Bombay High Court
The Union Of India Thru. Secty. & 2 Ors vs Prabhu Diwan Lute S/O Diwan Lute on 10 February, 2017
Author: V.M. Deshpande
Bench: Vasanti A Naik, V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4274/2007
PETITIONERS: 1. The Union of India through the Secretary,
Ministry of Communication, Department of
Post, Dak Bhavan, New Delhi 110001.
2. The Post Master General, Nagpur Region,
Nagpur - 440010.
3. The Senior Superintendent of Post Offices,
Nagpur Mofussil Division, Nagpur - 440012.
...VERSUS...
RESPONDENT: Prabhu Diwan Lute, s/o Diwan Lute
aged about 49 years, Occ : Presently
Nil, R/o village and Post Office Amgaon
Dighori, Tahsil and Dist. Bhandara.
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Dr. R.S. Sundaram, Advocate for petitioners
Shri R.K. Shrivastava, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 10.02.2017
ORAL JUDGMENT (PER : V.M. DESHPANDE, J.)
1. The Postal Department of Union of India is before this Court in the present writ petition, thereby the Department challenges the judgment and order dated 20.3.2007 passed by the learned Members of the Central Administrative Tribunal, Nagpur Bench in Original Application No.2001/2005. By the said judgment and order, the Tribunal set aside the ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 2 order of punishment imposed by the Disciplinary Authority and the respondent - original applicant before the Tribunal was directed to be reinstated in service forthwith with all consequential benefits including the back wages and seniority.
2. This Court admitted the present writ petition on 25.11.2008 and also granted the interim relief in favour of the petitioners in the writ petition.
FACTS :-
3. The respondent was appointed as an Extra Departmental Postal Assistant (EDPA) on 10.9.1975. He was promoted as an Extra Departmental Branch Post Master on 15.9.1985 and in the said capacity he was posted at Amgaon Dighori Branch Post Office. On 15.9.1997 in contemplation with the departmental action, in accordance with the Rules, he was placed under put off duty w.e.f. 15.9.1997.
4. On 17.2.1998 the Senior Superintendent of Post Office, Nagpur (Rural) Nagpur issued charge-sheet against the respondent vide charge-sheet No.F-4/4/D/P.D.L/97-98. The charge-sheet was issued under Rule 8 of E.D.A. (Conduct and Service) Rules, 1964.
5. An Enquiry Officer was appointed by the Authority to hold and conduct the departmental enquiry against the respondent and also appointed Presenting Officer.
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6. The respondent denied the charges. The respondent was duly represented in the departmental enquiry by his defence assistant.
The Enquiry Officer submitted his report on 6.7.1999 thereby recorded a finding that the charges levelled against the petitioner were not proved.
7. The Disciplinary Authority disagreed with the findings recorded by the Enquiry Officer by its disagreement note dated 3.4.2001. The said detailed note was furnished to the respondent along with the copy of the enquiry report. The respondent was also given an opportunity to make representation in respect of the report of the Enquiry Officer and the disagreement note. The said opportunity was availed by the respondent. The Disciplinary Authority vide order dated 26.9.2002 by virtue of powers vested in it under Rule 3 A of E.D.A. (Conduct and Service) Rules 1964 , revised Rule 5 of G.D.S. (Conduct and Employment) Rules, 2001 ordered that the respondent be removed from the post of EDBPM, Amgaon Dighori.
8. The respondent preferred statutory appeal before the Appellate Authority and the Appellate Authority vide its order dated 8.9.2004 dismissed the appeal.
9. That gives rise to the filing of Original Application No.2001/2005 by the respondent before the Central Administrative ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 4 Tribunal. The said application was contested by the petitioners herein. The learned Members of the Tribunal vide judgment and order dated 20.3.2007 allowed the original application on the ground that the Disciplinary Authority took unreasonable time of almost two years for disagreeing with the findings of the Enquiry Officer and also on the ground that the statements recorded in the preliminary enquiry were not supplied. Hence, this writ petition.
SUBMISSIONS :-
10. We have heard Dr. Shri R.S. Sundaram for the petitioners and Shri R.K. Shrivastava for the respondent.
11. According to the learned Counsel for the petitioners, the finding recorded by the learned Members of the Tribunal that no personal hearing was given to the respondent is contrary to the Rules. What is required is only to give an opportunity to the respondent to make a representation in respect to the disagreement note. He submitted that the disagreement note was supplied along with the copy of the enquiry report to the respondent. The respondent, according to the learned Counsel for the petitioners, availed the opportunity to make the representation and submitted his detailed representation.
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12. The learned Counsel further submitted that the order of the Tribunal that no material was supplied by the Disciplinary Authority regarding disagreement note is also not correct, inasmuch as he pointed out that the disagreement note is very detailed and it has considered each and every piece of evidence brought on record during the course of enquiry.
It is the further submission of the learned Counsel for the petitioners that the grave charges of misconduct were faced by the respondent. He pointed out that the respondent has misappropriated the amount of illiterate persons. He also submitted that during the enquiry, though the complainant - recurring account depositor has stated that she has not received any amount but the said amount was paid to the depositors after they lodged claim which was settled by the Department on 18.3.1998.
13. It is the further submission of the learned Counsel for the petitioners that in fact the respondent has admitted his guilt when his statement was recorded on 15.11.1997 and 20.11.1997 which were duly proved in the enquiry. He further submitted that at no point of time it was pointed out by the respondent before the Tribunal that there was any breach of principles of natural justice at the hands of the Disciplinary Authority. He submitted that if the Tribunal was of the opinion that the ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 6 proceedings against the respondent stands vitiated then the Tribunal ought to have remanded back the matter instead of straightway directing the petitioners - Department to reinstate the respondent. He, therefore, submitted that the present writ petition needs to be allowed.
14. Per contra, Shri Shrivastava, the learned Counsel for the respondent has supported the impugned order. He also invited our attention to the reply filed by the respondent before this Court in the writ petition. He submitted that the respondent is a victim of casteism. He submitted that statement of Naresh Taywade (Exh.P-5) and statement of Smt. Rekha Tangle (Ex.P-6) are nothing but a different outcome of the role of SDC (P) South played on the basis of caste and therefore, he submitted that the order needs to be maintained. CONSIDERATION :-
15. The respondent at the relevant time was admittedly discharging his duties as an Extra Departmental Branch Post Master (EDBPM) at Amgaon Dighori Branch Post Office. It is not in dispute that the respondent was having overall control over the Branch and was responsible for the disbursement of the amount of recurring account depositors on its maturity to the concerned depositors. ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 :::
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16. On 17.2.1998 the charge-sheet was issued against the respondent. The gist of the same is as under : -
(i) The respondent while working as EDBPM, Amgaon Dighori on 2.8.1997 forged the thumb impression of depositor of R.D. Account No.1554909 and withdrawn Rs.4,301/- and closed the account of depositor Smt. Satyabhama Namdeo Meshram.
(ii) That the respondent on 2.8.1997 withdrawn Rs.1,720/- from R.D. Account No.1555001 and closed the account but he failed to pay the amount to the depositor Smt. Tara Kisan Sarode.
Thus, according to the charge-sheet, the respondent has contravened the provisions of Rule 134 (IV) r/w Rule 143 (P) and Rule 144 of Branch Office Rules 17 of EDA (Conduct and Service) Rules, 1964.
17. The Enquiry Officer was appointed. In the enquiry, the Department was represented by Office Superintendent as a Presenting Officer. On 5.8.1998 the respondent denied the charges. The Presenting Officer produced the documents and the respondent requested that he be defended through is defence assistant and therefore, the Enquiry Officer granted ten days' time to him to intimate the name of defence assistant.
18. The respondent was permitted to be defended himself through his defence assistant and one Shri M.M. Tangade, Post Master ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 8 Kamptee was allowed to work as a defence assistant. The order-sheet dated 8.9.1998 shows that all copies of all the documents and statements were given to the respondent. The respondent did not produce any document, however, he desired that he will be examining one Shri Arvind Nimbarte, EDA Official as his defence witness and the said request was allowed by the Enquiry Officer.
19. During the enquiry, the Department examined Satyabhama Meshram (P.W.1) R.D. account holder and also Smt. Tara Sarode (P.W.2) the another account holder and also examined one Rekha Tangle and Naresh Taywade. The respondent though at the initial stage was permitted to examine Shri Nimbarte as defence witness, the respondent himself prayed to the Enquiry Officer that he does not wish to examine any defence witness.
20. During the course of enquiry, complaint of Satyabhama Meshram, dated 11.11.1997 and her statement dated 15.11.1997 were exhibited as Exh.P-3 and P-4. Similarly, statements of Naresh Taywade and Rekha Tangle were also exhibited as Exh.P-5 and P-6.
The statements of the respondent dated 15.11.1997 and 20.11.1997 were also marked as Exh.P-9 and P-10. The application of respondent dated 17.11.1997 requesting for credit of Rs.10,608/- to the treasury was also exhibited as Exh.P-11 and P-11-A. ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 9
21. It is trite law that the Disciplinary Authority is not bound to accept the findings given by the Enquiry Officer in toto. It is in the realm of the Disciplinary Authority either to accept the report of the Enquiry Officer in its entirety or can accept the same in part and also the Disciplinary Authority is well within its jurisdiction to reject the report of the Enquiry Officer in its entirety.
What is required for the Disciplinary Authority is, if the Disciplinary Authority is either rejecting the report of the Enquiry Officer in its entirety or in part, to record the disagreement note.
22. If the Disciplinary Authority chooses to differ with the findings recorded by the Enquiry Officer then the Disciplinary Authority is under obligation to give a notice, setting out his reasons for disagreement, to the delinquent. The issue in this behalf is well crystallized by the decision of the Hon'ble Apex Court in the case of S.P. Malhotra... Versus...Punjab National Bank and others, reported in 2013 (9) SCALE
113. In case the Disciplinary Authority wishes to differ with the findings recorded by the Enquiry Officer in the disciplinary proceedings, the Disciplinary Authority is under obligation and a duty is cast on the said Authority to record the reasons for the disagreement and to communicate the same to the delinquent and should obtain his response and only ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 10 thereafter giving due consideration to the reply could pass the order of punishment.
23. It is settled principle of law that the judicial review in such cases is limited one. The Tribunal or the Court cannot sit and pass the order as if the Tribunal or Court acts as an Appellate Court. If the findings are recorded by the Enquiry Officer or the Disciplinary Authority as in the present case, which are based on the evidence available on record, the Tribunal should not substitute its view and the order of punishment can only be interfered with if there is contravention of principles of natural justice.
24. In the present case, according to the learned Members of the Tribunal, there is a delay of almost two years in respect of the disagreement note from the date of the enquiry report. The copy of the original application filed before the Tribunal is available on record and it is at Annexure-B to the present writ petition. Perusal of the grounds raised in the said original application show that it is conspicuously absent in respect of the ground of delay caused by the Disciplinary Authority for issuing the disagreement note. Further from the tenor of the impugned Judgment, it is clear that the respondent herein was unable to point out any prejudice before the Tribunal in that behalf. It was not the case of the respondent that for no reasons the Disciplinary Authority failed to take ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 11 immediate decision about the disagreement causing a serious prejudice to the respondent.
In our view, the learned Members of the Tribunal have completely failed to consider the aspect of prejudice. Of course, the delay is an important aspect, however, for that, the delinquent must be able to show that such delay has caused prejudice to him, then only in our view, the delay in recording the disagreement note shall be fatal to the employer. Even otherwise according to us the delay is not much.
In the present case, since either before the Tribunal or before this Court the respondent was unable to point out that any prejudice was caused to him, in our view, the reasonings, as recorded by the Tribunal, are required to be set aside.
25. The learned Members of the Tribunal has observed in the impugned order as under : -
"We have also perused the disagreement note dated 3.4.2001 passed by the disciplinary authority. It is amply clear from the perusal of the disagreement note in question that the disagreement authority has relied upon various statements, etc. taken during the preliminary enquiry without supplying the same to the applicant. It is also the admitted position that the applicant was not associated in the preliminary enquiry. Thus, definitely, a great prejudice has ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 12 been caused to the applicant for the aforesaid acts of the disciplinary authority."
In that behalf, it is to be mentioned that a complaint was lodged with the Authority by Smt. Satyabhama Meshram, the depositor of R.D. Account No.1554909, so also, a statement of Tara Kisan Sarode, the other depositor, was recorded, by which they pointed out to the Authority that in spite of maturity of their R.D. Accounts, the amount is not paid to them. The statement of the respondent was also recorded on 15.11.1997 and 20.11.1997. In these two statements, the respondent has candidly admitted that he himself has filled the withdrawal slip and also withdrawn the amount.
Perusal of the enquiry report which is available at Annexure - E shows that on 8.9.1998 all the copies of the documents and statements were given to the delinquent. The statements were produced by the Presenting Officer on 5.9.1998. The enquiry report shows that the statement of the Satyabhama Meshram and all witnesses are duly exhibited, so also the statement of the respondent - delinquent dated 15.11.1997 was exhibited at Exh. P-9 and statement dated 20.11.1997 was exhibited at Exh.P-10. All the witnesses were duly cross-examined by the defence assistant in presence of the delinquent. During the course of the disciplinary proceedings, at no point of time, it was pointed out by the respondent - delinquent that his statements, dated 15.11.1997 and ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 13 20.11.1997 were not supplied to him or the previous statements of Satyabhama Meshram and the other witnesses were not given to him. If that be so, in our view, the Tribunal erred in recording the findings as narrated above and the same are required to be set aside.
26. The disagreement note is also available on record at Annexure - F. The perusal of the said note shows that the Disciplinary Authority has given detailed reasons as to why it wished to take a different view than the findings recorded by the Enquiry Officer. Surely the Disciplinary Authority was well within its jurisdiction to differ by recording the cogent reasons for the said.
27. An opportunity was given to the respondent to submit his detailed representation in respect of the disagreement note. A copy of the enquiry report was also supplied to the respondent for offering his representation - comments on the disagreement note. The respondent availed the opportunity of making representation and has filed his representation. According to the Tribunal, no personal hearing was given by the Disciplinary Authority, and therefore, it has caused breach of principles of natural justice. In absence of any Rules for granting personal hearing, in our view, the opportunity to make a representation in respect of the disagreement note to the Disciplinary Authority is sufficient to hold that there is no breach of principles of natural justice. Further the said ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 14 ground was also not raised before the Tribunal in the original application nor from the order impugned, which in our view is cryptic one, shows that the said point was urged before the Tribunal during the course of arguments.
28. The charge against the respondent was grave one. He was having direct control over the deposits made in the post office. He was holding the hard earned money of poor depositors in trust. He by his misconduct withdrew the amount of those two depositors and used for his personal gain. Then he admitted his guilt and also deposited the amount.
In our view, therefore, the Disciplinary Authority was well within its right to disagree with the findings given by Enquiry Officer as disagreement note clearly shows that Enquiry Officer completely failed to appreciate the documents and the evidence of witnesses examined in departmental enquiry.
29. Therefore, in our view, the order of removal of the respondent from service cannot be faulted with. The aforesaid discussion leads us to pass the following order.
O R D E R
(i) The writ petition is allowed. The judgment and order of the Central Administrative Tribunal, dated 20.3.2007 is hereby quashed and set aside and the order passed by the Disciplinary Authority, ::: Uploaded on - 23/02/2017 ::: Downloaded on - 27/08/2017 16:18:02 ::: wp4274.07.odt 15 dated 26.9.2002 stands restored so also the order passed by the Appellate Authority, dated 8.9.2004 is also confirmed.
(ii) However, there shall be no order as to costs.
JUDGE JUDGE
Wadkar
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