Kripa Shankar, Son Of Late Raghuveer Sahay vs Union Of India & Ors

Om Prakash-Vii, Member (J)

The present Original Application has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

(i) Issue a writ order or direction in the nature of certiorari to quash the impugned orders dated 11.07.2013 passed by the Director, Postal Services, Agra and order dated 27.07.2014 with all consequential benefits as if the applicant was never awarded punishment of compulsory retirement, (ANNEXURE A-1 & A-2) to the original application.

(ii) Issue a writ order or direction in the nature of mandamus directing the respondents to grant 3rd Financial Upgradation/Promotion to the applicant with effect from completion of 30 years of his regular service along with arrears and interest admissible under the rules.

(iii) This Hon'ble Tribunal may further be pleased to pass such order or direction as or may be deemed fit and proper and expedient in view of the facts and circumstances of the present case as well as in the interest of justice.

(iv) This Hon'ble Tribunal may further be pleased to award cost of the original application to the applicant".

The brief facts of the case are that the applicant was appointed as a Postman on compassionate grounds on 10.11.1976. After rendering long service without any complaint, a charge-sheet dated 10.08.2011 was issued to the applicant on the allegation that he had failed to deliver registered letters to the persons concerned. Thereafter, the applicant was placed under suspension. A departmental inquiry was conducted and the Inquiry Officer submitted his report exonerating the applicant from all the charges. Thereafter, the Disciplinary Authority/Post Master, Firozabad, after considering the inquiry report and the material available on record, accepted the findings of the Inquiry Officer and exonerated the applicant from all charges vide order dated 30.08.2012. To the surprise of the applicant, the Appellate Authority/Director of Postal Services, Agra issued show cause notice disagreeing with the finding of Disciplinary Authority dated 28.12.2012 proposing enhancement of penalty under Rule 29 of the CCS (CCA) Rules, 1965 straightway and sought reply from the applicant. The applicant submitted his reply to the said notice on 16.02.2013. Thereafter, vide impugned order dated 11.07.2013, the Appellate Authority imposed the punishment of compulsory retirement from service upon the applicant. The applicant was also denied the benefit of 3rd financial upgradation under the MACP Scheme on the ground that departmental proceedings were pending against him. Against the aforesaid order, the applicant preferred a revision petition. Since no decision was taken thereon, the applicant approached this Tribunal by filing O.A. No. 1593 of 2013, which was disposed of vide order dated 04.03.2014 with a direction to the respondents to decide the revision petition. In compliance thereof, the Revisional Authority vide order dated 27.05.2014 rejected the revision petition of the applicant. Feeling aggrieved by the aforesaid impugned orders, the applicant has filed the present Original Application before this Tribunal challenging the same.

Per contra, the respondents have filed a counter affidavit stating therein that the applicant was working as Postman at Firozabad Head Office during the period from 01.02.2011 to 13.04.2011. During the said period, several complaints were received against the applicant regarding non-delivery of Speed Post articles and registered letters to the addressees concerned. The respondents have further stated that during preliminary inquiry it was found that the applicant had shown delivery of the aforesaid postal articles by making forged signatures of the addressees in the delivery records. The complainants were contacted and their statements were recorded. In view of the serious nature of allegations, the applicant was placed under suspension vide order dated 13.04.2011 and was thereafter served with charge-sheet dated 10.08.2011 under Rule 14 of CCS (CCA) Rules, 1965. It is further stated that though the Inquiry Officer exonerated the applicant and the Disciplinary Authority/Post Master, Firozabad accepted the said findings vide order dated 30.08.2012, the Appellate Authority, after examining the inquiry report and material available on record, issued disagreement note dated 28.12.2012 proposing enhancement of punishment. After considering the reply submitted by the applicant, the Appellate Authority found the charges to be serious and proved against the applicant and accordingly imposed punishment of compulsory retirement vide order dated 11.07.2013. Thereafter, the applicant preferred revision petition, which was duly considered and rejected by the Revisional Authority vide order dated 27.05.2014. According to the respondents, since the proceedings were conducted in accordance with law and punishment was imposed after due consideration of material available on record, the present Original Application is liable to be dismissed.

In reply to the counter affidavit, applicant has filed rejoinder affidavit opposing the contentions as made in the counter affidavit while reiterating the averments as already advanced in the OA. Nothing new has been averred in the rejoinder affidavit.

We have heard Shri S.K Pandey, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the records.

Submission of learned counsel for the applicant is that the impugned punishment order dated 11.07.2013 passed by the Appellate Authority as well as the revisional order dated 27.05.2014 are illegal, arbitrary and liable to be set aside. Learned counsel for the applicant submitted that the Inquiry Officer, after considering oral and documentary evidence, exonerated the applicant from all charges and thereafter the Disciplinary Authority/Post Master, Firozabad also accepted the said findings and exonerated the applicant vide order dated 30.08.2012. However, the Appellate Authority, without proper appreciation of record and without assigning cogent reasons, issued show cause notice dated 28.12.2012 proposing enhancement of punishment. It is argued that the disagreement note is wholly defective as it does not contain specific reasons for disagreeing with the findings recorded by the Inquiry Officer as accepted by the Disciplinary Authority. Referring to the show cause notice, it was also argued that enhanced punishment was proposed without preparing reasoned disagreement note and serving the same to the applicant for his reply. According to learned counsel for the applicant, in absence of detailed reasons, the applicant was deprived of an effective opportunity to submit his defence reply. It is further contended that though the applicant submitted detailed reply, the same was not properly considered and the punishment order was passed mechanically. It is also argued that the Revisional Authority failed to consider the substantial grounds raised by the applicant and rejected the revision petition mechanically without assigning proper reasons.

In rebuttal, learned counsel for the respondents vehemently opposed the Original Application and submitted that though the applicant was initially exonerated by the Disciplinary Authority/Post Master, Firozabad vide order dated 30.08.2012, the Appellate Authority, being competent under Rule 29 of CCS (CCA) Rules, 1965, was fully empowered to examine the correctness of the said order and enhance the punishment. He submitted that the disagreement note dated 28.12.2012 was duly served upon the applicant and sufficient opportunity was granted to submit reply. The applicant submitted his detailed reply, which was duly considered before passing final order dated 11.07.2013. Learned counsel for the respondents further submitted that the Revisional Authority, after considering all grounds raised by the applicant, rightly rejected the revision petition vide order dated 27.05.2014. Thus, learned counsel for the respondents argued that there is no procedural irregularity warranting interference and the OA is liable to be dismissed.

We have carefully considered the rival submissions advanced by learned counsel for the parties and have perused the entire material available on record.

The main question which arises for consideration in the present Original Application is whether the impugned punishment order dated 11.07.2013 passed by the Director, Postal Services, Agra and the revisional order dated 27.05.2014 can be sustained in the eyes of law.

It is noticed from the record that the departmental proceedings were initiated against the applicant on the allegation of non-delivery of certain registered letters and Speed Post articles during the period when he was posted as Postman at Firozabad Head Office.

The record further reveals that after conclusion of regular departmental inquiry, the Inquiry Officer submitted his report exonerating the applicant from all the charges. Thereafter, the Disciplinary Authority/Post Master, Firozabad, after calling the reply on enquiry report from the applicant and considering the inquiry report and the material available on record, accepted the findings of the Inquiry Officer and exonerated the applicant from all the charges vide order dated 30.08.2012. However, thereafter the Appellate Authority/Director Postal Services, Agra issued show cause notice only mentioning the disagreement with finding of Inquiry Officer and disciplinary authority dated 28.12.2012 proposing enhancement of punishment for imposing the penalty of compulsory retirement and sought reply from the applicant in this regard. The applicant submitted his detailed representation against the disagreement note. However, without properly considering the same and without assigning cogent reasons, the Appellate Authority passed the impugned punishment order dated 11.07.2013 imposing the major penalty of compulsory retirement upon the applicant.

It is observed that once the competent Disciplinary Authority had accepted the inquiry report and exonerated the applicant from all charges, the Appellate Authority could not have interfered with such findings unless strong, specific and legally sustainable reasons were found and discussed in the disagreement note. Although the Appellate Authority is empowered under the relevant rules to differ from the findings recorded by the Disciplinary Authority, such power has to be exercised strictly in accordance with law and after full compliance of principles of natural justice.

In the present matter, the said disagreement note dated 28.12.2012 merely states the intention to enhance the punishment but does not disclose any specific analysis of evidence or any concrete reasons as to why the findings recorded by the Inquiry Officer and accepted by the Disciplinary Authority were incorrect. It is settled law that whenever an authority proposes to disagree with findings favourable to the delinquent employee, it must communicate tentative reasons in clear terms so as to enable the employee to submit an effective defence. The disagreement note in the present case fails to satisfy this mandatory legal requirement.

The Hon'ble Supreme Court has consistently held in catena of judgment that where an employee is exonerated by the Inquiry Officer and accepted by the Disciplinary Authority, any subsequent disagreement by a higher authority must be based on clear reasons and supported by evidence. The action of the Appellate Authority in the present case appears mechanical and unsupported by proper application of mind. Another significant aspect is that none of the complainants appeared before the Inquiry Officer for examination or cross- examination. The allegations were primarily founded upon statements recorded during preliminary inquiry. Such statements, in absence of formal proof during departmental inquiry and without affording opportunity of cross-examination to the applicant, cannot be treated as substantive evidence.

Disciplinary proceeding against the applicant was finalized by exonerating him on 30.08.2012. The appellate authority has issued show cause notice on 28.12.2012, which was finalized (by awarding compulsory retirement) to the applicant on 11.7.2013. Clearly the show cause notice was issued within the period prescribed by CCS (CCA) Rules i.e. within six months from the issue of order of exoneration whereas the final order of compulsory retirement was issued on 11.07.2013 beyond the expiry of six months period as prescribed in CCS (CCA) Rules. On the above count also, the order of appellate authority is illegal and liable to be quashed.

In view of the discussions made hereinabove, this Tribunal is of the considered opinion that the Disciplinary Authority/Post Master, Firozabad had rightly exonerated the applicant vide order dated 30.08.2012. Appellate Authority, while exercising the power vested in it, firstly must have prepared a detailed disagreement note discussing all the grounds and evidence on which basis he was disagreeing with the view of the Inquiry Officer as well as Disciplinary Authority, thus the said disagreement note dated 28.12.2012 issued by the Appellate Authority is legally defective and the impugned punishment order dated 11.07.2013 suffers from violation of principles of natural justice and the appellate order dated 27.05.2014 is non-speaking and unsustainable, it is also void as it was passed after the period prescribed in CCS (CCA) Rules i.e. after expiry of six months from the date of issue its order by Disciplinary Authority. Accordingly, the impugned orders deserve to be quashed.

Accordingly, the Original Application is allowed. The impugned punishment order dated 11.07.2013 passed by the Director, Postal Services, Agra and the revisional order dated 27.05.2014 are hereby quashed and set aside. The respondents are directed to treat the applicant as having continued in service till the date of his normal superannuation for all service purposes. The respondents are further directed to grant all consequential benefits. The aforesaid exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. In case of default, the applicant shall be entitled to interest @ 6% per annum on delayed payment till actual disbursement. No order as to costs. All pending Misc. Applications, if any, stand disposed of accordingly.