Birendra Singh vs Union of India and others

Petitioner has challenged judgment dated 09.05.2014 passed by the Central Administrative Tribunal, Allahabad, Circuit Bench at Nainital in Original Application No. 710 of 2010-A Birendra Singh vs. Union of India and others.

The facts, in short, are as follows: Vide order dated 08.11.2004, petitioner was appointed on the post of GDS BPM at Simlasu and was working under the administrative control of the Superintendent of Post Offices, Chamoli Division, Gopeshwar, District Chamoli. When the petitioner was working there, Inspector Posts, Karanprayag (West) vide order dated 30.07.2007 by exercising power under Rule 12 of GDS (Conduct and Employment) Rules, 2001 (hereinafter referred to as ''the Rules'') put him off duty with immediate effect. This order was confirmed by order dated 09.08.2007 passed by the Superintendent of Post Offices, Chamoli Division, Gopeshwar. The Superintendent of Post Offices, Chamoli Division, Gopeshwar issued charge-sheet to the petitioner on 17.12.2007 under Rule 10 of the Rules. In the said charge-sheet, two charges were levelled against the petitioner. The first charge against the petitioner was that while working as GDS BPM Simlasu (Pokhari), the petitioner from 27.07.2007 to 31.07.2007 unauthorisedly kept cash amount with him. The second charge against the petitioner was that the petitioner failed to discharge his duties as while discharging his duties on 31.07.2007, he utilized a sum of Rs. 8,172/- for his own use and, thereby, misappropriated the Government money and, also, by interpolating the record of the post office, falsely showed balance of Rs. 10,736/-. The petitioner denied the charges levelled against him and requested that the Disciplinary Authority to let him face the open inquiry. The petitioner denied the charges and demanded an open inquiry, which was not denied by the respondents. One H.R. Arya, SDI Rudraprayag was appointed as Inquiry Officer to inquire the charges framed against the petitioner. The Inquiry Officer fixed 22.01.2008 for holding the enquiry. The petitioner, under the promise of a lesser punishment to be awarded to the petitioner given through his colleague in case the petitioner admits the allegations made in the charge-sheet, accepted the guilt. It is also submitted that in fact, respondent no. 4 and the Inquiry Officer wanted to short circuit the departmental proceedings by obtaining an admission of guilt from the petitioner in order to avoid the lengthy procedure of holding departmental proceedings. The petitioner begged apology and prayed for pardon. It is the further case of the petitioner that he had kept the cash amount at his residence under his personal safe custody in a Godrej Almirah when in the course of inspection, the alleged shortage of cash amount was noticed by the Mail Overseer, but no opportunity was provided to the petitioner to bring the cash amount from his residence. It is the further case of the petitioner that as per the note below Rule-11 of the Rules for Branch Officers (Sixth Edition), the Brach Post Masters are required to make their own arrangement for the safe custody of the cash and valuables on their own responsibility and they are at liberty to keep the cash and valuables wherever they like provided that the same are available when required and when called for. It is the further case of the petitioner that on 02.08.2007 itself, petitioner produced a cash sum of Rs. 8,172/-, which he had given to one Bhagat Singh Rawat- the next incumbent to the post of Branch Post Master, Simlasu, Post Office Simlasu, but this amount could not be deposited with Simlasu Post Office due to refusal of Bhagat Singh Rawat as the money was required to be deposited in UCR head. Ultimately, on 04.08.2007, a sum of Rs. 8,172/-, for which there was an allegation of misappropriation against the petitioner, was got deposited in Post Office Pokhari by the petitioner. On the basis of the said admission of the petitioner, Inquiry Officer submitted his inquiry report vide his letter dated 18.02.2008 to the Senior Superintendent of Post Offices, Chamoli Division, Gopeshwar holding the charge framed against the petitioner to have been proved based on the admission of guilt made by the petitioner. A copy of the inquiry report was also forwarded to the petitioner by respondent no. 4 for submitting his reply to the show cause dated 05.03.2008. However, the Senior Superintendent of Post Offices, Chamoli Division, Gopeshwar without considering the reply submitted by the petitioner and also without ensuring whether the alleged admission of guilt made by the petitioner was voluntary or not, passed the order dated 26.03.2008 by inflicting the penalty of removal from service on the petitioner. Against the order of removal from service passed by the Disciplinary Authority, petitioner filed an Appeal on 26.4.2008 before the Director, Postal Service, Uttarakhand Circle, Dehradun. The Appeal filed by the petitioner was rejected by order dated 10.12.2008. Thereafter, the petitioner filed a revision, which too was dismissed by order dated 11.05.2009. Aggrieved by the said order, the petitioner filed Original Appeal No. 1136 of 2009 before the Central Administrative Tribunal, Allahabad, Bench Allahabad. The Central Administrative Tribunal by order dated 06.10.2009 set aside the order dated 10.12.2008 and remitted the matter back to the competent Authority for reconsideration of the entire matter afresh after taking into account the proportionality of punishment. The order of the Central Administrative Tribunal is being reproduced as under:

"Heard Shri D. Tiwari holding brief of Shri Pankaj Srivastava lerned counsel for the applicant and Shri F. Ahmad holding brief of Shir S.C. Mishra, learned counsel for the respondents.

Learned counsel for the applicant stated that against the order of punishment of removal the applicant has preferred an appeal to the competent authority. The appellate authority vide order dated 10.12.2008, has passed the order without considering the grievance of the applicant. Leanred counsel for the applicant would contend that question of proportionality of punishment has not at all been considered by the competent authority. The applicant''s wife was seriously ailing and due to this reason the applicant was very much disturbed. Having left no option open to him, he spent the money of the depositors for purchasing medicines and for other personal use. But subsequently, the applicant has deposited the aforesaid amount in the Post Office.

Having given our anxious though to the pleas advanced by the parties counsel, we are satisfied that the competent authority has passed the order without application of mind and without considering the proportionality of punishment. We accordingly quash and set aside the order dated 10.12.2008, (Annexure ? A-2) and remit the matter back to the competent authority for reconsideration of the entire matter afresh, after taking into account the proportionality of punishment (quantum of punishment) and pass appropriate reasoned and speaking order within a period of three months from the date of receipt of copy of this order.

With the above directions, the OA is disposed of. No costs."

Thereafter, the matter of the petitioner was reconsidered by the Director, Postal Services, Office of Chief Post Master General, Uttarakhand Circle, Dehradun. The said Appeal filed by the petitioner was dismissed on 25.01.2010. Against the said order, the petitioner filed Original Application NO. 710 of 2010-A before the Central Administrative Tribunal, Circuit Sitting of Allahabad Bench at Nainital, which too was dismissed on 09.05.2014. Against the said order, the present writ petition has been filed.

Heard Mr. H.C. Bisht, learned counsel for the petitioner and Mr. Rakesh Thapliyal, learned Assistant Solicitor General for Union of India / respondent nos. 1 to 4.

Learned counsel for the petitioner submitted that in fact the petitioner denied the charges levelled against him. Since the petitioner was given understanding that in the event he admits the guilt, lesser punishment will be awarded to him, he admitted the charges at first instance, but subsequently, he denied the same and submitted that the amount was kept by him at his residence in his personal safe custody in a Godrej Almirah, but no opportunity was given to him to bring that amount. It is the contention of the learned counsel for the petitioner that once the petitioner denied the charges, appropriate opportunity of hearing should have been provided to the petitioner, but in the present case, no such opportunity was afforded to the petitioner. He further submitted that the opportunity of hearing should have been provided at least insofar as the confession part is concerned before imposing the penalty of removal from service.

Learned counsel for the petitioner referred Rule 10(b)of the Rules and submitted that since Rule 10(b) and proviso 1 and 2 to the Rule have been violated, the order of punishment deserves to be set aside. Rule 10(b), along with its provisos, reads as follows: "10. Procedure for imposing a penalty.-

(1) No order imposing a penalty shall be passed except after--

(a) ...

(b) such representation if any, is taken into consideration by the Appointing Authority:

Provided that the penalty of dismissal or removal from employment shall not be imposed except after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges:

Provided further that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry."

Learned counsel for the petitioner further submitted that as per Rule 10(b) and its provisos, the Inquiry Officer was not supposed to record the confessional statement of the petitioner after the same was denied by him, at the stage of defense and the inquiry should have been proceeded independently on the evidence led by the parties. He further submitted that since it was a case of removal from service, it was incumbent upon the Disciplinary Authority to provide reasonable opportunity of hearing to the petitioner as per Rule 10(b) and its proviso and the decision could have been taken on the basis of the evidence adduced. But this was not done.

Learned counsel for the petitioner further submitted that the quantum of punishment was not considered by the disciplinary authority at any stage, up to the Central Administrative Tribunal. He submitted that they have not considered the provision of Rule 9 (iv) of the Rules, which provides the nature of penalties. He further submitted that in fact, at the most, lesser penalty of recovery from time related continuity allowance of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders could have been awarded, but in the present case, the petitioner had himself deposited the amount within two days. It is further submitted by the learned counsel for the petitioner that Rule 18 of the Rules has also been violated.

In support of his submissions, learned counsel for the petitioner referred to paragraphs 6 & 7 of the judgment of the Gauhati High Court, Agartala Bench in the case of Mahindra Chandra Dhar Vs. Tripura Road Transport Corporation and Others reported in (2002) III LLJ 1094 Gau. Paragraphs No. 6 and 7 of the judgment are reproduced herein below: "6. In the present case, as indicated above, no written statement of defence, was filed by the appellant after receipt of the memorandum dated 16.6.1990 issued by the Managing Director. Thus, he did not admit any of the articles of charges in his written statement of defence. If that be so, in accordance with Sub-rule (5) of Rule 14 of the Rules, 1965, it was incumbent upon the disciplinary authority to either inquire into the charges himself or to appoint an Inquiry Officer to inquire into the charges. As a matter of fact, in consonance with the said Sub-rule (5) of the Rule 14 of the Rules, 1965, the disciplinary authority appointed an Inquiring officer to inquire into the Charges but unfortunately, the Inquiring officer instead of inquiring into the charges ex parte or otherwise and recording his findings on the charges on the basis of evidence adduced in such inquiry held the appellant guilty of the charges on the basis of the alleged admission of guilt by the appellant in his preliminary statement before him.

Since no inquiry has been held by the Inquiring officer in accordance with Rule 14 of the Rules, 1965 into the articles of charge, he could not have recorded any finding of guilt against the appellant. The report of the Inquiring officer holding the appellant guilty of the charges thus stands vitiated. So also the order of punishment imposed by tile disciplinary authority on the basis of the said report of the Inquiring officer stands vitiated for violation or the provision of Rule 14 of the Rules, 1965. But, on perusal of the impugned judgment and order of the learned Single Judge, we do not find the learned Single Judge has gone into this vital aspect of the case. We, therefore, set aside the impugned judgment of the learned Single Judge as well as the Inquiry report and the order of punishment imposed by the disciplinary authority. It will be open for the disciplinary authority to hold an inquiry in accordance with Rule 14 of the Rules, 1965 against the appellant and pass such order as may be necessary in accordance with the said Rules.

Referring the aforesaid judgment, learned counsel for the petitioner further submitted that if the government servant denies in his statement articles of charges and asks for an enquiry, in that event, the enquiry should be conducted in a proper manner after giving reasonable opportunity for cross examining the witness and for adducing evidence.

He further referred to paragraph no. 11 of the Constitution Bench judgment of the Hon''ble Apex Court in the case of Jagdish Prasad Saxena Vs. The State of Madhya Bharat reported in AIR 1961 Supreme Court 1070. Paragraph No. 11 of the judgment is reproduced herein below: "11. It is true that the appellant specifically admitted during the course of the previous enquiry that illegal liquor had been delivered to the contractor, and that he had given the key of the receiver to Narona. It is on the strength of those admissions that the High Court took the view that the appellant had substantially admitted his guilt and so there was really no need for holding a formal enquiry against him after the chargesheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry was that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the chargesheet was supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the circumstances of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311 (2) is not satisfied.

By referring the above judgment, he submitted that major penalty of removal from service cannot be awarded simply on the ground of admission of guilt, and proper inquiry should be conducted.

Learned counsel for the petitioner has also referred to the judgment of the Hon''ble Apex Court in the case of Shankar Dass Vs. Union of India and another, reported in 1985 (2) SLR.

Per contra, learned counsel for the respondents Mr. Rakesh Thapliyal submitted that since the petitioner himself admitted his guilt and the case is of misappropriation of money, the punishment awarded to the petitioner is correct.

We have heard the learned counsel for the parties and gone through the papers.

We find that at first instance, the petitioner himself admitted the charges levelled against him, but later on, he demanded an enquiry denying the charges. In paragraph no. 13 of the writ petition, he has said that the admission was done by him on the promise made by the respondents for awarding lesser/lenient punishment. Against the award of punishment, the petitioner filed A.O. No. 1136 of 2009. We find that before the Central Administrative Tribunal, the counsel for the petitioner, in fact, admitted the guilt once again. Before the Tribunal, it was clearly stated by the counsel for the petitioner that the applicant''s wife was seriously ailing and due to this reason the applicant was very much disturbed and having left no option open to him, he spent the money of the depositors for purchasing the medicines and for other personal use, but subsequently, he deposited the amount in the Post Office. Thus, we find that the admission was not only before the Enquiry Officer, but was also before the Central Administrative Tribunal, Allahabad Bench. In our view, once admission is made before the Court, same cannot be withdrawn in the departmental proceedings. The order of the Tribunal was not challenged by the petitioner and the same became final.

It was further case of the petitioner before the Tribunal that the question of proportionality of punishment was not at all been considered by the competent Authority and the Tribunal remanded the matter directing the authorities to consider the matter afresh after taking into account the proportionality of punishment (quantum of punishment). Therefore, it is not open for the petitioner to raise this question again in the second round of litigation that petitioner was not afforded opportunity of hearing in respect of allegation of confession or the charges were not proved against him. After decision of the Tribunal, the only thing open for the respondents-authority was to consider the case of the petitioner for quantum of punishment. We have gone through the order passed by the appellate authority. We find that the Appellate Authority has discussed the case in detail and considered the plea of the petitioner for reduction of punishment. Relevant paragraph of the order of the Appellate Authority is being reproduced hereunder : "9. The impugned orders were examined. The lapses committed by the applicant have been discussed at length. The points raised by the applicant have also been examined in detail by respondent No.2 in his impugned order dated 25.01.2010. After such detailed examination, the respondent No.2 has also arrived at the conclusion that though the applicant had deposited the amount, which was temporarily misappropriated by him but in the process he had violated Departmental Rules. It is view of the respondent No.2 that if such matters of temporary misappropriation are dealt with leniency, it may give rise to a spate of such occurrences and will severely tarnish the image of the Department. Hence, the two impugned orders have maintained the original punishment of removal from service. We do not find any infirmity or illegality in this order and the disciplinary authority is within its powers to impose the impugned penalty which has been done after observing all necessary procedures.

Since the admission of the petitioner for the charge of misappropriation was proved, it cannot be said that it is not a case of misappropriation of money. The GDS BPM is custodian of the records, as also, the Government money, which is deposited in Bank; he is supposed to act as per law. The public money deposited in the Post Offices cannot be used for personal purposes. Therefore, it cannot be said that the petitioner has not misappropriated the money. The Appellate Authority has, in fact, in detail, considered the punishment, and we are also of the view that the punishment awarded to the petitioner is not disproportionate. As far as the judgments cited by the learned counsel for the petitioner are concerned, in our view, since the petitioner himself admitted the fact before the Tribunal that he misappropriated the money, the judgments cited by the learned counsel for the petitioner are of no help to the petitioner.

Consequently, this writ petition is dismissed. No order as to costs.