Vijay Kumar vs Union Of India And Ors

Aradhana Johri, Member (A)

The applicant, Vijay Kumar, was a Postal Assistant Group 'C', against whom disciplinary proceedings were initiated for major penalty. The inquiry officer, vide his report dated 31.08.2009, found the charges as 'not proved'. The disciplinary authority, namely, the Senior Superintendent Post Offices, Meerut Division, issued a disagreement note dated 13.10.2009, holding the charges as 'proved', and giving an opportunity to the applicant to represent against the said disagreement note. The applicant did not avail this opportunity. Through an order dated 25.08.2010, the disciplinary authority awarded the penalty against the applicant for recovery of `8840/- in monthly installments of `1000/- and `840/- as a last installment. The applicant did not prefer any representation/objection to this order as well.

On 31.10.2011, the revisionary order was passed by the Director of Postal Services, Bareilly Region, whereby the revisionary authority enhanced the punishment of recovery of `8840/- from the pay of the applicant to that of reduction of one stage in the present pay scale for five years with cumulative effect and also for recovery of `8840/- from his pay with immediate effect. This enhanced punishment order was served on the applicant on 09.11.2011, against which he preferred an appeal on 01.03.2012, i.e., after a period of three months and 22 days. The Appellate Authority held that no reasons had been given for non-submission of appeal within the prescribed period and the appeal was rejected as time barred vide order dated 19.07.2013. The appellate order was delivered on the applicant on 30.07.2013, against which he preferred revision dated 17.02.2014. This was rejected by the Chief Postmaster General, U.P. Circle, Lucknow, through order dated 18.02.2015.

The applicant has challenged the proceedings stating that the charge sheet was not approved by the disciplinary authority and citing the case of Hon'ble Supreme Court in Union of India & others v. B.V. Gopinath, (2014) 1 SCC 351. He further challenged the disagreement note stating that it is in contravention of law of the land laid down by the Hon'ble Supreme Court in Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739. He stated that the delay of about 7 months from the date of cause of action till finalization of the proceedings, has resulted in denial of reasonable opportunity to him. He has also cited the case of one Mr. Kailash Yadav, who was also proceeded against but ultimately his punishment was reduced. He has challenged the Penalty order dated 25.08.2010, Revisionary order dated 31.10.2011, Appellate order dated 19.07.2013 and Chief Postmaster General's order dated 18.02.2015.

The respondents have denied the claims of the applicant. They have stated on oath that the charge sheet has been approved by the disciplinary authority and, therefore a situation, as prevailed in the case of B.V. Gopinath (supra), does not apply in this case. They further contended that the applicant did not file any representation/appeal against the disagreement note as well as punishment order dated 25. 08.2010 and it was only after the enhancement of punishment by order dated 31.10.2011, that the applicant challenged the enhanced order of punishment. After the subsequent revisionary order was issued, he started finding fault with the disagreement note. They have also stated that the case of Kailash Yadav was different since he preferred an appeal timely, which was considered and the case decided accordingly.

We heard Mr. Ashish Nischal, learned counsel for applicant and Mr. Subhash Gosain, learned counsel for respondents and perused the records.

The first question is whether this matter is covered under the case of B.V. Gopinath (supra). The respondents have, in their counter affidavit, clearly stated that the charge sheet was approved by the disciplinary authority and the applicant has not given any facts or evidence to prove otherwise. Further, it is to be noted that the applicant did not prefer any representation or appeal against not only the disagreement note but also the punishment order dated 25.08.2010 which followed it. Therefore on this point it cannot be held that the charge sheet was not approved by the competent authority.

The cited case of Yoginath D. Bagde (supra) is different since in the said case the opportunity to represent was given to the applicant only on the show cause notice against major punishment of dismissal and not at the stage of proving of charges. In the current case, the notice given in the disagreement note was on the factum of proving of the charges and there was no mention of any penalty at the point of time, which would have been a subsequent development. In fact, on the other hand, it clearly emerges that the applicant actually was not aggrieved by the punishment order dated 25.08.2010 at that point of time since he did not prefer any appeal against it. Therefore the current case is different to the cited case.

The applicant was also given an opportunity to represent against the order dated 31.10.2011 whereby the punishment was enhanced. His appeal dated 01.03.2012 was considered and finally, it was rejected by order dated 19.07.2013 since it was time barred by several months. Therefore, it clearly comes out that opportunity was given to the applicant to represent within prescribed time limits. His further revision dated 17.02.2014 to the Chief Postmaster General was also rejected as time barred, vide order dated 18.02.2015. Opportunity had already been given to the applicant against the disagreement note dated 13.10.2009 and the subsequent order of punishment dated 25.08.2010 against which he did not appeal. Subsequent representations/appeals/revisions were time barred and were, therefore, rejected on this ground. Further, in the cited case of Mr. Kailash Yadav the appeal had been preferred on time, therefore, it was considered accordingly. Therefore, the applicants' claim for parity cannot be upheld.

In light of the above, the O.A. has no merits and is dismissed. No order as to costs.