Central Administrative Tribunal - Cuttack
Pravat Nalini Nayak vs Department Of Post on 17 April, 2025
1 O.A.No. 260/00456 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00456 of 2023
Reserved on 08.04.2025 Pronounced on 17.04.2025
CORAM:
HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Pravat Nalini Nayak, aged about 52 years, W/o-
Parikshita Baral, At present working as SPM
(LSG), Dumduma Housing Board Colony S.O, At
present residing at P&T Qr No.115, Unit-IV, P.O-
Bhubaneswar, GPO P.S.-Kharvelnagar, Dist-
Khurdha.
..... Applicant
For the Applicant : Mr. S.B.Jena, Counsel
-Versus-
1. Union of India, represented through it's Director
General, (Posts) Department of Posts, Dak Bhawan,
Sansad Marg, New Delhi-110001.
2. Chief Post Master General, Odisha Circle, At/P.O:
Bhubaneswar, Dist-Khurda-751001.
3. Director of Postal Services (HQrs), Odisha Circle,
Bhubaneswar, Dist: Khurdha-751001.
4. Senior Superintendent of Post Office, Bhubaneswar
Division, Bhubaneswar, Dist-Khurdha-751009.
.....Respondents
For the Respondents: Mr. B.R.Swain, Counsel
2 O.A.No. 260/00456 of 2023
ORDER
PRAMOD KUMAR DAS, MEMBER (ADMN.):
Instead of delving into the facts of the matter in great details, it would suffice to state that while the applicant was continuing as Postal Assistant in Utkal University MDG, Bhubaneswar, she was issued with a Memo No. B-770(sub)(Pravat Nalini Nayak).Disc dated 01.12.2022 under Rule 16 of the CCS (CCA) Rules, 1965 giving her opportunity to submit his defence, if any. She submitted her defence on 16.12.2022 denying the allegations made in the memo dated 01.12.2022. The Respondent No.4 vide order dated 27.01.2023 imposed the punishment of reduction of pay from one stage from Rs. 60,400 to Rs. 58,600/- in Level-VI of pay matrix for a period of three years with further direction that she will earn increment of pay during period of reduction and on expiry of the said period, the reduction will not have effect of postponing of future increment. Appeal filed by the applicant on 20.02.2023 was duly considered by the Appellate Authority and authority concerned vide order dated 21.04.2023 (A/5) quashed the charge sheet as well as the order of punishment. The Revisional Authority, on his own motion, reviewed the order of Appellate Authority dated 21.04.2023 and in 3 O.A.No. 260/00456 of 2023 exercise of the power conferred under Rule 29(1)(vi)(c) of CCS (CCA) Rules, 1965 directed by observing as under:
"xxx xxx I do consider said Pravat Nalini Nayak require punishment commensurate to the gravity of offence committed by her.
Misbehaviour to a superior authority in the office destroys the sanctity and serenity of an office and brings demoralizing effect upon others to perform their duties ina peaceful and effective manner Ultimately the organization suffers and the official/officer who bears the blunt of such misbehaviour passes through unbearable mental agony. In an organization like ours where we serve esteemed public, such misconduct is not acceptable and such a habit brings the department to disrepute at a certain point of time. The official is a senior official and she was supposed to set example for others. Her indulgement in such activities goes to portray her misdemeanor while functioning in the capacity of PA, Utkal University MDG. From her submission to disciplinary authority and appellate authority, she has not shown any repentance for her subversive misconduct. The appellate authority should have dealt with the matter very sternly to send out a clear message of zero tolerance towards undisciplined behavior in the office premises. Instead he has taken a lenient view which the official does not deserve.
Therefore, I. Suvendu Swain, Chief Postmaster General, Odisha Circle, Bhubaneswar in exercise of powers conferred under the provisions of Rule-29(1)(vi)(c) of the CCS(CCA) Rules, 1965 hereby remit the case to the Disciplinary Authority-cum-SSPOs Bhubaneswar Division for issuance of charge sheet afresh."
2. Fact remains that meanwhile, the applicant was promoted to LSG cadre on 23.05.2023 and posted as SPM, Dum Duma H.B.Colony S.O., 4 O.A.No. 260/00456 of 2023 Bhubaneswar. As a consequence of the order of the Revisional Authority dated 21.07.2023, she was issued charge sheet date 07.08.2023 under Rule 16 of the CCS (CCA) Rules, 1965 afresh on self same set of allegation. The applicant being aggrieved has filed the instant OA questioning, impugning and challenging the order of the Revisional Authority dated 21.07.2023 so also the charge sheet issued afresh dated 07.08.2023 on various grounds; one amongst them is that the Revisional Authority lacks jurisdiction/competency to direct issuance of charge sheet afresh for self set of allegations that too after giving his complete finding ipse dixit that the applicant deserves to be punished.
3. Respondents filed their counter opposing the stand taken by the applicant, which were highlighted by the Ld. Counsel for the respondents in course of hearing to the effect that Respondent No.2 being the Reviewing Authority, after going through the facts and circumstances of the case, in exercise of powers conferred under the provisions of Rule 29(1)(vi)(c) of CCS (CCA) Rules, 1965, observed that quashing of order of punishment by AA (Resp. No.3) was not commensurate with the gravity of offence committed by the applicant, 5 O.A.No. 260/00456 of 2023 rather, he should have dealt with the matter very sternly to send out a clear message of zero tolerance towards undisciplined behavior of the applicant in office premises. It is their case that Resp. No.3 took a much lenient view, which the applicant does not deserve. There was no fabrication or twisting of fact while framing the charge sheet since the charges are based on records and substantiated from the statements given by the witnesses. Further, according to the respondents, the applicant is habitual late comer and she did not obtain prior permission for leave of any kind or headquarter leaving permission. The Postmaster as well as other staff of Utkal University, MDG have stated about her late coming to office in their written statements recorded on 29.09.2022 and 15.11.2022. It is submitted that since the preliminary inquiry into the case of the misconduct was not conducted by Respondent No.4 and, hence, he is not debarred from acting as Disciplinary Authority in this case. Accordingly, it is the stand of the respondents that the OA being devoid of any merit is liable to be dismissed.
4. The respective stand taken in the pleadings have been reiterated by the Ld. Counsel for both the parties concerned in course of hearing 6 O.A.No. 260/00456 of 2023 and having heard them at length, perused the records.
5. It may be recorded that judicial interference in the matter of disciplinary proceeding/imposition of punishment on an employee is well settled to the barest extent viz. where the power exercised and proceedings initiated is de hors the rules and punishment imposed is in violation of principles of natural justice and/or on evidence [Ref:
B.C.Chaturvedi Vs. Union of India, (1995) 6 SCC 749].
6. In the instant case, the core issue falls for adjudication at the first instance is as to how far the order of the Revisional Authority directing issuance of fresh charge sheet on self same allegation in exercise of power under Rule 29(1)(vi)(c) of CCS (CCA) Rules, 1965, that too without setting aside/revising/modifying the order of the Appellate Authority, is justified? In this regard, the provision of Rule 29(1)(vi)(c) of CCS (CCA) Rules, 1965 is looked into wherein it is provided that "(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case;". The provision of Rule 129 of P&T Manual Vol. III (printed in Swamy's compilation of CCS (CCA) Rules, August 2009 edition at page 131-132) deals the effect of 7 O.A.No. 260/00456 of 2023 setting aside of Appellate Order wherein it has been provided that if an Appellate Order is set aside for procedural defects, the punishment order will also simultaneously stand quashed and in such a case, it should therefore be necessary to initiate de novo proceedings against the concerned officer (emphasis added). A harmonious reading of entire provision of Rules 29 vis a vis Rule 129 of P&T Manual Vol. III, makes it clear that the Revisional Authority may at any time either on his or its own motion or otherwise call for records of any inquiry if any procedural defects is found to remit the matter for de novo proceedings against the employee concerned but certainly no such express provision is inbuilt in the statutory rules authorizing the Revisional Authority to remit the matter for issuance of fresh charge sheet on the selfsame allegation that too by giving the positive findings as has been given in the instant case that "I do consider said Pravat Nalini Nayak require punishment commensurate to the gravity of offence committed by her. xxx xxx xxx. The appellate authority should have dealt with the matter very sternly to send out a clear message of zero tolerance towards undisciplined behavior in the office premises. Instead he has taken a lenient view which the official does not deserve". I am 8 O.A.No. 260/00456 of 2023 reminded by the landmark decision of the Hon'ble Apex Court in the case of the Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association and Ors, (2024) 1 SCC (L&S) 819, wherein the Hon'ble Apex Court in an authoritative pronouncement have held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Hence, when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden. This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way, and, that one cannot do indirectly what one cannot do directly ["Quando aliquid prohibetur ex directo, prohibetur et per obliquum"]. Further, quod contra legem fit, pro infecto habetur meaning thereby what is done contrary to law is considered not done is a well settled position of law. On examination of the facts with reference to Rules and law, I have no hesitation to hold that the order of the Revisional Authority is not sustainable in the eyes of law. 9 O.A.No. 260/00456 of 2023
7. It is fundamental principle that literal rule of interpretation is to assign words their natural original and precise meaning and not otherwise. In law, a post-decisional hearing is generally considered bad, especially when compared to the preferred pre-decisional hearing, because it often violates the principles of natural justice, particularly the right to be heard. A post-decisional hearing, where a hearing is offered after a decision has been made, is viewed as insufficient because the decision-maker may already have a closed mind, hindering a fair and unbiased consideration of the matter. On a close scrutiny of the order of the Revisional Authority, it is established that direction for issue of fresh charge sheet on self same allegation with a view to punish the applicant, which is against the canon of justice and fair play.
8. Sequel to the discussions made above, it is held that the order dated 21.07.2023 of the Revisional Authority is not sustainable in the eyes of law and the said order is hereby quashed. It is a settled legal position that if any action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a situation the legal maxim sublato fundamento cadit opus is applicable meaning thereby in case a foundation is removed the superstructure falls. Hence, by 10 O.A.No. 260/00456 of 2023 applying the above principles, the subsequent charge sheet dated 07.08.2023 is hereby quashed.
9. In the result, The OA stands allowed. No costs.
(PRAMOD KUMAR DAS) MEMBER(A) RK/PS