeal against this order, the gist of it being as follows:
Article 1:The applicant was imposed a penalty of debarring him from being considered for the recruitment of Group D for 3 years vide order dated 23.08.2005. This is a statement and not an allegation.
Article 2: The applicant did not deliver an I.L.C. addressed to Smt. Jayashree Acharya, a resident of Bola Village. The defence of the applicant is that Bola village does not fall in his delivery beat. The ASP/SSP had not issued any order to the applicant by way of route 6 OA.No.170/273/2012/CAT/Bangalore Bench list & beat map, village sorting list to the effect that the applicant should attend delivery in Bola village.
Article 3: The applicant has delivered Mumbai RL 192163 addressed to Sri. Brain Sandeep D'Silva to his father, Sri. lgnatius D'Silva on 05.06.2006. Both have no complaint against the applicant.
Article 4: The applicant has delivered Bangalore RL 4132 addressed to Sri. Sujaya Rao to his father, Sri.Babu Rao on 07.06.2006. Both have no complaint against the applicant.
Article 5: The applicant has delivered Karkala RL 25 addressed to Sri. Sridhar Poojary to his son, Sri. Srikanth on 20.05.2006. Both have no complaint against the applicant.
Article 6: The applicant has delivered Bangalore RL 47 addressed to Sri. Karunakara Moolya, to his wife, Smt.Surekha on 02.06.2006. Both have no complaint against the applicant.
c) The appeal filed by the applicant has been rejected. The revision petition filed by the applicant also stands rejected.
8. The respondents have filed their written statement wherein they have averred as follows:
a) As per G.I.M.H.A. OM No.134/20/68-AVD dated 20.08.1968, if previous bad record, punishment etc. of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it 7 OA.No.170/273/2012/CAT/Bangalore Bench should be made a specific charge in the charge sheet itself, otherwise any mention of past record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge sheet, would vitiate the proceedings. The Disciplinary Authority has, therefore, included the earlier punishment imposed on the applicant in Article No.1.
b) During the course of Inquiry, it was proved beyond doubt that Smt Jayashree Acharya, the addressee of the article is residing in the address for the past 7 years and receiving delivery of articles from Kedinje BO only. This also has been admitted by the applicant during the course of inquiry. He has also admitted that the address is nearer to Kallya PO, hence he had redirected the article to Kallya PO for delivery.
c) In respect of articles No. 3, 4, 5 and 6 of the charge, the applicant had delivered Registered letters to the persons other than addressees.
Registered articles are addressee specific and there was no reason to deliver them to other persons. The applicant has absolutely failed to deliver the articles to the correct addressees and has put the blame on an officer who expired long back.
d) The reviewing authority has gone through all the connected records before coming to the conclusion that the charge on the part of the applicant is grave in nature.
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OA.No.170/273/2012/CAT/Bangalore Bench
e) The Appellate Authority has considered the appeal and after going through the relevant documents & proper application of mind, has confirmed the penalty imposed on the applicant.
f) The applicant was given reasonable opportunity to defend himself. The procedures laid down in Rules have been complied with and there is no failure of justice or violation of provisions of the Constitution of India. The Appointing Authority has reached conclusions on the basis of inquiry and decisions taken on the gravity of offence. The charges on the part of the applicant impinging on his integrity and devotion to duty are extremely grave in nature. The Appellate Authority had examined all the points raised in the appeal, logically discussed them and found them not tenable and applicant rightly deserved dismissal from employment.
9. Heard learned counsels for the parties and perused the pleadings made by them.
10. The respondents have alleged that the applicant has violated Rules and Regulations relating to the Inland Post. A perusal of Rule 35 and Rule 36, of these rules contain the following provisions:
"35:Definition: The delivery of a postal article at the house or office of the addressee or to addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee is deemed to be delivered to the addressee under the Post Office Act. 9
OA.No.170/273/2012/CAT/Bangalore Bench
36. Delivery of registered articles - No registered articles of any kind will be delivered to the addressee unless and until he or his agent authorized in writing has signed a receipt for it, in the prescribed form which will be presented to him for signature by the postman who delivers the registered article."
11. A perusal of these rules and provisions clearly indicate that it was the responsibility of the applicant to deliver the registered article to the addressee only, and no registered article will be delivered to the addressee unless and until he or his agent authorized in writing, has signed a receipt for it, in the prescribed form which will be presented to him for signature by the postman who delivers the registered article. Apparently, as per the charges, no such procedure was followed by the applicant, who simply handed over the registered article to close relatives of the addressee and also failed to obtain receipt from the addressee.
12. The Disciplinary Authority has come to the conclusion that by failing to follow the rules relating to delivery of registered articles, the applicant deserves to be dismissed from employment with immediate effect.
13. At the time of passing this order, the Disciplinary Authority has observed as follows:
"I find truth in the charges, especially about delivery of four (4) regd. Letters delivered to other than addressees. The claim that A.S.P. late James Tauro had instructed him to deliver the articles to other than 10 OA.No.170/273/2012/CAT/Bangalore Bench addressees orally cannot be substantiated now as the officer is no more. Still C.O. has no remorse and claims innocence.
Further the official was charge sheeted vide no. F/PF/GDSMD/ Kedinje/06-07 dated 15/27-1-07 and awarded punishment of debarring from being considered for recruitment to group 'D' for a period of three years from the date of the order for unauthorised absence. He has not at all improved and claims his innocence. In his defence statement the C.O. has not claimed any ground for consideration. The very tone and tenor of the defence is of challenging the department and its rules. I do not think that such a person is fit to be retained in the department in the present scenario. Therefore I pass the following order to meet the ends of justice.
ORDER I, K.R.N. Moorthy, Asst. Supdt. Posts, Karkala Sub Division, Karkala hereby order that Sri. K. Umesh Shenoy, GDSMD[POD), Kedinje B.O. a/w Nitte S.O. is dismissed from employment with immediate effect."
14. The order passed by the Disciplinary Authority indicates one of the reasons for passing of the order is the fact that the tone and tenor of the applicant was challenging the department and its rules and claiming innocence. The Disciplinary Authority has cited this as one of the reasons to conclude that the said person is not fit to be retained in the department in the present scenario.
15. After going through the charge memo and the orders passed by the Disciplinary Authority, Appellate Authority and Revisional Authority in 11 OA.No.170/273/2012/CAT/Bangalore Bench this case, there is no doubt that the applicant had violated the rules of the postal department concerning delivery of Registered Articles to persons other than the addressee.
16. However, the following mitigating factors should have been considered by the Disciplinary Authority, before passing the harsh penalty of dismissal from service:
a) There has been no complaints from any of the addressees about non-
delivery or wrong delivery of the registered postal articles and all the addressees had admitted receipt of the postal articles through their near relatives to whom the postal article had been delivered by the applicant.
b) The first article of charge mentions about punishment awarded to the applicant on the ground of unauthorised absence for some time. For that particular misconduct, the applicant has already been punished and a penalty of debarring him from being considered for the recruitment of Group 'D' post for 3 years had been imposed on him. This misconduct related to unauthorised absence and was nowhere related to the misconduct of delivery of postal articles to unauthorized persons in violation of rules. Hence, it does not seem to be appropriate to consider the earlier penalty on account of unauthorized absence as an aggravating factor, in order to impose a harsh penalty of dismissal from service in the present case.
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c) The tone and tenor of the applicant while challenging the department and its rules and claiming innocence in the matter can certainly not be cited as a valid ground for imposing a harsher penalty.
17. Keeping in view the above points, the quantum of punishment imposed on the applicant is unduly harsh and not commensurate with the misdemeanours of the applicant in the present case. The quantum of punishment, therefore, certainly needs to be reviewed by the Disciplinary Authority.
18. Consequently, the orders dated 30.11.2009 imposing the penalty of dismissal, the orders dated 06.08.2010 rejecting the appeal, and the orders dated 25.11.2011 rejecting the revision petition filed by the applicant are quashed and set aside.
19. The Disciplinary Authority shall de novo consider the report of the Inquiry Officer, and pass a detailed speaking order after re-hearing and reconsidering the submissions made by the applicant (charged official). The entire exercise shall be completed within a period of six weeks from the date of receipt of a certified copy of this order.
20. Accordingly the OA is disposed of with the above directions. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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