K.L. Patel vs Union of India and Others

Sanjay Yadav, J.—Challenge in the petition is to order dated 7.8.1998 and 14.2.2003 passed by the Central Administrative Tribunal Jabalpur Bench, Jabalpur. By order dated 7.8.1998, the challenge to the punishment order dated 30.11.1995 whereby the petitioner was dismissed from service, on being found guilty of charges of misconduct, in the departmental enquiry, has been negatived. Whereas by order dated 14.2.2003 an application for review of the order dated 7.8.1998 has been rejected.

Facts briefly are that the petitioner while working as Sorting Assistant, Katni and having no authority to prepare High Value money order list, (hereinafter referred as HVMO) unauthorizedly obtained HVMO list prepared and managed to dispatch it alongwith the HVMO to Sihora. He was charge-sheeted for that on 24.5.1985. The departmental enquiry led into the charges resulted in order of dismissal on 29.8.1986. The said order was challenged vide original application: O.A. No. 594/1989. Because the petitioner was not afforded proper opportunity, the Tribunal set aside the order of punishment by order dated 11.12.1989 with a direction to hold de novo enquiry providing the opportunity to the petitioner to cross-examine one Shri R.K. Sharma, the prosecution witness.

The de novo enquiry held in pursuance to the Tribunal''s order dated 11.12.1989 led to passing of an order of dismissal on 27.3.1991. This order was also set aside by the Tribunal by its order dated 10.9.1992 passed in O.A. No. 554/91, with a direction for continuance of enquiry from the stage of supply of enquiry report.

On 9.2.1993 fresh order was passed by the disciplinary authority whereby the petitioner was dismissed. En an appeal, the appellate authority vide order dated 2.12.1993 directed for conducting fresh enquiry. In the fresh proceedings objection were raised by the petitioner for change of enquiry officer. Pending the decision, petitioner filed O.A. No. 443/1994 in which direction was given to the appellate authority to decide the appeal of the petitioner for change of enquiry officer and stayed the enquiry till then. New enquiry officer, was appointed because of death of existing enquiry officer as also in pursuance to order by Tribunal. The final stage of enquiry was conducted ex-parte as the petitioner despite of the opportunity and notice for the hearing Fixed on 13.6.1995 did not participate. The enquiry was completed ex-parte Enquiry Report was supplied to the petitioner which was received by him on 27.10.1995. The disciplinary authority while agreeing with the findings inflicted the penalty of dismissal on the petitioner vide order dated 30.11.1995. An appeal preferred by the petitioner was rejected on 10.7.1996.

Petitioner challenged the order before Tribunal vide O.A. No. 502/1996. And as apparent from paragraph 3 of the impugned order passed on 7.8.1998 by the Tribunal, the petitioner confined his challenge to procedural irregularity in the conduct of the enquiry that the copy of the brief of the Presenting Officer was not supplied to him which vitiated the enquiry. The petitioner since could not satisfy the prejudice caused to him. Tribunal rejected the plea that nonsupply of written brief by the Presenting Officer resulted in vitiating the enquiry. The Tribunal found that the findings of the enquiry officer were based on the evidence produced during the enquiry by way of documents as well as examination of witnesses. In respect of ex-parte proceedings drawn against the petitioner, the Tribunal found that the Appellate Authority elaborately dwelt upon the said aspect in the Appellate order dated 10.7.1996. The Tribunal concluded:

It is clear from a perusal of the record that the applicant inspite of having received the notice for the hearing fixed on 13.6.1995 did not attend the same. The Enquiry Officer was therefore justified in concluding the enquiry examining the documentary evidence and the oral evidence of the prosecution witnesses. We state this because we find that several opportunities were given to the applicant before the hearing fixed on 13.6.1995 to attend the enquiry. On some occasion the registered letters sent to him giving notice for hearing were received back with the remarks "Incorrect address - Not Known" Incomplete address". A perusal of the order of the disciplinary authority dated 30.11.1995 and of the Appellate Authority dated 10.7.1996 clearly shows that the applicant was adopting delaying tactics to avoid the completion of the enquiry. In fact it has been stated in these two orders that they had verified that the registered letters were sent at the exact address given by the applicant but the letters were received back undelivered with the remark of the address being incomplete. These authorities have therefore concluded that the application had deliberately given incomplete or wrong address to avoid delivery of notice to him. In any case it is not the case of the applicant now that he was denied an opportunity of attending the enquiry. His argument regarding procedural irregularity, is limited only to nonsupply of the written brief of the Presenting Officer which he have already discussed above. The Enquiry Officer has based his findings on the evidence adduced before it by the Presenting Officer with which the disciplinary authority and the Appellate Authority have agreed. It is seen that the statements of his co-workers who were produced as witnesses were relied upon to verify the hand writing on the HVMO in question and to prove the same against the applicant. The Appellate Authority has stated in his order that this evidence could very well be relied upon to confirm the hand writing on the HVMO and the HVMO list because these persons were familiar with the hand writing of the applicant and were quite competent to depose on that point. Further they were also available for cross-examination by the applicant but the applicant did not avail himself of the opportunity of cross-examination. Under these circumstances their evidence could not be ignored.

The petitioner not satisfied with the order in (Original Application preferred a Review Application: R.A. No. 62/1998. The same was dismissed on 14.2.2003. Feeling aggrieved whereof the petitioner has preferred this petition.

The petitioner since was appearing in person, we in order to afford an effective opportunity of hearing provided an aid of an Advocate through the High Court Legal Aid Service Committee who ably assisted us in the matter.

Learned Counsel for the petitioner though laboured hard to create a dent in the finding arrived at by the Disciplinary Authority, Appellate Authority and Tribunal but has been unsuccessful. No material is brought on record as would cause an interference with the findings. The petitioner has to blame himself for being proceeded ex-parte at the final stage of enquiry because despite of being noticed he did not participate as is evident from the evidence on record. In Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, , it is observed:

In the instant case, proceedings were held ex-parte against the delinquent as he failed to appear in spite of notice and such a course of the inquiry officer was justified (See: State of U.P. and Others Vs. Saroj Kumar Sinha, ) There is no averment by the delinquent that he did not receive the said notice and the copy of the inquiry report. The plea taken by the delinquent shows that he has adopted a belligerent attitude and kept the litigation alive for more than two decades merely on technical grounds............

Furthermore, the procedure as laid down under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 having been adhered to and the petitioner having failed to demonstrate the non-observance thereof and any prejudice being caused, the proceedings cannot be said to have vitiated.

Regarding punishment it is urged that the compulsory retirement could have meted the ends of justice.

Trite it is that punishment is primarily a function of management. In The Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad, it is observed:

The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts... (please see State Bank of Mysore and Others etc. Vs. M.C. Krishnappa, (paragraph 8) : 2011 (130) FLR 1082 (SC).

In the case at hand the imputation of charges levelled against the petitioner were that"......worked as letter mail SA in Katni RMS/2 on 14.2.1985. His duly was to sort out the letters received by the set. While working in the set he unauthorisedly obtained the blank form of HVMO list having name and date stamp of Katni RMS/2 dated 14.2.1985 and prepared the HVMO list for Sihora P.O. with entry of Calcutta HVMO 2678 and totaled as one-nil-one. He singed this HVMO list with fictitious signature. He was working in letter mail branch and was not required to prepare HVMO list. The above HVMO was not received in the set for dispatch to any office as stated by Shri U.S. Tripathi, SA, who worked in HVMO branch of the set. Shri K.L. Patel, managed to dispatch the above HVMO list along with HVMO to Sihora in its "D" bag prepared by the set. It was dispatched unnoted by Shri Sharma AMA of the set. This HVMO list was also entered in the registered list for Sihora P.O. prepared by Katni RMS/2 dated 14.2.1985".

These charges were duly proved in the departmental enquiry and are grave enough for dismissal of the petitioner from service. No interference in the punishment there for is warranted. Having considered the entire facts in totality, we do not find any illegality or perversity in the impugned order.

In the result petition fails and is hereby dismissed. No costs.