Central Administrative Tribunal - Bangalore
D M Srinivasa vs D/O Posts on 31 October, 2023
1
OA.No.34/2022/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00034/2022
ORDER RESERVED ON:20.09.2023
DATE OF ORDER: 31.10.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
D.M. Srinivasa,
S/o D.K. Mara Shetty,
Aged 56 years,
Ex GDS BPM, Dudda BO,
a/w V.C. Farm SO,
Mandya Division-571 401,
Residing at Dudda Post,
Mandya Taluk,
Mandya District-571 405. ....Applicant
(By Advocate Shri A.R. Holla)
Vs.
1. Union of India,
By Secretary,
Department of Posts,
Dak Bhavan,
New Delhi 110001.
2. The Director of Postal Services,
Office of the Postmaster General,
S.K. Region,
Bengaluru - 560001.
3. The Superintendent of Post Offices,
Mandya Division,
Mandya -571 401. ....Respondents
(By Shri K. Gajendra Vasu, Sr. Panel Counsel)
2
OA.No.34/2022/CAT/Bangalore Bench
ORDER
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 reliefs:
a) To quash Memo No. F4-2/16-17 dated 11.08.2021, issued by respondent No.3, (Annexure-A5), vide which the penalty of removal from engagement with immediate effect has been imposed on the applicant.
b) To quash Order No.SK/STA/9-3/24/2021/I dated 17.12.2021, issued by respondent No.2, (Annexure-A7), vide which the appeal against the penalty imposed upon the applicant has been rejected.
c) Direct the respondents to reinstate the applicant in service treating the period from 22.12.2016 till the date of his reinstatement as on duty, with the benefit of continuity of service, extending all consequential benefits accordingly.
d) Grant such other relief deemed fit, having regard to the facts and circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant joined the Postal Department as GDS BPM (Gramin Dak Sevak Branch Postmaster), Dudda BO a/w V C Farm SO in Mandya Division on 05.12.2013. He was 'put off duty' in contemplation of disciplinary proceedings with effect from 22.12.2016.3
OA.No.34/2022/CAT/Bangalore Bench
b) An inquiry was held against the applicant under Rule 10 of the GDS (C&E) Rules, 2011. Six articles of charge were framed against him vide Memorandum dated 02.11.2017. The gist of these 6 articles of charge against the applicant were as follows:
i. He had accepted Rs.2,500/- deposit into SSA account of Kum.
D.Y.Lavanya, on 03.09.2016, 07.10.2016 & 21.11.2016, but failed to account for the said amount into branch office account.
ii. He had accepted Rs.7,000/- deposit in to SSA account of' Kum. Dhanyashree on various dates from 08.06.2016 to 15.11.2016, but failed to account the same into branch office account.
iii. He had accepted Rs.7,000/- deposit into SSA account of Kum.
Manasa on various dates from 24.05.2016 to 16.12.2016, but failed to account the same into branch office account. iv. He had accepted Rs.9,000/- into SSA account of Kum.
B.C.Hema on 13.04.2016 and 19.12.2016, but failed to account the same into branch office account.
v. He had accepted Rs.18,000/- deposit into RD account of Sri.D.S.Raghupathaiah on various dates from 01.04.2016 to 05.12.2016, but failed to account the same into branch office account.
4
OA.No.34/2022/CAT/Bangalore Bench vi. He had withdrawn Rs.500/- without the knowledge of the depositor from S.B. account number 2141008365 on 30.11.2015.
c) An inquiry was held into the articles of charge against the applicant and the Inquiry Officer submitted his report dated 14.06.2021, holding that the 1st article of charge has not been proved and other 5 articles of charge were proved against the applicant. The respondent No.3 enclosing a copy of the Inquiry Report vide his letter dated 14.07.2021, issued his dissenting note in respect of the finding in respect of 1st article of charge and agreed in respect of all other articles of charge. The respondent No.3 directed the applicant to submit his representation on the findings of inquiry within 15 days.
d) The applicant submitted his representation on the findings of inquiry on 05.08.2021. After considering the findings of inquiry, taking a view that all the articles of charge were proved against the applicant, the respondent No.3 passed an order dated 11.08.2021 imposing the penalty of removal of the applicant from service.
e) The applicant preferred an appeal to the respondent No.2 against the order of penalty imposed on him vide appeal dated nil. The respondent No.2, passed an order dated 17.12.2021 rejecting the appeal of the applicant.
f) The applicant submits that of the 6 articles of charge, 1st article of charge has been held as 'not proved' against the applicant. The respondent No.3 disagreed with the finding on the ground that the 5 OA.No.34/2022/CAT/Bangalore Bench transactions have been depicted in Ex.P1, which is the passbook, and the entries therein have been authenticated by the signature of the BPM. The passbook was in the custody of the account holder, who did not attend the inquiry. The conclusions of the respondent No.3 are without any basis.
g) There is no complaint from the account holders with regard to the alleged discrepancies stated in the articles of charge. None of the account holders in respect of the articles of charge No. 1 to 6 has attended the inquiry and deposed in support of the articles of charge. There is no evidence in support of any of the articles of charge. This is a case of 'no evidence' and therefore, there is no basis to hold that the articles of charge have been proved against the applicant.
h) The Inquiry Officer / the respondent disciplinary authority have relied upon the so called admission made in the statements alleged to have been given by the applicant before the investigating official/Inspector of Posts/Mail Overseer to conclude that the articles of charge have been proved against the applicant. These statements have no evidentiary value as there was no cross examination of the concerned witness who gave statement before the investigating official. The Inquiry Officer has relied upon inadmissible evidence for his conclusions.
i) The Appellate Authority, has not considered the appeal in accordance with the provisions of Rule 18 of the GDS (C&E) Rules, 2011, in as much as he has failed to consider whether the findings are based on evidence, whether the inquiry has been held in accordance with the 6 OA.No.34/2022/CAT/Bangalore Bench rules, whether the findings are justified and whether the penalty imposed is excessive, etc., and passed the order.
j) The applicant submits that the amount stated in the charge memo has been repaid by the applicant. There is no loss caused to the Government and as such, the orders passed by the respondent No.3 and 2 are unreasonable and liable to be set aside.
3. The respondents have filed their written statement wherein they have averred as follows:
a) Sri D M Srinivasa, the applicant was working as GDS Branch Post Master of Dudda BO A/W V C Farm for the period from 05.12.2013 to 22.12.2016. He was proceeded under Rule 10 of Department of Posts Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011. He was issued with memorandum of articles of charge and copy of the same is produced as Annexure A-1 of OA. After completion of inquiry, report was submitted by Inquiry Officer and copy of the same is produced as Annexure A-2 of OA. Then Respondent No.3 issued notice to applicant to submit his version on IO report vide Annexure A-3 of OA. Applicant submitted his version to respondent No.3 vide Annexure A-4 of OA.
b) In Annexure A-4 of OA, in the last paragraph of page number 9, applicant clearly mentions that "Now I promise and ensure that I will not come across any such failures in future and I will work honestly with more dedication to my work. Hence I sincerely request your kind-
self kindly provide me an opportunity to get the bread and butter to my children and to serve the public honestly once again. I once again 7 OA.No.34/2022/CAT/Bangalore Bench promise you that I will not give room for such faults in future and I will serve the public honestly. Kindly view the case leniently and award any graded punishment except removal or dismissal from service and give a new life to me and my family". In the above statement, applicant has clearly admitted to all the charges and begging for pardon and admits that he is ready to face any punishment except removal or dismissal. Hence, averments of applicant that views expressed by Respondents No.3 is not tenable in law, cannot be accepted.
c) Averments of the applicant is that no complaint was received from account holders regarding discrepancies. Articles of charge are based on non-credit of amounts in the customers' accounts wherein, amount is entered in the passbook but not transferred into department accounts. Since pass book entries are available, customers cannot find any fault with applicant and obviously do not lodge any compliant. Applicant is misleading this tribunal by raising this point. Averments of applicant is that since no witness attended inquiry, this is case of 'no evidence' and there is no basis to hold that articles of charge have been proved against applicant. This is absolutely wrong. Applicant has made deposit entries in the passbooks and authenticated them by impressing date stamp which he has never denied. Even though witnesses did not attend the inquiry, documentary evidences do not lie.
d) The applicant has stated that no witness attended the inquiry and all the documents have lost evidentiary value. Inquiry officer relied upon 8 OA.No.34/2022/CAT/Bangalore Bench statement made by parties. Therefore, inquiry is vitiated and findings therein are not sustainable in law. This is not correct.
e) Another averment of applicant is that the amount stated in the charge memo has been repaid by the applicant, there is no loss caused to the Government and as such the orders passed by the respondent No.3 and 2 are unreasonable and liable to be set aside. However, even if the applicant has made good the amount mentioned in Articles of charge, it does not mean that he is innocent and has to be exonerated.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the charges against the applicant are relating to his accepting the money towards deposits from various parties and entering the amount received from them in the form of entries in Pass Book along with the date stamp. However, the applicant had failed to account for them amount in the BO account, which was supposed to be maintained by him.
6. A perusal of the detailed Inquiry Report indicates that the applicant had stated while replying to the questions in the inquiry during the process of inquiry that the amount received by him had been handed over to PW-4 i.e. Sri Doddathimachari K., Postal Assistant, V.C. Farm. However, this has been specifically denied by Sri Doddathimachari. K, PW-4.
7. A perusal of the Inquiry Officers report also indicates that in the course of the preliminary inquiry, statements of the depositors (witnesses) had been recorded. All the depositors in their written statement given before the postal 9 OA.No.34/2022/CAT/Bangalore Bench authorities had stated that they had opened the Sukanya Samrudhi Accounts in Dudda Branch Post Office and tendered the amounts to the applicant. The applicant had made the deposit entry in the pass book along with the date and stamp impression. However, these depositors had chosen not to appear before the Inquiry Officer subsequently, during the final inquiry process, despite issuance to summons to them. The applicant has relied on this to take the stand that in the absence of depositors, their statements will not have evidentiary value in the absence of opportunity to cross examination.
8. It is however noted that despite efforts made by the postal authorities in the form of issuing of summons to all these depositors through several notices, they had not chosen to appear during the process of formal inquiry. However, the Pass Books in question form an important piece of evidence. The passbooks clearly indicate the entries made by the applicant along with the date stamp. Hence, the contention of the applicant that the entire inquiry is based upon 'no evidence' cannot be countenanced. There is enough material evidence to indicate that the applicant had accepted the deposit amount from the deposit holders and made relevant entries in the pass books of the depositors.
9. A perusal of the charge memo and the inquiry report also indicate that the applicant had initially taken the stand that the money received by him from deposit holders had been handed over to Sri Doddathimmachari, Postal Assistant. This has been specifically denied by Sri Doddathimmachari during the course of the inquiry.
10
OA.No.34/2022/CAT/Bangalore Bench
10. In a departmental inquiry, the quality of evidence available has to be examined and appreciated by the Disciplinary Authority and the Appellate Authority. This Tribunal is not required to review the quality of the evidence which has been evaluated by the disciplinary and the appellate authorities.
11. In B.C. Chaturvedi v. Union of India & Ors. ((1995) 6 SCC 749), a three Judge Bench of the Apex Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the 11 OA.No.34/2022/CAT/Bangalore Bench delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
12. The Apex Court in the case of State Of Andhra Pradesh & Ors vs Chitra Venkata Rao on 29 August, 1975 (1975 AIR 2151, 1976 SCR (1) 521) has observed as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is 12 OA.No.34/2022/CAT/Bangalore Bench guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.13
OA.No.34/2022/CAT/Bangalore Bench
13. The Honourable Apex Court in Union of India v. P. Gunasekaran, (2015) 2 SCC 610 on 3 November, 2014 had observed as follows:
Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a) the enquiry is held by a competent authority;
b) the enquiry is held according to the procedure prescribed in that behalf;
c) there is violation of the principles of natural justice in conducting the proceedings;
d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i) the finding of fact is based on no evidence.14
OA.No.34/2022/CAT/Bangalore Bench Under Article 226/227 of the Constitution of India, the High Court shall not:
a) re-appreciate the evidence;
b) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
c) go into the adequacy of the evidence;
d) go into the reliability of the evidence;
e) interfere, if there be some legal evidence on which findings can be based
f) correct the error of fact however grave it may appear to be;
g) go into the proportionality of punishment unless it shocks its conscience.
14. In the present case, the enquiry has been held by a Competent Authority, according to the procedure prescribed in that behalf and there is no violation of the principles of natural justice in conducting the proceedings. The Disciplinary Authority has come to the conclusion based upon the available documentary evidence, that the applicant had indeed been guilty and failed to maintain absolute integrity and devotion to duty while handling the deposits made by various depositors in the SSA accounts, in his Post Office. The appeal filed against the penalty order passed by the Disciplinary Authority has been duly considered and then upheld by the Appellate Authority.
15. The charges proved against the applicant are grave since they indicate a lack of integrity which is crucial to the functioning of the Postal Department. The action of the applicant betrays the trust imposed on him both by the Postal Department as well as by the public, as a public functionary, while handing money which is the property of the depositors. The penalty of removal from 15 OA.No.34/2022/CAT/Bangalore Bench engagement imposed on the applicant cannot be considered as shockingly disproportionate given the facts and circumstances of the case.
16. Keeping the above points in view, the OA lacks merit and deserves to be dismissed.
17. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/