R. Balachandran vs Union Of India & Anr.

The applicant, GDS Mail Deliverer -II being aggrieved by the order of the 2^nd respondent, dated 05.01.2017 in removing him from engagement and which has been confirmed in appeal by the order, dated 05.05.2017 of the 1^st respondent has filed the OA to set aside the said orders and consequently to, direct the respondents to reinstate the applicant with all attendant benefits and to pass such further or other orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.

The facts and circumstances giving rise to the filing of the OA are as follows: The applicant was appointed as Gramin Dak Sevak Mail Deliverer-II (GDS MD-II) at Sithalapakkam B.O. on 01.02.2014. As the duties of GDS MD-II at the said office required two persons, the applicant repeatedly requested the competent authority to appoint another GDS MD and distribute the workload. Though the authority assured him that necessary action would be taken, instead of appointing another GDS MD, additional duties were entrusted to the applicant, including bringing the B.O. bag daily from Madambakkam S.O., which was the duty of GDS MD-I at Sithalapakkam. Due to the excessive workload, the applicant suffered physically and mentally and was compelled to avail leave. He availed leave from 25.03.2015 to 04.04.2015. However, to his shock, he was placed off duty with effect from 25.03.2015. Subsequently, a Charge Memo, dated 31.07.2015 was issued to him under Rule 10 of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. The applicant denied the charges. Since the regular Disciplinary Authority was a material witness in the matter, the ASPOs, Tiruvallur Sub-Division, Tiruvallur, was appointed as the Ad-hoc Disciplinary Authority. An inquiry was thereafter conducted, in which the applicant fully cooperated. No complaint was made against him by any person. The principal witness, who was allegedly the complainant, was dropped by the Inquiry Officer and was not examined. The charges were not established by material evidence. The applicant submitted detailed replies to the Presenting Officer's brief and the Inquiry Officer's report. Nevertheless, without properly considering his submissions, the Ad-hoc Disciplinary Authority passed an order dated 05.01.2017 removing him from engagement. Aggrieved by the said order, the applicant preferred an appeal dated 19.01.2017 before the 1st respondent. The appeal was not disposed of within the prescribed reasonable period. The Government of India's decisions below Rule 27 of the CCS (CCA) Rules, 1965, require appeals pending for more than a month to be reported to the next higher authority, and the relevant instructions below Rule 3-C of the CCS (Conduct) Rules require appeals and petitions to be disposed of within a reasonable time, with an acknowledgement or interim reply where disposal is likely to exceed one month. The applicant submits that he has remained out of employment due to circumstances beyond his control. The excessive workload entrusted to him, which could not reasonably be performed by a single person, resulted in his inability to discharge the duties and consequent illness and leave. This aspect was not properly considered by the disciplinary authority. Further, the appeal dated 19.01.2017 was disposed of by memo dated 05.05.2017 without effectively considering the various grounds raised by the applicant. Hence, the applicant has filed the present Original Application challenging the impugned orders.

The learned counsel for the applicant submitted that the impugned order of punishment is arbitrary, illegal and disproportionate to the charges alleged against the applicant. He contended that the points and objections specifically raised by the applicant in his detailed reply dated 25.11.2016 to the Inquiry Officer's report were not properly considered by the 2nd respondent before imposing the punishment. The disciplinary authority has failed to deal with the material contentions raised by the applicant and has mechanically imposed the major penalty of removal from engagement. The learned counsel further submitted that, apart from the regular duties assigned to the applicant as GDS MD-II, he was orally directed by SW4 to bring the B.O. bag daily from Madambakkam S.O., though the said duty was officially assigned to GDS MD-I. The applicant was thus burdened with additional duties beyond his normal responsibilities. Due to the excessive workload, the applicant suffered ill-health and was compelled to avail medical leave. According to the learned counsel, this crucial circumstance was not properly appreciated by the 2nd respondent while imposing the extreme punishment of removal from engagement.

It was further submitted that, on account of the excessive workload, the applicant frequently became unwell. Whenever he was required to proceed on leave, he informed the competent authorities to make suitable arrangements by providing a substitute so that the delivery of postal articles would not be affected and the public would not suffer. However, no such arrangement was made by the authorities. The applicant himself made efforts to arrange for a substitute during his leave, but no person was willing to undertake the work for the meagre remuneration offered. Despite being fully aware of these circumstances, SW4 to SW6 failed to make any suitable alternative arrangement for delivery of the postal articles pertaining to the MD-II beat during the applicant's leave periods. The learned counsel contended that the failure of the authorities to make alternative arrangements, despite their knowledge of the applicant's absence and the circumstances leading to his leave, cannot be attributed solely to the applicant. The authorities were duty-bound to ensure uninterrupted delivery of postal articles during his leave. Therefore, imposing the severe punishment of removal from engagement upon the applicant, without properly considering the administrative failure on the part of SW4 to SW6, is unjust, arbitrary and contrary to the principles of natural justice.

The learned counsel further submitted that ordinary and accountable postal articles were, in fact, permitted to remain in polythene bags kept in front of the seat of SW4. Such articles accumulated over the period from July 2014 to March 2015 and, according to the applicant, ultimately amounted to approximately ten polythene bags. The concerned authorities were fully aware of such accumulation but failed to take effective steps for their timely delivery. Instead, the entire responsibility was sought to be fastened upon the applicant. It was therefore argued that, if there was any non-delivery or accumulation of postal articles, the same could not be attributed exclusively to the applicant, particularly when the supervisory authorities were aware of the situation and had failed to make appropriate arrangements for their delivery. The learned counsel submitted that SW4 to SW6 were responsible for ensuring proper supervision and disposal of the accumulated articles. In such circumstances, holding the applicant solely responsible and imposing the extreme penalty of removal from engagement is wholly unjustified and disproportionate.

The learned counsel also submitted that the service union had given a strike call in March 2015, which continued for seven days from 10.03.2015 to 16.03.2015. The applicant did not participate in the said strike and, on the contrary, continued to attend and perform his duties at the S.O. during the strike period. This, according to the learned counsel, clearly demonstrates the applicant's sincerity and willingness to discharge his duties in the interest of the Department and the public.

It was further submitted that, from 17.03.2015 onwards, the applicant was on medical leave due to his ill-health. During the relevant period, according to the inventory prepared by SW6, as many as 159 registered letters (RLs) were shown as having been handed over to the applicant for delivery by SW4 and SW6. The learned counsel contended that the manner in which the said inventory was prepared and the articles were shown as having been entrusted to the applicant gives rise to serious doubt regarding the correctness of the alleged entrustment and appears to have been relied upon to fasten responsibility upon the applicant. The learned counsel ultimately submitted that the overall conduct of the applicant clearly establishes that he had acted bona fide and had sincerely obeyed the orders and directions issued by the competent authorities. He discharged his duties to the best of his ability despite being burdened with additional work and suffering from ill-health. The authorities, having failed to make suitable arrangements during his leave and having themselves been aware of the accumulation of postal articles, could not have shifted the entire responsibility upon the applicant.

The learned counsel submitted that there is a material discrepancy regarding the period of accumulation of the 212 registered letters (RLs). As per the MOC, the period was from 18.09.2014 to 25.03.2015, whereas, according to the inventory prepared by SW6, it was from 25.07.2014 to 24.03.2015. Further, the witnesses categorically stated that the articles recovered from the ten polythene bags did not bear date-stamp impressions showing their actual dates of receipt at the B.O. Hence, there was no reliable material to establish that all 212 articles belonged to the period alleged in the charge. These material discrepancies rendered the charge vague, but the same were not properly considered by the Inquiry Officer or the Ad-hoc Disciplinary Authority, resulting in violation of the principles of natural justice.

The learned counsel further submitted that, despite the allegation that 212 accountable articles remained undelivered from July 2014 to March 2015, not a single complaint from any of the addressees was produced to substantiate the charge. Even SW6, who conducted the inventory, did not obtain the outer covers of any of the alleged RLs from the addressees or otherwise produce independent material to establish the alleged non-delivery. In the absence of any complaint or corroborative evidence, the charge against the applicant remained unsubstantiated. The inquiry, therefore, was not conducted in accordance with the principles of a fair and proper inquiry.

The learned counsel submitted that the charge memo issued under Rule 10 was substantially based on an alleged complaint by Smt. Mangalakshmi Arul. However, the said person, who was the material witness, was not examined by the Inquiry Officer and was dropped from the inquiry on the oral request of the Presenting Officer, despite there being no provision permitting such a course. Consequently, the applicant was deprived of the opportunity to cross-examine the principal complainant. The findings of the Inquiry Officer, insofar as they relied upon the alleged complaint of a witness who was never examined, are therefore unsustainable. This vital aspect was also not considered by the 2nd respondent.

The learned counsel further submitted that the applicant was denied an effective opportunity to defend himself, as he was not permitted to inspect the documents relied upon by the Inquiry Officer and the documents specifically sought by him were not supplied. He was also denied a proper opportunity to cross-examine the State witnesses. In the absence of the principal complainant, and without sufficient oral or documentary evidence, the Inquiry Officer nevertheless proceeded to hold the charges proved. The learned counsel therefore contended that the inquiry and the consequential punishment are vitiated by denial of reasonable opportunity and violation of the principles of natural justice. Accordingly, he prayed that the impugned orders be set aside and the reliefs sought in the present OA be granted.

Per contra, the learned counsel for the respondents, relying upon the reply statement, vehemently opposed the contentions of the applicant. He submitted that the applicant failed to discharge his primary duty of delivering the postal articles entrusted to his beat and thereby failed to maintain devotion to duty. Instead of explaining the non-delivery of the articles, the applicant had raised irrelevant contentions regarding the workload and other circumstances. The allegation that his appeal was disposed of without considering the grounds raised therein is also denied, as the appeal was duly considered and disposed of by the 1st respondent. The charges are serious in nature, as the applicant had kept 6,089 unregistered articles and 212 registered articles undelivered for a considerable period. He also failed to cooperate in furnishing his statement before the ASP, Tambaram Sub-Division, while he was under off-duty orders. The Inquiry Officer, after conducting the inquiry in accordance with the prescribed procedure, held the charges proved. Thereafter, the Ad-hoc Disciplinary Authority, after considering the applicant's representation against the inquiry report, imposed the penalty of removal from engagement. The appellate authority, upon due consideration of the grounds raised in the appeal, confirmed the said penalty.

The learned counsel further submitted that, under the GDS (Conduct and Engagement) Rules, 2011, a GDS is required, during the period of leave, to arrange for his duties to be performed by a substitute approved in writing by the competent leave-sanctioning authority. The applicant neither obtained the requisite approval for leave nor arranged for an approved substitute to perform his duties. Therefore, his contention that the authorities were required to make alternative arrangements for delivery of articles during his alleged leave is untenable. Having failed to comply with the prescribed procedure for availing leave and arranging a substitute, the applicant cannot attribute the resulting non-delivery of articles to the departmental authorities.

It was further submitted that the applicant had kept 6,089 ordinary articles and 212 registered articles in polythene bags without proper remarks, resulting in his being placed off duty by the ASP, Tambaram Sub-Division. The contention that the competent authorities failed to take steps for delivery of the articles and instead sought to blame the applicant is denied. As a GDS Mail Deliverer, the applicant was primarily responsible for prompt delivery of the articles entrusted to his beat. Having retained a large volume of articles without delivery, he cannot shift the responsibility upon the supervisory authorities. The Department subsequently made special arrangements to deliver the undelivered articles to the respective addressees. Such large-scale non-delivery adversely affected the reputation and functioning of the Department, for which the applicant was primarily responsible.

The learned counsel further submitted that there was no bias or procedural irregularity in the conduct of the inquiry. The Inquiry Officer, acting in a quasi-judicial capacity, conducted the proceedings in accordance with the prescribed rules and afforded the applicant reasonable opportunity to defend himself. The charges were established on the basis of the oral and documentary evidence adduced during the inquiry. The preliminary inquiry report is not a mandatory document and its absence does not vitiate the regular inquiry. The applicant did not effectively disprove the allegation regarding the non-delivery of the large volume of postal articles and merely attempted to attribute responsibility to others. After considering the entire oral and documentary evidence and the applicant's representation against the inquiry report, the Disciplinary Authority found the irregularities proved and imposed the penalty of removal from engagement. The appellate authority also duly considered the applicant's appeal and confirmed the penalty. Hence, the respondents submitted that there is no ground for interference with the impugned orders and prayed for dismissal of the OA.

The applicant has filed a Rejoinder reiterating the contentions raised the OA.

We have considered the submissions made by the learned counsel on either side, perused the pleadings and the materials placed on record. We have also gone through the judicial decisions referred to by the learned counsel in support of their respective contentions.

The Applicant was issued with a Charge Memo dated 31.07.2015, while he was working as GDS MD – II, (POD) Sithalapakkam, Chennai under Rule 10 of Department of Posts, GraminDak Sevaks (C & E) Rules, 2011, containing 3 Articles of charge which reads as follows:

The applicant denied the charges vide his letter dated 07.08.2015 and hence Rule 10 Inquiry proceedings were proceeded, and the Disciplinary Authority appointed the Inquiry Officer and the Presenting Officer. The Inquiry Officer conducted the inquiry and submitted his report on 19.10.2016 holding the charges proved. After going through the report and records the Disciplinary Authority imposed the punishment of ‘Removal from Engagement’ vide order dated 05.01.2017. Aggrieved by the order the applicant filed appeal before the Appellate Authority on 19.01.2017. The Appellate Authority in turn rejected the appeal of the applicant by an order dated 05.05.2017 and confirmed the penalty order passed by the disciplinary authority.

We find the following issues are required to be considered by this Tribunal to be adjudicated:

We have already noticed that the scope of judicial review in disciplinary matters is limited. It is well settled through a catena of judgments that the Court/Tribunal does not sit as an appellate authority over disciplinary proceedings and cannot re-appreciate or re-weigh the evidence merely because another view is possible. Interference is warranted only where the findings are perverse, based on no evidence, contrary to law, or where there has been violation of the principles of natural justice. In Union of India v. P. Gunasekaran, the Hon'ble Supreme Court has held that, where there is some evidence supporting the findings of the disciplinary authority, the adequacy or reliability of such evidence ordinarily cannot be examined in judicial review.

Keeping the above principles in view, we have carefully examined the Inquiry Officer's report as well as the orders passed by the Disciplinary Authority and the Appellate Authority. The charges against the applicant are supported by documentary material, including the Panchnama evidencing the large number of undelivered postal articles. The findings of the Inquiry Officer are therefore not based on conjecture or surmise, but on material available on record. We further find that the Appellate Authority considered the grounds raised by the applicant in his appeal and affirmed the findings of the Disciplinary Authority by assigning reasons. We, therefore, find no perversity, illegality or non-application of mind warranting interference with the findings recorded in the disciplinary proceedings. Accordingly, this issue is answered in the negative and against the applicant.

The next issue for consideration is whether the penalty of removal from engagement imposed upon the applicant is grossly disproportionate to the charges proved so as to warrant interference under the doctrine of proportionality. The principal charge against the applicant relates to the non-delivery of a large number of postal articles while he was working as GDS Mail Deliverer at Sithalapakkam, thereby indicating negligence and lack of due care in the discharge of his duties. At the same time, it is relevant to note that there is no allegation that the applicant had misappropriated Government money, committed embezzlement, or acted with any mala fide intention. The nature and circumstances of the misconduct, therefore, require consideration while examining the proportionality of the extreme penalty imposed.

On a careful examination of the record, it is noticed that it is an undisputed position that the applicant had repeatedly brought to the notice of the higher authorities the excessive workload, shortage of staff and the difficulties faced by him in delivering the large volume of postal articles within time. Despite such repeated requests, there is nothing on record to show that the authorities took effective steps to address the difficulties brought to their notice. No satisfactory explanation has been furnished by the respondents as to why additional staff was not provided despite the applicant's repeated representations. Equally, no material has been placed before us to establish that adequate manpower was available at the relevant time to effectively discharge the volume of work entrusted to the applicant.

It is also relevant to note that, during the course of hearing, both parties admitted that the said Post Office had subsequently grown into a large Post Office and that additional Postmen were deployed pursuant to the order dated 09.03.2018. This subsequent deployment of additional manpower lends support, to some extent, to the applicant's contention that the Post Office was facing substantial workload and manpower-related difficulties. In these circumstances, we find considerable force in the submission of the learned counsel for the applicant that the repeated requests made by him for additional staff to cope with the excessive workload were not given due consideration either by the Disciplinary Authority or by the Appellate Authority.

While the applicant cannot be completely absolved of his responsibility to discharge the duties attached to his post, the surrounding circumstances, particularly the excessive workload, shortage of manpower and the applicant's repeated requests for additional assistance, ought to have been given due consideration while determining the appropriate penalty. The entire lapse could not, in the facts and circumstances of the case, be attributed solely to the applicant without examining the administrative circumstances contributing to the non-delivery of the postal articles.

Having regard to the totality of the circumstances, including the nature of the misconduct proved, the absence of any allegation of misappropriation or mala fide intention, the excessive workload and shortage of manpower brought to the notice of the authorities, and the subsequent deployment of additional staff, we are of the considered view that the extreme penalty of removal from engagement calls for reconsideration on the touchstone of proportionality

In this regard, we may refer to the case of B.C. Chaturvedi Vs Union of India and Ors, Order dated 01.11.1995, reported in 1995 (6) SCC 749, wherein, the Hon’ble Supreme Court has observed as follows:

We deem it appropriate to refer the law laid down by the Hon’ble Apex Court in Naresh Chandra Bhardwaj Vs. Bank of India, reported in (2019) 15 SCC 786, wherein, the Hon'ble Apex Court observed as under:-

In Union of India v. R.K. Sharma [(2001) 9 SCC 592], the Hon’ble Apex Court explained the observations made in [Ranjit Thakur v. Union of India, (1987) 4 SCC 611] observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in [Ranjit Thakur v. Union of India, (1987) 4 SCC 611] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review, and courts should not interfere merely on compassionate grounds. Thus, it is well settled principle of law that Courts may interfere with the order of punishment passed by the disciplinary authority if the punishment awarded to any delinquent is found to be shockingly disproportionate to the charge levelled against him.

In view of the foregoing discussion, the reasons recorded hereinabove and the settled principles governing judicial review of the quantum of punishment, we are of the considered view that the penalty of “Removal from Engagement” imposed upon the applicant is unduly harsh and disproportionate to the misconduct proved. The penalty, in the facts and circumstances of the case, is so excessive that it shocks the conscience of the Tribunal. We are, therefore, inclined to interfere with the impugned orders to the limited extent of the quantum of punishment. Accordingly, the matter is remitted to the Disciplinary Authority for reconsideration of the quantum of punishment alone, without reopening the findings recorded in the disciplinary proceedings.

In the result, the present Original Application is partly allowed in the following terms: