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Judgment
Grover, J.—This is a petition under Article 226 of the Constitution by which the order of removal from service of the petitioner has been challenged.
The petitioner joined the Post and Telegraph Department, Government of India, in the year 1941. He was pasted as Sub-Postmaster in the Industrial Colony, Ludhiana, in the year 1960. This was a single-handed office with only a Class IV employee to assist the Sub Postmaster. It is said that Shri Surrinder Singh, Inspector of Post Offices, Ludhiana, visited this office on 7th June, 1961, and checked the postage stamps which had been affixed on 19 parcels and which had been booked by the petitioner on that day. He found that stamps of the value of Rs. 88.50 Paisas were short on 19 parcels which had been got booked by a firm called the United Hosiery Factory. He enquired from the petitioner the cause of shortage. The petitioner told him that the postage stamps had been affixed by the sender and that the stamps had also been checked and defaced by him. He, however, made good the deficiency to the extent of the shortage found from his own pocket The Superintendent, Post Offices, then visited the petitioner''s office on 8th June, 1961. The petitioner made a statement before the Superintendent, Post Offices, a copy of which is annexure R. 2. The relevant portion of his statement may be usefully reproduced :
Q. Can you explain why postage stamps worth Rs. 88.50 were affixed short on 19 parcels booked by you on 7th June, 1961 and you affixed stamps worth the amount after getting your statement recorded by the I. P. 0. s. regarding shortage for which you gave no explanation ?
A. The postage stamps were affixed by the senders themselves. I had verified that correct postage stamps were affixed by them on the various parcels. I cannot explain the shortage. The postage stamp were defaced by me personally at my leisure. The shortage has been explained by me in error book noted today.
Q. Is any amount paid to the mail peon Ajaib Singh by you on dates when parcels are booked by you.
A. The question does not arise.
Q. Can you explain how the postage stamps 58 in number of Re. I denomination and one for 0.50 N.P. defaced with the upper portion of your office date stamp happened to be in your possession today.
A. These were found in the bag left by the IPO on 7th June, 1961 as explained in the error book. So I kept them in my office to send to Divl. Office as they were not with me last day.
Q. Can you explain why your office mail peon deposes that you have been removing postage stamps from the parcels booked by you on various dates and that you have been giving him one or two rupees on each such date during the last six months?
A. I am unable to explain it.
The petitioner then received a notice dated 11th June, 1961 containing the statement of following three charges:
(1) Removal of postage stamps from the Foreign parcels booked by him on 7th June 1961 causing loss to Government revenues and irregular affixation thereon of incomplete date stamp impressions;
(2) Not defacing the postage stamps on the parcels booked in presence of the senders thereof before granting receipts against the provisions of rule 171(2) and (3) Volume VI, and
(3) alleged giving illegal gratification to a Class IV official of the office.
It is unnecessary to refer to certain allegations made by the petitioner with regard to some documents and records not having been made available to him when the enquiry proceeded. The Senior Superintendent of Post Offices who conducted the enquiry and who was also the punishing authority recorded an order on 28th April, 1962, finding the petitioner guilty of all the charges and directed his removal from service with effect from 28th April, 1962. The petitioner filed an appeal which was disposed of by Mr. M.M. Misra. Director of Telegarphs, Punjab Circle, Ambala Cantt. Mr. Misra found that the first and the third charges had not satisfactorily been established or proved against the petitioner. As regards the second charge, he found the petitioner guilty. Mr. Misra then proceeded to say -
I have considered the service record of the appellant from the year 1949 onwards which has been put up to me and find that from the very beginning he has displayed negligence of duty and has been penalised for it.
The charge of removal of stamps from the parcel covers has not been established. As 1 have stated above it is a wrong charge and what actually happened was that due postage stamps were not affixed on the parcel-covers. The modus operandi appears to have been that part of the money realised from the party, who booked these parcels, was pocketed and short postage was fixed and extra incomplete impressions of date stamps were made on the parcels by the culprit so as to create an illusion that stamps affixed had fallen off. The second charge of violation 0f the departmental rules about defacement of stamps has been established. With regard to the third charge I find that the evidence is not reliable and the witness himself deserves the severest punishment.
Before I proceed to give my judgment I wish to place on record my extreme dissatisfaction with the way the disciplinary proceedings have pursued in this case. The culprit was caught red-handed. The matter was treated us a routine one by the I.P.0. s as well as the Supdt. P.Os. and time was allowed to him to fabricate evidence in his favour. The main charge framed against the culprit that of removal of stamps from parcel covers is a wrong one. I am sure if promot action was taken immediately the shortage of stamps was detected and the culprit made over to the police he would have been convicted and penalised. The laxity observed by the Supdt. P.Os. and the Inspector P.Os. in this regard deserves sever action against them.
The appellant is guilty of misappropriation of Government revenue. He is undesirable and unfit for retention in Government service. I, therefore, remove him from service.
Mr. Sachar who appears for the petitioner has contended quite strenuously that the order of Mr. Misra was altogether illegal inasmuch as he proceeded to find the petitioner guilty of the charge of mis-appropriation of Government revenue although no such charge had been preferred or enquired into and in respect of which the petitioner never had any opportunity of proving his innocence. It is pointed out that the gravamen of first charge was that postage stamps had been removed from Foregin parcels booked by the petitioner thus causing loss to Government revenue and there had been irregular affixation of incomplete date stamp impressions on those parcels. It was not even alleged in that charge that the petitioner had pocketed those stamps himself but even if it be assumed that that charge included the allegation that after removal of the postal stamps the petitioner had pocketed them himself it could not be the same thing as saying that the senders of Foreign parcels used to hand over money in cash to the petitioner for affixing postage stamps and he misappropriated a part of that money to the extent of the value of the stamps which were not affixed. That charge involved misappropriation of money handed over by the senders. Mr. Sachar has further pointed out that there is absolutely no evidence on which it could be found that the senders used to hand over any money to the petitioner for affixing the postage stamps which would enable him to misappropriate a part of that money. In paragraph 25 (i) of the petition it was stated inter alia that there was no evidence at all to show that the petitioner used to take part of the money and affix the postage. In reply to this in the return it was stated as follows-
* * * *
So far as the evidence is concerned, it is true that there is no evidence that the petitioner got money and did not remove stamps but the conclusion that the petitioner defalcated the amount can also be drawn from the proved facts.
It is therefore, almost undisputed that no evidence had been led nor was there any material on the record from which it could be found that the senders had been handing over the money to the petitioner for affixing the stamps. As a matter of fact, the entire case against the petitioner proceeded on the basis that he was handed over the Foreign parcels bearing stamps of the full and proper value but that he used to remove some part of those stamps. I cannot therefore possibly accept the statement of the learned Advocate-General that the charge of which the petitioner was found guilty by Mr. Misra, namely, misappropriation of money ever fanned subject-matter of the charges which had been enquired against him. It is apparent from the order of Mr. Misra himself that he felt that the first charge had been wrongly framed. Mow if proper charges had been preferred with regard to misappropriation of money the petitioner would have been in a position to lead evidence to show that the senders never gave any money to him add that the postage stamps were put by them on the parcels before they were handed over to him.
It is common ground that under the rules of the postal Department the senders have to affix stamps themselves and under no circumstances are the employees of the Postal Department permitted to buy stamps and affix them on behalf of any party. The rules being in these terms it was all the more necessary that a clear charge should have been framed and proper allegations made against the petitioner if it was sought to find him guilty of misappropriation of the money which the senders used to hand over to him for putting postage stamps which was clearly contrary to the rules. I am, therefore, satisfied that with regard to the matter which seems to have affected the mind of Mr. Misra more in ordering removal, namely, misappropriation of Government revenue no charge had been preferred against the petitioner. In Harbans Singh Iqbal Singh Vs. State of Punjab, S.B. Capoor J. held that when in disciplinary proceedings against an officer of the Government the Inquiry Officer gives findings on matters outside the scope of the charge sheet it is not possible to say how far the punishing authority removing the officer is influenced by these findings as distinct from the findings on the charges actually framed. If the extraneous findings relate to matters much more serious than the findings which are the subject-matter of the charges then it would be only just and reasonable to hold that reasonable opportunity to defend himself guaranteed by the Constitution and by the service Rules was not afforded to such officer. The orders of removal are therefore vitiated and liable to be quashed. With respect I entirely agree and hold that in the present case Mr. Misra did what according to S.B. Capoor J. ought not to have been and could not have been done by him.
The next question is whether in view of the fact that the second charge was found to have been proved against the petitioner, this Court should or could enquire into the punishment which has been inflicted upon him, namely, or removal. Mr. J.N. Kaushal has relied on State of Orissa Vs. Bidyabhushan Mohapatra, in which it was observed at page 786 that if the order of the Government can be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. Mr. Kaushal says that even if Mr. Misra could not have found the petitioner guilty of a charge of misappropriation of Government revenue but since charge No. 2 against him had been proved, the order of removal could be made and the law as laid down by their Lordships of the Supreme Court should be applied. There would have been force in what Mr. Kaushal contends if it had not been clear from the order made by Mr. Misra that the punishment of removal was awarded on a charge which had originally not been preferred of which Mr. Misra had proceeded to find the petitioner guilty. The order of Mr. Misra, the relevant part of which has been set out in extenso, clearly shows that he was predominantly and mainly affected by the proof of misappropriation of Government revenue which according to him has been established against the petitioner. The operative part of his order says that the appellant is guilty of misappropriation of Government revenue. He is undesirable and unfit for retention in Government service. He is, therefore, removed from service. It is true that he had been found guilty of the second charge but the real punishment of removal seems to be the one given under the concluding part of the order. It is also significant that the second charge was not of serious nature at all. The petitioner had alleged in paragraph 25(n) of the petition :
That charge No. 2 is a very minor charge and cannot possibly justify the removal of the petitioner from the service. That never in the history of the Postal Department has ever person been punished by a removal on the basis of a charge like No. 2.
In any case, the order of removal by respondent No. 2 being based on charge, which was not the subject-matter of the charge-sheet, the whole order of respondent No. 2 is unsustainable in law.
In the return all that was stated in reply was that it was for the Departmental authority to award punishment. The statement of facts contained in sub-clause (n) of paragraph 25 of the petition was not denied. It is apparent that punishment of removal had hardly ever been inflicted for kind of offence which was covered by charge No. 2. At any rate, even if it is assumed that Mr. Kaushal is right that the Central Civil Services (Classification, Control and Appeal) Rules do not make any distinction with regard to inflicting punishments in such matters but as I have already said, the order leaves hardly any room for doubt that Mr. Misra was influenced mainly by the fact that the petitioner had been found by him guilty of the charge of misappropriation of Government revenue and it was for that reason that he directed his removal from his service.
Mr. Sachar also referred to another aspect of the matter and that is that in his order Mr. Misra had referred to the past service record of the petitioner. Mr. Sachar says that unless there had been reference to the petitioner''s record in the second show-cause notice it was not open to Mr. Misra to have relied on anything adverse to the petitioner in his previous record. For this purpose he has invited my attention to a decision of the Supreme Court in State of Mysore v. K. Manche Gowda 1963 Curr. L.J. 166, Mr. Kaushal says that it is apparent from the order of Mr. Misra that the petitioner had himself invited the attention of that officer to his previous record and therefore he cannot now make a grievance of it. At any rate, there is nothing in the concluding or operative part of Mr. Misra''s order which would indicate that while inflicting the punishment of removal he took the past record of the petitioner into consideration. There is hardly much force in this contention of Mr. Sachar.
In the result, the petition must succeed and it is hereby allowed and the order of the removal is set aside. It would, however, be open to the Departmental authorities to impose such penalty as it may be open to them to inflict on the petitioner in accordance with law. In the circumstances I leave the parties to bear their own costs.