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Judgment
ORDER
Per : Hon’ble Shri Lok Ranjan, Member (A)
The present Original Application has been filed by the Applicant against the punishment Order dated 21.01.2016 issued by the Disciplinary Authority (D.A.), i.e. Senior Superintendent of Post Offices (Sr.S.P.O.s) Kota Postal Division (Respondent No.4) for imposing penalty under Rule-12 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [C.C.S.(CCA) Rules-1965] of reduction with effect from 01.02.2016 of his pay by one stage, for three months, without cumulative effect ; as well as against the appellate Order dated 28.06.2016 issued by the Appellate Authority (A.A.), i.e. Director Postal Services, Rajasthan Southern Postal Region, Ajmer (Respondent No.3) vide which the punishment order dated 21.01.2016 of the D.A. was not intervened in, but had been upheld.
Based on the pleadings of the parties on record, the relevant matrix of facts had emerged to be as follows briefly. The Applicant was working as Postal Assistant (P.A.) at Bhawanimandi Sub-Post Office (S.O.), when he had been relieved by the Sub-Post Master (S.P.M.) Bhawanimandi S.O. vide Order dated 22.08.2015, with directions to hand-over the charge as Treasurer at Bhawanimandi S.O. and to report at Dag S.O. on deputation, to relieve the S.P.M. there who was to proceed on a training. While the Applicant had initially requested for some other official to be sent for this purpose, he had eventually handed over his charge to S.P.M. Bhawanimandi S.O. and proceeded accordingly. When he reached Dag S.O., the S.P.M. there had informed that he had not received any orders from the Kota Postal Division Office to attend the said training programme at Ajmer ; and thus was not in a position to hand over his charge to the Applicant. Thereafter, the Applicant and the S.P.M. Dag had contacted the Postal Division Office at Kota – which could not be done on 23.08.2015 it being a Sunday, but on 24.08.2015 forenoon. Thereupon, they came to know that the actual date of commencement of training for S.P.M. Dag was 31.08.2015 and not 24.08.2015. Hence, the Applicant had returned while carrying a letter from the S.P.M. Dag detailing the aforesaid circumstances ; and resumed his duties at Bhawanimandi S.O. on 24.08.2015 afternoon.
Subsequently, the Applicant was served a charge-sheet dated 17/20.11.2015 which had included one charge – that although he had photocopied the Memo dated 18.08.2015 of the Postal Division Office, Kota and thereby knew that the training of the incumbent S.P.M. Dag was due to commence from 31.08.2015 ; yet he had not informed the same to the S.P.M. of Bhawanimandi S.O., but had still proceeded on 22.08.2015 for relieving the S.P.M. Dag w.e.f. 24.08.2015 well before the actual date of his training – allegedly in an attempt on Applicant’s part to get the S.P.M. Bhawanimandi framed for a misconduct. The Applicant had submitted his reply dated Nil to the same vide his letter addressed to Sr.S.P.O.s of Postal Division Kota, essentially contending that he was not at all aware of the actual date of commencement of the training of S.P.M. Dag ; that the allegation that he had obtained a photocopy of the Memo dated 18.08.2015 of the Sr.S.P.O.s of Postal Division Kota was entirely baseless and false ; and that he had only complied with the order dated 22.08.2015 of the S.P.M. Bhawanimandii S.O., vide which he had actually been relieved of his charge there on 22.08.2015 itself, with directions to report for deputation to Dag S.O.
However, vide impugned punishment Order dated 21.01.2016, the Respondent No.4 as D.A. had imposed with effect from 01.02.2016 a penalty of reduction of his pay by one stage for three months, without cumulative effect. Thereupon, against the said punishment Order dated 21.01.2016, the Applicant had filed before the A.A. an appeal dated 05.03.2016, which came to be decided by the Respondent No.3 vide the appellate Order dated 28.06.2016 – whereby the appeal of the Applicant was rejected and the punishment imposed upon him vide the D.A.’s Order dated 21.01.2016 had been upheld.
Aggrieved by the same, the Applicant had filed the present O.A. seeking the substantive relief that the impugned punishment Order dated 21.01.2016 of the D.A. by which a penalty of reduction of his pay by one stage for three months without cumulative effect was imposed w.e.f. 01.02.2016 ; and the impugned appellate Order dated 26.06.2016 of the A.A. by which his appeal had been rejected be both quashed and set aside.
It was the case of the Applicant that the penalty imposed upon him was without any basis, as he had only complied with the relieving Order dated 22.08.2015 issued to him by his superior/ controlling officer at Bhawanimandi S.O. It was also denied by the Applicant that he had any knowledge of the actual period of training of the S.P.M. Dag, since he had not been in receipt of the Memo dated 18.08.2015 issued by the Sr.S.P.O.s of the Kota Postal Division – either through endorsement, or otherwise by retaining a photocopy of the same, although alleged. Moreover, the Applicant had stayed at Dag S.O. only on 23.08.2009 (i.e. a Sunday) and returned/joined at Bhawanimandi on 24.08.2015 afternoon (i.e. on the first working day thereafter), after the position had been clarified by the S.P.M. Dag from the Postal Divisional Office at Kota. The Applicant had also denied any attempt on his part to get the S.P.M. Bhawanimandi S.O. framed for a misconduct, which was totally baseless and fictitious as per the Applicant.
Vide the reply of the Respondents, the facts of the matter as on record had been accepted, inter alia – that while the Applicant was posted as P.A. at Bhawanimandi S.O., he was relieved vide Order issued on 22.08.2015 forenoon by the S.P.M. Bhawanimandi S.O. while referring to Memo dated 18.08.2015 of the Office of the Sr.S.P.O.s of Kota Postal Division, with direction to proceed to relieve one K.S. Choudhary S.P.M. Dag S.O. who had to proceed for training ; that although the Applicant requested to send any other official in his place, but had eventually handed over his charge to S.P.M. Bhawanimandi S.O. and proceeded to Dag S.O. on 22.08.2015 afternoon ; that the S.P.M. Dag S.O. had not been aware about the training scheduled for him, so had not handed-over the charge there to the Applicant ; that the S.P.M. Dag S.O. and the Applicant had on 24.08.2015 forenoon come to know from the Postal Division Office at Kota that the actual date of commencement of training for S.P.M. Dag was 31.08.2015 and not 24.08.2015 ; and that thereupon, the Applicant had returned, while carrying a letter from the S.P.M. Dag S.O. detailing the aforesaid circumstances, to resume duties at Bhawanimandi S.O. on 24.08.2015 afternoon.
Per contra, the Respondents had referred to the fact that the training of the aforesaid K.S. Choudhary, S.P.M. Dag was scheduled from 31.08.2015 for which he had to proceed on 29.08.2015, but erroneously the S.P.M. Bhawanimandi S.O. had sent the Applicant as his reliever on 22.08.2015 itself. It was contended that when the Applicant started from Bhawanimandi on 22.08.2015, he knew fully well that the incumbent S.P.M. Dag S.O. was due to be relieved only on 29.08.2015, since he had obtained a photocopy of the Memo dated 18.08.2015 of the Office of Sr.S.P.O.s, Kota.
Also, it was contended that upon reaching Dag S.O. in the afternoon of 22.08.2015, when the S.P.M. Dag had refused to hand-over charge since he had not received any order to proceed for training, the Applicant should have contacted the S.P.M. Bhawanimandi S.O. or should have returned to report back at Bhawanimandi S.O. immediately, but he had stayed at Dag till 12:00 hrs. on 24.08.2015 ; and had joined back at Bhawanimandi S.O. in the afternoon of 24.08.2015 only after contacting the Postal Division Office Kota. The Respondents had contended in this regard that in this age of communication revolution it was very easy for the Applicant to contact any concerned person at Postal Division Office in Kota on mobile/email to get requisite guidance, but he had failed to do so intentionally – which was alleged to be for his lucri causa (i.e. for the sake of gain or an intent to obtain a financial profit or benefit) for which the Government had to bear the unwanted expenditure as travelling allowance apart from the wastage of three days of duty of an official. Moreover, it was also imputed that the Applicant had done so with the intent of putting the S.P.M. Bhawanimandi S.O. in trouble and to get him booked in a case.
It had also been submitted that the Respondent No.4 had taken a lenient view and awarded only a mild penalty of withholding one increment for three months without cumulative effect. Hence, it been averred that the Applicant had no case whatsoever and his O.A. was liable to be dismissed.
Prior to examination of the rival contentions, it had been deemed apposite to advert to the position of law in respect of the limited remit of the Courts/Tribunals in such matters of punishment after conducting the disciplinary proceedings as laid down vide a catena of cases by the Hon’ble Supreme Court. In Civil Appeal No.7939-7940 of 2022 and Civil Appeal No.7941-42 of 2022, both of Union of India & Ors. Vs. Subrata Nath – the Hon’ble Supreme Court had comprehensively gone into the issues related to the scope of judicial review and interference of courts in the matter of disciplinary proceedings, inter alia as follows :
“15.It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or if statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere. 16. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :
“12.Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. … …
18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” [Emphasis laid] … …
19.Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran [(2015) 2 SCC 610] held that :
“12.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether :
(a)the enquiry is held by a competent authority;
(b)the enquiry is held according to the procedure prescribed in that behalf;
(c)there is violation of the principles of natural justice in conducting the proceedings;
(d)the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e)the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f)the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g)the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h)the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i)the finding of fact is based on no evidence.
13.Under Articles 226/227 of the Constitution of India, the High Court shall not :
(i)reappreciate the evidence;
(ii)interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii)go into the adequacy of the evidence;
(iv)go into the reliability of the evidence;
(v)interfere, if there be some legal evidence on which findings can be based.
(vi)correct the error of fact however grave it may appear to be;
(vii)go into the proportionality of punishment unless it shocks its conscience.” … …
To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P.Gunasekaran(supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.”
While being sensitized to the limited remit as per law laid down by the Hon’ble Supreme Court, we had carefully perused the submissions vide the pleadings of the contesting parties. The arguments of the learned Counsels for the parties had also been heard. Based on those, the factual position in respect of the matter vide the present O.A. had emerged clearly to be that the Applicant had been relieved from the Bhawanimandi S.O. by a written order of the concerned S.P.M. on 22.08.2015 ; and in compliance to the same, the Applicant had travelled to the Dag S.O. with the intent to relieve the incumbent S.P.M. Dag, purportedly so that the latter could proceed on a training to which he had been nominated. It had also transpired that the actual date for the training of S.P.M. Dag S.O. was from 31.08.2015 and not 24.08.2015, but the Memo dated 18.08.2015 of the Office of Postal Division Kota had not reached Dag S.O. by 22.08.2015 by when the Applicant had reported to relieve the incumbent S.P.M. Dag S.O. ; or even on 24.08.2015 by when the incumbent S.P.M. Dag S.O. and the Applicant had confirmed the correct position from the Office of the Kota Postal Division over phone.
It had also emerged that the alleged misconduct on part of the Applicant was based purportedly on his obtaining of a photocopy of the Memo dated 18.08.2015 issued by the Office of Postal Division Kota even before starting from the Bhawanimandi S.O. Such an imputation was entirely based on the version of the S.P.M. Bhawanimandi S.O., whereas the Applicant had denied the same altogether. Another basis for Applicant’s misconduct was the imputed motive that he acted with the intent of putting the S.P.M. Bhawanimandi S.O. in trouble and to get him booked in a case.
Relevantly, while those had been included in the charge-Memo dated 17/20.11.2015, no evidence in support of the same had been adduced by the Respondents ; yet those charges had been held to be proved without being supported by additional evidence from witnesses or other documents, but by using the charge-Memo itself as substantive evidence or conclusive determination of culpability/proof. It is a settled position in law that a charge-Memo is only a formal accusation or a statement outlining the alleged misconduct. In itself, it reflects the preliminary opinion or allegations of the employer or department. But while it can be the basis for initiating a departmental inquiry or disciplinary proceedings, it is not an independent source of evidence and cannot be used as substantive evidence or conclusive determination of culpability/proof of guilt as per the charge itself. Thus, we found that the actions and impugned Orders of the Respondents did not meet the test of principles of natural justice as those were found to be arrived at by holding the charge itself as the proof without basing it on any evidence.
Further, the Respondents had also imputed and held as proved the charged misconduct on the part of the Applicant by alluding to the lightning speed of modern communications, which could have been used by the Applicant to know of the correct date of training of the incumbent S.P.M. Dag S.O. by getting in touch with the Kota Postal Division officials. Such reasoning was clearly self-contradictory, since the same lightning speed of communication was not availed of by the Respondents to communicate the Memo dated 18.08.2015 of the Kota Postal Division to all the concerned officials including the S.P.M. Dag S.O. also, who was not in the know about the correct date of his training till the Applicant reached Dag S.O. on 22.08.2015 purportedly to relieve him, or even till 24.08.2015 before contacting the Kota Postal Division officials. Such resort to means of communication as expected of the Applicant was thus shown to be not in vogue in the Respondent Department ; and the expectation from the Applicant to have adopted those in the situation vide the present O.A. was merely an afterthought.
Moreover, in course of hearing, the learned Counsel for the Respondents had been advised to substantiate the contention that the Applicant had conducted himself in the aforesaid manner driven by lucri causa (for the sake of gain or an intent to obtain a financial profit or benefit) ; and how had the Applicant actually obtained a financial profit or benefit for himself – which could not be shown by the Respondents, even after allowing adequate opportunity for it. The learned Counsel for the Applicant had submitted that no travelling allowance was drawn for the Applicant’s journeys between Bhawanimandi and Dag, which also was not controverted by the learned Counsel for the Respondents due to lack of any related record.
Hence, we found that the imposition of the minor penalty upon the Applicant vide the impugned punishment Order dated 21.01.2016, which had been upheld also vide the impugned appellate Order dated 26.06.2016, was based on the charges brought to be held as proved without those being supported by additional evidence from witnesses or other documents, but by using the charge-Memo itself as substantive evidence or conclusive determination of culpability/proof of guilt of the Applicant. The conclusions drawn that the Applicant had travelled despite knowing the correct period of training of the incumbent S.P.M. Dag S.O. ; and acted as such with the intent of putting the S.P.M. Bhawanimandi S.O. in trouble by getting him booked in a case, on the very face of it, were so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion.
Therefore, in the conspectus of all of the foregoing, we hold that the impugned punishment Order dated 21.01.2016 issued by the D.A. as well as the impugned appellate Order dated 28.06.2016 passed by the A.A. were untenable and could not be sustained in law. Accordingly, we quash and set aside the impugned Orders as aforesaid.
Pursuantly, it is also directed that the effect of such impugned orders as aforesaid shall also be null and void ab initio ; and the Applicant shall, if otherwise eligible, be allowed the benefits – either of financial nature or of service nature, that may have been withheld or denied to him – as if the punishment of reduction with effect from 01.02.2016 of his pay by one stage for three months without cumulative effect, had never been imposed upon the Applicant.
Accordingly, the present O.A. is allowed, with further directions as hereinabove. No order as to costs