Central Administrative Tribunal - Ernakulam
N. Suresh Babu vs Union Of India on 27 November, 2015
Author: P. Gopinath
Bench: P. Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 1107 of 2012
Friday, this the 27th day of November, 2015
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
N. Suresh Babu, (formerly post man Ajengo Post Office),
Saranya, Vettiyara PO, Neyyanttinkara,
Thiruvananthapura District. . . . . Applicant
(By Advocate : Mr. S.M. Prasanth)
Versus
1. Union of India, represented by Secretary
to the Ministry of Posts and Telegraphs, New Delhi.
2. The Chief Postmaster General, Kerala Circle,
Thiruvananthapuram - 695 033.
3. The Senior Superintendent of Post Offices,
Thiruvananthapuram North Division,
Thiruvananthapuram - 695 001. . . . . Respondents
(By Advocate : Mr. N. Anilkumar, Sr. PCGC (R))
This application having been heard on 9.11.2015, the Tribunal
on 27.11.2015 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member -
This application has been filed by the applicant for a declaration that the disciplinary proceedings against the applicant were conducted in violation of the statutory rules and in violation of the principles of natural justice and consequently he seeks to set aside the order of removal from service passed against him. Further, the applicant also seeks his reinstatement in service with all consequential benefits.
2. The gist of the applicant's case is stated thus:
The applicant entered the service as Extra Departmental Delivery Agent in 1991. He was appointed as Postman in 1998. He worked as Postman in various Post Offices. While working so in Anjengo Post Office disciplinary proceedings were initiated against him. Articles of charge accompanied by the imputations was served on him to which reply statement was filed. The allegations in the charge were that he did not deliver/pay the money to the parties on the dates shown in the delivery slips and returned the delivery slips to make it appear that the money was paid on the dates shown in the slips. To prove that the signatures shown in the slips were not of the payees concerned, those documents were sent for expert's opinion.
Inquiry was conducted. Based on the inquriy report disciplinary authority passed Annexure A3 order dismissing the applicant from service. His appeal was rejected as per Annexure A5.
3. The handwriting expert was not examined to prove the report given by him that the signatures in the money order slips were not the actual signatures of the three payees who were examined before the inquriy officer. There was no proper appreciation of evidence. The finding entered by the inquriy officer that the charges are proved is unsustainable. The disciplinary authority did not apply his mind and simply accepted the report of the inquiry officer. Similarly the appellate authority also did not go through the evidence and the grounds raised in the appeal memorandum but simply endorsed the view taken by the disciplinary authority. The extreme penalty of removal from service is shockingly disproportionate and as such the penalty imposed on the applicant is also liable to be interferred with.
4. The respondents resisted the application contending as follows:
The applicant did not putforth any valid ground when inquiry was conducted or before the disciplinary authority. There was no violation of statutory rules nor was there any violation of the principles of natural justice. The contention that the punishment awarded is shockingly disproportionate is also unsustainable. There was proper analysis of the oral and documentary evidence adduced in the case. Complaints of non-payment of money orders were received from so many persons and not only from the three persons referred to in the inquiry report. The signatures of the payees were not obtained on the money order form then and there. The amounts covered by the money orders were not paid to the respective payees. Though one of the payees stated that the money was received it was stated that it was received only subsequently and not on the date on which the money was shown to have been paid. The report of the expert was not relied upon as a substative evidence but it was used only to satisfy the conscience of the inquiry officer and the disciplinary authority. Though the applicant had opportunity to offer himself as defence witness he did not get himself examined. No evidence was adduced on his side. The evidence adduced on the side of the Department/Presenting Officer was rightly accepted by the inquiry officer. The Tribunal cannot enter into the correctness of that findings since all the statutory formalities were duly complied with in the conduct of the inquiry and in all other aspects. Hence, the respondents prayed for dismissal of the OA.
5. We have heard the learned counsel appearing for the parties and have also gone through the pleadings and documents.
6. The point for consideration is: whether the disciplinary proceedings against the applicant is conducted in violation of the statutory rules and whether the penalty of termination of service of the applicant is shockingly disproportionate so as to warrant interference by this Tribunal ?
7. Annexure A3 is the order dated 8.12.2010 passed by the Senior Superintendent of Post Offices as the disciplinary authority. Annexure A5 is the order passed by the appellate authority on 11.10.2011 which endorsed the finding entered by the disciplinary authority and confirmed the penalty of removal from service imposed on the applicant by the disciplinary authority.
8. The following are the three charges levelled against the applicant:
'Article No. I That Sri N. Suresh babu, Postman, Varkala SO while working as Postman, Attingal HPO during the period from 10.8.2003 to 17.12.04 treated TVM AG's PO Money order No. A 5703 dated 1.12.2004 of Rs. 2000 payable to Smt. F. Rafeeka, Thazhamonkonath Veedu, between church and service station, Market Road, Attingal as paid on 2.12.04 without obtaining signature/thumb impression of the actual payee on the money order form and without paying the value of the money order to the actual payee violating the Rule 127(1) of the Postal manual volume VI part III, 6th edition and thereby exhibited lack of integrity and devotion to duty and behaved in a manner unbecoming of Government Servant in contravention to Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) rules, 1964.
Article II That Sri N. Suresh babu, Postman, Varkala SO while working as Postman, Attingal HO during the period from 10.8.03 to 17.12.04 treated FPO No. 748 Money order No. 1949 dated 8.11.04 for Rs. 3000 payable to Smt. Priya Harikumar, Veeranamcode House, Thottavaram, Attingal as paid on 17.11.04 without obtaining signature/thump impression of the actual payee on the money order form and without paying the value of the money order on the money order form and without paying the value of the money order to the actual payee violating the Rule 127(1) of the Postal Manual Volume VI part III, 6th edition and thereby exhibited lack of integrity and devotion to duty and behave in a manner unbecoming of govt. servant in contravention to Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) rules, 1964.
Article III That Sri N. Suresh babu, Postman, Varkala SO while working as Postman, Attingal HO during the period from 10.8.03 to 17.12.04 treated Jhotwara Money order No. 2367 dated 9.8.04 for Rs. 500 payable to Smt. Girija Vikraman, Sarassavilas, Kodumon, Attingal as paid on 13.8.04 without obtaining signature/thumb impression of the actual payee on the money order form and without paying the value of the money order to the actual payee violating the 127(1) of Postal Manual Volume VI part III, 6th edition and thereby exhibited lack of integrity and devotion to duty and behave in a manner unbecoming of govt. servant in contravention to Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) rules, 1964.' It is accompanied by the statement of imputations in support of the charges referred to above. Entire details regarding the non- delivery/non-payment of the amounts covered by the money orders to the respective payees are naratted therein.
9. It is vehemently argued by the learned counsel for the applicant that the former inquiry officer had chosen to send the money order slips containing the signatures, purported to be of the payees, to the handwriting expert for comparison. A report was received from the expert but the expert was not examined and the inquiry officer and the disciplinary authority has relied upon the expert to hold that the signatures purportedly be of the payees (charge sheet witness 1 to
3) were not the signatures of those three witnesses. According to the applicant there was denial of opportunity to cross-examine the experts. It is stated that during the inquiry there was change of inquiry officer. It is contended that though the inquiry officer who was in-charge of the inquiry at the beginning of the inquiry chose to send the documents for expert's opinion, the subsequent officer who took charge of the inquiry did not examine the expert. It is pointed out that the three payees who were examined as charge witnesses 1 to 3 unambiguously and categorically stated that the signatures appearing in those three documents were not of the respective payees.
10. CW-1 is one of the payees. He assisted that the signature found on the money order coupon is not the one put by him. There is nothing to contradict the evidence given by the PW-1. When that evidence stood incontrovertible, the non-examination of the expert would pale into insignificance. Similar was the evidence of charge witnesses 2 & 3. Therefore, it is clear that the three witnesses in unmistakeable terms deposed before the inquiry officer that the signatures found in those three money order coupons/slips were not their signatures. That is the substantive evidence. During the inquiry Section 80 of the Evidence Act was also pressed in to service to contend that when the report of the Expert is seen signed by the officer/expert and since the office seal was also seen affixed on the report, it should be treated as genuine and as such any statement contained in that certificate purported to be of the person who signed it must be held to be true. It is submitted by the learned counsel for the respondents that there is no necessity of examining the expert since huge amount and time would be lost by examining an expert who was to be summoned from Hyderabad. Be that as it may, even in the absence of the evidence of the expert there was no difficulty for the inquiry officer to hold with certainty and definiteness that the three money order coupons which purportedly contained the signatures of the payees were not the signatures put by the payees. When the substantive evidence given by the three witnesses could be accepted as true and when there is no evidence or circumstance to hold otherwise, the inquiry officer and the disciplinary authority were perfectly justified in acting upon the testimony of those three witnesses. It can be very well said that the report of the handwriting expert was obtained only to satisfy the conscience of the inquiry officer and the disciplinary authority to come to a definite conclusion that they are not wrong in coming to the conclusion as afore stated. When the evidence given by a handwriting expert can be treated only as an opinion evidence and when the substantive evidence is that of the three witnesses who have unambiguously deposed that the signatures purportedly seen in the money order coupons or receipts are not theirs', nothing more was necessary to hold that the applicant was guilty of forging or fabricating the documents to make it appear that the amounts covered by those money orders were actually paid to those respective payees when in fact the money was not paid to those persons on the dates mentioned therein. The fact that the one of the witnesses stated that subsequently the money was paid to him cannot absolve the liability of the applicant since even misappropriation for a short period will attract the offence of criminal misappropriation going by the explanation to Section 403 of the IPC.
11. In view of what is stated above the argument vehemently advanced by the learned counsel for the applicant that had the expert been examined answers could have been elicited in support of the applicant must fall to the ground. The report of the expert was only used to satisfy the conscience of the inquiry officer and the disciplinary authority. The finding is not wholly founded on the expert's opinion.
12. The other argument that has been vehemently canvassed by the learned counsel for the applicant is that there was non- compliance of Rule 14 (18) of CCS (CCA) Rules, 1965. It is contended that the sub rule (18) of Rule 14 requires questioning of the charged Government servant as to the circumstances appearing against the applicant in evidence. In Annexure A1 the inquiry officer has specifically noted:
'The CGS points out that 'Sub rule 18 of the Rule 14 of CCS (CCA) Rules 1965, is specific about the requirement of the questioning of the charged Government servant by the IA. In his case the IA preferred not to question me as there were no circumstances appearing against me in the evidence.' His contention on these grounds is baseless; merely eyewash and closing eyes before the facts. Para 16 of the proceedings number 17 dated 16.10.09 records under his acknowledgment as '. . . . the CGS not preferred for question by IA. . . .', which includes self examination of the CGS, though the words fall into a common wordings as expressed above. The CGS, at that moment, before closing the proceedings, was asked to come forward with anything to say. But he didn't. Vide para 16 of sitting no of 17 dt 16-10-2010, it is clear that the CGS not at all preferred for question by IA. This was under the acknoledgment of the CGS as well as AGS.' From what has been quoted above it is clear that there was no non-
compliance of sub rule (18) of Rule 14 as contended by the applicant. The applicant did not express his wish or desire to get himself examined or to examine any other witnesses. He was afforded sufficient opportunity for that purpose.
13. It is the settled position of law that the charges levelled against a delinquent officer is to be proved only by preponderance of probabilities and not beyond reasonable doubt as required in a criminal trial. It is not a case where the charged witnesses 1 to 3 had any axe to grind against the applicant nor were they persons having any sort of animosity or grouse against the applicant. There is nothing to show that the evidence given by those three witnesses is unworthy of credence. On the contrary their evidence was found to be worthy of acceptance. It was correctly accepted by the inquiry officer. As stated earlier even if it is assumed that subsequently one of the payees was paid the amount covered by the money order that will not save the applicant since on the date and time as entered in the money order receipts the money covered there under was not paid to those three persons. Even according to the applicant as can be seen from Annexure A4 the appeal memorandum submitted by him the money orders were not paid to those three persons on the same date of payment as shown in the money order voucher.
14. We must also bear in mind that the judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. The Court/Tribunal is denuded of the power to re- appreciate the evidence and to come to its own conclusion on the proof of a particular charge. The scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the Court cannot arrive on its own independent finding (see the decisions of the Hon'ble Supreme Court in High Court of Judicature at Bombay through its Registrar v. Udaysingh S/o. Ganpatrao Naik Nimbalkar & Ors. - AIR 1997 SC 2286, Govt. of A.P. & Ors. v. Mohd. Nasrullah Khan b� AIR 2006 SC 1214 & Union of India & Ors. v. Manab Kumar Guha - 2011 (11) SCC 535).
15. The next question that crops up for consideration is whether the penalty imposed on the applicant is shockingly disproportionate. Normally the court cannot substitute its own conclusion or penalty, in the exercise of the power of judicial review. But if the penalty imposed by the disciplinary authority, confirmed by the appellate authority shocks the conscience of the court it would, in appropriate cases, mould the relief either by directing the authority to reconsider the penalty imposed and in exceptional and rare cases in order to shorten the litigation the court itself may impose appropriate punishment with cogent reasons in support thereof [see the decision of the Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India & Ors. - AIR 1996 SC 484 which was followed by the Hon'ble Supreme Court in S.R. Tewari v. Union of India & Anr. - 2013 (6) SCC 602]. Relying on Tewari's case the learned counsel for the applicant submits that the prevailing circumstances might have forced the applicant to act in a certain manner though he had not intended to do so and so in such cicumstances the court may further examine the effect, if the order is set aside or substituted by some other penalty. But it is only in very rare cases the court might, to shorten the litigation, think of substituting its own view as regards quantum of punishment in place of punishment awarded by the competent authority. Judicial intervention is permissible only if it is found that the penalty imposed is not commensurate with the gravity of the charges and only if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be shocking to the conscience of the court.
16. Learned counsel for the respondents would submit that the quantum of punishment awarded does commensurate with the gravity of the offence with which he stood charged and it was not shocking to the conscience of the court. In other words, according to the respondents the interference in the matter of penalty imposed in this case would be totally uncalled for. It is not a case where the charge was ridiculous or the punishment was harsh or strikingly disproportionate. The three charges proved against the applicant are that he did not effect payment of money covered by the respective money orders to the respective payees and that the applicant forged the signatures of those persons to make it appear that the money covered thereunder was actually paid to those three persons on the date mentioned therein. Therefore, it is not a case where there was any perversity or irrationality in the punishment imposed by the authorities below. It was held in Union of India & Ors. v. R.K. Sharma - AIR 2001 SC 3053 and in Ranjith Thakur v. Union of India & Ors. - AIR 1987 SC 2386 that only in extreme cases which on their face shows perversity or irrationality there could be judicial review and courts should not interfere merely on compassionate grounds. Therefore, the learned counsel for the respondents would submit that the court should not merely be swayed by the attractive submissions made by the learned counsel for the applicant to approach the issue on compassionate grounds since according to the learned counsel the evidence would clearly show that there was criminal misappropriation of money even if it is accepted for argument sake that the misappropriation was only for a temporary period. In S.R. Tewari's case cited by the learned counsel for the applicant out of the eight charges 1, 2, 5, 7 & 8 were not proved at all. Charges 4 & 6 were proved only partly but charge No. 3 was proved fully. Here, all the three charges could be proved to the hilt. Even the stand taken by the applicant is to the effect that the money was not paid to the respective payees on the dates shown in the money order receipt or voucher. Therefore, the facts dealt with in Tewari's case cited supra are entirely different from the facts of the case on hand.
17. From the admitted or indisputable facts the only conclusion that can be arrived at is that the applicant did not deliver or pay the amounts covered by the money order to the three persons mentioned earlier and if so the order does not require to be set aside even if the court finds that there was procedural irregularity or slight violation of natural justice (see the decision of the Hon'ble Surpeme Court in S.L. Kapoor v. Jagmohan & Ors. - AIR 1981 SC 136). It is also trite law that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice (vide the decisions of Hon'ble Supreme Court in S.K. Singh v. Central Bank of India & Ors. - 1996 (6) SCC 415, Aligarh Muslim University & Ors. v. Mansoor Ali Khan - 2000 (7) SCC 529 and State of U.P. v. Harendra Arora & Anr. - AIR 2001 SC 2319). All these decisions were followed by the Hon'ble Supreme Court in Union of India & Ors. v. Bishamber Das Dogra - 2010 (1) AISLJ 100. In short, unnatural expansion of natural justice and stretching the concept of justice to illogical and exasperating limits is held to be antithetical to justice. Therefore, in the light of what has been stated above we have no hesitation to hold that the finding of guilt entered by the authorities below is only to be confirmed.
18. It has already been stated earlier that embezzlement of money even for a short period; namely to mean for a temporary period also would attract the offence of criminal misappropriation. It was held by the Hon'ble Supreme Court in NEKRTC v. H. Amaresh - 2006 (6) SCC 187, as under:
'18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.'
19. The respondents would contend that when the applicant is found guilty of criminal breach of trust or misappropriation even if only of a paltry amount or even if it be for a temporary period still the department lost confidence or faith in the employee and as such the punishment of removal from service is the most appropriate punishment that can be awarded and as such the contention raised by the applicant that the penalty of removal from service is shockingly disproportionate cannot be countenanced at all. Similar view was taken by the Hon'ble Supreme Court in Karnataka SRTC v. A.T. Mane - 2005 (3) SCC 254 which reads thus:
'12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.'
20. Similar views were expressed by the Hon'ble Supreme Court in Niranjan Hemchandra Sashittal v. State of Maharashtra - 2013 (4) SCC 642, Rajasthan SRTC v. Bajrang Lal - 2014 (4) SCC 693 and Bahadurgargh v. Krishnan Behari - 1996 (2) SCC 714. The principle enunciated in these cases is that the gravity of the offence is not to be adjudged on the bedrock of the quantum of money involved. It is the attitude to abuse the official position which has to be taken note of, as otherwise, it would erode the faith of the people in the system. It was held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small and may be even for a short period. But it is the act of misappropriation that is relevant. The decisions are to be effect that if the court wants to interfere with the quantum of punishment awarded by the authorities, then reasons must be specifically stated to reduce or interfere with the punishment imposed. So far as the case on hand is concerned the proved facts would make it indubitably clear that the applicant was rightly found guilty of gross misconduct as he did not pay the amount covered by the money orders to the respective payees. It was also proved that he has forged the signatures of those three persons. In such circumstances the penalty imposed by the disciplinary authority, confirmed by the appellate authority, does not require interference at the hands of this Tribunal. Hence, the applicant is not entitled to get any relief as prayed for in this OA. The Original Application is hence dismissed. No costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA