Sri Manik Lal Dey vs Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Sri M. Chanda, learned counsel for the applicant has submitted that the applicant while working as Gramin Dak Sevak Mail Deliverer/Mail Carrier (GDSMD/MC), in Rakhalbasti Branch Office, a show cause letter dated 29.10.2018 (Annexure-A/1) was issued by the respondent no. 4 seeking explanation for alleged irregularity in duty by the applicant. The said respondent no. 4 himself issued impugned Memorandum of Charge sheet dated 29.11.2018 (Annexure-A/2) for initiation of disciplinary proceedings under Rule 10 of the Dept. of Posts GDS (Conduct & Engagement) Rules, 2011 on the same allegation as in the show cause letter dated 29.10.2018 along with the charge that he did not reply to the said show cause letter with the predetermined mind to impose the gravest punishment of “dismissal from engagement” after enquiry. Applicant submitted written statement of defense against the Charge sheet on 17.12.2018 denying the charges (Annexure-A/10). As per Sri Chanda, no violation of rule has been alleged in the Charge sheet, charges are baseless and perverse. By impugned inquiry report dated 23.09.2019 charges have been held to be proved in an arbitrary and irregular manner and by penalty order dated 09.01.2020 (Annexure-A/4), the penalty of “dismissal from engagement” has been imposed upon the applicant by the respondent No. 4. Being aggrieved, applicant preferred an appeal on 03.02.2020 (Annexure-A/13) which has been rejected by the Appellate Authority and confirmed the punishment imposed by the Disciplinary Authority vide order dated 11.05.2021 (Annexure-A/5).

Sri Chanda has further submitted that not only the DA but even the Appellate Authority proceeded with reverse proposition and held that “The appellant failed to prove him not-guilty during the entire proceedings.” This is violative of the settled position of law that charge against the delinquent shall be proved against him [Yunus Khan v. State of U.P.[(2010) 10 SCC 539]. None of the documents including the show cause letter dated 29.10.2018 and the statements of the applicant obtained by force on 29.10.2018 by the respondent no. 4 were proved during the inquiry, but heavily relied upon by the IO. According to the learned counsel, these are dead evidence and inference drawn from such document stood vitiated in terms of the decision of the Hon’ble Supreme Court in Ministry of Finance v. S B Ramesh reported in 1998 3 SCC 227, thus vitiating the entire disciplinary proceedings. Besides, the Appellate Authority did not remit the case to the Inquiring Authority in terms of Rule l8(c)(ii) of the GDS Rules, 2011 for further examination of the PW-2 and the recipient of the article, Sri Ardhendu Choudhury inspite of observation by the IO regarding ample scope of examination/re-examination and doubt on the charges. Malice and malafide against the applicant in the entire disciplinary proceedings is patent.

Per contra, Sri P. Saikia, learned Addl. CGSC for the respondents has submitted that the Department of post had initiated a departmental proceeding vide show cause Notice dated 29.10.2018 alleging negligence in duty as well as violation departmental rules. The allegations are that while the Inspector of Posts visited Rakhalbasti Branch Office on 29.10.2018, the delinquent was remained absent from his duty; even he did not open the office and also not responded phone calls of the Inspector. The delinquent also failed to show return articles received from the Lakshmisahar Sub-Office, only able to show a list of 12 Speed Post Articles (SPA in short) along with 11 articles in an open bags and 1 article delivered on the way without handing over the entire mails to Gram Dak Sevaks Branch Post Master in intact condition. As per departmental rules, the applicant was required to hand over all the articles along with mail list to the GDSBPM, Rakhalbasti B.O. But the applicant acted in contravention of rules and delivered one Speed Post article on his way to the B.O. without the knowledge of the GDSBPM. The delinquent also failed to maintain absolute integrity and devotion to duty as required under Rule-21 of Department of Posts GDS (Conduct & Engagement) Rules, 2011. Thereafter departmental proceeding has been initiated against the delinquent vide memorandum dated 29/11/2018 by two article of charges.

As per Sri Saikia, being a public authority, the Department of Post is very serious about this kind of activities of their any officials in regards to maintain public trust upon a public institution. As such mere denial of such allegation is not a proper ground to excuse such activities of a delinquent officer. On these circumstances, the disciplinary authority was not satisfied with the reply of the delinquent and accordingly as per the provision of Rule-10 of the Department of Posts Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011, Mr. K. Choudhury, Inspector of Posts, Karimganj Sub Divn was appointed as Inquiring Authority to conduct inquiry into the charges framed against the applicant and Mr. S. Goswami, Inspector of Posts, Patharkand1 Sub Division was appointed as Presenting Officer to present the case before the inquiring authority on behalf of the disciplinary authority. The charges have been famed against the applicant based on documentary evidence and dropping of the charge sheet does not arise. By following charge sheet dated 29.11.2018, Total 4 (four) witnesses were examined. Defense haf not adduced any witness. After conducting proper inquiry, Charges have been proved against the applicant and penalty of dismissal from his service was imposed vide impugned order dated 09.01.2022.

We have heard Sri M. Chanda, learned counsel or the applicant and Sri P. Saikia, learned Addl. CGSC for the respondents and scrutinised the whole conspectus of the case.

We have carefully perused the rejoinder filed by the learned counsel for the applicant wherein it is stated that a disciplinary authority cannot be a complainant as well as a witness in an enquiry. As per the learned counsel for the applicant, many grounds had been taken by the applicant as his defense but the Inquiry Officer as well as Disciplinary Authority did not consider the same. He has also brought various procedural lapses in the Inquiry proceeding and the Inquiry Officer with a vindictive attitude had imposed the extreme punishment of dismissal from service upon the applicant

We have also gone through the records and submissions of both parties. In the matters relating to Disciplinary proceeding, , the law has been laid down in the case of Union of India and Others vs. P. Gunasekaran, reported in (2015) 2 SCC 610 wherein the Hon'ble Apex Court has laid down as under:

In the present case, only because of negligence in duty, show cause notice was issued on 29.10.2018 and thereafter, departmental proceeding had been initiated against the applicant vide Memorandum dated 29.11.2018 and on the basis of inquiry report, applicant was dismissed from service by the Disciplinary Authority; and upheld by the Appellate Authority. Thus, from the perusal of records, we are of the considered opinion that the said punishment imposed upon the applicant is harsh and disproportionate with respects of allegations made against the applicant as held by the Hon’ble Supreme Court in the case of Rajendra Yadav vs State Of M.P.& Ors., reported in 2013 (3) SCC 73, wherein it was held that – “The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.” The allegation as brought out against the applicant in the instant case cannot be considered as serious offence. Therefore, the action of the respondent authorities for awarding punishment of ‘dismissal from engagement’ by the Disciplinary Authority is not tenable in the eyes of law. Except dismissal of service, they could have imposed any major punishment. But they did not do so. We, therefore, quash and set aside the impugned orders of the respondents (Annexure-A/2, Annexure-A/3, Annexure-A/4, & Annexure-A/5) and remand this case back to the Appellate/Disciplinary Authority to take a considered and lenient view and give any other major penalty except removal from service. In case, the Appellate Authority decides to reduce the punishment of the applicant, then the applicant would not be entitled for any back wages of the period during which his service was terminated except his seniority under the principles of no work no pay will apply.

Accordingly, O.A. stands allowed. Pending M.A., if any, stands disposed of. No order as to costs.