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Judgment
Harvinder Kaur Oberoi, Member (J)
By this Original Application, the applicant challenges the legality and validity of disciplinary proceedings initiated against him. The applicant has assailed the Charge Memo No. F-4/1/2014-15 dated 10.02.2015, issued by respondent No.4, contending that the initiation of major penalty proceedings was arbitrary and illegal. Furthermore, the applicant has challenged the disagreement letter No.F-4/1/2014-15 dated 22.05.2017, whereby respondent No.4 disagreed with the findings of the Inquiry Officer in an alleged pre-determined manner. The applicant has also impugned the penalty order dated 10.06.2017, imposing penalty of stoppage of two increments with cumulative effect, as well as the subsequent show cause notice dated 28.08.2017, proposing enhancement of the penalty to that of dismissal from service. The final penalty order dated 09.11.2017, dismissing the applicant from service with disqualification for future government employment, and the appellate order dated 27.05.2019, rejecting the applicant‟s appeal, have also been assailed as illegal and arbitrary.
The applicant's case is that on 10.02.2015, the applicant received a Charge Memo No. F-4/1/2014-15 of the same date, issued by respondent No.4. It was alleged that while discharging his duties as Postal Assistant, Jalesar Town SO, the applicant failed to properly account for the total amount of deposits in various Recurring Deposit (RD) accounts of Jalesar Town SO on multiple occasions. It was further alleged that the applicant misappropriated government funds, thereby committing financial irregularities.The articles of charge read as under:-
“Article No.1
Whereas said Shri Nitesh Kumar Saxena while working as PA Jalesar Town SO, during the period from 31.08.2012 to 10.04.2014, committed a grave misconduct in as much he did not account for the total amount of deposits Rs.428376.00 in various RD accounts of Jalesar Twon SO on various dates. As such he defrauded the Govt. money to the tune of Rs.428376.00.
Thus the said Shri Nitesh Kumar Saxena failed to follow the provisions contained in Rule-106 of POSB Manual Volume-1 and Rule-3 of General financial Rules.
Therefore it is alleged that the said Shri Nitesh Kumar Saxena failed to follow the provisions contained in Rule-106 of POSB Manual Volume-1 and Rule-3 of General financial Rules.
Therefore it is alleged that the said Shri Nitesh Kumar Saxena failed to maintain absolute integrity, devotion to duty and acted in such a manner which is quite unbecoming of a Govt. servant as required under Rule 3(1)(i)(ii)&(iii) of CCS (Conduct) Rules 1964.“
The applicant has denied these allegations and contends that the charge memo was issued arbitrarily and without basis. The applicant denied the charges contained in the aforesaid Charge Memo dated 10.02.2015. The Inquiry Officer and Presenting Officer were appointed to inquire into the charges by the respondents.
Counsel for the applicant briefly stated the background leading to the issuance of the charge memo. He submitted that it was the respondent No.5, who from his date of joining in SPO, Etah in February 2012 and till his stay there up to April 2014, was having a caste bias and had started transferring the non-Yadav community officials from Etah to outside post offices and posting them vice Yadav community officials in Etah. He started victimizing the officials, who were not supporting him in his misdeeds and the applicant was one of them. The applicant has narrated the biased working of respondent No.5, in his representation dated 11.09.2017. As per the applicant, this representation of the applicant became the basis of the disciplinary action against him.
The FIR bearing No.93/2015 dated 13.2.2015 u/s 409 IPC was registered, naming the applicant. Upon investigation, the I.O. did not find any evidence to sustain the charge against the applicant, and accordingly, the I.O. filed the final report for closure of the FIR, which was accepted by the ld. Court of Chief Judicial Magistrate, Etah, vide its order dated 24.1.2016.
The Inquiry Officer, after conducting the inquiry proceedings, submitted his inquiry report dated 05.05.2017, holding the charges as 'not proved'. Respondent No.4 herein, vide his letter No.F-4/1/2014-15 dated 22.5.2017, disagreed with the findings of the Inquiry Officer allegedly without application of mind and in a pre-determined manner, contrary to the settled principle of law. The disagreement note was communicated to the applicant by the by the disciplinary authority.
Thereafter, the applicant submitted his detailed representation dated 25.05.2017, requesting the respondent No.4 herein to exonerate him. The respondent No.4, without properly considering and appreciating the submissions of the applicant, imposed the penalty of "stoppage of his next two increments with cumulative effect" upon the applicant vide order dated 10.06.2017. The applicant did not prefer an appeal against the penalty order and chose to let the matter rest.
The applicant was further surprised to receive Memo No.Vig/30-4/5-2017 dated 28.08.2017, from respondent No.3 proposing to enhance the penalty under Rule 29 of CCS (CCA) Rules 1965 from "stoppage of his next two increments with cumulative effect" to that of "dismissal from service, which shall ordinarily be a disqualification for future employment under the government".
The applicant submitted a detailed reply dated 11.09.2017, to the respondent No.3 wherein the applicant inter-alia explained that he is a physically handicapped person of about 32 years of age and 28 years of service is still left in his superannuation. Besides, his parents have been paralysed due to disciplinary action, and in case such an extreme penalty of dismissal is imposed, there will be no option except the death of his parents, as there is no support for them except his service.
The respondent No.3 did not appreciate the facts and circumstances of the case of the applicant and imposed the extreme penalty of dismissal upon the applicant vide his order dated 09.11.2017. Applicant submitted an appeal dated 13.12.2017, to the respondent No.2 requesting for setting aside of the punishment orders passed by the respondent No.3. The applicant, vide his letter dated 24.10.2018, also requested the respondent No.2 to grant him a personal hearing.
Though the respondent No.2 herein granted personal hearing to the applicant on 15.11.2018, however, the same proved to be a mere formality inasmuch as the respondent No.2 has briefly recorded in the minute sheet dated 15.11.2018 the defence of the applicant. In the said minute sheet dated 15.11.2018, the respondent No.2 has concluded that the applicant could not narrate any sustainable argument of defence. The respondent No.2 thereafter kept the case of the applicant pending for nearly six months. That, vide order dated 27.05.2019, the respondent No.2 rejected the appeal dated 13.12.2017 and confirmed the penalty order dated 9.11.2017.
Learned counsel for the applicant argured that the order passed by the appellate authority is without any application of mind and was passed mechanically. The respondents have acted in utter violation of the rules and have passed the impugned orders in an illegal, arbitrary, and mechanical manner with pre-determination to punish the applicant without appreciating the relevant facts and circumstances.
Therefore, the present OA is filed seeking the following relief(s):-
“(i) call for the records of the respondents wherein the impugned orders have been passed.
(ii) hold and declare the Charge Memo No.F-4/1/2014-15 dated 10.2.2015 [Annexure-A-1 (Impugned)); disagreement letter No.F-4/1/2014-15 dated 22.5.2017 (Annexure-A-2 Impugned); Order No.F-4/1/2014-15 dated 10.06.2017 [Annexure-A-3 (Impugned)); Show Cause Notice vide Memo No.Vig/30-4/5-2017 dated 28.08.2017 [Annexure-A-4 (Impugned)]; Order No.Vig/30-4/5-2017 dated 09.11.2017 [Annexure-A-5 (Impugned)); Order No.STA/44-1/11-2018 dated 27.05.2019 [Annexure-A-6 (Impugned)) issued by the respondents as arbitrary, illegal, discriminatory and consequently quash the same;
(iii) consequently, direct the Respondents to grant all consequential benefits to the applicant;
(iv) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.”
On issuance of notice, the respondents have filed their counter-affidavit and are contesting the OA.
Counsel for the respondents in the counter reply stated that upon going through the punishment order dated 10. 06.2017 issued by SPOs Etah, the reviewing authority i.e., DPS Agra Region, was of the opinion that the punishment awarded to the applicant is not commensurate with the gravity of the offence committed by him. Therefore, he, in exercise of powers conferred under Rule 29 of CCS (CCA) Rules 1965, proposed against applicant to enhance the penalty of “stoppage of his next two increments with cumulative effect” to that of “Dismissal from service which shall ordinarily be a disqualification for future employment under the Government.”
The applicant submitted his representation/statement, on 14.09.2017, and after examination of the same & all other records of the case, the competent authority decided to confirm the notice as such the penalty was enhanced. Therefore, all the actions taken by the respondent are as per rules and instructions issued in this regard.
Learned counsel for the respondents submitted that the Inquiry Officer who conducted the Departmental Inquiry against the Applicant did not objectively assess the facts, statements, and evidence adduced during the Inquiry and only made a subjective conclusion. Accordingly, a letter of disagreement was issued on the basis of facts which were over looked by the Inquiry officer and the Applicant was given an opportunity to submit his representation/statement, which was received in DO Etah on 25.05.2017 and after receipt of representation of the Applicant, the competent authority 1.e. DPS Agra Region enhanced the penalty of "stoppage of his next two increments with cumulative effect" to that of Dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
Respondents have relied upon the Apex Court decsion in Karnataka SRTC Vs. A. T. Mane, 2005 (3) SCC 254, held that it is not the amount of money misappropriated that becomes the primary factor for awarding punishment. It is the loss of confidence which is the primary factor to be taken into consideration in cases of misappropriation in support of their decsion to enance the penalty to extreme penalty of dismissal.
The applicant on the other hand has relied upon several judgments, which are as under:-
Yoginath D Bagde Vs. State of Maharashtra, reported as (1999) 7 SCC 739.
Sh. Raja Ram Vs. Govt. of NCT &OrsAnr. Reported as 2010 SCC Online CAT 550
State of Punjab vs. V.K. Khanna, reported as (2001) 2 SCC 340.
Referring to the above decisions counsel for the applicant argued that the disagreement note dated 22.05.2017, is not tentative but a definitive predetermined note. He submitted that no reasons for disagreement with the Inquiry Officer‟s report have been provided. The counsel further argued that the IO‟s report has analysed the PWs statement made during the inquiry and has also corroborated the same to the record. To mention a few, Shri Maharaj Singh, the then Deputy Post Master, Jalesar Town in his statement before the IO had stated that the applicant was on medical leave for few of the dates on which the alleged fraud is stated to have occurred. This fact has been corroborated with the leave record of the applicant for the period from 21.01.2014 to 23.01.2014. Once the applicant was on leave, how could he have been charged for playing fraud on the said dates.
The Disciplinary Authority, while disagreeing with the IO‟s report, has failed to bring out any reasons to disagree with the conclusion of the IO which itself was based on record and the statements of the witnesses. He submits that the reasons for the disagreement ought to have been provided to the applicant to make an effective response to the disagreement note. Rather in the disagreement note, few facts have been stated without disclosing the reasons for the disagreement. As such, the applicant was handicapped in giving a proper response to the disagreement note.
Counsel for the applicant submits that in spite of the above handicap, the applicant filed his reply to disagreement note. The same, however, has not been considered by the disciplinary authority. That vide order dated 10.06.2017, in one line order, the disciplinary authority has decided to punish the applicant with the penalty of stoppage of next two increments with cumulative effect. Counsel stated that the fact of disagreement note having been issued by the disciplinary authority and response submitted by the applicant has been recorded in the final order, however, none of the contents of the disagreement note and response to the same by the applicant have neither been recorded nor discussed. Infact, the order passed by the disciplinary authority imposing punishment of stoppage of two increments with cumulative effect is a non-speaking order and hence liable for interference.
Counsel for the applicant drew our attention to Rule 29 of the CCS (CCA) Rules 1965. He stated that as per the said Rules, the competent authority does have the power to review the decsion of the disciplinary authority, however, there are a few conditions/ restrictions. For easy reference, Rule 29 is reproduced herein below:-
“(1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be [revised] or;
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit.”
Counsel for the applicant referring to Rule 29 (1)
(v) of the CCS (CCA) rules, stated that the appellate authority within six months of the date of the order sought to be reviewed, issued the notice for enhancement, based on perusal of the records. In the present case the reviewing authority without calling for the records of the enquiry has proceeded to issue the order for review. It is clear from the order that the appellate/reviewing authority has only perused the inquiry report and the DA‟s order, however, there is no evidence that records of the fraud alleged, have been called for perusal, before initiating action for review.
The applicant further argued that para 4 of the order itself would show that order was not tentative since it stated that the competent authority has decided not to accept the findings of the IO and holds that the charges stand proved against the applicant. Counsel argued that no doubt, an opportunity was given to respond to the notice for suo motu review, however, in the wake of the definitive para 4, the said opportunity is nothing but an eye wash. He argued that the suo motu action, if any, under Rule 29 requires due diligence on the part of the competent authority. The appellate authority having failed to apply diligence/calling for the records, has resulted in great prejudice to the applicant.
Applicant further submits that the appellate authority upon reconsidering the entire issue has ultimately imposed the extreme punishment of dismissal from service. He submitted that the dismissal from service is unwarranted in lieu of the inquiry officer„s report which had acquitted the applicant from all charges.
Counsel for the applicant has further attempted to demolish the respondents stand by arguing that even the order passed by the appellate authority under Rule 29 does not stand scrutiny in law as the same was passed relying upon the preliminary inquiry report. He submits that once the applicant was charged with definite Article of Charge and had faced the departmental inquiry, the reliance by the respondents on the preliminary inquiry report is not warranted.
Per contra, counsel for the respondents attempted to support the respondents‟ decision by arguing that the applicant while working as PA Jalesar Town, SO, during the period from 31.08.2012 to 10.04.2014, committed a grave misconduct in as much as he did not account for the total amount of deposits of Rs.4,28,376.00 in various RD accounts of Jalesar Town SO on various dates. As such he defrauded the govt. money to the tune of Rs.4,28,376.00. Respondents argued that the competent authority has acted as rules and at each step of the proceedings adequate chance of defence was afforded to the applicant. Therefore the action of the respondents cannot be faulted with.
We have considered the rival submissions and also perused the record and gone through the pleadings.
In the present case, after completion of full-fledged departmental inquiry held against the applicant, the Inquiring Authority i.e. IO submitted his inquiry report on 19.11.2020, wherein on analyzing the evidence of the record of inquiry, the IO recorded his findings that the “charges are not proved‟. On receipt of the said inquiry report, the DA giving cogent reasons disagreed with the findings of the IO. Applicant availed oppurtunity and submitted his representation which was considered by the diciplinary authority. Upon consideration the DA and concluded that the charges levelled against the applicant are proved and consequently, penalty of stoppage of next two increments with cumulative effect was imposed. The applicant had accepted the punishment so imposed since he did not file any appeal against the punishment order.
To the misfortune of the applicant the Revisionary Authority, exercising his power to suo motu review, under Rule 29 of CCS Rules, 1965 has discarded the findings recorded by the IO & the order of the DA and passed the impugned order dated 03.12.2020 of dismissal mainly on the ground that the IO & DA failed to take into consideration that the documents pertaining to the call-records/transcription etc.
We have heard the counsel for the parties and considered the issue at length. It is an accepted position of the parties that Director Postal Services is the Appellate Authority. The Appellate Authority, in the absence of appeal could have exercised the power of review within a period of six months. In the case in hand the Director Postal Services, the Appellate Authority has within a period of six months issued notice to the applicant for enhancement of the penalty. It is however another fact, that the respondent/reviewing authority did not call for the records of the enquiry. The IO report and the DA‟s order was placed before the reviewing authority and going through the same the reviewing authority has come to the conclusion on the applicant‟s guilt and penalty. Respondents in para 14 of the counter affidavit have admitted that the reviewing authority had only gone through the punishment order dated 10.06.2017 before concluding that the punishment awarded to the applicant is not commensurate with the allegation in the charge and therefore needs to be enhanced to Dismissal.
The star witness, Shri Maharaj Singh, the then Postmaster Jalesar Town PO, PW-1 was also charge sheeted vide DO Etah memo, no. F-04/1/2014-15 dated 19.07.2016, (Exp-Kha-05) by the SPO Etah in this fraud case and therefore his statement cannot be given the weight age it has been given. Moreover, in the charge sheet the period of fraud has been shown from 21.01.2014 to 23.01.2014, when the applicant is stated to be on medical leave on these dates. It would show that fraud was committed in the absence of the charged official or atleast not with his active connivance.
Moreover, we find it disturbing that in the revision punishment order it has been mentioned that the preliminary inquiry by a joint team of four departmental officers was conducted in the matter to ensure fair inquiry against the appellant, and as per the preliminary inquiry conducted by a team of four departmental officer, the appellant was found responsible for committing misappropriation of government meaning thereby that the Reviewing authority was influenced by the preliminary report, over and above the IO‟s report.
On the other hand argument of the applicants that suo motu action requires due diligence is attractive and, therefore, acceptable. Respondents have failed to show that adequate due diligence was undertaken before concluding that the case requires suo motu review.
Considering all the above aspects, we are of the opinion that the present Original Application deserves to be allowed. Hence impugned punishment order dated 9.11.2017 (Annexure A-5) passed by the reviewing authority, dismissing the applicant is quashed and set aside with consequential benefits (except back wages). However since the applicant never protested/appealed against penalty of stoppage of increments by the DA, we do not propose to visit the same.
In that view of the matter, the penalty imposed by the Reviewing Authority is quashed and further we hold that the penalty imposed by the Disciplinary Authority, per order dated 10.06.2017, was appropriate and has to be restored. Requisite action be taken by respondents within 3 months from the receipt of the certified copy of this order.