P. Premalatha vs Union Of India on 3 October, 2016

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Kerala High Court

P. Premalatha vs Union Of India on 3 October, 2016

This original petition is filed by the applicant before the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1161 of 2013 against the order dated 3.10.2016 passed thereon. The petitioner is working as a Postal Assistant in the Postal Department. While working as Postal Assistant at Perumbavoor Head Post Office disciplinary proceedings were initiated against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965. He was served with Annexure A1 (in Ext.P1) charge memo. Before the commencement of the enquiry proceedings and after the appointment of the Enquiry Officer the petitioner approached the Tribunal by filing the above mentioned Original Application mainly with the following prayer:-

"Call for the records leading to the issue of A1 to A3 and quash the same and direct the respondents to grant the applicant all consequential benefits as if the impugned orders A1 to A3 had not been issued at all."

O.P.(CAT)No.31 of 2017 2

It is submitted by both sides that based on an observation made by the Tribunal, during the consideration of the Original Application, the disciplinary authority was changed. In fact, the petitioner had raised allegations of bias against the disciplinary authority. At the time of final hearing the Tribunal took note of the fact that the grievance of the petitioner regarding bias of the Enquiry Officer stood redressed by changing the disciplinary authority as per Annexure-R3(D) in Ext.P5. As noticed hereinbefore, the main prayer of the petitioner in the O.A. was quashment of the entire proceedings initiated against him. However, the Tribunal declined to interfere with the disciplinary proceedings and virtually, observed that since the charge is one of defalcation of money it requires a proper enquiry to find out the truth of the allegations. With the said observation and also taking note of the redressal of his grievance regarding the bias of disciplinary authority the application was dismissed as per order dated 3.10.2016. Apprehending that some of the observations made by the Tribunal, while passing the order of dismissal of the Original Application, would ultimately prove detrimental to him in the disciplinary proceedings, the petitioner filed Review Application No.180/00062/2016 in O.A.No.1161 of 2013. That review application was dismissed as per Ext.P2 order. It was held therein that the observations were made based on the pleadings of the petitioner in O.P.(CAT)No.31 of 2017 3 the Original Application and further noted that sufficient indication has been made in the judgment dated 3.10.2016 itself that the observation shall not be taken as the findings of the Tribunal on the charges and that a proper enquiry has to be conducted to find out the truth of the charges. In that view of the matter, the review application was also dismissed. It is in the said circumstances that the captioned original petition has been filed.

2. We have heard the learned counsel for the petitioner and also the learned Assistant Solicitor General.

3. The facts expatiated above and also a perusal of the impugned order would reveal that the grievance of the petitioner was firstly, with respect to the functioning of a particular officer as the disciplinary authority on the ground of bias and secondly, as regards the continuation of the proceedings based on Exts.A1 to A3. Evidently, the grievance of the petitioner against the disciplinary authority on the ground of bias stands redressed by Annexure.R3(D) in Ext.P5. The petitioner would also admit the said position. There cannot be any doubt with respect to the position that when disciplinary proceedings have been commenced by issuing memo of charges against an O.P.(CAT)No.31 of 2017 4 employee it has to end in its logical conclusion and that is possible by conducting an enquiry, in accordance with law. The nature of the charge against the petitioner cannot be taken as not serious. Admittedly, the allegation is embezzlement of Government money. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in permitting the disciplinary proceedings to continue in accordance with law on observing that the truth of the allegations has to be find out in disciplinary proceedings. But the question is after making clear such an observation in respect of the disciplinary proceedings whether the Tribunal is justified in making any further observation touching the merits and thereby, likely to cause prejudice to the petitioner in the disciplinary proceedings. A perusal of Ext.P1, more particularly paragraphs 11 to 19, of the impugned judgment would reveal that certain observations which may weigh with the Enquiry Officer and also the disciplinary authority were made by the Tribunal. To elucidate the same we may refer to paragraph 11. In paragraph 11 it is stated thus:-

"11. ...................... The shortage of manpower is no justification for the irregularities noticed on account of non-accounting of the office cash and the applicant has committed grave misconduct and criminal breach of trust as a public servant."

O.P.(CAT)No.31 of 2017 5

No doubt, such observation that a particular person has committed misconduct and criminal breach of trust may weigh with the Enquiry Officer and disciplinary authority in the course of the disciplinary proceedings and evidently to obviate such apprehension the petitioner had filed a review application in the original application. It was also dismissed as per Ext.P2 order. Without making particular reference to any of the observations made in the order dated 3.10.2016 the Tribunal made it clear that what was done by it in the order dated 3.10.2016 was only a recounting of the facts averred by the petitioner while passing the order. True that, it was further made clear that in the order dated 3.10.2016 itself it was made clear that a proper enquiry had to be conducted to prove the charges as right or wrong. In the light of the order in the review application the learned Assistant Solicitor General submitted that there is absolutely no merit in the Original Petition and that it could not be said that the Tribunal had made any observation capable of construing as findings as relates the charges. The clear observation is that the correctness or otherwise is a matter which is to be found out by the Enquiry Officer in the enquiry proceedings, in accordance with law, it is contended. After hearing the rival contentions and perusing both the orders we are of the view that with O.P.(CAT)No.31 of 2017 6 the clarifications made by the Tribunal in Ext.P2 order there is no further room for entertaining any apprehension for the petitioner that the observations made by the Tribunal in Ext.P1 order would work out against him in the enquiry proceedings. Still, taking note of the nature of the observations and to obviate a remotest chance it is made clear that any observation made by the Tribunal in paragraphs 11 to 19 seemingly touching the merits of the allegations shall not be taken as any observations made on the merits regarding the correctness or otherwise of the allegations raised against the petitioner and all the imputations in Annexure-A1 charge memo have to be enquired into untrammelled by any such observations in Ext.P1 and in accordance with law.

Subject to the above observation, this original petition is dismissed.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

K.P.JYOTHINDRANATH Judge TKS

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