Central Administrative Tribunal - Bangalore
D S Soma vs D/O Posts on 12 February, 2024
1
OA.No.121/2022/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00121/2022
ORDER RESERVED ON:19.01.2024
DATE OF ORDER: 12.02.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
D.S. Soma,
S/o Sannahaidaiah,
Aged 32 years,
Ex-GDS BPM, Nallurpala BO,
a/w Hunsur S.O-571 105,
Mysuru Division.
Residing at Dharmapura Village and Post,
Bilikere Hobli,
Hunsur-571 189,
Mysuru Division. ....Applicant
(By Advocate 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 Postmaster General,
S.K. Region,
Bengaluru - 560001.
3. The Senior Superintendent of Post Offices,
Mysuru Division,
Mysuru -570 020. ....Respondents
(By Shri K. Gajendra Vasu, Sr. Panel Counsel)
2
OA.No.121/2022/CAT/Bangalore Bench
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 reliefs:
a) To quash the Memo No. F6/02/18-19, dated 24.8.2021 (Annexure A-
5) issued by Respondent No.3 vide which a penalty of "dismissal from engagement with immediate effect" has been imposed on the applicant.
b) To quash the order No.SK/STA/9-3/23/2021/I dated 04.01.2022 (Annexure A-7) issued by Respondent No.2 vide which the appeal filed by the applicant against the penalty imposed on him has been rejected.
c) To direct the respondents to reinstate the applicant in service treating the period from 14.12.2018 till the date of his reinstatement as on duty, with the benefit of continuity of service, extending all consequential benefits accordingly.
d) Grant such other relief as deemed fit, having regard to the facts and circumstances of the case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The applicant was working in the postal department as GDS BPM (Gramin Dak Sevak Branch Postmaster), Nallurpala BO a/w Hunsur SO in Mysuru Division from 30.09.2017 to 14.12.2018. The applicant was charge sheeted vide Memorandum dated 27.06.2019. The gist of the 4 articles of charge against the applicant are as follows: 3
OA.No.121/2022/CAT/Bangalore Bench i. It was found that he kept office cash short by Rs. 22,483/- on 13.12.2018 during inspection by Mail Overseer II, Hunsur Sub-Division.
ii. He had accepted Rs. 200/- from Smt. Bharathi, towards deposit in to her R.D. account on 07.12.2018 but failed to incorporate the same into Post Office account.
iii. He had accepted Rs. 10,000/- from Smt. Deviramma towards deposit in to her S.B. account on 18.08.2018 but failed to incorporate the same into Post office accounts.
iv. He had accepted Rs. 2,000/- from Smt. Sarala M.T., towards her R.D. account on 12.12.2018 but failed to incorporate the same in to the branch office account.
b) An inquiry was held into the articles of charge against the applicant and the Inquiry Officer submitted his report dated 05.07.2021 holding that all the articles of charge have been proved against the applicant. The Respondent No. 2 issued an order dated 06.07.2021 to the applicant, enclosing a copy of the inquiry report, to submit his representation to the findings of inquiry, within 15 days. The applicant submitted his representation on the findings of inquiry on 05.08.2021 explaining as to how the findings of inquiry are not tenable in law. After considering the findings of inquiry, the Respondent No. 3 passed an order dated 24.08.2021 imposing the penalty of dismissal of the applicant from engagement with immediate effect.
4
OA.No.121/2022/CAT/Bangalore Bench
c) The applicant preferred an appeal to the Respondent No. 2 against the order of penalty imposed on him vide appeal dated 28.09.2021 (Annexure-A6). Thereafter, the Respondent No. 2 passed an order dated 04.01.2022 rejecting the appeal of the applicant, thereby confirming the order of the Disciplinary Authority.
d) The applicant submits that the 1st article of charge refers to shortage of cash of Rs. 22,483/- on 13.12.2018 at the time of inspection of Post Office by the Mail Overseer. The applicant had the cash in his custody and he had kept the same at his house for safety purpose. He was not allowed to go home and bring the cash. The applicant had no facility to keep heavy cash in the Post Office. The applicant has remitted the cash to the Post Office under UCR account as directed by the Mail Overseer, the next day, i.e., on 14.12.2018 and obtained the receipt. The infraction or violation of rule, if any, is too technical and trivial and deserves to be ignored.
e) The 2nd article of charge is that the applicant has received Rs. 200/-
from the depositor, Smt. Bharathi towards her R.D. account on 07.12.2018, but did not incorporate the same in to the post office account. There is no complaint from the depositor, Smt. Bharathi against the applicant. Further, she has not given the money in person but deposited through her sister-in-law. Her sister-in-law was not examined in the inquiry. The voucher was handed over by the Postman, stamped with the date inadvertently, which was recorded in the error book. The error book was not produced in the inquiry. As such, it 5 OA.No.121/2022/CAT/Bangalore Bench cannot be held that the article of charge has been proved against the applicant.
f) The 3rd article of charge is that Rs. 10,000/- received from Smt. Deviramma towards her S.B. account on 18.08.2018 was not incorporated in the accounts of the Post Office. Again, in this case also, there is no complaint from Smt. Deviramma and she has not attended the inquiry, though her name was cited in the list of witnesses. The explanation of the applicant is that the grandson of Smt. Deviramma, who came at the closing hours of the post office, had tendered pass book with vouchers and after entry and date stamping, did not pay cash. He did not turn up later. Therefore, the applicant has recorded the transaction in the error book and pasted the vouchers in the error book. The applicant has shown the same to the Inspector, Hunsur, during inspection and the Inspector had taken the error book with vouchers along with him assuring reconciliation. The error book, which was a material evidence, was not produced in the inquiry. In any event, the prime witness, Smt. Deviramma was not examined in the inquiry and therefore, it cannot be held that the 3rd article of charge has been proved against the applicant.
g) The 4th article of charge is that Rs. 2000/- accepted by the applicant from Smt. Sarala M.T. on 12.12.2018 towards the R.D. account, was not incorporated in the books of the Post Office. There is no complaint from Smt. Sarala M.T. against the applicant. Further, she has not attended the inquiry. As such, there is no material in support of the Article No. 4 of the charge. Still, the Inquiry Officer, the Respondents 6 OA.No.121/2022/CAT/Bangalore Bench No. 3 and 2 held that the charge is proved against the applicant without any basis.
h) The Inquiry Officer/the respondent Disciplinary Authority have relied upon the so called admission made in the statements alleged to have been given by the applicant before the investigating official/Inspector of Posts/Mail Overseer to conclude that the articles of charge have been proved against the applicant. These statements have no evidentiary value as there was no cross examination of the concerned witness who gave statement before the investigating official. The Inquiry Officer has relied upon inadmissible evidence for his conclusions. Therefore, the inquiry has been vitiated and the findings therein are not sustainable in law.
i) The Appellate Authority i.e., the Respondent No. 2 has failed to consider whether the findings are based on evidence, whether the inquiry has been held in accordance with the rules, whether the findings are justified and whether the penalty imposed is excessive, etc. and passed the order. The Appellate Authority has failed to discharge his statutory functions in accordance with the rules.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant Sri D. S. Soma working as Gramin Dak Sevak Branch Post Master, Nallurpala BO a/w Hunsur SO, was proceeded inquiry under Rule 10 of the GDS (C&E) Rules, 2011. In the end all the article of charges were held as proved and a penalty of dismissal from service 7 OA.No.121/2022/CAT/Bangalore Bench was awarded to him. He preferred an appeal which was rejected. Hence he has filed the present OA No: 121 of 2022 before this Tribunal.
b) Office cash is public money and BPM is its custodian. During off hours he is allowed to make his own arrangement for safe custody of office cash. However, during working hours, he is supposed to produce the same, whenever asked for inspection or checking. He should also be in a position to utilize the office cash instantaneously for withdrawal transactions and money order payments. During working hours if he does not keep cash in office, members of public will have to wait for cash unnecessarily for a long period. This is nothing but dilatory tactics adopted by applicant to cause greater inconvenience to public, leading to dereliction of duty. He made good the amount on 14.12.2018 after a lapse of one day which amounts to misuse of public fund for entire day and making good on subsequent day by availing sufficient time to arrange cash from outside that too on directions of mail overseer. If cash is not produced during inspection or verification, there are chances of misuse of public money in the hands of private parties. Hence it is not a technical and trivial mistake as justified by the applicant.
c) The amount received/deposited is entered in the pass book with date stamp impression. The perception of the depositor is that the deposit transaction is completed as per her RD pass book. She is totally unaware of departmental procedure of crediting amount to Government accounts. Hence account holder has no scope to lodge a complaint at all. The charge is about non accounting of amount entered in the passbook by the applicant. During mandatory question by IO, copy of 8 OA.No.121/2022/CAT/Bangalore Bench which is marked as Annexure-R1, while answering question number 15, BPM himself has admitted that he has entered amount in the pass book in his own handwriting. Once the amount is entered in the pass book with date stamp impression, it is the duty of the applicant to credit the amount to Department accounts. Hence based on deposit entry and date stamp impression in the pass book made by applicant, responsibility is fixed, as pass book is the vital document in the hands of customer to establish that deposit was made in the account and documents do not lie. Once amount is entered in the pass book with date stamp impression, department is liable to refund the amount to account holder irrespective of whether amount is collected by official to department or not. Hence in the instant case, documentary evidence has more weight than deposition of witness and as applicant is face of the department he is responsible for non-credit. Error book which applicant claims to have entered was not requested by him during inquiry as defence document to sustain his claim.
d) Deviramma did not attend the inquiry because she had nothing to say beyond what was said in her statement. Applicant claims that after making deposit entry in the passbook and date stamp impression, grandson of Deviramma did not give the amount to him. He left the office and did not return. Having experience of more than five years as BPM, applicant is well aware about departmental procedures, that deposit entries should be made in the passbook only after collecting the amount from customer. Hence averments of the applicant that grandson of depositor left post office after making entries in the pass book 9 OA.No.121/2022/CAT/Bangalore Bench without tendering cash cannot be accepted. The alleged deposit of Rs.
10000/- (Rupees ten thousand only) was made on 18.08.2018. Moreover there was another withdrawal transaction for Rs. 2000/- (Rupees two thousand only) done in the pass book on 08.09.2018 by applicant. Balance after transaction is struck as Rs. 18,384/-. If deposit entry were made in pass book without tendering amount, during subsequent transaction, applicant would have certainly scored out the previous transaction, which he did not, because he wanted depositor to have illusion that amount was credited into her account. Once subsequent transaction is completed, it is implied that previous transaction is undisputable in all respects. Thus he made the account holder to believe that deposit transaction of Rs. 10,000/- in the account was in order. Copy of the passbook is produced at Annexure R-3.
e) In the pass book deposit entry is made by applicant. Once pass book entry is made by applicant with impression of date stamp, he is responsible for crediting the amount to Government accounts and department is liable to refund the amount to account holder as the pass book is vial document in the hands of account holder to establish the deposit made into account. Whether amount is physically collected by applicant from account holder or not, he is personally held responsible for the entries made in the passbook. In the instant case documentary evidence, therefore, has more weight.
f) The applicant has averred that the Inquiry Officer relied on admissions made in the statements alleged to have been given by the applicant before the investigation official. When admissions are made by 10 OA.No.121/2022/CAT/Bangalore Bench applicant before investigating officer, applicant cannot deny any charges as he has admitted that pass book entries are made by him in body of OA also. Rather than statements of witnesses, records speak the truth and employer will fix responsibility on employee for each and every entry made in the pass book as department is liable for refund of the same. The applicant cannot escape by giving reasons that account holder personally did not attend office for deposit or did not tender the cash. Witnesses did not attend inquiry because they had nothing to say beyond whatever was stated in their statements. Hence inquiry is not vitiated.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant had been issued with a charge memo in which there were allegations that he had not properly accounted for the amounts received from various depositors in the post office accounts and thereby committed a financial fraud. It was also alleged that the applicant had a shortage of cash of Rs. 22,483/- at the time of inspection of the post office by the Mail Overseer. All the charges have been found as proved by the Inquiry Officer as well as the Disciplinary Authority.
6. The major defence of the applicant to these allegations relate to the fact that the primary depositors had not appeared before the Inquiry Officer to substantiate the allegations made in the charge memo. The Inquiry Officer had relied upon the statements made by these depositors before the Mail 11 OA.No.121/2022/CAT/Bangalore Bench Overseer II, Hunsur Division, as well as the entries in the pass books of the depositors concerned.
7. The learned counsel for the applicant has vehemently argued that since there was no complaint from the depositors, and they had also not attended the inquiry proceedings, the depositors had not been examined in the inquiry and there was no cross-examination of these prime witnesses. His contention was that the statements recorded before the Mail Overseer in the preliminary enquiry, behind the back of the applicant, without any opportunity of cross examination by him, have no evidentiary value and cannot be relied upon as evidence to prove the allegations against the applicant.
8. The respondents have stated that apart from the statements made by the depositors before the Mail Overseer at the time of preliminary inquiry, the pass books indicating the deposit entries along with impression of date stamp have been produced during the inquiry and relied upon as evidence. The applicant has also admitted in the body of the OA that the pass book entries were made by him. Keeping this in view, these records constituted reliable evidence which has been relied upon by the Disciplinary Authority to arrive at the conclusion that all the articles of charges are proved against the applicant.
9. It is observed from the proceedings of the Inquiry Report that the depositors viz., Smt. Deviramma (Article III) and Smt. Sarala M.T. (Article IV) did not turn up for inquiry despite efforts made by the postal authorities in the form of issuing of summons to these depositors through several notices. Their statements were recorded in the preliminary inquiry before the Mail 12 OA.No.121/2022/CAT/Bangalore Bench Overseer. However, the pass books in question do form an important piece of evidence. The pass books indicated the entries made by the applicant along with the date stamp. The contention of the applicant that the entire inquiry is based upon 'no evidence' cannot be countenanced. There is enough material evidence to indicate that the applicant had accepted the deposit amount from the deposit holders and made relevant entries in the pass books of the depositors.
10. In a departmental inquiry, the quality of evidence available has to be examined and appreciated by the Disciplinary Authority and the Appellate Authority. This Tribunal is not required to review the quality of the evidence which has been evaluated by the Disciplinary and the Appellate authorities.
11. In B.C. Chaturvedi v. Union of India & Ors. ((1995) 6 SCC 749), a three Judge Bench of the Apex Court has held that power of 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 eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was 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 the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the 13 OA.No.121/2022/CAT/Bangalore Bench 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 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.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued." 14
OA.No.121/2022/CAT/Bangalore Bench
12. The Apex Court in the case of State Of Andhra Pradesh & Ors vs Chitra Venkata Rao on 29 August, 1975 (1975 AIR 2151, 1976 SCR (1) 521) has observed as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable 15 OA.No.121/2022/CAT/Bangalore Bench person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
13. The Honourable Apex Court in Union of India v. P. Gunasekaran, (2015) 2 SCC 610 on 19 November, 2014 had observed 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 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;16
OA.No.121/2022/CAT/Bangalore Bench
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:
a) re-appreciate the evidence;
b) interfere with the conclusions in the enquiry, in case the same has
been conducted in accordance with law;
c) go into the adequacy of the evidence;
d) go into the reliability of the evidence;
e) interfere, if there be some legal evidence on which findings can be
based
f) correct the error of fact however grave it may appear to be;
g) go into the proportionality of punishment unless it shocks its
conscience."
14. In the present case, the enquiry has been held by a Competent Authority, according to the procedure prescribed in that behalf and there is no violation of the principles of natural justice in conducting the proceedings. The Disciplinary Authority has come to the conclusion based upon the available documentary evidence, that the applicant had indeed been guilty and failed to maintain absolute integrity and devotion to duty while handling the deposits made by various depositors in the Post Office. The appeal filed against the penalty order passed by the Disciplinary Authority has been duly considered and then upheld by the Appellate Authority, through a detailed speaking order.
17
OA.No.121/2022/CAT/Bangalore Bench
15. The charges proved against the applicant are certainly grave since they indicate a lack of integrity which is crucial to the functioning of the Postal Department. The action of the applicant betrays the trust imposed on him both by the Postal Department as well as by the public, as a public functionary, while handing money which is the property of the depositors. The penalty of dismissal from engagement imposed on the applicant cannot be considered as shockingly disproportionate given the facts and circumstances of the case.
16. Keeping the above points in view, the OA lacks merit and deserves to be dismissed.
17. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/