Jama Ram vs Union Of India & Ors.

The applicant was appointed as GDS BPM in the year 1995 and subsequently posted at Dedusar Post Office as GDSBPM. That during inspection by Shri Sajan Ram Chaudhary, Inspector of Post, found shortage of cash of an amount of Rs.78,326/- against the NAREGS Accounts. Applicant submitted that the withdrawal from of NAREGS accounts and RD accounts were sent to SPO Barmer by registered post. It is apt to mention that charges of misappropriation were neither mentioned in the charge sheet nor in the punishment order as the records of the paid amount were received by the SPO Barmer namely P.R. Karela, who was the SPO at the time of alleged allegation. The applicant further submitted that he had not conducted any misbehaviour with his senior namely Inspector of Post Shri Sajan Ram Choudhary because he knew that being a senior he cannot afford to disrespect his senior at the time of inspection. However, the applicant was falsely implicated and the charges were fabricated to remove him from service on the basis of the ill-intent between the SPO Barmer namely Shri P.R. Karela posted at the time and Shri Sajan Ram Choudhary, Inspector of Post, Chohtan.

Further, the applicant was put off duty and the disciplinary proceedings were started vide order dated 25.11.2009. He also vehemently opposed the order of the put off duty on the basis that the appointing authority did not review the case in compliance of sub-rule (2) of Rule-12 of GDS Rules before expiry of 15 days. Moreover, this Hon’ble Court has passed direction in OA No.198/2012 titled as Naresh Kumar Ranawat vs. Union of India & ors vide order dated 03.10.2013 that the intervening period to be treated as on duty. Article of charges were served to the applicant, which were denied and subsequently the Disciplinary Authority had appointed Shri J. Gopal Pande as an Inquiry Officer, who after conducting the inquiry submitted inquiry report on 24.07.2014 wherein the charges alleged against the applicant was said to have been proved.

He further contended that the Inquiry Officer did not take into account the relevant documents placed on record such as the matter connection with comparison of amount Rs.78326/- which was already paid to the NAREGS account holder, which was also admitted during the course of deposition of the statement by SW-8, the SPO Barmer, dated 11.09.2013. He also referred the relevant documents which showed the paid amount in the form of SD-13 whereby it is clear that not a single amount is misappropriated and that the respondents did not allege any charge of misappropriation in either charge sheet or in punishment order. Moreover, the Inspector was directed to lodge an FIR, which was not lodged on the basis that there was no misappropriation of the Government fund. The applicant also clarified allegation regarding the complaint of Shri Nakhat Singh about non-payment of NEREGs payment, which was also mentioned as charge in the charge sheet. It was stated that there was no amount available in the account of NEREGs of Shri Nakhat Singh account, which was evident from his NEREGS Account No.1414587, which had shown balance of Rs.50/- on 03.09-2008, Rs.51/- on 01.04.2009 and Rs.53/- on 01.04.2010. Further, the complaint was filed for the non-payment between the period from 01.04.2009 to 01.04.2010. Therefore, from the above facts, it is clear that if the account holder has no amount in his account how the applicant can be compelled to pay the same. This fact was placed before the Inquiry Officer and the Disciplinary Authority, which had not been considered while passing the order.

He also referred the statement of witnesses during the course of inquiry, namely the statement of SW-10, Shri Prabhu Ram, wherein it was stated before the Inquiry Officer that there was no irregularity and illegality have been committed by the applicant and his signature was taken by Inspector of Post, Chohtan by saying that his signature was required on BPL Card. Moreover, the applicant has paid all amount in time, which is evident from his statement recorded on 25.09.2013. Similarly, the Inspector of Post had taken the signature of SW-9 namely Rama Ram on the pretext that it is form for helping handicapped person, which was also evident from the deposition of the statement dated 25.09.2013. Similarly, the charges of misbehaviour with the Inspector of Post, the visiting officer, was not proved on the basis of the statement recorded by state witnesses as well as IP Chohtan depicted that the applicant left without carrying out comparison of amount. However, this fact was not the correct statement as the applicant had left for few minutes to bring some documents which is a provision to do so under Rule-217 of P&T Vol-V. It is also evident from the statement of Shri Nakhat Singh, SW-2, wherein he had admitted that at 3.00 pm the applicant, Jama Ram, was present in the office and alleged misbehaviour by the applicant had taken place at 06.30 pm, whereas according to the statement of Inspector of Post he had left the office at 6.00 pm. Moreover, Shri Nakhat Singh had also stated that Jama Ram, the applicant, was not available in the office premises between 2.30 pm to 6.30 pm, therefore, on the facts as mentioned hereinabove, it was not correct that the applicant had misbehaved with the Inspector of Post at 6.30 pm in the office during the normal course of inspection of the Office.

It is also a settled principle that the delinquent officer is given an opportunity to provide the relied upon documents at the time of inquiry. However, the relied upon documents were not given to the applicant herein, which was also evident from order sheet dated 21.02.2012 in spite of the direction from the inquiry officer to the presenting officer. The statement of the respondents is far from truth that they complied with the principles of natural justice. He also referred Rule 84 of POSB Vol-1 which stipulates that after satisfying himself about the bona fide of the claim of the depositor in respect of defrauded amount, the Head of the Circle will issue sanction for the restoration of the defrauded amount. In this regard, it was submitted by the applicant that due process was not adopted by the respondents, wherein without establishing the misappropriation of the Government amount, the sanction of the Head of the Circle was taken, who declared the amount had been misappropriated, whereas it is evident from the aforesaid submissions that there was no misappropriation of the Government money. Similarly, he had also challenged the procedure adopted by the Inquiry Officer and Disciplinary Authority in imposing the punishment on the basis of the Chapter-IV and P&T Vol-II and Rule 217 of P&T Vol-V. Similarly, he has also filed appeal, wherein he had raised number of issues, which were not considered by the Appellate Authority as it not considered his 20 years service with absolutely unblemished career and imposed a punishment of removal from service. Therefore, in view of the above, prayed that his OA may be allowed on the following grounds.

Learned counsel for the applicant further contended that the orders dated 09.10.2014 and 25.08.2015 issued by the Disciplinary Authority and Appellate Authority are perverse, illegal and the same has been passed without application of mind and appreciation of correct facts, which are required to be quashed and set aside. Similarly, the Inquiry officer conducted the inquiry and submitted his report without considering the facts submitted by the applicant. Moreover, the Inquiry Officer had not taken into account the relevant documents placed on record such as the matter connected with comparison of amount Rs.78,326/-, which was already paid to the NAREGS account holders and the same fact was also admitted in the statement by the SPO Barmer, the SW-8, on 11.09.2013, whereby it was clearly stated that not a single amount was misappropriated. The concerned SPM had also stated that the applicant has done all works in time and there was no irregularity which is evident from his statement as SW-7. Therefore, on the basis of above facts, he prayed that the instant OA may be considered and allowed.

The applicant denied the charge, therefore, the Inquiry Officer was appointed and the first meeting of the disciplinary proceedings was convened on 02.11.2011. The applicant also proposed the name of Shri Bhartharam, Branch Post Master, Paraniya for his defence assistant, which was also allowed vide order dated 09.02.2012. The applicant filed an application to supply additional documents on 21.02.2012, which was supplied on 29.05.2012. The defence statement of the applicant was recorded on 04.03.2014. Presenting Officer submitted his written submission on 19.04.2014 and a copy of the same was delivered to the applicant. However, the applicant did not submit any written submission in his defence. Subsequently, the inquiry report was prepared and submitted by the Inquiry Officer, which was also supplied to the applicant with a letter dated 24.07.2014 to submit his representation against the inquiry report within the stipulated period. Thereafter, the applicant submitted his representation on 06.08.2014 and after considering the representation, the Disciplinary Authority imposed a penalty of removal from service with immediate effect vide order dated 09.10.2014.

Being aggrieved from the aforesaid order, the applicant preferred an appeal on 09.01.2015, which was considered and rejected by the Appellate Authority vide order dated 25.08.2015. Subsequently, the applicant has filed the instant OA challenging the order dated 09.10.2014 and 25.08.2015.

Learned counsel for the respondents further stated that the charges in the chargesheet were framed, which were very specific and conclusive in the sense that it was stated that during the inspection of Sajan Ram Choudhary, the then Inspector of Post, the applicant failed to produce the details of payment of an amount of Rs.78,326/-, which was found short at the time of inspection on 21.11.2009. Moreover, during the course of the inspection, 34 withdrawal forms pertaining to NAREGA payments accounts were found incomplete, which were seized by the Inspector of Post. After a long span of about two months, the applicant had managed the things and affairs, sent 65 withdrawal of NAREGA payments account and 2 RD payment withdrawals to show the short found amount of Rs78,326/- as good. The Inquiry Officer had conducted the inquiry according to the stipulated provisions under Rule 14 of the CCS (CCA) Rules, 1965 and found the charges proved against the applicant. Moreover, the PW No.3, Shri Naktharam, during the deposition of statement of the witnesses, more particularly during in cross-examination had clearly stated that the applicant thrown the pass books bundle upon the inspecting authority Shri Sajan Ram and pushed him, physically assaulted, which was also duly corroborated by PW-4 Sharwan Kumar during the course of inquiry both in examination-in-chief and cross-examination. Moreover, it was contended by the learned counsel for the respondents that in view of the charges framed against the applicant subsequent supply of withdrawal forms by the applicant cannot condone his misconduct committed at the time of inspection, which is concise subject matter of the charge sheet.

Learned counsel for the respondents also relied upon the judgment dated 08.09.2016 in Union of India & Ors vs. Sarla Sharma (DB Civil Writ Petition No.6088/2014), it is a discretion of the disciplinary authority to decide about the period of suspension/put off duty. He also vehemently opposed the reference made by the applicant in the case of Naresh Kumr Ramawat vs. Union of India & Ors, which is not applicable in the case of the applicant herein. It was also submitted that the order of put off duty dated 25.11.2009 was neither under challenged nor impugned in the instant OA. He further submitted that the Disciplinary Authority and the Inquiry Officer had considered everything available on record. The applicant was charge sheeted for the misconduct of recording the cash shortage during inspection dated 21.11.2009; however, he sent the vouchers after two months vide parcel dated 13.01.2010.

He further submitted that PW-2 Shri Nakath Singh; PW-3 Shri Nakatharam; inspecting authority Shri Sajan Ram and other witnesses had corroborated the charge of misbehaving by the applicant with the inspecting officer during course of inspection of his office. He further referred that turning hostile of some witnesses have no bearing over testimony of other and the misconduct committed by the applicant. He emphasised that the inquiry proceedings were completed strictly in accordance with the principles of natural justice and procedure prescribed under the rules. Moreover, the contention of the applicant is not acceptable because the charge of misappropriation was neither framed nor found proved against the applicant herein. It was categorically stated that during the course of inspection dated 21.11.2009, a sum of Rs.78,326/- was found short but despite asking for the verification by the inspecting officer i.e. Inspector of Post, the applicant rather than explaining the shortage flew away from the office at about 2.00 pm; returned at about 06.00 pm and subsequently, the applicant misbehaved, abused and scuffled with the inspecting authority by throwing the bundle of pass book etc. The charges so levelled were found proved by the Inquiry Officer in his inquiry report. He also referred Rule 217 of P&T Vol-V that the applicant was given sufficient opportunity to verify the cash found short at the time of inspection but the applicant left the BO on pretext to arrange the money but returned only at evening after 06.00 pm and started to misbehave, abuse and scuffled with the inspecting authority instead of verifying the cash or accounts thereof. Therefore, the contention of the applicant that the compliance of the Rule 217 was not followed during the course of inspection is baseless and false. Therefore, on the above submission, the OA devoid of merit and the same may be dismissed.

It is undisputedly an admitted fact that the applicant was appointed as GDS BPM in the year 1995. During the course of regular inspection by the Inspector of Post on 21.11.2009 of the Branch Post Office Dedusar, where the applicant was working, alleged shortage of cash of Rs.78,326/- in the MNAREGA accounts was found. The applicant was asked to explain the shortage, which he failed to explain rather he flew at 02.00 pm and returned back at 06.00 pm. The applicant was issued a charge sheet on 02.09.2011 wherein specific charges of shortage of cash of an amount of Rs.78,326/- were levelled along with the misbehaviour with the inspecting officer i.e. Inspector of Post on 21.11.2009 in the Branch Post Office at Dedusar. The applicant denied the charges. Subsequently, Shri J. Gopal Pande was appointed as Inquiry Officer, who conducted the inquiry as per the provisions laid down under Rule 14 of the CCS (CCA) Rules, 1965. The applicant was given opportunity to explain his defence as laid down under sub-rule 17 and sub-rule 18 of Rule 14 of the CCS (CCA) Rules, 1965. The presenting officer and the applicant were asked to submit their written brief. The presenting officer submitted his written brief. However, the applicant had not submitted any written brief thereof. The copy of the inquiry report was also given to the applicant. The Disciplinary Authority after considering all the facts had imposed a penalty of removal from service vide order dated 09.10.2014. It is evident from the record that the applicant participated in the inquiry and also proposed the name of Shri Bhartharam, Branch Post Master Paraniaya as his defence nominee. It is also evident from the record that the applicant had asked for certain relied upon documents on 21.02.2012 which were supplied on 29.05.2012. It is also fact that the applicant had also not indicated any procedural irregularities or infirmities adopted while conducting inquiry by the Inquiry Officer. It is also admitted that there was no violation of principles of natural justice. The applicant had been given adequate opportunity to defend himself.

Moreover, there are number of dictum by Hon’ble Supreme Court wherein the scope of judicial review of the departmental proceeding has been restricted to cases wherein the “orders issued by incompetent authority, failure of principles of natural justice, case of no evidence and there is a malice or bias action on the part of the respondents”.

Based on the direction issued by the Hon’ble Apex Court there is a limited scope to review the disciplinary proceeding especially by the Tribunals and Hon’ble High Courts. The Tribunal can intervene in the disciplinary proceedings only when it appears that-

There is a violation of compliance of natural justice in conducting the inquiry.

The result of the inquiry report thereof, decision of the DA is without any evidence.

The charge sheet has been issued by incompetent authority.

The decision is taken on the basis of malaise and perverse.

Error of procedure in disciplinary proceedings.

In this regard, it is appropriate to mention some of the judgments on the point of scope of judicial review of disciplinary proceedings of the Courts/Tribunals. The Three Judges Bench of the Hon’ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80] has held as under:

In another judgment rendered by the Three Judge Bench of Hon’ble Apex Court in the case of SBI vs. Ajay Kumar Srivastava, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring to the law laid down in B.C. Chaturvedi (supra) and catena of other judgments held as under:-

Further, the Hon'ble Apex Court in the State of Karnataka &Anr. vs. Umesh, (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321, emphasised about the scope of judicial review of the Courts/Tribunal in the matter of disciplinary/departmental inquiry and held that:-

From perusal of the Hon’ble Supreme Court directions and the facts as mentioned herein above, it is clear that although the scope of judicial review in the cases of disciplinary proceedings by the Courts/Tribunals is limited, however, Tribunals can intervene in the case wherein the decisions have been taken by the incompetent authority in the absence of any evidence or record or the findings are perverse and bias and in violation of principles of natural justice.

In the present case, it is evident from the OA itself that the applicant had been given adequate opportunity to defend his case especially he was given all the documents along with the Charge Memorandum as well the list of relied upon witnesses. He participated in the departmental inquiry and he cross examined the witnesses. Further, the inquiry report was also served to him to represent against the same, the Disciplinary Authority had taken into account all the relevant facts including the Inquiry report, statement of defence of the applicant before imposing the penalty on the applicant. Thus, inquiry was concluded by following the principles of natural justice and provision of Rule 14 of CCS (CCA) Rules, 1965.

Further, keeping in view of the ratio laid down by the Hon’ble Supreme Court in the catena of judgments in the facts of the present case, there was no violation of the principles of natural justice. The order is passed by the competent authority. Moreover, there is sufficient evidence to the effect that the applicant had committed certain irregularities in shortage of cash in the MNARGEGA accounts and also misbehaved with the inspecting officer. Therefore, this is not a case of no evidence. It is also a settled principle that the Tribunal cannot act as an Appellate Authority by re-appreciating the evidence in the disciplinary proceedings. The Tribunal is not required to examine or appreciate the outcomes of the inquiry and disciplinary proceedings rather it should assess the procedure adopted by the Disciplinary and Inquiry Authority in arriving at the conclusion of the disciplinary proceedings.

In view of the above mentioned facts, we do not find any infirmity or illegality in the decision of the respondent authority. There is no merit in the OA and the same is dismissed. No order as to costs.