Rudresh Kumar vs Union Of India & Ors.

By Hon’ble Mr. Justice Om Prakash VII, Member (J)

The present O.A has been filed by the applicants under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are that applicant while posted as Postal Assistant in HPO Saharanpur was served with a major penalty charge memo dated 22.10.2009 without copies of documents shown in the Annexure III of the charge memo. Applicant was asked to submit his defence statement. Thereafter, Applicant demanded documents and copies of Rules and additional documents from the disciplinary authority vide his letter dated 01/03.11.2009. Even without supplying the said documents, the disciplinary authority appointed the Inquiry Officer and presenting officer vide letter dated 10.12.2009. Applicant further sought for relied upon documents vide his application dated 22.12.2009 and applicant has been informed that as the documents shown as listed documents in Annexure III has already been supplied and other documents as prayed for would be given during the course of enquiry. On the date of inquiry on 3.9.2010, for the direction of Inquiry Officer, applicant submitted application and sought for relevant documents vide his application dated 15.9.2010. Applicant submitted his comprehensive written statement on 29.06.2011 and Presenting Officer also submitted his written statement on 12.7.2011 to the Inquiry Officer. Thereafter applicant also submitted his written brief to the Inquiry Officer on 16.7.2011 and denied the charges. Inquiry Officer submitted his enquiry report dated 20.7.2011 and found that charges alleged regarding misappropriation of amount of PMI is not proved. Copy of enquiry report was served to the applicant calling for reply. Applicant made representation and accepted the conclusion of the enquiry report vide his application dated 1.8.2011.

It is relevant to mention here that after lapse of about five months, the other disciplinary authority issued dissent note to the applicant against the finding of the Inquiry Officer and sought explanation from the applicant vide dissent note dated 27.12.2011. Applicant submitted representation against the dissent note dated 27.12.2011 on 21.01.2012. After receiving the representation dated 21.1.2012 against the dissent note, the disciplinary authority had after lapse of more than 3 months, imposed the severe punishment of compulsory retirement from service vide impugned punishment order dated 25.4.2012. Against the punishment order, applicant directly submitted revision petition to the Chief Post Master General, U.P Circle Lucknow on 23.10.2012, which was not decided till 21.10.2013. Being aggrieved, applicant approached the Tribunal for quashing of impugned order dated 25.4.2012 by his OA No.1390/13 and was pending till 31.3.2014. During the pendency of OA, Revisionary Authority set aside the order of punishment and further directed to the disciplinary authority to decide the matter and to take decision on the Inquiry report afresh. Again illegally and with arbitrary manner, disciplinary authority issued impugned dissent note along with copy of inquiry report vide which he sought representation against the dissent note. Applicant made representation on 20/21.11.2013 against 2^nd dissent note dated 7.11.2013. When after lapse of about six months, matter was not decided by the disciplinary authority, the case was pending before this Tribunal was disposed of on 01.04.2014 with a direction to disciplinary authority to take decision on the reply of the applicant. Respondent No. 5 passed the impugned punishment order on 30.4.2014 of compulsory retirement with immediate effect i.e. 30.04.2014. By this OA, applicant is seeking for quashment of charge-sheet dated 22.10.2009, impugned dissent note dated 07.11.2013 and impugned punishment order dated 30.04.2014.

We have heard Shri S.K.Kushwaha, learned counsel for the applicants and Shri P.K. Mishra, learned counsel for the respondents.

Learned counsel for the applicants argued that since on enquiry report representation has already been submitted by the applicant to the disciplinary authority and by that time no dissent note has been served to the applicant, therefore, first dissent note served by the disciplinary authority to the applicant was illegal. Due to this reason, the same was quashed by the Revisionary Authority in the order dated 22.10.2013.Second dissent note is also illegal as the same is passed against the observation recorded by Revisionary Authority in the order dated 22.10.2013, He contended that after going through the impugned order, it would be seen that the respondent NO. 5 has not signed on the drafted order but impugned order was printed on the signed blank paper of the respondent No. 5. Learned counsel further contended that respondent No. 4 and 5 while issuing 2^nd dissent note against the inquiry report has mentioned that “as per available evidence, charges are proved” but what were those evidence which have not been considered by the Inquiry officer, has not been mentioned in the impugned dissent note, hence 2^nd dissent note is vitiated.

In rebuttal, learned counsel for the respondents submitted that applicant was alleged for defalcation in post maturity interest of KVP’s for Rs. 58, Rs. 290/- and Rs. 290/-. In the enquiry report dated 20.07.2011, the Inquiry Officer concluded that applicant was responsible for payment maturity amount of partially by cheque and partially by cash but post maturity interest has not been paid by him through cheque itself. Learned counsel further contended that on the direction of Chief Post Master General, UP Circle, Lucknow, de novo proceeding was started from the stage of submission of Inquiry report by the disciplinary authority and in compliance of direction of Tribunal passed in OA No. 1390/2013, respondent No. 5 decided the case vide order dated 30.04.2014 and awarded the penalty of compulsory retirement. It has been submitted that respondent No. 4 was not agreeable with the findings of enquiry officer, hence he sent his disagreement note dated 7.11.2013 to the applicant and this action was taken in compliance of direction of Revisionary authority.

We have gone through the arguments advanced by the learned counsel for the parties and also gone through the entire records.

The controversy involved in the present case is regarding misunderstanding of order of revisionary authority dated 22.10.2013 by the respondent No.5/disciplinary authority. For ready reference, order of revisionary authority is reproduced below:-

From the perusal of aforesaid observation of the Revisionary Authority in its order dated 22.10.2013, it is evident that respondent No. 5/disciplinary authority has failed to understand the observation of the Revisionary Authority. Disciplinary Authority has only followed the observation of last para of revisionary authority in which the Revisionary Authority has stated that:-

Hence, we are of the opinion that impugned 2nd dissent note as well as order of disciplinary authority have not been passed following the observation/decision made by the revisionary authority in its aforesaid order dated 22.10.2013. Accordingly, impugned 2^nd dissent note as well as punishment order of disciplinary authority are liable to be quashed. Hence, the same are quashed and matter is remitted back to the disciplinary authority to pass appropriate order in the light of observation made by the revisionary authority in paragraph 4 of the order dated 22.10.2013. The applicant would have been retired during the pendency of this OA as he has shown his age 57 years in the year 2014. Thus, there is no necessity to pass order regarding reinstatement. This exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order.

In view of the aforesaid observations, the OA is partly allowed.

There shall be no order as to costs.