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Judgment
PER HON’BLE JUSTICE ANIL KUMAR OJHA, MEMBER (J)
Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
Through this Original Application, applicant has prayed for the following reliefs:
“1.To quash the impugned order dated 09.09.2014 and order dated 11.08.2017, contained as Annexure No. A-1 & A-2 to this OA, with all consequential benefits.
2.To reinstate the applicant with continuity in service, seniority, promotion and all other attending benefits viz. monetary benefits etc.
3.Any other relief, which this Hon‟ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
4.Cost of the present case.”
During pendency of this O.A., applicant Jugla Saran Tiwari died, hence, his legal heirs have been substituted vide order dated 30.07.2024.
Tersely put, the case of the deceased applicant is that applicant was employee of the Respondent Department. He was served a chargesheet on 03.01.1997 for alleged violation of Rule 17 of EDA (Conduct and Service) Rules. Inquiry was concluded and report was submitted on 04.05.1998 holding the applicant guilty of charges.
After considering the inquiry report, disciplinary authority passed an order on 14.05.1998 imposing the penalty to the effect debarring the applicant from the departmental promotion for a period of three years coupled with fine of Rs 2000/-.
The respondent no. 2 on his own motion issued a show cause notice to the applicant with a view to enhance the penalty. Applicant submitted detailed representation. On 21.01.1999, respondent no. 2 passed an order removing the applicant from service. Appeal preferred to the applicant also came to be rejected.
Feeling aggrieved against the punishment order, applicant preferred O.A. No. 57 of 2000 which was allowed by the Hon‟ble Tribunal vide judgment dated 30.08.2001. Respondents preferred a Writ Petition No. 1557 of 2001 which also came to be dismissed by the Hon‟ble High Court on 08.04.2013.
After dismissal of the writ petition, the competent authority issued another show cause notice on 09.01.2014, after a gap of about 09 months. Applicant submitted representation but on 09.09.2014, respondent no. 2 passed an order of enhanced punishment whereby the applicant was removed from service.
Hence, this O.A.
Respondents by filing their counter affidavit have, inter-alia, stated that applicant was found guilty for misappropriation of public money and other serious irregularities which is more serious than any negligent category of act. Further averred that as per liberty granted by Tribunal in the order dated 30.08.2001 and the judgment of the Hon‟ble High Court dated 08.04.2013, the applicant was served with a show cause notice. Applicant submitted his representation on 24.02.2014. Subsequently, Reviewing Authority, i.e. Respondent no. 2 after considering the representation of the applicant has enhanced the punishment and removed the applicant from service vide order dated 09.09.2014. Appeal was considered by the appellate authority and rejected vide order dated 11.08.2017. The impugned orders are reasonable and issued after completion of all due formalities and procedures laid down with respect to disciplinary proceedings, hence, OA deserves to be dismissed.
Applicant by filing rejoinder affidavit reiterated the averments made in the Original application. Further stated that reviewing authority issued show cause notice with predetermined guilt of notion and just to punish the applicant.
Learned counsel for the applicant submitted that show cause notice dated 09.01.2014, which is at pages from 94 to 95 of the paperbook is not tentative in nature rather Revising Authority has recorded clear cut findings to modify the punishment and to impose the penalty of removal from service, hence, revising order is in violation of the judgment of Hon‟ble Apex Court in the matter of Punjab National Bank and Ors. vs. Kunj Behari Misra reported [1998 (7) SCC 84]. Further submitted that principles of natural justice have been violated on account of definite findings of misconduct.
Per contra, learned counsel for the respondents vehemently opposed the aforesaid submissions and argued that in revising order (Annexure A-1), the word tentatively has been written, hence, judgment of Hon‟ble Apex Court in the matter of Kunj Bihari Misra (supra) is not applicable to the facts of the present case.
In Punjab National Bank vs. Kunj Bihari Mishra reported in (1998) 7 SCC 84 cited by the learned counsel for the applicant, Hon‟ble Supreme Court made the following observations:
“The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
From the aforesaid extract of the aforecited judgment, it is manifest that a responsibility is cast upon the revising authority for recording tentative reasons in case such authority disagrees with the findings of the enquiry on any article of charge.
In view of the aforesaid legal proposition, the facts of the case are being analyzed and evaluated.
In the Annexure A-15, page- 95 of the paper-book, the relevant portion of disagreement note runs as follows:
“(4)यह कि उपरोक्त क्रमांक (2) में किये गये विस्तृत विवेचना के आधार उक्त ग्रामीण डाक सेवक पर लगाये गये आरोप सं० 1, 3 व 4 पूर्णतः सिद्ध व आरोप संख्या 2 आंशिक सिद्ध होते हैं। आरोप सं० 1, 3, 4 के पूर्ण रूप से सिद्ध पाये जाने के कारण यह स्पष्ट होता है कि श्री जुगला शरण तिवारी की सत्यनिष्ठा संदेहास्पद है तथा ऐसे कर्मचारी जो सरकारी धन का दुर्विनियोजन करने में संलिप्त पाये जायें और जिनकी सत्यनिष्ठा संदेहास्पद है उन्हें विभाग में रखना उचित नहीं है क्यों कि ऐसे ग्रामीण डाक सेवक जिनकी सत्यनिष्ठा संदेहास्पद हो उन्हें विभाग में रखकर सेवा करने का अवसर देना हानि, गवन को बढ़ावा देना होगा। अतः ग्रामीण डाक सेवक (आचरण एवं नियोजन) नियमावली 2011 के नियम 19 के अन्तर्गत प्रदत्त शक्तियों का प्रयोग करते हुए अधोहस्ताक्षरी द्वारा यह पाया जाता है कि अधीक्षक डाकघर गौडा के दंडादेश जापन सं० एक 10-95-96/1, डी०पी दिनांक 14.05.98 द्वारा श्री जुगला शरण तिवारी शाखा पोस्टमास्टर रेतवा गौडा (श्री नगर) जनपद गौडा के विरुद्ध पारित दंडादेश (1) विभागीय प्रोन्नति से तीन वर्ष तक वंचित करने एवं (II) उनके वेतन से रु 2000/- की 10 समान किस्तों में वसूली का दण्ड उनके विरुद्ध लगाये गये एवं सिद्ध पाये गये, आरोपों के अनुरूप एवं पर्याप्त नहीं है तथा आरोपित ग्रामीण डाक सेवक पर लगाये गये आरोप अत्यन्त गम्भीर किस्म के हैं जिसमें भारी दण्ड का औचित्य है। ऐसे ग्रामीण डाक सेवक कर्मचारी जो जनता को धोखा देकर सरकारी धन के गवन में लिप्त हैं उसको “सेवा से निष्कासन” का दण्ड देना ही उचित है। इस कारण श्री जुगला शरण तिवारी ग्रा०डा० से० शाखा पोस्टमास्टर रेतवागाड़ा (श्रीनगर) गौण्डा को अधोहस्ताक्षरी द्वारा “सेवा से निष्कासन” का दण्ड देना प्रस्तावित किया जाता है।”
From perusal of aforesaid extract of the disagreement note dated 09.01.2014, it is evident that revising authority has unequivocally and explicitly recorded the findings that applicant committed a grave misconduct, exhibited lack of devotion to duty and acted in a manner unbecoming government servant.
In the disagreement note, it has also been mentioned that proper punishment for the applicant would be removal from service.
Thus, from the opinion / disagreement note of the competent authority, it is evident that applicant is to be removed from service even after submission of representation, which is against the ratio of the law laid down by the Hon‟ble Apex Court in the matter of Kunj Bihari Mishra (supra), hence, impugned punishment order deserves to be quashed.
In view of above, OA is allowed. Impugned orders dated 09.09.2014 and 11.08.2017 are quashed.
The applicant shall be deemed to be in service from the date he was removed from service, but he shall not be entitled to pay and allowances for the period he has not been on duty on the principle of „no work, no pay‟.
However, the punishment awarded to the applicant on 14.05.1998 whereby the applicant was debarred for departmental promotion for three years coupled with fine of Rs. 2000/- shall continue against the applicant.
Accordingly, applicant shall be entitled to such other consequential benefits as are admissible under rules complying with the punishment order dated 14.05.1998 (Annexure No. A-6, page 49 of the paper-book).
As applicant has died, hence, respondents are directed to pay all the retiral dues admissible to the applicant/ the legal heirs as per rules within three months from the date of receipt of a certified copy of this order.
There shall be no order as to costs.
Pending M.As, if any, also stand disposed of.