Central Administrative Tribunal - Kolkata
Nirmal Kr Saha vs D/O India Post on 24 March, 2022
No. 0.A. 350/0037 1/2020 1 oa. 350.00371.2020 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of order: 24.3.2022 M.A. 350/00540/2020 Present Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member Nirmal Kumar Saha, Son of Late Kalipada Saha, Aged about 52 years, Working as Sorting Assistant, AHRO RMS WB Division Howrah, Residing at 27/1, Ramlal Dutta Road, Bhadrakali, Uttarpara, Howrah -- 712232, West Bengal.
.... Applicant
- VERSUS-
I. The Union of India, Through the Secretary, Ministry of Communication, Department of Post, Dak Bhawan, New Delhi -1.
Il. The Chief Master General, West Bengal Circle, Yogayog Bhawan, C.R. Avenue, Kolkata -- 700 012.
Ill. The Director of Postal Services (HQ), Yogayog Bhawan, C.R. Avenue, Kolkata -- 700 012.
IV. The Senior Superintendent, Railway Mail Service, West Bengal Division, Howrah -- 711 101.
2 ga. 350.0037 1.2020 VV. Mr. NK. Biswas, | Enquiry Officer and Assistant Superintendent, AMPC, Kolkata Airport Sorting Division, Kolkata -- 700 O52.
.. Respondents For the Applicant : Mr. A. Chakraborty, Counsel For the Respondents : Ms. D. Nag, Counsel ORDER {Oral} Per Ms. Bidisha Banerjee, Judicial Member:
Ld. Counsels are heard.
This O.A. has been preferred to seek the following relief-
"ay The Charge Memorandum dated 4,11,2006 issued by the Respondent No. 4 is not tenable in the eye of lew and as suck the same may be quashed.
(3i} The Enquiry Report of Respondent No. 5 dated 33.4,.2019 and order of punishment dated 90,8.2019 issued by the Respondent No. + are not tenable in the eye of law and as such same may be quashed.
fii} Office Order dated 27,1,.2020 passed by the Respondent No. 3 ie. the» appellate authority is mot tenable in the eye of lew and as such the seune may be cashed. .
iv) An order do issue directing the Respondents to restore the pay of the applicant to the stage wherefrom the same was ordered to be reduced along with grant of all consequential benefits in favour of the applicant at an earliest along with grant of all arrears thereto and interest accrued thereon.
{v} Such further orderforders, and/or direction/directions as your Lerdships may deem fit and proper."
3, 'The legal lacunae in the proceedings, as alleged by the applicant, are the following:-
i) That, the charges have been framed based on a complaint lodged by one Ranjan Kumar Nayek (Complainant). Although i has been relied
3 9a. 350.00371.2020 thereof, the said complainant has not been listed as a witness in the list af witnesses to the said charge memorandum. N aturally, with an intention to deprive the applicant, he had not been extended the benefit | of examination and/or cross exarnination of the said complainant. Such omission vitiates the entire proceeding. The applicant, in course of enquiry made mumerous requests for inclusion of the complainant in the list of witnesses to be examined / cross-examined, but no heed was paid.
Neither the Disciplinary authority nor the Appellate authority paid any heed to the same.
fii} That, the impugned order of punishment itself is untenable in the eye of law since the punishment was imposed by an officer who is incompetent. That, the final order passed by an adhoc appointee in the post of Senior Superintendent, RMS WB Division, who is an approved Group B Officer whereas the applicant was appointed by an officer of the JTS of Indian Postal Service Group A. Any such order passed by the Lower Authority is void and liable to be interfered with. Rule 47 of the Postal Manual Volume -- Tl provides that a Sr. Superintendent of Post Offices and RMS should be deemed te be competent to impose major penalty on an official wha was initially appointed by a Sr. Time Scale Officer of the IPS Group - A. fii} The impugned Charge Memorandum reveals the framing of charges for violation of Rule 62 of Postal Manual Volume ~ UT and absence ofthe --
applicant for a few hours om a single day. But a conjoint reading of Rule 62 and Rule 63 of the Postal Manual Volume III would indicate that absence for a single day permits treating the day as Dies-non and it is + ARAN AREA ERNE, 4 6,8, 350.00371.2020 'only when such practices are continued and the incumbent continues to remain absent from duty or overstays leave without permission, that the Rule permits initiation of Disciplinary action against the incumbent. That, the Disciplinary Authority as well as the Appellate Authority have thus misdirected themselves.
fiv) The order of punishment issued by the Respondent no. 4 and the Appellate Authority Order dated 27.1.2020 issued by the Respondent No. 3 are non-speaking one and arbitrary and are lable to be interfered with. iv}. That, a bare perusal of the Charge memorandum would reveal that the authority has already made up his mind about the guilt committed by the applicant but it is a settled proposition that the authority, while »/ issuing a charge sheet, is supposed to convey the delinquent about the charges and not come fo a definite conclusion about the alleged guilt as such the charge sheet is a mere ritual.
{vi} The charge as to the leaving office without permission cannot be acted upon since the applicant was paid the salary for the alleged date of incident Le. 28.6.2016, » vif} The second charge has been leveled against the applicant for alleged violation of one Clause 2417} of GID below Rule 3 of CCS {Conduct} Rules, 1964 whereas no such Rule exists, thus itis completely imaginary and accordingly, the allegation of violation of such rule can be stated to be not proved.
4. Per contra, respondents have averred as under:
Sri Nirmal Kumar Saha, Sorting Assistant, AHRO RMS WB Division, Howrah was arranged to perform duty of Attending Mail Agent No. 6 at MA Howrah RMS/2. On 28.06.2016, his duty hours was from.
5 ava. 350,00373.2020 competent authority. The late attendance of the applicant was questioned by Sri Ranjan Kumar Nayak, the then Assistant supervising officer on duty on that day. The applicant challenged the authority of said Sri Nayak, the then Assistant Superintendent of Posts, RMS WB Division, Howrah, who was the supervising officer on duty on that day and entered into an altercation with Sri Nayak and the applicant 'also tried to snatch the mobile phone of Sri Nayak from his hand. Sri Nayak was compelled to instruct the Head Mail Agent of the Set to stop its functioning and expressed his intention to lodge complaint with the GRPS Howrah and also asked Sri Gopal Ranjan Ghosal, HMA was suffered and peace of the workplace was disturbed badly. The said incident was captured in the CCTV footage of camera No. 15 installed at Camera No. 15, while Sri Ranjan Kumar Nayak accompanied by Sri Gopal Ranjan Ghosal along with the other staff namely, Sri Pulak Chatterjee, MTS (Ge. ~ C), MA Howrah RMS /2, Sri Tarak Nath Das, MTS (Gr. - C), MA Howrah RMS/w and Sri Biren Majhi, MTS (Gr. - C), MA Howrah RMS/2 who were seen in the CCTV footage dated 28.6.2016 applicant herein, attacked said Sri Nayak and without any provocation hit a punch on the face of Sri Nayak, Every bit of the said unpleasant incident was recorded in CCTV footage (Camera No. 15} dated 28.6.2016.
Superintendent of Posts, RMS WB. Division, Howrah, . who was the -
MA Howrah RMS/2 to accompany him. Thus the functioning of the Set _ MA Howrah RMS. As per eye witness evidence and also CCTV footage of .
(Camera No. 15}, was stepping out of the office room, the said Sri Saha,
6. oa, 350.00371.2020 "In consequence, Sri Nayak lodged General Diary at GRPS 'Howrah bearing no. 2333 dated 226.9016 and was admitted to Howrah District -- Hospital at 17:30 hours on 98.6.2016. The applicant left office at about 15:15 hours on his own accord and remained absent from duty till 19:90 hours. By such act of Sri Saha, the functioning of the scheduled Set had to perform with less manpower causing hindrance in smooth functioning of the set during the period of unauthorized absence of the applicant from the Set dated 28.6.2016. Sri Ranjit Kumar Halder, the then DSRM (HO), WB Dn. was entrusted for fact finding enquiry. On the basis of interim Inquiry report Sri Nirmal Kumar Saha, the applicant herein, was soap suspended by the SRM (Stg) WB Dn. vide memo No. BS /Nirmal Kumar te 5) Saha/Part dated 28.6.2016 and was confirmed by the SSRM WB Dn.
- vide memo No. B2-Misc/MA Howrah RMS dated 04.07.2016. The suspension was revoked by the authority vide SSRM memo No. B2- Mise/MA Howrah RMS dated 20.3.20 17 . The preliminary inquiry report was submitted by the then DSRM (HQ), WB dn, on 11.08.2016 from which it was revealed that gross icregularity was committed by the | applicant on the following egrounds:-
{fi} Late attendance,
(i) Violation of Office Order and insubordination, {iii} Wilful absence from duty and finally, fiv} Commission of gross misconduct by indulging in physical assault against Shri Ranjan Kr. Nayak on duty ASP.
The applicant was proceeded against and the charge memo was issued under Rule 14 of CCS (CCA) Rules, 1965 vide SSRM WB Dn.
7 = a.a. 350.00371,2020 memo No. SSRM/RMS WB DN/Con. dated 4.11.2016 under Article I 8s | The applicant was alleged to have violated Rule 62 of Postal Manual Vol, IN and thereby contravened the provision of Rule 3(1}(i) and 3 contravened the provision of Rule 3(1)fili) of CCS (Conduct) Rules, 1964, Sri Kallol Biswas, ASP, Kolkata AP Stg, Dn. and Sri Prasenjit Mallik, ASP, Howrah RMS2 were appointed as Inquiry Officer and Presenting Officer.
The Inquiry report was submitted. by the IO on 26.4.2019 and the Inquiry report was received on 23.7.2019. The said disctplinary was finally disposed of with the following order:-
Dn. Howrah is reduced by three (3) stages from Rs. 56,900/- to Rs. 52,000/- in the pay matrix of pay level - 6 for a period of three {3} years with effect from 1.9.2019 when he will net earn inerements of pay during the period of reduction and that on expiry of this period, the reduction will not have the effect of. postponing his future _ inerements of pay. His appeal dated 9.10.2019 was disposed of by the vide Memo dated 30.08.2019.
'(Dhii) of CCS (Conduct) rules, 1964 and also violated Clause 24(7) of.
GID below Rule 3 of CCS (Conduct) Rules, 1964 and thereby handed over to the applicant on 8.6.2019. His representation against case under Rule 14 of CCS (CCA) Rules, 1965 against the applicant "The pay of Sri Nirmal Kumar Saha, SA, Burdwan, RMS under WB.
appellate authority upholding the order of the Disciplinary Authority. _
8 oa. 350,00371,2020 in Chairman & Managing Director, United Commercial Bank & ors. v. B.C. Kakkar (2003) 2 SCC 93, the Hon'ble Apex Court observed as under:-
"7, Lord Greene said in 1948 in the famous Wedtiesbury Case (1948 (1) KS
223) that when a stanite gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not_permissible unless one or the ather of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irtelevant factors were considered; or the decision was one which no.
reasonable person could have taken.
SAAA .. where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Reyappa (1974) 4 SCC 3 (as in cases where punishments m7 disciplinary cases are challenged}, the question will be whether the administrative order is "rational? or "reasonable" and the test then is the Wernesbury test. The Courts would then by confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted. Hleeally or has omitted relevant factars from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. Uf his action does not satisfy these rules, it is to be treated as arbitrary."
GARE at
i) In Union of India and anr. v. G. Ganayutham 1997 (7} SCC 463, Apes Court summed up the position relating to proportionality in paragraphs 31 and 32, which reads as follows:-
" The current position of proportionality in administrative law in England and India can be summarized as follows:-
{1} To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illezal or suffered from procedural impropricties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters Had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse."
6. lt is evident that a detailed appeal was preferred. The Appellate Authority while issuing his order has not taken inte consideration the follewing:-
an 9 _o.a. 350.00371.2020 office within the duty period without permission', as "Dies non". In the present case, the applicant, has been chargesheeted also for 'late attendance" and "leaving duty place without permission"
which daes not seem to be in order. | Rule ~ 63 of Postal Manual Volume ~ VI reads "Whenever an official _ continues to remain absent from duty, over stays leave without permission and his movements are not known or he fails to reply to official communication the disciplinary authority may initiate action under Rule ~ 14 of CCS (CCA) Rules ~ 1964."
The Rule envisages that in a situation where an official continues to remain absent, whereas the allegation leveled is that of absence for a few hours, therefore, the propriety 'of alleging violation of Rule 62 and 63 ibid, is in question. fi) In Article -- Il the disciplinary authority has alleged that "this charged official / appellant while working as SA on 28.6.2016 below. Rule - 3 of CCS (Conduct) Rules, 1964 and thereby | contravened the provision of Rule -- 3(1) (ii) of CCS (Conduct) Rules, . 1964", | However, no such, Clause 24{7} of GID below Rule -- 3 of CCS (Conduct) Rules, 1964 is found available in the book titled "CCS (Conduct) Rules, 1964". Therefore, the legality and propriety of impugning the conduct under the said rule is questionable, | | {iii} It is evident that the final penalty order was issued by one 'Debkanti DasGupta, an adhoc Senior Supdt. RMS 'WB' Division (an approved Gr. 'B' Officer}. The applicant has raised an allegation.
manhandled Sri Nayek and thereby violated the Clause 24(7) of GID ee 10 oa. 350.00371.2020 that he functioned as the disciplinary authority and imposed the Major Penalty under Rule 14 of CCS (CCA) Rules, 1965 whereas an official who was appointed by an officer of the JTS of Indian Postal Services Gr. ~ A while holding charge of division cannot be punished by an officer of division of the PSS Gr, - B though holding - charge of the same division. | The ground is clearly taken in the appeal but not dealt with justiciably, | The respondents too while preparing their reply have very evasively stated that "Sri Debkanti Dasgupta, the disciplinary authority was posted to act as Senior Superintendent, Indian Postal Setvices Group ~ A post on officiating Atverigement by the Chief Postmaster. General, West Bengal Circle, Kolkata -12 and was enjoying all statutory powers by any officer working in adhoc / officiating arrangement. And for that, the order of punishment dated 30,8.2019 was rightly issued". But no supporting documents or rules have been brought to the fore. Hence, the competence of the officer to impose penalty to the applicant needs to be adequately dealt with. Thus extenuating factors are galore. 7%. The appellate authority -- required to examine whether the aberrations on the part of the respondents validate 'imposition of a penalty m the manner it has been imposed in the present case,
8. The DG, P&T No. 101/2/80-Disc. i, dated the 1st October, 1980
- clarifies that, *(2) Need for thorough examination of appeal and issue of a 'speaking order' ~ SOOO IR 11st, 350.00371.2020 A number of points are generally raised in the appeal and the appellant reasonably expects that the Appellate Authority would give weightare to those points before coming to any decision on his request.
SSRN Sub-rule (2) of Rule 27 clearly Jays down that the Appellate Authority shall consider -- :
fa} whether the procedure laid down in the CCS (CCA) Rules hee been complied with and if not whether such non-compliance has resulted in the violution of any provisions of the Constitution of India or in the faihire of justice;
(b} whether the findings of the Disciplinary Authority was warranted by the evidences on the record; and ic} whether the penalty is adequate, inadequate or severe.
Thus the rule requires that even if the appellant has not brought out any new points in the appeal, it is obligatory on the part of the Appellate Authority to discuss how there has been no procedural flaw or denial of opportunity of defence and that the findings of the Disciplinary Authority are based on evidences and are just. This is rarely done and the result is obvious. It has also created a feeling (though may not be quite correct) that the decisions of the Appellate Authority are arbitrary and summary in. nature. The Appellate Authorities should bear this in mind and issue the appellate orders in such a way that such unjust feelings or impressions are not created. This is possible only ifthe appellate orders discuss thoroughly the following points Q the procedural aspects as well as the fustness of the findings of the Disciplinary Authority with reference to the aclmissible evidences? , {i} a proper discussion of the points raised in the appeal; and (ij) any objective assessment of the lapse on the part of the punished official with a view to. coming to a decision that the charge{s} had been established and that the penalty is appropriate / adequate and does not require to be either toned down or enhanced.
a. Heads of Circles, etc, are requested to bring these instructions to the notice of all the officers so that the Appellate Authorities may not in ary case be found to be lacking In thoroughness of examination of appeals as required under Rule 27 of the OCS (CCA) Rules.
2RRR
9. In the aforesaid backdrop, the appellate order is quashed. The appeal is directed te be decided afresh, untrammelled by the earlier order on appeal, delving in depth into the aberrations complained of, grounds « « 12 0,a. 350.00371.2020 order to be issued within two months.
10, O.A. accordingly stands disposed of. No costs.
M.A. also stands disposed of accordingly.
(Dr. Nandita Chatterjee) (Bidisha Banerjee} Administrative Member , Judicial Member