Central Administrative Tribunal - Allahabad
H K Upadhyay vs M/O Communications on 18 September, 2025
1
RESERVED ON 03.09.2025
Central Administrative Tribunal
Allahabad Bench, Allahabad
****
Original Application No. 436 of 2016
This the 18th Day of September, 2025.
Hon'ble Mr. Justice Om Prakash - VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Hari Krishna Upadhayaya, son of late Shri Jwala Prasad Upadhayaya, R/o
Village Bhainsahiya, P.O. Dudhaura, District Basti.
.......Applicant
By Advocate: Shri M.K Upadhyay/Shri G.D. Mishra
Versus
1. Union of India through Secretary, Ministry of Communication & I.T.
Department of Posts, Dak Bhawan, Parliament Streat, New Delhi.
2. Post Master General Gorakhpur Region, Gorakhpur.
3. Director, Postal Services, Gorakhpur Region, Gorakhpur.
4. Superintendent of Post Offices, Basti Region, Basti.
......Respondents
By Advocate: Shri S.C. Mishra
ORDER
Hon'ble Mr. Justice Om Prakash - VII, Member (J) This Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following main relief(s):-
"8.1. Issue a writ, order or direction in the nature of certiorari calling for the records from the respondents and quash the impugned order dated 23.07.2013 passed by respondent No. 4 and order dated 22.05.2015 passed by respondent No. 3 (Annexure A-26 and A-28 of Compilation 1 to this original application respectively).
8.2 Issue a writ, order or direction in the nature of mandamus commanding the respondents and directing them to reinstate the MANISH KUMAR SRIVASTAVA 2 applicant in service with consequential relief of the salary and allowances.
8.3 Issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
8.4 Allow the application with costs".
2. The brief facts of the case are that the applicant was working as Sub Post Master in Sub Post Office, Saltaua, District Basti. In a disciplinary proceeding, he was dismissed from service by the order dated 23.07.1993 passed by respondent no. 4. The appeal filed by the applicant against the dismissal order was dismissed by respondent no. 3 on 04.12.1993. Thereafter, the applicant preferred a revision, which too was dismissed by order dated 14.02.1996. Aggrieved by these orders, the applicant filed Original Application No. 1003 of 1996 (Hari Krishna Upadhayaya Vs. Union of India and others) before this Tribunal, which came to be dismissed by judgment and order dated 19.04.2002. The applicant then approached the Hon'ble High Court by filing Civil Misc. Writ Petition No. 32610 of 2002, challenging the order of the Tribunal. The Hon'ble High Court by its order dated 30.11.2011 allowed the writ petition, quashed the impugned orders and directed the disciplinary authority to decide the matter afresh. In compliance with the said order, respondent no. 4 again dismissed the applicant from service by order dated 23.07.2013. The applicant preferred an appeal before respondent no. 3, which was dismissed on 22.05.2015. Being aggrieved by the aforesaid orders, the applicant has filed the present Original Application.
3. Per contra, learned counsel for the respondents has filed counter affidavit in which they have stated that the applicant was appointed as Postal Assistant in the year 1977 on compassionate grounds after the death of his father. While working as Money Order Issue Clerk at Basti Head Post Office during the period 12.09.1977 to 10.12.1977, he misappropriated government money amounting to Rs. 8,513/-. For this grave misconduct, the applicant was placed under suspension vide memo dated 19.12.1977, and disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were initiated against him vide memo dated 28.02.1980. On conclusion of the said proceedings, the applicant was reinstated in service and a penalty of MANISH KUMAR SRIVASTAVA 3 recovery of one year's pay was imposed upon him vide order dated 25.11.1982. Subsequently, vide order dated 10.03.1992, the Postmaster, Basti Head Office, reported to respondent no. 4 that the applicant had retained excess cash to the tune of Rs. 1,76,230.84, against the maximum authorized limit of Rs. 4,000/-. Pursuant to this, an inquiry was initiated. On physical verification, a shortage of Rs. 6,000/- was found. Further, several irregularities were noticed in the applicant's handling of Savings Bank, Time Deposit, and Recurring Deposit transactions. It was found that the applicant had fraudulently withdrawn amounts from several RD/TD/SB accounts by forging the signatures of the depositors. In this manner, the applicant misappropriated government money to the tune of Rs. 6,01,059.50. Consequently, he was shifted from Saltaua Sub Post Office on 16.03.1992 and was placed under suspension vide memo dated 22.05.1992. The misappropriation cases were reported to the police at P.S. Sonha, where Case Crime No. 76/1992 under Sections 409, 419, 420, 467, 468 IPC and Case Crime No. 155/1992 under Sections 409, 419, 420, 468 IPC were registered. After investigation, charge sheets were filed against the applicant. The criminal trial is still pending before the Court of ACJM, 1st, Basti. Meanwhile, disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were also initiated against the applicant for non- accounting of a deposit of Rs. 8,000/- made on 06.08.1991. A charge sheet dated 30.06.1992 was served upon the applicant on 03.07.1992. However, he did not submit any reply. An Inquiry Officer was appointed, who conducted the inquiry by affording reasonable opportunities to the applicant to defend himself in accordance with the Rules, and submitted his report on 03.07.1993. The applicant thereafter submitted his representation on 20.07.1993 against the inquiry report. On the basis of the inquiry report, the Disciplinary Authority imposed the penalty of dismissal from service vide memo dated 23.07.1993. The appeal filed by the applicant on 23.07.1993 was rejected vide memo dated 04.12.1993. His petition against the appellate order was also dismissed vide order dated 14.02.1996. Against the aforesaid orders, the applicant approached this Tribunal by filing O.A. No. 1003 of 1996, which was dismissed by order dated 19.04.2002. The applicant challenged the said order by filing Writ Petition No. 32610 of 2002 before the Hon'ble High Court, Allahabad. The Hon'ble High Court, vide MANISH KUMAR SRIVASTAVA 4 judgment dated 30.11.2011, allowed the writ petition and remanded the matter to the authorities for fresh decision. In compliance with the judgment of the Hon'ble High Court, respondent no. 4 again passed the order of dismissal from service on 23.07.2013. The appeal against this dismissal order was also dismissed by the appellate authority vide order dated 22.05.2015. The respondents further submit that, upon receipt of the appellate order, the applicant did not prefer a revision petition before the competent authority under Rule 29 of the CCS (CCA) Rules, 1965. Thus, he has failed to exhaust the remedies available to him under law.
4. Rejoinder affidavit has also been filed by the applicant in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been asserted in the rejoinder affidavit.
5 We have heard Shri M.K Upadhyaya, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record and perused the written submissions filed by the applicant.
6. Submission of learned counsel for the applicant is that the Inquiry Officer did not properly consider the applicant's defence. The inquiry report is arbitrary, non-speaking, and was prepared ex-parte. Important points raised in the defence brief and representation were ignored. Hence, the report cannot be sustained in law. Learned counsel for the applicant further argued that the Disciplinary Authority, while passing the punishment order dated 23.07.2013, did not deal with the applicant's defence. The order was passed with a closed mind and without recording proper reasons, in violation of government instructions and settled principles of natural justice. Learned counsel for the applicant again argued that witnesses like Shri Khedu were examined on dates when the applicant was absent on medical grounds. Despite informing the Inquiry Officer, the inquiry was proceeded ex-parte. The applicant was denied the opportunity to cross- examine, making the evidence recorded behind his back inadmissible. Learned counsel for the applicant again argued that documents such as Ex. Ka-20 and depositions recorded without cross-examination cannot be treated as valid evidence. There is no handwriting expert's report to prove MANISH KUMAR SRIVASTAVA 5 that the alleged forged documents were in the handwriting of the applicant. In absence of such proof, the charges are said to be proved based on assumptions and cannot be sustained. It is also argued that the Inquiry Officer failed to evaluate oral and documentary evidence together. Cross- examination replies and important observations record were not considered in the inquiry. Prosecution evidence was weak and incomplete, and important witnesses/documents were not produced. It is next argued that evidence shows that other officials (SW-1 and SW-3) were joint custodians of accounts and had signed the Daily Account and dispatched the transaction lists. If there was misappropriation, responsibility lay with them, not the applicant. Ignoring of this evidence shows biasness against the applicant.
7. Learned counsel for the applicant again argued that Daily Accounts, Long Books, and transaction lists proved that the prosecution story of substitution of documents is false. Entries were duly prepared, stamped, and dispatched by other staff. Hence, the allegation against the applicant is not supported by evidence. Several other employees of the same Sub Post Office, who were also charge-sheeted, were given only minor penalties such as recovery of amounts. However, the applicant alone was dismissed from service. This is discriminatory, arbitrary, and violative of Article 14 of the Constitution of India. The appellate authority rejected the appeal without granting personal hearing to the applicant. Since the appeal was his last opportunity to prove his innocence, denial of hearing is a serious violation of natural justice. The punishment order as well as the appellate order are biased, passed with a closed mind, contrary to rules, violative of Articles 14 and 311(2) of the Constitution of India, and therefore not sustainable. The applicant deserves to be exonerated.
9. In rebuttal, learned counsel for the respondents argued that applicant was guilty of very serious charges of misappropriation of government money, falsification of records, and forgery of depositors' signatures. The misconduct was not minor in nature but involved huge financial irregularities amounting to more than Rs. 6,01,000/-. The applicant had earlier also been punished in disciplinary proceedings in 1982 for MANISH KUMAR SRIVASTAVA 6 misappropriation of Rs. 8,513/-. This shows that he is a habitual offender and has no clean service record.
10. Learned counsel for the respondents further argued that in the present case, a regular inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was conducted by appointing an Inquiry Officer. The applicant was served with charge sheet dated 30.06.1992, but he failed to submit reply in time. The Inquiry Officer gave him sufficient opportunities to participate, but he remained absent on several dates on one pretext or another. The applicant cannot take benefit of his own non-cooperation. He further argued that the Inquiry Officer conducted the inquiry as per rules and submitted his report holding the charges proved. The report was based on documents, records, and witness statements. The applicant's representation against the report was duly considered. The disciplinary authority passed a reasoned and speaking order of dismissal dated 23.07.2013, in compliance with the directions of the Hon'ble High Court. Learned counsel next argued that the appellate authority also considered all grounds raised by the applicant and rejected the appeal by a detailed order dated 22.05.2015. The contention that no personal hearing was granted is not sustainable because the CCS (CCA) Rules do not provide for oral/personal hearing at the appellate stage as a matter of right. The applicant's allegation that evidence was recorded behind his back is not correct. Whenever he remained absent, the Inquiry Officer proceeded as per rules, after granting repeated chances. The documents relied upon are official records prepared in due course of business and cannot be brushed aside merely because the applicant denies them. It has also been argued that handwriting expert's opinion was not obtained is also misconceived. The inquiry is not a criminal trial. Strict rules of evidence do not apply. In departmental proceedings, proof is based on preponderance of probabilities, and there was enough evidence to establish the charges against the applicant.
11. Learned counsel for the respondents contended that the plea of discrimination is baseless. Other employees against whom lesser charges were proved were given minor penalties. Since the applicant was found guilty of the most serious charges involving forgery and misappropriation of a very large amount, he was rightly dismissed from service. The MANISH KUMAR SRIVASTAVA 7 principle of equality under Article 14 does not apply to unequal cases. The applicant has suppressed the fact that he did not avail the remedy of revision under Rule 29 of the CCS (CCA) Rules, 1965. Without exhausting the departmental remedies, he cannot maintain the present Original Application. It is further submitted that criminal cases are pending against the applicant in respect of the same misappropriation. In such circumstances, the gravity of misconduct is beyond doubt. Retention of such an employee in service is against public interest and would erode public confidence in the postal department. The orders passed by the disciplinary authority as well as the appellate authority are legal, valid, and based on evidence. There is no violation of Article 14 or 311(2) of the Constitution of India. The punishment of dismissal is proportionate to the gravity of misconduct.
12. We have carefully considered the pleadings of both parties as well as written submissions submitted by the learned counsel for the applicant, and the submissions advanced by the learned counsel for the parties.
13. The admitted facts are that the applicant, while working as Sub Post Master, Saltaua, was proceeded against in departmental proceedings under Rule 14 of the CCS (CCA) Rules, 1965, on the allegations of grave financial irregularities, misappropriation, and forgery in respect of depositors' accounts. The Inquiry Officer submitted his report dated 03.07.1993, holding the charges proved. On consideration of the inquiry report and representation of the applicant, the Disciplinary Authority imposed the penalty of dismissal from service vide order dated 23.07.1993. The appeal and revision were dismissed, which culminated into the earlier round of litigation before this Tribunal and later before the Hon'ble High Court. The Hon'ble High Court by its judgment dated 30.11.2011 directed reconsideration of the matter. Thereafter, enquiry was concluded afresh from the stage to which Hon'ble High Court has directed. Disciplinary Authority again imposed punishment of dismissal on 23.07.2013, which was upheld in appeal on 22.05.2015.
14. The main contention of the applicant is that the inquiry was conducted ex-parte on certain dates when he was on medical leave, and that he was denied opportunity to cross-examine material witnesses. He further MANISH KUMAR SRIVASTAVA 8 contends that the evidence relied upon is not supported by handwriting expert's opinion, that the inquiry report is non-speaking, and that the punishment of dismissal is disproportionate, particularly when other employees involved in similar transactions were let off with minor penalties.
15. On the other hand, the stand of the respondents is that the applicant was guilty of very serious charges of financial irregularities involving more than Rs. 6,01,000/-, apart from his earlier misconduct of misappropriation of Rs. 8,513/-, for which he had already been punished in 1982. They argued that the applicant was given repeated opportunities during inquiry but avoided participation, that the disciplinary authority as well as appellate authority passed reasoned orders, and that dismissal is the only proportionate punishment in the facts of this case.
16. From perusal of the record, it is clear that the applicant was certainly given a charge sheet and the inquiry was conducted in accordance with Rule 14 of CCS (CCA) Rules, 1985. Though the applicant claims denial of opportunity, it is evident that he failed to cooperate on several occasions, resulting in the inquiry being concluded in his absence. Law is well settled that if the delinquent employee, despite repeated opportunities, fails to participate in the enquiry proceeding, he cannot later complain of denial of natural justice.
17. The record further shows that a number of employees of the same Sub Post Office were charge-sheeted in relation to the same irregularities. The punishment orders produced on record indicate that several of those employees were subjected only to recovery of amounts for example, orders of recovery of Rs.10,000/- each against CPS Lal and Ram Bhej, recovery of Rs.6,000/- against Abdul Aziz, recovery of Rs.500/- against A.N. Shukla, recovery of Rs.24,000/- against Abdul Naim, and recovery of Rs.15,000/- against Ram Achal, along with similar recovery orders against other staff. These facts are not disputed by the respondents.
18. In the present case, the respondents have relied on the magnitude of loss, previous punishments, and the allegation of forgery against the applicant. However, the impugned order does not clearly compare the role MANISH KUMAR SRIVASTAVA 9 of the applicant with that of other employees who were only visited with recoveries. No reasons have been recorded as to why the applicant alone was awarded the extreme penalty of dismissal, while others involved in the same transactions were given lesser punishments. In these circumstances, the Tribunal is competent to examine whether such differential treatment is arbitrary.
19. Hon'ble High Court while setting aside the Tribunal order, orders passed by the Disciplinary Authority and Appellate Authority (in the first round of litigation) in this matter has prayed the following observations:-
"In the facts and circumstances of this case, we are of the considered opinion that the order passed against the petitioner is motivated and the enquiry has not been conducted in a fair manner. It has been proceeded in a vindictive manner and is against the principles of natural justice. Admittedly, criminal proceeding into the same charge was pending before the Court in which the evidence and witnesses are also same. Therefore, it was incumbent upon the respondents to have restrained themselves from passing any order in a hurried manner in the domestic enquiry particularly when the similarly situated persons against whom the charge of was levelled have been awarded a lesser punishment but the services of the petitioner have been terminated. This action is discriminating. The CAT has misdirected itself in concluding that the petitioner was not cooperating in the enquiry proceedings is fallacious for it did not notice the order of Vice-Chairman of the CAT restraining the respondents from going to Saltauwa".-
20. We find that the disciplinary order fails to disclose adequate reasons for imposing a much harsher punishment on the applicant compared to other employees involved in the same set of irregularities. This omission is a valid ground for interference with the quantum of punishment. Interference is required not because equality demands identical punishment in all cases, but because there is no rational basis shown on record for the striking disparity in punishments.
21. Hon'ble Supreme Court in various decisions have considered the power of High Court or the Tribunal to review penalty imposed by the authorities.
22. The Apex Court in the case of B.C. Chaturvedi Vs. Union of India reported in 1995 Law Suit (SC) 1015 observed as under:-
MANISH KUMAR SRIVASTAVA 10 "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience."
23. Again in the case of Union of India Vs. S.S. Ahluwalia reported in 2007 Law Suit (SC) 950, the Apex Court has been pleased to observe as under:-
"The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty."
24. In the case of State of Meghalaya Vs. Mecken Singh N Marak reported in 2009 Law Suit (SC) 1935, the Apex Court has also held as under:-
"A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. The punishment imposed by the disciplinary authority or the Appellate MANISH KUMAR SRIVASTAVA 11 Authority unless shocking to the conscience of the court, cannot be subjected to judicial review."
25. In the case of Director General , RPF Vs. Sai Babu reported in 2003 Law Suit (SC) 117, the Apex Court has been pleased to hold as under:-
"4. Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appellants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge."
26. In the present case, the misconduct alleged is grave and cannot be lightly condoned. Misappropriation of public money by a postal employee strikes at the root of public confidence in the department. At the same time, the quantum of punishment must be seen in the backdrop of mitigating circumstances (i) the incident is more than 30 years old, (ii) the applicant has remained out of service since 1993, suffering not only dismissal but also long drawn criminal and departmental proceedings, (iii) some of his co-delinquents were awarded lesser penalties, (iv) the alleged financial loss has already been subjected of recovery proceedings and criminal trial.
27. The established tests for interference with quantum of punishment have been adverted to by the Courts and by this Tribunal. Those authorities make clear that interference is limited and should be exercised only in exceptional cases where the punishment is shocking to judicial conscience or is grossly disproportionate to prove misconduct. In applying that test the Tribunal must weigh the aggravating features of the misconduct against the mitigating circumstances. The relevant factors include (i) gravity of misconduct, (ii) past conduct, (iii) nature of duties and position, (iv) previous penalty, and (v) requirement of discipline in the service as well as any mitigating factors such as long delay, age, health, extent of participation, and comparative treatment of co-delinquents. MANISH KUMAR SRIVASTAVA 12
28. In these circumstances, the penalty of dismissal appears to be too harsh and disproportionate as High Court has also observed. Ends of justice would be met if the punishment is suitably modified to a lesser penalty such as compulsory retirement. This would balance the requirement of maintaining discipline and integrity in public service with the principle of proportionality in punishment as applicant has reached at the age of superannuation during pendency of present OA.
29. Accordingly, the Original Application is partly allowed. The impugned orders dated 23.07.2013 and 22.05.2015, to the extent they impose dismissal from service, are quashed. It is noticed that the juniors of the applicant, who were charged with similar misconduct, were awarded lesser punishment. Therefore, in order to maintain parity and to ensure that the punishment is commensurate with the gravity of misconduct and also taking into consideration the past conduct of the applicant, the respondents are hereby directed to substitute the punishment imposed upon the applicant with the punishment of compulsory retirement which will meet the end of justice. The respondents are directed to issue necessary order within a period of three months from the date of receipt of a certified copy of the order. Consequential benefits except back wages of the period in which applicant was out of job be also extended to him. No order as to costs. All associated M.As also stand disposed of.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
Manish
MANISH
KUMAR
SRIVASTAVA