Central Administrative Tribunal - Hyderabad
C. Abraham vs The Sub-Divisional Inspector (Posts) on 27 August, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH :: HYDERABAD O.A.No.851 of 2003 Date of Order: 27.08.2008 Between: C. Abraham ..Applicant And 1.The Sub-Divisional Inspector (Posts), Kurnool East Sub-Division, Kurnool. 2.The Superintendent of Post Offices, Kurnool Division, Kurnool. 3.The Postmaster General, Kurnool Region, Kurnool. 4.The Director General, Posts, Department of Posts, Dak Bhavan, New Delhi. 5.Sri K.V. Subba Rao, Former Sub-Divisional Inspector (Posts), Kurnool East Sub-Division, O/o. Superintendent of Post Offices, Kurnool. ..Respondents Counsel for the Applicant : Mr. S. Rama Krishna Rao, Advocate Counsel for the Respondents : Mr. A.V. Rama Rao, Addl. CGSC CORAM: The Hon'ble Mr. Justice P. LAKSHMANA REDDY, Vice-Chairman The Hon'ble Mr. R. SANTHANAM, Member (Admn). ORAL ORDER
(As per Hon'ble Mr. Justice P. Lakshmana Reddy, Vice-Chairman) Heard Mr. S. Rama Krishna Rao, learned counsel for the applicant and Mr. A.V. Rama Rao, learned Addl. Central Government Standing Counsel for the respondents.
2. This application is filed by the applicant challenging the order of removal from service in disciplinary proceedings.
3. The relevant facts in brief are as follows:
The applicant was appointed as ED/ Packer at Vorvakallu Sub-Post Office on 14.10.1977. While so, on 16.06.1996 the applicant was served with charge memo alleging that he was absent unauthorizedly from 01.07.1995 to 09.02.1996. The applicant submitted his defence statement denying the charges. An inquiry officer was appointed and the said inquiry officer submitted his report to the disciplinary authority viz., Sri K.V. Subbarao, the then Sub-Divisional Inspector (Posts), Kurnool finding the applicant guilty of the charges of unauthorized absence. Copy of the said report was furnished to the applicant inviting his comments. The applicant has filed his comments stating that due opportunity was not given to him during the inquiry and further Sri K.V.Subba Rao cannot act as disciplinary authority as he has conducted the investigation into the case on the instructions of the respondent No.2 who made inspection on 10.02.1996 and found the applicant absent in the office. In that representation, the applicant requested for appointment of adhoc disciplinary opportunity to pass appropriate orders taking into consideration the inquiry report and comments made by the applicant against the inquiry report. Sri K.V.Subba Rao ignored the objections taken by the applicant to act as disciplinary authority and proceeded to pass final orders and accepted the findings of the inquiry officer and imposed the punishment of removal from service vide order dated 05.06.1997. Against the said order, the applicant filed an appeal to the 2nd respondent on 21.07.1997 raising the same objections raised in his reply to the inquiry report and the appeal was rejected by the 2nd respondent vide order dated 19.01.1998 and confirmed the order passed by the 5th respondent. Thereafter, the applicant submitted a revision to the Member (Personnel) against the order of the disciplinary authority and also the appellate authority and it was also rejected vide order dated 26.08.1999. Aggrieved by the same, the applicant filed a review petition to the President of India on 21.11.2002 and the same was also rejected on 02.04.2003.
4. Aggrieved by the orders of the removal, the present application is filed on the following grounds :
(i) Sri K.V. Subba Rao, the then Sub-Divisional Inspector (Posts), Kurnool who is the 5th respondent herein investigated into the allegations made against the applicant and he recorded the statement of the applicant and that of Sri Chennaiah, Sub-Post Master, Vorvakallu and he himself issued the charge sheet without citing himself as a witness.
(ii) Sri K.V. Subba Rao acted as disciplinary authority subverting the constitutional guarantee that the prosecutor will not be the judge and the case should have been disposed of by a disinterested adhoc disciplinary authority. There was no proper investigation. In fact, the applicant was never absent except on the date when the 2nd respondent visited the office and that the applicant was admitted in hospital on that date.
(iii) The 2nd respondent wanted the 1st respondent i.e. Sri K.V. Subba Rao, who is made party as R-5 to record the statements of all the officials in the office. There was only one departmental official i.e. Sub-Post Master and two ED officials of whom one is the applicant herein. The Sub-Post Master, Vorvakallu was coerced to give a statement which cannot stand to the test of law and the applicant was threatened to depose on the dotted lines as otherwise he would be handed over to the police as an absconder. The other ED officials did not give any statement on the dotted lines. The applicant further pleaded that the Sub-Postmaster has to necessarily send a statement containing the names of the absentees in the office every month to the Head Officer and the pay is to be drawn as per the statement submitted by the Sub-Post Master. In accordance with such procedure, the Sub-Postmaster has been submitting statement giving attendance of the officials working under him. It is further pleaded by the applicant that for the entire period of the alleged absence, though the applicant was shown as absent in the charge sheet, the Sub-Postmaster had reported that the applicant was present in his duties throughout such period and the pay and allowances were paid for the duty period as is evident from the defence documents viz., acquittance rolls and therefore, the so called absence from duty is a wild imagination. The applicant further pleaded that according to Rule 27 of CCS (CCA) Rules, 1965, the appellate/ revision authority had to satisfy three conditions whether the applicant pleaded or not. The appellate authority, revising authority and the President failed to see that the investigating officer acted as the disciplinary authority which shows lack of application of mind and the 2nd respondent ought to have set aside the punishment on this ground alone. The applicant further pleaded that the inquiry officer unjustly refused the request of the applicant to examine three witnesses on his behalf and thus denied due opportunity to the applicant and therefore, the impugned orders are liable to be set aside.
5. The respondents contested the application and filed reply statement. It is the contention of the respondents that the applicant remained unauthorizedly absent from duty from 01.07.1995 to 09.02.1996 without any sanction of leave. The attendance register maintained by the office establishes his unauthorized absence. The visit report dated 06.02.1996 at the Vorvakallu S.O. By the then SPOs, Kurnool Division clearly shows that the applicant had unauthorizedly absented for more than 180 days continuously. As per the Director General Instructions No.2(5) under Rule No.5 of EDAs (Conduct and Service) Rules, (Presently, Rule 7 of GDS (Conduct & Employment) Rules, 2001), if any ED agent remains absent for more than 180 days at a stretch, he will be liable for prosecution. Inquiry was held as per the rules and every opportunity was given to the applicant to prove his innocence. But the applicant failed to do so. All the documents required by the applicant were produced during the inquiry as defence witnesses. It is further pleaded that the 5th respondent has not acted as an inquiry officer and he is the appointing authority for ED Packers and he has got power of awarding penalties specified in Rule 7 of ED (Conduct & Service) Rules, 1964 [now, Rule 9 of GDS (Conduct & Employment) Rules]. As such, the question of seeking appointment of adhoc disciplinary authority does not arise. A disciplinary authority can appoint any other officer of equivalent cadre to work as inquiry officer and accordingly, he appointed the then ASPOs (Hqrs.) as Inquiry Officer to inquire into the charges levelled against the applicant. Hence, the contention of the applicant is baseless. The appeal and the revision have been rejected by the competent authorities. There is no need to interfere with the findings of the disciplinary authority and the application is devoid of merits and is liable to be dismissed.
6. The applicant filed rejoinder reiterating the contentions made in the application. He pleaded that he was denied opportunity to examine the witnesses cited by him.
7. The points that arise for consideration in this application are :
(i) Whether due opportunity was given to the applicant during the inquiry to prove his innocence?
(ii) Whether the R5 is competent to act as disciplinary authority?
(iii) Whether the impugned order is sustainable in law?
(iv) To what result?
8. Point No.(i) & (ii):- The main contention of the applicant is that his job is to exchange mail bags at the bus station and that he will be at bus station from 8 AM onwards and therefore, he wanted to examine the witnesses to prove that he was present at the bus station and exchanged mail bags, but the inquiry officer refused to examine them as defence witness on the ground that they were outsiders and thus, the applicant was denied opportunity to prove his innocence. In fact, he did his duties during the period for which it is alleged that he was absent.
9. We have perused the inquiry proceedings and found that the applicant made a specific request to examine the three persons by name - Sri Maddikunta Sreerama Reddy; Sri A. Krishna Murthy and Hotel Thirupathaiah. But the inquiry officer rejected the request of the applicant to examine them as defence witnesses on the ground that they were outsiders and they are not aware whether the applicant was present or not and that they are not aware of the duties of the Ed Packer. In our considered view, inquiry officer ought to have given opportunity to the applicant to examine those witnesses permitting the presenting officer to cross-examine those witnesses in view of the nature of the duties of ED Packer. Further according to the applicant, there was another ED Packer by name Mr. Lal and Sweeper by name Sri Bhushanam and though in the cross-examination of SPM it was elicited that the ED Packer Sri Lal & sweeper Sri Bhushanam were aware about the presence or absence of the applicant during the period and in spite of eliciting such fact from the SPM, the inquiry officer failed to examine those two competent witnesses to speak about the presence or absence of the applicant during the period. Thus, the inquiry officer did not act in fair manner and he simply relied on the evidence of the SPM who paid the salary to the applicant treating him as present and gave witness statement contrary to the documentary evidence stating that the applicant was unauthorizedly absent for six months for which he himself paid salary.
10. As admittedly, there were only four employees including the SPM in the office of the SPM, Vorvakally who himself is a competent person to speak about the presence or absence of the applicant and the others are one EP packer and the sweeper. The evidence of the SPM is against his own record and therefore, the inquiry officer ought to have examined the ED packer and the sweeper in order to know the truth or otherwise of the allegations made against the applicant. Besides that, when the applicant wanted to examine three witnesses, the inquiry officer ought to have given an opportunity to examine those witnesses giving due opportunity to the presenting officer to cross-examine them. As the duties of the ED packer was only exchanging of mail bags and for performance of his duties, he has to wait at the bus stand for the bus to come to collect the mail bags, it cannot be said that the outsiders are not competent to speak as witnesses. Therefore, in our considered view, the applicant was not given due opportunity to prove that the allegation made against him is false. More particularly, admittedly, the SPM on whose evidence alone the applicant is found guilty by the inquiry officer did not report about the alleged unauthorized absence to the applicant for a period of six months and on the other hand, he paid the salaries to the applicant for that period. Thus, the inquiry officer ought not to have proceeded to complete the inquiry only after examining the SPM without examining the other two official witnesses working in the same office and without examining the other witnesses cited by the applicant as defence witnesses. Hence, we are of the considered view that the findings of the inquiry officer are liable to be set aside and the matter is to be remitted back for conducting the inquiry afresh.
11. Simultaneously, we find considerable force in the other contention raised by the applicant that the 5th respondent is an officer stated to have recorded the statement of SPM on 10.02.1996 on the instructions of the 2nd respondent. Therefore, he must be heard as witness and when such is the case, it is not fair on his part to act as disciplinary authority and he ought to have made a request to the 2nd respondent to appoint an adhoc disciplinary authority to pass final orders in this matter. On this ground, the impugned order is liable to be set aside and the matter is to be remitted back to rectify the procedural defects and to give due opportunity to the applicant to prove his innocence. Thus, both the points are found in favour of the applicant.
12. In view of the findings on points (i) & (ii), that no due opportunity was given to the applicant and that the disciplinary authority which passed the impugned order is not competent to pass final orders in this case as he recorded the statement of witness during the course of preliminary inquiry, the impugned orders are liable to be set aside and the matter is to be remitted back to the 2nd respondent to appoint adhoc disciplinary authority and also to get an inquiry conducted afresh either by the same officer or by some other officer giving due opportunity to the applicant to examine the witnesses and also to cross-examine the other two officials viz., the other ED Packer Sri Lal and the Sweeper Sri Bhushanam, and to dispose of the disciplinary proceedings within a period of six months from the date of receipt of this order.
13. Accordingly, OA is disposed of setting aside the impugned order of removal and remitting the matter back to the 2nd respondent to appoint adhoc disciplinary authority and also to issue directions to the inquiry officer to conduct inquiry afresh taking into consideration the observations made supra in this order. The disciplinary proceedings shall be completed within six months from the date of receipt of this order.
14. There shall be no order as to costs.
(R. SANTHANAM) (P. LAKSHMANA REDDY)
MEMBER (Admn) VICE- CHAIRMAN
Dated this the 27th day of August, 2008
(Dictated in Open Court)