Central Administrative Tribunal - Allahabad
Raj Kumar Sharma vs Union Of India Through The Secretary on 6 August, 2013
(Reserved on 01.07.2013) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 06th day of August , 2013 ORIGINAL APPLICATION NO. 1239 OF 2012 HONBLE MR. SHASHI PRAKASH, MEMBER-A HONBLE MS JASMINE AHMED, MEMBER- J Raj Kumar Sharma, aged about 56 years, son of Late Shri Ram Kala Sharma, ex Sub Post Master, Chakrota Road, sub Post Office, Head Post Office, Saharanpur, R/o Sharda Nagar, near Labour Colony, Post Office Saharanpur - 247001. Applicant. V E R S U S 1. Union of India through the Secretary, Ministry of Telecommunication, Dak Bhawan, Sansad Marg, New Delhi. 2. Post Master General, Bareilly Region, Bareilly. 3. Director, Post Services, in the office of Post Master General, Bareilly Region, Bareilly. 4. Shri V.P. Singh, Senior Superintendent of Post Office, Saharanpur Division, Saharanpur. 5. Shri Satish Kumar Gupta, Inspector of Posts, West Sub Division, Meerut (Inquiry Officer). . . . . . . . . . . . . Respondents Present for the Applicant: Sri S. K. Kushwaha Present for the Respondents: Sri S. Srivastava O R D E R
By Honble Mr. Shashi Prakash, AM By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the Charge Sheet dated 22.10.2009 (Annexure A-1), Inquiry Report dated 29/30.08.2011 (Annexure A-2) and order dated 29.06.2011 (Annexure A-3) by which the applicant has been awarded penalty of compulsory retirement with all consequential benefits.
2. Briefly, the facts of the case, as stated in the O.A, are that the applicant while working on the post of Assistant Post Master , H.P.O, Saharanpur was served with major penalty charge sheet on 05.10.2009. The charges were for misappropriation of maturity amount and post maturity interest to the holders of K.V.P in three cases. The applicant was asked to submit his reply within 15 days. Thereafter the applicant sought documents and copies of rules and additional documents from the disciplinary authority vide letter dated 21.10.2009. After receiving the aforesaid application the respondents dropped the charge sheet dated 05.10.2009 by letter dated 22.10.2009. However, on the same date the respondents issued another charge memo on identical set of charges. The applicant sought for relevant documents by letter dated 01.11.2009. It is alleged in the O.A that the entire documents were not supplied to him. Only the RUDs were supplied on 10.12.2009 after a lapse of 38 days. On the same date the Inquiry Officer and the Presenting Officer were also appointed. It is contended by the applicant that by this act the applicant was denied the time required to be given under Rule 14 of CCS (CCA) Rules for submission of his reply. The applicant once again represented for supply of the documents but by letter dated 06.01.2010 the superior authority stated that the listed documents have been supplied and further documents, as required, will be supplied during the course of hearing. Subsequent to this letter, despite non receipt of certain documents asked by the applicant vide letter dated 11.01.2010 and 21.01.2010 requested for 10 days time to submit his defence statement and also requested to keep the inquiry proceeding in abeyance till submission of defence statement. The disciplinary authority did not respond to the aforesaid representations of the applicant and proceeded with the inquiry. The inquiry was completed and Inquiry Officer submitted his report on 30.08.2011 (Annexure A-2 of O.A) partially establishing the charge No. 1 and fully proving charges Nos. 2 and 3. The inquiry report was sent to the applicant on 14.09.2011 which was found to be incomplete and the applicant asked for remaining portion of it which was supplied to him on 30.09.2011. The applicant submitted his representation against the inquiry on 25.10.2011 stating that the report is perverse and has been submitted without application of mind. However, the disciplinary authority without taking into account the contents in the representation passed the impugned punishment of compulsory retirement on 29.06.2012 (Annexure A-3 of O.A). The applicant thereafter preferred statutory appeal on 14.07.2012, a copy of which has been appended at Annexure A-23 but the same is still pending. The applicant has challenged the impugned orders on the ground that the charge sheet issued to the applicant is in violation of clarification contained in the letter issued by the D.G (P&T) dated 05.07.1979 and the conduct of the Inquiry Officer is not as per the provisions of rule 14 of CCS (CCA) Rules.
3. Respondents have filed the Counter Affidavit in which it has been alleged that the applicant indulged in misappropriation of money in connivance with others and failed to carry out proper supervision which resulted in to loss to the Government while it has been admitted that fresh charge sheet cannot be issued on the same charges. The respondents have relied upon the letter of D.G (Posts) dated 05.07.1979 which contains provision for filing fresh charge sheet on the same set of charges. Accordingly, in terms of the letter dated 05.07.1979 the earlier charge sheet was dropped for technical reasons and a fresh charge sheet was issued. Hence the respondents have acted in accordance with departmental rules. It has also been stated that the relied upon documents were supplied to the applicant. So far as supply of additional documents, as sought for by the applicant is concerned, he was informed that the same would be made available to him during the course of inquiry. It has been specifically stated that there is no provision in the rules to supply additional documents before commencement of the enquiry proceeding. The respondents has also refuted the argument of the applicant that sufficient time was not given to the applicant for preparing his defence. It has been stated that the applicant was at liberty to submit his defence submission and present his defence at any stage in the enquiry. Based upon these facts the respondents have stated that there are no infirmity in the impugned orders. The respondents have also not denied the fact that the appeal of the applicant dated 14.07.2012 is still pending.
4. We have heard Shri S.K. Kushwaha, learned counsel for the applicant and Shri S. Srivastava, learned counsel for respondents at length.
5. Learned counsel for the applicant mainly relied on following grounds : -
i. The charges leveled against the applicant are indefinite and vague in view of the fact that the applicant has been simultaneously charge sheeted for embezzlement and failure in carrying out the supervision;
ii. The charge sheet has been issued without complying with the conditions laid down in Circular dated 05.07.1979 issued by the Director General (Posts). In this behalf learned counsel for the applicant has placed reliance upon the order dated 06.02.1987 passed by the Ahmedabad Bench of this Tribunal in T.A 44/1986 R.B. Parmar Vs. U.O.I & Ors AISLJ V-1987 92) 46 and order dated 10.02.2011 passed by this Bench in O.A No. 1354/2005 A.K. Sharma Vs. U.O.I & Ors;
iii. Non supply of RUDs alongwith charge sheet, which were made available to the applicant 38 days after the service of the charge sheet and also the additional documents, as sought for by the applicant, were not made available. On account of this fact the applicant could not prepare his defence properly;
iv. Charge sheet has been issued by the non-competent authority, who was only discharging current duty of Senior Superintendent of Post Offices.
On the above grounds the counsel for the applicant stated that both the Charge Sheet dated 22.10.2009 and Inquiry Report dated 30.08.2011 as well as the order dated 29.06.2012 are bad in law and need to be set aside.
6. Learned counsel for the respondents on the other hand argued that the action taken by the respondents is based upon the Circular dated 05.07.1979 issued by the D.G (Posts), which contains provisions for issuing fresh charge sheet on the same set of charges. In terms of the provisions contained in the aforesaid letter the earlier charge sheet was dropped for technical reasons and a fresh charge sheet was issued. He reiterated that in the Counter Affidavit it has been clearly brought out that since there was a technical error, the earlier charge sheet dated 05.10.2009 was dropped as it contained many grammatical mistakes and after carrying out the necessary correction the second charge sheet was issued on 22.10.2009 in consistent with the provisions of Circular dated 05.07.1979. Learned counsel for respondents vehemently argued that in this background, the claim of the applicant has no validity and the O.A lacks merit. He also clarified that in the order dated 22.10.2009 by which the earlier charge sheet was dropped , there was a categorical mention that it has been dropped without prejudice.
7. We have considered the rival submissions and perused the pleadings on record.
8. We feel that amongst the grounds raised by the applicant in support of his claim it may be proper to first examine the second ground raised by the learned counsel for the applicant. This ground is based upon the argument that the respondents have not complied with the provisions of the Circular dated 05.07.1979 issued by the D.G (Posts) on the subject of starting fresh proceeding. Here, it may be relevant to reproduce the contents of the Circular dated 05.07.1979 : -
It is clarified that once the proceedings initiated under Rule 14 or Rule 16 of the CCS (CCA) Rules, 1965, are dropped, the Disciplinary Authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, important that when the intention is to issue a subsequent fresh charge sheet, the order canceling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action and indicating the intention of issuing a subsequent charge sheet appropriate to the nature of charges the same was based on.
9. In order to ascertain whether the order dated 22.10.2009 dropping the charge sheet dated 05.10.2009 has been in conformity with the condition laid down in the above mentioned Circular, it would be relevant to reproduce the impugned order dated 22.10.2009: -
^^bl dk;kZy; ds lela[;d Kkkiu fnukad 05-10-09 ds vUrZxr Jh jkt dqekj kekZ lgk;d Mkdiky] iz/kku Mkd?kj lgkjuiqj ds fo:) lh-lh-,l <lh-lh-,-= fu;ekoyh 1965 ds fu;e&14 dsvUrxZr izLrkfor dk;Zokgh dk vkjksi i= tkjh fd;k x;k Fkk] mls fcuk krZ] fcuk iwokZxzg rFkk rduhdh dkj.kksa ls v/ksgLrk{kjh }kjk M*ki fd;k tkrk gSA^^
10. A perusal of the Circular dated 05.07.1979 lays down the following conditions : -
a. appropriate mention of the reasons for cancellation of the original charge sheet;
b. mentioning of the dropping of the proceedings without prejudice to further action which may be considered in the circumstances of the case;
c. indicating the intention of issuing second charge sheet appropriate to the nature of charges the same was based upon.
The charge sheet dated 22.10.2009 issued by the respondents dropping the charge sheet dated 05.10.2009 mentions that without prejudice and for technical reasons the aforesaid charge sheet is being dropped. A mere glance of the impugned order shows that it is cryptic and summary in nature and does not meet the specific conditions that have been prescribed in Circular dated 05.07.1979. The order dated 22.10.2009 mentions that the charge sheet dated 05.10.2009 is being dropped for technical reasons. It does not state that it is being dropped without prejudice to further action as may be considered in the circumstances of the case. To that extent the impugned order falls short of condition No. 2 , as contained in the Circular dated 05.07.1979. It is also not clarified that it is being dropped without prejudice and without stating the purpose. Further more as per the impugned order, the charge sheet is purported to have been dropped for technical reasons but does not elaborate the same. The technical reasons have been clarified only in the Counter Affidavit. The technical reason indicated by the respondents is that the charge sheet dated 05.10.2009 had grammatical mistake and hence required to be modified. This plea of the respondents also cannot stand scrutiny. Here it may be relevant to refer the order passed by the Principal Bench of this Tribunal in the case of S.K. Srivastava Vs. U.O.I & Ors (PB-ND) 2011(1) A.I.S.L.J (CAT) 153 where it has been held that ..it is trite law that an order passed by the Government with reasoning assigned therein cannot be supplemented by the counter reply, as ruled by the Apex Court in Hindustan Petroleum Corporation Lt. Vs. Dairus Shapur Chenai & Ors (2005) 7 SCC 627. The above view also finds support from the judgment of Honble Apex Court in the case of Mohinder Singh Gill Vs. Chief Election Commission SCC 1978 (1) SCC 405 . Relevant para 8 of the above judgment is reproduced below: -
8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. .
11. The circular dated 05.07.1979 makes it amply clear that reasons should be appropriately mentioned in the order dropping the earlier charge sheet. The impugned order is totally silent on this aspect and therefore, in this respect also the impugned order fails to meet the requirements mentioned at point No. I of the D.G (Posts) Circular. The other condition in the Circular dated 05.07.1979 that there is a requirement of specific indication of the intention of the respondents of issuing a subsequent charge sheet appropriate to the nature of the charges the same was based on. There is no mention in this connection in the impugned order. Therefore, here also the respondents have failed to comply with the provisions as prescribed in the Circular issued by the D.G (Posts).
12. Having regard to the above position it is plain that the order dropping the charge sheet dated 05.10.2009 is in total deviance of the conditions prescribed in the D.G (Posts) Circular dated 05.07.1979 and therefore, all action taken by the respondents from the stage of issue of charge sheet dated 22.10.2009 to imposition of penalty is vitiated. It is for this reason the impugned orders suffer from infirmity and , therefore, not sustainable.
13. It is observed that despite a lapse of nearly one year the appeal dated 14.07.2012 preferred by the applicant is still pending disposal on the part of the Respondent no. 3.
14. Accordingly the O.A is allowed. The impugned orders are set aside. We do not feel it necessary to enter into other issues raised by the counsel for the applicant. This order however, does not preclude the respondents from initiating any action against the applicant in accordance with the provisions of rules applicable in the matter.
15. With the above observation the O.A is disposed of. No order as to costs.
(Ms. Jasmine Ahmed) (Shashi Prakash)
Member-J Member-A
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O.A 1239/12