Rajasthan High Court - Jodhpur
Union Of India & Ors vs Om Prakash on 2 March, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
D.B.Civil Writ Petition No.1710/2012
Union of India & Others v. Om Prakash
1
D. B. CIVIL WRIT PETITION NO.1710/2012
UNION OF INDIA & OTHERS.
V.
OM PRAKASH
DATE OF ORDER: 2nd March 2012
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE C. M. TOTLA
Mr.V.K.Mathur, for the petitioners.
Mr.Devendra Singh Deo, for the caveator-respondent.
By the Court:
The learned counsel for the respondent having appeared in caveat and in view of the short point involved, the matter has been considered finally at this stage itself.
This writ petition is directed against the order dated 26.11.2011 as passed in Original Application No.183/2010 whereby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur has set aside an order dated 06.11.2009 passed by the Postmaster General, Rajasthan Western Region, Jodhpur in his capacity as the Revisional Authority under Rule 19 of the Gramin Dak Sevak (Conduct & Employment) Rules, 2001 (hereinafter referred to as 'the Rules of 2001').
Put in brief, the relevant background aspects of the matter are that the respondent-employee, who had been working on the post of D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 2 Branch Postmaster from 25.01.1982 and posted at Sub Post Office Banda, Tehsil Anoopgarh, District Sri Ganganagar, was served a charge-sheet dated 09.08.2006 on the allegations : (i) that on 03.06.2004, he retained the Government money to the tune of Rs.1245/- and deposited the same voluntarily on 04.06.2004; (ii) that an amount of Rs.455.25 was found short during the inspection on 18.06.2004 and this amount was deposited by him voluntarily on 01.07.2004; and (iii) that he remained unauthorizedly absent from 15.06.2004 to 23.06.2004. It was thus, alleged that the respondent- employee failed to maintain absolute integrity and devotion to duty and violated the terms of the Rules of 2001. The Disciplinary Authority considered the evidence on record and found proved the charges against the respondent; and, with reference to rule 9 of the Rules of 2001, imposed the penalty of "removal from employment, which shall not be a disqualification for future employment."
Aggrieved by the aforesaid order dated 09.08.2006, the employee preferred an appeal that was considered by the Appellate Authority in its order dated 09.06.2008. The Appellate Authority, though agreed with the Disciplinary Authority that the charges were established but, was of opinion that the penalty as imposed was disproportionate to the errors and mistake of the employee; and, thus, altered the penalty to that of stoppage of one increment in the D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 3 Time Related Contiunity Allowance ('T.R.C.A.') for three years. The Appellate Authority observed and ordered as under :-
"आर प-पत, दण दश, अप ल एव अन सबध त दसत वज क स व न पवक अवल कन करन क पश त " म$ इस नत ज पर पह'(च ह( कक दपप कमच र- द र द य तव क यनवहन म1 अयन ममत ए( व भल1 क4 गई थ , जजसक मलए कमच र- दण क प त थ परनत' दद ग दण क4 गई भल व गलयत क4 अपक बह'त ज द ह< । अत: म$, पम क'म र ततप ठA, यनदशक क सव ए, र जसथ न पजशम कत, ज प'र, ग म ण क सवक (आचरण व यन जन) यन म वल-, 2001 क यन म-18 क तहत मझ ' म1 यनदहत अप ल- प ध क र- क4 शकF क प ग करत ह'ए, अ कक कघर, श गग नगर क ज पन सख एफ 6-2/04-05 ददन क 9-8-2006 क तहत दद गए सव स यनषक सन क दण दश क सश ध त करत ह'ए ट-.आर.स .ए. म1 अगल- एक वतनवपN O त न वरQ क मलए र कन क आदश दत ह( और अप ल ददन क शन क तदन'स र यनसत रण करत ह( ।"
It appears that pursuant to the order aforesaid, the respondent-employee was reinstated in service and the penalty was also operated upon. However, the Revisional Authority proceeded to issue a memo dated 03.09.2009, seeking to interfere with the order as passed by the Appellate Authority, essentially on the ground that the penalty as imposed by the Appellate Authority was not the one provided under rule 9 of the Rules of 2001. The respondent- employee submitted a reply to the memo so issued, and prayed for leniency. The Revisional Authority, however, was not impressed with the submissions of the employee and, while setting aside the order as passed by the Appellate Authority, proceeded to restore the penalty imposed by the Disciplinary Authority, i.e., of removal from employment. The Revisional Authority observed and directed as D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 4 under :-
"अत: म$ क'लब र मसह, प सटम सटर जनरल, र जसथ न पजशम कत, ज प'र ग म ण क सवक (आचरण एव र जग र) यन म वल- 2001 क यन म 19 क तहत म'झ म1 यनदहत शकF क प ग करत ह'ए श ओम पक श ग म ण क सवक, श ख कप ल, ब ण (लख न अनप ' गढ उप कघर) क यनदशक, क सव ए, र जसथ न पजशम कत, ज प'र द र ज पन सख एसट-ए/ बX .आर/44-स /1/08 ददन क 9.6.08 द र प ररत दण दश क अप सत (Set aside) करत ह तथ अ कक कघर, श गग नगर मणZल द र उनक ज पन सख एफ 6-2/04-05 ददन क 09.08.06 द र प ररत सव स यनषक सन (Removal from service) क दण दश क पन ' सथ पपत (restore) करत ह"
The employee questioned the order so passed by the Revisional Authority in the Original Application aforesaid before the Tribunal. The Tribunal observed that the penalty as imposed by the Appellate Authority had already been given effect to and, in the given set of circumstances, suo motu powers of revision could not have been exercised by Revisional Authority. The Tribunal proceeded to set side the order passed by the Revisional Authority and ordered reinstatement of the respondent-employee in service, but without back wages. The Tribunal observed and ordered as under :-
"4. It is seen that the only reason why Annexure- A/4, dated 03.09.2009 was issued suo moto by the Post Master General Rajasthan West Region, Jodhpur, as the Revisional Authority, was that the punishment of stoppage of one increment in TRCA for three years was not one of the punishments indicated in Rule 9 of the Postal Department Gramin Dak Sewak (Employment & Conduct) Rules, 2001, and therefore, he had found the Appellate Authority's orders to be unworthy and liable to be set aside. However, in between the date of the order of the Appellate Authority, and the notice of the Revisional Authority dated 03.09.2009, the punishment D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 5 of stoppage of his TRCA increment, though it may have been wrongly imposed, appears to have already visited the applicant, and the respondents have not stated that the orders of the Appellate Authority were not given effect to.
5. Therefore, once a punishment imposed upon the applicant has already been given effect to, the Revisional Authority could not have issued the suo moto notice after fifteen months for enhancement of the punishment, and cancellation of the punishment already imposed, and given effect to in respect of the applicant, and could have proceeded ahead to pass the impugned order dated 06.11.2009 (Annexure-A/1), since this amounts to double jeopardy. We are also conscious that in a slightly parallel case, in State of Bihar vs. Sheo Narayan Singh : AIR 1997 SC 711 : 1997 (2) JT 10 : 1997 (3) SCC 46, the Hon'ble Apex Court had held that suo-moto powers of revision cannot be exercised when once an officer had been exonerated by the Appellate Authority, by setting aside the orders of the Disciplinary Authority.
6. Therefore, the impugned order dated 06.11.2009 (Annexure-A/1) is set aside, and since, in the facts and circumstances of the case, the quantum of punishment imposed by the Appellate Authority appears to be reasonable, even though the Rule indicated by him appears to have been wrong or incorrect rule under which the punishment was imposed, the order of the Appellate Authority is upheld as to its effect on the service of the applicant. The consequences of Annexure-A/1 being set aside would be made available to the applicant, for being reinstated in service, but without back wages for the period when the respondents did not avail of his services, within two months from the date of receipt of a copy of this order by the respondent authorities."
Assailing the order aforesaid, the learned counsel for the petitioners strenuously argued that the Revisional Authority had not committed any error or illegality in passing the order dated 06.11.2009, because the order as passed by the Appellate Authority was contrary to the Rules of 2001 and could not have been sustained. Learned counsel submitted that in the first place, there was no justification for the Appellate Authority to consider D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 6 substitution of any lesser penalty on the employee, particularly when the matter related to embezzlement and absence from duty; and in any case, the learned counsel contended, the Appellate Authority could not have imposed a kind of penalty which is not envisaged in the Rules. The learned counsel has placed before us for perusal a copy of the Rules of 2001 and has particularly referred to rule 9 thereof.
Per contra, the learned counsel appearing for the respondent in caveat has duly supported the order impugned and submitted that the Tribunal has taken a comprehensive view of the matter and has rightly held that the penalty, that has already been given effect to, called for no interference by the Revisional Authority. The learned counsel submitted that the respondent-employee has otherwise rendered unblemished services since the year 1982; and his removal from employment was not justified on some minor discrepancies or short period of absence because of personal family problems of ailment of his father; and hence, the order as passed by the Appellate Authority remains justified.
We have given our anxious consideration to the rival submissions and have examined the material that has been placed on record and that has been placed for perusal during the course of submissions.
D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 7 After having taken into comprehension all the facts and circumstances of the case and the provisions as contained in the Rules of 2001, at the first blush, we were of the tentative opinion that the Revisional Authority, if found the order of the Appellate Authority on the quantum of punishment not in conformity with the Rules of 2001, ought to have remanded the matter to the Appellate Authority for decision afresh and such a course ought to have been ordered by the Tribunal but then, in the totality of circumstances, we consider it proper to settle the matter at this stage itself, instead of driving the parties to another round of litigation.
It remains undeniable and indisputable that the order as passed by the Appellate Authority on the quantum of punishment suffered from a fundamental shortcoming that the Appellate Authority proceeded to impose such a penalty which is not even provided in the Rules of 2001. Though we do not agree with the learned counsel for the petitioners that the Appellate Authority could not have interfered on the quantum of punishment because in the regular appeal preferred in accordance with the Rules of 2001, the Appellate Authority had all the powers, per rule 18 thereof, to consider the matter on facts as well as law and so also on the quantum of punishment; and hence, the Appellate Authority, even when endorsed the views of the Disciplinary Authority on the finding D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 8 on charges, could have considered the adequacy and proportion of the penalty with reference to the facts and circumstances of the case and could have taken any mitigating factor into account. However, the Appellate Authority appears to have lost sight of the requirement of the Rules of 2001 and, while modifying, proceeded to impose a penalty of stoppage of one increment on T.R.C.A. for a period of three years without appreciating that such a penalty was not envisaged by the Rules ibid. To this extent, the Revisional Authority cannot be faulted in taking up suo motu exercise of revisional jurisdiction. But then, the Revisional Authority took an extreme view of the matter on the other side and, while finding a flaw in appellate order, directly proceeded to restore the order of the Disciplinary Authority without pausing to consider if any other penalty, as envisaged by the Rules of 2001, be imposed. As noticed, the proper course for the Revisional Authority would have been to remand the matter to the Appellate Authority. Be that as it may, to the extent the Revisional Authority has assumed the order of Disciplinary Authority to be the final word on the quantum of penalty, the same cannot be approved; and has rightly not been approved by the Tribunal. However, and proceeding further, we find that the other observations as made and the proposition as adopted by the Tribunal suffer from infirmities and shortcomings. The reference as D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 9 made by the Tribunal to the decision of the Hon'ble Apex Court in Sheo Narayan Singh's case [(1997) 3 SCC 46] does not appear apposite to the case at hands; and even in that regard, the observations of the Tribunal are not in conformity with the ratio of the decision of the Hon'ble Apex Court. Then, the Tribunal has proceeded to endorse the order of the Appellate Authority only on the reason that the penalty had allegedly been given effect to. In our opinion, the penalty not at all envisaged by the Rules of 2001 could not have been perpetuated.
In view of what has been discussed above, we are unable to approve the order as passed by the Tribunal and so also the order as passed by the Revisional Authority. In this view of the matter and in the given circumstances, we are of opinion that it shall be in the fitness of things and in the interest of justice that the appropriate penalty be ordered in this matter herein itself.
In a comprehension of the facts and circumstances, it is noticed that in relation to the first charge about retention of amount of Rs.1245/-, the allegation had been that the respondent-employee retained this amount on 03.06.2004 and deposited the same voluntarily on 04.06.2004. It is very difficult to impute an otherwise intention when the employee is said to have retained the amount for a single day and deposited the same next day. In the other charge, D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 10 relating to an amount of Rs.455.25, the deficiency is said to have been detected on 18.06.2004 but then, the third charge had been that the employee was unauthorizedly absent from 15.06.2004 to 23.06.2004. The respondent-employee has pointed out that he was required to remain absent from 15.06.2004 to 23.06.2004 because of ailment of his father. When the respondent-employee was not even available on 18.06.2004, on the allegations of deficiency, an intention of guilt cannot ipso facto be imputed. The relevant background aspect of the matter remains that the applicant- employee had otherwise been working with the department since the year 1982 and it is not the case that there had been any blemish earlier in his career.
We have, in the circumstances of the case, pondered over the question as to what penalty ought to be imposed even if the charges are held proved against the respondent. Rule 9 of the Rules of 2001, providing for the nature of penalties, reads as under :-
"9. Nature of penalties :- The following penalties may for good and sufficient reasons and as hereinafter provided be imposed on a Sevak by the appointing authority namely :-
(i) Censure;
(ii) Debarring of a Sevak from appearing in the recruitment examination for the post of postman and/or from being considered for recruitment as Postal Asstts/Sorting Asstts. for a period of one year or two yeas or for a period not exceeding three years;
(iii) Debarring of a Sevak from being considered for recruitment to Group 'D' for a period not exceeding three years;
(iv) Recovery from Time Related Continuity Allowance D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 11 of the whole part of any pecuniary loss caused to the Government by negligence or breach of orders;
(v) Removal from employment which shall not be a disqualification for future employment;
(vi) Dismissal from employment which shall ordinarily be a disqualification for future employment."
The punishment of removal from employment appears too harsh in the matter. The lesser penalty, other than removal, is of recovery from T.R.C.A. of whole part of any pecuniary loss caused to the Government by negligence or breach of orders. As noticed in this case, there is no imputation that the respondent has, in fact, caused any pecuniary loss to the Government. On the other hand, for the order which we propose to pass, the respondent would stand deprived of back wages for the entire period after passing of the order by the Revisional Authority until reinstatement, within a month hereafter and that, in our opinion, will be sufficient punishment on him, so far as the monetary terms are concerned. The other lesser penalty in clause (iii) of Rule 9 ibid is debarring the employee from being considered for recruitment to Group 'D' for a period not exceeding three years. In our opinion, imposing of this penalty and making it operative from the date of order of the Revisional Authority i.e., 06.11.2009 shall be sufficient and adequate; and shall meet the ends of justice.
Accordingly, this writ petition is partly allowed to the extent and in the manner indicated above; the impugned orders are modified in D.B.Civil Writ Petition No.1710/2012 Union of India & Others v. Om Prakash 12 the manner that the respondent shall stand penalized with the penalty as envisaged in clause (iii) of rule 9 of the Rules of 2001, i.e., "debarring of a Sevak from being considered for recruitment to Group 'D' for a period not exceeding three years." In the circumstances of this case, it is ordered that this period of three years shall be counted from the order of the Revisional Authority, i.e., 06.11.2009. It is further directed that the respondent-employee shall be reinstated in service within a month from today but he shall not be entitled to back wages for the period when the petitioners did not avail of his services.
In the circumstances, there will be no order as to costs.
(C.M.TOTLA), J. (DINESH MAHESHWARI), J. scd