Kapur Chand vs Union of India

Arun Palli, J.

The petitioner was charge-sheeted on 23.05.2001 under rule 14 of the Central Civil Services (CCA) Rules, 1965, while he was working as a Treasurer at Pehowa, by the Superintendent of Post Offices, Kurukshetra Division, vide Annexure P3. The Statement of Articles framed against the petitioner reads as thus :--

"That the said Shri Kapoor Chand while working as Treasurer Pehowa on 24.04.2001 kept postage stamps & stationery and also revenue stamp of Rs. 2541/- ( Rs. Two thoughsand Five Hundred forty one Only) less than these shown in the stamp balance register maintained for the day as prescribed vide note 3 below rule 65(1) of P&T FHB Vol.11. By the aforesaid act he is alleged to have failed to maintain absolute integrity and acted in a manner unbecoming of a Government Servant thereby violating the provisions of rule 3(i)(i) & 3(i)(ii) of Central Civil Services (Conduct) Rules, 1964.

Sd/- Supdt. Post Offices Kurukshetra Division, Kurukshetra-13618"

P.C. Kashyap, ASPO (Head Quarters), Kurukshetra, was appointed as Inquiry Authority to probe the charges against the petitioner. As is discernible from the records, the petitioner was afforded due and adequate opportunity to participate in the inquiry and he indeed did. On a consideration of the evidence i.e., oral and documentary, the Inquiry Officer found the petitioner guilty of the alleged misconduct and the charges levelled against the petitioner were found to have been proved, vide a detailed inquiry report dated 22.11.2001 (Annexure P4).

A copy of the inquiry report was made available to the petitioner and he was afforded an opportunity to file his response, if any, to the same. On a consideration of the matter in its entirety and the reply submitted by the petitioner, the Disciplinary Authority, arrived at a conclusion that the charges against the petitioner were proved beyond doubt. And the same being extremely grave in nature, as it involved misappropriation of Govt. money and casts doubt on the integrity of the official, imposed the punishment of compulsory retirement upon the petitioner, vide order dated 17.06.2002 (Annexure P5).

It would be apposite, at this juncture, to refer to the conclusion arrived at by the Inquiry Officer, which reads as thus :--

"I have gone through the charge sheet oral and documentary evidence and written briefs submitted by PO and CO and there are discussed below:

That shortage of stamps and stationery worth Rs. 2541/- has been proved from the Ex. P-1, P-2, P-3, P-4 and P-5 as well as the deposition of S/Sh. Faquir Chand PW-1, H.P. Sharma, PW-2 and S.S. Papneja PW-3. Moreover the CO has not denied this fact in his defence statement dated 26-09-2001 as well as in his written briefs. So, in view of the admission of these facts by the CO, there is no need to discuss these facts in details.

CO. has argued that shortage was for a period of about half an hour which was accidental and unintentional as the reason of shortage was that he had handed over the stamps and stationery to Sh Raj Kumar EDSV who did not give the value of that to the CO not he (CO) demanded it.

In this regard it is pointed out that Sh. Raj Kumar DW-1 in his deposition dated 26.09.2001 before the IO has vehemently stated that his statements Ex. D-2 and D-3 were not written with his free consent, he did not obtain stamps Rs. 2541/- and that fact of taking stamps Rs. 2541/-from the CO on 24-04-2001 as written in Ex D-2 and D-3 are not correct. IN view of this denial of the facts by Sh. Raj Kumar DW-1 the above argument of the CO that he had handed over the stamps and stationery to Sh. Raj Kumar is nothing but an after thought and thus not believable. Moreover, it was his duty to take the case for the stamps and stationery sold to Sh. Raj Kumar or any other person and if he failed to do so he is definitely responsible for the shortage. No application/document regarding promise of Sh. Raj Kumar DW-1 in writing to pay back the amount in two installments made before the whole staff as discussed in the written briefs has been brought on records by the CO during the course of inquiry, so no cognizance of the same can be taken by the IO.

In view of the above discussion no doubt is left in providing the allegations contained in article-I.

Findings :--

On the basis of the evidence adduced during the enquiry and my reasons recorded above, the charge contained in Article-1 is held to be fully proved.

Sd/- (P.C. Kashyap) Inquiry Officer and ASPO Kurukshetra.

(HQ) Place Kurukshetra Dated 22-11-2001"

Being aggrieved against the order of punishment of compulsory retirement of the petitioner, he preferred a departmental appeal before the Post Master General, Haryana Circle, Ambala (Annexure P14). As is evident from the record, the Appellate Authority considered the matter and, found no cogent reasons to intercede with the decision taken by the Disciplinary Authority. Resultantly, the appeal preferred by the petitioner was rejected and the penalty imposed upon him was affirmed.

It was in this background, the petitioner approached the Central Administrative Tribunal (for short, ''the Tribunal''), vide O.A. No. 198-HR-2004. Again, the matter was considered by the Tribunal at length and having examined the material on record, the Tribunal was of the view that the disciplinary proceedings held against the petitioner did not suffer from any infirmity. I was observed that the petitioner was rightly held guilty of the charges made against him. Consequently, even punishment inflicted upon the petitioner was found to be commensurate to the charge. The O.A. was accordingly dismissed, vide order dated 16.09.2005 (Annexure P7). The Review Application moved by the petitioner also met the same fate, which was dismissed on 21.12.2005.

Thus, this petition and this is how we are seized of the matter.

We have heard learned counsel for the parties and perused the records.

The counsel for the petitioner assails the disciplinary proceedings and the punishment imposed upon the petitioner, on multiple grounds, as has been set out hereafter:

"(1) Earlier, on the same charges, for which the petitioner has been tried, were levelled under rule 16 of the CCS (CCA) Rules, 1965. Charge-sheet dated 14.05.2001, issued in this regard was cancelled vide order dated 18.05.2001. That being so, learned counsel contends that the petitioner could not have been indicted with the same charges.

(2) The appellate authority, while confirming the punishment of compulsory retirement inflicted upon the petitioner, had taken into consideration the past punishments awarded to the petitioner. It is submitted, the consideration of the past record was not preceded by any notice or opportunity to the petitioner. That being a serious breach of the principle of natural justice, the proceedings in its entirety are vitiated.

(3) The same charges as alleged against the petitioner were levelled against Sh. Raj Kumar and Sh. Fakir Chand Gupta (Sub Post Masters) while, Sh. Raj Kumar was debarred from appearing in promotion examination for Postman for three years. Punishment of mere censure was awarded to Sh. Fakir Chand Gupta. It is contended, the petitioner is victim of hostile discrimination."

The counsel for the petitioner has placed reliance upon the following decisions to substantiate his case:

"i) Rajendra Yadav Vs. State of M.P. and Others, .

ii) Jai Bhagwan Vs. Commr. of Police and Others, .

iii) Union of India (UOI) and Others Vs. Vishnu Lal Nai and Another, .

iv) Sengara Singh and Others Vs. State of Punjab and Others, ."

Per contra, the counsel for respondents contends that the punishment of compulsory retirement from service inflicted upon the petitioner was preceded by due and valid inquiry. Misconduct was writ large on the face of the record. The punishment imposed being commensurate to the charge, no interference by this Court was warranted in the present case.

It would be necessary and expedient to point out here, that the petitioner has assailed the order of punishment passed by the Disciplinary Authority on a short ground that the punishment inflicted upon the petitioner was disproportionate to the charge. He has prayed for a writ of mandamus directing the respondent-authorities to reconsider the major penalty of compulsory retirement and impose a lighter punishment. That being so, it is obvious that the petitioner does not assail either the validity and fairness of the departmental inquiry or the conclusions arrived at to hold that the petitioner was guilty of the alleged misconduct. All what he has questioned before this Court is the quantum of punishment. That being the case, the submission being advanced by the learned counsel for the petitioner that the respondents having cancelled the charge-sheet issued under rule 16 of the CCS (CCA) Rules, 1965, could not try the petitioner subsequently on the same charges, is wholly misconceived and unfounded. Be that as it may, even otherwise, the grievance being made on this score does not advance the case of the petitioner a bit. Undoubtedly, a charge-sheet under rule 16 of the CCS (CCA) Rules, 1965 was issued on 14.05.2001. This is also true that vide order dated 18.05.2001, the Disciplinary Authority cancelled the said charge-sheet on a precise ground that the same was wrongly issued on a proforma for issuing the charge-sheet under rule 16 of the CCS (CCA) Rules, 1965. It is equally true that the said cancellation was without prejudice to further action to be considered. What transpires from the record, in this limited context, is clear. Although, an action was contemplated against the petitioner under rule 14 of the CCS (CCA) Rules, 1965, but by an inadvertent mistake a charge-sheet was issued under rule 16 of the Rules. Having realised so, the said charge-sheet dated 14.05.2001, was cancelled without prejudice to the further action and thus, the charge-sheet under rule 14 of the CCS (CCA) Rules, 1965 followed.

The grievance of the petitioner in context of his past record or punishments awarded, having been taken into consideration by the authorities, without any notice or an opportunity to the petitioner to explain the position, suffer from serious breach of the principle of Audi Alteram Partem, is evidently erroneous. This is not a case where the disciplinary authority having taken into consideration only the past record of the petitioner and the punishments awarded to him, found him guilty of the alleged misconduct. In fact, finding of guilt recorded by the Inquiry Officer and sustained by the Disciplinary Authority is not founded or based on the past record or the punishments awarded to the petitioner. Bu exclusively, on an independent material and evidence on the record. The disciplinary authority, having held that the charges levelled against the petitioner stood proved beyond doubt and were grave in nature involving misappropriation of Govt. money, then proceeded to determine an appropriate and suitable punishment to be awarded. It was in the process to determine the appropriate and suitable punishment commensurate to the charge, one of the factors taken into account by the authorities, of course, was the punishments awarded to the petitioner in the past. The reliance placed by the petitioner upon a Division Bench decision of the Rajasthan High Court in case of Union of India (UOI) and Others Vs. Vishnu Lal Nai and Another, , is evidently distinguishable. In the said case, the Division Bench of Rajasthan High Court in paragraph 17 of the judgment had observed as follows:--

"17. We have examined the order passed by the disciplinary authority which records the charges and the particulars thereof and find that nothing concerning the past conduct has been stated not even remotely. The misconduct was a case of gross indiscipline and unbecoming of a postman to deal with his superior i.e., the Inspector. Although, the disciplinary authority after recording this finding has stated that by this act, the delinquent has lost his right to remain in government service, but then, the disciplinary authority dwelled into the past record of the employee and observed that his past record was the proof of the fact that the employee was acting in breach of discipline from time to time and the Department has every time given him a chance to improve but he did not come true and it has resulted in boosting of his moral and he repeated the act. If the employee would be forgiven this time, it would be a major mistake and not only the delinquent would become unruly, the other employees would also be inspired to indulge in indiscipline. According to the learned disciplinary authority, therefore, now tolerating such employee would not be in the interest of the Department and it was necessary that the Department gets rid of such employee, and therefore, removal from service was the only available punishment. The considerations by the disciplinary authority read as a whole make it apparent that so far the aspect of imposing the punishment was concerned, it was the only past conduct of the employee which prevailed over the considerations of the disciplinary authority which is evident from the consideration that if he would still be forgiven, the same would be a mistake and that now such employee deserves not to be tolerated by the Department."

Ex facie, it was the past conduct of the employee, in the aforesaid case, which prevailed over every possible and conceivable considerations of the disciplinary authority to arrive an appropriate decision, for the purpose of determining suitable punishment. It was specifically observed by the Division Bench that although the past conduct alone was not the basis of punishment but nevertheless it was one of the major and rather essential considerations which prompted the disciplinary authority to say that department should now get rid of such employee. Such is not the position in the present case.

Be that as it may. We are reminded to point out here in context of what has been narrated in the preceding paragraphs, in fact, precise grievance of the petitioner before the Tribunal, was that appellate authority while confirming the punishment of compulsory retirement had also taken into consideration the past punishments awarded to the petitioner without affording any notice or opportunity, thus, the action was vitiated on this score. The finding by the Tribunal in this regard would be pertinent to refer to and the same reads as thus :--

"...........We have perused the appellate orders in the present case carefully, as also the ruling relied upon on behalf of the applicant. The perusal of the appellate order indicate that the previous punishment awarded to the applicant were mentioned there in because the applicant had himself, in his appeal, stated that his service record remained good through out his tenure of service and he had discharged his duties efficiently, honestly and diligently. The plea raised on behalf of the applicant required to be dealt with comprehensively by the appellate authority. For this, there was no alternative, except to see past record of the applicant. It was found by the appellate authority that several punishments had been awarded to the applicant in the past and as such, the contention raised on behalf of the applicant in his appeal was held as not carrying any conviction. The appellate authority had found that the charges against the applicant were proved and the punishment awarded was commensurate with the gravity of charges against him. We find that the appellate authority had fully discharged his responsibility in the appellate orders. The mention of earlier penalties, in the appellate orders was necessitated in view of the plea raised on behalf of the applicant in his appeal, but that does not mean that those penalties have been considered as a material while disposing of the appeal."

The doctrine of equality being propounded by the petitioner, even amongst those who are found guilty, in principle, cannot even be remotely doubted. But it is equally true that the said doctrine applies to all those, who are equally placed and circumstanced. The reliance placed by the learned counsel for the petitioner upon a decision of Hon''ble the Supreme Court in Rajendra Yadav Vs. State of M.P. and Others, , hardly advances the case of the petitioner. The same is evidently distinguishable on facts as is being narrated hereafter. In the said case, Hon''ble the Supreme Court had held as follows :--

"We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained."

We are reminded to point out here that the petitioner i.e., Kapur Chand, Sh. Raj Kumar and Sh. Fakir Chand Gupta (Sub Post Masters) were employed in different capacities and positions with the Department. All three of them had different roles and duties to perform. The petitioner was the Treasurer, who was directly and principally incharge of the posts, stamps and stationery and also the revenue stamps. It was he who was directly accountable vis-�-vis the shortage found on a physical verification of the records and cash. So much so, the petitioner in his statement in writing on 24.04.2001, admitted the shortage of stamps worth Rs. 2541/- with him and voluntarily credited a sum of Rs. 2541/- into UCR vide Pehowa ACG-67 receipt No. 59/1553 dated 24.04.2001. Principally, the accusation and the charge was directly against the petitioner. The other two officials were collaterally involved. They (all three) were not proceeded against through a common departmental enquiry. The disciplinary authorities of the said personnels were different. Thus, the grievance being made by the petitioner in this regard is wholly misplaced.

There cannot be any quarrel with the proposition of law that if the punishment awarded by the disciplinary authority is extremely harsh, excessive or is disproportionate and shocks the conscious of the Court, the Court of law would step in, in exercise of its power of judicial review and alter the punishment proportionately or direct the disciplinary authority to reconsider the penalty imposed. We have examined the records and we find that the punishment imposed is not such which could be termed as unconscionable, too severe, harsh or grossly disproportionate to the gravity of the charge. Thus, we do not find any reason or ground, least plausible, to interfere in the matter and the order passed by the Tribunal.

Therefore, the civil writ petition is dismissed being devoid of merit.

Parties are left to bear their own costs.