Central Administrative Tribunal - Bangalore
Shiva Kumar C M vs D/O Post on 19 June, 2023
1
OA.No.483/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00483/2020
ORDER RESERVED ON: 08.06.2023
DATE OF ORDER: 19.06.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
C.M. Shivakumar,
S/o B.Chikka Muniyappa,
Aged 55 years,
GDS BPM (Put Off Duty)
Dommasandra BO,
a/w Sarjapura SO-562 125,
Residing at Near Post Office,
Dommasandra, Sarjapura Hobli,
Anekal Taluk-562 125. ....Applicant
(By Advocate Shri A.R. Holla )
Vs.
1. Union of India,
By Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110 001.
2. The Postmaster General,
Bengaluru HQ Region,
Bengaluru-560 001.
3. The Director Postal Services,
O/o Postmaster General,
Bengaluru HQ Region,
Bengaluru-560 001.
4. The Superintendent of Post Offices,
Channapatna Division,
Channapatna-562 160. ....Respondents
(By Shri N.B. Patil, Addl. Central Govt. Standing Counsel)
2
OA.No.483/2020/CAT/Bangalore Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the Memo No. F/3-2/18-19 dated 04.12.2019, issued by respondent No.4, (Annexure-A6), vide which the applicant has been dismissed from engagement with immediate effect.
b) To quash Order No. No. BGR/Vig/14-2/2020 dated 08.06.2020, issued by respondent No.3, (Annexure-8), vide which the appeal preferred by the applicant against his dismissal from engagement, has been rejected and the decision given by the Disciplinary authority dated 04.12.2019 has been upheld.
c) To quash the Memo No. BGR/Vig/15-2/2020 dated 21.09.2020, issued by respondent No.2, (Annexure-A11), vide which the revision petition dated 22.6.2020 preferred by the applicant has been rejected and the penalty imposed on him has been confirmed.
d) Direct the respondents to reinstate the applicant with all consequential benefits with full pay and allowances and continuity of service from the date of his dismissal till the date of his reinstatement treating his 'put off duty' period from 18.09.2018 till 04.12.2019 as on duty. 3
OA.No.483/2020/CAT/Bangalore Bench
e) Pass such other relief deemed fit, having regard to the facts and circumstances of the case.
2. The facts of the case, as averred by the applicant in his pleadings, are as follows:
a) The applicant was working as GDS BPM at Dommasandra B.O. a/w Sarjapura S.O. in Channapatna Division from 12.02.1993 to 17.09.2018. He was placed under 'Put Off Duty' with effect from 18.09.2018 in contemplation of disciplinary proceedings vide order dated 27.09.2018 issued by respondent No.4. Thereafter, disciplinary proceeding was initiated against the applicant under Rule 10 of GDS (C&E) Rules, 2011, framing 3 articles of charge vide memo dated 23.10.2018.
b) The gist of the charges against the applicant are that:
i. he has paid 2 eM.Os of Rs.600/- each to Smt. Puttamma on 25.08.2018 and 28.08.2018, after deducting Rs.30/- from each of the eM.Os, ii. he has paid 2 eM.Os of Rs.600/- each to Smt. Rathnamma on 28.08.2018 and 30.08.2018, after deducting Rs.30/- from each of the eM.Os. and iii. he has paid 2 eMOs of Rs.600/- each to Smt. Nagamma on 28.08.2018 and 30.08.2018 after deducting Rs.30/- from each of the eM.Os.
c) An inquiry was held in to the above articles of charge. The Inquiry Officer submitted his report dated 26.07.2019 holding that all the articles of charge were proved against the applicant. Thereafter, the respondent No.4, enclosing a copy of the Inquiry Report, issued an order dated 29.07.2019 directing the applicant to submit his 4 OA.No.483/2020/CAT/Bangalore Bench representation on the findings within 15 days. The applicant submitted a detailed reply on 14.08.2019 explaining how the findings of the inquiry were not tenable.
d) The respondent No.4, passed orders dated 04.12.2019 imposing the penalty of dismissal of the applicant from engagement. The applicant preferred an appeal against the said order to respondent No.3 on 23.01.2020. The respondent No.3 rejected the appeal, by an order dated 08.06.2020.
e) The applicant submitted a petition to respondent No.2 under Rule 19 of the GDS (C&E) Rules, 2011, on 22.06.2020. The respondent No.2 considered the request of the applicant for an opportunity for personal hearing and the applicant was directed to be present before him on 20.08.2020 vide order dated 06.08.2020. Subsequently, the respondent No.2, by an order dated 21.09.2020 confirmed the penalty imposed on the applicant and rejected the revision petition.
f) There was no complaint from the recipients of the eM.Os Smt. Puttamma, Smt. Nagamma and Smt. Rathnamma against the applicant for having deducted the amount from the eM.Os payable. As such, the findings of inquiry are not sustainable.
g) This is a case of no evidence. The allegations against the applicant have not been proved based on legally admissible evidence. The Inquiry Officer relied on the statements made by the witnesses and the applicant before the investigating official at the time of preliminary 5 OA.No.483/2020/CAT/Bangalore Bench inquiry to hold that the articles of charge were proved. These are the involuntary statements made at the behest of the officials of Postal Department under the threat of police action. The disciplinary authority has not relied upon the authenticity of these statements but ordered a regular inquiry into the articles of charge. The findings given based on the statements made in the preliminary inquiry, which are not subjected to cross examination, are not sustainable in law.
h) With regard to the 1st article of charge that the applicant had made deduction of Rs.30/- from the amount Rs.600/- payable under the eM.O., the Inquiry Officer relied on deposition of Smt. Puttamma (PW3) Ex.P8 dated 15.09.2018 and Ex.P9 dated 29.09.2018 made in the preliminary inquiry, which are not subjected to cross examination. Hence, the finding of the Inquiry officer in respect of the article No. l of the charge is perverse.
i) With regard to the 2nd article of charge that the applicant had made deduction of Rs.30/- from the amount Rs.600/- payable under the eM.O., the Inquiry Officer relied on deposition of Smt. Nagamma (PW5) Ex.P11 dated 29.09.2018 made in the preliminary inquiry, which is not subjected to cross examination. Further, the Inquiry Officer relies on the evidence of Smt. Venkatalakshmi (PW1) to hold that the article of charge is proved against the applicant. The evidence of Smt. Venkatalakshmi is totally irrelevant, as she is a stranger to the proceedings.
6
OA.No.483/2020/CAT/Bangalore Bench
j) With regard to the 3rd article of charge that the applicant had made deduction of Rs.30/- from the amount Rs.600/- payable under the eM.O., the Inquiry Officer relied on deposition of Smt. Rathnamma (PW10) Ex.P16 dated 29.09.2018 in the preliminary inquiry, which is not subjected to cross examination. The Inquiry Officer relies on the evidence recorded by Smt. Venkatalakshmi (PW1), who is a stranger to the proceedings.
k) The Inquiry officer has not recorded the evidence of the witnesses in the regular inquiry. The witnesses have not made any deposition before the Inquiry Officer, but have affirmed the statements alleged to have recorded in the preliminary inquiry. However, all the recipients of the eM.Os admitted that they have received full amount covered by the M.Os. They have not complained of the alleged deduction made by the applicant, as per the articles of charge.
l) The GDSMD, Sri. Y. Thimmaiah (PW13) was on duty during August 2018 when the eM.Os in question were delivered. The said Sri. Y. Thimmaiah used to deliver the M.Os. to the recipients at their addresses. The applicant has delivered the M.Os. in the Post office across the counter to those who have taken M.Os from the Post office. The deposition of the said Sri. Y. Thimmaiah has been completely disregarded by the Inquiry Officer. The Inquiry Officer has failed to discuss the evidence properly and arrive at the conclusions.
m) The Appellate Authority has failed to consider the appeal of the applicant in accordance with the Rule 18 of the GDS (C&E) Rules, 7 OA.No.483/2020/CAT/Bangalore Bench 2011, in as much as whether the procedure specified in the rules were complied with, whether the findings are justified and whether the penalty imposed is excessive etc., and pass order accordingly.
3. The respondents have filed their written statement wherein they averred as follows:
a) The applicant who was working as Gramin Dak Sevak Branch Postmaster (in short, GDS BPM) at Dommasandra Branch Office (in short, BO) attached with (in short, a/w) Sarjapura Sub Office (in short, SO), from 12.02.1993 to 17.09.2018, was kept off duty on 18.09.2018 by the Inspector Posts. Kanakapura Sub Division, on contemplation of Disciplinary proceedings. This was in connection with alleged short payment of electronic Money order (in short, e-MO) amount to the payees. Subsequently the Put off Duty (in short, POD) was ratified by the Respondent No.4 on 27-09-2018. The applicant was alleged to take gratification for making payments of e-MO to the payees by deducting Rs.30/- from the e-MO amount.
b) Inspector Posts, Kanakapura Sub Division, Kanakapura had visited Dommasandra village on 15.09.2018 in connection with enquiry into the allegation published in the English daily newspaper 'Indian Express' dated 15.09.2018 under the heading "Postal staff make Unofficial' cut from seniors pension". It came to the notice of the Inspector Posts (in short, IP) that the applicant was effecting payment of e-MOs without giving amount mentioned in the e-MO form to the payees, but deducting Rs.30/- for each money order paid to the payees. 8
OA.No.483/2020/CAT/Bangalore Bench IP, Kanakapura sub division, reported the details of few cases, in which the applicant used to deduct Rs.30/- for payment of each money order to the payees. Further, during the enquiry, many of the Social Security Pensioners (payees) complained that the pension amount received through money order is not being paid at their doorsteps, instead they had to attend Dommasandra Post Office, for collecting the amount. They further stated that, while they had attended Dommasandra Post Office, the pension amount was usually being paid by the applicant and they were being regularly paid by him from past many years and also stated that, on each occasion of payment was effected at post office, Rs.25/ and Rs.30/- is paid short for the money order value of Rs. 500/- and Rs. 600/- respectively.
c) Disciplinary action, under Rule 10 of Gramin Dak Sevak (C&E) Rules, 201l was initiated by the respondent No.4, against the applicant. The IO submitted his inquiry report dated 26.07.2019 (Annexure R2), in which he held all the three articles of charge framed against the CGDS as proved beyond doubt. The representation of the applicant dated 14.08.2019 (Annexure A5), on IO report, was received at the office of Respondent No.4 on 19.08.2019. Considering all aspects of the case & the representation of the applicant dated 14.08.2019, the applicant was ordered to be Dismissed from engagement by the Disciplinary Authority (Respondent No4) vide memo no: F/3-2/18-19 dated 04-12- 2019.
9
OA.No.483/2020/CAT/Bangalore Bench
d) The applicant preferred an appeal dated 23.01.2020. Based on the evidences emerged during the course of investigation and graveness of the lapses on the part of the applicant, the Respondent No.4 initiated Disciplinary Action against the applicant and after considering the Inquiry officer's report and examining the representation of the applicant on IO report, the Disciplinary Authority concluded the same with the order of Dismissal of the applicant from the engagement. Further, the applicant was provided with all sufficient opportunities under the principle of natural justice to defend his case starting from the point of investigation and till the exhausting his remedies of appeal and Revision petition under the relevant rules of the Department.
e) The payees mentioned in the memorandum of articles of charge, viz., Smt. Puttamma, Smt. Rathnamma and Nagamma, are illiterate and not having the knowledge of rules of the Department. The innocent poor villagers do not have voice to protest against the misconduct of the Applicant. If they had courage, education and knowledge of the rulings of the Department, they would have given complaint against the Applicant. Hence, the contention of the Applicant that, there is no complaint against him, is not correct. The Applicant took undue advantage of the innocence of poor villagers. The charges imposed on the applicant were very well established during the inquiry.
f) The payee Smt. Puttamma, PW-3, at the time of cross examination by the Applicant, during the course of inquiry, categorically says that, in her case, amount was being deducted by the Applicant. This means that 10 OA.No.483/2020/CAT/Bangalore Bench the Applicant was in the habit of deducting money from the value of Money Orders to be paid to the payees. Smt. Puttamma has once again confirmed during the inquiry stage that her statement recorded at the time of investigation is correct. This clearly establishes the misconduct of the Applicant and substantiates that the contention of the applicant is not correct. The applicant was allowed to cross examine the said Prosecution Witness by availing the service of his Defence Assistant, Sri S.S. Manjunath. The Deposition of Smt. Puttamma, Prosecution Witness no.3 dated 13.03.2019 is marked and produced as Annexure R6 & Daily order sheet no.4 dated 13.03.2019 is marked and produced as Annexure R7. 17.
g) Smt. Nagamma PW-5 categorically says in her deposition dated 27.03.2019 (reply to Q-I of cross examination by the Applicant) given before the Inquiry officer, during her cross examination by the Applicant, that amount is being received after deducting Rs. 30/- from each money order. This implies that the Applicant had effected payment to the payees after deducting Rs. 30/- for each money order. Smt. Venkatalakshmi, Prosecution Witness-1 (in short. PW-1) is not a stranger in the inquiry. She has been identified as PW-I and is a writer of Exhibit-8 (in short, EXP-8) who wrote statements on behalf of the payee Smt. Nagamma, who does not know writing. If Venkatalakshmi is not part of inquiry, the Applicant would have raised objection during the course of inquiry i.e. at the time of marking of documents and examination of witnesses itself. The Applicant who has put in 24 years 11 OA.No.483/2020/CAT/Bangalore Bench of service in the Department should be very well aware of the fact that all the connected witnesses will also be summoned to appear before the inquiry to elicit the truth. Further, Smt. Nagamma Prosecution Witness-5 deposed on 26.03.2019 & 27.03.2019 vide Depositions dated 26.03.2019 and 27.03.2019. Hence, the said prosecution witness was cross examined. Hence, the contention of the applicant is not correct. The Depositions of Smt. Nagamma, Prosecution witness No.5 dated 26.03.2019 & 27.03.2019 are marked and produced as Annexure R3 & Annexure R9 and Daily order sheet No.5 dated 26.03.2019 is marked and produced as Annexure R10.
h) The payee Smt. Rathnamma, Prosecution Witness-10, identifies Exp-
15 and Exp-16 (the statements given by her about deduction of money while paying money order amount by the CGDS to her) and deposes that she does not know writing. Her daughter, Smt. Venkatalakshmi PW-1 has written it. The PW-1 in her deposition says there was no pressure from any one to write the statements and as per the say of Smt. Rathnamma, she has written statement. Smt. Rathnamma was not cross examined by the Applicant in the inquiry about deduction of money while paying money order amount to her. The officer who recorded the statements during preliminary investigation was cross examined and it will constitute a cogent proof to up hold the charges. The record clearly shows that PW-1 is not a stranger but part of inquiry proceedings. If otherwise, all the doors were open for the applicant to object to her examination during the course of the inquiry itself. Further, Smt. 12 OA.No.483/2020/CAT/Bangalore Bench Rathnamma, Prosecution Witness No.10 appeared for inquiry and deposed before Inquiry officer on 27.03.2019 and the same was recorded in Daily Order Sheet (in short, DOS) NO.6 dated 27.03.2019. The Deposition of Smt. Rathnamma, Prosecution Witness No.10 dated 27.03.2019 is marked and produced as Annexure R11 and Daily order sheet no.6 dated 27.03.2019 is marked as Annexure R12.
i) In the instant case, the Respondent No.4 i.e. the Disciplinary Authority, has ordered the Inspector Posts Kanakapura sub division to carry out the investigation based on the item published in the New Indian Express dated 15.09.2018. After the receipt of investigation report, based on the findings of the Investigating officer, as per the provisions of GDS (Conduct & Engagement) rules 2011, disciplinary action was initiated by the Respondent No.4 i.e., Disciplinary authority. The witnesses who deposed before the Investigating Officer need not again depose before the Inquiry Officer who is nominated for conducting the Oral inquiry. Also, for framing the Charge sheet, the Disciplinary Authority will pick the cases and initiate disciplinary action. There is no binding on the disciplinary authority, to take all the cases in the Investigation report for framing the charge sheet. Further, the act of blaming the inquiry officer and inquiry proceedings by the applicant are just to cover up the misconduct of the Applicant. Further, during the inquiry, the Applicant had utterly failed to prove from any of the evidences that he was not deducting money while making money order payment, but whereas oral and documentary evidences adduced during 13 OA.No.483/2020/CAT/Bangalore Bench the inquiry proved the guilt of the applicant beyond any reasonable doubt. There were ample opportunities for him to prove his innocence, if he has truthfully not taken gratification from the innocent villagers for making e-MO payments.
j) The Standard of Proof required in a departmental inquiry is preponderance of probability and not proof beyond reasonable doubt, which is rightly applicable in the instant case. As in each stage, it was found that there is a preponderance of probability, the decision was taken accordingly by the Appellate Authority and Revisionary Authority. Also, the Charges against the applicant were grave in nature concerning his integrity. The misconduct on the part of the applicant was published in a leading English daily newspaper which has tarnished the image of the Department to a greater extent. It is proved beyond doubt that the applicant was effecting payment of Money Orders (in short, MOs) after deducting Rs.30/- for each money order. In doing so, the applicant has not only betrayed the indomitable trust reposed on him by the gullible villagers, but also by the Department.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant is challenging his termination from engagement. The charges made out against him, as per the charge memo, are that he had paid six money orders of Rs. 60/- each to 3 different persons after deducting Rs.30/- from each of these money orders. 14
OA.No.483/2020/CAT/Bangalore Bench
6. The respondents in their reply have stated that they had initiated an enquiry on the basis of allegations made in the English daily newspaper 'Indian Express' dated 15.9.2018. In this newspaper report it had been alleged that "Postal staff made unofficial cut from pension paid to senior citizens in the area covered under the State's Sandhya Suraksha Pension Scheme."
7. A perusal of the Indian Express report indicates that one Rajathiammal, a beneficiary of the old age pension scheme, had specifically alleged that old age pensioners are being made to go to the Post office located a kilometer away, to collect the pension. It had also been alleged that the pension is provided to them once in every two months, and Rs. 60/- is deducted. Hence, the payment made was allegedly only Rs.1,140/- against the due amount of Rs.1200/- for two months.
8. From the pleadings of the respondents, it is apparent that the entire enquiry was initiated on the basis of this newspaper report. There were no direct complaints received from any of the beneficiaries in that area. The charge memo also specifically lists only three beneficiaries, i.e. Smt. Puttamma, Smt. Nagamma and Smt. Rathnamma and it is alleged that they received the pension after deducting of Rs. 30/- from the pension due amount of Rs. 600/- on six different occasions.
9. The depositions made by Smt. Puttamma (Annexure R-6), Smt. Nagamma (R-8) and Ratnamma (R-11), which have been produced by the respondents in their reply, were perused carefully.
15
OA.No.483/2020/CAT/Bangalore Bench
10. Smt. Puttamma in her examination in Chief has categorically stated that she had received Rs.600/- each as Social Security Pension from Dommasandra Post Office through Shri Shivakumar. With regards to her statement marked as EXP.8 and 9, she has stated that she does not know the contents of EXP.8. There was a crowd near her house, as there was a complaint against the Postmaster. She also asked Smt Venkatalakshmi to write EXP. 8 on her behalf. She further stated that as people around her house were talking about deduction of amount from pension, she also stated that the amount is being deducted in her case as well. She further stated that she does not have any proof regards any such deduction.
11. The deposition of Smt. Nagamma, produced vide Annexure R-8 also indicates that she had given her statement vide EXP 10. She stated that some of the persons near her house had said that Rs.1000/- is being paid to all and a written representation is required for it. Hence, she also signed EXP-10, but she does not know the contents, as she does not know reading. She further stated that she had signed EXP-11 as per the instructions of the people near her house. She also further stated that she has no proof or evidence to show that any amount was deducted or collected from the money orders paid to her.
12. The deposition of Smt. Rathnamma produced vide Annexure R-11, also states that she had received Rs.600/- as pension amount. She further stated that EXP-15 and EXP-16 were written by her daughter as per the request of the Postal officer and she does not know the contents. 16
OA.No.483/2020/CAT/Bangalore Bench
13. After examining the statements recorded by the 3 prosecution witnesses, i.e. Smt Puttamma, Smt. Nagamma and Smt. Rathnamma, (R-6, R-8 and R11), it appears that there are contradictory statements made by the prosecution witnesses. They have stated that they have received the full amount of Rs.600/-. They have also indicated that the statements made by them in the preliminary enquiry were written by someone else and they are not fully aware of its contents, or they thought that they will be getting a reward for making such a deposition.
14. The Disciplinary Authority while awarding the punishment, in his order, has observed as follows "the charge against the CGDS is grave in nature concerning his integrity. The misconduct on the part of the CGDS was published in a leading newspaper which has tarnished the image of the department to a great extent. It is proved beyond an iota of doubt that the CGDS was effecting payment of MOs after deducting Rs.30/- for each money order. In doing so, he has not only betrayed the indomitable trust reposed in him by the gullible villagers but also by the department. Such instances need to be nipped in the bud itself to refurbish the image of the department which is known for the honesty and efficiency. The officials/GDS working in the department must be of unquestionable integrity and impeccable credentials. Even a small hole in a dam if it is left unplugged would bring havoc to the adjoining town. From the foregoing discussions, I have no hesitation in coming to the conclusion that the CGDS is not a fit person to be retained in service in the interest of the department/general public. 17
OA.No.483/2020/CAT/Bangalore Bench
15. The allegations made in the newspaper report indicates widespread malpractice or irregularities regarding deduction of Rs.30/- every month from the old age pension paid as social security pension. The statements recorded by the prosecution witnesses in disciplinary process do not appear to be convincing to reach a conclusion that there were widespread malpractices going on in the Post office of that area.
16. The quantum of punishment imposed on the applicant, based on such shaky evidence appears to be shockingly disproportionate to the allegations made in the charge sheet. There is no doubt that a severe penalty of dismissal from engagement would have been justified, if it had been proved that this is being done as a regular practice by the applicant in all cases of payments of money orders. However, even the charges of deduction of Rs.30/- from each of these 6 money orders quoted in the charge sheet do not appear to be fully proved on account of contradictory statements made by the prosecution witnesses.
17. Keeping the above in view, we deem it appropriate to direct that the matter shall be re-examined by the Disciplinary authority after re-assessment of the evidence quoted during the process of enquiry.
18. The orders issued by Respondent No.4 Annexure A-6, dated 04.12.2019, vide which the applicant has been dismissed from engagement is set aside. Similarly, the orders issued by Respondent No.3 Annexure A-8, dated 8.6.2020 and orders issued by Respondent No.2 Annexure A11, dated 21.9.2020, by which his appeal and revision petition have been dismissed, are also quashed.
18
OA.No.483/2020/CAT/Bangalore Bench
19. The Disciplinary Authority is directed to re-examine the matter particularly with regard to the evidence produced during the process of enquiry. He shall pass a considered and speaking order after due reconsideration of the evidence as well as the representation made by the applicant to the inquiry report vide his letter dated 14.8.2019. Compliance shall be made in an expedite manner, within a period not exceeding eight weeks from the date of receipt of a copy of this order.
20. The OA is disposed of in terms of the above orders.
21. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/