Central Administrative Tribunal - Hyderabad
Chenna Ramudu vs Dept Of Posts on 15 June, 2021
RA 3/2021 in OA 50/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
Review Application No.020/003/2021
In
Original Application No.020/00050/2021
HYDERABAD, this the 15th day of June, 2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Chenna Ramudu S/o Late Chenna Kasturi Rangaiah,
Aged about 52 years, Assistant Post Master,
(Mails), under suspension in Guntakal Head Post
Office, under Anantapur Postal Division and now
Resident of H. No. 13/193/203A, Kasupuram Road,
Behind TTD Kalyana Mantapam, Guntakal,
Andhra Pradesh. ...Applicant
(By Advocate :Mr. K. Venkateswara Rao)
Vs.
1.The Superintendent of Post Offices,
Anantapur.
2. The Director of Postal Services, Office of
The Postmaster General, Kurnool Region,
Kurnool.
3.The Chief Postmaster General, A. P. Circle,
Vijayawada.
4.The Post Master General, Kurnool Region,
Kurnool.
5.Union of India, represented by the Secretary,
Department of Telecommunication and I.T.,
20, Ashok Road, New Delhi.
....Respondents
(By Advocate : Mr. A. Surender Reddy, Addl. CGSC)
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RA 3/2021 in OA 50/2021
ORDER (IN CIRCULATION)
(Hon'ble Mr.B.V. Sudhakar, Administrative Member)
2. The RA is filed seeking review of the judgment delivered by this Tribunal in OA 020/50/2021, dt.04.02.2021. The operative portion of the order is as under:
"The charge sheet was drawn up on 3.9.2020, which is well before the 90 days period and hence, is in accordance with the law stated supra. Therefore, the legal principle laid down in Ajay Kumar Choudhary v. Union of India by Hon'ble Apex Court and relied upon by the applicant is not infringed. Moreover, applicant is involved in grave misconduct of alleged defrauding public money to the extent of Rs.5.62 crores. The very fact that the applicant absconded from duty after he was relieved from the office where the alleged fraud took place, does not speak well about the applicant. It is substantive justice namely the date of issue of the suspension memo and the charge sheet which is important and not the technical justice of delivering the memos, as per the legal principle laid down by the Hon'ble Supreme Court in State Rep. by Inspector of Police, CBI vs M Subrahmanyamin Crl.A.No(s). 853 of 2019 (arising out of SLP (Crl.) No(s). 2133 of 2019), decided on 7thMay, 2019,as under:
"Substantive justice must always prevail over procedural or technical justice......A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law."
III. In regard to the issue of the charge sheet by Supdt. of Post Office, Rule 11 of the CCS (CCA) Rules 1965, permits the same to the extent of imposing minor penalties. The Appointing Authority for the applicant i.e.the Director of Postal Services was duly informed on 15.6.2020 as required under the rules. Hence, the action of R-1 in issuing the charge sheet cannot be found fault with and the doubt of the applicant as to whether the approval of the Appointing Authority was duly taken, is allayed in view of the intimation dated 15.6.2020.
IV. Therefore, in view of the aforesaid circumstances the action of the respondents is found to be in order. We do not find any merit in the submission of the applicant and hence the OA being devoid of merit,merits dismissal and hence dismissed at the admission stage itself. No costs."
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3. As no hearing is considered necessary, the Review Application is being disposed under circulation as per Rule 17(3) of the C.A.T. (Procedure) Rules.
4. The main grounds raised by the applicant in support of the Review Application are that as per the Judgment of Hon'ble Supreme Court in Ajay Kumar Chowdary v. Union of India in Civil Appeal No. 1912/2015, charge sheet has to be served on the delinquent within 90 days. Even according to the appellate authority order dt.17.12.2020, the first attempt for delivery of charge memo was made on 09.09.2020 i.e. 90th day from effective date of suspension i.e. 12.06.2020 and the charge memo was served on him on 24.09.2020. Thus, not serving the charge memo within 90 days is a legal violation.
5. This Tribunal passed an elaborate order in the main OA which would answer the grounds raised by the applicant in the Review Petition. Relevant observations of this Tribunal are extracted hereunder:
"7(I) The dispute is about extension of the suspension beyond the period of 90 days and the issue of charge sheet after 90 days of date of suspension. The facts reveal that the applicant was involved in an alleged fraud of Rs.5.62 Crores and was suspended on 12.06.2020. Later, the suspension was extended by memo dated 03.09.2020 but delivered through Asst. Supdt. of Post Offices on 24.09.2020. Applicant contends that the delivery of suspension memo on 24.09.2020 would mean that the suspension was not extended within 90 days from 12.06.2020, and hence the suspension is invalid. As seen from the records, the Review Committee decided on extension of suspension on 03.09.2020 and it was dispatched by Registered Post on 07.09.2020 but was returned undelivered and hence, was got delivered in person by the Asst. Supdt. of Posts on 24.09.20. The fact that the decision was taken on 03.09.2020 and it was dispatched by Registered Post on 07.09.2020 cannot be denied. Delivery could not be effected because the applicant was out of station and that too without 3 RA 3/2021 in OA 50/2021 permission. The date of decision is important than the date of delivery. Once the decision is taken and the memo is dispatched before 90 days by Registered Post, the same has to be taken as deemed delivery. Applicant is trying to seek relief by covering the issue with the veil of delay. If the veil is pierced, then the truth that the decision was taken well before 90 days i.e. on 3.9.2020 and the memo was despatched by Regd. Post on 7.9.2020 is revealed. Therefore, the technical ground of delay taken by the applicant would not survive. The non issue of charge sheet within 3 months would be no reason to revoke the suspension. Each case has to be examined based on the facts of the case for extending the suspension. Nature and substance of the allegations are important. In the instant case is an alleged fraud of Rs 5.42 crores which is too serious a matter. It is possible given the gravity of fraud the applicant may try to tamper the records or influence the witness before the charge sheet could be issued. Our above comments are based on the observations of the Hon'ble Delhi High Court Judgment dated 05.07.2019 - in W.P.(C.) No. 7071/2019 in Rakesh Kumar Garg V. Union of India & Ors.as under:
"11. We may observe that there can be no hard and fast rule that in all cases where charge sheet is not filed within three months, of suspension, the same would mandatorily be revoked. The need for continuation of the same would have to be assessed on the facts of each case. Most relevant would be the nature and substance of allegations; the materials on which the same is founded; the position held by the concerned government officer i.e. whether he is holding a portion of authority and influence, or he is a lower ranked employee with little or no power to influence others concerned with the matter."
Hon'ble Delhi High Court has further held as under:
"13. Reliance placed by Mr. Bhardwaj on the aforesaid decisions, in our view, are of no avail looking to the circumstances of the case. Even in Promod Kumar IPS (supra), the Supreme Court, while referring to Ajay Kumar Choudhary (supra), wherein the Supreme Court had frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration, eventually held that the suspension of the respondent in that case would not serve any useful purpose, on the basis of the material on record of that case. The same cannot be said in the facts of the present case considering the fact that the investigation under the Prevention of Corruption Act, and the IPC is underway by the CBI, and by the Appropriate Authority under the PMLA.
14. The petitioner is a senior, highly ranked government officer and was occupying a high position at the time of his suspension. He was in a position to influence witnesses and tamper with the evidence. He has been released on bail. Pertinently, the petitioner has also not placed before us the order passed by the Court granting him bail which may have, if produced, thrown light on the allegations against the petitioner. Considering all these aspects as well, we are not satisfied that the suspension of the petitioner should not have been continued in the present case."4 RA 3/2021 in OA 50/2021
This Tribunal has relied upon the Judgment of the Hon'ble Supreme Court dt.07.04.1993 in Delhi Development Authority v. H.C. Khurana in Civil Appeal No. 1240 of 1993 "The issue of a charge sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement."
In the instant case, admittedly, charge sheet was issued on 03.09.2020 and despatched on 07.09.2020, that is before expiry of three months and it was served on the applicant on 24.09.2020. Even the suspension was reviewed and extended on 03.09.2020, for a further period of 180 days. This Tribunal took a view that though the charge memo was issued before expiry of 90 days, there was some delay in serving the same on the applicant as he was out of station. Further, the decision of the Tribunal is in line with the Hon'ble Apex Court judgment in H.C. Khurana Judgment cited supra. Even the Hon'ble Supreme Court has observed in concluding para in Ajay Kumar Chowdary (supra) as under:
"15. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.
16 The Appeal is disposed of in the above terms and we desist from imposing costs."
As the charge memo was served on the applicant and the charge alleged against him being serious, this Tribunal was not inclined to 5 RA 3/2021 in OA 50/2021 accept the contention of the applicant on technical grounds. There is no error apparent on the face of the record in the order in the OA, warranting a review.
6. Further, a plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167]. Further, Hon'ble Apex Court in the case of State of W.B. vs Kamal Sengupta, (2008) 8 SCC 612 has held as under:-
"35. The principles which can be culled out from the above noted judgments are:
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."
6 RA 3/2021 in OA 50/2021
7. In view of the above observations and the law laid down by the Hon'ble Supreme Court (supra), this Tribunal does not find any reason to review the order passed in OA. The RA is accordingly dismissed, in circulation. No order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIALMEMBER
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