Gauhati High Court
Agni Bahadur Chetri vs Union Of India & Ors on 22 August, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh)
WP(C) No. 6155/2006
WITH WP(C) No. 3749/2005
Shri Agni Bahadur Chetri,
S/o- late Dal Bahadur Chetri,
Resident of Village- Borbheti,
P.O. No. 3, Nalbari via Sootea,
P.S. Sootea,
District- Sonitpur, Assam.
.......PETITIONER
-Versus-
1. Union of India, represented by the Secretary,
Government of India, Post and Tele
Communication Department, New Delhi.
2. Director General of Posts, New Delhi.
3. Chief Post Master General, Assam, Meghdoot
Bhawan, Guwahati-1, Assam.
4. Superintendent of Post Offices, Darrang
Division, Tezpur.
5. Sub- Divisional Inspector of Post Offices,
Chariali, Dist- Sonitpur, Assam.
......... RESPONDENTS
2
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
For the Petitioner ... Mr. B. Chetri, Advocate
For the Respondents ... Mr. N. Baruah, C.G.C.
Date of Hearing ... 14.08.2013
Date of judgment ... 22.08.2013.
JUDGMENT AND ORDER (ORAL)
Petitioner is aggrieved by his dismissal from service pursuant to the order dated 29.09.1998 passed by the respondent No. 4.
2. Facts of the case may be briefly noted.
3. At the relevant point of time, petitioner was serving as Extra Department Agent (EDA) and posted at Pratapgarh Extra Department Office. He was also working as Post Master of the said Branch Office under the respondent No. 4.
4. On the basis of a complaint dated 01.05.1997 lodged by one Sri Madan Ch. Kalita alleging mis-appropriation of Rs. 54,734.79 by the petitioner by manipulating cash books and pass books, an enquiry was ordered. A criminal case was also registered. While the enquiry was on, respondent No. 5 passed an order dated 03.02.1997 placing the petitioner under put off duty (suspension) w.e.f. 03.02.1997. This was challenged by the petitioner before this Court in WP(C) No. 3749/2005.
5. During the pendency of WP(C) No. 3749/2005, respondents filed an affidavit stating therein that a charge memo dated 31.7.1997 was issued to the petitioner proposing to hold an enquiry on the two charges framed against the petitioner. The affidavit further disclosed that the disciplinary authority i.e., Superintendent of Post Offices, Darrang 3 Division, Tezpur, passed an order dated 29.09.1998 dismissing the petitioner from service with immediate effect.
6. Aggrieved, petitioner has filed the second writ petition i.e., WP(C) No. 6155/2006 questioning the legality and validity of the impugned order of dismissal.
7. It is contended that on the same set of charges, a criminal case was registered which gave rise to G.R. Case No. 328/1997 (State Vs. Agni Bahadur Chetri), which was tried in the Court of Judicial Magistrate, 1st Class, Biswanath Chariali. By the judgment and order dated 25.03.2004, the trial Court acquitted the petitioner from the charge. It is also contended that since there was no departmental enquiry and the criminal Court had acquitted the petitioner of the same charge, impugned dismissal is without justification. Further contention of the petitioner is that he was neither served with a copy of the show-cause notice nor with a copy of the impugned dismissal order. Impugned penalty was imposed without holding enquiry and without giving reasonable opportunity to the petitioner to defend himself.
8. Respondents have filed affidavit in both the cases.
9. It is stated that in the course of inspection of the Branch Office, shortage of cash and stamp to the tune of Rs. 1,837.79 was found. There was also no credit in respect of several money orders amounting to Rs. 3,046.00 by the petitioner. Petitioner was immediately placed under put off duty w.e.f., 03.02.1997. Matter was also reported to the Sootea Police Station, where-after Biswanath Chariali P.S. Case No. 106/1997 under Section 409 IPC was registered. Department decided to initiate disciplinary proceeding against the petitioner. Accordingly, memorandum of charge dated 31.07.1997 was issued by the disciplinary authority. Further, Department had also appointed an Enquiry and a Presenting Officer to conduct the enquiry. However, all communications sent to the petitioner in connection with the enquiry were received back 4 undelivered as the petitioner was found absent from his residence. Accordingly, ex-parte decision was taken and petitioner was dismissed from service vide the impugned order. Petitioner was dismissed earlier to his acquittal by the criminal Court. Acquittal by the criminal Court would not ipso-facto lead to exoneration of the delinquent from the charges in the enquiry. In paragraph-10 of the affidavit filed in WP(C) No. 3749/2005 it is stated that the charge-memo dated 31.07.1997 could not be served upon the petitioner as he was not available in the address furnished by him. Postal authorities had returned back the envelope with the remark "addressee left". Since, petitioner did not respond to the notices issued by the Enquiry Officer on 04.12.1997, 12.01.1998 and 28.03.1998, Enquiry Officer proceeded with the enquiry ex-parte and submitted his report to the disciplinary authority on 22.04.1998. A copy of the enquiry report was also sent to the petitioner but it was returned back undelivered. Thereafter, impugned order was passed.
10. Heard Mr. B. Chetri, learned counsel for the petitioner and Mr. N. Baruah, learned C.G.C.
11. Learned counsel for the petitioner submits that the enquiry conducted by the respondents is not an enquiry at all in the eye of law. There was no default on his part. Petitioner was appearing before the trial Court on all the dates fixed. Petitioner came to know about the charge memo as well as about the dismissal order only when affidavit was filed in WP(C) No. 3749/2005 which was filed by him seeking quashing of suspension order following his acquittal in criminal case. Since the criminal Court had held that the prosecution had failed to prove that the accused was involved in mis-appropriation of money belonging to the Department and he was accordingly acquitted, learned counsel for the petitioner submits that under such circumstances, the two charges brought against the petitioner cannot be said to have been proved. Impugned dismissal, therefore, cannot be sustained and should be set aside.
512. Mr. N. Baruah, learned C.G.C., on the other hand submits that petitioner after his suspension disappeared from the scene and despite repeated notice, he could not be traced out. Then the police gave a report that the petitioner was absconding. Reasonable and adequate opportunity was given to the petitioner but he failed to avail the opportunity. He further submits that acquittal of the petitioner in the criminal case would have no bearing on the decision taken by the disciplinary authority as according to the disciplinary authority, continuation of the petitioner in service of the organization would adversely affect the image and functioning of the Department. He has produced the relevant record.
13. Submissions made have been considered. Record produced has been perused.
14. Before proceeding further, relevant provisions of the Posts and Telegraphs Extra Departmental (Conduct and Service) Rules, 1964 (1964 Rules) may be referred to. Rule 7 of the 1964 Rules provides the nature of penalties. Dismissal from service which shall ordinarily be a disqualification for future employment is one of the prescribed penalties. Rule 8 lays down the procedure for imposing a penalty. It provides that no order of penalty should be passed except after the employee is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken. The employee must be given an opportunity to make a representation if he wishes to make one. Such representation is required to be taken into consideration by the appointing authority. As per the proviso to Rule 8, penalty of dismissal or removal from service is not to be imposed except after am enquiry in which the employee has been informed of the charges against him and he has been given reasonable opportunity of being heard in respect of those charges. Such penalty may be imposed on the basis of the evidence adduced during the enquiry. Sub-rule (2) of 6 Rule 8 prescribes as to what comprises the record of enquiry proceedings. The record of proceeding shall include:-
(i) a copy of intimation to the employee of the proposal to take action against him,
(ii) a copy of the statement of allegations alongwith a list of evidence in support thereof, communicated to the employee,
(iii) his representation, if any,
(iv) record of the enquiry alongwith the enquiry report,
(v) findings of the appointing authority in respect of the allegations with reasons therefor,
(vi) the order imposing the penalty.
As per Rule 9 A(ii), provisions of Rule 8 shall not apply where the appointing authority empowered to dismiss or remove an employee is satisfied that for some reasons to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry. Rules 10 to 15 deals with appeal whereas Rule 16 provides for review of orders.
15. Having noticed the relevant legal provisions, the impugned order of dismissal may now be looked into.
16. Impugned order dated 29.09.1998 is quoted in its entirety:-----
"DEPARTMENT OF POST, INDIA OFFICE OF THE SUPERINTENDENT OF POSTS, DARRANG DIVISION.
TEZPUR-784001.
Memo No. F4-8(B)/96-97 Dated at Tezpur-784001, The 29th September, 1998 In this office Memo, of even No, dated 31/7/97 it was proposed to take action against Shri Agnibahadur Chetri of EDA 7 (Conduct and Service) Rules, 1964, on the basis of the with Sri Chetri was given an opportunity to make his representation, if any, against the proposal within 10 days of receipt of the said Memorandum. The articles of charges framed against Shri Chetri runs as under:-
Annexure-I Article-I That, the said Shri Agnibahadur Chetri while working as ED BPM/ Pratapgarh BO for the period from 18.01.84 to 02.02.97 kept shortage of Rs. 1837.79 (Rupees One thousand eight hundred and thirty seven & paisa seventy-nine ) only in his office cash balance on 30.01.97 violating the provisions of Rule-177 (3) of Rules for BOs (6th edition) and also Rule 17 of EDA (Conduct & Service) Rules, 1964.
Article-II That, the said Shri Agnibahadur Chetri while working as EDA/ Pratapgarh BO for the period from 18.01.84 to 02.02.97 accepted SB/RD deposits for Rs. 49,851.00 (Rupees forty nine thousand and eight hundred fifty one) only in 20 Nos. of accounts on different dates for depositing in respective SB/RD accounts. Shri Chetri entered the deposits in the respective passbooks, put his initial with office date stamp and returned the passbooks to the depositors. But Shri Chetri did not credit the amounts in Govt. a/c and kept the amount in his custody for his personal use violating the provisions of Rule 131 of Rules for BOs (6th edition) and also rule 17 of EDA (Conduct & Service) Rules, 1964.
ANNEXURE-II Article -I 8 That, the said Shri Agnibahadur Chetri while working as BPM/Pratapgarh BO for the period from 18.01.84 to 02.02.97 the SDI (P)/ Charali visited Pratapgarh BO on 30.01.97. On verification of cash and stamp balance of the office, a sum of Rs. 1837.79 (Rupees one thousand eight hundred and thirty seven & paisa seventy-nine) only found short in the cash balance of the office on 30.01.97. However, the amount was recovered from Shri Chetri and credited as UCR at Sootea SO on 04.02.97. Thus, Shri Chetri has violated the provisions of Rule 177 (3) of Rules for BOs (6th edition) and also Rule 17 of EDA (Conduct & Service) Rules, 1964.
Article -II That, the said Shri Agnibahadur Chetri while working as BPM/ Pratapgarh BO in a/c with Sootea SO for the period from 18.01.84 to 02.02.97 accepted Rs. 49,851.00 (Rupees forty nine thousand eight hundred fifty-one) only from the depositors of 10 Nos. of SR a/cs and 10 Nos. of RD a/cs on different dates for depositing the same in their respective accounts. Shri Chetri entered the amount of the deposit in the respective passbooks, put his initial with office date stamp and returned the passbooks to the depositors. But Shri Chetri did not credit the amount into Govt. a/c on the date of deposit or any subsequent date.
A few instances are given below:-
A/c No. Name of Depositor(s) Date Amount
1.SB-540118 N. Saikia 02.05.95 1000/-
2. SB-540236 R. Kumar 12.01.97 Rs35/-
3.RD-21349 C.S.Singh 03/12 to 12/96 Rs. 29000/-
4.RD-21634 B. Koet 04/95 to 1/97 Rs.4600/-
9
However, a sum of Rs. 18770/- was recovered from Shri Chetri and credited as UCR Sootea SO on 04.02.97, 11.02.97, 10.03.97 and 13.03.97. Thus Shri Chetri has violated the provisions of Rule 131 of Rules for BOs (6th edition) and also Rule 17 of EDA (Conduct & Service) Rules, 1964.
The said memorandum was received back by this office on 07.08.97. Shri Chetri left his residence without any address. The case was referred to the police and the O/o, Sootea Police Station submitted a certificate on 12.08.98 stating that the whereabouts of Shri Agnibahadur Chetri are not known.
The whereabouts of Shri Agnibahadur Chetri, Ex-BPM Pratapgarh BO are not known and that the police authority have also certified to that effect and therefore, it is not reasonably practicable to hold the enquiry contemplated under Rule 8 of EDA (Conduct & Service) Rules, 1964 and no enquiry was held for the purpose.
Shri Agnibahadur Chetri during his incumbency as BPM, Pratapgarh BO in a/c with Sootea SO for the period from 18.01.84 to 02.02.97 kept shortage of Rs. 1837.79 (Rupees one thousand eight hundred and thirty seven & paisa seventy-nine) only in his office cash balance on 30.01.97 as detected by the SDI (P)/ Chariali on his visit to the BO on 30.01.97. Shri Chetri also accepted the deposits of several SB/RD accounts from the depositors on different dates amounting to Rs. 49,851.00 (Rupees forty nine thousand eight hundred fifty-one) only, but did not credit the said amount in Govt. account on the date of actual deposits or thereafter and kept the money for his personal gain. Shri Chetri has plundered the public money with evil intentions causing immense hardship to the depositors and also tarnish the image of the Department by his evil design. Such a person is not 10 at all fit to be retained in service anymore and deserves stringent punishment.
-:ORDER:-
I, Shri B.K. Marak, Supdt. of Post Offices, Darrang Division, Tezpur, therefore, ordered that Shri Agnibahadur Chetri, BPM/ Pratapgarh (now put-off Duty) be "Dismissed" from service with immediate effect."
17. A perusal of the aforesaid impugned order would indicate that the show-cause notice was received back by the office of the disciplinary authority on 07.08.1997 as the same could not be served since the petitioner had left his residence without any address. As per police certificate, whereabouts of the petitioner was not was not known. It was, therefore, held that it was not reasonably practicable to hold enquiry against the petitioner.
18. The police certificate that was referred to and relied upon by the disciplinary authority is a certificate dated 12.08.1998. The certificate was issued in connection with Biswanath Charilai P.S. Case No. 106/1997 under Section 409 IPC, where it was stated that the petitioner (accused) was evading arrest because of which the case was pending. Now a copy of the judgment of the criminal Court has been placed before the Court which indicates that in the course of investigation of the case, petitioner was arrested and forwarded to Court. Thereafter, charge-sheet was submitted and charge was framed to which the petitioner pleaded not guilty. Consequently, the trial commenced. The judgment does not indicate that the petitioner had stayed away from the trial. On the contrary, it indicates that a number of prosecution witnesses were examined and their evidence recorded. The petitioner was also examined under Section 313 Cr.P.C. and arguments were advanced on his behalf. Ultimately, as already noticed above, the criminal Court acquitted the petitioner.11
19. In such circumstances the police certificate relied upon by the disciplinary authority can be of no real use. When the petitioner was in custody or when the criminal trial was on, the disciplinary authority could have found out the petitioner and served him the show-cause notice. The record further discloses that the Enquiry Officer had submitted a report to the disciplinary authority without recording any finding. But the disciplinary authority invoked the provisions of Rule 9 A
(ii) to hold enquiry against the petitioner was not practicable.
20. The Hon'ble Supreme Court in the case of Union of India and others Vs. Dinanath Shantaram Karekar reported in (1998) 7 SCC 569 held that it is not the communication of charge-sheet but its actual service which is essential in a departmental proceeding. The Apex Court held as follows:
"10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceeding. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the charge-sheet nor the show- cause notice were ever served upon the original respondent, Dinanath Shantaram karekar. Consequently, the entire proceedings were vitiated."
21. In the contextual facts of the present case, the above principle would be squarely applicable. Respondents cannot be said to have taken reasonable and adequate steps to serve the show-cause notice or other 12 communications on the petitioner. Thus, Court is of the view that the entire departmental proceeding against the petitioner stood vitiated because of non-service of show-cause notice on the petitioner, which is the very foundation. In such circumstances, impugned dismissal order dated 29.09.1998 cannot be sustained and is accordingly set aside and quashed.
22. In view of quashing of the impugned order, petitioner would be entitled to reinstatement in service but looking to the facts and circumstances of the case, there shall be no order as to payment of back- wages.
23. However, quashing of the impugned dismissal order would be without prejudice to such steps which the respondents may consider in accordance with law, if so advised.
24. Writ petition is allowed to the extent indicated above.
25. Record produced by Mr. N. Baruah is returned back.
JUDGE Rupam