Central Administrative Tribunal - Lucknow
V. N. Singh Aged About 61 Years vs Union Of India Through The Secretary on 7 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH LUCKNOW
Original Application No. O.A.332/00105/2002
Order Reserved On 26.4.2.016
Order Pronounced on 07/05/2016
HONBLE MR. NAVNEET KUMAR, MEMBER(J)
HONBLE MS. JAYATI CHANDRA MEMBER (A)
V. N. Singh aged about 61 years, son of Sri Jagannat Singh, resident of 116/B, Paltan Bazar, Pratapgarh.
Applicant.
By Advocate Sri R. K. Upadhyaya
VERSUS
1. Union of India through the Secretary,
Ministry of Telecommunication (Postal),
Dak Bhawan, New Delhi.
2. Member (Personal) Postal Service Board,
Dak Bhawan, New Delhi.
3. Director, Postal Services,
Allahabad Region, Allahabad.
4. Senior Superintendent of Post Offices,
Pratapgarh.
Respondents
By Advocate Sri R.P. S.Chauhan
ORDER
By HonbleMr. Navneet Kumar, Member (J) The present Original Application is preferred by the applicant under Section 19 of the AT Act, 1985 with the following relief(s):
(i) To issue an order or direction quashing the impugned order of dismissal dated 14.12.98 and the appellate order dated 26.7.99 contained in Annexure No1. 1 and 2 respectively with this amended Original Application and further be pleased to direct the opposite parties to reinstate the applicant in service with all consequential benefits of back wages with interest @ 24% per annum.
(i-a) To issue an order or direction quashing the revisional order dated 24.12.2002 contained in Annexure No. 2-A with this O.A.
(ii) That the cost of the application may also be allowed to the applicant.
(iii) That any other relief, which this Honble Tribunal deems just and proper in the circumstances of the case may also be allowed to the applicant.
2. The brief facts of the case are that the applicant was initially appointed on the post of E.D.M.P. and was subsequently promoted as Post Man in the year 1972. Subsequently, the applicant was promoted on the post of Postal Assistant in 1982. Thereafter, the applicant was appointed on the post of Head Treasurer in 1992 where he remained posted till 21.9.1994. The applicant was placed under suspension w.e.f. 21.9.1994 passed by the Senior Postmaster, Pratapgarh Head Post Office. In pursuance of an FIR under Section 409 I.P.C. lodged against the applicant at P.S. Kotwali Pratapgarh. The charge sheet was submitted by the Police.
3. It is also indicted that the departmental enquiry was also initiated against the applicant in 1995 and there were three charges levelled against the applicant and in support of which, nine documents and ten witnesses are mentioned in the charge sheet. Subsequently, a corrigendum was issued in November, 1995. The applicant submitted reply to the charge and sheet and denied all charges levelled against him. Subsequently, the applicant was reinstated in service in April 1996, but the enquiry against him continued.
4. Subsequently, the Enquiry Officer submitted his report on 19.5.1998. The copy of the enquiry report was duly communicated upon the applicant and the applicant submitted his reply and after pursuing the reply of the applicant, the authorities passed the punishment order whereby, the applicant was dismissed from service on 14.12.1998 which was served upon the applicant on 16.12.1998. The applicant preferred an appeal before the Director Postal Services, which was also dismissed by means of a non-speaking order. The applicant also preferred a revision and the revision so preferred by the applicant also stands rejected by the authorities.
5. The learned counsel for the applicant vehemently argued and submitted that the disciplinary authority not considered the reply submitted by the applicant and also the documents which were asked by the applicant were not supplied, but the authorities passed the punishment order as well as rejected the appeal and revision so preferred by the applicant.
6. Not only this, it is also argued by the learned counsel for the applicant that the applicant has been exonerated in the criminal case and the charges so framed are same as that of disciplinary proceedings. It is submitted by the learned counsel for the applicant that the applicant submitted a detailed reply to the enquiry report and in the said enquiry report, it is categorically indicated that the enquiry officer has not made a clear report where he should have been given reasons for not providing particular documents and in absence of non supply of additional documents, the finding so recorded by the enquiry officer is bad and is liable to be interfered with.
7. Apart from this, it is also argued by the applicant that the applicant did not attained the office on 21st on account of some ill health, as such, there is no violation of the provisions of Rule 62 of Postal Manual Volume III and Rule 3(1) (ii) of CCS(CCA) Rules, 1964. The list of witnesses and list of documents as shown in the disciplinary proceedings are one and the same as that of in the criminal case. During the course of arguments, the learned counsel for the applicant vehemently argued and indicated that neither the disciplinary authority, nor the appellate authority as well as the revisional authority has considered the reply so submitted by the applicant and the orders so passed by them are non speaking orders. As such, the present O.A. is liable to be allowed.
8. On behalf of the respondents, detailed reply as well as reply to the amended portion of the O.A. is filed through which, it is indicated that all the charges levelled against the applicant stands proved and the disciplinary authority after considering all the material available on record passed the detailed order. Not only this, it is also argued by the learned counsel for the respondents that since there is no procedural lapses in conducting the enquiry, as such, it does not require any interference by this Tribunal.
9. On behalf of the applicant, rejoinder is field and through rejoinder, mostly the averments made in the O.A. are reiterated and the contents of the counter reply are denied.
10. Heard the learned counsel for the parties and perused the record.
11. The applicant was initially appointed in the year 1972 and was subsequently promoted as Postal Assistant in the year 1992 and thereafter, he was posted as Head Treasurer of the Head Post office Pratapgarh in 1992 for a tenure of 2 years. While he was working as Head Treasurer, a charge sheet is served upon the applicant wherein, three charges were levelled . The charges so levelled against the applicant are as under:-
Articel-1 Sri get the cash balance verified a per balance shown on the treasurer cash book by the Sr. Postmaster Pratapgarh Ho at the close of treasury on 20.9.94 not transferred the cash balance as detailed on the treasurer cash book to Shri Ram Dular newly applinted treasurer on 20.9.94 and thereby violated the provisions of Rule 30 (e) of FHB Volume II and Rule 3(i) (i) and (II) of CCS conduct rules 1964.
Article-II Sri V. N. Singh while working as treasurer Pratapgarh HO did neither attend his duty in the morning of 21.9.94 nor applied for leave or submitted medical certificates of illness and thus absented himself from duty and thereby violated the provisions of rule 62 of Postal Man. Volume III and rule 3 (i) (i) (ii) of CCS (Conduct) Rules 1964.
Article-III Shri V. N. Singh while working as treasurer Pratapgarh HO transferred the cash balance short with Rs. 3,04,301,95 to Shri Ram Dular newly appointed treasurer on 21.9.94 i.e. Rs. 146811.65 instead of Rs. 1772481.60 a detailed on the treasurer cash book dated 20.9.94 infringing the provision of Rule 30(e) of F.H.B. Vol-II and Rule 3 (1)(i) of CCS (Conduct) Rules, 1964.
12. Along with the charge sheet list of witnesses as well as list of documents are mentioned. It is also to be indicted that against the applicant an FIR iss also lodged and the charge sheet is also filed. After the service of the charge sheet, the enquiry officer was appointed who submitted his report and found applicant guilty of the offences as mentioned in the charge sheet.
13. The applicant submitted the reply to the enquiry officers report and while submitting the said reply, the applicant asked for certain documents through its reply. The documents so asked for by the applicant has neither supplied to the applicant nor the disciplinary authority while passing the order were considered those averments of the applicant. The applicant also preferred an appeal against the order of disciplinary authority but in the appeal so preferred by the applicant, the appellate authority has not considered sympathetically the grounds taken in the appeal and rejected the same in a cursorily manner. The revision petition also submitted by the applicant but the same is also rejected by the revisioinal authority.
14. The applicant has taken a plea that the disciplinary authority has not rightly passed the order as he fail to given any finding on the grounds taken by the applicant on the show cause notice. The enquiry officer has recorded its finding that the newly appointed Treasurer Ram Dulare was to take over the charge of Treasury from the applicant on 20.9.1994 is absolutely incorrect, but Sri Ram Dular has very clearly stated in his statement that on 20.9.1994, he was working in the Registration Import Branch. He worked there up to 18 hours and he was neither relieved nor directed to take over the charge on 20.9.1994.
15. The learned counsel for the applicant also argued and indicated that the finding recorded by the learned Session Judge also supports this fact. Another plea is also taken by the applicant that the enquiry officer has fail to give any observation on the point that the then Senior Post Master Sri Ram Prasad Tripathi was a joint custodian of the cash kept in the reserve safe in the Strong room of the Treasury and the disciplinary authority fail to consider this plea of the applicant while passing the punishment order.
16. Under fundamental Rule 66(31) of the Post & Telegraph Financial Handbook Volume II, there has been strict liability to impose upon the Senior Postmaster on the point of fixing the signature on the certificate. During the course of criminal proceedings, the alleged Head Office Cash Book could be summoned by the Trial Court on the threat of issuing such search warrant only and it has come to light that Senior Postmaster had affixed his signature on the alleged verification/certificate/Postmaster Balance Sheet and non supply of the alleged documents during the course of enquiry amounted denial of reasonable opportunity of defence to the applicant.
17. Apart from this, Postmaster Order Book dated 20.9.1994and 21.9.1994 these documents could very well show as to whether there was any entry made by the Senior Postmaster regarding taking over of the charge of Treasury by Sri Ram Dular on 29.9.1994 or not. It is also indicated by the applicant that this document was also available but not supplied to the applicant intentionally because in fact there was no entry made on 20.9.1994 regarding taking over charge of the Treasury by Sri Ram Dular.
18. Apart from this, a preliminary enquiry report was demanded so that it could be ascertained as to whether any prima facie case is found against the applicant to initiate the departmental proceedings or not and as to on what basis, the charges were levelled against him. No such preliminary enquiry report was communicated to the applicant which shows that there was no prima facie satisfaction of the authorities initiated the departmental proceedings against the applicant.
19. The applicant also demanded the copy of the FIR dated 21.9.1994. The learned counsel for the applicant once again vehemently argued and indicated that while passing the impugned punishment order, the disciplinary authority has ignored the pleadings made by the applicant regarding non supply of material document which were very much relevant for holding the applicant guilty.
20. The applicant also submitted in his reply to the show cause notice that the closing balance dated 20.9.1994 and the opening balance of the next date i.e. 21.9.1994and the figured as mentioned was duly verified by the Senior Postmaster in the Head Office Cash Book dated 20.9.1994 by making the signature on the verification certificate/Postmaster balance sheet and when the same amount was opening balance of the next date, as such, there was no shortage of cash which could be attributed to the applicant. In reply to the show cause notice so submitted by the applicant, it is specifically pleaded regarding the fact that after sudden pain in his chest in the evening of 20.9.94 , and thereafter being hospitalised, the Senior Postmaster became the single custodian of the entire cash and treasury .
21. The applicant has also explained that all the seals, stamps and keys of the Head Post Office of all branches are kept in the Strong Room of the Treasury after the closing hours. In reply to the show cause notice, the applicant has also taken a specific plea that he was not afforded reasonable opportunity to cross examine the witnesses. While examining Sri R. N. Pandey, the prosecution witness, the then presenting officer Sri P.K. Singh use to make an objection on asking questions from Sri Pandey and with the result the alleged prosecution witness avoided answer of those questions. Neither the enquiry officer gave any finding nor punishing authority gave any finding on this plea taken by the applicant, while passing the punishment order.
22. The applicant has also taken a specific plea that the enquiry officer went beyond the scope of charge sheet in as much as the charge No. 2 levelled against the applicant in the charge sheet provided violation of Rule 62 of the Postal Manual Volume III and Rule 3 (1) (ii) of CCS Conduct Rules , 1964 and there is no allegation of the violation of any Rules 61 and 62 of the Postal Manual Volume III, yet the learned enquiry office has given his finding regarding Rule 61 and 62 As such, the enquiry officer exceeded his jurisdiction by going beyond the scope of charge sheet.
23. The enquiry officer has given a finding on the plea taken by the applicant which was also not considered by the disciplinary proceedings while passing the impugned order. The applicant submitted the specific explanation that the charge No. 2 levelled against the applicant was absolutely not justified in a much as in a single day, the applicant admittedly remained hospitalized and was also placed under suspension and is being charged for absence from duty. Under the circumstances, there was no occasion to give any application seeking leave of any type and the disciplinary authority also did not given any finding on this innocuous plea of the applicant.
24. The learned counsel for the applicant also argued and indicted that the appeal so preferred by the applicant was also decided by the appellate authority in a very cursorily manner and without taking into account the specific pleas so raised by the applicant. The applicant has specifically explained about the false remark written by the Senior Postmaster in the Treasurer cash book dated 20.9.1994 .
25. The pleading of the applicant was supported by the statement of Sri Ram Dular also, but the appellate authority did not bother to give any finding on the pleadings raised by the applicant and the appellate authority had made a vague statement that all the documents were made available to the applicant where as the documents so demanded by the applicant were not provided to him.
26. The applicant has also taken a specific plea that it was absolutely wrong to say that the applicant was discharged from the hospital in the morning on 21.9.1994, but the correct fact is that he was relieved on written demand made by Sri Ram Prasad Tripathi, the Senior Postmaster and this fact was also ignored by the appellate authority while passing the appellate order.
27. The applicant has also taken a specific plea that the Senior Postmaster Sri Ram Prasad Tripathi was the joint custodian of the cash with the applicant and therefore, any disciplinary action needed to be initiated against both the applicant as well as Sri Ram Prasad Tripathi under Rule 18 of CCS (CCA) Rules, 1965. This facts was raised by the applicant but the appellate authority not admitted the same without any justified reason.
28. The applicant has also taken a specific plea that the cash was required to be counted by the Senior Postmaster in presence of two independent witnesses as per Rule 217 of the Post & Telegraph Manual Volume V whereas all the seven persons who had signed the inventory were subordinates and could not be said to be independent witnesses. This plea of the applicant was also not considered by the appellate authority while deciding the appeal of the applicant. As indicated above, the plea taken by the applicant that the closing balance of 20.9.94 was the opening balance of the next date and thus there was no shortage as per record and there is no finding has been recorded by the appellate authority while passing the appellate order.
29. Not only this, the revisional authority has also not considered the facts of the case and rejected the revision of the applicant by means of a non speaking order.
30. The prosecution of the applicant by the Criminal Court as well as in departmental proceedings were based on same set of facts, witnesses and evidences:-
Witnesses of the Witnesses of during criminal
departmental proceedings Proceedings.
1. Sri Ram Prasad Tripathi 1. Sri Ram Prasad Tripathi
2. Sri Chaturbhuj Misra, 2. Sri Chaturbhuj Misra,
Dy. Postmaster Dy. Postmaster(PW-5)
3. Sri Ram Newaj Pandey, 3. Sri Ram Niwaj Pandey,
ATR ATR(PW-1)
4. Sri Jagdev Prasad, ATR 4. Sri Jagdev Prasad, ATR
5. Sri Anand Kumar Shukla,ATR 5. SriAnand Kumar Shukla,ATR
6. Sri Ram Bahadur Singh. 6. Sri Ram Bahadur Singh
APM A/c. APM/A/c.
7. Sri Ram Lakhan Kori, APM 7. Sri Ram Lakhan Kori, APM
Sub A/c. Sub A/c.
8. Sri Baleshwar Singh, Office 8. Sri Baleshwar Singh, Office
Assistant Assistant
9. Sri Ram Dular, Treasurer 9. Sri Ram Dular, Treasurer
(PW-2)
10. Sri R. K. Misra 10. Sri R. K. Misra,
Cardiologist Cardiologist (PW-9)
11. Sri Awadhesh Singh
(brother of the applicant)
12. Sri Sanjay Kumar Singh,
S.I(PW-8)
31. Rule 109 (i) of Central Treasury Rules reads as under:
Save as hereinafter provided, Government money not in the custody of a Central Treasury or the bank shall be kept in strong treasure chests secured by two locks of different patterns. All the keys of the same lock shall be kept in the same persons custody and as a general rule, the keys of one lock shall be kept apart from the keys of the other lock and in a different persons custody wherever practicable. The chest shall never be opened unless both the custodians of the keys are present. When there is a police guard, the officer-in-charge of such guard shall hold the custody of the keys of one of the locks, and he must always be present when the chest is opened and until it is again locked.
32. Further Rule 18 (1) of CCS (CCA) Rules provides as under:-
(1) Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.
33. In terms of the decision of the Honble Apex Court in the case of S. N. Mukherjee Vs. Union of India reported in AIR 1990 SC 1984, the Honble Apex Court has been pleased to observe as under:-
Therefore, except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi- judicial functions is required to record the reasons for its decision.
34. It is explicitly clear that the authorities who have passed orders are non speaking order. As such, in terms of decision rendered by the Honble High Court in the case of H.S.Srivastava Vs. Special Land Execution Officer reported in 1993 (11) LCD 441 has observed that An order adversely affecting an employee is to be speaking order. The Honble Apex Court in the case of Anil Kumar Vs. Presiding Officer reported in AIR 1985 SC 1121, the report of the enquiry officer must be reasoned one.
35. In the case of State of U.P. Vs. Saroj Kumar Sinha reported in 2010 (2) SCC 772 an employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him.
36. In the case of A. Padmanabhan Vs. U. O. I. reported in 2002 (2) CHN 31, it is observed by the Honble Court that the relevant documents not supplied, nor allowed for inspection even written statement is not made available. There is a violation of principles of natural justice. As indicated by the Honble Apex Court in the case of Ram Chandra Vs. U.O.I reported in 1986 (2) SLR 608 Appellate Authority under obligation to record reason s for its decision.
37. The bare perusal of the entire proceedings available on record shows that the applicant was not allowed to examine the witnesses and also not provided the documents so demanded by the applicant. Not only this, this fact is not considered by the disciplinary authority, appellate authority and the revisional authority.
38. Considering the observations made by the Honble Apex Court as well as on the basis of the facts, O.A. deserves to be allowed, and is accordingly allowed. The impugned dismissal order dated 14.12.1998, appellate order dated 26.7. 1999 and the revisional order dated 24.12.2002 are liable to be quashed and are accordingly quashed. Since the applicant has already superannuated, as such, the applicant is entitled for retiral benefits. It is made clear that the applicant is not entitled for any back wages.
39. With the above observations, O.A. is allowed. No order as to costs.
(Ms. Jayati Chandra) (Navneet Kumar)
Member (A) Member (J)
vidya
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