Central Administrative Tribunal - Ahmedabad
Zakirhussain Gulamnabi Mirza vs D/O Post on 29 August, 2024
1 OA No.651/2016
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No.651/2016
Orders reserved on :08.08.2024
Orders pronounced on :29.08.2024
CORAM
Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. Amit Sahai, Member (A),
Through Virtual Hearing
Shri Zakirhussain Gulamnabi Mirza
DOB: 5-4-1960 Aged 56 years
Son of Shri Gulamnabi Kasammiya Mirza
Ex-Postal Assistant,
Dhansura Sub Post - Office - 383 310.
Dist Subarkantha
Residing at : Mota Kaziwada,
Nr. Bhavsarwada
Modasa - 383 315
Dist. Sabarkantha
...Applicant
(By Advocate: Shri M.B. Navani)
VERSUS
The Union of India and others through
1. Secretary to the Govt. of India
Ministry of Communication & I.T.
Department of Posts,
Dak Bhawan, Sansad Marg, New Delhi
2. Chief Postmaster General,
Khanpur, Gujarat Circle,
Ahmedabad - 380 001.
3. Director Postastal Services (HQ)
Ahmedabad Region,
O/o the Chief Postmaster General,
Gujarat Circle, Ahmedabad - 380 001
2 OA No.651/2016
4. Supdt. of Post - Offices,
Subarkantha Division,
Himatnagar - 383 001.
...Respondents
(By Advocate: Shri H.D. Shukla)
ORDER
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
The applicant being aggrieved with the order passedby the Revisionary Authority dated 19.9.2015 under Rule 29 of the CCS (CCA) Rules, 1965 imposing major penalty upon the applicant of "removal from Govt. service with immediate effect" (Annexure A-4) has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
"i) May be pleased to admit and allow this original application.
ii) May pleased to declare the impugned
Orders No.
a) B2/08/01/12-13 dated 22-2-2013
issued by Supd. of Post-Offices
Sabarkantha Division, Himatnagar and annexed at Annexure A-1;
b) B2/08/1/12-13 dated 28-2-2014
issued by Supdt. of Post-Offices
Sabarkantha Division, Himatnagar and annexed at Annexure A-2;
c) Staff/49-3(8)/109/1/2014 dated 2-5- 2014 issued by Director Postal Services (HQ) Ahmedabad and annexed at Annexure A-3;
d) Staff/49-3(8)/109/1/2014 dated 29- 9-2015 issued by Director Postal Services (HQ) Ahmedabad and annexed at Annexure A-4;
e) Staff/31-35/109/2015 dated 26-5-
2016 issued by Chief Postmaster General, Gujarat Circle, Ahmedabad and annexed at Annexure A-5 as unjust, unfair, 3 OA No.651/2016 unconstitutional, unreasonable, arbitrary, vindictive, discriminative and bad in law and to quash and set-aside the same.
iii) May be pleased to direct the respondents to reinstate the applicant in service forthwith with punishment awarded by the original Disciplinary Authority vide orders annexed at Annexure A-2;
iv) May be pleased to direct the respondents to treat period from the date of removal to date of reinstatement as period spent on duty for all purposes and consequential benefits;
and
v) May be pleased to grant such other and further relief as deemed appropriate."
2. The brief relevant facts of the case are that:
2.1 The applicant while working as Postal Assistant, Meghraj SO, was served with a Memorandum/Chargesheetdated 22.02.2013 for major penalty under Rule 14 of the CCS (CCA) Rules, 1965 (referred as 'the CCA Rules') (Annexure A-1).
2.2 The statement of articles of charge (i.e. Annexure-
I)and Statement of Imputation of Misconduct or misbehaviour in support of the Article of Charge framed against the applicant (Annexure-II) as mentioned in the charge memo dated 22.2.2013 reads as under:
"Statement of Article of Charge (Annexure-I) "That the said Shri Z G Mirza, while functioning as PA Meghraj SO during the period from 01.03.2011 to 19.08.2011, failed to credit an amount of Rs.11,287/- realized on the delivery of below particularized V.P. articles received at Meghraj SO for delivery.
4 OA No.651/2016 Sl. V.P. Article No. & date of Date of Cash No. Booking delivery realized on delivery of V.P. article 1. Katri Sarai 28-06-2011 6300/- EE68244985IN/23-06- 2011 2. Delhi EPP 18-07-2011 1187/- 114886/11-07-2011 3. New Delhi Insured VP 18-07-2011 2100/- 1321/13-07-2011 4. Indore 01-08-2011 1700/- A/C414/1112/90400 /27-07-2011 Total 11287/-
Therefore, by non-crediting the above cash into Govt. Account on respective dates, Shri Z.G. Mirza, P.A. Meghraj SO violated Rule No.227 of Postal Manual Vol. - VI Part I (sixth edition corrected upto 31st Dec 1985).
It is therefore further alleged that by the aforesaid Act, Shri Z G Mirza failed to maintain devotion to duty and absolute integrity as required of him vide Rule No.3 (1) (ii) & (i) of CCS (Conduct) Rules 1964."
"Statement of Imputation of Misconduct or misbehaviour in support of Article of Chargeframed against the applicant (Annexure- II) That the said Shri Z G Mirza, while functioning as Registration P.A. Meghraj SO during the period from 01-03-2011 to 19-08-
2011 had committed the following.
On receipt of Complaint from SPC Indore vide No. SPC-IND/WWS Sky Shop/EVPP No. A/C 414/1112/00090400 dt 02/02/12 regarding non Payment of VP Amount, through the SPM Meghraj SO letter No. Meghraj/516/VP/Complaint/11-12 dated 17- 03-2012, the ASPOs Modasa Sub Dn, Modasa was directed by Supdt. of Postoffices, SabarkanthaDn, Himatnagar letter No. F3/misc/ZGM/03/2011-12 dated 21-03-2012 for detailed inquiry. During the course of inquiry, it is revealed that the below particularized V.P. articles were received at Meghraj SO for delivery duly entered in regd list issued by Himatnagar RMS set 2B dated 27-06-11, set 2A dated 14-07- 11 and Set 2B dated 15-07-11 & 31-07-11 respectively.
5 OA No.651/2016 Sl. V.P. Article No. V.P. Amount Total Date of Date of No. + Receipt Delivery Commission 1. Katri Sarai ₹6000/- + ₹300 ₹ 6300/- 28-06-2011 28-06- EE68244985IN/ 2011 23-06-2011 2. Delhi EPP ₹1130/- + ₹57 ₹ 1187/- 15-07-2011 18-07- 114886/ 2011 11-07-2011 3. New Delhi Insured VP ₹2000/- + ₹100 ₹ 2100/- 16-07-2011 18-07- 1321/ 2011 13-07-2011 4. Indore ₹1619/- + ₹81 ₹1700/- 01-08-2011 01-08- A/C414/1112/90400 2011 /27-07-2011 Total ₹11287/- All the above V.P. Articles were
entered in the 'register of VP articles received' by Shri Z G Mirza and shown issued for delivery as detailed above.
The V.P. Articles mentioned above were delivered on the date Shown above. The cash realized on account of VP articles delivered along with MO commission, Shri Mirza neither issued VP money orders to senders on respective dates nor credited the VP Cash in the Govt accounts on the respective dates of Cash realized.
The above fact admitted by Shri Mirza in his written statement dated 21- 05-2012 & 12-06-2012 given before Shri S D Gameti, ASPOs Modasá Sub Dn.
Shri Z G Mirza had credited the lumpsum amount of Rs. 11300/- which was alleged to have not credited on respective dates of delivery of VP articles into Govt Account at Meghraj SO vide U.C.R. No. 231 & 232 dated 02-04-2012 & A240 dated 06-06-2012.
Thus it is alleged that Shri Z G Mirza, PA Meghraj SO by not crediting the VP cash on respective dates in particular head and violated Rule No. 227 of Postal Manual Vol-VI Part- I(sixth edition corrected up to 31st Dec 1985).
It is therefore further alleged that by the aforesaid Act, Shri Mirza failed to maintain devotion to duty and absolute integrity as required of him under Rule 3 (1] [ii] & [i] of CCS [Conduct] Rules 1964."
6 OA No.651/20162.3 On receipt of charge memorandum, the Charge Officer i.e.applicant herein vide his application dated 02.03.2013 had requested the Disciplinary Authority to grant him extension of 15 days for submission of his representation, which has been granted by the DA under office letter dated 07.03.2013.
2.4 Thereafter, the charged officer again vide his application dated 19.03.2013 requested the DA to supply him copies of other documents.
2.5 In response to it, the Disciplinary Authority vide letter dated 20.03.2013 had supplied the photocopies of listed documents Sr. No. 1 to 8 and had directed the applicant to submit his representation on or before 28.03.2013.
2.6 The Charged Officer again vide his application dated 28.03.2013 requested to provide him some more documents which were not part of Annexure - III of charge memorandum and also asked for extension of few days to file representation.
2.7 Though, the Charged Officer was supplied all the documents by the DA and has denied to supply of some other documents which were not found relevant as well by granting sufficient time for filing the representation, the applicant has not submitted his representation till 01.04.2013.
2.8 Thereafter, the DA had appointed the InquiryOfficer to inquire into the charges as well the Presenting Officer.
2.9 Undisputedly, the CO had participated in the departmental inquiry. Further, during the inquiry, the 7 OA No.651/2016 applicant had cross examined and re-cross examined the state witnesses.
2.10 Further, it emerges from the record that though the Charge Officer was granted ample opportunity by the Inquiring Authority/IO, he has not submitted his oral or written defence brief.
2.11 Thereafter, on conclusion of departmental inquiry the IO had submitted his inquiry report dated 07.11.2013 wherein it has been observed by the IO that "it cannot be concluded that the charge framed against the applicant is "Disproved" and as such the IO has recorded finding that the charge is "proved partially".
2.12 At this stage, it is apt to mention that there was only one charge levelled against the applicant and as per the IO report the said charge was not "disapproved".
2.13 Inquiry report dated 07.11.2013 was supplied to the charge officer i.e., applicant herein by the Disciplinary Authority in compliance of Rule 15 (2) of the CCS (CCA) Rules, 1965.
2.14 On receipt of the said inquiry report, the applicant had submitted application dated 10.01.2014 wherein he has stated that after completion of inquiry due to some unavoidable circumstance, he could not submitted his written brief. He had also stated in his representation before the DA that the IO in his report observed that charges framed against him were not proved fully and it has been also recorded that it cannot be concluded that charges can bedisproved and thus the IO finally recorded his finding that the 8 OA No.651/2016 charge "proved partially".Therefore, the applicant requested the DA that the charges levelled against him may be dropped.
2.15 Upon considering the representation of the applicant dated 10.1.2014 as well as the Inquiry Report dated 7.11.2013, the Memo of Charges issued vide Memorandum dated 22.2.2013 and the case papers, the Disciplinary Authority in his order dated 28.02.2024 recorded the findings that:
"it is clearly proved that the VP articles mentioned in the Article I of the chargesheet have been received and delivered and amount so realized on delivery of this VP articles have been received by the Delivery Postal Assistant Shri Mirza and not credited to the Govt. on the day of its receipt. He has credited this amount only after receipt of a complaint and after starting the investigation into.
It is therefore, clearly established that the charged officer has failed to observe the Rule 227 of the Postal Manual Vol. VI Part-I (6th Edition corrected upto 31.12.1985) and they were failed to maintain absolute integrity and devotion to duty as required from him under Rule 3 (1) (i) and (ii) of CCS (Conduct) Rules, 1964.
Postal Department is a Public utility Department and lot of confidence of the people in the Post Department towards their transactions Post Offices. In this case, a serious complaint regarding non-receipt of VP amount are arise which has broken the trust of the public member who with great importance utilizing the services of the department. The charged officer was given reasonable opportunity at all the stage and this is the second episode which is at all not tenable. Such type of grave misconduct done by the charged officer is not forgivable and very harmful for the Department and as such the CO deserves the punishment to set an example to other."9 OA No.651/2016
2.16 By recording the aforesaid findings, the Disciplinary Authority had awarded punishment of reduction of pay by three stages from Rs.12490/- + Rs.2400/- (GP) to Rs.11220/- + Rs.2400/- (GP) for the period of two years w.e.f. 01.03.2014 upon the applicant vide said order dated 28.2.2014 (Annexure A- 2 refer).
2.17 At this stage, it is important to mention that undisputedly the applicant had not filed any Statutory Appeal against the penalty order dated 07.11.2013 passed by the Disciplinary Authority. In other words, the applicant had chosen not to file any appeal against the penalty awarded by the Disciplinary Authority vide order dated 07.11.2013.
2.18 Thereafter, the punishment awarded to the applicant by the Disciplinary Authority was reviewed by the competent Revisionary Authority under Rule 29 of CCA Rules. The said Revisionary Authority was of the opinion that for proved charge of temporary misappropriation of Government money against the applicant, the penalty awarded upon him by the Disciplinary Authority is not commensurate with the misconduct. The said Revisionary Authority had proposed to revise/enhance the punishment awarded to the applicant.
2.19 Therefore, before taking final decision,notice dated 2.5.2014 was issued to the applicant by the Revisionary Authority in terms of Rule 29 of the (CCA) Rules, whereby the applicant was called upon to submit his representation/reply to the said proposed action to revise the penalty order passed by the 10 OA No.651/2016 Disciplinary Authority as well the proposed action for imposing major penalty order of removal from service. (Annexure A-3 refer).
2.20 In response to the aforesaid notice under Rule 29 of (CCA) Rules, the applicant herein had submitted his representation dated 5.6.2014 wherein he had stated that since the Inquiry Officer had recorded in his report that the charge levelled against the applicant was partially proved. He has also stated therein that he had not deposited the amount in the office voluntarily and same was deposited forcibly. The said amount was recovered from himforcibly. It is stated that delivery of the V.P postal articles were not proved and as such there is no evidence against the applicant. However, the Disciplinary Authority without evaluating the Inquiry Officer's Report in right spirit had erroneously awarded the harsh punishment upon the applicant vide order dated 07.11.2013. Since, the DA had imposed harsh punishment upon the applicant, subsequently, there is no ground to review and enhance the punishment under Rule 29 of the CCS (CCA) Rules, 1965. Accordingly, the applicant has requested the Revisionary Authority to drop the notice and not to take any further action against the applicant (Annexure A/14 refer).
2.21 By considering the representation dated 5.6.2014 of the applicant and the records of the case, the Revisionary Authority vide order dated 29.9.2015 held that 'it is found that Shri Z G Mirza PA Magraj SO did not credit in Government exchequer the amount realized on delivery of VP articles but credit the amount afterwards on the dates mentioned in the 11 OA No.651/2016 article of charge. As revealed the charge official was working as Delivery PA at Magraj SO during the period. He confessed, in written statement during investigation, regarding non-credit of the said amount and subsequent credit as UCR. The irregularity of the official therefore cannot be taken as unintentional or accidental one. The irregularity is prima facie grave in nature. The act of the official has effect to harm the reputation in the eyes of public. Such practices definitely damaged the confidence of the Department."
2.22 By recording the aforesaid findings and reasons, the Revisionary Authority had revised the punishment imposed upon the applicant and had awarded major punishment of "Removal from Govt. service" vide order dated 29.9.2015. (Annexure A-4 refer) which is also impugned in the present OA.
2.23 Thereafter, since the applicant was awarded the major punishment of "removal from service" he had relinquished his charge by submitting the report dated 13.9.2015. (Annexure A-15 refer) 2.24 Thereafter, being aggrieved with the order dated 29.9.2015 passed by the Revisionary Authority, the applicant had submitted his revision petition dated 5.11.2015 before the Chief Postmaster Gujarat Circle, i.e., Respondent No.2 herein, and requested to exonerate him since he had not committed any misconduct (Annexure A-16 refer) 2.25 The said application/Petition of the applicant dated 5.11.2015, was considered by the competent authority i.e., Respondent No.3 herein and same was rejected vide speaking order dated 26.5.2016 (Annexure 12 OA No.651/2016 A-5) mainly on the ground that there was nothing wrong in the process followed by the Competent Authority under Rule 29 of CCA Rules in revisionary proceedings and the punishment revised by the said authority is commensurate with the gravity of charge levelled against the applicant. Accordingly, the order of revise of punishment passed by Revisionary Authority was upheld vide order dated 26.05.2016 (Annexure A/5 refer).
2.26 Hence, being aggrieved by the major penalty imposed upon him, the applicant has preferred the present Original Applicant and soughtthe reliefs as quoted above.
3. In the backdrop of aforesaid undisputed factual matrix, Shri M.B. Mavani, learned counsel appearing for the applicant has mainly submitted as under:
3.1 That the orders impugned in the present proceedings are ex-facie irrational, arbitrary, unreasonable, unjust, unfair, vindictive, discriminate and bad in law, as the applicant is challenging the entire decision making process as adopted by the respondents right from issuance ofcharge memo till awarding harsh punishment of "removal from service"
upon the applicant.
3.2 Learned counsel has further argued that as per the provisions of Rule 14 (5) (a) of the Rules ibid, the disciplinary authority can appoint Inquiry Officer and Presenting Officer only on receipt of defence representation from the delinquent as stipulated under Rule 14 (4) of the Rules ibid, which has not been done in this case by the disciplinary authority. In other 13 OA No.651/2016 words, it has been stated that the Disciplinary Authority without waiting for written statement of defence had appointed Inquiry Authority to conduct inquiry against the applicant. Therefore, the applicant has not been granted due opportunity to submit his defence during the inquiry.
3.3 Learned counsel has submitted that due to non- supply of the requisite documents gross prejudice has been done by the respondents and as such the inquiry proceedings ab initio vitiated due to gross procedural irregularities and, therefore, the same is liable to be quashed by this Tribunal.
3.4 It is submitted that,it is well settled principle of natural justice that non-supply of documents required by the delinquent/charged officer vitiates entire inquiry proceedings and final decision null and void suo moto. In support of this contention, learned counsel for the applicant has placed reliance on the decisions of the Hon'ble Apex Court in the cases of State of U.P. vs. Shatruganlal, reported in AIR 1998 SC 3080 and Uma Prasad Gogoi vs. State of Assam, reported in 1997 (4) LLN 207.
3.5 Further the learned counsel for the applicant has argued that Inquiry Officer has recorded that the alleged charges were "partly proved". However, Inquiry Officer has failed to clearly indicate in his findings as to which part of the charge(s) is proved and which part of the same is not proved and thus, the findings of the Inquiry Officer are ambiguous, non-specific, indefinite, inaccurate and indistinctive and as such the disciplinary authority has committed gross error of law 14 OA No.651/2016 by accepting the same and awarding the harsh punishment.
3.6 It is further submitted that the Competent Authority by exercising the provisions of Rule 29 of the Rules ibid, issued notice for revising/modifying the said punishment to that of 'removal from service' which was duly replied by the applicant but the same was not considered in true spirit rather the Revisionary Authority awarded the extreme punishment of removal from service upon the applicant vide order dated 29.9.2015.
3.7 The revision petition preferred against the same was rejected by the revisionary authority without application of mind.
3.8 Learned counsel for the applicant has further argued that having regard to the gravity of misconduct alleged against the applicant, modification/revision of the punishment awarded by the disciplinary authority to that of removal from service upon the applicant is disproportionate to the gravity of the charges levelled against him and the same required consideration by this Tribunal.
4. Per contra, Shri H.D. Shukla, learned counsel for the respondents by referring to the averments contained in the counter reply has submitted that allegations levelled against the applicant are with regard to misappropriation of Govt. amount as is evident from the charges as quoted above and for that irregularities due requisite procedures as envisaged in the Rules ibid have been duly complied with as is evident from the counter reply. Further, It is submitted 15 OA No.651/2016 that from the stage of issuance of the charge sheet till the passing of the enhanced penalty order by the revisionary authority the applicant was given due opportunity to submit his defence and explanation and as such he participated in disciplinary proceedings as well as filed his representation in response to notice issued under Rule 29 of CCS (CCA) Rules, 1965 by the Revisionary Authority. Thus, till the penalty awarded upon the applicant was enhanced by the order passed by the Competent/Revisionary Authority at every stage the principle of natural justice is followed and after giving due opportunity to the charged officer the penalty order was issued. To substantiate the same, the learned counsel for the respondents has drawn the attention of this Tribunal the documents as annexed in the pleadings of the case.
5. The applicant has filed his rejoinder and had reiterated the submission as contended in the OA. Additionally, learned counsel for the applicant by referring the said rejoinder that the Disciplinary Authority failed to issue disagreement note while supplying a copy of inquiry report to the applicant and subsequently by recording his disagreement to the finding of IO had awarded harsh punishment on the basis of partly proved charged. The said action on the part of the Disciplinary Authority is arbitrary and against the mandate of Rule 14 of the CCS (CCA) Rules, 1965. It is submitted that the charges have been stated to be "proved" on assumption and presumption and that too without any supporting oral and documentary evidences.
16 OA No.651/20166. Heard the learned counsel for the parties and perused the material on record.
7. It emerges from the record that the Disciplinary Authority had issued charge memorandum dated 22.02.2013 under Rule 14 of the CCS (CCA) Rules, 1965 whereby the charges levelled against the applicant that while he was functioning as Registration Postal Assistant, Meghraj Sub-office during the period from 01.03.2011 to 19.08.2011, he failed to credit an amount of Rs. 11287/- realised on the delivery of Value Payable Postal Articles (referred as V.P. Postal Articles). Alongwith the said charge memorandum applicant was supplied with the Article of Charges, Statement of Imputation of Misconduct of Misbehaviour, List of documents by which the Article of Charges are proposed to be sustained, List of witnesses.
7.1 Further, it emerges from the finding recorded by the Disciplinary Authority in its order dated 28.02.2014 that on receipt of charge memorandum on 23.02.2013, the CO i.e., applicant herein vide his application dated 02.03.2013 had requested the Disciplinary Authority to grant him extension of 15 days for submission of his representation, which has been granted under office letter dated 07.03.2013 which was received by the applicant on 08.03.2013.
7.2 Thereafter, the charged officer again requested vide his application dated 19.03.2013 to supply copies of documents. In response to it, the Disciplinary Authority vide letter dated 20.03.2013 had supplied of the photocopies of listed documents Sr. No. 1 to 8 and 17 OA No.651/2016 had directed to submit his representation on or before 28.03.2013.
7.3 Again vide his application dated 28.03.2013 the CO had requested the DA to provide him some more documents which were not part of Annexure - III of charge memorandum and had also asked for extension of few days to file representation.
7.4 It also emerges from the record that though the CO was supplied with all the documents by the DA and has denied supplying of documents which were not found relevant, as also had granted sufficient time for filing the representation, the applicant has not submitted his representation till 01.04.2013. Thereafter, the DA had appointed the Inquiry Officer to inquire into the charges as well the Presenting Officer.
7.5 It is not in dispute that the applicant had participated in the departmental inquiry held against him. During the said inquiry, he had cross examined and re-cross examined the state witnesses.
7.6 Further, it emerges from the record that though the Charge Officer was granted ample opportunity by the Inquiring Authority/IO, he has not submitted his oral or written defence brief.
7.7 Thereafter, on conclusion of departmental inquiry the IO had submitted his inquiry report dated 07.11.2013 wherein it has been observed by the IO that "it cannot be concluded that the charge framed against the applicant is "Disproved" and as such the IO has recorded finding that the charge is "proved partially".
18 OA No.651/20167.8 At this stage, it is apt to mention that there was only one charge levelled against the applicant and as per the IO report the said charge was not "disapproved".
7.9 On receipt of inquiry report dated 07.11.2013, the said report was supplied to the charge officer i.e., applicant herein by the Disciplinary Authority in compliance of Rule 15 (2) of the CCS (CCA) Rules, 1965.
7.10 In response to the said inquiry report, the applicant had submitted application dated 10.01.2014 wherein he has stated that he could not submit written brief after completion of inquiry due to some unavoidable circumstances. He had also stated in his representation that the IO had recorded that charges framed against him were not proved fully, however, he had also observed that it cannot be concluded that charges can be disproved and thus finally recorded finding that charge "proved partially". He submitted that considering the findings recorded by the IO, the charges levelled against him may be dropped.
7.11 After considering the material on record, the Disciplinary Authority vide order dated 28.02.2014 held that:
"it is clearly proved that the VP articles mentioned in the Article I of the chargesheet have been received and delivered and amount so realized on delivery of this VP articles have been received by the Delivery Postal Assistant Shri Mirza and not credited to the Govt. on the day of its receipt. He has credited this amount only after receipt of a complaint and after starting the investigation into.19 OA No.651/2016
It is therefore, clearly established that the charged officer has failed to observe the Rule 227 of the Postal Manual Vol. VI Part-I (6th Edition corrected upto 31.12.1985) and they were failed to maintain absolute integrity and devotion to duty as required from him under Rule 3 (1) (i) and (ii) of CCS (Conduct) Rules, 1964.
Postal Department is a Public utility Department and lot of confidence of the people in the Post Department towards their transactions Post Offices. In this case, a serious complaint regarding non-receipt of VP amount are arise which has broken the trust of the public member who with great importance utilizing the services of the department. The charged officer was given reasonable opportunity at all the stage and this is the second episode which is at all not tenable. Such type of grave misconduct done by the charged officer is not forgivable and very harmful for the Department and as such the CO deserves the punishment to set an example to other."
7.12 By recording the aforesaid findings, the Disciplinary Authority had awarded punishment of reduction of pay by three stages from Rs.12490/- + Rs.2400/- (GP) to Rs.11220/- + Rs.2400/- (GP) for the period of two years w.e.f. 01.03.2014 upon the applicant vide said order dated 28.2.2014 (Annexure A-
2).
7.13 It can be seen that undisputedly, the applicant has participated in departmental inquiry and the IO as well as the DA had granted ample opportunity to the applicant herein to submit his defence in respect to the Disciplinary Proceeding instituted against him in compliance of provision of Rule 14 and 15 of CCS (CCA) rules, 1965.
20 OA No.651/20167.14 It can be seen that the disciplinary proceeding was concluded after granting due opportunity to the CO. Therefore, in our considered view, in absence of any contrary material on record, the submission of counsel for the applicant that the Charge Officer was not granted due opportunity to submit his defence during the departmental inquiry is not tenable. It is suffice to state that the departmental inquiry was concluded as per the provision of Rule 14 of CCA Rules as also the Disciplinary Authority concluded the said disciplinary proceedings against the applicant by following the Rule 15 of the CCA Rules and thus it is established that both the authority i.e., Inquiry Officer and the Disciplinary Authority by following natural justice concluded the proceeding held against the applicant.
8. At this stage, it is apt to mention that against the order passed by the Disciplinary Authority dated 28.02.2014 undisputedly the applicant has not filed any Statutory Appeal before the Appellate Authority.
9. At this stage, it is required to mentioned that as per the provisions stipulated under Rule 29 of the CCS (CCA) Rules, 1965, the Competent/ Revisionary Authority may at anytime, either on his or its own motion or otherwise call for the records of any inquiry and revise any order may under these rules and may (a) confirm, modify or set aside the order or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed or (c) remit the case to the authority which made the authority to or any other authority directing such 21 OA No.651/2016 authority to make further authority as it may consider proper in the circumstances of the case; or (d) pass such other order as it may deem fit; provided that no order imposing or enhancing shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11.
10. In the present case, it is noticed that the Competent/ Revisionary Authority after examination of material on record and the penalty order dated 28.02.2014 passed by the DA, was of the opinion that the penalty awarded upon the applicant vide order dated 28.02.2014 is not commensurate with the proved misconduct of the applicant. The Revisionary Authority had expressed his intention to revise and modify the said penalty into major penalty of "removal from service".
10.1 Further, it emerges from the record that undisputedly before taking any final decision, the said Revisionary Authority in terms of provision of Rule 29 of the CCA Rules had issued notice dated 02.05.2014 (Annexure A/3 refer) to the applicant and called upon him to submit his representation in respect to proposed revision of penalty imposed upon him by the DA.
11. On receipt of the notice issued by the Revisionary Authority under rule 29 of the CCS (CCA) rules, the applicant herein submitted his representation dated 10.06.2014 wherein he has stated 22 OA No.651/2016 that there is only one charge against him as per memo of charges. The IO in his report had recorded its finding that charge was partially proved. Since there was only one charge levelled against the applicant then how it can partially prove. Further, it is stated therein that the applicant had not deposited the amount voluntarily and as such same was recovered by the O/o respondent forcibly. According to him, there is no documentary evidence against him. However, the IO, the DA have erroneously held that the charges levelled against the applicant has been established and proved. Further, the punishment awarded by the Disciplinary Authority is itself harsh and not commensurate with the lapses highlighted by the IO in his report. Therefore,there is no ground to review and revise the order passed by the DA under Rule 29 of the CCA Rulesand no action be taken against him as proposed under the notice issued by the Revisionary Authority. (Annexure A/14/1 refer).
12. It is noticed that by considering the reply of the applicant to the show cause notice issued under Rule 29 of the CCA Rules as well the case paper of Disciplinary proceedings, the Revisionary Authority passed an order dated 29.09.2015 wherein finding recorded to the effect that :
'it is found that Shri Z G Mirza PA Magraj SO did not credit in Government exchequer the amount realized on delivery of VP articles but credit the amount afterwards on the dates mentioned in the article of charge. As revealed the charge official was working as Delivery PA at Magraj SO during the period. He confessed, in written statement during investigation, regarding non-credit of the 23 OA No.651/2016 said amount and subsequent credit as UCR.
The irregularity of the official therefore cannot be taken as unintentional or accidental one. The irregularity is prima facie grave in nature. The act of the official has effect to harm the reputation in the eyes of public. Such practices definitely damaged the confidence of the Department."
12.1 By recording the aforesaid findings and reasons, the Revisionary Authority vide order dated 29.9.2015 had revised the punishment imposed upon the applicant and had awarded major punishment of"Removal from Govt. service" in exercise of power vested with him under Rule 29 of CCS (CCA) Rules, 1965.
12.2 It can be seen that after affording due opportunity as stipulated in Rule 29 of CCA Rules, the Revisionary Authority by assigning the cogent reasons for revising the punishment order passed by the DA and had enhanced the punishment vide order dated 29.09.2015. Therefore, in absence of any material contrary to the aforesaid process in respect to order passed in under Rule 29 of the CCA Rules by the Revisionary Authority, we do not find any lacuna or error in the said decision-making process. Thus, the submission of learned counsel for the applicant that the Revisionary Authority has failed to consider the representation of the applicant is also not tenable since we do not find any legal infirmities in the impugned order dated 29.09.2015 passed by the Revisionary Authority.24 OA No.651/2016
12.3 The submission of the learned counsel that that there was no material or evidence against the applicant and the IO, the DA and the RA has erroneously held that charges levelled against him stands established.
According to the learned counsel this is a case of no evidence and therefore the finding recorded by the Disciplinary Authority as well the Revisionary Authority are contrary to the material on record. He also argued that major punishment awarded by the Revisionary Authority is as such harsh in nature and same is not commensurate with the charges levelled against the applicant.
13. At this stage, it is apt to mention that, the Hon'ble Apex Court in B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 had held that:
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the Court. The Court/Tribunal in its power of judicial review does not act as an Appellate Authority to reappreciate the evidence and to arrive at its own independent finding on the evidence."
13.1 Further, by referring to the law laid down in B.C. Chaturvedi (supra), a Three Judge Bench of Hon'ble Apex Court in the case of SBI v. Ajay Kumar Srivastava reported in (2021) 2 SCC 612 : (2021) 1 SCC (L&S) 457 held that "the power of judicial review in the matters of disciplinary inquiry/proceeding exercised by the departmental / Appellate Authorities discharged by Court/Tribunal 25 OA No.651/2016 is well circumscribed by limits of correcting error of law or procedural errors leading to manifest injustice or violation of principle of natural justice and it is not akin to adjudication of the case on merits as an Appellate Authority."
13.2 In the present case, as noted herein above by assigning cogent reason, the Disciplinary Authority had recorded its finding that charges levelled against the applicant stands proved. Suffice to state that in absence of any contrary material brought on record during the inquiry / proceeding it cannot be said that the finding recorded by the DA is perverse or based on no evidence.
13.3 It is noticed that by following the Statutory requirements before taking final decision under Rule 29 of the CCA Rules, the Revisionary Authority had passed the impugned order of enhancement of the punishment upon the applicant. It is reiterated that we do not find any lacuna in decision making process on the part of the DA as well the RA in the instant case. Therefore, in light of the judgment passed by the Hon'ble Apex Court in the case of B.C. Chaturvedi (supra) as well in the matter of Ajay Kumar Srivastav (supra), we are of the considered opinion that in absence of any lacuna in decision making process in respect to the impugned order passed by the DA and the RA we decline to interfere with the finding recorded by the said authorities. It is reiterated that the applicant had as such not filed any appeal against the order passed by the DA, therefore, even otherwise the submission of the applicant in respect to the order passed by the DA is not tenable.
26 OA No.651/201614. So far submission of learned counsel that the major punishment of removal from service as imposed by the Revisionary Authority under Rule 29 of the CCA Rules is not commensurate with the charges levelled against the applicant and the finding recorded by the IO and the said major penalty is shockingly disproportionate and harsh in nature, is concerned, the said submission is also not acceptable in light of dictum laid down by the Hon'ble Apex Court in catena of judgments. In this regard, it is profitable to refer the judgment passed in (1) State of U.P. v. Sheo Shanker Lal Srivastava,(2006) 3 SCC 276, wherein it has been held that :
"22. It is now well settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one's conscience."
(2) In the case of Principal Secretary Govt. of A.P. v. M. Adinarayana,(2004) 12 SCC 579,the Hon'ble Apex Court in para 25 held as under:
"....court should not interfere with the quantum of punishment where there is some relevant material which the disciplinary authority has accepted and which material has reasonable support, the conclusion reached by the Disciplinary Tribunal. It is not the function of the Administrative Tribunal to review the same and reach a different 27 OA No.651/2016 finding than that of the disciplinary authority."
(3) In Union of India v. Parma Nand, at SCC p.189, para 27 as under:
"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
15. In the present case, as noted herein above the Revisionary Authority had recorded its finding that "...during investigation the CO had confessed in written 28 OA No.651/2016 regarding non credit of the amount realised in respect to V.P. articles and the said VP articles wereundisputedly delivered by him and subsequent credit of the said amount as UCR. The said irregularity of the official cannot be taken as unintentional or accidental one. The irregularities arefound to be grave in nature.''Therefore, based on the material on record and for the proved misconduct of the applicant, the RA had recorded its findings for revising of the punishment. In our considered view, the said finding of the Revisionary Authority by assigning cogent reasons for enhancement of the punishment which is supported by the evidence on record.Thus the conclusion arrived by the Revisionary Authority for imposing punishment upon the applicant cannot be said to be disproportionate to the gravity of the misconduct alleged against the applicant. Hence, in light of dicta laid down by the Hon'ble Apex Court as referred to herein above and in absence to any lacuna in decision making process, we decline to interfere with the quantum of punishment awarded by the Revisionary Authority upon the applicant herein.
16. In light of foregoing discussion and keeping in mind the dictum laid down by the Hon'ble Apex Court as referred to herein above, we are of the considered opinion that there is no procedural lacunae in the decision making process in respect to disciplinary proceeding held against the applicant and the order passed by the DA dated 28.02.2014 and the order passed by Revisionary Authority dated 29.09.2015, thus, the impugned orders cannot be said to be suffered from any legal infirmities.
29 OA No.651/201617. In view of the aforesaid discussion, the O.A. lacks merit and same is dismissed accordingly. M.A., if any, also stands dismissed. There shall be no order as to costs.
(Amit Sahai) (Jayesh V. Bhairavia) (Member A) (Member J) //Ravi & Anu//