Central Administrative Tribunal - Lucknow
Satya Prakash Singh Son Of Shiv Ram Saran ... vs Union On India Through Secretary on 31 March, 2015
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 394/2006 Reserved on 19.5.2015 Pronounced on 31.3.2015 Honble Sri Navneet Kumar, Member (J) Honble Ms. Jayati Chandra, Member (A) Satya Prakash Singh son of Shiv Ram Saran r/o Vill and Post Rampur Kalan Tehsil Sidhauli, District- Sitapur. Applicant By Advocate:- Sri Dharmendra Awasthi Versus 1. Union on India through Secretary, Ministry of Post and Telegraph, New Delhi. 2. Chief Post Master General, Uttar Pradesh Parimandal, Lucknow. 3. Supdd. Of Post Offices,Sitapur. 4. Director , Postal Services, (Headquarters), Lucknow Respondents By Advocate: Sri S.P.Singh ORDER
BY HONBLE SRI NAVNEET KUMAR, MEMBER (J) The present O.A. is preferred by the applicant u/s 19 of the AT Act, with the following reliefs:-
a) To set aside the impugned order as contain in Annexure I to the O.A.
b) To direct the opposite parties to reinstate the applicant with all the consequential service benefits.
c) Any other suitable writ , order of direction which this Honble Court may deem fit and proper in the circumstances of the case.
d) To award costs of the petition to the applicant.
2. The brief facts of the case are that the applicant was initially appointed in respondents organization in 1983 and while he was working with the respondents organization, he was charge sheeted vide charge sheet dated 25.5.2000 through which certain charges were levelled against the applicant . The said charge sheet contains the statement of imputation as well as list of witnesses and documents. The applicant given the reply to the said charge sheet and subsequently, the enquiry officer submitted the report The applicant was given copy of the enquiry officers report to which he has submitted the reply and finally the disciplinary authority passed the orders of removal from service. The appeal so preferred by the applicant was also rejected by the Appellate authority. The applicant also submitted the revision to the Chief Post Master General, The said revision petition was also dismissed by the revisionary authority. The applicant challenges the aforesaid orders and preferred the present OA.
3. Learned counsel for applicant has drawn attention of the bench towards the Article of charges and has indicated that the enquiry officer though submitted the report but has not considered the material facts available at the time of enquiry and has also failed to appreciate that the amount was subsequently deposited by the applicant and the applicant has also not misbehaved with any of his superior authority. Learned counsel for the applicant has also argued that without giving any disagreement note, the disciplinary authority disagreed with the findings of the enquiry officer and passed the order of removal. Not only this, it is also vehemently argued by the learned counsel for the applicant that using of unparliamentary language with Up Mandaliya Nirikshak is not proved as in the enquiry report, it is mentioned tht he has misbehaved withDak Nirikshak, as such learned counsel for the applicant has indicated that entire proceedings is vitiated and is based on malafide intention and is liable to be interfered with.
4. On behalf of the respondents , reply is filed and through reply, it is indicated that there is no illegality in the impugned order and the applicant was removed from service after due enquiry. The order so passed by the respondents is speaking and reasoned order and there is no negligence and latches involved on the part of the respondents. Apart from this, it is also indicated by the learned counsel for the respondents that after service of the charge sheet, enquiry officer was appointed and the enquiry officer submitted his report and the applicant has also given the reply to the same and after considering the material available on record, the Disciplinary authority imposed the punishment. It is also argued by the learned counsel for the respondents that applicant while working as Branch Post Master, Rampur Kalan, Sitapur, the then SDI, Biswan visited on 4.11.1999 and on 17.12.1999 and during his visit, it is found that applicant is absent from duty without any information and during the course of verification, it is also found that sum of Rs. 240/- and 128/- was found short in cash though the aforesaid amount was made good by the applicant.
5. The applicant was placed under put off duty and a memo was given to him but the applicant refused to take the said memo and also refused to give his statement rather he misbehaved with the SDI, Biswan by using un-parliamentary language in presence of Dujai Lal. Accordingly, he was proceeded with charge sheet and action was taken and the applicant was removed from service. The appeal so preferred by the applicant was also considered and decided by the Director, Postal Services . The applicant also preferred the revision to the Chief Post Master General, U.P.Circle, Lucknow and the said revision was also considered and rejected by the authorities . The aforesaid appeal and revision was considered after due consideration of relevant rules, as such there is no illegality in conducting the enquiry and no interference is called for.
6. On behalf of the applicant, Rejoinder Reply is filed and through Rejoinder reply, mostly the averments made in the O.A. are reiterated and denied the contents of the counter reply. However, the applicant has also relied upon a decision of this Tribunal in O.A. No. 466/2006 and has indicated that in case of disagreement , copy of disagreement memo is required to be communicated to the delinquent and has also indicated that in terms of decision of Honble Apex Court in the case of Punjab National Bank and others Vs. Kunj Behari Mishra reported in 1998(2) SC SLJ 117 the disagreement memo was not required to be served upon the applicant since the authorities have not provided the disagreement memo, as such it required interfered by this Tribunal.
7. Heard the learned counsel for parties and perused the records.
8. The applicant while working with the respondents organization was charge sheeted vide charge sheet dated 20.5.2000. In the said charge sheet, certain charges were levelled against the applicant, through which it is indicated that the applicant remained absent unauthorisedly while he was working as Branch Post Master, Rampur Kalan, Sitapur on 4.11.99 and a sum of Rs. 128/- was found short in cash on 7.12.99. Again the applicant was found absent un-authorizedly on 17.12.99 and during the said period, a sum of Rs. 1571.05 paise was found short in cash. The shortage was made good by the applicant on subsequent date. It is also mentioned in the charge sheet that the applicant was placed under put off duty vide memo dated 10.12.99 and when the said memo was served upon the applicant, he refused to accept the same and misbehaved with one Sri Indraj Ram, the then SDI, Biswan by using un-parliamentary language, as such a charge sheet was served upon the applicant under Rule 8 of EDAs (Conduct and Service) Rules , 1964 on 25.5.2000.
9. After service of the charge sheet, enquiry officer was appointed and due enquiry was constituted on 12.10.2000, 24.8.2000, 26.9.2000, 6.10.2000 , 20.11.2000 , 8.11.2000, 22.11.2000, 10.4.2001 , 3.5.2001, 4.7.2001 and 18.10.2001 and after the full enquiry 10 days time was given to the applicant for submitting his defence brief which was submitted by the applicant on 1.5.2002. The enquiry officer recorded the statement of witnesses and applicant has produced his wife Smt. Poonam as defence witness who admitted that she used to work in place of the applicant when her husband is not well or he used to go for some urgent work and the applicant also produced one Sri Babu Ram Tiwari as defence witness who in his statement submitted that as and when he visited Post Office, he always found the applicant in post office as such he has no grievance against the applicant. Not only this, the applicant has also produced another witness who also indicated in his statement that he has also not faced any difficulty. Not only this , the applicant has also given his statement through which it is indicated that on 4.11.1999, 7.12.99 to 22.12.99, the applicant was ill and has also submitted the medical certificate and has indicated that on account of his health problem, he was not present in the post office and also indicated that he has made good the short cash subsequently.
10. The copy of the enquiry report was duly submitted and copy of which was also provided to the applicant through memo and applicant was also asked to submit the reply to the same. The applicant submitted the reply and also annexed the medical certificate, through reply , it is indicated by the applicant that he may be exonerated from the disciplinary proceedings and he may also be paid salary for the period on which he was put off from duty.
11. The disciplinary authority after considering the charge sheet, enquiry report and reply of applicant, passed the order dated 26.3.2003 through which the applicant was removed from service. It is indicated by the disciplinary authority that such an act of the applicant may be detrimental to the department and in future also, misappropriate of govt. fund may take place. On the basis of assumption, the authority has passed the order of removal. However, it is also indicated that the amount so found short in cash was subsequently made good by the applicant.
12. The applicant thereafter preferred an appeal to the Appellate Authority and in the appeal it is indicated by the applicant that medical certificate so submitted by the applicant was not considered by the enquiry officer and has indicated that enquiry officer also indicated that medicines which the applicant has mentioned has no relevant in regard to medical certificate. The appellate authority though dismissed the appeal so preferred by the applicant but fail to give reasons raised in the appeal. Not only this, the revision so submitted by the applicant was also rejected by the revisionary authority .
13. It is also to be indicated that the applicant was not well as such he was not found available in the post office at the time of inspection and as regard the amount so found short in cash was made good by the applicant subsequently and that too prior to issuance of the charge sheet. As regard using of un-parliamentary language is concerned, the same part is also not proved as the applicant has also produced three witnesses and out of three, two witnesses have given those statements that they have no grievance against the applicant, as the applicant was always found available in the post office.
14. The appellate authority has also not given any reason in his appellate order in regard to supply of documents. The disciplinary authority has reiterated the charges so leveled against the applicant and as regard the illness of the applicant is concerned, it was disbelieved on the basis of statement given by Smt. Poonam and has indicated that since no clear statement is given , such it is not believed. 15. It is once again reiterated that as regard using of un-parliamentary language is concerned, the appellate authority though admitted this fact that the applicant has denied the charges levelled against him but has also indicated that he has not submitted any evidence of the same, as such came to the conclusion that the applicant used un-parliamentary language against Up Mandaliya Nirikshak. The removal from service is a harsh punishment.
16. As observed by the Honble Apex Court in the case of Commandant, 22nd Battalion Vs. Surinder Kumar reported in 2011 (10) SCC 244, that Courts interference is warranted not only when punishment is disproportionate but it should be shockingly disproportionate.
17. In the instant case, it is explicitly clear that punishment of removal is shockingly disproportionate.
18. A departmental proceedings is a quasi- judicial proceedings. The enquiry officer performs a quasi-judicial function. The charge levelled against the delinquent officer must be found to have been proved. The essential features and elements of disciplinary proceedings have been dealt with by the Honble Apex Court in number of cases. An enquiry is to be conducted against any person in strict adherence to the statutory provisions and the principle of natural justice. The charges should be specific definite and setting out the details of the incident which formed the basis of charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable nor the same should be based on conjectures and surmises. There is a distinction between proof and suspicion. Every act or omission on the part of the delinquent cannot be treated as a misconduct. The authority must record reasons for arriving at the findings of fact in the context of the statute defining the misconduct. Evidence adduced should not be perfunctory. Even if the delinquent does not take the defence or raise any protest saying that the charges are vague that does not absolve the enquiring authority from being vitiated for the reason that there must be fair play in the action, particularly in respect of an order involving adverse or penal consequences. It is also to be indicated that when the enquiry report is challenged before any court of law on the ground of perversity, a mere suspension should not be allowed to take place or proof even in domestic enquiry. The evidential material must be such that it amounts to the guilt of the employee in respect of the charge against him with some degree of definiteness and the conclusion must be based on existent and relevant material.
19. Considering the submissions made by the learned counsel for parties, it appears that quantum of punishment so imposed upon the applicant is based on surmises and presumption, as such O.A. deserves to be allowed.
20. The impugned order dated 26.3.2003, 3.8.2004 as well as 2.9.2005 are quashed. The applicant be reinstated in service without any back wages since he has not worked during this period and the matter is remanded back at the stage of disciplinary authority who may pass a fresh order in accordance with law after providing a reasonable opportunity of hearing to the applicant.
21. With the above observations, O.A. is allowed. No order as to costs.
(Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-