Brijesh Kumar vs Union Of India & Ors.

Delivered by: Mr. Anjani Nandan Sharan, Member (A)

Heard Shri Pankaj Kushwaha, learned counsel for the applicant and Shri M. K. Sharma, learned counsel for the respondents.

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

The facts, as stated by the applicant, are that the applicant was initially appointed as GDS Branch Postmaster (BPM) at Garhiya Govindpur, District Mainpuri on 07.06.1989. In 2008, he was assigned additional duties relating to Alipur Kheda Branch Post Office. As per the applicant, on 03.11.2008, during his absence, the then SDI, along with another official, allegedly inspected his office and took away certain official documents and records. The applicant submitted complaints regarding the incident to the competent authorities, but according to him, no action was taken for several years despite annual audits being conducted.

In the counter affidavit filed by the respondents, it is stated that the applicant had been indisciplined during his service. On 31.10.1989, the then complaint inspector went to the applicant’s BO for annual inspection and he was denied to get the BO inspected and the applicant also misbehaved with him. The applicant was charge sheeted vide order dated 05.03.1990 and was awarded punishment of recovery for Rs. 200/- from his TCRA. Thereafter, many reports were received from concerned SDI/Mail Overseer regarding the applicant’s adverse activities. The applicant also moved an application dated 04.11.2008 stating that the SDI (P) Mainpuri and Mail Overseer carried out inspection of Gariya Govindpur in his absence on 03.11.2008 and took away the office documents such as MS-87A, BO General etc. Thereafter, the Sub Divisional Inspector Mainpuri submitted his reply to the said application of the applicant and stated that the inspection was made in presence of the applicant and the applicant’s statement was also recorded. It was further stated that the said application was moved by the applicant to divert the higher authorities from irregularities found during inspection of Gariya Govindpur BO such as not proper maintaining of BO Account and unauthorized tampering in stamp balances of BO as the stamp balance of Post office was Rs 383.50/- as on 01.08.2008 that became Rs. 423.00/- as on 02.08.2008 without any remittance received from account office.

In response, the applicant has filed rejoinder affidavit denying the submissions of the respondents.

The applicant has also filed written submissions stating therein that the respondents have not impartially examined the original dispute i.e. the complaint made by the applicant on 17.08.2015 against some officers, instead issued charge-sheet against the applicant. As per the applicant, the basis of allegation-1 is the incident of 23.09.2015. However, on the same day, the applicant had filed his written complaint against some officers. The respondents have relied upon the statement of departmental officers and have ignored the compliant raised by the applicant vide letter dated 23.09.2015. The applicant has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of State of U.P. vs Shatrughan Lal (1998) 6 SCC 651, wherein it was held that in departmental proceedings, the officer must be given a real and effective opportunity, a mere nominal opportunity is not sufficient and providing incomplete documents violates the right of effective defence.

Submissions of learned counsel for both the parties have been heard and records have been gone through.

It is noted from the records that the applicant was working in the respondents’ department as GDS Branch Postmaster (BPM) at Garhiya Govindpur Branch Post Office, District Mainpuri. Subsequently, disciplinary proceedings were initiated against him on the allegations of misconduct, including misbehaviour with departmental officials, failure to hand over charge and retention of government money. The applicant was placed off duty on 29.09.2015 and, thereafter, a charge-sheet dated 21.01.2016 was issued to him under the relevant provisions of the GDS (Conduct and Engagement) Rules, 2011. The relevant portion of the said charge-sheet is quoted as under:

It is further noted that the disciplinary inquiry was initially conducted ex parte and finalized vide order dated 31.05.2017 whereby the applicant was dismissed from engagement. Thereafter, the applicant preferred an appeal, which was considered by the competent authority, pursuant to the order passed by this Tribunal in O.A. No. 732/2018. The appellate authority, vide its order dated 12.10.2018, remitted the matter for conducting a de-novo inquiry from the stage of appointment of the Inquiry Officer and Presenting Officer. Thereafter, the Inquiry Officer and Presenting Officer were appointed. However, the applicant did not participate in the inquiry and the proceedings were again conducted ex parte. The relevant portion of the said inquiry report dated 10.08.2021 is reproduced as under:

Thereafter, order dated 29.09.2021 was passed, whereby the applicant was compulsorily discharged from engagement with monetary benefits. An appeal was filed by the applicant, however, the same was rejected by the appellate authority vide order dated 30.08.2022. The relevant portion of the said order is quoted as under:

It is the contention of the applicant that the disciplinary proceedings were conducted in violation of the principles of natural justice and that the authorities failed to properly consider his defence, his complaints against certain departmental officials and the documents and circumstances relied upon by him. However, from the material available on record, it is apparent that the applicant was afforded sufficient opportunity to participate in the disciplinary proceedings. The respondents have specifically stated that after the order dated 12.10.2018, the Inquiry Officer and Presenting Officer were appointed on 20.11.2018 and the applicant was given opportunities to participate in the de-novo inquiry. Despite the same, he did not appear before the Inquiry Officer and did not submit his defence despite repeated opportunities. Thus, the contention that the inquiry was conducted ex parte, by itself, cannot establish violation of the principles of natural justice when the applicant, despite being afforded opportunities, failed to participate in the proceedings.

It is also relevant that the Director, Postal Service, Agra (appellate authority), vide its order dated 12.10.2018 remitted the case back to the disciplinary authority from the stage of appointment of inquiry officer and presenting officer for de-novo (detailed) inquiry after considering the applicant’s earlier appeal. The appellate authority also observed in his order that the appellant would cooperate in the departmental proceedings. The applicant did not participate in the fresh inquiry proceedings. It is specifically mentioned in the fresh enquiry report that 14 dates were fixed for inquiry from 12.02.2019 to 12.04.2021 and letters were sent to the applicant on each date. Since the applicant did not present himself on any date, the inquiry officer had to conduct and conclude the inquiry proceeds ex-parte. Therefore, it is noted that sufficient opportunity was provided to the applicant to defend himself in the inquiry proceedings, which he avoided and did not attend even on a single date. Therefore, we do not find any procedural or legal infirmity in the conduct of departmental proceedings, which may warrant any intervention by this Tribunal.

The applicant has relied upon the various judgments of the Hon’ble Supreme Court contending that the disciplinary authority cannot record findings merely on the basis of allegations or suspicion and that an effective opportunity of defence is required to be provided. However, in the instant case, the applicant has not been able to demonstrate from the record that the inquiry was conducted without giving him any opportunity, whatsoever, to defend himself. On the contrary, the respondents have placed on record that sufficient opportunities were afforded to the applicant in the de-novo proceedings, but he chose not to participate. If an employee, despite having knowledge of the proceedings and having been afforded reasonable opportunities, abstains from participating in the inquiry, he cannot subsequently challenge the proceedings on the ground of violation of natural justice.

It is settled principle of law that in Original Applications, challenging the orders in disciplinary proceedings, the scope of interference of the Tribunals is very limited. In a catena of judgments by the Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority, which are affirmed or diluted by the Appellate Authority/Revisional Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting the enquiry.

The Apex Court in the case of S.R. Tewari vs. Union of India 2013(7) Scale Page 417 has held as under :-

In view of above, this Tribunal does not find any infirmity in the impugned orders challenged by the applicant. The instant Original Application is liable to be dismissed and is, accordingly, dismissed being devoid of merit.

Interim Order, if any, stands discharged.

All the related MAs stand disposed of.