Central Administrative Tribunal - Madras
M Saravanan vs D/O Post on 21 June, 2024
1 OA 1480/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01480/2014
Dated Friday, the 21st day of June, Two Thousand Twenty Four
CORAM:
HON'BLE MR. MANISH GARG, Member (J)
&
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
M. Saravanan
S/o. Shri. T. Muthusamy,
No. 3/101, Bodinaickenpatti BO,
A/w. Singalandapuram SO 637412
Namakkal District. ... Applicant
By Advocate M/s. K. M. Ramesh
Vs
1. Union of India rep. by its
Director of Postal Services,
Western Region, Tamil Nadu,
Coimbatore - 641002.
2. The Superintendent of Post Offices,
Salem West Division,Suramangalam HO,
Salem - 636005.
3. The Inspector of Posts,
Rasipuram Sub-Division,
Rasipuram - 637408. ... Respondents
By Advocate Mr. R. S. Krishnaswamy
2 OA 1480/2014
ORDER
(Pronounced by Hon'ble Mr. Manish Garg, Member(J))
1. In the instant OA, the applicant seeks the following relief:
"The applicant humbly prays that this Hon'ble Tribunal may be pleased to set aside the impugned proceedings of the 2nd Respondent bearing Memo No.F1- 4/IV/2010-11 dated 22.10.2013 imposing upon the applicant the punishment of removal from service and also set aside the impugned order passed by the 1st Respondent order bearing Memo No.STC/13-106/2013 dated at Coimbatore the 22.05.2014 rejecting the appeal and confirming the order passed by the 2nd Respondent and consequently direct the Respondents to reinstate the applicant in service with continuity of service and with all monetary and service benefits and to pass such other order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, award costs and thus render justice"
2. The brief facts of the case are as follows:
2.1 The Applicant, while working as GDS Branch Post Master in Bodinaickenpatti BO, A/w Singalandanpuram S.O, was placed under put off duty, by order, dated 08.03.2011, alleging certain misconduct. Thereafter, the applicant was issued with a charge memo, dated 31.05.2012, wherein one article of charge was alleged. The allegation made against the applicant is that he had prematurely closed a RD Account on 16.09.2010 and utilized the amount for his personal use.
2.2 The 2nd Respondent, being the Disciplinary Authority, appointed an Inquiry Officer and Presenting Officer to conduct the enquiry. The Inquiry Officer conducted the enquiry, in which 7 witnesses were examined on the side of the State and the applicant examined 2 witnesses as Defence Witnesses.3 OA 1480/2014
2.3 After conclusion of the enquiry, the Inquiry Officer gave his report holding that the charge alleged against the applicant had not been established/proved. However, the 2nd Respondent issued a letter, dated 06.09.2013, to the applicant stating that he disagreed with the report of the Inquiry Officer and held the charge alleged against the applicant as proved.
The applicant submitted his written representation against the views of the 2nd respondent. The 2nd respondent, without considering the same, passed final order, dated 22.10.2013, imposing the punishment of removal from service upon the applicant.
2.4 The applicant preferred an appeal to the 1st Respondent on 13.11.2013, against the order of removal from service. The 1st Respondent disposed of the said appeal by the impugned order, dated 22.05.2014, rejecting the appeal and confirming the punishment imposed by the 2nd Respondent. Hence, the present OA has been filed seeking the aforesaid relief.
3. After notice, respondents have entered appearance through their counsel and filed their reply statement refuting all the allegations made in the OA, except those which are admitted on facts.
3.1 They have submitted that the applicant, while working as GDS BPM, Bodinaickenpatti BO, a/w Singalandapuram SO, had closed the RD account No.4123137, in the name of Smt. Lakshmi on 16.9.2010 and misappropriated the premature closure amount of Rs.6879/- for his personal use. Smt. Lakshmi complained to the IP, Rasipuram Sub-division, that she had not received the RD closure proceeds. In her statement, dated 8.3.11, the depositor, Smt. Lakshmi, stated that the applicant had received her passbook and withdrawal form with her LTM, but did not give the closure proceeds till that date. Whenever she asked the applicant, he replied that the order for closure of her account has not been received. The applicant, in his statement, dated 8.3.11, stated that he had misappropriated the RD 4 OA 1480/2014 PREMATURE CLOSURE amount of account No.4123137, closed on 16.9.2010, and that he had credited Rs. 7600/- towards the misappropriated amount at Singalandapuram SO, under Unclassified Receipt (UCR) on 8.3.2011 into the Government accounts. The applicant was placed under off duty w.e.f. 8.3.2011 a/n.
3.2 The applicant was proceeded against under Rule 10 of the GDS (C&E) Rules, 2011, vide office memo No.F1-4/IV/2010-11, dated 31.5.2012. The applicant denied the charge. In order to provide him a reasonable opportunity to defend his case, Sri.E.Karunakaran, Postmaster, Suramangalam HO, was appointed as I.O. and Sri.S.Chennakrishnan, the then ASP (HQ), Salem West Division, was appointed as P.O., vide 2nd Respondent office memo No.F1-4/IV/2010-11, dated 14.6.12. The I.O., in his report, dated 11/15.6.13, held the charge levelled against Sri M.Saravanan as not proved beyond doubt.
3.3 The I.O's Report was sent to the applicant on 21.6.13 to submit his representation, if any, as per Sub rule 2 of Rule 15 of the CCS (CCA) Rules, 1965. The applicant submitted his representation on 1.7.13. Subsequently, a careful study of the case revealed that the State witnesses have turned hostile at the time of inquiry. Hence, disagreeing with the findings of the I.O, the 2nd Respondent had sent a disagreement note, dated 6.9.13, along with a copy of the I.O's Report, directing the applicant to submit his representation, if any, within 15 days from the date of its receipt, as per Sub rule (2) of Rule 15 of the CCS (CCA) Rules, 1965, which stipulates that the disciplinary authority shall forward a copy of the I.O's Report together with his own tentative reasons for disagreement, if any, with the findings of the Inquiring Authority on any article of charge to the government servant who shall be required to submit, if he desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the government servant and as 5 OA 1480/2014 per Govt. of India's decisions (6)(A)(3) below Rule 15 of the CCS (CCA) Rules, 1965, "......whether the disciplinary authority, when he decides to disagree with the inquiry report should also communicate the reasons for such disagreement to the charged officer. It has been decided that where the Inquiring authority holds a charge as not proved and the Disciplinary authority takes a contrary view, the reasons for such disagreement in brief must be communicated to the charged officer along with the report of inquiry so that the charged officer can make an effective representation".
Though there are no specific rulings to this effect in the GDS (C&E) Rules, 2011, the procedure laid down in the CCS (CCA) Rules, 1965, applies for GDSs also mutatis mutandis. As per DG's instructions No.1 below Rule 10 of the GDS (Conduct & Engagement) Rules, 2011, "while it may not be necessary to follow the provisions of Rule 14 of CCS (CCA) Rules 1965, literally in the cases of ED agents, it would be desirable to follow the provisions of that rule in spirit". Thus, the contention of the Applicant that the 2nd Respondent (disciplinary authority) has no power under the GDS (Conduct & Engagement) Rules, 2011, is not correct.
3.4 The applicant had submitted his representation on 16.09.2013. As the case had to be analyzed thoroughly, dispassionately and justifiably without any bias, it was finalized on 22.10.2013, awarding the penalty of removal from engagement. No offence was committed by the disciplinary authority (2nd Respondent) in sending the I.O's Report twice to the charged GDS, but instead, prescribed time limit of 15 days was granted to him to submit his 6 OA 1480/2014 representation, if any, which reveals that sufficient opportunity was granted to him to defend his case.
3.5 Countering the argument put forth by the learned counsel for the applicant, the learned counsel for the respondents relies upon the averments contained in the counter affidavit. He specifically relies upon:
"The depositor Smt Lakshmi (SW-1), in her statement dated 25.07.11 has categorically stated that she had affixed LTM on the application side as well as acquittance side of the SB-7 form. As per Sub rule (iv) of Rule 134 of Book of BO rules (sixth edition) signature is to be obtained only on the application side and signature has to be obtained in the acquittance side only at the time when payment is made. Had he obtained the LTM only on the application side, there might have been no chance for defrauding the deposited amount of the depositor and the depositor might have demanded the money when she put her LTM on the acquittance side."
3.6 He contends that the applicant is not entitled to any relief sought in the present OA. All procedures, formalities, in accordance with rules, have been followed when the disagreement note has been passed, as there were reasons based on clear documentary/ circumstantial evidences in the disagreement note. The Disciplinary Authority was justified in issuing the note. After receipt of the reply of the applicant, the Disciplinary Authority came to a reasonable finding. Even the applicant could not succeed in the appeal. Therefore, the present OA itself is not maintainable as the scope of interference in disciplinary proceedings is limited. He would rely upon DG's instructions (rule book). He would say, as per the DG's instructions, the disagreement note, as contemplated under Rule 15 of the CCS Rules, can be followed.
7 OA 1480/20143.7 He would say that there is no striking similarity between the facts of the present case and that of K.Jeyandran before the Hon. Madras High Court and the facts are entirely distinct. He would further rely upon:
"A mere glance of SB-7 conclusively proves that the LTM of SW-1 was obtained on both the sides for the following reasons:
(i) The colour of ink appears to be the same and the direction of the thumb is also the same. The LTM was affixed on the application side and without getting it inked, the same thumb was placed on the acquittance side.
(ii) Moreover, witness on both sides were obtained from R.Alamelu. It is not possible to get the witness from R Alamelu on two different dates. It is possible only if the witness is taken on a single occasion. Same witness can never come again on a different date by any chance of coincidence or probability.
(iii) In the same way, the ink by which R. Alamelu signed is also of same pen and the style of writing is also the same which is also not possible if Alamelu signed on different dates.
(iv) The certificate rubber stamp was also affixed on a single day first in the application side and then without inking it on the acquittance side as the direction and placement clearly establish it.
(v) Moreover, the handwriting of R. Alamelu in giving her address is exactly the same on both sides of the application form which is possible only if it is done on a single day and never possible on different dates."
Hence, they prayed for dismissal of the OA.
8 OA 1480/2014
4. To counter the argument put forth by the learned counsel for the respondents, the applicant would contend that the General Rules were subsequent to the present case, therefore, cannot be relied upon. In respect of his case, he draws attention to the decision rendered by the Hon. Apex Court, in the case of K. Jeyandran Versus Union of India in WP 18309/2009, decided on 02.02.2012 :-
"From the perusal of the records, it is not clear as to under what provision, the Disciplinary Authority has taken the decision to disagree with the findings of the Inquiry Officer. The learned counsel appearing for the official respondent also failed to bring to our notice as to the procedure followed by the Disciplinary Authority while disagreeing with the findings of the Enquiry Officer for imposing punishment, other than the suggestion made by the Inquiry Officer in the report submitted by him. Therefore, when the Disciplinary Authority has no power to differ with the findings of the Enquiry Officer and come to his own conclusion, the entire exercise done by him in passing the order of dismissal against the petitioner, in our considered opinion, is illegal and liable to be set aside."
5. He would contend that seven witnesses were examined on behalf of the respondent authority who never supported the case of the respondents. He further draws attention that two defence witnesses were examined and, after going through testimony of the defence witnesses, the enquiry came to be concluded, holding the charge against the applicant as not proved beyond doubt. He further relies upon the findings in the enquiry report. He would state that only one charge was there in the charge memo and the inquiry report was submitted, vide report, dated 11/15.06.2013.
6. Heard the learned counsels, Mr.K.M.Ramesh for the applicant, and Mr.R.S.Krishnaswamy for the respondents, and perused the records.
7. ANALYSIS 9 OA 1480/2014 7.1 At the outset, the learned counsel for the applicant states that the question of law involved in the present matter, is whether, in absence of there being any provision under the GDS (C&E) Rules, for having a disagreement note, such a procedure as is available in the CCS (Conduct) Rules, 1964, be followed?. This is the whole question for determination. He would argue that without any provision of law, no disagreement could have been made. He fairly concedes that the question of law was never taken up in any appeal.
7.2 In the case of the Superintendent of Post Offices and Others v. P.K. Rajamma [(1977) 3 SCC 94], it was laid down that Extra- Departmental Agents connected with the postal departments held civil posts. That finding was given while dealing with the applicability of Article 311 of the Constitution in relation to dismissal orders passed against the Extra- Departmental Agents. In the case of Chet Ram vs. Jit Singh [(2008) 14 SCC 427], the Hon'ble Apex Court examined the question as to whether a GDS is a government servant or not. This issue came up for consideration before this Court in a dispute concerning eligibility of a GDS to become a member of Nagar Panchayat in terms of the Punjab State Election Commission Act, 1994. The opinion of the Court was that such agents were government servants holding civil posts. Hence , we are of the view that even though there being no provision under the GDS (C&E) Rules for having a disagreement note, such procedure, as is available in CCS (CCA) Rules, 1965, can be followed.
7.3 Coming to the merits of the case, though it has been contended and noticed by us, we find seven witnesses were examined on behalf of the respondent authority who never supported the case of the respondents. Two defence witnesses were examined and, after going through the testimony of the defence witnesses, the enquiry came to be concluded holding the charge against the applicant as not proved beyond doubt. There 10 OA 1480/2014 is only one charge in the charge memo. However, the charge itself was of serious nature. The applicant, while working as GDS BPM, Bodinaickenpatti BO, a/w Singalandapuram SO, had closed the RD account No.4123137 in the name of Smt. Lakshmi, on 16.9.2010, and misappropriated the premature closure amount of Rs.6879/- for his personal use. Smt. Lakshmi complained to the IP, Rasipuram Sub-division, that she had not received the RD closure proceeds. In her statement, dated 8.3.11, the depositor, Smt. Lakshmi, stated that the applicant had received her passbook and withdrawal form with her LTM, but did not give the closure proceeds till that date. Whenever she asked the applicant, he replied that the order for closure of her account has not been received. The applicant, in his statement, dated 8.3.11, stated that he had misappropriated the RD PREMATURE CLOSURE amount of account No.4123137, closed on 16.9.2010, and that he had credited Rs. 7600/- towards the misappropriated amount at Singalandapuram SO, under Unclassified Receipt (UCR), on 8.3.2011, into the Government accounts. 7.4 In CIVIL APPEAL NO(s). OF 2021 (Arising out of SLP(C) No(s). 3206732068 of 2018) titled as DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS VERSUS AJAI KUMAR SRIVASTAVA, decided on 5.1.2021, the Hon'ble Apex Court held as under:-
"25. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence 11 OA 1480/2014 reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
26. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
28. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.12 OA 1480/2014
29. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
*********
43. Before we conclude, we need to emphasize that in banking business absolute devotion, integrity and honesty is a sine qua non for every bank employee. It requires the employee to maintain good conduct and discipline and he deals with money of the depositors and the customers and if it is not observed, the confidence of the public/depositors would be impaired. It is for this additional reason, we are of the opinion that the High Court has committed an apparent error in setting aside the order of dismissal of the respondent dated 24th July, 1999 confirmed in departmental appeal by order dated 15th November, 1999."
7.5 The applicant was also required to maintain absolute devotion, integrity and honesty, which is a sine qua non for every postal employee. One cannot ignore the fact that Smt. Lakshmi, being a rustic villager was not well versed with the procedure governing operation of a RD Account. It is not in dispute that, while working as GDS BPM, Bodinaickenpatti BO, a/w Singalandapuram SO, the applicant had closed the RD account No.4123137, in the name of Smt. Lakshmi, on 16.9.2010, and misappropriated the premature closure amount of Rs.6879/- for his personal use. Smt. Lakshmi complained to the IP, Rasipuram Sub-division, that she had not received the RD closure proceeds. In her statement, dated 8.3.11, the depositor, Smt. Lakshmi, stated that the applicant had received her passbook and withdrawal form 13 OA 1480/2014 with her LTM, but did not give the closure proceeds till that date. Whenever she asked the applicant, he had replied that the order for closure of her account has not yet been received. The applicant, in his statement, dated 8.3.11, stated that he had misappropriated the RD PREMATURE CLOSURE amount of account No.4123137, closed on 16.9.2010, and that he had credited Rs. 7600/- towards the misappropriated amount at Singalandapuram SO, under Unclassified Receipt (UCR), on 8.3.2011, into the Government accounts. In such a case, strict rules of evidence need not be followed.
7.6 The Hon'ble Apex Court has held as under:-
"The High Court appears to have applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose. This would go contrary to the settled legal position enunciated by this Court. It would suffice for us to refer to a recent judgment in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI where it has been observed while referring to earlier judicial precedents, that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt. "(Ref: CIVIL APPEAL NO.267 OF 2022 INDIAN OVERSEAS BANK & ORS. Versus OM PRAKASH LAL SRIVASTAVA. decided on 19.01.2022 )
8. CONCLUSION In view of the above discussions, the present OA is devoid of merits and dismissed. Pending miscellaneous applications, if any, are also disposed of. No costs.
14 OA 1480/2014
(Varun Sindhu Kul Kaumudi) (Manish Garg)
Member (A) Member (J)
21.6.2024