Central Administrative Tribunal - Delhi
Deepak vs D/O Post on 7 September, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1779/2015
Reserved on : 28.08.2015.
Pronounced on : 07.09.2015.
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Mr. Shekhar Agarwal, Member (A)
Sh. Deepak,
Aged about 35 years,
S/o Sh. Suraj Bhan,
R/o F-3/145-146, Sector-16,
Rohini, Delhi-89. .... Applicant
(through Sh. S.K. Gupta, Advocate)
Versus
Union of India through
1. Secretary,
Department of Posts,
Dak Bhawan, Ashoka Road,
New Delhi.
2. Chief Post Master General,
Delhi Circle,
New Delhi-1.
3. Director Postal Services (O),
O/o Chief Post Master General,
Delhi Circle, New Delhi-1.
4. Sr. Supdt. Of Post Offices,
Delhi North Division,
Department of Posts,
Delhi-54. ..... Respondents
(through Sh. Girish Sharma, Advocate)
ORDER
Mr. Shekhar Agarwal, Member (A) The applicant was working as a Postman when on 29.09.2011 he was served with a charge sheet under Rule 14 of CCS(CCA) Rules containing the following charge:-
"That Sh. Deepak, Postman, Rohini, Sector-15 Post Office, Delhi- 110089, a departmental candidate for the post of Pas/Sas cadre, while OA-1779/2015 2 appearing in paper I and paper II under Roll No. D1/DN-01/LGO/2010 in LGO Examination, 2010, held on 10-102010 at JVSD Girls Sr. Secondary School, D-2, Jhandewalan, Karol Bagh, New Delhi-110005 (Room No-18), a diary containing solved answers of question No.1 and 2 of Paper I and question No. 1,2,3,4,5 & 6 of Paper II of said examination was recovered from his bag lying in the examination room. Thus, Sh. Deepak is alleged to have found in possession of unauthorized note books in the examination hall thereby, alleged to have violated the provisions of Rule 18 contained in Part-I of Appendix No.37 of P & T Manual Volume IV Part-II(A).
By doing the above acts, Sh. Deepak is also alleged to have failed to maintain absolute integrity and committed an act which is unbecoming of a Govt. Servant thereby contravening the provisions of Rule " 3(1)(i) & 3(1)(iii) of CCS (Conduct) Rules, 1964."
2. On denial of charge by him an enquiry was held and Enquiry Officer (EO) submitted his report on 04.08.2013 in which he held that the charge was not proved. The Disciplinary Authority (DA), however, did not agree with the findings of the EO and issued a disagreement note on 23.01.2014. The applicant submitted his representation against the same on 07.02.2014. The DA, however, passed the impugned order dated 24.04.2014 imposing upon the applicant punishment of withholding of promotion for a period of six years. The applicant submitted an appeal against the same but this was rejected by the Appellate Authority (AA) on 31.10.2014. Hence, he has filed this O.A. before us seeking the following relief:-
"(i) quash and set aside the disagreement note dated 23.01.2014 (Annexure-A-1), punishment order dated 24.04.2014 (Annexure-A-
2) and Appellate Authority dated 31.10.2014 (Annexure-A-3) and charge sheet dated 29.09.2011 (Annexure-A-4) with all consequential benefits.
(ii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."
OA-1779/2015 3
3. The contention of the applicant is that the authorities have erred in law as well as facts by passing the impugned orders. No charge could have been framed against him as he has not committed any misconduct. The diary was not recovered from the possession of the applicant but from a bag, which was lying at a distance from his seat. Moreover, the applicant was at that time participating in Paper-III of the examination when the diary recovered was alleged to be having solved questions of Paper-I and Paper-II. Further, he has submitted that the disagreement of the DA was not tentative as is evident from the disagreement note. Hence, this is violation of the law laid down by Hon'ble Supreme Court in the case of Yoginath D. Bagde Vs. State of Maharashtra & Anr., 1999(7)SCC 739. According to the applicant the EO had submitted a well reasoned report after analysing the entire evidence but the DA rejected the same. The EO has stated in his report that no witness had uttered a single word about the contents of the diary. The disagreement note was thus perverse and based upon surmises and conjectures. Moreover, the DA has failed to consider the intent of Rule-18 contained in Part-I of Appendix- 37 of P&T Manual Vol.-4. The purpose behind this rule was that no one should carry unauthorized material for using it while solving the question paper. The applicant has further submitted that DA as well as AA should have considered each of the grounds raised by the applicant. Since they have failed to do so, their orders deserve to be quashed.
4. In their reply, the respondents have stated that a departmental examination for LGOs for Postal Assistants/Sorting Assistants cadre consisting of three papers was held on 10.10.2010. During the course of the visit of the checking officer in Room No.21 in Paper-II (Arithmetic) of said examination at OA-1779/2015 4 around 1300 hrs, it was found that one of the candidates, namely, Sh. Tej Singh was using unfair means by keeping photocopy of duly solved answers with him, which was in fact, solutions of questions of Paper-II. Thereafter, on the directions of the visiting officer i.e. Director Postal Services, bags of all the candidates, which were kept in different examination rooms were searched by the Invigilators to see whether any material relating to this examination was kept there. During the search, solved answersheets of questions asked in Paper-I, Paper-II & Paper-III were recovered from the bags of the candidates appearing in the said examination. In view of recovery of aforesaid material, it was clear that papers of this examination had been leaked. CPMG, Delhi Circle, therefore, decided to cancel the said examination. 4.1 The applicant was a departmental candidate and also appeared in the same examination. During the course of search by the Invigilator, a diary containing solved answers of Question Nos. 1 & 2 of Paper-I and Question Nos. 1,2,3,4,5 & 6 of Paper-II of the said examination were recovered from the applicant's bag, which was lying in the examination room. 4.2 As per investigations conducted in the aforesaid case, some unknown persons were identified as principal offenders and eight officials of different units including the applicant were identified as subsidiary offenders. Accordingly, a show cause notice was issued to him on 10.08.2011 asking him to show cause why disciplinary action should not be initiated against him. The applicant replied to the same on 19.08.2011. Since his reply was not satisfactory, a charge sheet under Rule-14 of CCS(CCA) Rules was issued to him. After denial of charge by the applicant, an enquiry was held and the EO submitted his report on 05.09.2013. The EO had found the charge against the OA-1779/2015 5 applicant to have not been proved. The DA, however, disagreed with the EO and a disagreement note together with the enquiry report was furnished to the applicant and he was given an opportunity to submit his representation thereon. The applicant submitted his representation on 07.02.2014. After considering the same, the DA awarded punishment to him vide order dated 24.04.2014.
5. We have heard both sides and have perused the material on record. Learned counsel for the applicant, mainly, pressed before us the following two grounds:-
(i) The charge against the applicant could not have been framed as he was not caught copying in the examination. Learned counsel argued that it was admitted position by the respondents that the diary recovered was from the bag which was lying at some distance from the seat of the applicant and the applicant himself was not in possession of that diary. Thus, he could not have been copying from that diary. Moreover, when the diary was recovered, the applicant was appearing in Paper-III of the examination whereas the diary is alleged to be containing solved answers to questions of Paper-I and Paper-II. Hence, the charge framed against the applicant itself was baseless.
(ii) The EO had found the charge to have not been proved against the applicant. The DA issued a disagreement note. However, this disagreement was not tentative and was thus against the law laid down by Hon'ble Supreme Court in the case of Yoginath D. Bagde (supra).
OA-1779/2015 6 5.1 As regards the first ground mentioned above, we have perused the charge sheet issued to the applicant. In the statement of charge, it is mentioned that the applicant was in possession of unauthorized note books in the examination hall. Thus, the charge against the applicant was not of copying but of possessing of unauthorized material. In the statement of imputation, the background of the case is given. Thus, it is stated that one Sh. Tej Singh, who was also appearing in the examination was caught using unfair means by keeping photocopies of duly solved answers with him. Thereafter, search of bags of all the candidates was conducted. From the material recovered in the search, it was clear that all the three papers of the said examination had been leaked. The examination, therefore, had to be cancelled. As far as the applicant was concerned, a diary containing solved answers of some questions of Paper-I & Paper-II were recovered from his bag, which was lying in the examination hall. The respondents, therefore, rightly concluded that this material was unauthorized considering the background of the case. The applicant's contention that the recovered diary cannot be regarded as unauthorized material in terms of Rule 18 of P&T Manual is unacceptable considering the facts of this case.
5.2 The applicant has stated in his pleadings that none of the witnesses had uttered a word regarding possession of unauthorized material with him. The EO has also stated so in his report. However, we find that the DA has relied on the written statement dated 10.10.2010 of the applicant himself wherein he has admitted that the recovered diary contained solved answers of questions in respect of Paper-I & Paper-II. In fact, he further stated that before commencement of the examination he had found a group of some unknown OA-1779/2015 7 persons outside the examination centre, who were discussing all these topics and on hearing the same he had solved those questions in the diary. We notice that even in the statement of imputation of misconduct, it is mentioned that the written statement dated 10.10.2010 of the applicant had contained this admission on his part. Thus, in our view, the applicant cannot deny that the diary was not recovered from his bag and that it did not contain unauthorized material as mentioned above. Moreover, we notice from the chargesheet served on the applicant that the charge against him was of carrying unauthorized note book to the examination hall and not by copying in the exam. Hence, it cannot be said that the charge itself is wrong and could not have been framed. We, therefore, do not find any merit in this argument of the applicant.
5.3 The next ground pressed before us was that the disagreement of the DA was not tentative and was hence, contrary to the law laid down by Hon'ble Supreme Court in the case of Yoginath D. Bagde (supra). We have gone through the aforesaid judgment. In this case Hon'ble Supreme Court has held that the report of the EO is not binding on the DA and he has every right to disagree with the same. However, in cases of disagreement, it is necessary that reasons for disagreement be recorded and the charged officer be given an opportunity to represent against the same. Hon'ble Supreme Court has held that even if the rules do not contain such a provision, it should be read into the rules as not giving an opportunity to the charged officer to represent against the reasons for disagreement would be violative of the principles of natural justice. Further, Hon'ble Supreme Court has held that the disagreement of the DA should be "tentative. For if the disagreement is not OA-1779/2015 8 tentative and the DA has already made up his mind then subsequent action of giving an opportunity to the charged officer to represent against the disagreement note would be reduced to a mere formality. 5.4 In the instant case, we find that the DA has given detailed reasons for disagreeing with the report of the EO. Thereafter, he has given an opportunity to the applicant to represent against the same. The applicant submitted his representation. The DA has considered each of the grounds mentioned in the representation given by the applicant against the disagreement note as is evident from the impugned order dated 24.04.2014 of the DA. Thus, except for using the word "tentative" in his disagreement note, the DA has strictly followed the law laid down by Hon'ble Supreme Court in the case of Yoginath D. Bagde (supra).
5.5 The question is whether not using the word "tentative" in the disagreement note would prove to be fatal. In our opinion, the very purpose of tentative disagreement as is evident from a reading of Hon'ble Supreme Court's judgment in Yoginath D. Bagde's (supra) case is that the DA should not have a closed mind. He should be open to consider on merits, argument advanced by the charged officer against the disagreement note. If the DA has already made up his mind then the entire exercise would be reduced to mere post decisional formality. However, in the instant case, we notice that the actions of the DA reveal an open mind despite the fact that he has not used the word "tentative"in his disagreement note. This is evident from the fact that he has given detailed reasons for disagreeing with the EO. Thereafter, he has given an opportunity to the applicant to submit his report against the same. When the applicant submitted his representation he has OA-1779/2015 9 considered each of the grounds raised by the applicant in his order before imposing the punishment. Thus principles of natural justice have not been violated. We, therefore, conclude that there has been full compliance of the law laid down by Hon'ble Supreme Court in the case of Yoginath D. Bagde (supra).
5.6 The applicant has also relied on the judgment of this Tribunal in OA- 3350/2013 (Mr. Ravi Shankar Vs. GNCTD) dated 31.07.2015. However, on going through that judgment, we find that that OA was allowed because the disagreenment note of the DA therein had been found to be violative of the law laid down by Hon'ble Supreme Court in Yoginath D. Bagde's case (supra). Since that is not the situation in the instant case, this judgment will also be of no help to the applicant.
6. No other ground was pressed before us. We find that both the DA as well as AA have passed well reasoned orders after considering the grounds raised by the applicant in his defence.
7. Considering the above, we do not find any reasons to interfere in the disciplinary proceedings. This O.A. is dismissed. No costs.
(Shekhar Agarwal) (V. Ajay Kumar) Member (A) Member (J) /vinita/