Central Administrative Tribunal - Delhi
Mrs. Kamla Devi vs Union Of India on 23 August, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3765/2011
Reserved on : 06.08.2013.
Pronounced on :23.08.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Mrs. Kamla Devi
W/o Sh. Satpal,
R/o Village and PO Khera Khurd,
Delhi-82. . Applicant
(through Sh. S.N. Sharma, Advocate)
Versus
1. Union of India
(Ministry of Communication)
Through its Secretry,
Deptt. Of Post (Sanchar Bhawan),
Parliament Street,
New Delhi-1.
2. Director of Postal Services,
Department of Posts,
Office of Chief Post Master General,
Delhi Circle, Meghdoot Bhawan,
New Delhi-1. . Respondents
(through Sh. T.C. Gupta, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) This O.A. has been filed seeking the following relief:-
(i) Quash and set aside order dt. 17.06.2011 (Annexure A-1) and order dated 31.12.2009 (Annexure A-2) with all consequential benefits of service including reinstatement in service restored to the applicant.
(ii) Pass other order or orders as deemed fit & proper in the facts & circumstances of the case.
2. Facts of the case are that the applicant, who was working as Gramin Dak Sewak (Branch Post Master) since the year 1991, on 19.02.2004 she was chargsheeted for major penalty proceedings on the following charges:-
Article I of Charge: It is allged against Smt. Kamla Devi that while working as GDS (BPM), Khera Khurd, Delhi, on 3.2.2001 received the pass book from Sh. Devender Kumar, depositor, (Saving Bank Account No.3147679) and after making entry in the branch post office daily journal, sent the passbook to the Post Office, Khera Kalan, Delhi, for seeking approval of withdrawl of Rs.10,000 by the depositor from his above account. But the said Smt. Kamla Devi did not give any receipt in lieu of pass book to the account holder. Further, Smt. Kamla Devi on 5.2.2001, after handling over the withdrawn money to the account holder, did not return the pass book nor gave any receipt in lieu thereof to the account holder.
Therefore, Smt. Kamla Devi, violated instruction no.20 printed under the heading Shakha Dak Pal Aisa Karna Kabhi Na Bhule in the Branch Post Office Instructions Book.
Therefore, by her above acts while working as Branch Post Master, Khera Khurd Post Office, she has failed to act with honesty, integrity and promptness and has therefore violated Rule 17 of the Additional Departments Service and Conduct Rules, 1964 read with Rule 21 of the Gramin Dak Sewak (Conduct and Employment) Manual, 2001.
Article II of Charge: It is alleged against Smt. Kamla Devi, that while working as GDS (BPM), Khera Khurd P.O. during 15.2.2001 to July, 2001, has entered the withdrawl of Rs.10,000 from account no.3147679 on 17.2.2001 in the Saving Bank Account Journal. But she did not send the Pass Book and withdrawl from dt. 15.2.2001 to the Account Office after making endorsement on the back of daily accounts of the Post Office. Whereas, the depositor has alleged that neither he had gone to the Post Office on 15.2.2001 nor he had received Rs.10,000 by way of withdrawn amount. Therefore, it is alleged against Smt. Kamla Devi GDS (BPO), Khera Khurd (put-off duty) that she has violated Rule 33 (1), 33(2) (1) and 33 (6) of the Dakghar Bachat Khata Manual and Rule 134 (4) of the Shakha Dakghar Manual, 7th Edition, by her above acts, while acting as Branch P.M., BPO, she failed to act with honesty, integrity and promptness, thus, violating Rule 17 of the Additional Department Service and Conduct Manual, 1964 read with Rule 21 of the GDS (Conduct and Employment) Manual, 2001. She denied the charges and an inquiry was conducted against her. The Inquiry Officer (IO) submitted his report on 27.02.2009 in which he found the charges leveled against the applicant to have been proved. The applicant was supplied a copy of the inquiry report and asked to submit her representation against the same. After examining her representation the Disciplinary Authority (DA) passed an order dated 31.12.2009 imposing the punishment of removal from service on the applicant. The applicant preferred a revision against this order which was dismissed on 17.06.2011. Aggrieved by the same she has filed this O.A. before this Tribunal.
3. She has challenged the disciplinary proceedings mainly on the following grounds:-
(i) The chargesheet was issued with predetermined mind and bias against the applicant by the DA.
(ii) The applicant was not afforded a fair and reasonable opportunity to defend herself.
(iii) The respondents had failed to produce all the listed documents mentioned in the chargesheet. Certain documents asked for by the applicant were not supplied causing great prejudice to her defence.
(iv) The statements of the prosecution witnesses do not prove the charges against the applicant.
(v) No independent evidence was produced in the inquiry to support the charges.
(vi) The IOs report is biased and is not based on assessment of evidence produced in the inquiry.
(vii) The DA also failed to consider all the points raisedby the applicant in her representation.
(viii) The Revisionary Authority (RA) failed to apply his mind to the points raised by the applicant in the revision petition.
ix) The penalty of removal from service is too harsh and disproportionate to the alleged misconduct.
4. In reply to the averments made by the applicant the respondents have filed their counter in which they have stated that a complaint was received from one Sh. Devender Kumar R/o H.No. 582, Khera Khurd Village, Delhi-82 and holder of Savings Account No. 3147679 at Khera Khurd Branch Post Office on 22.08.2001. The complainant had alleged that Rs.10,000/- from his aforesaid Savings Bank Account had been fraudulently withdrawn. He stated that he had a total balance of Rs.50,000/- in his account on 05.01.2002. He had withdrawn Rs.20,000/- and Rs.10,000/- on two different occasions respectively. On 06.02.2011 he handed over his passbook to the applicant to get the balance updated. Thereafter, despite asking for it several times, he was not given back his passbook by the applicant. Finally on 13.07.2001 he inquired about his passbook and balance in the account from Khera Khurd B.O. He was told that the balance in his account was only Rs. 10,707.10 instead of Rs. 20,707.10.
5. After preliminary inquiry the applicant (Smt. Kamla Devi) was put off duty and a chargesheet was issued against her on 19.02.2004. The inquiry report from the IO was received on 27.02.2009 wherein the IO held the charges against the applicant to have been proved. A copy of the said report was sent to the applicant for submitting her representation. The applicant submitted the same on 06.06.2009. After going through the entire case including the listed documents and the report of the IO the DA awarded the penalty of removal from employment on 31.12.2009. The applicant preferred a revision on 12.05.2010 which was rejected on 17.06.2011. The respondents during arguments have also stated that the applicant had deposited the misappropriated Rs.10,000/- subsequently thereby admitting her guilt. However, the applicants contention was that she had done so only for maintaining her good name in the village community.
6. We have heard both sides and have perused the material placed on record including the departmental file.
7. The first ground taken by the applicant is that the chargesheet was issued by the respondents with a predetermined mind as a result of bias against her. We do not see any merit in this argument. It is an admitted fact that the chargesheet was issued on the basis of a complaint received against the applicant.
7.1 The next ground taken by the applicant is that she was not afforded a fair and reasonable opportunity to defend herself as important documents were not made available to her. In this regard she has quoted the following two documents which were not produced in the inquiry:-
(a) Forensic/Hand writing expert in respect of withdrawal form of Rs.10,000/- dated 15.02.2001 of Savings Bank Account No. 3147679 of Khera Khurd , GDBO.
(b) Passbook receipt, acknowledgement book of Khera Khurd BO for February, 2001.
On going through the inquiry report, we find that the first all these documents were not produced by the respondents because no such document existed. They had not taken opinion of hand writing expert in this matter at all. The second document was asked for by the applicant and was also found to be relevant by the IO but could not be produced during the inquiry. In their reply the respondents have stated that both these documents could not be supplied to the applicant because they were not available. The applicant has stated in her averments that had these documents been produced the applicant would have from the first one proved that the withdrawal form contained signatures of none other than the account holder. From the second document she could have proved that the pass book of the account holder had not been kept back by her. In our considered opinion there is some merit in the arguments of the applicant as both these documents were vital for proving or disproving the charges against the applicant.
7.2 The next ground taken by the applicant is that the statements of prosecution witnesses did not prove the charges against the applicant. She has also stated that there was no independent evidence produced in the inquiry to corroborate the charges leveled by the complainant. She has also stated that the IO had not assessed the evidence produced in the inquiry to come to the conclusion that the charges against her were proved. In fact, according to her this was a case of no evidence as would be clear from the following:-
(i) The Pass Book Acknowledgement Book of Khera Khurd, Branch Post Office, neither made a listed document nor was produced as a defence document though demanded by the applicant. Therefore, Article-I of the charges could not be held to have been proved by the IO (Please refer at page 72 of the OA).
The department never stated that the Forensic Report/Hand Writing Expert Report on the signatures of the account holder appearing on the withdrawal slip dt. 15.02.2001 was not obtained to ascertain whether the questioned signatures were of the complainant/account holder. It was merely stated by the concerned department that the same was not available (kindly refer IOs report at page --- of the OA). Hence the Article-II of charges could not have been held as proved by the IO.
The IO in his enquiry report merely mentioned above facts on record of the enquiry without making assessment of the evidence which had come on records. It is one thing to mention about the facts of statements made by the witnesses but it is entirely different thing to prove the alleged charges without discussing and considering the evidences of both sides i.e., prosecution as well as defence.
IO failed to record independent & definite findings on each of the Article of charges in his enquiry report.
IO presumed the charges as proved without assessing as to how these stood proved. This shows BIAS on part of the IO.
IO shifted the onus to the applicant to disprove the charges when these were not proved by the prosecution. IO has observed in his enquiry report that:
During the course of inquiry proceedings the CO did not produce any evidence/document to show if she had returned the pass book to the holder of A/C No.3147679 and obtained acknowledgement for this. Moreover, the statement of Sh. Devender Kumar found unimpeached. His complaint received in the O/o the SSPOs Delhi North Dn. on 22.8.2001 about fraudulent withdrawal of Rs.10000 from SB A/S No.3147679 could not be nullified by the CO and even could not submit any evidence/document to show that the signature on the withdrawal from (SB-7) dated 15.2.2001 are of Sh. Devender Kumar depositor of this SB A/C whereas Sh. Devender Kumar in the presence of CO Smt. Kamla Devi has denied to have his signature on 24.9.2004 and 30.11.2004. From the above it is clearly established that the IOs enquiry report suffers from material procedural and legal infirmity.
IO failed to consider the fact that the Post Master, Khera Kalan had passed the pass book & withdrawal form dt. 15.02.2001 for Rs. 10,000/- and sent the same to Khera Khurd Branch Post Office. Therefore, the Post Master is presumed to have tallied the signatures of the account holder before passing the withdrawal & sending the above amount and pass book to Khera Khurd. The above post master being a material witness failed to appear in the enquiry. The IO failed to consider the fact of the complainant having not seen the withdrawal form during the investigation and recording of his statement by the investigation officer.
IO also failed to consider the fact that no objection as to the authenticity of the signatures of the account holder on the withdrawal form dt. 15.02.01 was raised by the Postal Assistant Sh. Rohtas Dahiya (SW-5). Even the withdrawal form was not produced in original in the enquiry. 7.3 We have gone through the IOs report and we find that the IO has held the charges to have been proved only on the basis of the statement of the complainant. Other than this the only evidence that has come against the applicant is that all the state witnesses who have merely affirmed that a complaint had been received from Sh. Devender Kumar against the applicant alleging misappropriation of Rs.10,000/- from his Savings account. In our opinion, the conclusion arrived at by the IO after analyzing the evidence that had become available in this inquiry cannot logically be arrived at. We are aware that in judicial review reappraisal of the evidence should not be done as the Courts cannot act as Appellate Authority and substitute their judgment for that of the DA. Yet in this case we find that the IO has reached to a conclusion in this inquiry report which does not logically follow from the appraisal of the evidence as neither the complainant nor any of the state witnesses have said anything that proves the charge as against the applicant.
8. In our opinion there is also merit in the contention of the applicant that the IO has shifted the onus on the applicant to disprove the charges against her. This is obvious from the reading of the inquiry report in which the IO has observed as follows:-
The CO and even could not submit any evidence/document to show that the signature on the withdrawal form (SB-7) are of Sh. Devender Kumar depositor of this SB/AC.. Thus, instead of proving the charge against the applicant the IO has concluded that the applicant has failed to disprove the charge against her clearly assuming that the applicant is guilty until and unless she proves otherwise.
9. In view of these findings of ours, it is not necessary to go into other grounds raised by the applicant.
10. We come to the conclusion that the respondents have failed to prove the charges against the applicant. Consequently we allow this O.A. and set aside the report of the IO and the impugned orders of the DA dated 31.12.2009 and Revising Authority dated 17.06.2011. The applicant will be taken back in service with all consequential benefits. However, the respondents will be at liberty, if they so desire, to proceed against the applicant afresh from the stage the chargesheet was issued to her, in accordance with law. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/