Central Administrative Tribunal - Cuttack
P K Das vs D/O Post on 9 August, 2024
1 O.A.No. 260/00647 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00647 of 2017
Reserved on 01.08.2024 Pronounced on 09.08.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Prafulla Kumar Das, aged about 64 years, S/o Late
Dasarathi Das, resident of At/PO - Athagarh, PS-
Athagarh, Dist- Cuttack, Odisha, PIN-754029, presently
working as GDSMC, Athagarh Bazar Kulailo Line,
Athagarh -754029.
......Applicant
VERSUS
1. Union of India, represented through its Secretary of Posts,
Dak Bhawan, Sansad Marg, New Delhi - 110116.
2. Chief Post Master General, Odisha Circle, At/P.O.
Bhubaneswar, Dist.- Khurda, Odisha - 751001.
3. The Superintendent of Post Offices, Cuttack South
Division, Cuttack-753001.
4. The Inspector of Posts (IP), Athagarh Sub- Division,
Athagarh, Dist - Cuttack, PIN-754029.
5. Postmaster, Athagarh Head Post-Office, Athagarh, Dist-
Cuttack, PIN-754029.
......Respondents
For the applicant : Mr. C.P.Sahani, Counsel
For the respondents: Mr. B.P.Nayak, Counsel
2 O.A.No. 260/00647 of 2017
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The facts in short are that while the Applicant was working as GDSMC Athagarh Bazar-Kuleilo Line in account with Athagarh Bazar SO under Athagarh HO, the Postmaster, Athagarh, vide Memo No. PM/PF PK DAS/2016 dated 20.06.2016 [A/6], placed him under off duty, in contemplation of Disciplinary proceedings, against him. Thereafter, in Memo No. PM/PF PK DAS/2016 dated 15.09.2016 [A/7] charge sheet under Rule 10 of GDS (Conduct and Engagement) Rules, 2011 was issued to him. The Applicant preferred appeal against his off duty order praying for his reinstatement which did not yield any result vide Memo No. A-4 dated 01.11.2017 [A/15]. Thereafter, vide Memo No. PM/PF PK Das/2016 dated 06.11.2017 [A/16], the Postmaster, Athagarh HO appointed IO and PO to proceed with the enquiry based on the allegation made vide Memo dated 15.09.2016 [A/7]. BEING AGGRIEVED, the Applicant filed this OA seeking to quash (i) Memo No. PM/PF PK DAS/2016 dated 20.06.2016 [A/6], (ii) Memo No. PM/PF PK DAS/2016 dated 15.09.2016 [A/7] (iii) Memo No. A-4 dated 01.11.2017 [A/15] and (iv) Memo No. PM/PF PK Das/2016 dated 3 O.A.No. 260/00647 of 2017 06.11.2017 [A/16] and direct the Respondents to allow him all consequential service and financial benefits within a stipulated period to be fixed by this Tribunal.
2. The grounds in support of his prayer as raised in his pleadings (OA, rejoinder and notes of argument) which were reiterated in course of hearing by learned counsel for the applicant, in gist, are that as per Rules 4&5 of GDS (Conduct & Engagement) Rules, 2011, ibid Rules,2011, the Recruiting Authority is the Disciplinary Authority in so far as GDS employees are concerned. The Postmaster is the Recruiting Authority for his own office and for other offices; the IPO and ASPOs are the Recruiting Authority. The Applicant was working as GDSMC, Athagarh Bazar Kulailo Line in account with Athagarh Bazar SO and not as a Messenger of Athagarh HO and, thus, issuance of the charge sheet by the Postmaster/Res No.5 is not sustainable in the eyes of law laid down in the case of Secretary, Ministry of Defence & Ors vs Prabhas Chandra Mirdha, (2012) 11 SCC 565.
3. Further contention of Ld. Counsel for the applicant is that on 01.01.1974, applicant joined as ED Night Watchman. At that relevant time, there was no minimum educational qualification provided under 4 O.A.No. 260/00647 of 2017 the ED (Conduct & Service) Rules, 1964 and, thus, the applicant did not submit any such certificate. Being vindictive when Postmaster/Res.No.5, insisted the Applicant to produce educational certificate, though it was not necessary after 42 years of continuance in service and original certificate of his reading in 4th standard having been lost meanwhile, he collected one Transfer Certificate in the year 2016 and submitted the same before the authority; based on such certificate charge memo was issued without giving details based on which it was found that the same was fake. Thus, by taking support of the decision of the Hon'ble Apex Court in the cases of UOI & Ors Vs. Gyan Chand Chattar, (2009) 12 SCC 785, Sewai Singh Vs. State of Rajasthan, AIR 1986 SC 995, Surath Chandra Chakravarty Vs. The State of West Bengal, AIR 1971 SC 752, and Shri Anant R.Kulkarni Vs. Y.P.Education Society & Ors, AIR 2013 SC 2098, it has been contended that the charge being vague, non specific, the charge memo is liable to be quashed. According to the Ld. Counsel for the applicant, the applicant did not produce the said certificate on his own to get any benefit of continuance in service by changing his date of birth earlier given by him when he was appointed 5 O.A.No. 260/00647 of 2017 in 1974. The respondents department after making necessary inquiry, appointed him and allowed to join and continue in service over a period of 42 years. Thus, based on the certificate collected and produced in the year 2016, at the instance of respondent No.5, questioning his initial appointment, which was made in the year 1974, and issuance of charge sheet at such a belated stage is not sustainable. In this regard, by placing reliance on the decisions of the Hon'ble Apex Court in the cases of P.V.Mahadevan Vs. M.D.Tamil Nadu Housing Board, 2005 SCC (L&S) 861, State of A.P. Vs. N.Radhakishan, (1998) 4 SCC 154 and of Hon'ble High Court of Orissa in the case of Surath Chandra Mallick Vs. State of Orissa & Ors, W.P.(C) No. 33496/2021, he has also prayed for the relief claimed in this OA.
4. The grounds of opposition taken in the counter have been reiterated by the Ld. Counsel for the respondents in course of hearing, according to which, the applicant was absorbed as EDMC, G.Gopalpur BO w.e.f. 01.01.1998. In course of service, he was engaged as GDS Messenger, Athagarh HO vide memo dated 26.07.2002 and, subsequently, vide Memo dated 03.02.2004 was directed to work as GDS MC Athagarh Kulailo Line under Appointing Authority and 6 O.A.No. 260/00647 of 2017 administrative jurisdiction of Postmaster, Athagarh HO. It is submitted that the Athagarh LSG SO was upgraded to Head Post Office from March, 1980. The Postmaster, Athagarh HO was in Higher Selection Grade-1 cadre which was higher than the cadre of Inspector of Posts, Athagarh Sub Division. The Postmaster, Athagarh HO is functioning as the appointment and disciplinary authority of the applicant, who was working as ED Night Watchman, Athagarh HO and was latter engaged as GDSMC, Athagarh-Kulailo Line. Thus, according to Ld. Counsel for the respondents that the stand of the applicant that the Postmaster, Athagarh HO is not competent to issue the charge sheet is not correct. Since no documents relating to his appointment was readily available, he was asked to submit school certificate and appointment related papers. Accordingly, he submitted Transfer Certificate dated 15.10.1990 issued by the Biswanatha Bidyapitha School, which, on verification was found to be forged as per the report of the Headmaster, Biswanath Bidyapitha, Athagarh dated 31.05.2016. Hence, in contemplation of disciplinary proceedings, the applicant was placed under off duty vide order dated 20.06.2016. He was allowed TRCA towards subsistence allowance during off duty as per rules. 7 O.A.No. 260/00647 of 2017 Subsequently, charge sheet under Rule 10 of the GDS (Conduct & Engagement) Rules, 2011 was issued vide Memo dated 15.09.2016. Copies of the relevant documents were also supplied to the applicant vide letter dated 06.12.2017. The applicant submitted appeal against his put off duty, praying for his reinstatement, which was duly considered but the competent authority did not accede to his request and reasons of such non acceptance of his request was duty communicated to him. Claiming no illegality or irregularity in putting the applicant under off duty and issuing charge sheet under Rule 10 of the GDS (Conduct & Engagement) Rules, 2011 vide Memo dated 15.09.2016, respondents prays for dismissal of this OA.
5. We have considered the arguments advanced by the parties with reference to their pleadings and perused the records.
6. Going by the documents produced by the applicant himself at Annexure-A/9 vis a vis the stand taken by the respondents in the counter, which was highlighted in course of hearing that the Postmaster being in Higher Selection Grade-1 and the post office to which the applicant was posted falls within the jurisdiction of the Postmaster, Athagarh in absence of any contrary order to the above 8 O.A.No. 260/00647 of 2017 effect being produced by the applicant, we are not convinced that the Postmaster Athagarh lacks competency to place the applicant under put off duty and issue charge sheet. Hence, the assertion of the applicant that the Postmaster was not competent to issue the charge sheet is overruled.
7. Next we have examined the stand point of the learned counsel for the applicant that the charge sheet is vague and unspecific. In the charge sheet it is alleged that the applicant was functioning as GDS (NWM), GDS MC Sahanga Gopalpur & GDS MC Athagarh Bazar-Kuleilo line for the period from 01.01.1979 to 20.06.2016. This allegation appears to be vague and is contrary to record; because, it is the specific case of the applicant that he was initially appointed as Night watchman on 01.01.1974 which has not been controverted and, on the other hand, it has been stated that the applicant was working as GDSMC from 01.01.1979 to 20.06.2016 which shows complete non-application of mind while preparing the charge sheet. Further, it is stated that the applicant submitted TC No. 74 dated 15.10.1990 in support of proof of his date of birth as 10.11.1952, which certificate during verification was found to be false but it has not been stated as to whether the DOB 9 O.A.No. 260/00647 of 2017 furnished by applicant at the time of his appointment way back in 1974 is different than the DOB mentioned in the TC No. 74. In the allegation it is stated the applicant produced a false Transfer certificate and he has got appointment on false Date of birth. According to Respondents, the TC No. 74 is stated to have been issued on 15.10.1990. As discussed above, the applicant was appointed in 1974. Therefore, it is not known as to how the applicant secured the appointment by giving his false DOB as 10.11.1952. The Applicant did not submit the TC on his own for change of his DOB at the last part of his service. It is the department who asked to submit the said certificate stating that document is not available. We take strong exception of such action of Respondent- Department in asking an employee to submit the certificate relating to his educational certificate in support of DOB since documents are not available. The service record of an employee is a sacrosanct document which ought not to have been misplaced but what action has been taken against the person, who was supposed to keep those records, is not forthcoming from record. Thus, it is established that the charge sheet has been issued without application of mind and is vague without giving details discussed above. It may be recorded that charge sheet is 10 O.A.No. 260/00647 of 2017 issued to an employee giving opportunity to submit his defence and, therefore, unless it is specific and reasoned one, obviously employee concerned cannot submit his defence effectively. Therefore, we find force on the submission of learned counsel for the applicant that the charge sheet is absolutely vague and indefinite.
8. At the same time, this Tribunal cannot close its eyes to another important aspect of the matter which is that the Applicant was placed under off duty vide order dated 20.06.2016 (A/6). Charge sheet was issued on 15.09.2016 (A/7). Applicant filed this OA on 09.11.2017. Respondents filed counter on 09.02.2018. Rejoinder was filed on 12.09.2019. The matter was heard and reserved on 01.08.2024. But neither in the pleadings nor in course of hearing, none of the parties apprised this Tribunal as to what happened to the disciplinary proceedings initiated against the applicant even after expiry of more than 09 years. Similarly, none of the parties informed this Tribunal as to when the TRCA paid to the applicant towards Subsistence Allowance was stopped upon severance of master and servant relationship on reaching the age of superannuation of applicant. When this OA was filed, the applicant stated that he was aged about 64 years and if it is 11 O.A.No. 260/00647 of 2017 taken as correct he must have been 71 years by now. Admittedly, a GDS employee is not entitled to pension and is only entitled to some amount in lump sum as one time measure.
9. The Hon'ble Apex Court in very many cases in past deprecated the long continuance of the order of suspension of an employee, in this case the off duty so also non conclusion of departmental proceedings even after passage of considerable long time, suffice to place reliance on the decision of the Hon'ble Apex Court in the case of Prem Nath Bali vs Reg.,High Court Of Delhi & Anr , AIR 2016 SC 101, relevant portion of decision is quoted herein below:
"28) This takes us to the last submission of learned counsel for the appellant, which in our considered view, deserves serious consideration.
29) One cannot dispute in this case that the suspension period was unduly long. We also find that the delay in completion of the departmental proceedings was not wholly attributable to the appellant but it was equally attributable to the respondents as well. Due to such unreasonable delay, the appellant naturally suffered a lot because he and his family had to survive only on suspension allowance for a long period of 9 years.
30) We are constrained to observe as to why the departmental proceeding, which involved only one charge and that too uncomplicated, have taken more than 9 years to conclude the departmental inquiry. No justification was forthcoming from the respondents' side to explain the undue delay in completion of the departmental inquiry 12 O.A.No. 260/00647 of 2017 except to throw blame on the appellant's conduct which we feel, was not fully justified.
31) Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee.
32) As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion.
33) Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.
34) Now coming to the facts of the case in hand, we find that the respondent has fixed the appellant's pension after excluding the period of suspension (9 years and 26 days). In other words, the respondents while calculating the qualifying service of the appellant for determining his pension did not take into account the period of suspension from 06.02.1990 to 01.03.1999.
35) Having regard to the totality of the facts and the circumstances, which are taken note of supra, we are of the view 13 O.A.No. 260/00647 of 2017 that the period of suspension should have been taken into account by the respondents for determining the appellant's pension and we accordingly do so.
36) In view of foregoing discussion, the appeal succeeds and is allowed in part only to the extent indicated above in relation to fixation of appellant's pension. The respondents are accordingly directed to re-determine the appellant's pension by taking into account the period of suspension (06.02.1990 to 01.03.1999) and then pay to the appellant arrears of the difference amount from the date he became eligible to claim pension and then to continue to pay the appellant re-determined pension regularly in future as per Rules. It is to be done within three months from the date of receipt of this order. No costs." [Emphasis added]
10. Thus, taking into consideration of the facts and law discussed above, we see no justifiable ground to refrain from interfering in this matter and, therefore, for the ends of justice, we quash the order of put of duty dated 20.06.2016, the charge sheet dated 15.09.2016 and the order of rejection dated 01.11.2017 and direct the Respondents to release all the dues which the applicant would have been entitled to ordinarily within a period of 60 (sixty) days from the date of receipt of a copy of this order.
11. In the result, the OA is allowed. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS