Central Administrative Tribunal - Delhi
Sudhir Kumar vs M/O Communications on 13 May, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.2411/2014
Order Reserved on: 05.05.2016
Pronounced on:13.05.2016.
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Sudhir Kumar,
C/o Tara Chand Makkar,
106/8, Devi Lal Colony,
Gurgaon.
-Applicant
(By Advocates Shri Padma Kumar S. with
Shri K.K. Mishra)
-Versus-
1. Union of India through
Secretary,
Ministry of Communication and
Information Technology,
Dak Bhawan,
New Delhi-1.
2. Director Postal Service (O),
Office of Chief Post Master General,
Delhi Circle,
Meghdoot Bhawan,
New Delhi-110001.
3. Senior Superintendent of Post Offices,
New Delhi South West Division,
New Delhi-21.
-Respondents
(By Advocates Ms. Anupama Bansal)
2
(OA No.2411/2014)
ORDER
Mr. K.N. Shrivastava, Member (A):
This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985. The specific reliefs prayed for in the OA, read as under:
"(a) Quash and set aside the impugned order dated 27.4.2012, 24.9.2013, 2.1.2014 and also the Disagreement Note dated 15.2.2012.
(b) Direct the respondents to re-instate the applicant back in service with all consequential benefits, including back wages and interest thereon.
(c) Any other direction which this Hon'ble Tribunal may be pleased to pass in the interest of justice, in favour of the Applicant."
2. The brief facts of the case are as under.
2.1 The applicant while working as a Postman at Delhi Cantt Post Office was issued Annexure A-5 charge-sheet, in which articles of charge read as under:
"Shri Sudhir Kumar, (S/o Shri Tara Chand Makkar), Postman, (U/S) Mehrauli P.O., New Delhi-110030 while working at Delhi Cantt P.O., New Delhi-110010 during the period 2007-2009 is alleged to have misused the Credit Cards by stealing the Speed Post Articles from the Post Office addressed to different addresses sent by the Syndicate Bank. The Chief Manager, Syndicate Bank had made a complaint regarding non delivery of Speed Post articles and subsequent misuse of six Credit Cards amounting to Rs.2,69,624.89. On enquiry it was found that the credit card no.4090310000070629 sent by Syndicate Bank through Speed Post Article No.EK 363814963 IN dated 17.02.2009 a/t Shri Suneel Tiwari, Brahmos Aerospace Ltd., 16, Carriappa Marg, Kirby Place, Delhi Cantt, New Delhi-110010 was correctly received in Delhi Cantt P.O. on 20.02.2009 duly enterd in list from SPC but no further disposal of the article was found in the Post Office record. The credit card no.4090310000048492 (Add on card of Brig. Om Prakash) issued in the name of Smt. Sarla Chillar sent by the Syndicate 3 (OA No.2411/2014) Bank through Speed Post Article No.EK345977545 IN dated 11.07.2008 a/t Brig. Om Prakash, No.3/27 Arjun Vihar, Delhi Cantt, New Delhi-110010 received at Delhi Cantt P.O. on 14.07.2008 was issued the Postman which was delivered to the spouse (Smt. Sarla Chillar) of the addressee. But the spouse of the addressee has accepted the receipt of the Speed Post Article u/r contained the credit card in the name of her husband and denied to have received the credit card in her name.
During enquiry it was found that the credit cards issued in the name of Smt. Sarla Chillar and Shri Suneel Tiwari have been used mostly in Gurgaon and near its area where the said official is residing. There is a strong similarity in the shape and style of letter "S"between the signatures made on the attendance register by the said official and signatures made on the shopping/transactions receipts in the name of Smt. Sarla and Shri Suneel. Similar case was also taken place at Hauz Khas P.O. when the said official was working at Hauz Khas P.O., New Delhi-110016. The said official while working at Delhi Cantt P.O. in beat no.16 had delivered two Speed Post Articles contained Passports to the Postman, Shri Rajender Singh. The SPM Delhi Cantt P.O. had reported that the said official has become habitual to interfere in other beats. On the above said incidents/points, it is evident that the said official has stolen and misused the credit cards contained in the Speed Post Articles pertaining to other beats.
By doing so, Shri Sudhir Kumar, (S/o Shri Tara Chand Makkar), Postman, (U/S) is alleged to have failed to maintain absolute integrity, devotion to duty and behaved in a manner of unbecoming of a Govt. Servant in contravention of Rule-3 (1) (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
2.2 Pursuant to the above charge-sheet an enquiry was ordered by appointing the Enquiry Officer (EO). The EO submitted his Annexure A-8 report in which his finding was that the charge against the applicant is not proved. 2.3 The Disciplinary Authority (DA) did not accept the findings of the EO and decided to issue the disagreement note vide Annexure A-4 order dated 15.02.2012. The DA has given detailed reasons as to why he has not agreed with the findings of the EO.
4
(OA No.2411/2014) 2.4 The applicant submitted his reply to the disagreement note vide his Annexure A-9 letter dated 29.02.2012. The DA, i.e., Senior Superintendent of Post Offices (SSPO), New Delhi, South West Division, did not accept the reply of the applicant and passed the impugned Annexure A-3 punishment order dated 27.04.2012 imposing the penalty of removal from service on the applicant with immediate effect.
2.5 The applicant filed the revision petition before the Revisional Authority (RA), i.e., Chief Post Master General, Delhi Circle, who vide his Annexure A-2 order dated 24.09.2013 dismissed the revision petition. The Appellate Authority (AA), i.e., Director, Postal Services (O), Delhi Circle vide Annexure A-1 order dated 02.01.2014 also dismissed the appeal. Incidentally, RA's order dated precedes AA's order dated 02.01.2014; apparently the applicant filed his revision petition before the RA even without awaiting the disposal of his appeal by the AA. 2.6 Aggrieved by the impugned orders passed by the DA, AA and RA and the disagreement note dated 15.02.2013 issued by the DA, the applicant has filed the instant OA.
3. Pursuant to the notices issued the respondents entered their appearance and filed their reply. Applicant 5 (OA No.2411/2014) thereafter filed his rejoinder. With the completion of the pleadings the case was taken up for hearing the arguments of the parties on 05.05.2016. Shri Padma Kumar with Shri K.K. Mishra, learned counsel for the applicant and Ms. Anupama Bansal, leaned counsel for the respondents argued the case.
4. The learned counsel for the applicant submitted that the EO after conducting a detailed enquiry in the matter has found that the charges against the applicant are not proved. He further said that in accordance with Rule 15 (2) of the CCS (CCA) Rules, 1965, DA decided to issue the disagreement note, which is supposed to be tentative in nature but in the present case the DA has observed in the penultimate para of the disagreement note as under:
"In view of the above, it is proved that Sh. Sudhir Kumar, CO has misused the Credit Cards by stealing the Speed Post Articles from the Post Officer addressed to different addresses sent by the Syndicate Bank. Hence, the charge levelled against Sh. Sudhir Kumar, CO stands proved."
The above observation of the DA indicates as though the DA has concluded that the charge against the applicant is proved and hence the disagreement note, which ought to have been tentative, was in fact not tentative, as could be seen from the ibid para of the disagreement note. 6
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5. The learned counsel further submitted that the DA in the disagreement note has stated that the EO should have allowed the Presenting Officer to send the signature for verification by the handwriting experts and only on the basis of surmises and conjectures the DA has attempted to hold the applicant guilty. He said that the assumption in the disagreement note that the credit cards were misused in the area where the applicant has been residing and that misusing of the credit cards have happened only at such post offices where the applicant was posted, is too farfetched. He said that some persons might have misused some of the credit cards sent through speed post for which the applicant cannot be held guilty.
6. The learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the following cases to say that the disagreement note has to be tentative, which unfortunately is not the position in the instant case:
i. Yoginath D. Bagde v. State of Maharashtra & Anr., [JT 1999 (6) SC 62].
ii) Punjab National Bank and Others v. Kunj Behari Misra, [(1998) 7 SCC 84].
iii) Decision of the Hon'ble High Court of Delhi in K.C. Sharma v. BSES Yamuna Power Limited, [LPA No.646/2013 dated 18.03.2015.]
7. Concluding his arguments, the learned counsel submitted that the impugned orders of DA, AA, RA and so 7 (OA No.2411/2014) also the disagreement note issued by the DA are not based on facts and evidence and that they are based on surmises and conjectures. As such, the prayer made in the OA may be allowed.
8. Per contra, the learned counsel for the respondents submitted that the disagreement note is quite elaborate giving reasons as to why the DA is not agreeing with the findings of the EO. She said that the applicant was working as a Postman at Delhi Cantt Post Office, New Delhi during the period 2007-2009 and had stolen the Speed Post Articles (SPAs) containing credit cards from the post office sent by the Syndicate Bank to different addresses. The Chief Manager of Syndicate Bank made a complaint regarding non-delivery of SPAs and subsequent misuse of six credit cards amounting to Rs.2,69,624/-. On enquiry, it was found that the SPAs articles containing the credit cards sent by the Syndicate Bank to addressee Shri Sunil Tiweel Tiwari, Delhi Cantt was received in the Delhi Cantt post office on 20.02.2009 but its further disposal was not found in the post office records. Further another SPA containing a credit card meant for addressee Smt. Sarla Chillar sent by the Syndicate Bank was received in the post office on 14.07.2008. It was issued to the postman and the same was delivered to the spouse of the addressee. The 8 (OA No.2411/2014) addressee Smt. Sarla Chillar, however, confirmed that the credit cards in the name of her spouse, was received and not the one which was in her name. The enquiry further revealed that the credit cards meant for Smt. Sarla Chillar and Shri Suneel Tiwari were mostly used in Gurgaon, near the place/area where the applicant was residing and there was similarity & resemblance between the signatures made on the shopping transactions and the signatures on the attendance register of the applicant in the post office. It was also discovered that the applicant while working at Delhi Cantt post office in beat no.16 had delivered two SPAs containing passports to the addresses, which pertain to postman beat no.8 without the knowledge, consent and permission of the concerned postman. The sub-Postmaster Delhi Cantt had also reported that the applicant was in the habit of interfering with the working schedule of other beat postmen. For all these acts of the applicant, disciplinary enquiry under Rule 14 of the CCS (CCA) Rules, 1965 was initiated against him. Although the EO in his report has found the charge against the applicant as not proved but in the disagreement note, the DA has given convincing reasons for not agreeing with the findings of the EO. It was also submitted by the learned counsel that the misuse of credit cards from SPAs used to take place during the periods when 9 (OA No.2411/2014) the applicant was working at Hauz Khas Post Office and Delhi Cantt Post Office, but after his transfer from these Post Offices no such misuse was reported from those post offices.
9. Regarding the argument of the learned counsel that the disagreement note issued by the DA in this case is not tentative and that it goes to give an impression as though the DA has got a predetermined mind and has held that the charge against the applicant is proved, the learned counsel for the respondents submitted that the very fact that the disagreement note has been issued and the applicant has been asked by the DA to submit his representation against it, goes to show that the DA has not taken a final decision in the matter. To buttress her arguments, the learned counsel placed reliance on the judgment of this Tribunal in OA-1779/2015 -Deepak v. Union of India & Others, decided on 07.09.2015, in which it has been held that the action of the DA would reveal an open mind despite the fact that he has not used the word 'tentative' in his disagreement note. The learned counsel further argued that the prescribed procedures for conduct of the disciplinary enquiry have been followed scrupulously in the instant case and the principles of natural justice have been observed at every stage of the disciplinary enquiry. She also 10 (OA No.2411/2014) placed reliance on the judgment of the Hon'ble High Court of Delhi in K. Raj Arora & Anr. V. State Bank of India & Ors.,[2006 (91) DRJ 485] to say that the punishment of removal from service imposed on the applicant for the offence committed by him would not shock the judicial conscience. Concluding her arguments, she said that the OA is devoid of merit and substance and as such it may be dismissed.
10. We have considered the arguments of the learned counsel for the parties and have perused the pleadings and the documents annexed thereto. The scope of judicial intervention in a departmental enquiry is highly limited. Judicial intervention can be done only in the following situations:
i) If the enquiry has not been conducted as per the laid down procedures.
ii) If the principles of natural justice have not been followed in the conduct of the enquiry.
iii) If the punishment awarded is disproportionate to the offence committed so as to shock conscience.
11. In the instant case, we find that the enquiry has been conducted in accordance with the procedure laid down under the CCS (CCA0 Rules, 1965. The applicant has 11 (OA No.2411/2014) participated in the enquiry. The DA has disagreed with the findings of the EO and has issued a detailed disagreement note giving the reasons as to why he disagreed with the EO. Even though the disagreement note would not state that tentatively it has been found that the charge against the applicant is proved, but taking a holistic view and also relying on the judgment of this Tribunal in the case of Deepak (supra), we are convinced that the DA did not have a predetermined mind and that the findings as well as the action proposed to be taken, as indicated in the disagreement note, were tentative in nature. The preponderance of evidence, as discussed in the disagreement note as well as in the orders passed by the DA, AA and RA would indicate the misconduct of the applicant. Hence, we are of the opinion that the punishment of removal from service imposed on the applicant by the authorities concerned was fully justified for the act of malfeasance on the part of the applicant. The Post Offices are repository of faith of public at large. Such act of misusing the articles sent to the members of the public through SPAs would erode the faith of the public in the postal system itself, which could be deleterious to the interest of the public as well as to that of the Postal Department, which has been serving the Society for over a 12 (OA No.2411/2014) century. Hence, the exemplary punishment of removal from service imposed on the applicant for his misdeeds by the competent authority is fully understandable and justified.
12. For the reasons in the foregoing paragraphs, we do not find any merit in the OA and the same is dismissed.
13. No order as to costs.
(K.N. Shrivastava) (Justice M.S. Sullar)
Member (A) Member (J)
'San.'