Central Administrative Tribunal - Mumbai
Dhanraj Narayan Gharate vs M/O Communications on 4 April, 2025
1 OA No.561/2014
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.561 OF 2014
Dated this Friday, the 04th day of April, 2025
CORAM : HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
Shri Dhanraj Narayan Gharate, Group 'C',
Ex - ED Packer, Chaini Road, SO,
Post Kheda (Dhule), R/o at Po Kheda,
Tal. Dist. Dhule 424 002. - Applicant
(By Advocate Shri Vicky A. Nagrani)
VERSUS
1. Union of India
through The Post Master General,
Aurangabad Region,
Aurangabad 431 002.
2. The Director of Postal Services,
Aurangabad Region,
Aurangabad 431 002.
3. The Sr. Supdt. Of Post Offices,
Dhule Dn.
Dhule 424 001. - Respondents
(By Advocate Shri N.K.Rajpurohit)
Reserved on 16.12.2024
Pronounced on 04.04.2025
Page 1 of 26
2 OA No.561/2014
ORDER
Per : Umesh Gajankush, Member (J)
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 by challenging charge memo dated 11.03.2010 (Annexure A-2), order dated 14.05.2012 (Annexure A-3) issued by the Postmaster General, Aurangabad Region, Aurangabad directing the SSPO Dhule, who had issued a charge-sheet declaring him as Appellate Authority to dispose of the applicant's representation dated 13.01.2012 (Annexure A-16), instead of directing the SSPO Dhule Division to cancel the belated charge-sheet dated 11.03.2010, punishment order dated 08.11.2012 (Annexure A-4), imposing the punishment of dismissal from service and appellate order dated 11.04.2014 (Annexure A-1), by which the appeal of the applicant has been rejected.
2. The brief facts of the case are that the applicant was appointed as ED Packer at Kheda EDSO. He was continuing the post of ED Packer Kheda from April, 1980 to 09.09.1985 regular ED SPM was on leave. He worked as ED SPM Kheda on that place. On 09.09.1985 Shri B.N.Kasar, ASP (W), Dhule visited to Kheda EDSO surprisingly and verified cash and stamps balance of that day. He found various irregularities, thereafter, charge memo dated Page 2 of 26 3 OA No.561/2014 12.02.1998 was issued and thereafter, dismissal order dated 04.09.2001 was issued.
2(a). Challenging the aforesaid order, the applicant has filed appeal before the Appellate Authority, which was allowed vide order dated 18.10.2002 (Annexure A-6). The Appellate Authority directed to hold enquiry ab-initio by the Appellate Authority by issuing a fresh charge- sheet comprising the same Article of Charges. Thereafter, fresh charge-sheet dated 06.01.2003 was issued and enquiry was conducted. After conclusion of the enquiry, punishment order of dismissal dated 07.07.2003 was passed against the applicant. Against which appeal was submitted, which was also rejected vide order dated 21.11.2003.
2(b). Challenging the order of the dismissal dated 07.07.2003, appellate order dated 21.11.2003 and charge-sheet dated 06.01.2003, OA No.752/2004 was filed by the applicant before the Central Administrative Tribunal (Mumbai Bench), which was finally decided by the order dated 15.12.2005 and the order of dismissal dated 07.07.2003 and appellate order dated 21.11.2003 were quashed and set aside. Respondents were directed to reinstate the applicant immediately. Further, liberty was granted to the respondents to start the fresh enquiry in accordance with law against Page 3 of 26 4 OA No.561/2014 the applicant.
2(c). The aforesaid order was challenged by the Official respondents before the Hon'ble High Court of Bombay, Bench at Aurangabad in Writ Petition No.4116/2006 and vide order dated 17.02.2009, the Writ Petition filed by the Department was summarily dismissed.
2(d). Thereafter, charge memo dated 11.03.2010 was issued to the applicant, which was challenged by the applicant by filing OA No.852/2011 before this Bench and vide order dated 19.02.2011, the aforesaid Original Application was disposed of with a direction to the Appellate Authority to consider the representation of the applicant. 2(e). Thereafter, representation dated 13.01.2012 (Annexure A-16) was submitted to the Director of Postal Service by mentioning detailed facts and grounds. It was specifically submitted that the alleged incident was of the year 1984 for which charge-sheet was issued on 11.03.2010, there was a delay of more than 27 years in issuing the charge-sheet and, therefore, in view of judgment of the Hon'ble Supreme Court in the case of Bani Singh Vs. State of Madhya Pradesh reported in 2001 (2) ATJ 396, charge-sheet is bad in law. Thereafter, communication dated 17.01.2012 was issued by the Senior Superintendent of Post Offices, Division Dhule informing Page 4 of 26 5 OA No.561/2014 the applicant that representation of the applicant has been forwarded to DPS Aurangabad.
2(f). Further, communication dated 20.01.2012 (Annexure A-18) issued by the Senior Superintendent of Post Office Dhule states that applicant's representation dated 13.01.2012 (Annexure A-16) was forwarded to DPS Aurangabad, therefore, Enquiry Officer was directed not to hold the further enquiry of the said case till the receipt of decision from the Competent Authority on the said representation. 2(g). Thereafter, the aforesaid representation of the applicant was decided by the Senior Superintendent of Post Office, Dhule Division, Dhule in pursuance of the Competent Authority's letter dated 14.05.2012 vide communication dated 01.06.2012 (Annexure A-19) informing that there is no justification for cancellation of charge-sheet issued vide memo dated 11.03.2010.
2(h). Thereafter, enquiry was conducted and vide order dated 08.12.2012 (Annexure A-4), punishment order was issued. Challenging the aforesaid punishment order, appeal dated 13.01.2012 (Annexure A-16) was submitted to the Appellate Authority. However, during the pendency of the aforesaid appeal, OA No.48/2014 was filed before this Tribunal in which by order dated 20.02.2024, this Tribunal directed the Appellate Authority to consider Page 5 of 26 6 OA No.561/2014 the appeal and pass orders. Thereafter, vide order dated 11.04.2014 (Annexure A-1), the appeal of the applicant was rejected, therefore, the present Original Application has been filed by the applicant.
3. After notice, official respondents have filed their reply and contested the OA. It is submitted that the applicant was working as ED Packer and Shri P.K.Pille Postal Pensioner was working as EDSPM at the then Kheda EDSO since 09.11.1979. Shri P.K.Pille was in habit of taking frequent leave by nominating Shri D.N.Gharate as his substitute to work as EDSPM Kheda EDSO. Shri P.K.Pille EDSPM was also in habit to remain absent after expiry of leave or without applying for leave and Shri Gharate used to work unauthorisedly as EDSPM Kheda EDSO.
3(a). It is submitted by the respondents that the applicant has misappropriated the amount of Rs.51,787.30/- in 284 RD accounts during the period from 31.08.1982 to 09.09.1985 when he was holding the charge of EDSPM Kheda in absence/leave period of regular EDSPM Kheda Shri P.K.Pille.
3(b). It is stated that the applicant was kept under put off duty w.e.f. 09.09.1985 A/N by the then Assistant Superintendent of Post Offices Dhule West Sub Division vide Memo No.PF/Kheda/DNG/85 dated 09.09.1985. The said put off order was confirmed by SSPOs Dhule Page 6 of 26 7 OA No.561/2014 vide No. F-IV/5/85 dated 01.11.1985 and Police case was lodged by the Department against Applicant vide CR No.183/85 at Dhule Taluka Police Station on 13.09.1985 under Sections 409, 437, 420 of IPC for M/A of Rs.14,986/-. The Police Authorities filed the charge sheet in Hon'ble CJM Dhule vide RCC No.48/87 dated 31.03.1987. The case was decided on 09.12.1999 and the applicant was acquitted by the Hon'ble Court on the ground that the prosecution has failed to prove the guilt of the accused on any count. 3(c). Further, respondents submits that the applicant disappeared from Kheda Village after Police case and was attending the Court case as and when his presence was required by the Court. His whereabouts were not known to this office upto 09.03.1999. 3(d). Respondents submits that the Charge-sheet under Rule 8 of Extra Departmental Agents (Conduct & Service) Rules, 1964 was issued by the Sub Divisional Inspector (P) Sakri 12.02.1998 and it was received back as undelivered on 11.03.1998, as his address was not known. The delivery of maid C/S was again attempted on 24.03.1998 which was also received back as not known on 03.04.1998 and subsequently, the C/S was delivered to the applicant through SSPOs Surat on 18.09.1999.
Page 7 of 26 8 OA No.561/2014 3(e). Further, it is stated by the respondents that the applicant submitted his representation dated 01.10.1999 on said memo. The inquiry of said case was started on 26.06.2000 and completed on 27.11.2000. The Inquiry Officer has submitted his report on 13.07.2001. The case was decided with punishment of dismissal from service with immediate effect vide memo No.F-IV/5/85 dated 04.09.2001. Further in appeal made by the applicant against the said punishment, the Appellate Authority i.e. Director Postal Services, Aurangabad ordered appellate order No.AR/Staff-II/App- 68/DNG/Dhule/01-02 dated 18.10.2002 that vide inquiry be held ab- initio by the Appointing Authority by issuing fresh charge-sheet comprising the same articles of charge.
3(f). Thereafter, fresh Charge-Sheet was issued to the applicant on 06.01.2003. The oral inquiry was started on 24.01.2003 and was completed on 07.02.2003. During the said inquiry, the applicant has submitted his application and raised objection that he was appointed as ED Packer and not EDSPM but in the Charge Sheet, it was shown as EDSPM Kheda. The inquiry as EDSPM against him was illegal, improper and incorrect and prayed to amend the designation as ED Packer instead of EDSPM and then inquiry would be held. But the inquiry Officer had denied his request and asked him to prove in the Page 8 of 26 9 OA No.561/2014 inquiry what his designation was.
3(g). It is stated by the respondents that in the said case, he was dismissed from service with immediate effect vide memo F- IV/5/DNG/DHL/03 dated 07.07.2003. The appeal made by the applicant on said punishment was rejected by DPS Aurangabad vide No. AR/Stff-II/APP-96/DNG/DHL/03 dated 21.11.2003. 3(h). Respondents submits that due to aggrieved with the said orders, applicant had filed OA No.752/2004 on 15.10.2004 in CAT Mumbai. The CAT has delivered the judgement on 15.12.2005. The CAT has quashed and set aside the dismissal order dated 07.07.2003 and the appellate order dated 21.11.2003 on the ground that the inquiry proceeding against the applicant without being passing order of the Subsistence Allowance and without being reinstated and also without being passing order of put off after setting aside the dismissal order are vitiated and directed to the respondent to reinstate the applicant immediately. The Hon'ble CAT has given liberty to the respondents to start the fresh inquiry in accordance with the law against the applicant.
3(i). Further, a Review Petition was filed by the Department in CAT Mumbai on 06.01.2006 which was dismissed. Thereafter, Writ Petition under No.4116/06 in the Hon'ble High Court of Mumbai, Page 9 of 26 10 OA No.561/2014 Bench at Aurangabad on 13.04.2006 against the order of the Hon'ble CAT Mumbai in OA No.752/2004 was filed. The Hon'ble High Court of Mumbai, Bench at Aurangabad has dismissed the above Writ Petition on 17.02.2009 on the grounds that the Tribunal has granted liberty to the present Petitioner to initiate fresh Departmental proceedings.
3(j). It is stated by the respondents that hence as per the Hon'ble CAT judgement dated 15.12.2005, this office has reinstated the applicant as GDS Packer Dhule Chaini Road P.O. vide this office memo dated 17.04.2006 and put off allowance was paid to the applicant vide memo dated 25.02.2010 and 08.04.2010 to comply the said judgement of the Hon'ble CAT and disciplinary action under Rule 10 of GDS (C&E) Rules, 2001 against the applicant initiated by office vide memo No. F-IV/05/Disc./DNG/85/09-10 dated 11.03.2010 after which the applicant dismissed from service vide memo No. F- IV/05/Disc./DNG/85/09-10 dated 08.11.2012. Being aggrieved with said punishment order, the applicant has preferred an appeal dated 15.01.2013 which was rejected by the Appellate Authority i.e. DPS Aurangabad vide No. AR/Staff-II/App-01/DNG/DHL/13 dated 11.04.2014.
Page 10 of 26 11 OA No.561/2014 3(k). It is stated that applicant had disappeared from Kheda Village on detection of fraud and his whereabouts were not known to the department. He remained absconded for the period of more than 12 years. The department had came to know his whereabouts when the applicant attended court case lodged by the department. Then only the disciplinary action against the applicant initiated in the year 2003 and the present charge-sheet has been issued on the basis of liberty granted in OA No.752/2004 by the Central Administrative Tribunal and after finalization of the Review Petition / Writ Petition. There is no delay on the part of the department for initiation of departmental action against the applicant, but the applicant himself was responsible for the said delay.
3(l). It is submitted that action against the applicant was taken strictly in accordance with Extra Departmental Agent (Conduct and Service) Rules, 1964 and every opportunity to defend his case is extended to the applicant. Therefore, on the basis of reply, the official respondents have prayed for dismissal of the OA.
4. Thereafter, rejoinder and sur-rejoinder were filed by the both the learned counsels for the parties explaining, elaborating and reiterating their stand.
Page 11 of 26 12 OA No.561/2014
5. We have heard both the learned counsels for the parties and perused the pleadings and documents available on record.
6. Learned counsel for the applicant vehemently argued that initially the charge-sheet was issued on 12.02.1998 in respect of the charges which related to the period from 31.08.1982 to 09.09.1985. Therefore, it is clear that the first charge-sheet was issued after more than 12 years. In pursuance of the aforesaid charge-sheet, dismissal order dated 04.09.2001 was passed which was challenged in the appeal and the Appellate Authority vide order dated 18.10.2002 allowed the appeal of the applicant and directed for fresh enquiry.
6(a). Thereafter, enquiry was conducted and dismissal order dated 07.07.2003 was passed which was challenged in appeal, however, appeal was rejected on 21.11.2003. Aforesaid charge sheet dated 06.01.2003, dismissal order dated 07.07.2003 and 21.11.2003 was challenged in OA No.752/2004 and the said Original Application was allowed vide order dated 15.12.2005 against which Writ Petition was filed which was dismissed vide order dated 17.02.2009. Thereafter, charge-sheet dated 11.03.2010 was issued. Aforesaid charge-sheet was also challenged in OA No.852/2011 on the ground of delay. However, vide order dated 19.12.2011, this Tribunal directed the Page 12 of 26 13 OA No.561/2014 Appellate Authority to decide the question of delay. It was submitted that the said question was decided by the same authority i.e. Senior Superintendent of Post Office, who has issued charge memo dated 11.03.2010.
6(b). It is further contended that Criminal Case was also filed against the applicant in which the judgment of acquittal was passed in favour of the applicant. However, without taking note of the aforesaid, the Disciplinary Authority passed the order of the dismissal, which was challenged in the appeal, however the same was rejected arbitrarily without assigning any proper reasons.
6(c). During the course of the arguments, learned counsel for the applicant placed reliance on the following judgments :
(i) in case of M.V.Bijlani Vs. Union of India and others reported in (2006) 5 SCC 88 ;
(ii) in the case of P.V.Mahadevan Vs. MD, T.N. Housing Board reported in (2005) 6 SCC 636 and;
(iii) in the case of G.M.Tank Vs. State of Gujarat and others reported in (2006) 5 SCC 446.
On that basis, it is contended that on the ground of delay in issuing the charge-sheet and by not taking into consideration, the judgment Page 13 of 26 14 OA No.561/2014 of acquittal of the Criminal Court, the charge sheet and all consequential orders are liable to be set aside.
7. On the other hand, the learned counsel for the respondents vehemently argued that initial charge sheet dated 12.02.1998 and dismissal order dated 05.09.2001 was set aside by the Appellate Authority vide order dated 18.10.2002, it is submitted that looking to the order dated 18.10.2002, it is clear that the charge-sheet was held to be not proper on the ground of jurisdiction. Thereafter, in view of the liberty granted by the Appellate Authority in its order dated 18.10.2002, fresh charge-sheet dated 06.01.2003 was issued. Thereafter, enquiry was conducted and punishment order dated 07.03.2003 was passed against which appeal was also rejected. 7(a). However, in OA No.752/2004, this Tribunal set aside the punishment and Appellate Authority's order by granting liberty to start fresh enquiry in accordance with law. Thereafter, charge memo dated 11.03.2010 was issued. It is contended that although in OA No.752/2004, applicant has also challenged charge memo dated 06.01.2003, however, only punishment order and appellate order were set aside meaning thereby no interference was made by the Tribunal in the charge memo. It is further submitted that, if relief prayed for is not granted, then the same can be said to be rejected Page 14 of 26 15 OA No.561/2014 automatically.
7(b). During the course of enquiry, reasonable opportunity was provided to the applicant and, thereafter, punishment order was passed which was affirmed in the appeal.
7(c). During the course of the arguments, learned counsel for the respondents relied on the judgment in the case of B.C.Chaturvedi Vs. Union of India and others reported in 1996 SCC (L&S) 80 and contended that this Tribunal cannot appreciate or re-appreciate the evidence available on the record and, therefore, on the aforesaid proposition of law, there is a limited scope of judicial review in the disciplinary action, therefore, the OA is liable to be dismissed.
8. After hearing both the learned counsels for the parties and after perusal of the record, following facts which emerges on the record are as under :
(a) Charge-sheet dated 12.02.1998 and the punishment order dated 04.09.2001 was the subject matter of challenge before the Appellate Authority of the department and the said appeal was decided vide order dated 18.10.2002 observing as under :
"3. I have gone through the appeal with all its related papers.Page 15 of 26 16 OA No.561/2014
The appellant was an ED Packer at Kheda EDSO and he was working as EDSPM in leave vacancy of the regular EDSPM. Since the misappropriation of govt. money alleged in the memo of charges occurred when he was working as EDSPM and he was charged for the misconduct committed during the period of his working as EDSPM Kheda, the Disciplinary Authority should have been SSPOs Dhule and not SDI (P) Sakri from any point of view. Rule 7 of ED Agents (Conduct & Service) 1964 clearly states that only the Appointing Authorities can award the punishments specified in the rule. SSPOs Dhule being appointing authority for the post of EDSPM Kheda, SDI (P) Sakri connot issue memo of charges. Rule 14 (21) (a) of CCS (CCA) Rules, 1965 in which a lower authority who is not the appointing authority - Competent to impose penalties specified in Clauses (i) to (iv) of Rule 11 but not competent to impose penalties specified in clauses (v) to (ix) can issue memo of charges is not applicable in this case as there is no such provision in ED Agents (Conduct & Service) Rules, 1964. SDI (P) and ASPOs of sub divisions have no disciplinary powers in respect of EDSPMs as they are not their appointing authorities Rules 5 of GDS (Conduct & Employment) Rules, 2001 also confirms this. The entire disciplinary process based on the memo of charges issued by SDI (P) Sakri is therefore not proper.
Considering the above I have no other alternative but to direct that inquiry be held AB INITIO by the Appointing Authority by issuing a fresh charge sheet comprising the same articles of charge".
(b) Thereafter, charge memo dated 06.01.2003 was issued, enquiry was conducted and dismissal order was passed on 07.07.2003, which was confirmed in statutory Page 16 of 26 17 OA No.561/2014 appeal vide order dated 21.11.2003.
(c) Aforesaid charge-sheet and the orders were the subject matter of challenge before this Tribunal in OA No.752/2004 which was decided vide order dated 15.12.2005, the relevant paragraph of the aforesaid order are reproduced herein-below :
"The OA is filed for quashing and setting aside the order dated 07.07.2003 of dismissal from service passed by Sr. Supdt. of Post Offices, Dhule, the order of the Appellate Authority dated 21.11.2003 passed by Director of Postal Services, Aurangabad Region, Aurangbad rejecting the appeal and for quashing and setting aside the charge-sheet dated 06.01.2003 directing inquiry to be held ab initio by issuing fresh charge-sheet passed by Director of Postal Services, Aurangabad.
.....
16. We have mentioned that after setting aside the dismissal order passed on alleged charge-
sheet the applicant was issued a fresh charge-
sheet and disciplinary proceedings were held against him and was dismissed from service. The applicant was not paid suspension allowance of put off duty certainly non payment of suspension allowance of put off duty amounts to be denial of natural justice to the applicant. We have also mentioned that the order of put off passed against the petitioner was merged when he was dismissed from service on 04.09.2001. When the dismissal order was set aside by the order of Appellate Authority the order of put off did not get revived automatically. The applicant was not reinstated and placed put off duty, which ought to have been Page 17 of 26 18 OA No.561/2014 done. The applicant ought to have been paid subsistence allowance during the alleged put off duty period and the same had not been paid, it can easily be said that applicant had not offered sufficient opportunity to defend his case. Though impugned orders have been challenged by the learned Counsel on several grounds, we are of the opinion that it is not necessary to deal with them because above grounds are sufficient to vitiate the inquiry.
17. Thus we hold that the inquiry proceedings against the applicant without his being paid any subsistence allowance and without being reinstated and also without being passed order of put off after setting aside the dismissal order are vitiated. The orders of dismissal dated 07.07.2003 dismissal passed by Sr. Superintendent of Post Offices, order dated 21.11.2003 passed by Director Postal Services are hereby quashed and set aside. The inquiry stands vitiated. The respondents are directed to reinstate the applicant immediately. The respondents are at liberty to start the fresh inquiry in accordance with law against the applicant. Accordingly OA is allowed. No order as to costs."
9. Looking to the aforesaid order dated 15.12.2005, it is clear that although the applicant has challenged charge-sheet dated 06.01.2003 also but this Tribunal has set aside only dismissal order dated 07.07.2003 and appellate order dated 21.11.2003. Meaning thereby, this Tribunal has not interfered in the charge memo on the ground of delay although the applicant has raised the said ground in paragraph No.7 of the order by relying the judgment of the Hon'ble Page 18 of 26 19 OA No.561/2014 Supreme Court in the case of Bani Singh (supra).
10. The respondent department has challenged the order dated 15.12.2005 in Writ Petition No.4116/2006, however, the said Writ Petition was dismissed by the Hon'ble High Court on 17.02.2009 summarily observing as under :
"3. The Tribunal came to the conclusion that a reasonable opportunity of defending himself in the inquiry was not afforded to the respondent herein as subsistence allowance had not been paid to the respondent. The Tribunal ultimately quashed and set aside the order by which the respondent stood punished and directed his reinstatement giving liberty to the petitioners herein to initiate fresh departmental proceedings. About five years have passed since passing of the order of the Tribunal. In the light of the fact that the Tribunal has granted liberty to the present petitioners to initiate fresh departmental proceedings, according to us, no interference is called for in this write petition. Accordingly, this write petition is summarily dismissed with no order as to costs."
11. Therefore, from the order dated 15.12.2005 and order dated 17.10.2009, it can be safely said that the question of delay in issuing the charge memo in respect of charges of period from 31.08.1982 to 09.09.1985 was concluded. Although, after issuance of charge memo dated 11.03.2010 again challenge was made by the applicant to the aforesaid charge memo in OA No.852/2011 in which order dated 19.12.2011 was passed by this Tribunal granting liberty to the applicant that if the representation is made the Appellate Authority Page 19 of 26 20 OA No.561/2014 will consider the same.
12. It is the contention of the applicant that thereafter representation dated 13.01.2012 (Annexure A-16) was filed to the Director of Postal Services, Aurangabad (DPS), however, the same was considered by the Senior Superintendent of Post Office, Dhule Division vide communication dated 01.06.2012 (Annexure A-19) which is the same authority who has issued the charge-sheet dated 11.03.2010 and, therefore, according to the applicant, firstly, no order was passed by the Appellate Authority as directed by this Tribunal in order dated 19.12.2011 and secondly, the question of delay in issuing the charge-sheet was also not decided.
13. The aforesaid argument of the applicant is not tenable on the ground that in OA No.752/2004, while challenging the charge-sheet dated 06.01.2003 ground of delay was raised on the basis of judgment of Bani Singh (Supra) and this Tribunal only quashed the punishment orders dated 07.07.2003 and 21.11.2003, meaning thereby, the argument in respect of delay in issuing the charge-sheet was rejected vide order dated 15.12.2006. It is settled in law that relief which was prayed and not granted is deemed to have been rejected.
Page 20 of 26 21 OA No.561/2014
14. It is relevant here to mention that OA No.852/2011 was decided by this Tribunal on 19.12.2011 in which charge memo dated 11.03.2010 was challenged on the ground that it relate back to the allegation period of the year 1985 and, therefore, on the basis of Hon'ble Supreme Court in the case of Bani Singh (supra), issue of charge-sheet about an event which is more than twelve years old cannot be permitted in law. In paragraph No.2 of the said order, the Tribunal has observed that "we are of the view that prima facie, it appears that the applicant has a case, as full details are not available and as the applicant has not exhausted his departmental enquiry. Therefore, on the basis of agreement of the counsels for the parties, this Tribunal without expressing any opinion on merit directed the Appellate Authority that if the representation is made, same will be considered. It is pertinent to mention that while deciding OA No.752/2004 in respect of charge memo dated 06.01.2003 also the ground of delay was raised on the basis of judgment of Hon'ble Supreme Court in the case of Bani Singh (supra) as event which is more than 12 years old. However, the said argument was not accepted in the said Original Application.
15. It appears that while filing OA No.852/2011, the factum in respect of challenge to the charge-sheet dated 06.01.2003 on the Page 21 of 26 22 OA No.561/2014 ground of delay was not mentioned. Under these circumstances, this Tribunal, on the basis of agreements of the parties directed the Appellate Authority to decide the appeal. Therefore, the question remains for consideration is when once this Tribunal in OA No.752/2004 by passing order dated 15.10.2006 deemedly rejected the point of delay in issuing the charge-sheet, then in subsequent proceedings, applicant had a right or ground to challenge subsequent charge-sheet on the ground of delay in respect of same incident of year 1985 and that too without giving full details. It may be possible that if the earlier order dated 15.12.2006 was brought to the notice of this Tribunal in OA No.852/2011, then possibly no direction could have been issued by this Tribunal vide order dated 19.12.2011.
16. Under these circumstances, even if the order was passed by the Competent Appellate Authority in pursuance of order dated 19.12.2011 either way, even then such order would have been contrary or in deviation of order dated 15.12.2006. Be that as it may. Therefore, the contention on the basis of subsequent order dated 19.12.2011 passed in OA No.852/2011, the question of delay was still alive, is not tenable and, therefore, further argument that communication dated 01.06.2012 (Annexure A-19) issued by the Page 22 of 26 23 OA No.561/2014 same authority, who has issued the charge memo dated 11.03.2010 is also not tenable.
17. Further, the official respondents in reply of paragraph No.56 assigned the reasons for issuance of belated charge-sheet. Although, in rejoinder, the facts mentioned in the paragraph No.56 are tried to be explained by the applicant, however, the same are not acceptable.
18. At this stage, it is relevant here to take note of the judgments cited by the learned counsel for the applicant for the delay in issuing the charge-sheet in the case of M.V.Bijlani (supra) and P.V.Mahadevan (supra). In paragraph No.17 of the judgment of the M.B.Bijlani (supra), the Hon'ble Supreme Court reproduced the observations of the Hon'ble Supreme Court in the case of Bani Singh (supra). In case of Bani Singh (supra), it has been recorded by the Hon'ble Supreme Court that "there is no satisfactory explanation for the inordinate delay in issuing the charge memo". Similarly in paragraph No.8 of the P.V.Mahadevan (supra) Judgment, the Hon'ble Supreme Court recorded that "though some explanation was given, the explanation offered is not at all convincing". Page 23 of 26 24 OA No.561/2014
19. However, in the present case, in view of the aforesaid discussions and preceding para 3(k), the contention of the applicant that the charge memo is liable to be quashed on the ground of delay is not tenable. In fact, the charge memo dated 06.01.2003 and charge memo dated 11.03.2010 was issued by the Authority on the basis of liberty granted either by the Appellate Authority or by this Tribunal which was affirmed by the Hon'ble High Court.
20. So far as, the contention of the learned counsel for the applicant, on the basis of judgment of the Hon'ble Supreme Court in the case of G.M.Tank (supra) is concerned, from the records, it is clear that judgment of acquittal was passed in favour of the applicant on 09.12.1999 and on the ground that prosecution has failed to prove the guilt of accused on any count. It is settled principle in law that in the departmental enquiry, charges are required to be proved on preponderance of the probabilities, whereas in the criminal case, the charges must be proved beyond reasonable doubt.
21. In the present case, applicant has failed to place any material much less any cogent material on record to substantiate that the charges levelled in the criminal case was similar to charges levelled in the departmental enquiry and further, documents relied upon and evidence in both the proceedings were on the same set of facts. Page 24 of 26 25 OA No.561/2014 Therefore, applicant is not entitled for the benefit of proposition of law laid down by the Hon'ble Supreme Court in the case of G.M.Tank (supra).
22. The Hon'ble Supreme Court in the case of B.C.Chaturvedi (supra) 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 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 delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate 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."Page 25 of 26 26 OA No.561/2014
23. Thus, in view of the aforesaid discussions and keeping in view the proposition of law laid down by the Hon'ble Supreme Court in the case of B.C.Chaturvedi (supra) in regard to the scope of judicial review of this Tribunal, no ground is available for interference in the present Original Application. Therefore, OA is dismissed.
24. There shall be no order as to costs.
25. Pending MAs, if any, stands disposed of.
(UMESH GAJANKUSH) (SHRI KRISHNA)
MEMBER (J) MEMBER (A)
Digitally signed by Khushboo Mittal Gupta
Khushboo Mittal DN: C=IN, O=Personal, OID.2.5.4.65=6dbe5c2d6885491895b4fb8ef3642a0b, Phone= 8985c11fad2960cfbb159f98c2764347c7a4ffbc50d436d4fe5701484c759b92, PostalCode=411060, S= Maharashtra, SERIALNUMBER= 870759ef2f1952335c4269bf3698e2204e6521bc46faf0d3fefceadf0c12c639, CN=Khushboo Mittal Gupta Gupta Reason: I am the author of this document Location:
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