Central Administrative Tribunal - Kolkata
Arup Das vs D/O India Post on 12 May, 2023
> at "Y : 1 NA ol) . a : 1 O.A. No. 350/1550/2017 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/1550/2017, Fre Sy M.A. No. 350/47/2018 wich e. RY R.A. No. 350/8/2017 fee BMG A | C.P. 350/12/2017 Yes gg ETT" Date of Order: \% | 5] v7) yt Coram: Hon'ble Mr. Manish Garg, Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member In the matter of : Arup Das, aged about 43 years, son of Shri Dinesh Chandra Das, residing at 255/14(394) Netaji Subhas Road, Post Office - Sheoraphuli, District Hooghly, Pin-712223 and working as Public Relations Officer (Postal) under Senior Superintendent of Post Offices, South Hooghly Division, Serampore - 712201. besteenes Applicant -Versus- 1. Union of India, service through the Secretary, Government of India, Ministry Of Communication & Information Technology, Department of Posts, 20, Sanchar Bhawan, Ashoka Road, New Delhi-110001. 2. The Chief Post Master General, West Bengal Circle, Yogayog Bhawan, Kolkata 700012. 3. The Director of Postal Services, South Bengal Region, South Bengal Region, Yogayog Bhawan, Kolkata-700012. 4. The Senior Superintendent of Post Offices, South Hooghly Division, Serampore 712201 District Hooghly. 5. Sri Biplab Kumar Pal, Assistant Superintendent of Post Offices (Headquarter) - Cum - Inquiry Officer, Divisional Office, Bankura, P.O. & District- Bankura, Pin-722101. 6. The Assistant Director of Postal Services (BD) Office of the Chief Post Master General, West Bengal Circle, Kolkata -- 700012 beens Respondents 2 O.A. No. 350/1550/2017 For The Applicant(s): Mr. P. C. Das, Ms. T. Maity; Counsel For The Respondent(s): Mr. S. Paul; Counsel ORDER(@ORAL Per: Mr.Manish Garg, Member (J)
1. Heard Ld. Counsel on both sides.
2. The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) to quash and set aside the impugned charge-sheet memorandum Dated 17.08.2016 being No. G-1/Mail/Exam/Spl.Arrett/Disc. issued by the Senior Superintendent of Post Offices being Annexure- 6 along with the article of charges which is not at all sustainable in terms of the letter issued by the Office of the Chief Post Master General dated 15.04.16 appearing in Annexure A-10 of this O.A.
(b) To quash and set aside the order of the Disciplinary Authority dated 24.07.2017 regarding rejection of the prayer made by the applicant regarding the change of Inquiry Officer on the ground of biasness being Annexure-14 of this O.A.
(c) To quash and set aside the order dated 19.09.2017 being No. PMG(SB)/SF(Vig.)/Bias/Petition/Arup Das issued by the Director of Postal Services by which the appeal preferred by the applicant in respect of change of the Inquiry officer on the ground of biasness as well as non-allowing your applicant to make a cross-examination to most vital witness and non-supplying with the additional documents which as asked for in the enquiry proceedings being Annexure A-16 of this O.A.
(d) to quash and set aside the impugned order of the Director of Postal Services dated 30.10.2017 by which the 2nd blas petition also rejected by the Director of Postal Services regarding the change of Inquiry Officer which was communicated to the Disciplinary Authority to the applicant being Annexure A-23 of this O.A,
(e) To quash and set aside the action of the respondent authority by not changing the Inquiry Officer on the ground of biasness to proceed with the enquiry against the charge-sheet memorandum which is not sustainable in the eyes of law.
(f) To pass and appropriate order directing upon the respondent Authority to drop the charges against the applicant in view of the ZA 3 Q.A. No. 350/1550/2017 letter of the Office of the Chief Post Master General dated 15.04.16 being Annexure A-10 of this O.A.
(g) To declare that the action of the Disciplinary Authority as well as the Appellate Authority is otherwise violation of the rules and law and bad in law and illegal and may be liable to be quashed and set aside and to exonerate the applicant to all the charges with all consequential benefits."
3. At the outset, Ld. Counsel for the applicant would point out that, at the initial stage itself, an interim relief was granted by this Tribunal which is apparent from the record of the proceedings dated 17.11.2017. The said order reads as under:-
"Admit. Issue notice to the respondents returnable within a period of 4 weeks. The respondents are granted 4 weeks time to file reply. Meanwhile, the charge-memorandum issued by the respondents is stayed till the next date of hearing. However, liberty is hereby granted to the respondents to file a petition for vacation/ modification/ cancellation of the interim order passed by this Tribunal before the next date of listing."
It is also noticeable that liberty was granted to the respondents to prefer an M.A. for vacating of the interim relief thus granted.
Accordingly, M.A./47/2018 came to be filed by the respondents.
4. Since the interim relief is in continuance till date, with the consent of the parties, both the M.A. as well as the O.A. has been taken up for final disposal.
5. The brief facts of the matter, as submitted by Ld.. Counsel for the applicant, is that the applicant, who is now working as Public Relations Inspector (Postal), Serampore HO, was suspended on 31.08.2015 after a Speed Post bag containing two sealed packets of examination material of the Teacher's Eligibility Test (TET) to be conducted on 30.08.2015 by the West Bengal Board of Primary Education (WBBPE) went missing on cor 4 O.A. No. 350/1550/2017 27.08.2015. Aggrieved by the said suspension order, the applicant approached this Tribunal by way of filing O.A./011125/2016 which came to be disposed of on 21.09.2016 (Annexure A-3) quashing and setting aside the order of suspension dated 31.08.2015. Thereafter, a chargesheet dated 17.08.2016 (Annexure A-6) was issued against the applicant by the Sr. Superintendent of Post Officer, South Hooghly Division, Serampore. The applicant challenged the said charge memorandum in the present O.A. and the same came to be stayed by this Tribunal vide order dated 17.11.2017 which is quoted herein above.
6. The respondents have also filed a Review Application being R.A./8/2017 with respect to the order of this Tribunal in earlier round of litigation in O.A. 350/1125/2016. On the other hand, upon non-receipt of consequential benefits after quashing of the suspension order by this Tribunal vide order dated 21.09.2016 in the said O.A. 350/1125/2016, the applicant had also filed a Contempt Petition being C.P./12/2017. With respect to the said R.A. and C.P., Ld. Counsel for the parties would draw our attention to the record of proceedings dated 24.03.2022 which reads as under:-
"Heard both.
The issue whether this Tribunal has power to delay in review application, is subjudice in Supreme Court.
Therefore, RA and CPC are adjourned sine die with liberty to mention as and when the issue is decided by the Hon'ble Apex Court.
List the OA on 20.04.2022 for final disposal.
AY?
' Jt WD ' ' .5 O.A. No. 350/1550/2017
Interim order, if any, to continue till the next date of listing."
The final report dated 13.04.2016 (Annexure A-8) with respect to the criminal proceedings qua the applicant reads as under:-
The fact of the case in brief was that on 28.08.2016 as per direction of TET authority, TET materials were sent through buses from Nivedita Bhavan, Sait lake to various destination in Hooghly District. Both the buses were moved in same destination at Hooghly, through same road. Out of the two bus, one having bus no. WB-15A-6219 which was content 154 packets of TET materials. Both the buses were under supervision of postal staff and escorted by police with arms. During the journey of this particular bus, while crossing the Nivedita Toil plaza, and arrived near Maity Para crossing, it was reported that the rear portion right side glass of the said bus was found open and hanging condition, the driver of the stopped vehicle at Maity para, then in there the Postal staff and Police personnel of that bus (WB-15A-6219) left to back trace of .the material which might had been fallen under keeping guard by another arm force and postal official, prior to backtrace they counted the material(packet) contents and found one packet was missing. After thorough check by Postal official and Police personnel from Maity Para to Nivedita Toll Plaza and back, but no such packet could be traced from the spot the Postal official (supervisor) made a phone to his superior Sk Samim Mehmood (ASP) of Serampore Post Office South Div, about the matter.
On received the information Sk Samim Mehmood (ASP) Post Office Serampore South Div lodges a written complaint to the I/C Nischinda PS about loss of TET Exam material from bus No. WB-15A-6219. On the basis of the complaint a case has been registered, vide Nuschinda PS case No. 190/15 dated 28.08.2015 under section 379 IPC against unknown.
After that the said bus with content TET material left from Nivedita Bhavan Salt Lake under supervision of Postal authority and guarded by Policeman with arms. On arrival at Nivedita Bhavan, the material further checked there and with one short packet, the material further left for Hooghly Division as per direction of the Nivedita Bhavan.
On getting such information, Prof. Dr. Kalyanmoy Ganguly, Administrator, W.B.B.S.E lodges a written complaint to I/C Bidhannagar (E) PS against one (1) Arup Das (I) Arup Mukherjee, both of Postal staff and (3) Chinmoy Mondal and (4) Himadri Sekhar Biswas both are police personnel, about their negligence and dereliction of their duty. On the basis, a case at Bidhannagar( E } PS case No. 93/15 dated 29.08.2015 under section 409/34 IPC stand.
As per direction of CID, supervise the investigation of both the cases observed & control. During investigation of both the cases it has came in light that the fact in issue are from the loss of TET exam material & to search out the material. Hence, the first case, at Nischinda PS case No. 190/15 dated 28.08.2015 u/s 379 IPC in course of investigation all shorts of steps taken to develop of the case, even the responsibility verified, case was also verified but no such lacuna could be achieved. Further examined the vehicle which was crossed the Nivedita Toll Plaza on the date of 28.08.2015 scrutinize the vehicles no. and called oN) 6 O.A. No. 350/1550/2017 the owner individually, on this effect. One TATA SUMO owner came in front and given his eye witness statement. On pursuance of the statement a lorry was traced out the driver of the lorry & khalashi stated that they had carried a white colour bag contained paper and that was dropped at 51, Hyde Road. Identified that area by him and detail searched made with the help of Taratala PS. Kolkata but that bag could not traced in further. .
Hence, in this case, as the investigation of the both cases are same in P.O. and same fact in issue, the C.D & details documents are sre same for both the case, therefore the copy of C.D & documents of Nischinda P.s. case No. 190/15 is tagged with Bidhannagar(E) PS Case No. 93/ 15(with certified copy). In both cases no such lack of supervision and dereliction of duty could not be found against the FIR named persons. Hence submitted final report as Mistake of Fact, vide Bidhannagar{ E } PS, F.R(M.F) No. 06/16 dated 13.04.2016 submitted. Inform the complainant the result of the case."
It is also noted that on 15.07.2016, the competent Court of Ld. A.C.J.M. was pleased to pass the following order in the criminal case with respect to the aforesaid chargesheet/final report dated 13.04.2016:-
"Received SR of Notice order causing Served from PS. D/Complt did not appear before this Court today and did not submit any objection regard this FRT. So FRT is accepted. Disposal CD Send to P.S."
It can also be seen that an Office Communication dated 18.04.2016 was issued by one Sri S. K. Ghorai, ADPS (BD) which was addressed to Dr. R. C. Bagchi wherein the following has been stated:-
"Despite due care, circumspection and diligence applied by or on behalf of the Department of Posts to accomplish scheduled delivery thereof, at around 11,45 hrs. on the approach road beyond East of Second Vivekananda Bridgo to the destination, after a bumpy jerk when the said vehicle was moving towards the Toll plaza on further West thereof, it was informed by a helper of a Truck overtaking from behind, that one of the rear glass panes of the said vehicle has given away as a result of the said jerk. On primary stock taking, at the very spot, it was revealed that there was shortage of one of the said 154 sealed bags. vehicle returned to the extension counter of Kankurgachi Business Office, The said 153 bags were kept overnight, in a room of Nivedita Bhawan under lock & key on 27.08.2015. On the very next day, the said 153 bags were delivered to the addressee concerned of South Hooghly district, through AK) 7 O.A. No. 350/1550/2017 departmental mail van with two departmental officers, along with police escort."
Thereafter, in the present matter, a chargesheet dated 17.08.2016 (Annexure A-6) was issued against the applicant by the Sr. Superintendent of Post Officer, South Hooghly Division, Serampore as noted herein above.
7. In the aforesaid backdrop, Ld. Counsel for the applicant would argue that the charge memorandum in question is without any basis and application of mind inasmuch as, on the same set of facts and circumstances, the criminal proceedings have been terminated/closed by the competent Court of Law and no appeal has been preferred either by the State or by. the Postal Department.
7.1. Ld. Counsel would further rely on the Office Communication dated 18.04.2016 (supra) wherein the stand of the Postal Department itself vindicated the applicant as the same has inter alia contended that there was no error on part of the applicant and that it was a mistake of fact only, and, therefore, the present charge memorandum is not tenable and hence should be set aside.
7.2. Ld. Counsel would also aver that the said charge memorandum is a clear-cut case of bias against the applicant as highlighted in his detailed representation which has not been reiterated herein for the sake of dignity. Another ground urged by Ld. Counsel for the applicant is that the copies of the RUDs were not supplied to him.
CY?
8 O.A. No. 350/1550/20177.3. It is also argued that one Sri Arup Mukherjee, who was also part of the team working under the applicant herein, has been showed under the list of witnesses in the charge memorandum and a joint inquiry ought to have been carried out. Alternatively, it has also been noticed that, in the case of Sri Arup Mukherjee, Sri Arup Das, i.e. the applicant herein, has been shown under the list of witnesses. It is not disputed that the present applicant was not summoned as a witness, and, there is nothing on record to show whether his testimony was recorded in the departmental proceedings initiated against Sri Arup Mukherjee.
7.4. Further, Ld. Counsel would also argue that the proceedings initiated is almost after a gap of 11 months from the date of closure report filed by investigating agency and the same is predetermined and afterthought, as also, without any substance.
7.5. Ld. Counsel for the applicant, in support of his contentions, would also refer to the decisions rendered by the Hon'ble Apex Court in the case of State of Punjab Vs. V. K. Khanna as well as that in the matter of Oryx Fisheries Pvt. Ltd vs Union Of India 8& Ors. Ld. Counsel would also argue that, even in identical cases where the proceedings are common, the employee has been acquitted, and, therefore, no useful purpose will be served in conducting the inquiry against the applicant herein.
mon?
9 O.A. No. 350/1550/20177.6. Lastly, Ld. Counsel would contend that the following witnesses also appeared during the course of the investigation in the criminal trial on behalf of the respondent authorities:-
"1) Sk. Samim Mehmud, ASP(HQ), South HooghlyDivision, Serampore
2) Sri Arup Das, PRI, Serampore HO
3) Sri Arup Mukherjee, overseer(Mails), attached to ASP, Serampore Sub-D
4) Sri Swapan Bose, Driver(WB-15A-6219), Vill-Chaitanpara Goderbibi, PS-
Dankuni
5) Sri Ujjal Kundu, of Madhupur, PS-Arambagh, Hooghly
6) Sri Panchu Malik, S/O Lt.Sudhir Malik of 46 P.G Sarani, Serampore
7) Sri Ashim Halder S/O Sri Gobra Halder of 46 P.G Sarani, Serampore"
8. Per Contra, Ld. Counsel for the respondent would urge that Sri Arup Mukherjee was penalized and appropriate punishment was awarded in the departmental proceedings even though the same is pertinent to the facts of the present case and since Sri Mukherjee has not preferred any appeal against the same and has accepted the penalty, therefore, the doctrine of negative equality cannot be applied to the facts of the present case.
8.1. Ld. Counsel would further oppose the grant of relief in the present O.A. on the following grounds:-
(I) That, the present O.A. is premature as the disciplinary proceedings has only just been initiated.
(II) Ld. Counsel has laid emphasis on the fact that the Tribunal as well as the Hon'ble High Court has limited scope of jurisdiction with respect to quashing of the chargesheet at the initial stage.
os) 10 O.A. No. 350/1550/2017 (III) Ld. Counsel would also contend that even though Mr. Mukherjee has already been punished and he did not prefer any appeal, and, since the present chargesheet and that on the basis of which Mr. Arup Mukherjee was penalized in the departmental proceedings are the same, therefore, the departmental proceedings with respect to the present applicant also needs to be taken to its logical conclusion.
(IV) Ld. Counsel would argue that it is to be presumed that the conduct of the applicant is also a stigma on the postal department and hence the matter is ought to be put to trial.
(V) Ld. Counsel would submit that there was no decision to initiate joint inquiry and that it is the sole discretion of the department whether it wants to pursue the inquiry individually or jointly. Ld. Counsel would contend that in case of two sets of inquiries involving similar incidents, participation in the same is a must and the same is not a matter of choice for the delinquent.
(VI) That, since there was a specific direction of this Tribunal by virtue of the order dated 17.11.2017 giving liberty to the respondents to file an M.A. for vacating of the interim order, the same was filed and was kept pending for one or the other reason including the COVID-19 period, ai SoZ, 11 O.A. No. 350/1550/2017 therefore, he would contend that the memorandum of charges is not liable to be quashed.
8.2. Ld. Counsel for the respondents would also draw our attention to his written notes of arguments wherein he has referred to the decisions rendered by the Hon'ble Apex Court in the matter of State of Uttar Pradesh Vs. Rajit Singh (C.A. Nos. 2049-2050/2022) and that in the matter of State of Orissa & Anr. Vs. Sangram Keshari Misra & Anr. (C.A. Nos. 8509- 8510/2003), as well as, Union of India & Anr. Vs. Kunisetty Satyanarayana (C.A. No. 5145/2006). Copies of the judgments relied upon have been placed on record.
9. Heard Ld. Counsel on both sides. Perused the materials on record. No other points or contentions have been made on behalf of the parties.
10. Analysis:-
Upon examining the issue at hand and also the facts of the case, we find that it is not disputed that the law of challenge to the charge memorandum at the initial stage and the scope thereto is very limited in as much as: quashing of the chargesheet prior to conducting of the inquiry on the ground that the facts stated therein and the charges levelled are erroneous is concerned. It is also a settled law, as enunciated in by the Hon'ble Apex Court in the matter of The Deputy Inspector General of Police Vs. K. S. Swaminathan that, "....if the charge memo is totally vague and does not disclose any misconduct OY?12 O.A. No. 350/1550/2017
for which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge sheet supplied are required to be looked into by the 'Court or the Tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct."
In the case of Qamarali Wahid Ali vs State of Madhya Pradesh reported in AIR 1959 MP 46, the following observations were made:-
"In the present case the very elementary principle of natural justice had been violated, namely, that as per verdict of a Court of law, the appellant had been held innocent of the crime, while the departmental authority purported to sit in judgment over the law Court, as if it were an appellate authority. If this were permitted, the very foundation of the administration of justice would tumble down. It is true that this Court cannot sit in judgment over the departmental authority as an appellate Court. But it is equally true that a departmental authority cannot be permitted to sit in judgment over a law Court, as if it were an appellate authority.
Therefore the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just a nullity. They can as well be ignored by this Court. The conclusion of guilt could not be arrived at in the departmental enquiry, as no such enquiry could be held. If no conclusion of guilt could be arrived at, the appellant could not be called upon to show cause against the action proposed to be taken on the basis of the conclusion arrived at in the departmental enquiry. It is thus that the operation of Article 311(2)is affected. The said Article cannot be interpreted in a manner so as to reduce it to a technical provision to be nominally observed by the mere issuance of a show cause notice.
In my opinion, their Lordships of the Privy Council, as also their Lordships of the Supreme Court have clearly laid down that the constitutional guarantee is a substantial one, which ought to be fully complied with, before the extreme penalty of dismissal or removal or the drastic penalty of reduction in rank is visited upon a Government servant The present case would be governed by the principles indicated in the case of M.A. Waheed v. The State of M. P. (cited supra), which I respectfully follow."
Further, in the case of State of Punjab Vs. V. K. Khanna & Ors reported in AIR 2001 SC 343, it was held as under:-
ONY) ™~ 13 O.A. No. 350/1550/2017 While it is true that justifiability of charges at stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide motive involved in the matter of issue of a charge- sheet or the concerned authority is so bl- ased that the inquiry would be a mere farci- cal show and the conclusions are weil known then and in that event law courts are other-
wise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due proc- ess of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion, In the matter of Kusheshwar Dubey Vs. M/s Bharat Coking Coal Ltd & Ors. reported in AIR1988 SC 2118, the following observations were made:-
"While there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order f of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. It is neither possible nor advisable to evolve a hard and fast, straight- jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. In the instant case, the criminal action and the disciplinary proceedings were grounded upon the same set of facts and therefore the disciplinary proceedings could be stayed, in the facts and circumstances. Decision of Patna High Court Reversed. Case law discussed"
In the present facts and circumstances, during the course of hearing, attention was drawn to the fact that one of the delinquent employees Mr. Arup Mukherjee against whom the charges were drawn was awarded with an order of punishment.
The same reads as under:-
'I, SrtS. G. Girt, Sr. Supdt Of Post Offices, South Hooghly Division, Serampore in exercise of power conferred upon me under Rule 12 of CCS (CCA) Rules, 1965 do hereby punish Sri Arup Mukherjee, OS (Mail)-If Serampore Sub Division with "reduction of pay to a lower stage by three stages from Rs 36400/- (12 Cell} of level 4 to Rs 33300/- (10th Cell) of level 4 In Pay Matrix for a period of three years with immediate effect, with further direction that the official will not earn increments of pay during the period of such reduction 14 O.A. No. 350/1550/2017 and on expiry of the such period the reduction will have the effect of postponing the future increments of his pay."
It is noted that in the said inquiry proceedings that Sri Arup Das, ie. the applicant herein, was also shown as one of the witnesses. The penalty charges were imposed on the basis the disagreement note. However, the applicant did not challenge the proceedings or the punishment awarded to him either in appeal or before any other forum and thus the same became final and binding upon him. It is noted that the fact that Sri Arup Mukherjee did not prefer any appeal is in itself not sufficient to come to the conclusion that the inquiry proceedings must be proceeded with against the present applicant. This principle is also fortified by the fact of the applicability of the Doctrine of Negative Equality. The said doctrine is that 'there is no negative equality'. That the benefits conferred without any legal basis cannot be relied upon as a principle of parity as has been held in various decisions of the Hon'ble Apex Court. Therefore, the converse is also true that, in the matter of disciplinary proceedings, merely because one of the delinquents, i.e. Sri Arup Mukherjee, has been penalized pursuant to a separate departmental proceeding under the same set of facts and circumstances, whereafter, he did not prefer any appeal or revision nor did he challenge the same, it cannot be contended that the disciplinary proceedings must also be proceeded with qua the applicant herein solely on the ground of so-called parity with the fate of Sri Arup Mukherjee.
AN 15 O.A. No. 350/1550/2017 Admittedly, the following facts emerge in this matter:-
(1) That the incident occurred on 27.08.2015.
(1) The criminal proceedings culminated into filing of closure report wherein it was highlighted as under:-
"Hence, in this case, as the investigation of the both cases are same in P.O. and same fact in issue, the C.D & details documents are sre same for both the case, therefore the copy of C.D & documents of Nischinda P.s. case No. 190/15 is tagged with Bidhannagar(E) PS Case No. 93/15(with certified copy). In both cases no such lack of supervision and dereliction of duty could not be found against the FIR named persons. Hence submitted final report as Mistake of Fact, vide Bidhannagar{ E } PS, F.R(M.F) No. 06/16 dated 13.04.2016 submitted. Inform the complainant the result of the case."
(lll) The departmental inquiry was initiated against the applicant after a period of 11 months.
(IV) Admittedly, Sri Arup Mukherjee, who was also involved in the incident in question, has also been shown as one of the witnesses in the disciplinary proceedings against the applicant herein.
(V) No explanation is coming forth from the respondents as to why, when on the same set of circumstances the disciplinary proceedings were initiated against Mr. Mukherjee, a joint inquiry was not held against the present applicant. No reasoning has been given for the same.
(VI) We also find that vide Court order dated 15.07.2016 the closure report was accepted by the competent Court of Jurisdiction. We also note the fact that, admittedly, vide letter dated 18.04.2016, the following has been recorded:-
es tid ~~ \ a2) 16 . O.A. No. 350/1550/2017 "Despite due care, circumspection and diligence applied by or on behalf of the Department of Posts to accomplish scheduled delivery thereof, at around 11,45 hrs. on the approach road beyond East of Second Vivekananda Bridgo to the destination, after a bumpy jerk when the said vehicle was moving towards the Toll plaza on further West thereof, it was informed by a helper of a Truck overtaking from behind, that one of the rear glass panes of the said vehicle has given away as a result of the said jerk. On primary stock taking, at the very spot, it was revealed that there was shortage of one of the said 154 sealed bags vehicle returned to the extension counter of Kankurgachi Business Office, The said 153 bags were kept overnight, in a room of Nivedita Bhawan under lock & key on 27.08.2015. On the very next day, the said 153 bags were delivered to the addressee concerned of South Hooghly. district, through departmental mail van with two departmental officers, along with police escort.
It appears that as a fall out of the said incidence which was beyond human control, the WBBPE postponed the TET schedule holding the Postal Department liable for consequential loss and damages suffered. However, the WBBPE does not hold the right to raise any claim for compensation of the consequences arising from the accident without payment of the bills raised by the Department of Peats On the contrary, WBBPE has claimed for compensation against the cost incurred for re-scheduling of the TET examination & loss of image of WBBPE in the eyes of the people at large.
Despite due diligence applied in the process of accomplishment of the purposes of delivery of the said insured Postal articles, the attempt of the WBBPE purporting to shift the burden of the unwarranted consequences of the said untoward incidence on the Postal Department for damages caused to 2(two) Speed Post Postal articles owing to an accident occurring beyond human control is not accepted by the Department of Posts.
On the contrary the widespread media exposure generating furore arising from the postponement of the TET schedule have simultaneously tarnished the image of the Department of Posts. As such there is no justification to hold the Department of Posts responsible for the incidence occurred from an accident under Police escort in the course of accomplishment of the purpose thereof.
I, therefore, would request you to kindly acknowledge the bills already submitted to you by the SSPOS, East Kolkata Division, to the tune of Rs-58,34,366/- for booking and dispatch of WBBPE Speed Post articles, and make payment of the same, at an early date."
(VII) The above stand adopted by the Postal Department was ignored by the Disciplinary Authority while 1 drawing the chargesheet against the present ONO 0 17 0.A. No. 350/1550/2017 applicant. On the same set of circumstances, the criminal proceedings initiated against the applicant was came to be dropped, and, hence, no useful purpose would be served in proceeding with the said departmental inquiry when the respondents have themselves acknowledged that the incident in question was a consequence of unavoidable error which was "beyond human control'.
(VIII) It is also noted that as many as 7 witnesses had Ki rth WD.
participated in the investigation process. Their names are reproduced as under:-
"1) Sk. Samim Mehmud, ASP(HQ), South HooghlyDivision, Serampore
2) Sri Arup Das, PRI, Serampore HO
3) Sri Arup Mukherjee, overseer(Mails), attached to ASP , Serampore Sub-D
4) Sri Swapan Bose, Driver(WB-15A-6219}, Vill- "'Chaitanpara Goderbibi, PS-Dankuni
3) Sri Ujjal Kundu, of Madhupur, PS-Arambagh, Hooghly
6) Sri Panchu Malik, S/O Lt.Sudhir Malik of 46 P.G Sarani, Serampore
7) Sri Ashim Halder S/O Sri Gobra Halder of 46 P.G Sarani, Serampore"
(IX) It is seen from the records that, as per Annexure-IV of the memorandum of charges, the list of witnesses who are mainly those who participated in the inquiry are one and the same except Sri Sandip Mandal, Sri Biswajit Mardania, Sri Jhantu Raut, Sri Atanu Basu, Sri Kausik Banerjee, Sri Anup Giri and Sri S. Ghorai.
a AY?
. 18 O.A. No. 350/1550/2017 At this stage, we draw reference to the decision rendered by the Hon'ble Apex Court in Balbir Chand Vs. FCI Ltd reported in AIR 1997 SC 2229 wherein at para 4 it has been held as under:-
"It is next contended that a circular was issued by the Department on May 13, 1980 regarding splitting up of an enquiry and while para 2 indicated the procedure to be followed, para 3 (ii) indicates as to when the split of the case could be ordered and sub-para (iii) envisages that it would be advisable to issue one common charge-sheet against all the charged officials. It is further envisaged in the Department's Circular thus:
"Whenever common proceedings are initiated against two or more than two FCI employees, such common proceedings have to be ordered by the Disciplinary authority competent to impose the major penalty of dismissal upon the senior most FCI employee involved in that case. This naturally means that the inquiring authority would submit his report of inquiry in such common proceedings to that particular disciplinary authority, for final orders in the case- thereby depriving the Junior officials involved of one or more avenues of appeals as also petition for review.
In case of such common proceedings; if the inquiry report or a copy thereof is forwarded to the lower disciplinary Authorities, competent to impose penalties upon such Junior officials, it has in several a instances resulted in imposition of varying punishments by different authorities to different individuals on the same charges. This position has been carefully examined with reference to the various instructions issued by the Government of India in this regard and it has been decided to follow the guidelines mentioned hereunder:
i) There has been a apprehension as co the actual meaning of common proceedings and joint proceedings. It is hereby clarified that the terms 'common proceedings' and 'joint proceedings' are synonymous and in fact there is no difference between the two.
ti} Whenever two or more employees are involved in a particular disciplinary proceedings and when one charged official cites the other as a witness in his case, the proceedings cannot be conducted as common/joint proceedings. In such contingencies, the general principles laid down by the courts is that the charged official in cross cases should be tried separately and that both the inquires should he held simultaneously, so as to avoid conflicting findings and different appraisal of the same evidence, by different inquiring authorities.
tii) While initiating common proceedings it would be remembered that such proceedings should be ordered only as a last resort and in case such proceedings are ordered, the charge should be also common against all the charged officials involved. In other words, it would be advisable to issue one common charge-sheet against all the charged officials. the concerned Disciplinary Authority should examine the desirability of conducting a common inquiry before taking a decision in this regard so that the issue of separate charge- sheets could be avoided. After the enquiry is over in common proceedings, the AAT 19 O.A. No. 350/1550/2017 concerned disciplinary authority should take a decision against the charged employees of considering the gravity of the misconduct by such of the concerned officials. However, cases of all the officials should be disposed off by the authority ordering the common proceedings to ensure that same standards are applied in case of all the officials concerned."
11. Conclusion:-
We have examined the facts of the present case as to whether the matter should be remanded to the competent authority for reconsideration and re-examination of the case of the applicant afresh in the light of the closure report as well as the order of the competent Court of Ld. A.C.J.M. dated 15.07.2016 (supra) wherein the said report was accepted and the criminal proceedings against the applicant was dropped. It is also pertinent to mention that even though as many as 7 witnesses had participated in the proceedings on behalf of the respondents, nothing adversarial came out of it nor was any prima facie evidence brought to the fore that would implicate the applicant herein. We have also observed herein above that vide letter dated 18.04.2016 (supra), the Postal Department, in its stand therein, has inter alia vindicated the applicant of guilt with respect to the incident in question.
12. In view of the above, the present charge memorandum dated 17.08.2016 is kept in abeyance and the matter is remitted back to the competent authority, i.e. the Disciplinary Authority, to pass appropriate detailed and speaking order as to whether the proceedings should be allowed to be continued or the charge memorandum is to be rescinded or recalled in the light of the facts and circumstances discussed herein above.
ARO 20 , O.A. No. 350/1550/2017 Further, it is made clear that since there is an interim order in operation qua the chargesheet, therefore, till appropriate order is passed in terms of the above, the Disciplinary Proceedings shall be kept in abeyance. In the event that the respondent authorities pass an appropriate order in favour of the applicant, an order qua the treatment of suspension period shall also be passed. It is expected that the said competent authority shall pass the necessary orders, as directed herein, preferably within a period of 8 weeks from the date of receipt of a copy of this order.
Accordingly, this O.A. stands disposed of. No costs. M.A.s, if any, also stand disposed of. No Costs.
13. In the light of the aforesaid, by virtue of this common order, R.A./8/2017 has become infructuous and hence the same is disposed of accordingly. No costs.
Nothing survives in C.P./12/2017 filed by the applicant herein and, accordingly, the same is dropped. Notices issued, if any, stand discharged.
(Anindo Majumdar) (Manish Garg) Member (A) Member (J) UJ