Girish Chand Gautam vs Union Of India & Ors.

Hon’ble Mr. Rajinder Kashyap, Member (A):-

By filing the present O.A. under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs: -

As stated by the applicant, he joined the Department of Posts as a Postal Assistant in the year 1992 and, at the relevant time, was working as Postal Assistant. He had rendered approximately 25 years of service when the penalty of removal from service was imposed upon him.

Pursuant to notice issued by this Tribunal, the respondents have filed reply opposing the claim of the applicant. The applicant has also filed rejoinder refuting the contents of the reply filed by the respondents.

Mr. Ashish Nischal, learned counsel appearing for the applicant, argued that the respondents have failed to appreciate a vital fact that the present impugned penalty of removal from service would not commensurate with the allegation of conduct by the applicant. The present impugned penalty of removal is not only disproportionate to the conduct, but also at the same time would shock the consciousness of the Courts. The applicant was having, to his credit, a service career of about 25 years and further, as on date, more six years to go, before superannuation;

Mr. B. L. Wanchoo, learned counsel, by referring to the contents of the counter reply filed on 27.04.2024 on behalf of respondents, submitted that the Applicant while working as SPM (Sub Post Master) in Post Office Sarai Khawja, Agra during the period from 14.06.2013 to 15.06.2013. The applicant committed a grave misconduct inasmuch as he failed to remit cash to Head Post office Agra on 15.06.2013 to tune of Rs. 4,00,000/- through various mode of conveyance as per rules and shown cash remittance of Rs. 4,00,000/- to Head Post office Agra in his record (Sub Post office Daily accounts) dated 15.06.2013 but he actually handed over/deposited an amount of Rs. 3,00,000/- in place of Rs. 4,00,000/- to Assistant Treasurer Head Post office Agra for which he received a token of receipt of Rs. 3,00,000/- from the Assistant Treasurer of the Head Office, Agra. But applicant also failed to keep the concerned receipt in Post office record. Thus, the applicant retained unauthorizedly an amount of Rs. 1,00,000/- (Rupees One Lakh only). On receipt of the information regarding short deposit of Rs. 1,00,000/-by the applicant an Inquiry was conducted by Sub Divisional Inspector (Posts), West Sub Division Aga and Sub Divisional Inspector (Posts), East Sub Division Agra. Finally, the applicant deposited a balance of Rs. 1,00,000/- on 19.06.2013 in Sanjay Place Post office Agra owning/ admitting his responsibility and mistake vide his written statement dated 19.06.2013 (Annexure R-1) under receipt No. A 3815.

In response to the counter reply filed by the respondents, the applicant filed a rejoinder on 01.05.2024 and submitted that the part cause of action has arisen at Delhi, as the one of the Impugned Orders i.e. 26.09.2023, of the Reviewing Authority, has been issued from Delhi. Hence, this Principal Bench of this Tribunal would be having the territorial jurisdiction to entertain the present O.A. Therefore, the provisions of Rule 6 (ii) of the CAT (Procedure) Rules, 1987 are not attracted.

We have heard the learned counsel for the parties and carefully perused the pleadings on record.

As stated by the applicant, he joined the Department of Posts as a Postal Assistant in 1992 and had rendered about 25 years of service. While working as Sub Post Master, Sarai Khwaja (Single Hand), Agra, disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were initiated against him vide Memorandum dated 31.03.2015 on the allegation that, on 15.06.2013, he deposited only Rs. 3,00,000/- out of Rs. 4,00,000/-, and the balance amount of Rs. 1,00,000/- was deposited on 19.06.2013. The Inquiry Officer, vide report dated 23.11.2016, held the charge proved. The Disciplinary Authority, vide order dated 23.01.2017, imposed the penalty of removal from service, which was upheld in appeal vide order dated 19.06.2017 passed by the Appellate Authority. The applicant thereafter preferred a Review Petition dated 10.06.2018. Pursuant to the order dated 26.04.2023 passed by this Tribunal in O.A. No. 1464/2023, the applicant submitted a supplementary representation dated 10.05.2023. The Review Petition and supplementary representation were rejected by the respondents vide order dated 26.09.2023. Aggrieved thereby, the applicant has filed the present O.A., contending that the non-deposit of Rs. 1,00,000/- was inadvertent and not intentional and that, in view of his long service and subsequent deposit of the entire amount, the penalty of removal from service is grossly disproportionate to the misconduct.

At the outset, it is required to be noted that the scope of judicial review in disciplinary matters is well settled. The Tribunal does not ordinarily sit as an appellate authority over the findings recorded by the Inquiry Officer or the Disciplinary Authority, etc. The adequacy or sufficiency of evidence is not ordinarily a matter for re-appreciation by the Tribunal, provided the findings are based on some legally admissible and relevant material and the disciplinary proceedings have otherwise been conducted in accordance with the prescribed procedure. However, the question whether the punishment imposed is grossly disproportionate to the proved misconduct and thereby shocks the conscience of the Tribunal is within the limited scope of judicial review.

Since this matter pertains to departmental proceedings, we deem it apt to observe that it is settled principle of law that in departmental proceedings, the Disciplinary Authority is the sole judge of facts. Once findings of fact, based on appreciation of evidence are recorded by the Disciplinary Authority and Appellate Authority, normally the Court/Tribunal may not interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court/Tribunal, since the High Court/Tribunal does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review. The Tribunal cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities.

In the present case, the applicant was proceeded against under Rule 14 of the CCS (CCA) Rules, 1965. The charge against him essentially related to the non-deposit of an amount of Rs. 1,00,000/-out of the total amount of Rs. 4,00,000/- which, according to the departmental case, was required to be remitted to the Head Post Office on 15.06.2013. It is not in dispute that an amount of Rs. 3,00,000/- was deposited on the said date and the balance amount of Rs. 1,00,000/-was deposited by the applicant on 19.06.2013. Article of charge reads as under:-

The Inquiry Officer, after conducting the disciplinary proceedings, held the charge proved. The applicant was afforded an opportunity to submit his representation against the Inquiry Report and thereafter the Disciplinary Authority, upon consideration of the material available on record, imposed the penalty of removal from service vide order dated 23.01.2017. The departmental appeal was dismissed on 19.06.2017. Subsequently, the applicant preferred a Review Petition, which was ultimately considered and rejected by the competent authority vide order dated 26.09.2023 pursuant to the directions issued by this Tribunal in O.A. No. 1464/2023.

Thus, insofar as the regularity of the disciplinary proceedings and the finding recorded by the Inquiry Officer are concerned, we do not find sufficient justification to interfere. The applicant participated in the inquiry, submitted his defence and also made representation against the Inquiry Report. The finding of the Inquiry Officer is based upon the documentary and oral material considered during the inquiry. We, therefore, do not propose to re-appreciate the evidence or substitute our own view for that of the disciplinary authorities on the question of proof of the charge.

The principal question which, therefore, arises for our consideration is whether, assuming the charge to have been proved, the extreme penalty of removal from service imposed upon the applicant is commensurate with the proved misconduct.

The applicant has relied upon the judgment of the Hon‟ble Supreme Court in Union of India & Ors. Vs. J. Ahmed, AIR 1979 SC 1022. The said judgment, in our considered view, does not assist the applicant to the extent of completely exonerating him from the charge. The applicant was holding the post of Sub Post Master and was entrusted with the custody and remittance of public money. Failure to remit the entire amount entrusted to him cannot be treated as a mere deficiency in efficiency in the discharge of official duties. The nature of the post and the responsibility attached thereto are relevant considerations. Consequently, the finding of misconduct cannot be interfered with merely on the ground that the applicant describes the omission as inadvertent.

At the same time, the question of proportionality of punishment stands on a somewhat different footing. The disciplinary authority is undoubtedly entitled to maintain discipline and impose an appropriate penalty having regard to the nature and gravity of misconduct. However, the punishment must bear a reasonable relationship with the misconduct actually established in the disciplinary proceedings.

In B. C. Chaturvedi Vs. Union of India & Ors., AIR 1996 SC 484, the Hon‟ble Supreme Court held that normally the Court or Tribunal would not substitute its own conclusion on the penalty imposed by the disciplinary authority. However, where the punishment imposed shocks the conscience of the Court or Tribunal, appropriate relief can be moulded, including directing reconsideration of the punishment or, in an appropriate and exceptional case, imposing an appropriate punishment.

Similarly, the principle governing judicial review of punishment is that the Court is not concerned with whether another punishment could have been imposed, but whether the punishment actually imposed is so disproportionate to the misconduct proved that it warrants judicial interference.

In the present case, certain circumstances assume considerable significance while examining the proportionality of the penalty. First, the disciplinary charge which culminated in the impugned penalty essentially related to non-deposit of Rs. 1,00,000/- on 15.06.2013. Secondly, the amount was subsequently deposited on 19.06.2013. Thirdly, there is no finding in the disciplinary proceedings that the applicant permanently misappropriated the amount or that the Government ultimately suffered an irrecoverable financial loss of Rs. 1,00,000/-. Fourthly, the applicant had rendered approximately 25 years of service by the time the penalty was imposed.

We are conscious of the fact that the respondents have alleged that the applicant retained the amount unauthorizedly, failed to maintain the prescribed cash balance and made incorrect entries in the daily account. These circumstances undoubtedly constitute matters of serious concern, particularly because the applicant was entrusted with public money. A person holding such a post is expected to maintain a very high degree of financial integrity and accountability. Therefore, the misconduct cannot be brushed aside as an ordinary or trivial lapse.

However, while determining the appropriate penalty, it is necessary to confine the consideration primarily to the misconduct which stood established in the disciplinary proceedings culminating in the impugned order. The respondents have also referred to alleged fraudulent withdrawals from RD accounts at Namner and Nai Ki Mandi Post Offices and to the FIRs registered in respect thereof. They have further referred to an earlier penalty imposed upon the applicant in the year 2010. So far as the two alleged fraud cases are concerned, the material placed before us indicates that separate disciplinary proceedings were initiated in respect thereof and criminal cases were also registered. Those allegations, therefore, cannot by themselves be treated as established misconduct for the purpose of determining the proportionality of the punishment in the present disciplinary proceedings, unless they had been duly proved and lawfully taken into consideration by the Disciplinary Authority in accordance with the applicable rules. Mere registration of an FIR or pendency of separate disciplinary proceedings cannot be equated with proof of misconduct.

Likewise, the previous penalty imposed in the year 2010 may be a relevant circumstance, if permissible under the applicable rules and if duly considered by the competent authority, but it cannot automatically convert the misconduct proved in the present proceedings into a case warranting the extreme penalty of removal from service. Each disciplinary matter has to be examined having regard to the misconduct proved therein and the circumstances surrounding it.

We also find considerable force in the contention of the applicant that the amount of Rs. 1,00,000/- was ultimately deposited on 19.06.2013. The fact of subsequent deposit does not wipe out the misconduct, nor does it constitute an automatic defence to the charge. Nevertheless, it is certainly a relevant mitigating circumstance while determining the appropriate penalty.

The respondents have argued that the applicant, being the custodian of public money, was not entitled to retain even a single rupee beyond the prescribed limit and that his conduct demonstrated an intention to utilize public money for his personal benefit. We are unable to accept the latter conclusion in its absolute form merely on the basis of the facts of the present charge. The respondents have not demonstrated before us any finding in the disciplinary proceedings conclusively establishing that the applicant actually utilized the amount of Rs. 1,00,000/- for his personal benefit. The departmental finding, as it emerges from the pleadings, is essentially that the amount was not deposited on the due date and was subsequently deposited by the applicant.

The distinction is important. A serious lapse in the handling of Government money can undoubtedly amount to misconduct and may justify a major penalty. But the question whether such misconduct necessarily warrants removal from service must depend upon the totality of circumstances, including the amount involved, the duration for which the amount remained undeposited, whether the amount was ultimately recovered, whether there was personal gain, whether there was actual financial loss to the Government, the employee‟s past service record and other mitigating or aggravating circumstances.

In the present case, the amount involved was Rs. 1,00,000/-, which was deposited within four days. The applicant had approximately 25 years of service at the relevant time. There is no material before us demonstrating that, in the disciplinary proceedings relating to the present charge, the applicant had permanently misappropriated the amount or derived any established personal benefit therefrom. The subsequent allegations relating to other cases cannot be treated as proved misconduct for the present purpose merely because separate proceedings/FIRs were initiated.

The principle enunciated in G. P. Sewalia Vs. Union of India & Anr. reported in 2009 (2) SLJ 360 (CAT), also requires consideration to the extent that every lapse in the performance of official duties does not necessarily carry the same degree of culpability. However, we reiterate that the facts before us are distinguishable from a case of a mere error of judgment or ordinary inefficiency. The applicant was responsible for public money and his failure to deposit the entire amount constituted misconduct. The question is only whether the extreme penalty imposed is excessive.

Having regard to the aforesaid circumstances, we are of the considered view that the punishment of removal from service is grossly disproportionate to the misconduct proved in the present disciplinary proceedings. The penalty has the effect of bringing to an end approximately 25 years of service for a lapse involving Rs. 1,00,000/-, which amount was subsequently deposited within four days. While the misconduct deserves a major penalty, the extreme consequence of removal from service, in the peculiar facts of the present case, does not appear to be commensurate with the proved misconduct.

We are conscious that the power to interfere with the punishment is to be exercised sparingly and only where the punishment shocks the judicial conscience. The present case, in our considered view, falls within that limited category. Our conclusion is not based upon substitution of our subjective opinion as to what punishment ought to have been imposed, but upon the cumulative effect of the relevant mitigating circumstances and the nature of the charge actually established.

The respondents have also raised an objection regarding territorial jurisdiction, contending that the cause of action arose at Agra and, therefore, the matter ought to have been instituted before the Allahabad Bench of this Tribunal. The applicant, on the other hand, has submitted that the Review Order dated 26.09.2023 (Annexure A-3) was issued from Delhi and, therefore, part of the cause of action arose within the territorial jurisdiction of the Principal Bench. We find no merit in the objection at this stage. The Review Petition was considered and decided by the competent authority at Delhi and the impugned order dated 26.09.2023 (Annexure A-3) forms one of the orders specifically challenged in the present O.A. A part of the cause of action, therefore, arose within the territorial jurisdiction of the Principal Bench. Further, the applicant had earlier approached this Tribunal in O.A. No. 1464/2023, which was disposed of by order dated 26.04.2023 granting liberty to him to pursue his statutory review remedy. The respondents thereafter considered the Review Petition and supplementary representation and passed the order dated 26.09.2023 (Annexure A-3). In these circumstances, we are not inclined to non-suit the applicant on the ground of territorial jurisdiction.

The contention of the respondents that the Review Petition had initially been addressed to the Secretary, Department of Telecommunications, instead of the competent authority in the Department of Posts, also does not advance their case. The Review Petition was ultimately considered by the competent authority and a reasoned order dated 26.09.2023 (Annexure A-3) was passed pursuant to the directions of this Tribunal. The applicant‟s grievance regarding non-consideration of his statutory remedy, therefore, does not survive.

We also find that the order dated 26.09.2023 (Annexure A-3) does not provide sufficient consideration to the issue of proportionality in the context of the particular circumstances highlighted by the applicant, namely, his long length of service, subsequent deposit of the amount and the distinction between the charge actually proved in the present proceedings and the other allegations referred to by the respondents. The mere reiteration of the seriousness of handling public money cannot, by itself, answer the question whether removal from service was the only proportionate penalty available in the facts of the case.

In view of the foregoing discussion, we hold that the finding of misconduct recorded against the applicant in the disciplinary proceedings does not warrant interference by this Tribunal; the respondents were justified in treating the applicant's failure to deposit the entire amount of Rs. 4,00,000/- on 15.06.2013 as misconduct, particularly having regard to his responsibility as Sub Post Master and custodian of public money; however, the penalty of removal from service, having regard to the nature of the charge proved, subsequent deposit of Rs. 1,00,000/-, absence of established permanent loss in the present charge, and the applicant's approximately 25 years of service, is disproportionate and shocks the conscience of the Tribunal; and the allegations relating to separate fraud cases/FIRs cannot, in the absence of their being established in accordance with law and properly forming part of the disciplinary consideration in the present proceedings, be treated as proved misconduct for the purpose of sustaining the extreme penalty imposed in the present case.

Consequently, the O.A. is partly allowed. The impugned orders dated 23.01.2017 (Annexure A-1) and 19.06.2017 (Annexure A-2), to the extent they impose and uphold the penalty of removal from service, and the consequential Review Order dated 26.09.2023 (Annexure A-3), are quashed and set aside to that limited extent.

The matter is remitted to the Disciplinary Authority to reconsider the question of penalty alone, keeping in view the observations made hereinabove, particularly the nature of the charge proved, the subsequent deposit of Rs. 1,00,000/-, the length of service of 25 years of the applicant and the distinction between proved misconduct and allegations pending in separate proceedings. The Disciplinary Authority shall pass an appropriate reasoned and speaking order regarding the penalty, in accordance with law, within a period of 06 (six) weeks from the date of receipt of a certified copy of this order.

It is clarified that we have not interfered with the finding of misconduct recorded in the disciplinary proceedings and the remand is confined strictly to the question of proportionality of punishment.

Pending M.A., if any, shall also stand disposed of accordingly.

There shall be no order as to costs.