Central Administrative Tribunal - Ernakulam
K.S. Mayalekshmi vs Union Of India on 5 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 878 of 2009
w i t h
Original Application No. 880 of 2009
Friday, this the 05th day of August, 2011
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. O.A. No. 878 of 2009
K.S. Mayalekshmi,
W/o. K. Radhakrishnan Nair,
Sub Postmaster,
Kayamkulam College P.O., Kayamkulam,
Residing at : "Lekshmi Priya",
Thulamparambu South, Harippad P.O. ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India, represented by
The Secretary to the Govt. of India,
Ministry of Communications,
(Department of Posts, New Delhi.
2. The Superintendent of Post Offices,
Mavelikkara Division, Mavelikkara : 690 101
3. The Director of Postal Service, Central Region,
Office of the Postmaster General,
Cochin : 682 018
4. The Chief Postmaster General,
Kerala Circle, Department of Posts,
Thiruvananthapuram.
5. Shri P.K. Balakrishna Pillai,
(Retd.) Superintendent of Post Offices,
(Mavelikkara), Parameswarath,
Payyanallur P.O., Noornad, Alleppey District ... Respondents.
(By Advocate Mr. M.V.S. Nampoothiri, ACGSC)
2. O.A. No. 880 of 2009
K.S. Mayalekshmi,
W/o. K. Radhakrishnan Nair,
Sub Postmaster,
Kayamkulam College P.O., Kayamkulam,
Residing at : "Lekshmi Priya",
Thulamparambu South, Harippad P.O. ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India, represented by
The Secretary to the Govt. of India,
Ministry of Communications,
(Department of Posts, New Delhi.
2. The Superintendent of Post Offices,
Mavelikkara Division, Mavelikkara : 690 101
3. The Director of Postal Service, Central Region,
Office of the Postmaster General,
Cochin : 682 018
4. The Chief Postmaster General,
Kerala Circle, Department of Posts,
Thiruvananthapuram.
5. Shri P.K. Balakrishna Pillai,
(Retd.) Superintendent of Post Offices,
Parameswarath, Payyanallur P.O.,
Noornad, Alleppey District ... Respondents.
(By Advocate Mr. A.D. Ravindra Prasad, ACGSC)
These applications having been heard on 19.07.2011, the Tribunal on
05.08.11 delivered the following.
O R D E R
HON'BLE MR. K GEORGE JOSEPH, ADMINISTRATIVE MEMBER These O.As have been filed by the same applicant. Having certain common facts and issues they are heard together and are disposed of by this common order.
2. The applicant is presently working as Sub Postmaster, Kayamkulam College P.O, Kayamkulam. While she was working as Postal Assistant (PA) at Kayamkulam H.O, she was given a memo asking her to credit voluntarily an amount of Rs. 643/- as her share of the loss suffered by the department. She was also asked to show cause why disciplinary action should not be taken against her within 7 days of receipt of the memo. The applicant sought certain copies of documents to enable her to submit her representation. In response, she was asked to peruse permissible documents on 10.08.2006. But she was not relieved on that date for perusal of the documents. About 2 years later, there was a case of misappropriation by one Smt. B. Lalitha. In connection with that also, the applicant was issued with a show cause notice dated 30.04.2008 She submitted her reply. However, she was transferred out of her place of posting at H.O, Kayamkulam. The said transfer order was challenged by filing O.A. No.270/2008 which was however, dismissed by order dated 22.10.2008. The Writ Petition filed before Hon'ble High Court of Kerala challenging the order of this Tribunal was also dismissed. Subsequently, she was issued with a memorandum of charges dated 04.11.08. The allegation against the applicant is that one Shri S. Aji, the counter P.A., on 16.08.05 collected an amount of Rs. 264/- from Shri Brijesh Kumar towards payment of his mobile phone bill. The amount collected by Shri Aji was included along with the ordinary telephone bills by the Kayamkulam H.O. The mobile of Shri Brijesh Kumar was disconnected by the BSNL for non payment. Actually the Post Office was not authorised to collect mobile phone payments. He approached the Consumer Dispute Redressal Forum (CDRF) by filing O.A. No. 132/2005 claiming compensation. The Hon'ble CDRF in its order dated 28.11.2006 directed the Postmaster, Kayamkulam to pay Rs. 3500/- to the claimant as compensation with interest and cost of Rs. 600/-. The applicant was working as in-charge Deputy Postmaster on the day the mobile payment was accepted. It is alleged that laxity in supervision on the part of the applicant had contributed to the loss sustained by the department and that therefore, the applicant failed to maintain devotion to duty by not detecting the error on the spot as immediate supervisor. The applicant denied the allegation and submitted a reply dated 03.01.2009 to the 2nd respondent. The applicant had requested that a departmental enquiry be conducted under Rule 16 of the CCS (CCA) Rules, 1965, before final decision is taken in that regard. The request for conducting the departmental enquiry was not responded. But the applicant was imposed with a penalty of recovery of Rs. 643/- from her pay. Her appeal against the aforesaid penalty was rejected by the appellate authority. Aggrieved, the applicant has filed O.A. No. 878/2009. In this O.A, the applicant has mainly prayed for refund of the amount of Rs. 643/- recovered from her salary with interest calculated at 12% per annum from the date it was recovered till the date of full and fina settlement of the case.
3. Vide order dated 05.11.2008, a penalty of withholding of an increment for a period of 2 years without cumulative effect was imposed on the applicant for not giving the statement to the investigating officer on two occasions in the case of misappropriation by one Smt. B. Lalitha. The appellate authority confirmed the order of penalty vide order dated 28.10.2009. Aggrieved, the applicant has filed O.A. No. 880/2009 with the prayer to quash the orders impugned therein.
4. The main contention in O.A. No. 878/2009 raised by the applicant is that her request for conducting an enquiry was not considered or even denied by the disciplinary authority before imposing the penalty and that the disciplinary authority had not taken into consideration the instructions contained in Directorate letter No. C-3201/07/2006-VP dated14.01.06 that the penalty of recovery can be imposed on a Government servant only when it is established that he is directly responsible for the negligence or breach of orders causing financial loss. Since in O.A. No. 880/2009 also the main contention of the applicant is that the disciplinary authority had not considered the question whether an enquiry is at all required to be conducted or not an no decision in that regard had also been arrived at.
5. The respondents in their reply in both the O.As maintained that a detailed enquiry was not needed if the disciplinary authority had decided to impose minor penalty. The applicant had not cooperated with the investigating officers by giving a statement.
6. We have heard learned counsel appearing for the applicant and for the respondents and perused the records. Mr. A.D. Ravindra Prasad, learned counsel submits that he is appearing in O.A. No. 880/09 and Mr. M.V.S. Nampoothiri enters appearance in O.A. No. 878/09 on behalf of the respondents. This submission is accepted.
7. The applicant has been subjected to two disciplinary proceedings under Section 16 of the CCS (CCA) Rules, 1965 and was imposed with a minor penalty in each case. In the case under consideration in O.A. No. 878/2009, the applicant has not requested specifically for a detailed enquiry. But in the case under consideration in O.A. No. 880/2009, the applicant had specifically requested for a detailed enquiry. The stand of the respondents is that in the instant cases there was no necessity for a prolonged and detailed oral enquiry. The disciplinary authority is vested with a discretion to hold or not to hold an enquiry when a minor penalty is proposed to be imposed. But this discretion should be exercised by the authority in a reasonable manner considering the facts of each case and not capriciously or arbitrarily. The Hon'ble Supreme Court in (2011) SCC (L&S) 186 held as under :
".... It is settled law that Court's power of of judicial review in such cases is limited and Court can interfere where an authority hold the enquiry proceedings in a manner inconsistent with the rules and natural justice or violation of statutory rules prescribing a mode of enquiry and imposing the punishment or where the conclusion of findings reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached."
(emphasis supplied)
8. From the facts of O.A. No. 878/2009, it emerges that the applicant was on temporary charge of Deputy Postmaster for the first time and only for 2 days from 16.08.2005 onwards. She was the immediate supervisor of Shri S. Aji, the Counter P.A. on 16.08.05 who had collected an amount of Rs. 264/- from Shri Brijesh Kumar in connection with his mobile No. 9447718401. He had not sought any guidance from her, instead, on the guidance of the Postmaster he had accepted the payment for the mobile bill although there was no instruction for receiving payment of mobile phone bills in Post Office. The applicant had no role in the acceptance of the mobile bill. But she has been held responsible for laxity in supervision by not detecting the error on the spot as the immediate supervisor. She had requested the authority to provide her with the report of the enquiry officer and a copy of the written statement obtained, in order to enable her to submit her representation vide letters dated 31.07.06 and 14.08.06. The TPH schedule dated 16.08.05 which, it was alleged, the applicant had failed to verify, was said to be not available as per the report of the Postmaster, Kayamkulam, dated 15.12.2008. From the above, it is clear that the applicant who had no role in accepting the payment for the mobile bill, was not provided with a copy of TPH schedule based on which she was held responsible for supervisory lapse. If the concerned officer acted promptly when the remitter of the mobile bill approached the Post Office on 26.08.05 for getting back the money remitted by him, filing of complaint before the CDRF could have been avoided and the question of awarding compensation would not have arisen as well. The applicant is partly held responsible for the mistake committed by the Counter P.A. as per the instructions directly given to him by the Postmaster, bypassing the applicant, the Deputy Postmaster, who is his immediate supervisor. Apparently, there is violation of principles of natural justice in not providing the applicant with the evidence to hold her responsible for the mistake which was committed by the junior without her knowledge and also in not considering the fact that as she was holding the post of Deputy Postmaster just for 2 days, it was not possible for her to take any remedial action which would have saved the department from the payment of compensation to Shri Brijesh Kumar. There is no evidence in law as of now based on which the applicant can be held partly responsible for the loss incurred by the department. The disciplinary authority should have held a detailed enquiry to arrive at the truth. In our considered view, the non holding of a detailed enquiry by the disciplinary authority in the facts and circumstances of O.A. No. 878/2009 is violative of principles of natural justice as held by the Apex Court in 2011 SCC (L&S) 186 (supra).
9. In O.A. No. 211/2010, this Tribunal observed that the discretion vested with the disciplinary authority to hold an enquiry or not in given set of facts should be reasonable and should not be capricious or arbitrary. In case, it is decided in a capricious and arbitrary manner, the same is subjected to judicial review. Further, this Tribunal in the aforesaid O.A. held as under :
"8. The Bombay Bench of the Tribunal has considered a similar issue in O.A.No.157/2007 decided on 12th April, 2011. Though the consideration thereunder was with reference to Rule 10(b) of the All India Services (Discipline & Appeal) Rules, 1969 which is similar to Rule 16(1) of the CCS(CCA)Rules, 1965, under examination. The Tribunal referred to the decision of the Apex Court in Food Corporation of India case(2001)1 SCC 165) and after taking into consideration of the relevant rules held:-
"Even though holding an inquiry in the manner as in sub- rule 23 of Rule 8 is mandatory if the punishment proposed is to withhold increments of pay for a period exceeding 3 years or with cumulative effect for any period or has to adversely affect the amount of pension payable to him. There is, however, a discretion vested with the Disciplinary Authority to hold an inquiry in other cases. In other words, not only in the case of imposing a major penalty, but also in the case of imposition of a minor penalty of barring of increment with cumulative effect or which has got the effect of affecting the amount of pension etc., the same procedure as contemplated for imposing a major penalty is required to be taken. In other types of penalty proposed to be imposed which are minor in nature, there also an inquiry at the discretion of the officer would be held provided the Disciplinary Authority is of the opinion that such inquiry is necessary. Thus, the opinion to be formed by the Disciplinary Authority being one conferred on him by Rule it is necessarily to be exercised in an objective manner and not subjective. Even though a right as such in express term is not conferred on an employee to request for conducting any such inquiry in the type of cases as falling under the last limb of Rule 10(b), it is settled law that when a discretion is vested with the authority to form an opinion as to whether an inquiry should be held or not, either he can exercise his powers suo moto or such powers can be invoked by a person who may be proceeded with on a disciplinary action. In that event, the Disciplinary Authority is bound to apply his mind on the request made by the employee which is only inviting the Disciplinary Authority to exercise his discretion to form an opinion as to whether an inquiry should be held or not. Once he is invited to decide whether an inquiry should be held or not, there is no two alternative, but to express an opinion with reference to the factual situation and the materials on record and say whether in his opinion an inquiry as requested by the delinquent is required to be held or not. This opinion is to be supported by reason so that if the decision made is capriciously taken or without application of mind or for extraneous consideration as may be turned out, which are normal grounds available to attack in quasi judicial order, then a judicial review is permissible on the decision so taken. Therefore, when such an order is passed, which is amenable to judicial review, it is incumbent on the Disciplinary Authority to pass an order, in other words, by not passing an order thereby takes away the right of the employee to question the order if passed, on valid grounds."
9. We may, in this connection also, refer to a similar view taken by the Coordinate Bench of this Tribunal in O.A.247/10 and connected cases dated 22.9.2010 - S.V.Santhoshkumar & others Vs. The Comptroller and Auditor General of India & others and two other decisions of this Tribunal in O.A.768/10 and connected cases dated 15.11.2010 -
Krishnadas A.K & others Vs. The Comptroller and Auditor General of India & others and O.A.872/09 dated 15.3.2011 - Santhosh Kumar S.V. Vs. The Deputy Comptroller and Auditor General & others. In O.A.247/10 and connected cases decided on 22.9.2010 this question was considered and there are observations which also supports the same view as we have taken that the discretion is vested on the Disciplinary Authority to hold an inquiry before imposing a minor penalty not covered by (1-A) of Rule 16. It was held in these two batch of cases, however, after examining the particular facts of these cases that decision not to hold an inquiry is vitiated as circumstances warrants holding of an inquiry. In other words, it was held that the decision not to hold an inquiry in the given set of facts is arbitrary and on that ground the order imposing punishment was set aside leaving open the right of the employer to proceed to hold an inquiry and take appropriate action, if so advised.
10. Therefore, we have to examine as to whether in the present case imposition of the penalty without holding an inquiry can be considered to be a reasonable exercise of the discretion by the authority concerned or is it arbitrary. In O.A.247/10 and connected cases wherein para 8 of the order it was held that even in cases where a minor penalty is imposed, the Disciplinary Authority has to indicate the reasons in writing as to why the inquiry is dispensed with. That is a case where there is a specific request to conduct an inquiry made by the employee but the authority did not hold an inquiry but proceeded to impose the penalty relying on the materials available on records. The materials which were relied on by the Disciplinary Authority were the video recordings and statement made mentioned of in the punishment order. It was the specific contention on behalf of the applicants that the applicants could not prove their innocence. The veracity of the video recordings and statement mentioned in the punishment order could not be verified in the absence of a formal inquiry. In the present case also, the only evidence based on which the punishment is imposed on the applicant are the same statement and the video clippings only. Therefore, on the available materials on record it can very well be said that the decision of the authority not to hold an inquiry and imposing a punishment is arbitrary and is not based on its discretion exercised as contemplated under Rule 16 (1) (b) of the CCS (CCA) Rules, 1965. On the short ground this application is liable to be allowed. It is contended that even the charges as levelled against the applicant are not sustainable in the eye of law. In the above view, we are not going into the merits of the other contentions raised as the final decision to be taken by the authority being subject to such inquiry has to be held as directed, it will be open to the applicant to raise such contentions as and when occasions warrants.
11. In the result, we hold :-
(i) Though it is not incumbent on the Disciplinary Authority to hold an inquiry in every case in which the applicant seeks for such an inquiry to be held nevertheless it is incumbent on him to consider such request and exercise the discretion in a reasonable manner based on materials on record and decide whether an inquiry should be held or not.
(ii) The decision of the Disciplinary Authority in deciding not to hold an inquiry should not be capricious or arbitrary and the orders passed are subject to judicial review.
(iii) The power to hold an inquiry by the Disciplinary Authority can either be exercised suo moto or on the request by the employee concerned.
Such request, if made, the authorities are bound to take a decision as to whether an inquiry should be held or not and give his reasons thereof.
12. In the particular facts and circumstances of the case and for parity of reasons as held in O.A.247/10 and connected cases by another Bench of this Tribunal, we hold that based on the materials available on record it has to be held that the decision taken by the authority not to hold an inquiry is arbitrary and, therefore, liable to be set aside. In the result, we set aside the order imposing the punishment leaving open the right of the respondents to proceed to hold an inquiry from the stage of holding an inquiry and to take a decision in accordance with the law. The applicant will be entitled for restoration of the monetary benefits on the expiry of three months but in case final orders are passed such benefits will be subject to the same."
(emphasis supplied)
10. In O.A. No. 880/2009, the applicant had sought for a detailed enquiry to be held. It was incumbent upon the disciplinary authority to consider her request and exercise his discretion in a reasonable manner based on materials on record and to decide whether an enquiry should be held or not. He was bound to take a decision as to whether an enquiry should be held or not and give reasons thereof. The disciplinary authority acted in an arbitrary and unreasonable manner in taking the decision not to hold an enquiry as was requested without reasons thereof and in not communicating the same to the applicant.
11. In the light of the discussion above, the impugned orders in O.A. No. 878/09 are liable to be set aside for being violative of the principles of natural justice; the impugned orders in O.A. No. 880/09 are liable to be set aside on the ground of arbitrariness/capriciousness in exercising the discretion of the disciplinary authority in deciding not to conduct a detailed enquiry inspite of request from the applicant without giving any reason thereof.
12. In the result, we set aside Annexures A-1 and A-2 orders in O.A. No. 878/09 for recovery of Rs. 643/- from the applicant and Annexures A-1 and A-2 orders in O.A. No. 880/09 imposing the penalty of withholding of annual increment for a period of two years with cumulative effect. The other contentions raised in the O.As are left open. The right of the respondents to proceed to hold an enquiry from the stage of holding an enquiry and to take a decision in accordance with the law in both the O.As are also left open. The applicant will be entitled for refund of Rs. 643/- without interest and restoration of the withheld increment as if Annexures A-1 and A-2 orders had not been issued at all on the expiry of four months from the date of receipt of a copy of this order, but in case final orders are passed within the time limit indicated, such benefits will be subject to the same.
13. The O.As are allowed to the extent indicated above. No order as to costs.
(Dated, the 5th August, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.