Central Administrative Tribunal - Madras
C R Krishnan vs D/O Post on 4 August, 2022
10f19 CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH O.A. No. 310/01798/2014 tates DAY OF AUGUST TWO THOUSAND TWENTY TWO The DATED THIS THE PRESENT: THE HON'BLE SHRI. T. JACOB, MEMBER (A) THE HON'BLE SMT. LATA BAS WARAJ PATNE, MEMBER (J) C. R. Krishnan, S/o. Raman, Aged 46 years, Chellapiratti village, Gingee Taluk, Villipuram (Dt) -- 604 210. ...Applicant (Advocate: M/s. S. Ramaswamyrajarajan) Versus Union of India rep. by 1. The Director of Postal Services, Chernai City Region, Tamilnadu Circle, Chennai - 600 002. 2. The Senior Superintendent of Post Offices, Pandicherry Division, Pandicherry - 605 001. ...Respondents (Advocate: Mr. K. Rajendran, Sr. CGSC) 2 OF 19 ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member (A)) This OA has been filed by the applicant under Sec.19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
i) To quash the Impugned- Charge Memo. No. FI/IV/3/10-11 dated 31.10.2011, passed by the 2nd respondent & the Impugned Penalty Order No. FI/IV/3/10-11, dated 08.02.2013 passed by the second respondent & the Impugned Appellate Authority's Rejection Order No. VIG /APP /2 -
190/2014/CCR dated 17.09.2014, passed by the First Respondent and il. To direct the Respondents to reinstate him in service with back wages and to give him all other consequential benefits and ili, To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case with cost."
2. The brief facts of the case as submitted by the applicant are as follows:-
The applicant while working as GDS BPM under the second respondent, was kept under Put Off duty (suspension) and was issued with a Charge Memo, on the allegation of affixing his own Left Thumb Impressions instead of originel payees of the MOs and used that amount for his personal use and following the Inquiry Proceedings and based on the inquiry report the Disciplinary Authority had passed the Impugned Penalty Order imposing on him the major penalty of "Dismissal from Engagement". The applicant made an appeal to the Appellate a
3 OF 19 Authority ie. 1% Respondent narrating the lacunae that occurred during the disciplinary proceedings and requested therein to reinstate him into the service but his request was not considered by the 1 Respondent and passed the impugned "rejection order" confirming the major penalty of "Dismissal from Engagement".
Aggrieved on that the applicant preferred this O.A.
3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
i) The major penalty of Dismissal from Engagement with immediate effect imposed by the Disciplinary Authority, agreeing with the report of the Inquiry Officer, is not maintainable because the Inquiry Officer had neither examined the Vouchers which are the primary: source to be proved with regard to the genuinity of the signature of the actual payees nor the vouchers were disagreed by the actual payees.
ii) According to Rule 96 read with Appendix XIII of Postal Manual Volume III, the opinion of the Government Examiner (GEQD) is to be obtained according to the procedure laid down in the prescribed rules relating to the questioned document Therefore, the respondents ought to have taken the expert opinion of the Finger Print Expert to decide the genuinity of the Left Thumb Impressions. But it was not done so, instead without any proof and base, the applicant was given major ty 40f19 punishment of Dismissal. Therefore the case of the applicant is a clear case of Violation of prescribed Rules and Principles of Natural Justice.
iii) The Inquiry Officer had mainly relied upon the depositions/ Statements made by the Investigating Officers during the course of Preliminary Enquiry and reproduced the same during the regular/ main Inquiry and thus the charges can not be considered as proved by relying on those statements.
iv) The charges leveled against the applicant are that he affixed his Left thumb Impression on the vouchers instead of the actual payees of M.Os and used the money for his personal use and as per the direction of the Preliminary Investigating Officer, the applicant had credited the M.Os amount in UCR. But the amount was neither credited in the Payee's account nor refunded to the applicant. It shows that the complaints of the payees are not genuine and it is not true that the applicant had not paid the M.O amount to the actual payees. Therefore, Inquiry report which states that the charges against the applicant are proved is baseless, not in accordance with the relevant Rules and Regulations on the subject matter and the major punishment given by the Disciplinary Authority and the Rejection of the Appellate Authority are arbitrary in nature and liable to be set aside.
v) The Appellate Authority had not applied his mind towards the valid grounds raised by the applicant in his Appeal and had ignored the lacuna committed by the Inquiry Authorities while rejecting the Appeal.
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vi) In the case of the applicant, the Inquiry Officer during the course Inquiry, had not taken into account the documentary evidence (official records which prove that the applicant had paid the RD amount to the original depositor Mr. Selvaraj), instead he relied upon the depositions given by Mr. Selvaraj at the time of Preliminary Enquiry, which were obtained behind back of the applicant (not produced during the Inquiry Proceedings as he was dead) and also relied upon the deposition of Smt. Kanniammal, mother of Mr. Selvaraj who is not the original depositor. From this, it is evident that the said charge was decided on the deposition given by other than the Original Depositor and since the applicant had credited the amount in UCR on the pressure given by the investigating Officers alone should not be taken into account to prove the said charges and the penalty of dismissal based on that is illegal.
4, Respondents have filed detailed reply statement. It submitted that the applicant, Shri C. R. Krishnan was working as GDSBPM, Cheallapiratti Branch Post office a/w Illodu SO in Pondicherry Postal Division. While the applicant was working as such, a complaint dated 21.07.2010 from Smt. M. Kanniammal about non receipt of closure amount in RD A/c No.184413 held in the name of her son, Shri. Selvara, and refusal to give passbook by the applicant was received. Immediately, the 2°? Respondent arranged for an enquiry which revealed that the applicant was found to have committed some irregularities. The applicant, having received the passbook for pre-mature closure along with closure form, did not give t 6 OF 19 receipt ie SB-28, as required by rules. The applicant, after getting passed warrant from the Account office, closed the account by himself on 22.05.2010 and shown the closure amount of Rs.4,172/- as if paid to the depositor and utilized the amount for his personal use. During the enquiry, the applicant admitted the same and credited the amount under UCR on 30.07.2010.
5. During the past work verification, the frauds committed in payment of old age pension money orders also came to light. After completion of investigation, charge sheet under Rule 10 of GDS (C &E) Rules 2011 was initiated against the applicant by the 24 Respondent vide memo dated 31.10.2011.
6. It is submitted that the payee of the money order Smt. Kamalam in her statement dated 31.07.2010 given before the Inspector of Posts, Gingee sub division has stated that she has not received the OAPMO amount for the month of July 2010. During the course of inquiry proceedings also, she deposed that the LTI found in the MO Form was not hers and she was given the amount only on the evening of 31.07.2010. It is submitted that the applicant also in the statement dt 03.08.2010 given before the Inspector of Posts, Gingee, SDN, during the preliminary investigation, admitted that he himself affixed his thumb impression in the money order form and also signed as Kannan in the place of witness. It is submitted that since the standard of proof required in the disciplinary proceedings is the preponderance of probability, the question of verifying the LITI by finger print experts did not arise.
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7. It is submitted that the 2"¢ Respondent has carefully considered all the points put-forth by the applicant in the representation. Regarding his contention that the complaint was made by Shri. Gunasekaran, Mail-overseer, the 2™ Respondent observed that the same was baseless and not reasonable. With reference the contention of the applicant that the deposition of Smt. Kanniammal should not be accepted as evidence, the 2"4 Respondent observed that she was the mother of the depositor, Shri. Selvaraj who died after preliminary enquiry. Moreover, Shri. Selvaraj has also given complaint about the non-receipt of RD maturity amount, even though he had signed in the withdrawal form. Regarding the contention of the applicant that Shri. Rajavel used to sign in different styles, the 2"? Respondent observed that Shri. Rajavel identified the documents and though disowned his signature in the statement dt.03.08.2010, he admitted the contents. With reference to the contention of the applicant that Smt. Kamalam could not be accepted as a person mental ability, the 2" Respondent observed that during the inquiry she has clearly deposed that she has not impressed her LTI in the MO form on 22.07.2010 and has not received any amount for that money order and hence his contention could not be accepted.
8. It is further submitted that the 24 respondent, with reference to the contention of the applicant that he has given statement accepting the allegations under the plea bargain of leniency as assured by the investigating officers, has observed that there was no need for such assurance by the investigating officers.
ay 8 OF 19 With reference to the contention of the applicant that the deposition of investigating officers also should not be accepted for arriving at a decision, as they are always obliging witnesses of the disciplinary authorities, the 24 Respondent observed that the applicant was given due opportunity of cross examination during the inquiry and he has also cross examined all the witnesses. With reference to his contention that financial irregularity would be held as proved only based on vouchers and not on statements, the 2"4 Respondent observed that the contention is irrelevant as all the witnesses were examined in the inquiry and all the vouchers were produced as exhibits. The 2™ Respondent has carefully analyzed all the points put forth by the applicant in the representation. Considering the facts and circumstances of the case, documents and evidences adduced during the inquiry, the report of inquiry officer and submission of applicant, the punishment of dismissal has been awarded by order dt.08.02.2013.
9. It is submitted that against the order of penalty, the applicant submitted an appeal dt. 22.04.2013 to the 1% Respondent. The 1' Respondent carefully considered the appeal and observed that since charges are grave in nature, he was not inclined to interfere with the penalty awarded by the disciplinary authority and accordingly rejected the appeal dt. 17.09.2014. Hence the present O.A. The Hon'ble Apex Court in various judgments held that in the cases involving corruption, there cannot be any other punishment than dismissal, any sympathy showa such cases is totally uncalled for and opposed public interest. Therefore the @ 9-0f 19 order of punishment and appeal rejected by the authorities are in order and is not liable to be interfered with. The tespondents pray for dismissal of the OA.
10. Heard the learned counsel for the respective parties and perused the pleading and documents on record.
ll. The charges levelled against the applicant are as under:-
"Article I:
Non-payment of closure amount of Rs.4,172/- in RD Ale No. 184413 held in the name of Shri. Selvaraj on 22.05.2010, but shown as paid and utilized the amount for his personal use.
Articles II:
Non-payment of OAP money order No.249-707 of Rs.400/payable to 'Shri Rajavel, S/o Shri Muniyan, Karaiamangalam, Chellapiratti, but shown as paid on 20.07.2010 and utilized the amount for his personal use.
Articles II:
Non-payment of money order No.249-497 of Rs.400/- payable to Smt. Kamalam, W/o Nallathambi, Karaiamangalam, Chellapiratti, but shown as paid on 22.07.2010 and utilized the amount for his personal use."
A stacement of imputations of Misconduct or Misbehavior on which the Articles of charge were based, together a list of Documents by which, and a List of Witnesses by whom, the charges were proposed to be sustained, were also forwarded to him along with the above said Memorandunr dated 31.10.2011.
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12. Inquiry under Rule 14 of CCS (CCA) Rules 1965 was conducted giving reasonable opportunity to the applicant and after careful consideration of the representation of the applicant and other connected records, the applicant was awarded a punishment of 'dismissal from engagement' vide memo dated 08.02.2013.
13. | Aggrieved of the penalty of dismissal from service, the applicant preferred an appeal dated 22.04.2013 to the Appellate authority and 1* respondent. The Appellate authority and the first respondent after careful examination, rejected the applicant's appeal and confirmed the penalty imposed by the Disciplinary Authority vide its Memo dt. 17.09.2014.
14. Aggrieved against the order of punishment, the applicant invoked the jurisdiction of the Tribunal.
15. The Disciplinary Authority has taken into consideration the evidence led before the IO to return a finding that the charges levelled against the applicant stand proved. Consistency in evidence both documentary and evidences coupled with the fact that there does not appear any variation from the rules with regard to conducting of the inquiry support fully the case of the respondents. Thus, there is absolutely no irregularity or legal flaws in the decision making process.
16. The power of judicial review is confined to the decision-making process.
The power of judicial review conferred on the Constitutional Court or on the 11 Of 19 @ Tribunal is not that of an appellate authority. The following decisions are apposite to take into account while deciding the issue in this case:-
(a) In State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, a three Judge Bench of the Apex Court has held that the High Court is not a court of appeal over the decision of the authorities holding a.departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:
"7. ...The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concemed to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. ..."
(b) In B.C. Chaturvedi v. Union of India & Ors., again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the } 12 Of 19 authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. Ii was held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial'review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould | the relief so as to make it appropriate to the facts of each case.
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13. The disciplinary authority is the sole judge of facts. Where appeal is presented. the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
(c) In High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & Anr., the Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we
14 Of 19 cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
(d) In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or _:150F19 based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC416).
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(d) In Union of India vs Dalbir Singh (2021) 11 SCC 321, the Apex Court has held as under:-
"20. A three-Judge Bench of this Court in State of Haryana v. Rattan Singh* was dealing with the issue of non-examination of passengers when the allegation against the conductor was non-issuance of the tickets. This Court held that in a domestic enquiry, strict and sophisticated rules of evidence under the Indian Evidence Act may not apply and that all materials which are logically probative for a prudent mind are permissible. There is no allergy.to hearsay evidence provided it has reasonable nexus and credibility. This Court held as under : (SCC p. 493, para 4), "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by 16 OF 19 counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The "residuum"
rule to which counsel for the respondent referred, based upon certain passages from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record."
(e) The Hon'ble Apex Court in Union of India & Ors. v. P. Gunasekaran had laid down the broad parameters for the exercise of jurisdiction of judicial review. The Court held es under:
"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, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution 17 Of 19 of India, shall not venture into reappreciation 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 Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(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.
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(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."
17. Examining the case under the lens of the above decisions, it would be seen that in this case the applicant participated in the enquiry without any protest. It is not the case of no evidence or that the findings are perverse. The finding that the applicant is guilty of misconduct can be interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. It is not the case of the applicant that there was any violation of any rule or regulation or violations of the principle of natural justice. The Inquiry Officer has appreciated the evidence and returned a finding that the applicant is guilty of misconduct. Though certain grounds alleging non following of the principles of natural justice and that the IO rendered his finding without any man and material, the applicant could not disprove the allegations and the grounds raised were only customary and conventional withott any basis as could be discerned from the detailed inquiry report of the inquiry officer.
18. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the 1* respondent as an Appellate Authority was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or 19 OF 19 the High Court cannot interfere with the findings of facts 'recorded by reappreciating evidence as if the Courts are the Appellate Authority. The applicant was charged with fraudulent activities and thé same was proved in a duly constituted inquiry. The penalty of dismissal from engagement is very much commensurate with the grave charges of fraud and embezzlement of public money:
19. In the conspectus of the above facts and circumstances of the case and the judgements of the Hon'ble Apex Court and High Court, we do not see any justification to allow the OA in favour of the applicant. Resultantly, the OA is liable to be dismissed and is accordingly ordered. No costs.
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