Central Administrative Tribunal - Madras
K.Thirumalaidass vs M/O Communications on 18 March, 2024
1 OA No. 201/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00201/2015
Dated the 18th day of March, Two Thousand & Twenty Four
CORAM : HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
K.Thirumalaidass, S/o. K. Krishnasamy,
10/33, Neelakattu Pudur,
Sivanmalai Post,
Kangayam 638701 ,
Tirupur. .....Applicant
By Advocate M/s. R.Malaichamy
Vs.
1.Union of India,
Rep by the Director of Postal Services,
Western Region (TN),
Coimbatore 625002.
2.Superintendent of Post Offices,
Tirupur Division,
Tirupur 641601. ....Respondents
By Advocate Mr. S. Nagarajan
2 OA No. 201/2015
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following reliefs:-
"1. To call for the records of the 1st Respondent pertaining to his show cause notice made in Memo No. STB/18027/TPR/Mar 2/Rev 2014 dated 19.08.2014 and the order of removal of the Applicant from service made in Memo No. STB/18027/TPR/Mar 2/Rev 2014 dated 03/12.01.2014 and set aside the same; consequent to,
2. Direct the respondents to reinstate the Applicant into service with all service benefits; and,
3. To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. The Applicant filed an MA for amendment of relief and on 21.01.2019, the following order was made by this Tribunal:-
"This MA has been filed by the applicant in the OA seeking amendment of the prayer at Column-8(2) in OA 963/2016 as follows:-
"direct the respondents to treat the applicant as if he is deemed to be retired from service with effect from 31.3.2018 and thereby to settle all the retirement service benefits including pension to him."
instead of "to direct the respondents to reinstate the applicant into service with all service benefits."
It is submitted that the applicant has crossed the age of superannuation in March, 2018 and, therefore, he cannot be reinstated into service now. Hence, he filed the MA seeking the aforesaid amendment in the prayer of the OA..
Keeping in view of the fact that the applicant crossed the age of superannuation and the applicant himself concedes that he cannot now be reinstated into service, MA is allowed........"
3 OA No. 201/2015
3. As a result, the relief at Sl. No. 2 was amended as follows :-
"2. Direct the respondents to treat the applicant as if he is deemed to be retired from service with effect from 31.03.2018 and thereby to settle all the retirement service benefits including pension to him........"
4. The facts, in a nutshell, as submitted by the Applicant are:-
4.1. The Applicant, while he was working as Postal Assistant, Kangayam SO, was issued charge sheet, dated 06.11.2013, under Rule 14 of the CCS (CCA) Rules, 1965, by the 2nd Respondent, alleging that he had committed irregularities.
4.2. He denied the charges levelled against him. Therefore, an inquiry was conducted. Thereafter, on the basis of the report of the Inquiry Officer, the 2nd Respondent imposed punishment of reduction of pay by five stages from Rs. 12,980/- (Rs.10580+ GP 2400) to Rs. 11180/- (Rs.8780 + GP 2400 in the Pay Band of 5200- 20200 + GP 2400 (revised pay scale) for a period of 3 years with effect from 01.04.2014 on the Applicant, by an order, dated 28.03.2014.
4.3. The 2nd Respondent also ordered that the Applicant will not earn increments of pay during the period of reduction and that, on the expiry of the said period, the reduction will not have the effect of postponing his future increments of pay.
4.4. But, the 1st Respondent, in total violation of the Rule 29 (1)(v) of the CCS (CCA) Rules, 1965, has passed the order, dated 03/12.01.2014, and 4 OA No. 201/2015 removed the Applicant from service after the expiry of six months from the date of order, dated 28.03.2014, of the 2nd Respondent. 4.5. Mere initiation of the process of revision, by issuing show cause notice within six months from the date of order of his immediate subordinate officer, cannot be regarded as substantive compliance with the provisions of Clause (v) of Rule 29 of the CCS (CCA) Rules. Therefore, the order of the 1st Respondent, dated 03/12.01.2014, lacked jurisdiction to revise the order, dated 28.03.2014, beyond 27.09.2014.
4.6. As per the provisions laid down in the CCS (CCA) Rules, 1965, in the charge sheet, the competent authority should not draw positive conclusion against the Government servant. But, the 1st Respondent, in his show cause notice, dated 19.08.2014, has pre-determined the major punishment to be imposed on the Applicant and he was removed from service. 4.7. Aggrieved, the applicant has filed this OA.
5. The grounds for seeking relief are as follows:-
5.1. As per Rule 29 (1) (v) of the CCS (CCA) Rules, 1965, the 1st Respondent has to review and pass final order within six months from the date of order of the 2nd Respondent, dated 28.03.2014. Hence, the order, dated 03/12.01.2015, of the 1st Respondent, which was passed after the expiry of six months from 28.03.2014, is unjustifiable. 5.2. It is also submitted that mere initiation of the process of revision by issuing a show cause notice by the Appellate Authority within six months 5 OA No. 201/2015 from the date of order of his immediate subordinate officer cannot be regarded as substantive compliance with the provisions of Clause (v) of Rule 29 of the CCS (CCA) Rules. Therefore, the order of the 1st Respondent, dated 03/12.01.2015, is lacking jurisdiction to revise the order dated 28.03.2014, beyond 27.09.2014, and is liable to be set aside. 5.3. As per the provisions laid down in the CCS (CCA) Rules, 1965, in the show cause notice the competent authority should not draw positive conclusion against the Government servant. But, the 1st Respondent, in his show-cause notice, dated 19.08.2014, has predetermined the major punishment to be imposed on the Applicant. Hence, the action of the 1st Respondent amounts to violation of the principles of natural justice. 6.1. The respondents have filed their reply statement. The contentions of the Applicant have been challenged by the Respondents. They assert that the Inspector Posts, Sathyamangalam Sub Division, Sathyamangalam, in her report, dated 16.02.2009, has stated that during the process of settlement of minus balance cases at Sathyamangalam SO, on 10.02.09, she found that the Savings Bank log book total was wrongly struck as Rs.42147/- instead of Rs.47647/- on 22.01.08. A shortage of Rs.5500/- was detected. The same mistakes were noticed in the SB log book, dated 09.01.08 and 22.01.08.
During the said period, Shri.K. Thirumalaidoss, was the Savings Branch Counter Postal Assistant and Smt.N.K.Lalitha was the Sub Postmaster at the Sathyamangalam SO. Smt. N.K.Lalitha, Sub Postmaster, had allowed 6 OA No. 201/2015 Shri.K.Thirumalaidoss, Savings Bank Postal Assistant, to maintain the SB log book and she had failed to check the totals in the SB log book. The signature of the Sub Postmaster is also not found on any of the dates in the log book. Immediately, Inspector Posts, Sathyamangalam Sub Division, Sathyamangalam, was directed to carry out Cent percent Verification of all accounts standing open at the Sub Post office.
6.2. Cent percent verification was completed by Inspector Posts, Sathyamangalam Sub Division, on 29.06.2013 and he reported that Shri.K. Thirumalaidoss, Savings Bank Postal Assistant, Sathyamangalam Sub Post office, had committed fraud in 16 Savings Bank accounts, to the tune of Rs. 42185/-. The applicant had admitted the above lapses and credited the loss amount along with Normal Interest and Penal Interest into UCR (Un- Classified Receipts). The details are furnished as under:-
Date of credit Office of credit Amount ACG-67
Receipt no.
12.02.09 Sathyamangalam SO 13,500 48
02.03.09 -do- 10,000 12
15.07.10 Sathyamangalam SO 2,500 A 2881
27.08.10 -do- 5,000 A2969
06.09.10 -do- 18,899 A 2994
Total 49,899
7 OA No. 201/2015
6.3. For the above lapses, the applicant was charge-sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, vide the 2nd Respondent memo no. F1/85/2009, dated 06.11.2013. The applicant in his representation, dated 12.11.13, (R-2) addressed to the 2nd Respondent, stated as follows:-
" I admit that I have committed the mistakes. I humbly request you to excuse the mistakes committed by me. I will guard against such recurrence in future and I assure I will work carefully in future."
6.4. The Inquiry Officer conducted the preliminary sitting on 30.12.2013 at the Kangayam Sub Post office. The applicant attended the preliminary inquiry and admitted all the charges levelled against him unconditionally. He did not want to engage any defence assistant to defend the case on his behalf and requested not to conduct any further inquiry in this case. 6.5. In view of the unconditional admission of charges framed against the applicant, the Inquiry Officer held the charges framed against him as proved. The Inquiry Officer submitted her report on 31.12.2013. 6.6. A copy of Inquiry Officer's report was sent to the applicant on 03.01.2014 for his representation. The applicant, in his representation, dated 11.01.2014, has stated that due to his family circumstances, i.e., for the medical treatment for his mother, he had committed the irregularities and regretted it very much.
8 OA No. 201/20156.7. The 1st Respondent called for the case records for Revision, as per the powers enshrined in Rule 29(1) (v) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 6.8. As per the instructions contained in the said rule, a show-cause notice was issued to the applicant on 19.08.2014, vide memo no. STB/18027/TPR/Mar 2/Rev-14, dated 19.08.2014, informing him of the proposed revision of punishment while seeking his representation. He was given 10 days time to submit his representation against the proposal. The show-case notice was delivered to the applicant on 28.08.2014 and he submitted his representation on 04.09.2014, requesting for extension of time to submit his representation. His request was considered and he was allowed extension by 20 days. He submitted his representation on 18.09.2014. 6.9. Vide memo no. STB/18027/tpr/mar-2/Rev 2014, dated 03/12.01.15, orders were issued, enhancing the punishment, as follows:-
"I have carefully gone through the points put forth by the official along with connected records. It is the duty of every government servant to get leave during illness. But the official failed to do so. Hence the arguments of the official as he suffering from illness, heavy rush in counter etc is not acceptable. It is a fact that the official charged with non credit of Rs.14,000/- in 3 SB accounts and he accepted the charges before the inquiry officer. Hence the charges are proved due to his own admission. The results of cent percent verification of Sathyamangalam SO shows more frauds in SB accounts. So, the arguments of the official as nothing came to light in CPV is misleading the revisionary authority in his favour. The arguments of the official as he credited voluntarily etc will not absolve him from the charge. Public servants are expected to discharge their duties with utmost integrity. Accordingly, I hereby pass the following orders:9 OA No. 201/2015
ORDER I. G.Natarajan, Director of Postal Services & Appellate Authority, Western Region, Coimbatore in exercise of the powers conferred under Rule 29(1) (v) of CCS (CCA) Rules 1965 hereby order that Shri.P.Thirumalaidoss, PA, Kangayam SO in Tirupur Division be removed from service with immediate effect."
6.10. It is contended that the 1st Respondent, being the Appellate Authority, is empowered as per Rule 29(1)(v) to revise any order passed by the Disciplinary Authority conducting a suo-moto review of the case if the punished official did not come forward with an appeal against the punishment order issued by the Disciplinary Authority. As the 1st Respondent has issued orders as per rules, as stated above, the applicant cannot question the order passed by the Ist Respondent. In Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, itself, it has been clearly laid down to pass revisionary order by giving a reasonable opportunity of making a representation against the penalty proposed to be imposed under Rule 11. Hence the action of the 1st Respondent in intimating the proposed penalty of removal of the applicant from service, while calling for the representation, is very well warranted as per rules, which cannot be termed as a pre-determined action. 6.11. As per Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Appellate Authority is empowered to call for the records of any inquiry and review any order made under these rules. He may confirm, reduce, enhance or set aside the penalty imposed by the 10 OA No. 201/2015 Disciplinary Authority. The intention of the Appellate Authority to revise the order should be conveyed to all concerned within the stipulated period of six months from the date of the order proposed to be revised as per DG P& T Letter No. 6/1/72-Dis I, dated 27.07.1972. This instruction clarifies the position that the Appellate Authority is required to convey his intention to revise the orders within a period of six months from the date of the order proposed to be revised. In other words, it is not necessary that a final order, in this regard, has to be passed within the stipulated period of six months. 6.12. The said instructions were upheld by the Hon'ble High Court of Delhi, in WP(C) No. 3622/2013 of the Union of India Vs. Dharam Pal Gupta relying the judgement pronounced by High Court of Madras, in WP(C) Nos. 6839/2002 and 6846/2002 by the Union of India Vs. Anr. Vs V. Sekar.
6.13. It is pleaded that, based on the records and his representation, the Appellate Authority and the Director of Postal Services, Western Region, Coimbatore - 2, had ordered to remove the applicant from service with immediate effect vide his Memo. No. STB/18027/TPR/Mar-2/Rev 2014, dt. 03/12.01.15. The orders were issued after complying with the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 6.14. Respondents have placed reliance on the judgement passed by the Hon'ble Supreme Court in the State of Uttar Pradesh and another Vs Manhohan Nath Sinya and another reported in (2009) 8 SCC 310 11 OA No. 201/2015 wherein it was held that "the power of judicial review is not directed against the decision but is confined to the decision making process and that the court should not sit in judgement on merits of the decision. It is not open to the courts to reappreciate and reappraise the evidence led before the IO and examine the findings recorded by the IO as a court of appeal and reach its own conclusions."
6.15. Accordingly, the respondents have prayed for dismissal of the OA.
7. The applicant has filed a Rejoinder to which Respondents have filed a counter.
8. The Applicant has placed reliance on the following judgments in the rejoinder :-
i. Judgment, dt. 08.12.1997, of the Hon'ble Rajasthan High Court, in CWP No. 255 of 1973, in the case of Keshri Mall Vs. State of Rajasthan; ii. Judgment, dt. 16.09.1999 of Hon'ble Supreme Court, in Civil Appeal No. 15479 of 1996, in the case of Yoginath D. Bagde Vs. State of Maharashtra and anr (1999) 7 SCC 739;
iii. Judgment, dt. 17.09.1999, of Hon'ble Supreme Court of India, in Civil Appeal No. 5341/1999, in the case of Assistant General Manager, State Bank of India Vs. Thomas Jose and anr (CDJ 1999 SC 859); iv. Order, dt. 15.12.2009, of the Mumbai Bench of this Tribunal, in OA No. 2064 of 2001, in the case of J.S.Thakur Vs. Director General and ors; 12 OA No. 201/2015 v. Judgment, dt. 01.07.2011, of the Hon'ble Supreme Court, in Civil Appeal No. 2602 of 2006, in the case of Union of India and ors Vs. Vikrambhai Maganbhai Chaudhari (2011) 2 SCC 321;
vi. Order, dt. 28.03.2012, of the Madras Bench of this Tribunal, in OA No. 668/2011, in the case of C. Sampath Vs. Union of India rep by Chief Postmaster General, TN Circle, Chennai and anr.;
vii. Judgment, dt. 13.09.2012, of the Hon'ble Kerala High Court, in WP (C) No. 13489 of 2008, in the case of Union of India & ors Vs. K. Raghavan;
viii. Judgment, dt. 23.01.2013, of the Hon'ble Madras High Court, in WP No. 17649 of 2012, in the case of Union of India rep by the CPMG, TN Circle, Chennai and anr Vs. C. Sampath & anr;
ix. Order, dt. 25.10.2013, of the Madras Bench of this Tribunal in OA No. 509/2012, in the case of G. Bhaskaran Vs. Union of India, Director General of Posts and ors;
x. Order, dt. 02.07.2014, of the Hon'ble Madras High Court, in WP No. 17278 of 2014, in the case of Union of India, rep by the Director General of Posts and ors Vs. G. Bhaskaran and anr;
xi. Order, dt. 07.01.2015, of the Guwahati Bench of this Tribunal, in OA No. 09 of 2015, in the case of Rajeev Bhardwaj Vs. Union of India, rep by Secretary to Govt. of India and ors.
13 OA No. 201/2015
9. The Respondents contend that the judgments cited by the applicant are not applicable in this case and have given detailed reason for taking such a stand in their Reply Statement on the Rejoinder filed by the Applicant herein.
10. Heard the learned counsels for the parties and went through the records and pleadings.
11. It is found that the inquiry proceedings, as prescribed in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, were initiated wherein the applicant admitted the charges in the preliminary hearing itself. The charges framed against the applicant were proved by his own admission besides the records of the Post Office. The Applicant has also deposited the amount involved in the UCR. On the basis of the Inquiry Officer's report, the Disciplinary Authority has imposed the penalty of reduction of pay by 5 stages for a period of 3 years, during which he will not earn increments of pay and on the expiry of this period, the reduction will not have the effect of postponing his future increments of pay. The findings during the enquiry and the original punishment have not been challenged by the applicant.
12. The Appellate Authority, in exercise of the powers conferred in Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, issued a show-cause notice and, on receipt of the representation of the Applicant herein, enhanced the penalty to that of removal from service with 14 OA No. 201/2015 immediate effect. The relevant provisions under Rule 29 of the CCS (CCA) Rules, 1965, are as follows :-
" 29. Revision (1) Notwithstanding anything contained in these rules--
.......
(v) the appellate authority, within six months of the date of the order proposed to be revised; or .......
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order,
or impose any penalty where no penalty has been imposed; or .........
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses....."
13. We agree with the contention of the Respondents that the 1st respondent is vested with the power to review the case at any time, before the completion of 6 months from the date of the order proposed to be revised. As such, in this present case, the 1st respondent, could exercise this 15 OA No. 201/2015 power upto 27.09.2014. On a reading of Rule 29 along with its proviso, initiation is the point of time which is to be reckoned for judging the compliance with the said rule for the purpose of limitation. In the case on hand, when the Disciplinary Authority passed orders on 28.03.2014, six months' period, within which the Revisionary Authority is empowered to review the order of the Disciplinary Authority, would expire by 27.09.2014. The rule does not state that final orders should have been passed within six months time in order to come within the prescribed time limit of Rule 29 of the CCS (CCA) Rules. The Rule only prescribes that proceedings should be initiated within six months' time. Therefore, when the Revisionary Authority passed orders on 03/12.01.2015, it meant that the same was initiated well within the prescribed time limit. The cases cited by the Applicant in the review proceedings were set aside on account of lapses, primarily delay beyond 6 months before undertaking review of the penalty or total absence of the period for exercise of the powers under Rule 29. In certain cases, review was proposed after the period of punishment was over.
14. The observations of the Hon'ble Delhi High Court in the judgment, dt. 24.07.2013, in WP (C) No. 3622/2013 in the case of Union of India and ors Vs. Dharam Pal Gupta are worth mentioning. It was observed that the Appellate Authority had rightly exercised the power under Rule 29 and the said power had been exercised within a period of six months by issuing a 16 OA No. 201/2015 show cause notice to the respondent which shows that he has conveyed his intention to revise the order and there is no illegality in the exercise of power of enhancement of punishment.
15. In the case of Union of India and others Vs. V. Sekar and Anr, 2005 (1) CTC 566, (2005) IILLJ 775 MAD, it is observed in Para 9 of the judgement, dt. 01.10.2004, by the Hon'ble Madras High Court, that, "when the Disciplinary Authority passed orders on 02.09.1999, six months period within which the Revising Authority is empowered to review the order of the Disciplinary Authority would expire by 02.03.2000. The Rule does not state that final orders should have been passed within six months time in order to come within the prescribed time limit of Rule 29 of the CCS (CCA) Rules. The Rule only prescribes that the proceedings should be initiated within six months time. Therefore, when the Revising Authority passed orders on 23.02.2000, it will have to be held that the same was initiated well within the prescribed time limit."
16. We are satisfied that the prescribed procedure has been duly followed in the case. In view of the aforesaid rule position, well established law and the facts and circumstances of the case, no merit is found in the O.A.
17. There are no grounds for interference in the matter. The OA is, accordingly, dismissed.
18. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member (A) Member (J)
18.03.2024
SKSI