Central Administrative Tribunal - Lucknow
Manohar Lal Dead Substituted By Smt Ram ... vs Union Of India on 12 April, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
LUCKNOW
Original Application No. 332/00047 /2007
Order reserved on: 06.02.2023.
Order pronounced on: 12.04.2023.
CORAM
Hon'ble Mr. Justice Anil Kumar Ojha, Member-J
Hon'ble Mr. Devendra Chaudhry, Member-A
Late Manohar Lal, aged about 54 years son of Shri Jeewan Lal resident
of Village Kasta Pargana Kasta Tehsil Mohammadi District Kheri.
(Dead-Substituted by the following applicants).
1. Smt.Ram Rati, aged about 60 years
Wife of Late Manohar Lal
2. Santosh Kumar, aged about 31 years
S/o of Late Manohar Lal
3. Mukesh Kumar, aged about 21 years
S/o of Late Manohar Lal
4. Brijendra Kumar, aged about 18 years
S/o of Late Manohar Lal
[All R/o Village Kasta, Pargana Kasta, Tehsil Mohammadi, District Kheri.
.....Applicants.
By Advocate: Sri Naveent Awasthi holding brief for Shri Anurag
Srivastava.
VERSUS
1. Union of India, through its Chief Post Master General, Uttar
Pradesh Circle at Lucknow.
2. Superintendent of Post Offices, Kheri.
......Respondents
By Advocate: Ms.Prayagmati Gupta.
ORDER
By Hon'ble Mr. Justice Anil Kumar Ojha, Member-J Heard learned counsel for the applicant, learned Counsel for the respondents and perused the records.
The applicant has sought the following reliefs: -
Page 2 of 9"8.1. That to quash the termination order having called from the Superintendent Post Offices Khari order dated 01.08.88 contained in Annexure No.1 to the application.
8.2. That the Superintendent of Post Offices Kheri may be directed to give due salary to the applicant and further salary.
8.3. That any other/orders which this Tribunal may deem just and proper in the circumstances of the case may also be issued in favour of the applicant.
8.4. That the cost of the application may be awarded in favour of the applicant."
Tersely put the case of the applicant is that the applicant Late Manohar Lal (Now deceased) was appointed in the month of February, 1980 as Sub Post Master in the Village Post Office Kasta. The applicant was going to deposit an amount of Rs.6,360/- in the Head Post Office of District Kheri, but the bag containing Rs.6,360/- was stolen, due to this reason the applicant could not deposit the amount on the same day. The fact came to the knowledge of the Inspector of Post Offices and he lodged the FIR and directed the applicant to deposit the amount of Rs.6,360/- from his own source. In compliance of the said directions, the applicant deposited the alleged amount in the Head Post Office, Kheri from his own sources. However, Mr. Sonkar lodged FIR against the applicant U/s 409 I.P.C., which came to be registered as Crime Case No.145/82. The police investigated the matter and submitted the charge- sheet against the applicant. The applicant's services were terminated vide order dated 05.11.1982.
In the Crime Case No.145/82 filed U/s 409 IPC the concerned Chief Judicial Magistrate, Kheri discharged the applicant. Thereafter, the applicant approached the authorities for his reinstatement in service but of no avail.
The impugned termination order dated 05.11.1982 has been passed without affording any opportunity to the applicant. The applicant has been discharged/ exonerated in the criminal case. Hence, this OA.
The respondents filed their Counter Affidavit, inter-alia, stating therein that on receipt of telegram dated 23.10.1982 from Post Master, Kheri regarding cash accumulation at Kasta Kheri EDSO, necessary enquiries were made and was closed on 29.10.1982, 30.10.1982 and 03.11.1982 due to unauthorized absence from duty of the applicant Late Page 3 of 9 Manohar Lal. On 05.11.1982, when Post Office was opened the Government money of Rs.6560.11 with the applicant was found short by taking the money in his own use. A sum of Rs.495/- was also misappropriated by the applicant, making withdrawal from Kasta SB A/c. Thus, the applicant was found guilty of committing fraud by using Government money in his own expenses, as such the applicant was put off from duty and FIR was registered at PS Mitauli on 03.11.1982 under Crime Case No.145/82 and Section 409 IPC. The charge sheet was submitted by the PS Mitauli in the Court. Subsequently, the amount of loss was made good by the applicant. The applicant was appointed as Extra Departmental of Sub Post Master Kasta Kheri on 27.02.1981 and thus, on the date of occurrence of fraud he had not rendered more than three-year service, as such due to his unsatisfactory service he was terminated from service under Rule-6 of Extra Departmental Conduct & Service Rule, 1964 applicable at that time vide SPO's, Kheri Memo No. F-11/82-83 dated 01.08.1988. The criminal case was trialed in the Court of ACJM, Kheri and the applicant was acquitted. Since the services of applicant were terminated on 15.09.1988 in a departmental action, as such question of payment of allowances to the applicant does not arise. The departmental action taken against the applicant cannot be withdrawn as it has been taken on the basis of the evidences adduced during the open enquiry conducted by the independent Enquiry Officer appointed under CCS (CCA) Rules. It has been further stated that the applicant was not a permanent employee of the department but he was an extra departmental employee. The disciplinary proceedings are not needed in termination of service of an ED employee under Rule-6 of EDDA's (Conduct and Service) Rules, 1964. Further, it is also submitted that full opportunity has also been afforded to the applicant which is clearly evident by virtue of letter dated 27.11.2006. Thus, the alleged termination order is legally justifiable. The OA deserves to be dismissed.
The applicant (now deceased) has filed Rejoinder Affidavit wherein, it has been stated that Late Manohar Lal was exonerated from the criminal case. The basis of termination has disappeared with the discharge of the criminal case. It has been further alleged that the services of the father of the applicant Late Manohar Lal had been terminated even without following the due process of law and on this count alone dismissal order deserves to be quashed.
Page 4 of 9The submission of the learned counsel for the applicant is that applicant has been put off from duty vide order dated 03.11.1982 and 01.08.1988 without affording an opportunity of hearing to him. Further, submitted that the alleged criminal case on which basis the applicant was put off from duty has resulted in discharge of the applicant. Learned counsel for the applicant vehemently submitted that principles of natural justice have not been followed in the matter so OA deserves to be allowed on this score only.
Per contra, the learned counsel for the respondents submitted that Under Rule 6 of Extra Departmental Conduct & Service Rule, 1964 the disciplinary proceedings are not needed in termination of service of an ED employee under Rule-6 of EDDA's (Conduct and Service) Rules, 1964. Learned counsel for the respondents further contended that the opportunity of hearing has not been afforded to the applicant as alleged put off duty and dismissal order is based on Rule-6 only.
In Union of India & Others vs. Subrata Nath Civil Appeal Nos.7939-7940 of 2022 the Hon'ble Apex Court has laid down the broad parameter within which the Hon'ble High Court or Tribunal can exercise their powers:-
"19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran13 held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;Page 5 of 9
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex. Constable Ram Karan 14, a two Judge Bench of this Court made the following pertinent observations :
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded Page 6 of 9 by the competent authority that too after assigning cogent reasons."
21. A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur15.
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
In view of the afore cited law laid down by the Hon'ble Supreme Court the facts of the case are being analysed and evaluated.
In para-16 of the Counter Affidavit, it has been alleged by the respondent that the applicant was not a permanent employee of the department but he was an extra departmental employee. The disciplinary proceeding is not needed in termination of service of an ED employee under Rule 6 of EDDA,s (Conduct and Service) Rules, 1964. Further, it is also submitted that full opportunity has also been afforded to the applicant which is clearly evident by virtue of letter dated 27.11.2006 contained as Annexure-No.1 to this OA. In Para 3, it has been admitted that applicant has been acquitted. For ready reference the letter dated 27.11.2006 and two annexures are quoted below. As by Page 7 of 9 these letters, it has been clear that the opportunity of hearing has not been provided to the applicant.
"भारतीय डाक विभाग कायाालय - सेिा में श्री मनोहर लाल पुत्र श्री जीिन ननिासी ग्राम ि पोस्ट का रास्ता िाया बेहजम खीरी पत्राांक - ऐप पब्ललक इनफॉरमेशन 7607 दिनाांक खीरी 27 11 2006 विषय सच ू ना का अधिकार अधिननयम 2005 के अांतगात माांगे गए अभभलेखों की प्रनतयाां उपललि कराया जाना I सांिभा - आपका प्रार्ाना पत्र दिनाांक 13 11:2006 आपके द्िारा माांगी गई ननम्न अभभलेखों की प्रनतयाां प्रमाणित प्रनतयाां प्रेवषत की जा रही हैंI (1) डाक ननरीक्षक िक्षक्षि खीरी के ज्ञापन सांख्या A/Kasta EDSO/82-83 dtd 03.11.82 की प्रनत I (2) डाक अिीक्षक खीरी के ज्ञापन सांख्या F-11/82-83 दिनाांक 01.08.88 की प्रनत I सांलग्न उपरोक्तअनुसार 2 CPIO Kheri Postal Dn.
Kheri-262701 xxxx xxxx xxxx INDIAN P&T DEPARTMENT Memo No.A/Kasta ED/82-83 Dated at Kasta 3/11/82.
In exercise of power conferred in Rule 9 of EDAs Service and Conduct Rule 06, 1964, Shri Manohar Lal EDSPM Kasta is hereby put off from duty with immediate effect.
Sub Divisional Inspector/Post Offices Copy to:
1. Supdt. Of Post Offices Kheri Division, Kheri.
2. O/s Behgam to take ---proper charge of EDSPM Kasta Page 8 of 9
3. Shri Manohar Lal EDSPM Kasta to make over charge.
4. P.M. Kheri.
5. O/C."
xxxx xxxx xxxx
"DEPARTMENT OF POSTS
OFFICE OF THE SUPDT. OF POST OFFICES, KHERI
DN. KHERI 262701.
Memo No.F-11-82-83
Dated at Kheri the 01.8.88.
In exercise of powers conferred under rule 6 of EDAs (Conduct & Service) Rules 1964, I, Daya Ram, Supdt.
Of Post Offices Kheri Dn. Kheri hereby terminate the services of Sri Manohar Lal Ex EDSPM Kasta (Put off duty) with immediate effect.
(Daya Ram) Spdt. Of Post Offices, Kheri Dn. Kheri 262701.
Copy to:-
1. Sri Manohar Lal s/o Sri Jeeran Lal, r/o Village & Post Kasta, Kheri through SDI (S) Kheri.
2. Post Master Kheri.
3. SDI (S) Kheri.
4. All Branch D.D. Kheri.
5. O/C.
6. Spars."
From the perusal of the aforesaid letter dated 27.11.2006 and the attached two Annexures, it is manifest that opportunity of hearing has not been given to the applicant.
In Union of India and Others vs. P. Gunasekaran13 (2015) 2 SCC 610 it has been provided that if there is any violation of principals of natural justice in conducting proceedings the Hon'ble High Court and CAT can interfere in the matter. As Late Manohar Lal has not been afforded an opportunity of hearing and there is clear cut violation of natural justice, so, I agree with the contention of the learned counsel for the applicant that OA deserves to be allowed on this count only.
Perusal of record reveals that applicant has been discharged in the case on 06.03.2002 by Additional Chief Judicial Magistrate, Kheri Page 9 of 9 from the offence U/s 409 IPC. Thus, even charge was not framed against the applicant by the trial Court. The applicant has died also.
Keeping in view the aforesaid facts and circumstances particularly that opportunity of hearing has not been afforded to the applicant before termination order and even charge was not framed by the trial court against the applicant, the termination order dated 01.08.1988 deserves to be quashed.
It is pertinent to note that the employee Late Manohar Lal has died during the pendency of the OA. He has not worked so he is entitled for arrears of pay on the principles of no work no pay. As Late Manohar Lal has died there is no question of his reinstatement in service also.
In view of the above, OA deserves to be partly allowed. Termination order issued by Superintendent of Post Office, Kheri dated 01.08.1988 contained in Annexure -1 of the OA is quashed. Only family pension shall be payable to the legal heirs of Late Manohar Lal as per service rules. Order shall be complied with within two months from today.
There shall be no order as to costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha) Member (A) Member (J) Ak/-