Central Administrative Tribunal - Bangalore
T M Zabiulla vs D/O Post on 23 March, 2023
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OA.No.170/01/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00001/2020
DATED THIS THE 23rd DAY OF MARCH, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
T.M. Zabiulla,
S/o T. Abdul Muthalib,
Age 44 years,
Ex GDS MD,
R.T. Nagar HO,
Bangalore-560032.
Residing at No.6,
IInd Main Road, Matadahalli,
Bangalore-560032. ..Applicant.
(By Advocate Shri P. Kamalesan)
Vs.
1.Union of India,
Represented by Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110001.
2.Chief Post Master General,
Karnataka Circle,
Bangalore-560001.
3. Post Master General,
H.Q. Region,
Bangalore-560001.
4. Senior Superintendent of Post Offices,
Bangalore East Division,
Bangalore-560025.
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5. Post Master Grade III,
R.T. Nagar HO,
Bangalore-560032. ....Respondents
(By Shri K. Gajendra Vasu Sr. Panel Counsel)
O R D E R (ORAL)
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 Post Master Grade III RT Nagar HO, Bangalore Memo No.B/PF/Jab/RTN/14-15 dated: 31.12.2014 (Annexure-A4), vide which a charge memo has been issued against the applicant for remaining absent from duty from 28.3.2014 to 08.11.2014.
b) To quash Memo No.B4/PF/Zab/RTN/15-16 dated: 22.7.2015 (Annexure-A6), vide which the penalty of removal from service has been imposed on the applicant.
c) To quash the Senior Superintendent of Post offices, Bangalore East Division, Bangalore, Memo No. F/Disc/12/14-15 dated: 17.3.2016 (Annexure-A8), vide which the appeal filed by the applicant against the penalty imposed on him has been rejected and penalty imposed has been confirmed.
d) To quash the Post Master General, Bangalore HQ, Region, Bangalore letter No.BGR/Vig/15-02/2017 dated: 1.5.2019 (Annexure-A11), vide which the revision petition against the orders of Appellate Authority 3 OA.No.170/01/2020/CAT/Bangalore Bench has been rejected and the orders of the Disciplinary Authority imposing the penalty and the orders of the Appellate Authority rejecting the appeal has been confirmed.
e) Consequently declare that the "Removal" from service the penalty imposed by the respondent No.5 is without jurisdiction, and against the provisions of schedule (Annexure-A13).
f) Direct the respondents to reinstate the applicant with all consequential benefits.
g) Grant any other relief as deemed fit in the facts and circumstances of the case, in the interest of justice and equity.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was appointed as GDS MD with effect from 05.2.1993 at R.T.Nagar HO. The applicant was suffering from ill health for few months from March 2014 to Nov.2014 due to hyper tension and severe back pain and was under continuous Medical treatment.
b) The Post Master Grade III, R.T. Nagar HO vide letter No.GDS Zab/RTN/14-15 dated: 10.12.2014, issued a Memo to the applicant alleging that the applicant remained on unauthorized absence for 226 days from 28.3.2014 to 8.11.2014. The applicant submits that he was on medical leave for the period from 01.3.2014 to 30.11.2014. 4
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c) The APM (Delivery) R.T.Nagar HO, has wrongly submitted, absentee statement from 1.3.2014 to 30-11-2014 dated: 1-12-2014 as "Absent" for duty for all the period.
d) Based on the Report of APM Delivery, R.T. Nagar HO, the Post Master Grade III, R.T. Nagar HO, Bangalore, issued Memorandum of charges under the provision of Rule 10 of GDS (Conduct & Engagement Rules 2011) for unauthorized absence for 226 days vide Memo No. B/PF/Zab/RTN/14-15 dated: 31.12.2014 (Annexure-A4). Inquiry was conducted and IO submitted report, vide Sr. Superintendent of Post offices, Bangalore East Dn, Letter No.11/RTN/GDS/Dlgs/15-16 dated 15.6.2015. In pursuance of I.O. Report, the Post Master Grade III, R.T. Nagar HO, Bangalore, imposed the punishment of "Removal from service" vide Memo No.B4/PF/ Zab/ RTN/15-16 dated 22.7.2015.
e) The applicant submitted an appeal to the Sr. Superintendent of Post offices, Bangalore East Dn. on 8.10.2015. The Appellate Authority Sr. Superintendent of Post Offices, Bangalore east Dn., rejected the appeal vide Memo No. F/Disc/12/14-15 dated: 17-3- 2016.
f) The applicant submitted a Revision petition to Post Master General, Bangalore HQ, Region, on 17.8.2017. The Sr. Superintendent of Post offices, Bangalore East Dn, vide letter No.F/Disc/12/2014-15 dated 18.12.2017 forwarded the Revision Petition to Post Master General, Bangalore HQ Region.
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g) The Post Master General, HQ, Bangalore Region, vide letter No. BGR/Vig/15-02/17 dated 1.5.2019 rejected the Revision Petition.
h) The primary objection of the applicant, regarding the competency/power of Post Master Grade III, in initiating disciplinary proceedings and order for "Removal" from service, which is a major penalty, was not considered objectively by Appellate Authority as well as Revisionary authority. Therefore, the initiation of disciplinary proceedings and order of "Removal" from service ordered by the Post Master Grade III, is without jurisdiction and without powers. Therefore the order of Removal is "void abinitio".
i) The applicant submits that the absence was not a wilful absence. His absence was necessitated due to ill health.
j) In accordance with the provisions of schedule for recruiting authority (Annexure-A12), the Post Master Grade III, is not the recruiting authority in respect of GDS MD. Therefore, a non-recruiting authority is not empowered to impose any of the penalties as per rule 9 of GDS (Conduct & Engagement) Rules 2011.
k) The stand taken by the respondents is that the posts of Post Master Grade III and HSG I posts were identical, since the pay scales were identical and post Master Grade III was carved out of HSG-I. Hence, according to the respondents, Post Master Grade III, can exercise the same power of HSG-I, as per schedule. This is contrary to the provisions of Rule 5 of GDS (Conduct & Engagement) rules 2011. No 6 OA.No.170/01/2020/CAT/Bangalore Bench special order of Head of Circle or the Head of region was issued in respect of Post Master Grade III, to initiate and impose any of the penalties, as per Rule-5. Therefore, the penalty imposed by the respondent No.5 is unsustainable under law.
3. The respondents have filed their written statement wherein they have averred as follows:
a) Applicant was working as Gramin Dak Sevak Mail deliverer (GDS MD) at RT Nagar HO. He had remained on unauthorized absence from duty for the period from 28.03.2014 to 8.11.2014 (226 days) without submitting any leave application to the competent authority. Show Cause Notices were issued to his last known address, but no reply was submitted by him.
b) The Disciplinary Authority (Respondent No. 5) initiated disciplinary action and issued a charge sheet under Rule 10 of GDS (conduct and engagement) rules 2011. He had accepted all the charges levelled against him unconditionally and requested not to proceed further. He had given in writing accepting the charges levelled against him before Inquiry Officer during oral inquiry. IO report was forwarded to the applicant by the Disciplinary Authority and the applicant admitted the fact that he remained absent unauthorizedly. The Disciplinary Authority based on IO report and representation, finalised the Rule 10 proceedings against the applicant by awarding the punishment as removed from engagement.7
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c) The applicant appealed against Disciplinary Authority's order to SSPOs, Bengaluru East Division (Respondent No 4) and subsequently submitted petition to PMG, BG HQ Region, which were rejected and the penalty imposed by Disciplinary Authority was confirmed.
d) The recruiting/disciplinary authority for the applicant is Postmaster Grade III, R.T.Nagar HO (Respondent No 5). The Postmaster is the ultimate authority for initiating or finalizing disciplinary action as per rule. The Postmaster cadre comprising three grades viz., Grade I, Grade II and Grade III was carved out as a separate cadre from the General Line cadre of Postmaster LSG, HSG-II and HSG-I respectively vide instructions contained in Postal Directorate Letter no.13-2/2010-PE-I dated 03.02.2010, No.13-2/2010-PE-I dated 25.11.2010 and No.04- 28/2013-SPB-II dated 15.05.2013.
e) The post of HSG-I was re-designated as Postmaster Grade III consequent upon this exercise. The pay scale of Postmaster Grade III at that time was fixed as Rs.9300-34,800 in the Grade Pay Rs.4,600 which was same as that of Postmaster HSG-I. As such, the responsibilities, authority and pay scale of both the cadres remained the same. As HSG-I Postmaster is empowered to impose all penalties to Gramin Dak Sevak as enlisted in Rule 9 of Department of Posts, Gramin Dak Sevak (Conduct & Engagement) Rules 2011, therefore, Postmaster Grade III is also empowered to exercise the same disciplinary powers.
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f) The applicant had not submitted leave application or medical certificate during the period 01.03.2014 to 30.11.2014 for his absence. The applicant had not submitted any documentary proof or medical records for his ill health.
g) The Appellate Authority and Revisionary Authority have gone through the case and come to the conclusion that the applicant could not submit any convincing argument defending his act and the irregularity committed. He remained absent unauthorizedly and did not maintain absolute integrity and devotion of duty which is in contravention of the Rule 21 of GDS (Conduct & Engagement) Rules 2011. Based on the findings and merit of the case, the Appellant Authority and Revisionary Authority rejected his appeal.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant has been charged for remaining absent unauthorizedly from 28.3.2014 to 08.11.2014 and thereby allegedly failing to maintain absolute integrity and devotion to duty as required under the rules.
6. The applicant, on the other hand, had contended in his revision petition that he had suffered a slip from the top staircase on 23.9.2013, which had caused severe injuries to his spine nerves and he was bedridden for about 14 months and was under medical treatment at St. John's Medical College Hospital, Bangalore. He also submitted copies of medical certificates granted by the 9 OA.No.170/01/2020/CAT/Bangalore Bench hospital, including CT/MRI scan reports as part of the revision petition. He has stated that he had sought for LWA on medical grounds and submitted application through his relatives and friends/colleagues. However, his request for leave was granted from 23.9.2013 to 27.3.2014 only. He had submitted his request for grant of leave beyond 28.3.2014, but the said leave was not sanctioned. He has further stated that the doctor who was attending to him, did not grant him medical certificate beyond 6 months, i.e., after 27.3.2014, but granted a letter advising suitable job. He had also requested for indoor duties/ duties as packer/MTS, which were not agreed to.
7. The applicant has also contended that the Post Master Grade-III, was not empowered to initiate and impose the punishment on him, since that post is not listed in the Schedule of Recruiting Authorities, which mentions that only Postmaster in higher or lower Selection Grade, is the Recruiting Authority for the post of GDS MD.
8. The respondents have categorically stated that the post of HSG-I was re-
designated as Postmaster Grade III consequent to creation of Postmaster cadre, which had been carved out from the General Line cadre of Postmaster LSG, HSG-II and HSG-I respectively. The post of Postmaster Grade-III has been carved out from the post of Postmaster HSG-I. and HSG-I Postmaster is empowered to impose all penalties to GDS as enlisted in Rule 9 of Department of Posts, Gramin Dak Sevak (Conduct & Engagement) Rules 2011.
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9. The contention of the applicant that penalty imposed on him was without any authority cannot be countenanced, since after the creation of the cadre of postmaster by carving out the posts from the General Line cadre, the Post Master Grade-III is the recruiting and disciplinary authority for the applicant and he is duly authorised to pass appropriate penalty orders in this case.
10. The 2nd contention of the applicant is that he was genuinely ill and it was under these conditions that he remained absent from duty for the period from 28.3.2014 to 08.11.2014. In fact, he was absent from 23.9.2013 onwards. However, the medical certificate granted to him was only for the period from 23.9.2013 to 27.3.2014. The contention of the applicant is that the doctor did not grant him medical certificate beyond 6 months i.e., after 27.3.2014, but granted a letter advising him a lighter job, keeping in view his health conditions. The applicant did provide copies of his medical reports, certificates etc., from the hospital, while submitting his revision petition to the PMG, Bangalore region.
11. A perusal of the orders issued by the Disciplinary Authority, imposing the penalty of removal, indicates that the Disciplinary Authority before passing the orders imposing the penalty had observed as under:
"from the statement of IO and the charged GDS, it was established beyond doubt that the charged GDS is physically weak and suffers from hypertension, back pain and physical pressure which invites him for relaxation for a longer period frequently and will not allow him to be active and he was forced not to maintain devotion to duty 11 OA.No.170/01/2020/CAT/Bangalore Bench as required by Rule 21 of the Department of Posts, Gramin Dak Sevak (Conduct & Engagement) Rules 2011".
12. It is therefore apparent from the pleadings that the applicant was not in good health for this period of absence, for which he has been punished on grounds of being absent unauthorizedly.
13. The Revisionary Authority has come to the conclusion that he was unauthorizedly absent from 28.2.2014 to 08.11.2014, had unconditionally accepted the charges before the IO, and also that he did not submit the proof for sending the leave applications and acknowledgements thereof. The contentions made by the appellant have not been accepted, since he did not submit the proof of material evidence to prove his case.
14. However, even if the leave application, apparently sent by the applicant, were not received or acknowledged, the factum of his illness appears to have been established in the penalty order issued by the Disciplinary Authority orders itself. It categorically states that the applicant was absent because of his illness.
15. The Honourable Supreme Court in the case of Union of India and another Vs. KG Sony (2006 SCC (L & S) 1568), had observed as follows:
"The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated 12 OA.No.170/01/2020/CAT/Bangalore Bench in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put differently, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."
16. In the present case, the penalty imposed on the applicant of "removal from service" on ground of being on unauthorized absence for the period where there is reason to believe that he was medically ill, is undoubtedly harsh and not commensurate with the misdemeanour of the applicant.
17. It is therefore considered appropriate, keeping the above points in view, that the orders passed dated 17.03.2016 (Annexure A-8) by the Respondent No.4 and dated 01.05.2019 (Annexure A-11) passed by the Respondent No.3 are set aside.
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18. The matter is restored to the file of the Respondent No.4 to reconsider the matter in the light of the observations made herein above. Appropriate decision shall be taken in accordance with law in an expedite manner. Such compliance shall be made within a period of eight weeks from the date of receipt of the certified copy of this order
19. OA stands disposed of in terms of above. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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