Central Administrative Tribunal - Bangalore
S M Karigar vs Deptt Of Posts on 20 August, 2024
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O.A.No.170/28/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00028/2023
DATED THIS THE 20th DAY OF AUGUST, 2024
Order Reserved on: 30.07.2024
Date of Order: 20.08.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
S.M.Karigar, S/o.Late.Makappa
Ex-GDS Mail Carrier
Aged about 33 years
Jyothiba Naagar
Ankali - 591213 (Taluk-Chikodi)
Dist: Belegavi
...Applicant
(By Advocate Shri.B.S.Venkatesh Kumar)
Vs.
1. The Union of India
Rep.by its Secretary
Department of Posts
Dak Bhavan, Parliament Street
New Delhi - 110 001
2. Adhoc Disciplinary Authority &
Inspector of Post Offices
Athani Sub Dvn
Athani - 591 304
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O.A.No.170/28/2023/CAT/BANGALORE
3. The Superintendent of Post Offices
Chikod Dvn
Chikodi - 590 201
4. The Post Master General
N.K.Region, Dharward - 580 001
5. The Chief Post Master General
Karnataka Circle
Palace Road
Bengaluru - 560 001 ...Respondents
(By Advocate Shri.K.Gajendra Vasu for R 1-5)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following relief:
" (a) call for the relevant records leading to the issuance of impugned Memo No.IP/ATN/ADA/SMK/Yadur BO/21 dt.27.08.2021 at Ann-A13 issued by R-2, impugned Memo No.F-2/7/16/2019 dt.28.02.2022 at ANN-A21 issued by R-3 and on perusal quash the impugned memos as arbitrary, unfair, unjust and disproportionate to the gravity of lapses noticed against the applicant and direct the respondent-3 to engage the applicant to the post of EDMC Yadur resume duty in the interest of justice and equity.
(b) Pass any order or direction as deemed fit by the Hon'ble Tribunal including an order for award of cost of this application in the 3 O.A.No.170/28/2023/CAT/BANGALORE interest of justice and equity. "
2. On various grounds as enumerated in paragraphs V(1) to (5) of the Original Application and the basic facts of the applicant are that he was engaged as the Gramin Dak Sevak, Mail Carrier (GDS MC for short) in Yadur Branch Post Office in account with Ankali Post Office in Chikodi Postal Division w.e.f 1.8.2009. While working, he was attached to work as Aadhar Card Operator. He conducted an Adhar Card Camp at Chinchali Village on 9.6.2019 (Sunday) with Shri.S.K.Zupare, Branch Postmaster of Chikalwal Branch Post Office using the Aadhar Kit of Ankali sub post office without taking the prior permission of the Competent Authority. The Sub Postmaster, Ankali Sub Post Office reported to the Superintendent of Post Offices, Chikodi on 10.09.2019 that the applicant had taken the Aadhar Kit from his office on 8.6.2019 saying that he would get it repaired, but had used it for conducting an Aadhar Card camp at Chinchali Village on 9.6.2019 without permission.
3. The applicant says that he visited the office of the Superintendent of Post Offices, Chikodi on 10.6.2019 and handed over a cash of Rs.4180/- to the OA of the SPOs Chikodi towards 33 4 O.A.No.170/28/2023/CAT/BANGALORE enrolments and 67 updations done by him on 9.6.2019 at the Camp. The applicant had conducted the Camp at Mahakali internet Centre of Chinchali Village.
4. Subsequently, the applicant was placed under put off duty vide Memo dated 24.6.2019 of the IP Raibag sub Dn. Athani and the IP Athani sub Dn was appointed as ADA. The ADA has issued charge memo dated 31.8.2020 to the applicant. In Article-I of the Charge Memo, it was mentioned that the applicant conducted an Aadhar Camp at Chinchali Village on 9.6.2019 without permission of the competent authority and in Article II, it was mentioned the charged officer had collected extra cash during the camp.
5. When the applicant denied the charges the IO and PO were appointed and the applicant nominated his Defence Assistant. He had applied for the additional documents, which were not supplied by the respondents. The applicant says that the IO did not hold inquiry for about 6 months though the applicant requested to conduct the inquiry immediately. His put off duty was getting prolonged and the Officer advised him to admit the charges and told that minor penalty will be awarded. Based on their advice and prolonging his put off duty for a 5 O.A.No.170/28/2023/CAT/BANGALORE long time, the applicant was forced to admit the charges vide his letter dated 28.6.2021and 9.7.2021.
6. Based on the admission of the Charges by the applicant the IO submitted his report on 16.7.2021 stating that charges are proved. The respondent no.2 has passed impugned order dated 27.8.2021 stating that, "annual increase in Time Related Continuity Allowances (TRCA) of Shri.S.M.Karigar, GDSMC, Yadur B.O, a/w Ankali SO be withheld for a period of two years (Twenty four months) without cumulative effect."
7. Before he could submit his appeal to respondent no.3 who is the Appellate Authority, the Revisionary Authority of the applicant has served a revision of penalty notice dated 3/7/12/2021 for revision of penalty under the provisions of Rule 19(1)(ii) of the GDS (C&E) Rules, 2020 to show cause as to why the penalty imposed by the ADA should not be enhanced to that of "Compulsory discharge from engagement with monetary benefits & GDS gratuity proportionate to engagement period rendered by the GDS". For which the applicant submitted his representation dated 27.12.2021 and requested the respondent no.3 to drop the proposed enhancement of punishment as 6 O.A.No.170/28/2023/CAT/BANGALORE it would be a capital punishment.
8. Despite his request, the respondent no.3 had imposed the aforesaid punishment vide impugned Memo No.F-2/7/16/2019 dt.28.02.2022 (Annexure A-21) "calling the punishment awarded by the ADA as not commensurate with the gravity of misconduct of the official vide memo of charges. The respondent no.3 awarded the punishment of his compulsory discharge from engagement with monetary benefits (i.e., SDBS etc.) and GDS Gratuity proportionate to engagement period rendered by GDS".
9. It is also learnt that the respondent no.3 has passed orders for retaining Shri.S.K.Zupare, BPM, Chikalwal, who has assisted the applicant in conducting the Aadhar Card Camp on 9.6.2019, in engagement after withholding his TRCA for a period of 4 years amounts to invidious discrimination and hence, the impugned punishment orders issued by the respondent no.2 at Annexure A13 and the respondent no.3 at Annexure A-21 are challenged in this Original Application. And the applicant has requested to quash the said orders as arbitrary, unjust, unfair and disproportionate to gravity of lapses noticed against the applicant.
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O.A.No.170/28/2023/CAT/BANGALORE
10. On notice, respondents have filed their reply statement and thereafter a rejoinder has been filed by the applicant. Further, an additional reply statement also has been filed by the respondents.
11. The O.A came up for final hearing on 30.7.2024. The learned counsel Shri.B.S.Venkatesh Kumar for the applicant, Shri.K.Gjendra Vasu for the respondents were present and heard.
12. We have carefully gone through the entire record and considered the rival contentions.
13. From the submission of both the parties, it is evident that there is not much dispute regarding the facts of the case that the applicant being engaged as GDS MC in Yadur Branch Post Office in account with Ankali Post Office in Chikodi Postal Division with effect from 1.8.2009, was served with a Charge Memo dated 31.8.2020 with two Articles of charges.
The first charge was that the applicant, Shri.Sidram M.Karigar, while working as GDS MC Yadur BO a/w Ankali SO during the 8 O.A.No.170/28/2023/CAT/BANGALORE period from 1.8.2009 attached to Ankali SO for Aadhar work, had conducted Aadhar camp at Chinchali SO on 9.6.2019 along with Shri.S.K.Zupare GDS BPM Chikalwal BO a/w Nippani MDG using Ankali SO Aadhar Kit without obtaining permission from competent authority and thereby failed to maintain absolute integrity and devotion to duty as required by Rule 21 of Department of Posts, Gramin Dak Sevak (Conduct and Engagement) Rules 2011.
The second charge consisted of the said Shri.Sidram M.karigar, while working as GDS MC Yadur BO a/w Ankali SO during the period from 1.8.2009 attached to Ankali SO for Aadhar work, was conducted Aadhar camp at Chinchali SO on 9.6.2019 along with Shri.S.K.Zupare GDS BPM Chikalwal BO a/w Nippani MDG. During Aadhar camp it is alleged that he collected excess fees from the public and failed to maintain absolute integrity and devotion to duty as required by Rule 21 of Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules 2011.
14. After obtaining his representation and as he had denied the charges, inquiry was ordered by appointing one Shri.S.S.Kashe, ASP HQ Gokak as Inquiry Officer and Sri.V.S.Emmigol, IP Raibag as Presenting Officer vide Memo dated 11.11.2020 and the inquiry 9 O.A.No.170/28/2023/CAT/BANGALORE started. It is a fact that the applicant had requested for certain documents and about the same, correspondence was going on from the higher authorities. Meanwhile, the charged officer personally contacted the IO and submitted the confession letter dated 28.6.2021 with a request to conclude the inquiry as early as possible, in the 3rd sitting held by the IO, on 9.7.2021. The charged officer admitted both the charges of Articles I and II and accordingly, the IO closed the inquiry at that stage and submitted his inquiry report dated 16.7.2021; which was sent to the charged officer vide letter dated 22.7.202. His representation dated 4.8.2021 was received and after examining all the records, finally, the Disciplinary Authority has passed its order dated 27.8.2021 recording the findings as follows:
" FINDINGS I have gone through the case file, inquiry report and other connected records. The charged official has submitted representation to the IO report wherein he admitted both the article of charges and pleaded to pardon him this time. IO has conducted inquiry in accordance with rules on the subject and natural justice was given to GDS to defend the case. I fully agree with the findings of IO. The charges against Shri.S.M.karigar GDS MC Yadur BO a/w Alkali SO Article I is about conducting Aadhar camp at Chinchali along with Shri.S.K.Jupre GDS BPM Chikalwal BO a/w Nippani MDG using Alkali SO Aadhar Kit without obtaining permission from 10 O.A.No.170/28/2023/CAT/BANGALORE competent authority and Article II is about collecting excess fees from the public.
Though Shri.S.M.Karigar GDS MC Yadur BO a/w Alkali SO did not admit charges in the preliminary hearing, in the later stage of inquiry held by IO on 9.7.2021 admitted both Article I & II unconditionally. In the representation dated 4.8.2021 Shri.S.M.Karigar GDS MC Yadur BO a/w Alkali SO admitted the charges and pleaded guilty. The Charged GDS MC begged apology for his cursory actions in doing such inadvertent act and pleaded to excuse him for his inadmissible and inadvisable act. He assured to work hard for the department and assured of avoiding such instances in future.
His intention of doing Aadhar camp at Chinchali may be in favour of department but without obtaining permission from competent authority in shifting Aadhar Kit and collecting excess fees from public is grave misconduct on his part and damaged the image of department in the eyes of public. Having served more than 10 years of service in the department Shri.S.M Karigar should have cultivated the basic qualities and requirements that are expected by Garmin Dak Sevak (GDS MC).
He is liable for action to be taken against him as per the provisions. I find that the act of Shri.S.M Karigar GDS MC Yadur BO is serious and warrants severe action, however considering his admittance of his misconduct, past good service, his assurance to refrain from such activities in the future, I take a lenient view and pass the following order. "
15. Based on the above findings, the Disciplinary Authority has 11 O.A.No.170/28/2023/CAT/BANGALORE passed the following orders:-
"Order I, SD Basaligundii, Inspector Posts, Athani Sub Dn. Athani (ADA) hereby order that annual increase inTime Related Continuity Allowances (TRCA) of Shri.S.M Karigar, GDS MC, Yadur BO a/w Ankali SO be withheld for a period of two years (twenty four months) without cumulative effect. "
16. Based on the same, the Revisional Authority, vide his authority, served a penalty notice dated 3/7 December 2021 for revision of penalty under the provisions of Rule 19 (1)(ii) of Gramin Dak Sevaks (Conduct and Engagement) Rules 2020 to show cause as to why the penalty should not be enhanced to that of compulsory discharge from engagement with monitory benefits i.e. SDBS etc.) and GDS Gratuity proportionate to engagement period rendered by GDS. For which the applicant had submitted his representation dated 27.12.2021 requesting the Reviewing Authority for dropping the proposed enhancement of punishment as it would be harsh to him. Despite his request, respondent no.3 had imposed punishment vide Memo No.F- 2/7/16/2019 dated 28.2.2022.
17. Based on reasons given, the Revisional Authority has passed 12 O.A.No.170/28/2023/CAT/BANGALORE the following order:
"The punishment of withheld of annual increase in Time Related Continuity Allowances (TRCA) for a period of two years (Twenty four months)", imposed by disciplinary authority vide ADA IP Athani Sub Division, Athani Memo No.IP/ATN/ADA/SMK/Yadur BO/21 dated 27.8.2021 does not commensurate with the gravity of misconduct of theofficial vide memo of charges. As such, I enhance the punishment issued by the disciplinary authority to that of "Compulsory discharge from engagement with monitory benefits, (i.e.SDBS etc.) and GDS Gratuity proportionate to engagement period rendered by GDS, as per conditions laid down in Department of Posts O.M No.17-31/2016-GDS dated 27th June 2018", with immediate effect, as proposed vide this office Memo No.CKD/F-
2/7/16/2019 dated 3.12.2021"
18. Against the order of these Revisional Authority and the Disciplinary Authority, the applicant has come before us. Let us examine his grounds one by one.
19. In the first ground V(1), the applicant says that he came to know that Shri.S.K.Zupare BPM, Chkalwal BO was also charge sheeted with the same charges like Applicant by R-3 SPOs, Chikodi since the R-3 is his appointing authority, but the charges were denied by Shri.Zupare before the IO and later Shri.Zupare is said to have admitted the charges as done by the applicant and IO has submitted 13 O.A.No.170/28/2023/CAT/BANGALORE his report holding the charges as proved. But in his case Shri.Rupesh Durgai, the SPOs, Chikodi R-3 has taken lenient view by awarding him the penalty of reduction of his TRCA for "FOUR YEARS"
instead of discharging him from his engagement as done in the case of the applicant. This action of then SPOs Rupesh Durgai in adopting different yardsticks in the case of the applicant and punishing the applicant from disengagement of duty amounts to invidious discrimination and hence the impugned orders at Annexures A13 and A21 issued by respondent nos.2 and 3 respectively are liable to be quashed as arbitrary, unjust and unfair.
As Shri.S.K.Zupare, BPM, Chkalwal BO is not a party before us and neither he filed an Original Application before us, at this stage, we are unable to examine the similarities between the two cases. The respondents in their reply have satisfactorily stated in paragraph 5 (1) that averment in the para is not correct. The applicant is alleging that respondent no.3 has imposed a different punishment to Sri.S.K.Zupare, who assisted him in conducting Aadhar camp at Chinchali village on 9.6.2019 and to himself, for one and the same charges. It is submitted that applicant was working as aadhar operator of Ankali SO. There were no directions from any higher authority for conducting camp mode at Chinchali village. However, applicant 14 O.A.No.170/28/2023/CAT/BANGALORE misusing his position of being aadhar operator, took initiation with malafide intention to earn additional remuneration by charging the customer more than the fees prescribed. Sri.S.K.Zupare, BPM Chikalwal BO aw Nipani MDG assisted the applicant in his intentions. As such, gravity of misconduct is more in case of applicant. SPOs Chikodi has weighed both the disciplinary cases in a judicious manner and imposed the penalties which commensurate the gravity of offences. Hence, there should not be any comparison between the two disciplinary cases.
To this, in his rejoinder statement in para 16, the applicant only mentions that 'in regard to reply to para 5.1 of the O.A, the applicant denies that he misused the position and took out the Aadhar kit outside the office. There was no malafide intention or to gain illegally. At best the allegation can be said to be a procedural lapse. But the imposition of harsh penalty overlooking the gravity of charges by the disciplinary authority is uncalled for in case of this nature and the harsh penalty of discharge from engagement shocks the conscience of any person and, therefore, the approach of the applicant seeking for justice at the hands of this Hon'ble Tribunal.' Clearly in paragraph V(1) of the O.A, the applicant was emphasising equity but in the rejoinder statement, he is trying to say 15 O.A.No.170/28/2023/CAT/BANGALORE that he was not at all at fault and there was no intention to gain illegally. But from the charges framed and served on him and from his reply statement and his own acceptance of the two charges which is so proved, will not show him to be not guilty and as the authorities have distinguished his case with reasons with the other charged officer in their reply statement, we are unable to see similarities between the two cases. Both cases may be arising out of the same incident, but the role of each official in any misconduct is distinct and different from the role of any other official. Hence the comparison is not correct and we are satisfied with the finding and consequent orders of the authorities. We do not find that the imposed penalty of a proven corruption of collecting excess money from public, i.e. collection of additional money from general public for making their Aadhar card updation, can only be considered as procedural lapse and not a case of substantive corruption. The applicant was the person who took the Aadhar equipment unauthorisedly, without proper authorisation and permission, on the plea that he was taking it for repair, which certainly make the case of the applicant more serious and different. We do not know if the other official who assisted him (Shri.S.K.Zupare) knew that the applicant was using the Aadhar equipment and organising the camp without proper authorisation dishonestly. Hence, the authority 16 O.A.No.170/28/2023/CAT/BANGALORE cannot be considered to be discriminating the case of the applicant and being harsher to him. And such severe punishment in his case does not shock the conscience of any person. Hence either on the ground of equity or in the isolation of any such claim of equity, on substantive criteria, we find that there are good and reasonable grounds to impose such differential penalty.
20. In paragraph V(2), the applicant states that when the applicant denied the charges, an inquiry was conducted under Rule 10. There were 5 dept. witnesses & 5 outside witnesses. The prosecution failed to produce the additional documents requested by the defence assistant. The IO dragged the inquiry for about 6 months from 01.01.2021 to 16.7.2021without examining single witness and without obtaining the requisitioned additional documents. The applicant already suffered two years of POD & the inquiry was not concluded. Due to un-official advice dt.25.6.2021 at Annexure A-8 given over phone by Shri. Ramesh Kamate is liable, then ASP(Dn), Chikodi to admit the charges for early closure of disciplinary case the applicant has admitted charges on 26.6.2021 innocently and helplessly. The IO submitted his report holding that both the charges are proved beyond doubt. The ADA & IP Athani imposed the penalty of two years 17 O.A.No.170/28/2023/CAT/BANGALORE penalty of withholding the TRCA of the applicant without cumulative effect vide impugned memo dated 27.8.2021 at Annexure A-13, which is very severe for the gravity of the lapses noticed against the applicant. Hence the impugned punishment order at Annexure A13 is liable to be quashed as disproportionate to the gravity of the lapses committed by applicant in the interest of justice and equity.
Once the applicant has accepted his misconduct and the respondents rightly considering it to be serious as the case pertains to unauthorised use of Aadhar kit for conducting camp mode in a village without permission and also collecting additional money from the general public who come forward to get their Aadhar card updated is of serious nature and a proven case of corruption. We do not find any ground to accept the contention of the applicant that on official advice or assurance of lenient punishment he admitted the charges, and to consider his case for interfering with the orders of the respondents.
In the reply statement, the respondents have stated that the complaint in the said paragraph is not acceptable and that the applicant is alleging that the prosecution failed to produce the additional documents and the IO dragged the inquiry for about 6 months without examining single witness and without giving the requisitioned additional documents and that due to un-official advice 18 O.A.No.170/28/2023/CAT/BANGALORE of ASP Chikopdi, he admitted the charges for early closure of the case. They further submit that the applicant himself approached the IO on 28.6.2021 and admitted the charges unconditionally vide letter dated 28.6.2021. He also appeared before the IO during the hearing held on 9.7.21 and given his admittance/confession to both the articles of charges vide letter dated 9.7.21. Shri.C.M Angadi, Defence Assistant and Shri.Y.S.Emmigol, Presenting Officer have also put their signature as witness to the confession letter. Further in reply to the IO report dated 16.7.2021, applicant once again reiterated the fact that he has confessed before IO unconditionally and that the entire process of inquiry was free and fair.
This clearly shows that the inquiry was conducted in free and fair manner. The purpose of conducting inquiry is to give full and free opportunity to the charged GDS to present his case and to prove innocence. The applicant himself has admitted the charges unconditionally. Even if there was a delay in conducting the inquiry and that his POD was prolonged, applicant was free to prefer appeal before appellate authority (SPOs Chikodi) for his re-instatement, pending inquiry. Further, applicant is submitting that Sri.Ramesh Kamate ASP had given unofficial advice over phone to admit the charges for early closure of disciplinary case on 25.6.2021. However, 19 O.A.No.170/28/2023/CAT/BANGALORE in para 4(4), it is submitted that the conversation between Sri.Ramesh Kamate ASP Chikodi & Sri.S.M Kokane, Postman Nippani MDG had taken place @ O/o SPOs Chikodi division on 25.6.2021 in his presence. It clearly shows that both the applicant & his friend (Sri.S.M.Kokane) are trying to book Sri.Ramesh Kamate ASP Chikodi. Further, the perusal of conversations at Annexure A8 reveals that the applicant and his friend are trying to settle the things in their favour in advance. They are going to the extent of speaking regarding revision of the case by the next authority when the case is under inquiry. Matter to be taken in consideration is that, on one hand they are praying for help from Sri.Ramesh Kamate ASP & on the other hand they seem to have recorded the conversation purposefully to book the said ASP at appropriate time. However, throughout the conversation, no such commitment is seen to have been expressed by the said ASP. It is also to be considered that Sri.Ramesh Kamate, ASP is not a competent authority to take a decision in the case of applicant, he being neither the Inquiry Officer nor the Appellate/ Revisionary Authority. Further, the ADA has imposed the penalty of withholding the TRCA of the applicant for two years without cumulative effect as per the statutory powers vested upon him. The applicant was free to submit an appeal before the appellate authority against the penalty 20 O.A.No.170/28/2023/CAT/BANGALORE imposed, if he had considered the penalty as severe, which he has failed to do.
We have examined all the related details and we find that the argument of the respondents and their decisions to confess voluntarily are as per available evidence on record and there is no material circumstance in support of the case of the applicant and his second contention is also not acceptable.
21. Further in paragraph 5(3), applicant submits that he wanted to submit an appeal to the SPOs, Chikodi-R-3, who is the normal Appellate Authority against the order at Annexure A13 within 3 months period by 6.12.2021 or thereafter with reasons for the delay in submission of the Appeal. But Shri.Rupesh Durgai, SPOs, Chikodi served Revision Notice dated 3/7.7.2021 at Annexure A-15, wherein he held the penalty awarded by the disciplinary authority as lenient and proposed to enhance it to that of compulsory discharge from completion of 3 months and 10 days from the date of the receipt of the order dated 27.8.2021 at Annexure A-13 of the disciplinary authority. The receipt of the Revision Notice barred the applicant from submitting an appeal in the case to the SPOs, Chikodi Dn. Under rule 19(1)(ii) of the GDS Rules, 2020. The effect of all this in the case was 21 O.A.No.170/28/2023/CAT/BANGALORE that the applicant was deprived of the opportunity of filing an appeal to his normal appellate authority. Though the applicant replied to the notice on 3/7.12.2021 at Annexure A15, his ailing defence assistant died on 30.1.2022, Shri.Rupesh Digai SPOs, Chikodi Dvn in his capacity as Revisionary Authority imposed on the applicant the enhanced penalty of 'compulsorily discharging the applicant from his engagement with monetary benefits (i.e SDBS etc) vide his impugned memo dt. 28.02.2022 at Annexure A21,' was imposed.
In this paragraph, applicant wants to say that the impugned orders should be quashed as arbitrary, unjust, unfair, severe and disproportionate to the gravity of lapses noticed against the applicant. In this paragraph, specifically the applicant is trying to say that as he wanted to prefer his appeal under rule to the higher authority, he could not exhaust the same. But we are unable to convince ourselves that this as a legal defence and in support of his case the applicant is unable to show us any ruling, even if the higher level authority who had revisional suo-moto power to do so, give him a notice to revise the lenient disciplinary authority's order and passed an otherwise flaw less order; could it be challenged on such technicality? Ample opportunity was given to the applicant to reply to the same and after his reply only, taking into consideration all the facts on record, the 22 O.A.No.170/28/2023/CAT/BANGALORE respondent authority has passed the impugned order in which we are unable to find any procedural lacunae. And also we do not find it to be disproportionate as in the case of a proven corruption where extra money has been collected from the general public for making/updating their Aadhar cards; and as the charges levelled against the applicant has been accepted by him through a written confession.
22. We have further examined the propriety of the Revisional Authority for taking suo-moto decision in this case under Rule 19 (1)
(ii)of Postal Gramin Dak Sevak (Conduct and Engagement) Rules 2020. The said provision reads as follows:
"19. Revision ,-
(1) Notwithstanding anything contained in these rules-
(i) Regional PMG, for those Gramin Dak Sevaks who work in region headed by PMG; and in the rest of the cases by the Head of the Circle/Chief Postmaster-General;
(ii) Any other authority immediately superior to the authority passing the orders; or
(iii) Any other authority specified in this behalf by the Government by general or special order, and within such time as may be specified in that general or special order; may, at any time, either on its own motion or otherwise call for records of 23 O.A.No.170/28/2023/CAT/BANGALORE any enquiry or disciplinary case and revise an order made under these rules, reopen the case and after making such enquiry as it considers necessary, may
(a)confirm, modify or set aside the order, or
(b) pass such orders as it deems fit."
Simple reading of the above shows that as the authority passing the revisional order has powers under Section 19 and the Section shows clearly that at any time, either on its own motion or otherwise call for records of any enquiry or disciplinary case and revise an order made under these rules, reopen the case and after making such enquiry as it considers necessary, may confirm, modify or set aside the order, or pass such orders as it deems fit.
23. Further, the provision in the proviso of Section 19 is also examined. It reads as follows:
"Provided that no such case shall be re-opened under this rule after the expiry of six months from the date of the order to be revised except by the Government or by the Head of Circle or by the Postmaster General (Region) and also before the expiry of the time limit of three months specified for preferring an appeal under Rule 14."24
O.A.No.170/28/2023/CAT/BANGALORE The Disciplinary Authority had passed its order on 27.8.2021 and more than 3 months had passed on the date of issue of revisional penalty notice dated 3/7 of December 2021 under Rule 19(1)(ii) of GDS (Conduct and Engagement) Rules 2020, and the order by the revisional authority was passed only on 28.2.2022 imposing revised upgraded punishment. Hence, the provision contained in this proviso is also complied with. The authority has also given due notice of his reasons for differing with the orders of the Disciplinary Authority and only after giving an opportunity of being heard to the applicant and considering his further written statement etc, the Authority has passed a speaking order which cannot be differentiated from any of the aspects contained in Rule 19, of the Postal Gramin Dak Sevak (Conduct and Engagement) Rules 2020, on revision. We consider the order of the authority is legal and as per the rules laid down in position.
Hence, we categorically find that this ground also has no force.
24. Further in paragraph 5(4), the applicant says that he was punished after awarding him a certificate dt. 1.2.2019 at Annexure A- 23 as he was appointed as Aadhar operator in 2018-19 and he enrolled Aadhar Cards & updations about 3600 and this was considered as top 25 O.A.No.170/28/2023/CAT/BANGALORE achievement for Chikodi division. He further contends that the respondent -3 has failed to consider all this and compulsorily discharged him from GDS Post and argued that it was unfair, unjust and disproportionate to the gravity of lapses against him, which is bad in law.
We do not find that a certificate of enrolling record number of Aadhar card of 3600 in any way mitigated the gravity of charges of collecting extra money from the public who come forward to get their Aadhar card updated. Admitted case of collecting excess money for making Aadhar card is certainly a grave misconduct and proven case of corruption. Hence, this argument has no force and accordingly we have to reject the same.
25. In paragraph 5(5), the applicant says that he is qualified in the MTS examination held on 2.8.2020 during the period of POD from 24.6.2019 to 5.9.2021. Hence he was not promoted to the post of MTS due to the pendency of vigilance case against him. As a result getting topper certificate and qualifying in MTYS examination became meaningless. Hence the impugned orders at Annexure A13 and A21 are liable to be quashed as arbitrary, unfair, unjust and disproportionate to the gravity of lapses noticed against the applicant. 26
O.A.No.170/28/2023/CAT/BANGALORE This argument also has no force as passing any departmental examination with flying colours will not mitigate the charges of proven corruption, which is also accepted by the applicant where the charges against him of collecting extra money from the general public for making their Aadhar card, is levelled and he has himself voluntarily submitted his admission letter and based on the same, the IO has reported as charges to be proved. And accordingly the Disciplinary Authority passed the impugned order and as the Revisional Authority considered the order as lenient, hence after due service of notice to enhance the punishment, the Revisional Authority, after giving him an opportunity of being heard and examining all the facts on record, passed the impugned revisional order of removing the applicant.
26. We have gone through the details of the whole case and we do not find this argument having any force at all. Considering these, we do not consider any of the grounds taken by the applicant as convincing and making any case before us to interfere with the impugned orders.
27. Although the charged officer has not cited many of the existing 27 O.A.No.170/28/2023/CAT/BANGALORE Apex Court judgments on the quantum of punishment as in this case the main contention of the applicant is that quantum of punishment to him is disproportionate to the gravity of the charges levelled against him as well as it is not equitous as one of the charged officer is not imposed with same penalty.
Hence we are examining this case in the light of some of the leading judgments of the Hon'ble Apex Court in the succeeding paragraphs and we do not find any of them are relevant to the case as a matter of fact, this is a case where the charges are very serious, in the nature of corruption and illegitimate excess money is collected by the applicant from those who have come forward in the camp for getting their Aadhar card updation. This is clearly a case of illegal gratification and cannot be considered as a technical fault. We do not find any mitigating circumstances in this case as the other official with whom the applicant wants equal treatment was not directly responsible for taking permission and dis-honestly taking the Aadhar kit to the camp for which there was no official authorisation to the applicant. And for his such acts of commission or omission he alone was fully accountable. The applicant was personally responsible much more than anyone else who may not have known of the omission and 28 O.A.No.170/28/2023/CAT/BANGALORE commission he was doing. We do not find in a case of proven corruption there is any mitigating circumstance as mentioned in the cited decisions of the Apex Court and there is nothing shocking to the conscience that we can exercise our judicial discretion to interfere with the orders of the respondent authorities in a case of proven corruption. Removal is proportionate in quantum of gravity of charges levelled and proved against the applicant. Considering these, we do not find any merit in the case.
28. Further, we find that the applicant has not taken any other plea and grounds and as in the Hon'ble Apex Court judgment in Union of India vs. P.Gunasekaran 2015 (2) SCC Page 610) in paras 12, 13 & 20 has held as follows:-
a) "Recently, the Hon'ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-
"12. 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 29 O.A.No.170/28/2023/CAT/BANGALORE 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.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;30
O.A.No.170/28/2023/CAT/BANGALORE
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable 31 O.A.No.170/28/2023/CAT/BANGALORE standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
b) The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386, this Court observed as under:
"But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
c) The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which 32 O.A.No.170/28/2023/CAT/BANGALORE is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (Emphasis added) (See also:
Union of India & Anr. v. G. Ganayutham (dead by Lrs.), AIR 1997 SC 3387; State of Uttar Pradesh & Ors. v. J.P. Saraswat, (2011) 4 SCC 545; Chandra Kumar Chopra v. Union of India & Ors., (2012) 6 SCC 369; and Registrar General, Patna High Court v. Pandey Gajendra Prasad & Ors., AIR 2012 SC 2319).
d) In B.C. Chaturvedi v. Union of India & Ors., AIR 1996 SC 484, this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and 33 O.A.No.170/28/2023/CAT/BANGALORE rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof.
e) In V. Ramana v. A.P.S.R.T.C. & Ors., AIR 2005 SC 3417, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
f) In State of Meghalaya & Ors. v. Mecken Singh N. Marak, AIR 2008 SC 2862, this Court observed that a Court or a Tribunal while dealing with the quantum of 34 O.A.No.170/28/2023/CAT/BANGALORE punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges.
In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681).
g) The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is also very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is 35 O.A.No.170/28/2023/CAT/BANGALORE disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
h) In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053, this Court explained the observations made in Ranjit Thakur (supra) observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur (supra) are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds.
29. We have examined the case on these criteria and none of them are relevant to the case. Inquiry is conducted by a competent authority, the inquiry is held according to the procedure prescribed in that behalf, there is no violation of the principles of natural justice in conducting the proceedings, there is no disablement of the authorities 36 O.A.No.170/28/2023/CAT/BANGALORE from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case, the authorities have not allowed themselves to be influenced by irrelevant or extraneous considerations; the conclusion, on the very face of it, is not so wholly arbitrary and capricious and there is no reasonable person could ever have arrived at such conclusion, it is not a case of authority had erroneously failed to admit the admissible and material evidence, it is not the authority had erroneously admitted inadmissible evidence which influenced the finding and it cannot be said that the finding of fact is based on no evidence. Hence there is nothing on record which would convince us to find a reason to interfere with the orders.
30. There is nothing before us to re-appreciate the evidence before the IO and to interfere with the conclusions of the IO or Disciplinary Authority or Revisional Authority. Hence to go into the adequacy of the evidence is without any reason, and there is no ground to go into the proportionality of punishment as it is a case of illegal gratification, excess collection from public, hence the punishment is proportionate and reasonable and is not shocking to the conscience. It is a proven case of corruption and collection of excess amount from general public for Aadhar updation. The applicant has voluntarily accepted the 37 O.A.No.170/28/2023/CAT/BANGALORE charge. Hence, we find that the punishment is proportionate to the gravity of charges levelled and also charges were voluntarily accepted by the applicant and considered proved by the authorities.
31. Considering these, we pass the following orders:
The Original Application is dismissed. All associated Miscellaneous Applications are disposed of. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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