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Judgment
Om Prakash VII, Member (J)
This O.A. has been filed by the applicants U/s 19 of the AT Act, with the following reliefs:-
i) To issue a writ order or direction in the nature of certiorari to quash the impugned Memo of Charge sheet dated 7.2.2002 (Annexure A-1) issued by respondent No. 4 and dismissal order dated 22.3.2005 (AnnexureA-2) passed by respondent No. 4 and appellate order dated 19.5.2016 (Annexure A-3) passed by the respondent No. 3.
ii) To issue, a writ order or direction in the nature of mandamus directing the respondents to reinstate the applicant in service with full back wages and consequential benefits.
iii) To issue another writ, order or direction in favour of the applicant as deem fit and proper in the circumstances of the case.
iv) Award the cost of the application in favour of the applicant.
The brief facts of the case as stated by the applicant are that applicant was appointed as Branch Post Master in Dundwa District Kannauj on 1.1.1991. Applicant went to Unnao on 14.8.1999 but unfortunately fell ill. He submitted medical certificate from 15.8.1999 to 17.8.1999. In absence of the applicant, Sub Divisional Inspector Post Offices, Chhibaramau along with some other officers with ulterior motive had designed whole illegal action and lifted up Post Office, misusing and abusing the authority put the same at the House of E.D. Post Man Mohd. Darar’s house. On 19.8.1999, applicant approached the immediate superiors but of no avail. On 20.8.1999, the applicant was reported absconding and lodged First Information Report with police station Gurshahai Ganj. Even on lodging FIR, he was not placed on put off duty and no subsistence allowance was paid to him. The applicant made application to General Manager, Post Offices on 29.10.2001 and raised question of illegality of showing the applicant absconder and questioning the illegality of issuing pass book from Account Office in absence of any record. After a gap of two and half years, charge sheet dated 7.2.2002 was issued upon the applicant framing false charges under provisions of EDA (Conduct and Services) Rules, 1964. The applicant submitted reply to the charge sheet vide application dated 19.2.2002 and denied the charges leveled against him and stated that no documents have been supplied to him along with charge sheet. Applicant submitted application dated 13.3.2002 to Director (Posts) New Delhi and on this application, some strict action was directed to be taken against wrong higher official and aid conspirators. Action was taken and Rs. 10000/- each were recovered from Sughar Singh Pal (Overseer) and from Megh Nath (Overseer). They were kept under suspension for a period of 6 months, Jugal Kishore Supdt. and Keshav Singh Clerk and Assistant Post Master/ Accountant were kept under suspension and were given charge sheet. The persons who were involved in the entire matter were exercising the power of enquiry officer and disciplinary authority. Applicant submitted telegram dated 3.6.2002 levelling the charges of bias against them. When no relief was given, applicant filed O.A. No. 1241 of 2006 with request for quashing the departmental proceedings for the reason of mala fides which was dismissed by this Tribunal vide order dated 26.2.2010. Inquiry was conducted and inquiry officer submitted the inquiry report. Inquiry report was given to the applicant and applicant submitted the reply of the same. Punishment order dated 22.3.2005 was passed by which applicant was dismissed from service. Appeal filed by the applicant was also dismissed vide order dated 19.5.2016.
Per contra, learned counsel for the respondents filed counter reply, wherein it is stated that applicant while working as GDS BPM Dundwa Buzurg Branch Post office, a charge sheet was served upon him under Rule 8 of EDA (Conduct an Service) Rules, 2011 for not taking into Govt. accounts the various deposits amounting to Rs. 378435/- made by the depositors in various SB, RD and TD accounts. On receipt of complaint dated 16.8.1999 from one Shri Qasim Khan depositor of Account No. 93784, and Shri Sabir Khan depositor of 5 years TD account No. 44995 and 45000 regarding non-crediting of deposited amount of RD into Govt. account , the then SDI (P) was directed to enquire and submit report, who submitted inquiry report on 19.8.1999. On enquiry both the complainants confirmed their complaints. The applicant was placed under put off duty by SPOs, Fatehgarh vide letter dated 17.8.1999. Applicant was dismissed from service vide order dated 22.3.2005. Applicant filed appeal which was also rejected vide order dated 19.5.2016
Heard the learned counsel for the parties.
The submission of the learned counsel for the applicant is that charge sheet dated 7.2.2002 has been issued to the applicant under EDA (Conduct and Service) Rules 1964 which is not applicable to the applicant. It is further argued that applicant was provided the listed documents along with the charge sheet as such applicant has been deprived to submit the effective reply of the charge sheet.
The submission of the learned counsel for the respondents is that applicant was absent from duty since 14.8.1999. Applicant misappropriated the Govt. money from SB, RD and TD accounts. He was placed under put off duty and dismissed from service. Since the applicant was put off duty, hence it was not feasible to run the post office from his building. The action taken by the respondents is in accordance with rules and regulations. The O.A. is liable to be dismissed.
We have considered the rival submissions and perused the pleadings on record.
The entire proceedings which has taken place in pursuance of the charge sheet after following due process of law, needless to say that the respondents have fully followed the procedure as provided under the rules and after discussing each and every aspects of the matter, the enquiry officer submitted his report to the disciplinary authority and after considering the same, disciplinary authority passed the order of removal. The charge sheet clearly shows that the applicant misappropriated the fund of public as such it cannot be said that the charges leveled against the applicant are against the factual aspect.
The law is settled in regard to the scope of judicial review in the matter of disciplinary proceedings which is very limited and the same can be interfered only if there is violation of principles of natural justice and only if there is violation of statutory rules or it is a case of no evidence. In the entire proceedings, full opportunity was given to the applicant, as such there is no violation of principles of natural justice. As such, this Tribunal can look into that to what extent it can go into the scope of judicial review in the matter of disciplinary proceedings. The Tribunal or the Court cannot sit as an appellate authority.
Aforesaid view taken by the Court finds support with the following case laws:-
i). Hon’ble Apex Court in the case of State of Uttar Pradesh v. Raj Kishore Yadav reported in 2006(5) SCC 673 has observed as under:-
“4. On a consideration of the entire materials placed before the authorities, they came to the conclusion that the order of dismissal would meet the ends of justice. When a writ petition was filed challenging the correctness of the order of dismissal, the High Court interfered with the order of dismissal on the ground that the acts complained of were sheer mistakes or errors on the part of the respondent herein and for that no punishment could be attributed to the respondent. In our opinion, the order passed by the High Court quashing the order of dismissal is nothing but an error of judgement. In our opinion, the High Court was not justified in allowing the writ petition and quashing the order of dismissal is noting but an error of judgement. In our opinion, the High Court was not justified in allowing the writ petition and quashing the order of dismissal and granting continuity of service with all pecuniary and consequential service benefits. It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed. As already noticed, the charges are very serious in nature and the same have been proved beyond any doubt. We have also carefully gone through the enquiry report and the order of the disciplinary authority and of the Tribunal and we are unable to agree with the reasons given by the High Court in modifying the punishment imposed by the disciplinary authority. In short, the judgment of the High Court is nothing but perverse. We, therefore, have no other option except to set aside the order passed by the High Court and restore the order passed by the disciplinary authority ordering dismissal of the respondent herein from service.”
ii). Hon’ble Apex Court in the case of B.C. Chaturvedi v. U.O.I. & ors. reported in 1995(6) SCC 749 again has been pleased to observe that “the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence.”
iii). In another case the Hon’ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon’ble Apex Court has been pleased to observe as under:-
“In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.”
iv). Hon’ble Apex Court in another decision of State of UP v. Saroj Kr. Sinha reported in 2010 (2) SCC 772 has been pleased to observe that the employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. In the instant case the entire proceedings were carefully considered by the disciplinary authority and full opportunity was given to the applicant in conducting the enquiry and applicant also his defence submitted the reply etc.
v). In the case of Mani Shankar v. Union of India & Ors. reported in (2008)1 SCC(L&S)-819 “The procedural fairness in conducting the departmental proceeding is a right of an employee. However, in this case the Hon’ble Supreme Court has also pleased to observe that the scope of judicial review in disciplinary proceedings is very limited. The Administrative Tribunals are to determine whether relevant evidences were taken into consideration and irrelevant evidences are excluded.
vi). In the case of Regional Manager, UPSRTC Vs.Hoti Lal reported in (2003) 3 SCC 605, the Hon’ble Apex Court clearly observed as under:-
“If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.”
vii). In the case of Union of India Vs.Sardar Pahadur reported in (1972) 4 SCC 618, the Hon’ble Apex Court has observed as under:-
“A disciplinary proceedings is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The letters patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the single judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterized as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts.”
As stated above that the Tribunal or the Court cannot sit in appeal over the decision of disciplinary authority nor can substitute its view in place of the said authority. The disciplinary authority was within his right to issue appropriate punishment as he may have deemed fit and proper. The Tribunal is not competent to go into the quantum of punishment inflicted by the disciplinary authority unless it is shockingly disproportionate the Tribunal cannot sit as an appellate authority on the decision of the disciplinary authority or exercise their jurisdiction of judicial review in disciplinary matters if there is no apparent illegality.
The applicant failed to show the shortcomings in the enquiry and the disciplinary authority as well as enquiry officer has not followed the due process of law. In the instant case, no such facts has been mentioned. Apart from this, the appellate order also cannot be considered as a non-speaking order. As such, it cannot be said that the authorities without considering the material facts on record, passed the impugned orders.
In the instant case, the applicant while working as Branch Post Master, Dundwa Buzurg Post Office, complaint was received against him for not depositing the money received from the depositor in SB/RD and T.D. account in the Govt. account but used the same in his personal use. Charge sheet was issued upon him. He submitted the reply of the charge sheet. Enquiry was conducted against him. During the enquiry both the complainant were called and they confirmed that amount deposited by them were not credited in the govt. account. Full opportunity was given to the applicant during the enquiry proceedings. Plea taken by the applicant that in his absence, the officers with malafide intension has shifted the post office to the House of E.D. Post Man has already been rejected by this Tribunal vide order dated 26.2.2010 passed in O.A. No,.1241/2006 filed by the applicant. In this judgment, Hon’ble Tribunal clelary observed that nothing is on record to indicate that the disciplinary proceeding was initiated against the applicant on account of malafide or without any substance. Now applicant by way of the instant O.A. agitating the same grievance. It was also observed by the Tribunal that disciplinary action was initiated against the applicant after completion of open enquiry. Second plea of the applicant is that documents were not supplied to him as demanded vide letter dated 13.10.2015. In reply to this letter respondents vide annexure A-2 annexed with the O.A. sent reply to the applicant stating that “with reference to your letter under reference, the copy of this office memo No.F-4/1/99-Disc. III dated 22.3.2005 is sent herewith” and annexed the same along with the letter. It is also evident from record that both the complainant were called during the enquiry and they confirmed the allegation leveled against the applicant. It is also evident from the record that enquiry officer has afforded full opportunity to the applicant during enquiry and while preparing the enquiry report has also considered the entire facts and evidence collected during enquiry. As has been discussed hereinabove, Tribunal/ Court can re-appreciate the facts only in the circumstances when there is glaring mistake in appreciating the evidence collected during the enquiry or opinion of the enquiry officer is perverse. If the settled legal preposition of law in regard to appreciation of facts and evidence in judicial review is compared with the facts and circumstances of the present case, no interference is required. No illegality, infirmity or perversity are found. It can also not to be said that punishment imposed upon the applicant by the Disciplinary Authority and approved by the Appellate Authority are disproportionate. There is allegation of misappropriation of huge amount which has been proved during the enquiry. The Tribunal is of the view that prayer made by the applicant in the present O.A. is not liable to be allowed.
Considering the submissions of the learned counsel for the parties as well as observations made by the Hon’ble Apex Court, we do not find any good ground to interfere in the present case
Accordingly, O.A. is dismissed.
There shall be no order as to costs.