Central Administrative Tribunal - Madras
S Sanaullah Baig vs M/O Communications on 13 December, 2023
1 OA 1309/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01309/2017
Dated Wednesday the 13th day of December Two Thousand Twenty
Three
CORAM :
HON'BLE SMT. LATA BASWARAJ PATNE, Member (J)
&
HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A)
S.Sanaullah Baig,
S/o. Sardar Baig,
No.58, Agilandeswari Nagar,
Airport Post,
Tirchy - 620 007. ....Applicant
By Advocate M/s.R.Malaichamy
Vs
1. Union of India,
Rep. by the Chief Postmaster General,
Tamil Nadu Circle,
Anna Salai,
Chennai-600 002.
2. The Director of Postal Services,
O/o. The Postmaster General,
Central Region (TN),
Tiruchirappallai, - 620 001.
3. Senior Superintendent of Post Offices,
Tiruchirappallai Division,
Tiruchirappallai - 620 001. ....Respondents
By Advocates Mr. R.S.Krishnaswamy
2 OA 1309/2017
ORDER
(Pronounced by Hon'ble Smt.Lata Baswaraj Patne, Member(J)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"1.To call for the records of the 2nd respondent pertaining to his show notice made in Memo No.STC/17-1/2014/TRY-TR dated 18.02.2015, the cause order of dismissal of the applicant from service made in Memo No.STC/18-15/2015/TR dated 02.06.2016 and the order of 1st respondent made in Memo No.VIG/11-187/2016 dated 12.06.2017 and set aside the same; consequent to,
2.direct the respondents to reinstate the applicant into service with all attended 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 brief facts of the case, as stated by the applicant, are as follows:
The applicant was working as Postal Assistant at Teppakulum S.O. He was deputed to Tiruchirappallai G (HO), to work as Postal Assistant on 08.12.2011. He worked as such till 30.11.2013. While so, a charge sheet dated 09.01.2014 under Rule 14 of CCS (CCA) Rules 1965, was issued to him by the 3rd respondent making allegation that he has taken a sum of Rs.25,000/- on 30.11.2013 from the personal hand bag of Smt. S.Banumathi, Assistant Postmaster (RD). Tiruchirappallai G (HO), without her knowledge and also the applicant was placed under suspension. 2.1 The applicant denied the charge levelled against him, vide his reply, dated 31.01.2014. Pending disciplinary proceeding, the applicant was reinstated at National Institute of Technology (NIT)S.O. The applicant requested a hand loan from Smt. S.Banumathi. The applicant did not 3 OA 1309/2017 commit any misconduct as alleged in the charge sheet. The applicant might have mistakenly understood the signal of Smt. S.Banumathi or she might have forgotten about giving permission to the applicant to take the amount from her bag. Therefore, the entire issue does not relate to the duties and functioning of the Post Office, but it is purely a private transaction between two individuals. Hence, she has not preferred any complaint to the Police authorities. But, the Inquiry Officer mistakenly construed the allegation as misconduct and held the charge as proved, vide his report, dated 30.11.2013.
2.2 The applicant was furnished the report of the Inquiry Office by the 3rd respondent, vide his letter, dated 13.10.2014. He has submitted his reply, dated 27.10.2014. The applicant used to get hand loan from Smt. S.Banumathi. He was in urgent need of money on 30.11.2013 and, therefore, as usual, he requested for a hand loan of Rs.25,000/- from her.
Due to some heavy work, she signalled towards her hand bag and left to attend the call of the Deputy Postmaster. The applicant thought that she had accepted the demand of the applicant and permitted him to take the amount from her hand bag. Therefore, he took the amount from her hand bag and left office. It is pertinent to mention here that the applicant was fully aware that the branch is under CCTV surveillance and never had the intention of taking cash from her hand bag stealthily. 2.3 But, the matter went wrong against the applicant and, therefore, on coming to know of the situation at the branch, he immediately returned to the office and handed over the amount to Smt. S.Banumathi. The said 4 OA 1309/2017 Smt. S.Banumathi might have signalled to the applicant that she would lend hand loan to the applicant and the amount is ready with her in her bag and she would hand over the same after attending the call of the Deputy Postmaster. This misunderstanding between the applicant and Smt. S.Banumathi only created the situation leading to the issue of the charge sheet to the applicant.
2.4 On considering the past 20 years service of the applicant and his left over service of around 18 years, the disciplinary authority, i.e., the 3rd respondent imposed punishment of reduction of pay by one stage of Rs.13,690/- + G.P Rs.2800/- to Rs.13,210/- + G.P. Rs.2800/- in the pay band of Rs.5200/- 20,200/- + G.P Rs.2800/- for a period of four years with effect from 01.01.2015, vide order, dated 23.12.2014. 2.5 The 2nd respondent, not satisfied with the order, dated 23.12.2014, of the 3rd respondent, wanted to dismiss the applicant from service and hence, he issued a show cause notice, dated 18.02.2015, under Rule 29(1) (v) of CCS (CCA) Rule 1965, to the applicant, conveying that he proposed to enhance the penalty imposed by the 3" respondent to dismissal from service.
2.6 On receipt of the show cause notice, the applicant, vide his reply, dated 18.03.2015, reiterated his stand taken in his reply, dated 30.01.2014, to the charge sheet, and the reply to the P.O's brief. Without considering the nature of the case and the various points raised by the applicant in his reply to show cause notice, the 2 nd respondent dismissed the applicant from service, vide order, dated 02.06.2016, as already 5 OA 1309/2017 predetermined by him. The 2nd respondent is vested with power to review the order of the disciplinary authority. Therefore, as per the Rules, he has chosen not only to issue show cause within 6 months, but also to pass order within such time. But, the 2nd respondent exceeded his limit and passed the order, after the expiry of 6 months period. The punishment imposed by the 2nd respondent is disproportionate to the charge levelled against the applicant. Hence, aggrieved by the order, dated 02.06.2016, by the 2nd respondent, the applicant made a revision petition, dated 20.07.2016, to the 1st respondent. The revision petition was rejected by the 1st respondent, vide order, dated 12.06.2017. Being aggrieved, the applicant has filed the present OA seeking the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel, and filed their reply and opposed the relief. The respondents contended that the penalty was imposed by the third respondent, vide memo no FI/VII-9/2013-2014, dated 23.12.2014. Thereafter, show cause notice was issued to the applicant by the second respondent, vide memo. NO. STC/17-1/2014/ TRY -TR, dated 18.02.2015, as required under Rule 29 (1) (v) of the CCS (CCA) Rules, 1965. The 2nd respondent, after taking into account the representation of the applicant to the above show cause notice, the material evidence and the facts of the case, has rightly awarded a deserved penalty to the applicant. The procedure to be followed, while proposing enhancement of the penalty already imposed, has been scrupulously adhered to, as per Government of India decision under Rule 29(3) of the CCS (CCA) Rules, 1965. The intention of the 2nd 6 OA 1309/2017 respondent to revise the order was conveyed to all concerned, within the stipulated period of six months from the date of the order proposed to be revised. It is nowhere specified in the rules that the order has to be passed within a period of 6 months. Hence, the action of the second respondent is justified, as show cause notice was issued to the applicant within a period of six months.
3.1 The claim of the applicant that the punishment awarded to him by the 2nd respondent is disproportionate is not acceptable. The revision petition, dated 20.07.2016, preferred by the applicant to the 1st respondent was also rejected, vide memo VIG/11-187/2016, dated 12.06.2017. The misdeed of the applicant clearly proves that he is not a fit person to be retained in the Department and hence he was awarded with a right penalty, as his integrity was at stake. Retention of the applicant in the Department will make the office atmosphere an unsecure work place and such weeds are to be removed then and there keeping in mind the welfare of the other co-workers and the dignity of the Department.
3.2 The respondents further submit that the Hon'ble Madras High Court, in its judgment reported as 2005 (1) CTC 566 in Union of India, represented by the Secretary to Government of Pondicherry, Revenue Department and Anr Vs. V.Sekar (WP© no.6839/2002 and 6846/2002 has held as below:-
"As far as the first contention of the learned counsel for the petitioner the Revision Authority initiated the proceedings on 21.3.2000 or revising the order dated 2.9.1999. On a reading of the 7 OA 1309/2017 Rule 29 along with its proviso, we are of the view that initiation is the point of time which is to be reckoned for finding out the compliance of the said rule for the purpose of limitation. In the case on hand, when the Disciplinary Authority passed orders on 2.9.1999, six months period within which, the Revising Authority is empowered to review the order of the Disciplinary Authority would expire by 2.3.2000. 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 23.2.2000, it will have to be held that the same was initiated well within the prescribed time limit and therefore, the order of the second respondent Tribunal on that score cannot be sustained."
3.3 Further in a similar case, the Hon'ble High Court of Delhi in WP (C) no.3622/2013, in the case of Union of India and ors Vs. Dharam Pal Gupta, where for a punishment order, dated 31.03.2009, was reviewed by the Appellate Authority and a show cause notice was issued on 17.07.2009 calling upon the official to show cause why the penalty imposed upon him should not be enhanced and the case finalized on 17.02.2011, vide its order, dated 24.07.2013, has stated as below:
We hold that the Director Postal Services, being the Appellate authority has rightly exercised the power under Rule 29(1)
(v) and the said power has been exercised within a period of six months by İssuing a show cause notice to the respondent which shows that he has conveyed his intention to revise the order. We do not find any illegality in the exercise of power of enhancement of punishment by the Appellate Authority, vide order dated 17.02.2011. To that extent the order of the Tribunal is liable to be set aside.
3.4 The Hon'ble Supreme Court in the decision reported in 2007 AIR SCW 4136 JT 2007(8) SC 588 (Ramesh Chandra Sharma Vs Punjab National Bank and Another) in paragraph 20 has held thus: 8 OA 1309/2017
"Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity. A necessary implication which must be engrafted on the contract of service is that the servant must undertake to serve his master with good faith and fidelity. In a case of loss of confidence, reinstatement cannot be directed. Granting such an employee the relief of reinstatement would be "an act of misplaced sympathy which can find no foundation in law or in equity." (Vide Air India Corporation Bombay Vs. V.A. Ravellow, AIR 1972 SC 1343; The Binny Ltd. Vs. Their Workmen, AIR 1973 SC 1403; Kamal Kishore Lakshman Vs. Management of M/s. Pan American World Airways Inc & Ors., AIR 1987 SC 229;
Francis Kalein & Co. Pvt. Ltd. Vs. Their Workmen, AIR 1971 SC 2414; Regional Manager, Rajasthan SRTC Vs. Sohan Lal, (2004) 8 SCC 218; and Bharat Heavy Electricals Ltd. Vs. M. Chandrashekhar Reddy & Ors., 2005 AIR SCW 1232)."
3.5 The Hon'ble High Court of Madras had taken the same view in WA 1861 of 2009 judgment, dated 21.6.2010, against the orders made in WP No.5387 of 2001, dated 27.8.2009. On the basis of the same, the Hon'ble High Court, Chennai, upheld the order of punishment imposed by Indian Bank in WA No.2096 of 2012 (order dated 12.3.2013). The same decision was taken in WP No.34588 of 2013 in case of S.Prabhakaran, vide order, dated 2.1.2014.
3.6 In Kannaiyalal Agrawal and others Vs Factory Manager Gwalior Sugar Co., Ltd (2001) 9 SCC 609, the Hon'ble Supreme Court laid down the test for loss of confidence to find out as to whether there was bonafide loss of confidence in the employee, observing that (i) the workman is holding the position of trust and confidence (ii) by abusing such position he commits act which results in forfeiting the same and (iii) to continue 9 OA 1309/2017 him in service/ establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Hence, they prayed for dismissal of the OA.
4. The applicant has filed a rejoinder and refuted the contentions of the respondents by reiterating the plea raised in the OAs. The applicant submitted that the 2nd respondent is vested with authority to revise the punishment imposed by the 3rd respondent within a period of 6 months from the date of order of punishment, i.e., from 23.12.2014, vide Rule 29 (1) (v) of CCS (CCA) Rules, 1965. The 2nd respondent has issued show cause notice dated 18.02.2015 and enhanced the punishment to that of major punishment of dismissal from service, by an order, dated 02.06.2016, i.e., beyond the period of 6 months. The Rule 29 (1) (v) of CCS (CCA) Rules, 1965 is extracted below:-
"(v) the appellate authority, within 6 months from the date of the order proposed to be ....
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
c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
d) pass such other orders as it may deem fit."
4.1 The applicant further submits that his case is squarely covered by the judgments of this Hon'ble Tribunal in the case of C.Sampath (OA 668/2011, dated 28.03.2012) and G.Baskaran (OA 509 of 2012, dated 25.10.2013). The Writ Petitions filed by the Postal Department were 10 OA 1309/2017 dismissed and the department complied with the order of this Hon'ble Tribunal.
4.2 Further, the Ernakulam Bench of this Hon'ble Tribunal allowed similar nature of case filed by K.Raghavan and it was confirmed by the Hon'ble Kerala High Court by an order, dated 13.09.2012. Hence, the applicant is entitled to the benefit of the said judgment. 4.3 The case of the applicant is also covered by the judgment of the Hon'ble Supreme Court of India which is reported in (2011) 2 Supreme Court cases (L& S) 250.
5. Heard learned counsels, Mr. R.Malaichamy for the applicant and Mr. R.S.Krishnaswamy for the respondents.
6. The learned counsel for the applicant argued that the 2nd respondent is vested with the authority to revise the punishment imposed by the 3rd respondent within a period of 6 months from the date of order of punishment, i.e., from 23.12.2014, vide Rule 29 (1) (v) of CCS (CCA) Rules, 1965. The 2nd respondent has issued show cause notice, dated 18.02.2015, and enhanced the punishment to that of major punishment of dismissal from service, by an order, dated 02.06.2016, i.e., beyond the period of 6 months. He further argued that, considering the past 20 years of service of the applicant and his left over service of around 18 years, the disciplinary authority, i.e., the 3rd respondent, imposed the punishment of reduction of pay by one stage of Rs.13,690/- + G.P Rs.2800/- to Rs.13,210/- + G.P. Rs.2800/- in the pay band of Rs.5200/- 20,200/- + 11 OA 1309/2017 G.P Rs.2800/- for a period of four years with effect from 01.01.2015, vide order, dated 23.12.2014, but the punishment imposed by the 2nd respondent is disproportionate to the charge levelled against the applicant. In support of his contention, he has relied upon the following judgments:
1. Judgment of Hon. Apex Court dated 01.07.2011 in Civil Appeal No. 2602 of 2011 (UOI & ors Vs Vikrambhai Maganbhai Chaudhari)
2. Order dated 28.03.2012 in OA No.668 of 2011, CAT:MB (C.Sampath Vs UOI and another)
3. Order dated 13.09.2012 in WP (C) No.13489 of 2008, Kerala HC (UOI & others Vs K.Raghavan)
4. Order dated 23.01.2013 in WP No.17649 of 2012, HC: Madras (UOI and another Vs C.Sampath)
5. Order dated 25.10.2013 in OA No.509 of 2012, CAT: MB (G.Baskaran Vs UOI and others)
6. Order dated 02.07.2014 in WP No.17278 of 2014, HC: MB (UOI and others Vs G.Baskaran)
7. On the other hand, the learned counsel for the respondents argued that the procedure to be followed, while proposing enhancement of the penalty already imposed, has been scrupulously adhered to, as per Government of India Decision under Rule 29(3) of the CCS (CCA) Rules, 1965. The intention of the 2nd respondent to revise the order was conveyed to all concerned, within the stipulated period of six months from the date of the order proposed to be revised. It is nowhere specified in the 12 OA 1309/2017 rules that the order has to be passed within a period of 6 months. The misdeed of the applicant clearly proves that he is not a fit person to be retained in the Department and, hence, he was awarded a right penalty, as his integrity was at stake. Retention of the applicant in the Department will make the office atmosphere an unsecure work place and such weeds are to be removed then and there, keeping in mind the welfare of the other co-workers and the dignity of the Department. In support of his contentions, he has relied upon the following decisions:
(I) Judgment, dated 24.07.2013, in WP © 3622/2013 by Hon. High Court of Delhi in UOI & Ors Vs. Dharam Pal Gupta
(ii) Judgment, dated 23.09.2015, in WP © 4335/2014 by Hon. High Court of Delhi in UOI & Ors Vs. Sri Pal Jain 8 It is to be noted that the Hon. Apex Court in Civil Appeal No. 2602 of 2011 (UOI & ors Vs Vikrambhai Maganbhai Chaudhari), vide judgment, dated 01.07.2011, has dealt with a similar issue and held that the time limit of 6 months is applicable to revisional authorities acting under Rule 29(1)(vi). The relevant portion of the order is extracted hereunder:
6) As rightly observed by the Tribunal, the above sub-Rule (1) of Rule 29 indicates 6 categories of revisional authorities. If we go further it shows that while no period is mentioned in sub-clauses (i) to (iv), sub-Clause
(v) refers to a period of six months from the date of order proposed to be revised. Since order was passed by exercising power under sub-Clause
(vi), we have to see whether in the Notification specifying an authority a time limit has been mentioned or even in the absence of the same, the outer limit can be availed by exercising power under sub-Clause (v).
According to learned ASG, there is no need to specify the period in the Notification authorizing concerned authority to call for the record for any enquiry and revise any order made under the Rules. We are unable to accept the said claim for the following reasons.
13 OA 1309/2017
7) It is to be noted that in cases where the appellate authority seeks to review the order of the disciplinary authority, the period fixed for the purpose is six months of the date of the order proposed to be revised. This is clear from sub-Clause (v) of sub-Rule 1 of Rule 29. On the other hand, Clause (vi) confers similar powers on such other authorities which may be specified in that behalf by the President by a general or special order and the said authority has to commence the proceedings within the time prescribed therein.
Even though Rule 29(1)(vi) provides that such order shall also specify the time within which the power should be exercised, the fact remains that no time limit has been prescribed in the Notification. We have already pointed out that no period has been mentioned in the Notification. The argument that even in the absence of specific period in the Notification in view of Clause (v), the other authority can also exercise such power cannot be accepted. To put it clear, sub-Clause (v) applies to appellate authority and Clause (vi) to any other authority specified by the President by a general or special order for exercising power by the said authority under sub-Clause (vi). There must be specified period and the power can be exercised only within the period so prescribed.
8) In as much as the Notification dated 29.05.2001 has not specified any time limit within which power under Rule 29(1)(vi) is exercisable by the authority specified, we are of the view that such Notification is not in terms with Rule 29 and the Tribunal is fully justified in quashing the same. The High Court has also rightly confirmed the said conclusion by dismissing the Special Application of the appellants and quashing the Notification on the ground that it did not specify the time limit. Consequently, the appeal fails and the same is dismissed. No order as to costs.
Relying upon the above said judgment, this Tribunal, in OA 668/2011, vide order, dated 28.03.2012, allowed the OA filed by one C.Sampath. It is to be noted that the Hon. High Court of Kerala, vide its order, dated 13.09.2012, in WP (C) No.13489 of 2008, in UOI & others Vs K.Raghavan upheld the order, dated 15.10.2007, of the Ernakulam Bench of this Tribunal in OA 191/2006, holding that suo moto exercise of revisional power under Section 29 of CCS (CCA) Rules, 1965, after 14 months is not reasonable one and dismissed the writ petition filed by the respondent department. Following the said judgment, this Tribunal, vide order, dated 25.10.2013, has allowed OA 509/2012 and the said order was upheld by 14 OA 1309/2017 the Hon. High court of Madras in WP No.17278/2014, vide order dated 02.07.2014.
10. Even assuming for a moment that the revisional authority is competent to suo moto review the disciplinary authority's order, the said revisional authority cannot totally ignore the analysis made by the disciplinary authority wherein the disciplinary authority, while coming to the conclusion to impose the said penalty of reduction in pay, has observed that the applicant has done this unknowingly. Hence in our considered opinion, the punishment imposed by the revisional authority is shockingly disproportionate. Moreover, the order of the disciplinary authority has to be reviewed within six months from the date of its order but the same has been reviewed by the revisional authority beyond six months which is against the purview of the power and exceeded the jurisdiction. Hence, the impugned order, dated 08.07.2016, is quashed and set aside. OA is allowed to the extent indicated above. No order as to costs.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member(A) Member(J)
13.12.2023
MT
15 OA 1309/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01309/2017
Date of order: 13.12.2023
APPLICANT(S)/
S.Sanaullah Baig, PETITIONER(S)
M/s. R.Malaichamy ADVOCATE(S) FOR THE
APPLICANT
-VERSUS-
1. Union of India, RESPONDENT(S)
Rep. by the Chief Postmaster
General,Tamil Nadu Circle,
Anna Salai, Chennai-600 002.
Mr.R.S.Krishnaswamy ADVOCATE(S) FOR THE
RESPONDENTS
CORAM:
HON'BLE SMT. LATA BASWARAJ PATNE, JUDICIAL MEMBER & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A)
1. Whether reporters of local newspapers may be Yes/No allowed to see the Judgment?
2. Whether to be referred to the reporter or not? Yes/No
3. Whether the Judgment is to be circulated to other Yes/No Benches of the Tribunal?
Judgment pronounced by (LATA BASWARAJ PATNE)
Judicial Member