Central Administrative Tribunal - Bangalore
Radhakrishana Mallya vs Department Of Posts on 25 February, 2025
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O.A.Nos.170/200/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00200/2023
Order reserved on : 11.2.2025
Date of Order: 25.2.2025
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Radhakrishna Mallya
S/o.Gopalakrishna Mallya
Aged about 52 years
Working as Manager
(Assistant Superintendent of Post Offices)
National Sorting Hub
Mysuru-570 001 ......Applicant
(By Advocate: Shri.B.S.Venkatesh Kumar)
Vs.
1. Union of India represented by
Secretary to Government
Department of Posts
Ministry of Communications & Information Technology
Dak Bhavan, Parliament Street
New Delhi - 110 001
2. The Chief Post Master General
Karnataka Circle
Bangalore - 560 001
3. The Postmaster General
South Karnataka Region
SHAINESHAINEY VIJU
CAT Bangalore
Y VIJU 2025.03.03
10:13:42+05'30'
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O.A.Nos.170/200/2023/CAT/BANGALORE
GPO Building, Bangalore - 560 001
4. The Director of Postal Services
South Karnataka Region
Palace Road, Bangalore - 560 001 .....Respondents
(By Advocate Shri.Sayed S Kazi for R 1 to 4)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 claiming the following reliefs:
"(a) Call for records of the case from the respondents and on perusal
(b) Quash and set aside the impugned orders viz., Proceedings bearing Memo No.SK/VIG/2-RKM/CKM/2019 dated 1.6.2020 (Annexure A-6) passed by disciplinary authority/4th respondent;
No.SK/STA/9-3/01/2020/II dated 29.9.2020 (Annexure A-8) passed by appellate authority/3rd respondent and Order bearing Memo No.Vig/15-04/2021 dated 9.5.2022 (Annexure A-10) passed by revision authority/2nd respondent;
(c) Issue a consequential direction to the respondents to restore the withheld increments and further grant fixation of pay in accordance with law, and
(d) And grant such other orders/directions as deemed fit to grant to the applicant in the circumstances of the case including an order SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 3 O.A.Nos.170/200/2023/CAT/BANGALORE as to costs of this OA, in the interests of justice."
2. The reliefs are claimed on various grounds and legal provisions as mentioned in paragraph 5(1) to 5(24) of the Original Application. The brief facts of the case as mentioned by the applicant are that the applicant was served with a charge memorandum dated 30.12.2019 under Rule 16 of CCS (CCA) Rules by the fourth respondent alleging irregularities. The applicant submitted a representation against the charge memorandum on 10.1.2020. On 27.1.2020 and 4.2.2020, the applicant submitted further representations seeking details of documents and also for an opportunity to conduct a personal hearing as provided under Rule 16(1-A) of the CCS CCA Rules 1965, but the said request was rejected. Thereafter, the disciplinary authority passed the penalty order dated 1.6.2020 (Annexure A6). The applicant preferred an appeal which was rejected by the appellate authority by its order dated 29.9.2020. Further, the applicant submitted his revision petition to the competent authority and the same was also rejected by the revision authority by his order dated 9.5.2022 (Annexure A10).
3. In support of his case for denying the personal hearing, the applicant relies on the judgment of the Hon'ble Supreme Court in the SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 4 O.A.Nos.170/200/2023/CAT/BANGALORE case of O.K.Bhardwaj v. Union of India and others, a copy of which is produced as Annexure A11. Hence the applicant has approached this Tribunal seeking the aforementioned reliefs.
4. On notice, the respondents have filed their reply statement. The applicant has filed his rejoinder thereafter. Further, an additional reply statement has also been filed by the respondents.
5. The case came up for final hearing on 11.2.2025. Shri.B.S.Venkatesh Kumar for the applicant and Shri.Sayed S Kazi for respondent Nos.1 to 4 were present and heard.
6. We have carefully gone through the entire record and considered the rival contentions.
7. The basic facts of the case are not denied. The applicant was served with a Charge Memorandum vide memo dated 30.12.2019 under Rule 16 of CCS (CCA) Rules 1965, and he was given 15 days' time to reply to the same. From the Charge Memorandum itself it is clear that the charges were related to the incidences between the period from 25.5.2012 to 27.1.2016 when the applicant was working SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 5 O.A.Nos.170/200/2023/CAT/BANGALORE as Inspector of Posts, Channarayapatna Sub Division under Hassan Division, and it is said that while working as Inspector Posts, Channarayapatna Sub Division, the charged officer had investigated the multiple fraud case of Shri.S.Yoganarsimha, GDS BPM Honnenahalli BO a/w Harisave SO under Hassan Division.
8. During the course of the Circle level investigation carried out by DPS, S. K Region, Bengaluru on 11.2.2016, certain lapses were found, and it was pointed out that the results of SB 46 notices were not reported to the Divisional Office even in the final report of past work verification. And it is said that though the final report of the case was submitted on 29.7.2015, 124 SB 46 notices were booked on 1.8.2015 through registered post i.e, after the submission of the final report on the fraud case. It is said that he had not submitted the result of SB 46 notices even after the lapse of a 6-month period. It is also referred that Sri.Radhakrishna Mallya, in his inspection report dated 17.5.2014 on Honnenahalli BO, had pointed out the discrepancies in SB PB 898570 which was found in the custody of the BPM. No further compliance report was submitted to DO in this regard. The IP had assured to submit a detailed report on the discrepancy. It is said that the charged officer failed to pursue the case reported by him in SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 6 O.A.Nos.170/200/2023/CAT/BANGALORE the IR after this inspection, non-credit to the tune of Rs.67635/- committed by GDSBPM. The Charge Memorandum further says that during the course of past work verification, it is seen from the diary of the Inspector Posts Channarayapatna Sub Division that he had visited Honnahalli BO for thirteen times but did not record a single statement from the depositors. Further, it is said that he had recorded only 10 statements of GDSBPM out of 53. The entire burden of the investigation was placed on the shoulders of the Mail overseer. It is further said that the services of Mail Overseer were utilized for delivering the SB 46 notices, which were sent by registered post to the account holders instead of getting delivered through the delivery staff. It is further said that the Inspecting Officer failed to verify the prescribed number of discontinued RD accounts during the inspection of Honnenahalli BO as required vide para 16(A) of the standard questionnaire for the inspection of branch offices and based on those unrelated charges, it was concluded that Shri.Radhakrishna Mallya failed to maintain the devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of CCS(Conduct) Rules, 1964.
9. To this, the Charged Officer, vide his letter dated 10.1.2020, replied. Further, the applicant in his letter dated 4.2.2020, specifically SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 7 O.A.Nos.170/200/2023/CAT/BANGALORE mentioned inter-alia other things, to give him an opportunity to defend against the allegations under Rule 16(1-A) of CCS(CCA) Rules 1965, by supplying the prosecution documents and the names of witnesses through which the documents will be introduced, and to give opportunity to him for personal hearing and oral inquiry. And he further mentioned that after the receipt of documents based on which Rule 16 charges are levied against him, he will be able to submit my request for defence documents thereon. To which, the authorities replied by their letter dated 3.3.2020 that:
'With reference to above, and this office memo dated 27.1.2020 has been examined by the Competent Authority and has directed to intimate that the request for oral inquiry and personal hearing is rejected.' Simple examination of this document which is filed as Annexure A-5 shows that no reasons are forthcoming as to why the personal hearing was rejected.
10. The primary ground of the applicant is basing his reliance on the order of the Hon'ble Supreme Court reported in 2002 SCC (L&S) 188 in O.K Bhardwaj v. Union of India and Ors in Civil Appeal No.12774 of 1996, arising out of SLP(C) No.23720 of 1995 dated SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 8 O.A.Nos.170/200/2023/CAT/BANGALORE 4.10.1996, wherein inter-alia other things, the Hon'ble Supreme Court observed the following:
" 2. The High Court has recorded its opinion on two questions: (i) that the punishment imposing stoppage of three increments with cumulative effect is not a major penalty but a minor penalty; (ii) in the case of minor penalties, "it is not necessary to give opportunity to the employee to give explanation and it is also not necessary to hear him before awarding the penalty": a detailed departmental enquiry is also not contemplating in a case in which minor penalty is to be awarded.
3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with."
Simple reading of the above shows that even in the case of a minor penalty, an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 9 O.A.Nos.170/200/2023/CAT/BANGALORE charges against him. Further, the Court observed that if the charges are factual and if they are denied by the delinquent employee, an inquiry should also be called for (as in the case in hand before us). This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
11. The respondents could not show any better citation or controvert this assertion of the applicant. We are bound by the Hon'ble Apex Court decision cited above in the case of O.K Bharwaj v. Union of India and Others quoted supra and, in terms of the same as the applicant asserts that his case is unique as the incidence pertains to a period much earlier than the date of institution of inquiry i.e., on 30.12.2019; whereas the whole incidents pertain to the period from 25.5.2012 to 27.1.2016 and the inspection reports of the charged officer mentioned are of the year 17.5.2014 and the circle level investigation carried out by DPS, S.K Region, Bengaluru is of the date 11.2.2016. So the contention of the applicant is that these are such old fact-based charges that he has little personal memory of the said period, and he has to refresh the same from the records; and for which, unless he is heard in detail, he cannot defend his case. And the applicant strongly asserts that in such cases, not giving an opportunity SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 10 O.A.Nos.170/200/2023/CAT/BANGALORE when he had specifically asked for it, is an injustice amounting to the violation of the principles of natural justice.
12. We have gone through the letter dated 3.3.2020. The rejection of his request vide letter dated 3.3.2020 of the authority mentioning that:
"With reference to above, and this office memo dated 27.01.2020 has been examined by the Competent Authority and has directed to intimate that the request for oral inquiry and personal hearing is rejected."
A simple reading of the above shows that, without giving any specific reason when he had specifically asked for an oral hearing in his case, his application is rejected. And we have no doubt in our mind that such non-speaking rejection shows a non-application of mind and it certainly will be considered in contravention of the principles of natural justice and is in contravention of the Apex Court ruling cited in the case of O.K Bhardwaj v. Union of India and Others.
13. Rule 16 of CCS (CCA) Rules mentions the following:
16. Procedure for imposing minor penalties (1) Subject to the provisions of sub-rule (5) of rule 15, no order imposing on a Government SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 11 O.A.Nos.170/200/2023/CAT/BANGALORE servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (24) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) consulting the Commission where such consultation is necessary. The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission to the Government servant, who shall be required to submit, if he so desires, his written representation or submission on the advice of the Commission, to the Disciplinary Authority within fifteen days; and
(e) recording a finding on each imputation or misconduct or misbehavior.
(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (24) of Rule 14, before making any order SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 12 O.A.Nos.170/200/2023/CAT/BANGALORE imposing on the Government servant any such penalty.
(2) The record of the proceedings in such cases shall include-
(i) a copy of the intimation to the Government servant of the proposal to take action against him;
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the advice of the Commission, if any;
(vi) representation, if any, of the Government servant on the advice of the Commission;
(vii) the findings on each imputation of misconduct or misbehavior; and
(viii) the orders on the case together with the reasons therefor;"
14. Simple reading of the above shows that Rule 16 (1)(b) provides for holding an inquiry in the manner laid down in sub-rules (3) to (24) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary.
So there was a discretion to the disciplinary authority, but it shall be clear that no such discretion is absolute and always, that discretion has to be used with application of mind and any rejection in a case has to be with reasons.
15. In the instant case, as the actual incident has taken place 4-7 years earlier than the date of institution of the inquiry and charges are fact based and the applicant has specifically requested for oral inquiry, SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 13 O.A.Nos.170/200/2023/CAT/BANGALORE the respondents disciplinary authority should have applied his mind and passed the speaking order of either rejection or agreed for conduct of detailed inquiry as provided in Rule 16 (1)(b). In the light of Hon'ble Apex Court judgment in the case of O.K Bhardwaj v. Union of India and Others, we are of the considered opinion that in this particular case of the applicant an oral inquiry as envisaged under Rule 16(1)(b) should have been conducted.
16. Further, we also see that when the applicant went in appeal and revision, this specific point was not appreciated properly by the authorities, and he was not given an opportunity to be heard. Hence, without getting any further into the details of the merits of the case, we clearly find that procedurally not giving ample opportunity of being heard personally to the applicant and not permitting an oral inquiry makes a strong case for the applicant to interfere with the impugned orders on the procedural grounds in terms of the cited Apex Court decision. Hence, we pass the following orders:
The Original Application is partly allowed by setting aside the order of the Disciplinary Authority Memo No.SK/VIG/2- RKM/CKM/2019 dated 1.6.2020 (Annexure A-6) (passed by the 4th respondent), and order of the Appellate Authority (3rd respondent) SHAINESHAINEY VIJU CAT Bangalore Y VIJU 2025.03.03 10:13:42+05'30' 14 O.A.Nos.170/200/2023/CAT/BANGALORE No.SK/STA/9-3/01/2020/II dated 29.9.2020 (Annexure A-8) and the Order passed by the revision authority (2nd respondent) bearing Memo No.Vig/15-04/2021 dated 9.5.2022 (Annexure A-10). The respondents are directed to strictly conduct the inquiry afresh as observed by the Hon'ble Apex Court giving opportunity of ample hearing to the applicant as it is an old fact based case as asserted by the applicant and hold the inquiry strictly in terms of Rule 16. The inquiry shall be held in the manner as laid down in [sub-rules(3) to (24) of Rule 14], before making any order and imposing penalty on the government servant as it is a fact based inquiry and the period of the incident is several years earlier than the institution of inquiry and as the applicant specifically wants an oral inquiry.
Accordingly all pending M.As are disposed of. No order as to costs.
Sd/- sd/-
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/SV/
SHAINESHAINEY VIJU
CAT Bangalore
Y VIJU 2025.03.03
10:13:42+05'30'