Kishan Chand vs Union Of India And Ors

Aradhana Johri, Member (A)

The  applicant  Sh.  Kishan  Chand  retired  as  Post Master, HSG-I on attaining the age of superannuation on 30.06.2005. However, at that point of time disciplinary proceedings were pending against him which were continued even after his retirement under Rule 9 (2) (a) of CCS (Pension) Rules, 1972.

The main charge against the applicant was that the transfer of four Kisan Vikas Patras totalling to Rs.60,000/-was effected with his approval before the expiry of one year thus leading to contravention of Rule 38 (1) and 38 (2) of Post Office S.B. Manual Vol.-II. Further, the second charge is that he failed to check and challenge the payment of Rs.20,000/- and above made in cash instead of cheque in respect of certain account holders. The 3rd charge was that he failed to check the irregular functioning of computers during 12.06.2004 to 20.06.2004 wherein the name and address of depositor of MIS account No. 22124 was changed by some unknown person in computer from Smt. Sheela Wanti, House No. 12, Mohan Pura, Sonipat to Smt. Kanchan, W/o. Sh. Ajit Batra H, No. 48 Mohalla Raj, Sonipat and also replaced the SB-3 in the name of Smt. Kanchan infringing the provisions of instructions contained in SPO"s Sonipat letter.

An inquiry was conducted in the matter and the inquiry officer found the charges not proved. The disciplinary authority issued a disagreement note dated 16.04.2007 on which the applicant was given opportunity to submit his representation. Thereafter, the matter was sent to the UPSC for its advice. The UPSC examined the matter and due to lack of clarity requested that the findings of Inquiry Officer are examined again and tentative reasons for recording disagreement are clearly brought out separately in respect of each Article of charge, taking into account the documents and witnesses relied upon by the Inquiry Officer and reasoning advanced by him while arriving at a conclusion and the case be referred back to the communication after obtaining the comments from the charged officer thereon. A fresh disagreement note was recorded on 15.04.2010 which gave tentative reasons for disagreement in respect of each Article of Charge on which the charged official was given a further opportunity to submit his representation. The representation was examined and the matter was sent again for UPSC"s advice which was given vide letter dated 25.06.2012 in which UPSC recommended the following punishment order :-

"5. In the light of the observations and findings as discussed above and after taking into account all other aspects relevant to the case, the Commission note that the charges established against the CO constitute grave misconduct on his part and consider that ends of justice would be met in this case if the penalty of "withholding 20% (twenty percent} of monthly pension otherwise admissible to him for a period of 3 (three) years" is imposed on the CO, Shri Kishan Chand. The gratuity admissible to him, if not otherwise required, may be released. They advise accordingly."

The applicant has cited this Tribunal"s order dated 07.07.2009 in O.A No. 606/2008 in Anil Kumar Sharma Vs. Union of India & Ors. wherein it was held that the major penalty came to be imposed upon the applicant at the dictates of the UPSC which was considered by the disciplinary authority as binding on it. Even though it was of the consistent view particularly after CVC has opined it to be a fit case for the minor punishments envisaged in Rule 11 of the rules of 1965.

After giving opportunity to the charged officer to represent against the advice of UPSC and taking into account the points raised by the charged officer, the competent authority passed an order dated 13.07.2012 but the applicant filed O.A No. 222/2015 stating that the UPSC"s advice was not supplied to the applicant before imposition of the penalty. The Tribunal quashed the order dated 13.12.2012 and remanded the matter to the respondents to proceed against the applicant from the stage of supplying a copy of the advice of the UPSC and complete the proceedings as per rules. A copy of the advice of the UPSC was supplied to the applicant who submitted the representation dated 18.06.2016. After considering all the material on record, the competent authority passed an order dated 08.02.2017 by which the penalty of withholding of 20% of the monthly pension otherwise admissible to the charged officer for a period of three years was imposed and gratuity admissible to him, if not required to be withheld in any case was to be released.

The applicant has questioned the advice of the UPSC as well as the fresh disagreement note issued by the Disciplinary Authority. He has sought the following reliefs:-

"A) Quash and set aside the impugned penalty order No. C-14016/34/2007-VP dated 08.02.2017 issued by the Director (DE) |Govt. of India, Ministry of Communications and IT, Department of Posts, New Delhi by order and in the name of the President;

B) Quash and set aside the fresh disagreement note communicated vide order no. F-4/2/04-05/Disc. Dated 15/04/2010 of the Supdt., Post Offices, Sonipat, the Disciplinary Authority;

C) Quash and set aside the Advice of the UPSC no. F-3/208/2009-S.I/ Dated 25/06/2012;

D) Quash and set aside the UPSC letter no. F-3/208/2009-S.I/ dated 03/02/2010 addressed to the Secretary, Ministry of Communications & IT (Department of Posts), New Delhi regarding disciplinary proceedings against Kishan Chand, Postmaster (Retd.);

E) Issue direction to the Respondent no.3 Supdt., Post Offices, Sonipat to pay the Applicant the due amount of pension which was deducted by virtue of the penalty order;

F) Grant any other relief as this Hon"ble Tribunal deems fit and proper in the interest of justice."

The respondents have denied the claims of the applicant and have stated that all provisions of the rules have been followed. At the time of retirement the proceedings pending under Rule 14 of the CCS (CCA) Rules, 1965 were continued and decided under Rule 9 of CCS (Pension) Rules, 1972 after taking due approval. As per Rule 15 (2) of CCS (CCA) Rules, 1965, the disciplinary authority should place tentative reasons for disagreement. The rule reads as under :-

"The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the finding of Inquiry Authority on any article of charge to the Government servant..."

As per the respondents this was duly done and after considering the advice of the UPSC and the representation of the applicant the decision was taken by the competent authority under Rule 9 of the CCS (Pension) Rules, 1972.

They have stated that the scope of judicial scrutiny in  disciplinary  proceedings  is  limited.In  the  case  of Jagdish  Baheti V.  High  Court of  M.P. in  W.P  (C)  No. 3201/2015, decided on 18.03.2015 The Hon"ble Court has held the following :-

"6. Before we consider the contentions of the learned Senior Counsel for the petitioner it would be appropriate to consider the scope and extent of judicial review and interference in charge sheets permissible under Article 226 of the Constitution of India, as specified and laid down by the Supreme Court in a series of decisions. In the case of Union of India, v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the Supreme Court has held as under :-

"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, [(1996) 1 SCC 327], Special Director v. Mohd. Ghulam Ghouse, [(2004) 3 SCC 440], Ulagappa v. Divisional Commissioner, Mysore, [(2001) 10 SCC 639], State of U.P. v. Brahm Datt Sharma, [(1987) 2 SCC 179], etc.

The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and / or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

They have also stated that UPSC has been statutorily authorised under Article 320 (3) (c) of the Constitution of India to advise the disciplinary authorities, which advice has to be considered by the disciplinary authority and a decision taken. This procedure was also followed in this case.

Heard Mr. Narender Mukhi, learned counsel for applicant and Ms. Harvinder Oberoi, learned counsel for respondents.

The first point to be considered is whether the UPSC issued directions to the disciplinary authority or whether they gave advice. A perusal of the UPSC"s letter dated 03.02.2010 clearly shows that they sought a clarification from the Disciplinary Authority on the tentative reasons for recording disagreement on each charge separately taking into account all the evidences relied upon by the Inquiry Officer and the reasons advanced by him and after taking fresh comments from the charged officer thereon. A perusal of this letter brings out that at this stage UPSC had sought clarification from the disciplinary authority so as to reach a better and reasoned conclusion in the matter taking into account all the evidences. It was also clearly stated that an opportunity be given to the charged officer at this stage.

The second issue to be considered is whether two disagreement notes can be issued by the disciplinary authority.

Rule 15 of CCS (CCA) Rules, states that a de novo inquiry cannot be done. It does not specifically state that second disagreement note cannot be issued. The important point to note is that a disagreement note is not the final stage in the proceedings but an interim stage and principles of natural justice should be followed. In other words, opportunity must be given to the charged officer/official on disagreement note that is issued. In this case, an opportunity was given to the charged officer.

The applicant has cited an order of this Tribunal in O.A No. 2790/2012 dated 11.11.2013 in Dr. A. K. Singh and Ors. Vs. Union of India & Ors. However, in this O.A the impugned order was set aside since it was seen as ordering for a fresh de novo inquiry which is not so in the present case.

He has also cited order of coordinate bench of this Tribunal dated 14.12.2011 in O.A No. 89/2009. However, as per para 115 of the said order it was held that a charge memo was issued by an authority other than the disciplinary authority which led to the quashing of the whole process of conduct of disciplinary inquiry. The issue in the present case is distinct to the cited O.A.

In the present case, the issue that dictates of the UPSC were held to be binding, does not occur. The first disagreement note was sent to the UPSC and the UPSC sought a clarification and at the same time stated that the charged officer must be given a copy of the fresh note.

Subsequently, at the stage of awarding penalty, the competent authority applied its mind independently and reached the conclusion on the quantum of punishment. Therefore, the cited ruling does not apply in this case.

In view of the above, it is held that there has been no procedural lapse in the disciplinary proceedings which have culminated in the punishment order dated 08.02.2017. This O.A is dismissed. No order as to costs.