Central Administrative Tribunal - Ernakulam
P.K. Kuttappan vs P. Purushothaman Nair And Ors. on 5 April, 2002
Equivalent citations: 2004(1)SLJ110(CAT)
ORDER G. Ramakrishnan, Member (A)
1. applicant while working as Extra Depart-mental Delivery Agent, Parakkadavu under Paravur Postal Sub Division was put off duty w.e.f. 21.2.97 FN under Rule 9 of the P & T Extra Departmental (Conduct & Service) Rules, 1964 as per A-1 memo dated 21.2.97 of the second respondent. Subsequently A-2 memo dated 26.3.97 of the second respondent was issued to him proposing to take action against him under Rule 8 of the P & T ED Agents (Conduct and Service) Rules 1964. Applicant sent A-3 letter dated 7.4.97 requesting for further time to submit his Statement of defence. By A-4 memo dated 2.4.97 second respondent appointed first respondent as the Inquiring Authority to inquire into the charges framed against the applicant. Applicant suhmitted A-5 written Statement dated 15.4.97. Preliminary Hearing of the case was held on 9.5.97. The applicant appointed a Defence Assistant. Applicant by A-7 representation dated 14.5.97 made a requestto furnish him with copies of the Inspcction Report on Parakkadavu BO of the Sub Divisional Inspector of Post Office. Paravur in 1990 and 1996. The Departmental enquiry commended on 9.5.97 and concluded on 8.8.97. The first respondent forwarded a copy of the enquiry report under A-9 covering letter dated 9.10.97 to the applicant directing him to submit representation if any within 15 days from the date of receipt of the same. Applicant sought further ten days time for submitting his representation against the enquiry report which was granled by the 2nd respondent. Accordingly applicant submitted A-10 representation dated 20.12.97 to the 2nd respondent disciplinary authority. By A-11 proceedings dated 9.11.98 of the second respondent the applicant was removed from servicc with immediate effect. Applicant filed A-12 revision petition to the third respondent on 13.9.98. The third respondent by A-13 order dated 28.12.98 rejected the revision petition. Aggrieved the applicant has filed this Original Application seeking the following reliefs:
(i) to call the records relating to Annexure A-1, A-2, A-9, A-11 and A-13 and to set aside the same.
(ii) to issue appropriate direction or order direction the respondents to reinstate the applicant in Service to treat him as continuing in service without regard to Annexure A-9, A-11 and A-13.
(iii) to issue appropriate direction or order directing the respondents to disburse allowances for the period the applicant was put off duty unlawfully and for the period from the date of his rcmoval to the date of his reinstatement with full service benefits including arrears of allowancc with 18% interest.
(iv) to grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case.
(v) to award costs to the applicant.
According to the applicant A-1, A-2, A-9, A-11 and A-13 were illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
2. Respondents filed reply Statement resisting the claim of the applicant. According to them on enquiry into a public complaint the applicant while working as a Departmental Delivery Agent at Parakkadavu was prima facie found responsible for return of registcred and value payable articles with false remarks and non-delivery of ordinary articles. An enquiry under Rute 8 of the P & T ED Agents (Conduct &-Service) Rules 1964 consislent with the requirement of Article 311 (2) of the Constitution of India was held against the applicant and he was removed from service w.e.f. 9.1 .98. The applicant did not prefer any appeal but submitted a review petition to the Postmaster General, Kochi. The review petition was rejected by the reviewing authority. The Original Application has been filed against the punishment and review orders. The applicant was given reasonable opportunity to present his case A-12 order was a speaking order. The evidence as well as the gravity of the offence had been clearly diseussed in the A-12 order. The applicant withheld delivery of registered and value payable articles to the members of public recording false remarks in the order to wreak vengeance with them as he was not in good terms with the addressees. Such an act on the part of a public servant like the appliqant was very grave rendering him unfit to be retained in a public office. Therefore A-12 order could not be assailed for the reasons advanced by the applicant. A-1, A-2, A-9, A-11 and A-13 were issued after observing all the formalities prescribed under the relevant rules and for valid reasons. The applicant was not eligible for any of the reliefs prayed for and the O.A. was liable to be dismissed.
3. Heard learned Counsel for the parties.
4. We have given careful consideration to the submissions made by the learned Counsel for the parties and the rival pleadings and have perused the documents brought on record.
5. We find from A-2 memo that the Articles of Charges framed against the applicant are as follows:
Article-I That Shri P.K. Kuttappan while working as EDDA Parakkadavu failed either to deliver or return to the Branch Postmaster 38 ordinary postal articles entrusted to him for delivery on 16.3.96, 18.3.96 and 19.3.96 and thereby failed to maintain absolute devotion to duty violating the provisions of Rule 17 of the P & T ED Agents (Conduct and Service) Rules, 1964.
Article-II That Shri P.K. Kuttappan while working as EDDA Parakkadavu did not deliver R 1 1075 of Bijpur addressed to Shri I.M. Thomas, Irimpan House, Poovathussery, Parakkadavu entrusted to him for delivery on 4.3.96 and subsequent days but returned the article undelivered finally with false remarks on 19.3.96 and thereby failed to maintain absolute integrity and devotion to duty violating the provisions of Rule 17 of the P & T ED Agents (Conduct and Service) Rules, 1964.
Article-III That Shri P.K. Kuttappan while working as EDDA Parakkadavu did not deliver Rule 1 979 of Poovathussery addressed to Omana Thomas c/o I.M. Thomas, Irimpan, Poovathussery, Parakkadavu entrusted to him on 9.3.96 and subsequent days but returned it undelivered with final false remarks on 19.3.96 and thereby failed to maintain absolute integrity and devotion to duty violating the provisions of Rute 17 of the P & TED Agents (Conduct and Service) Rules, 1964.
Article-IV That Shri P.K. Kuttappan while working as EDDA Parakkadavu did not deliver or service intimation on VP B-4241 of Bombay GPO addressed to Mrs. Omana Thomas, Poovathussery Parakkadavu which was entrusted to him on 12.3.96 and subsequent days but returned it with false remarks "Home continuously locked" finally on 18.3.96 and thus failed to maintain absolute integrity and devotion to duty violating the provisions of Rule 17 of the P & T ED Agents (Conduct & Service) Rules, 1964.
6. The Statement of imputation, the list of documents and the list of witnesses were also enelosed with A-2 memo. Even though in the pleadings one of the grounds raised was that the applicant had been placed on put off duty before commencement of the enquiry and the said action was ultra vires and inoperative, during the course of the hearing the learned Counsel for the applicant submitted that this ground was not being pressed. The first ground raised by the learned Counsel for the applicant was that the Disciplinary Authority without waiting for the defence Statement from the applicant for which 10 days' time was granted from the date of receipt of memorandum of charges and without considering the request made by the applicant in his A-3 letter dated 7.4.97 and passing an order thereon either granting the time or refusing the time, issued memo dated 2.4.97 appointing the first respondent as the Inquiring Authority. According to the learned Counsel for the applicant this was violative of the principles of natural justice. According to him the conduct of the second respondent did not represent the bonafide exercise of power but showed personal bias against the applicant and his anxiety to punish him. We have considered this Submission. Annexure A-2 is the memo issued to him informing him of the articles of charges. In paras l and 3 of A-2 it is stated as under:
1. The undersigned proposes to take action against Shri P.K, Kuttappan EDDA (Put off) Parakkadavu under Rule 8 of the P & T ED Agents (Conduct & Service) Rules, 1954 and in this connection to hold an inquiry consistent with the requirements of Article 311(2) of the consti-tution of India. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed Statement of articles of charge (Annexure-I). A Statement of the imputations of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure-II). A list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained are also enclosed (Annexures-III and IV).
xxx xxx xxx
3. He is informed that an enquiry be held only in respect of those articles of charges as are not admitted. He should therefore, specifically admit or deny each article of Charge.
In the light of the above advice to the applicant, we do not find any infirmity if the first respondent had been appointed as Inquiring Officer without waiting for the explanation of the applicant. Further, we also observe that the Disciplinary Authority had given time to the applicant. In any case it has not been shown as to how the orderjng of the inquiry without waiting for the defence Statement of the applicant has prejudiced the applicant. As it is statcd in A-2 memo itself that the inquiry would he conducted only in rcspect of chargcs which are not spccifically admittcd and as the applicant had denied all the charges, we are of the vicw that this had not caused any prcjudice to the applieant and yitiated the enquiry in any way. Regarding the plea of bias raised by the applicant we are unable to accept the same as the Disciplinary Authority had not been impleaded by name. Wc also find no inifirmity in the reason given by the respondcnls that the inquiry was ordered without waiting for the defence Statement in order to avoid delay in finalising the disciplinary prooeedings.
7. Thc second ground raised by the applicant was that the Statements recorded during the preliminary inquiry were not given to him and thus the inquiry was vitiated as he was preventcd from proper cross-examination of the witnesses during the enquiry. The learned Counsel for the applicant relied on the judgment of the Hon'ble Supreme Court in State of Mysore v. Shivabasappa Shivappa Makapur, AIR 1963 SC 375 in support of his Submissions. He also relied on the decision of the State of Punjab v. Bhagat Ram, AIR 1974 SC 2325 and State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623. The learned Counsel for the respondents drew our attcntion to R-6 daily order-sheet dated 9.5.97 and submilted that the charged official with the assistance of the Defence Assistant took exlracts/copies of the lisled documents. The only Statement of the charged official on that day was that he would require some addilional documents.
8. On consideration of the submissions we find from R-6 that the applicant on 9.5.97 had access to all the relevant documents. It is also recorded in R-6 that he had taken extracts/copies of the listcd documenls. The relied on documents are listed as Ahnexure-III to A-2 charge-memo. Annexure-III to A-2 contained the list of relied on documents as follows :
1. Letter of complaint datcd 27.2.96 from Shri M. Thomas.
2. Test letter dated 18.3.96 of SSPOs, Aluva Dn.
3. Wrappcr of the lest letter dated 18.3.96.
4. Invcntory of undelivered letters prepared by SDI.
5. Statement dated 20.3.96 by P.K. Kuttappan regarding ordinary letter.
6. Statement datcd 21.3.96 by P.K. Kuttappan regarding RI 1075 and 979.
7. Wrapper of RI No. 12075.
8. Wrapperof RI 979.
9. Wrapper of VPL (Packert) B 4241.
10. VPL receipt in respect of VPL 4241.
11. BO slip dtd. 12.3.96.
12. BO slip dtd. 22.3.96.
13. Statement of Mrs. Omana Thomas dt. 20.3.96.
14. Statement dated 16.3.96 of Mrs. Omana Thomas.
15. Statement dated 20.3.96 of Shri I.M. Thomas.
16. Statement dated 21.3.96 of Shri K.K. Ayyappankutty, BPM.
17. Statement dated 16.4.96 of Shri Ayyappankutty, BPM,
18. Postman book of P.K. Kuttappan from 2.3.96 to 19.3.96.
19. BOL Journal of Parakkadavu BO for the period from 20.2.96 to 18.5.96.
From the above we find that the charged official had access to all the documents relied on by the respondents including the copy of the complaint and the Statements recorded in the preliminary enquiry before the examination of the witnesses.
9. In the State of Mysore v. Sivabasappa Sivappa Makapur the Hon'ble Supreme Court held :
"discussing next what those rules required, it was obscrved that the person against whom the Charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witnesses will in itsentirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to eross-examine him... In our opinion they are sufficiently complied with when previous Statements given by the witnesses are read over to them marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
10. In the State of Punjab v. Bhagat Ram , (supra) the Hon'ble Apex Court held:
"It is unjust and unfair to deny the Government servant copies of Statements of witnesses examined during invcstigation and produced at the enquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reason-able opportunity of showing the cause against the action proposed to be taken."
11. In the State of Madhya Pradesh v. Chintaman, (supra) the Hon'ble Supreme Court held:
"The right to cross-examine the witnesses who gave evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with the rules of natural justice."
12. In our view what the Hon'ble Supreme Court had held in the above judgments relied on by the learned Counsel for the applicant, is that the person against whom the charges were made should know the evidence which werc against him. It could not be said that in this case the applicant had not been given access to the documents and the Statements recorded by the witnesses during the preliminary inquiry. Under such circumstances we do not find any substance in this ground raised by the applicant.
13. The next ground raised by the applicant was that the applicant was not given the copy of the complaint made by Shri I.M. Thomas based on which the inquiry proceedings were initiated against him. We have already held that the applicant had access to the listed documents including the copy of the complaint. Further it was submitted that the applicant was not given a copy of the preliminary inquiry report of the SDI of Post Offices. According to him the non-furnishing of the copy had vitiated the inquiry. What we find is that the applicant had no case that the preliminary inquiry report was relied on by the respondents in imposing the punishment on him or in preparing the inquiry report against the applicant. The respondents in the charge sheet listed the documents based on which the charges were proposed to be proved and list of witnesses through whom the charges were proposed to be proved. In the list of documents the preliminary inquiry report had not been shown as one of the relied upon documents. Further according to the respondents, the applicant did not demand a copy of the preliminary enquiry report and this had not been denied by the applicant. Under such circumstances, we are unable to accept this ground.
14. According to the applicant the Inspection report of the SDI Post Offices, Paravur made in 1990 would indicate that the work load of EDDA Parakkadavu was heavy and one EDDA could not copy with the workload. He claimed that he was put to disadvantage in setting up his defence and that he had suffered legal injury on account of the failure to supply the inspection report of the SDI of Post Offices, Paravur.
15. According to the respondents the charges against the applicant were not for non-delivery or delay in delivery alone. According to them, the applicant withheld delivery of even registered and value payablc articles wilfully recording false remarks and returned them undelivered to wreak vengeance against the addressees with whom the applicant was inimical. They submitted that the findings of the first respondent were supported by clear and legal evidence. According to the learned Counsel for the applicant there was nothing in the articles of charges to suggest any of the above. He submitted that as it had been established in the enquiry that the workload of the EDDA was unmanageably heavy, the applicant could not be found guilty for the delay or non-delivery of Postal Articles in time and it could not be attributed that the applicant had failed to maintain absolute integrity or devotion to duty violating Rule 17 of the P & T ED Agents Rules, 1964. According to him there was no legal evidence to conclude that the charges were proved. Further he submitted that just because there was a delay in delivefring letters or certain remarks were given in the letter, the same could not mean that the applicant lacked devotion to duty and integrity. Rule 17 is all embracing rule and leaves it to the authorities to decide according to their own whims and fancies, when the said rule is violated and when they were not violated. Such unfettered discretionery power to Interpret a rule in the hands of the authorities could not be treated as legal. Hence the acts of commission and omission done by the applicant cannot be treated as misconduct as the same are not specified in the rules. In this context he also drew our attention to Rule 127 of Postal Manual, Vol. VI and submitted that the applicant had not violated the said Rule. He further, submitted that the Disciplinary Authority without appreciating the fact of heavy workload of the EDDA and any evidence concluded that the applicant was guilty of the charges. The revisionary authority had confirmed the penalty on a charge that was not in the articles of charges at all i.e. the applicant misused his position to wreak personal vengeance. He cited the following judgments of the Hon'ble Supreme Court in support of his submissions.
(i) S.L. Kapoor v. Jagmohan and Ors., AIR 1981 SC 136.
(ii) State of Mysore v. K. Manche Gowda, AIR 1964 SC 506.
(iii) A.L. Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361=1984(2) SLJ 82 (SC).
(iv) State of U.P. v. Shatrughan Lal and Anr.
(v) Kuldeep Singh v. Commissioner of Police and Ors., 1999(2) SCC 10.
16. Further, according to the Counsel the penalty of removal from service imposed on the applicant was highly excessi ve and disproportionate to the gravity of the chargcs levelled against the applicant and on this ground alone the'penalty was liable to be set aside at the hands of this Tribunal. He cited the following judgments of the Hon'ble Apex Court in this connection:
(i) Union of India v. Parmanand, (1989) 2 SCC 177. (ii) B.C. Chaturvedi v. Union of India and Ors., AIR 1996 SC 484. (iii) U. P State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors., 2000(3) SCC 450.
17. We have considered the rival submissions and pleadings. We find that the applicant's case is that his acts of omission and commission were due to the heavy workload of the post of EDDA which he was holding. Respondent's case is that even if there was heavy workload that would relate only to the first article of charge, and that would not explain the false remarks alleged in the articles of charges 2, 3 and 4. What we find from A-11 and A-13 order is that the disciplinary and revisionary authorities after coming to the conclusion that the applicant had returned the postal articles with false remarks as alleged in the articles of charges 2, 3 and 4 had as a consequence come to the conclusion that the applicant had withheld the postal articles addressed to SW-1 and SW-2. From a reading of A-11 order of the Disciplinary Authority and A-13 order of the revisionary authority we find that this was the main reason for the award and confirmation respectively of the penalty of removal from service of the applicant. At the same time in the articles of charges 2, 3 & 4 we do not find such an allegation at all. If the intention of the Disciplinary and Appellate Authorities was to take up with the employee for withholding of postal articles from Mr. Thomas, then the article of Charge should clearly say so, so that the applicant will get an opportunity to defend the said charges against him. Stating one thing in the memo of charges and imposing penalty on the basis of another Charge cannot in our opinion be said to be in accordance with article 311 (2) of the Constitution of India.
18. Hon'ble Supreme Court in the State of Mysore v. K. Manche Gowwda, (supra), held:
"...If the ground are not given in the notice it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant..."
19. Hon'ble Supreme Court in S.L. Kapoor v. Jagmohan and Ors. (supra) held:
"...But the person proceeded against must known that he is being required to meet the allegations which might lead to certain action being taken againsl him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession..."
20. We have no hesitation in holding that the above dictum laid down by the Hon'ble Apex Court had not been followed in the case of the applicant. In this case the applicant was not at all made aware that he was being taken up for withholding postal articles from Mr. Thomas and Mrs. Omana Thomas. It was only made known to him under the arlicle of charges 2, 3 & 4 that he was being taken up for returning the postal articles undelivered with false remarks. In this view of the matter, A-11 and A-13 are liable to be set aside and quashed.
21. At the same time on the basis of the charges 2, 3 & 4 made aware to the applicanl he had in his A-10 representation dated 20.12.97 against the Enquiry Report and A-12 Revision Petition the applicant has admitted that the remarks on the postal articles were on the basis of hearsay information. He gave the heavy workload of the EDDA as the reason for the said act. Thus there is some evidence to sustain the charges under (2) (3) and (4) which in our view will be a case of return of three postal articles undelivered with false remarks. This can be said to be a case of lack of devotion to duty at the most. For such an act of omission and commission, in the light of the heavy workload of the EDDA, in our view, the punishment of removal from Service is very harsh and excessive and totally disproportionate to the gravity of the offence. In this view of the matter also we hold that A-11 and A-13 are liable to be set aside.
22. Generally in a case of this nature we would have remitted back the matter to the authorities to award suitable punishment. In this case the incidents for which the applicant was taken up occurred in 1996. The applicant was removed from Service in 1998 and carlier from 1997 he was on put off duty.
23. Keeping all the above in view and in the light of the detailed analysis given in the foregoing paras we dispose of this Original Application with the following Orders and directions.
(i) We set aside and quash A-11 and A-13 Orders dated 9.1.1998 and 28.12.98 respectively;
(ii) Wc direct the respondents to reinstate the applicant in service forthwith with 50% of back allowances for the intervening period from the date of removal to the datc of reinstatement;
(iii) We direct the respondents to disburse to the applicant the 50% back allowances referred to in (ii) above within three months from the date of receipt of a copy of this order and;
(iv) We direct the respondents to treat the above period under (ii) above as service for the purpose of scniority as EDA and for terminal benefits on superannuation.
24. We dispose of the Original Application as above leaving the parties to bear their respective costs.