Full Judgment
2. The brief facts of the case are that the applicant was working as Section Supervisor in Assam Circle, Guwahati with Respondent 4. He was issued with charge memo dated 3.6.1992 on the allegations regarding certain vouchers for bills which were alleged to be irregularly done and against the departmental rules and procedures. These vouchers were in connection with the 5th All India Postal Lawn Tennis Tournament (hereinafter referred to as 'the Tennis Tournament') held at Guwahati from 28.2.1990 to 2.3.1990. The postal authorities constituted eight sub-committees for the function and admittedly, the applicant was selected as one of the members of the sub-committee. The applicant had submitted his written statement to the charge sheet on 11.6.1992 denying the charges. An enquiry was held and the Enquiry Officer submitted his report on 10.1.1994 and had found that the charges brought out against the applicant were proved excluding Vouchers 3.1, 30.8, 11.3 and 18.11. It is not denied that the applicant was given a copy of the Enquiry Officer's report before the Disciplinary Authority passed the removal order. The Disciplinary Authority has, after seeing the evidence on record and the proceedings of the oral enquiry and report of the Enquiry Officer come to the conclusion that the applicant had made certain irregular payments/purchases against an advance amount of Rs. 40,000/- taken by him, in connection with the Tennis Tournament and that he had failed to exercise vigilance in respect of expenditure from public fund as required under the rules while attached as disbursing officer with regard to all vouchers and accounts. He has also excluded the four vouchers mentioned above, which had been excluded by the Enquiry Officer. The Disciplinary Authority has passed the order of removal from service of the applicant. Against this order, the applicant filed an appeal taking a number of grounds. The Appellate Authority has broadly agreed with the findings of the Disciplinary Authority and has also dealt with the points raised by the applicant in appeal but has reduced the penalty to one of compulsory retirement, taking into account the past long services of the applicant. The review application against this order has also been rejected by the Reviewing Authority.
3. Mr. S. Sarma, learned Counsel for the applicant has taken a number of grounds to assail the aforesaid penalty order. One ground taken is that the cause of action for the charge sheet against the applicant arose outside the normal course of his office work and hence, it could not be levelled against him. Another ground taken by the applicant is that one Shri Kawaljit Singh was not called as a witness in the enquiry proceeding. It is also submitted that this person was not also charge sheeted even though he was also in a sub-committee constituted by the department to conduct the Tennis Tournament. He has submitted that by not examining Shri Kawaljit Singh as a witness, the applicant has been deprived of his right to cross-examine him, although he has stated that in the written statement dated 20.10.90 by Shri Kawaljit Singh, Tennis Coach, the same was supplied to him which is also evident from Annexure-III to the Disciplinary Authority's order. Shri Sarma, learned Counsel also submitted that the applicant was actually only responsible for an amount of Rs. 1800/-whereas the respondent has erroneously charged him in respect of Rs. 40,000/- for which he is not accountable.
The learned Counsel has also taken us through the various vouchers, other than the four mentioned above, and has submitted that if they are examined again, it would not be possible to arrive at a conclusion that the Disciplinary Authority or the Appellate Authority have dealt with the matter correctly, based on the facts of the case. He has submitted that apart from the applicant, the vouchers in question were also sent by others, including Shri Kawaljit Singh. He has also contended that the conclusion arrived at by the respondents is perverse and hence, the penalty order of compulsory retirement should be quashed and set aside.
According to him, the respondents did not have sufficient materials to arrive at the conclusions that they have done, although he has fairly submitted that it cannot be considered as a case of no evidence, atleast in respect of some of the vouchers relied upon by the respondents. He has also taken us through some of the evidence relating to certain vouchers e.g. 14.5 and 24.6 to show that the respondents could not have arrived at the conclusion they had. He has, therefore, prayed that the impugned penalty order may be quashed and set aside and a direction may also be given to the respondents to promote the applicant with retrospective effect with consequential service benefits.
4. We have heard Mr. B.S. Basumatary, learned Counsel for the respondents. We have also seen the reply filed by the respondents. The learned Counsel for the respondents has submitted that the charges levelled against the applicant have been proved in an enquiry proceeding which has been held in accordance with the relevant rules and instructions. They have also submitted that all reasonable opportunities have been given to the applicant to refute the charges.
Mr. Basumatary, learned Counsel has also submitted the original records for our perusal. The learned Counsel has submitted that the applicant has not given the correct facts regarding the amount which was entrusted to him as a member of the subcommittee with regard to the conduct of the Tennis Tournament. He has submitted that in Receipts 22, 23 and 24 of the relevant file, the applicant has received a total amount of Rs. 40,000/- towards the expenses and not just Rs. 1800/-.
Regarding the objection taken by the applicant's Counsel that the applicant was not expected to work outside his official work in the Tennis Tournament, he has submitted that this is not correct. The department, in the interest of the employees had arranged the Tennis Tournament and the applicant was one of the officials who was designated for certain jobs which he had also accepted. He has submitted that the applicant's contentions that he is, therefore, not expected to do other work cannot be accepted. He has also referred to certain other vouchers, e.g. Voucher 10.2, and submitted that Shri Sulabha Ch. Mahanta had been produced as a witness who had denied receipt of an amount of Rs. 1050/- but only received Rs. 150/- as umpiring fees. The learned Counsel has submitted that the Appellate Authority in his order has taken into account the grounds taken by the applicant in his appeal and there is no infirmity in this order.
Besides, he has also taken a lenient view. Regarding Shri Kawaljit Singh, the learned Counsel has submitted that while he was only a member, the applicant was Secretary of the committee and General Secretary of the Organising Committee and he, therefore, had the responsibility while dealing with the Government/public funds in making disbursements connected with the Tennis Tournament, which he had failed to discharge. He has submitted that as reasonable opportunity was given to the applicant to submit his defence before the authorities, there are no infirmities in the penalty orders. He has, therefore, prayed that the O.A. may be dismissed.
5. We have considered the pleadings, submissions made by the learned Counsel for the parties as well as the records submitted by the respondents very carefully.
6. The contention of the learned Counsel for the applicant that as he was not expected to do the work in connection with the Tennis Tournament and hence, the charge sheet and the penalty orders should be quashed and set aside is without any basis. From the record, it is seen that the applicant who was an employee of the Postal Department, had been nominated to the Sub-Committee for carrying out certain jobs in connection with the conduct of the Tennis Tournament, including the disbursement of amounts to various persons, like the Coaches, Umpires etc. against proper receipts. The allegation against him in the charge sheet relates to serious irregularities in payment, purchase and other matters connected with the sports event which has been organised by the respondents. The applicant was one of the persons connected with the holding of the Tennis Tournament in 1990. This ground taken by the applicant, therefore, fails and is rejected.
7. The plea taken by the learned Counsel, Mr. Sarma that the applicant was only responsible for an amount of Rs. 1800/- is also rejected because from the record, it is clear that the applicant had received a total amount of Rs. 40,000/- by three instalments in connection with the conduct of the Tennis Tournament. Hence, this contention of the applicant also fails.
8. Much emphasis was placed by Mr. Sarma, learned Counsel, that the applicant has been deprived of his right to cross examine Shri Kawaljit Singh, as he was not produced as a witness. He has submitted that the same contention had been raised by the applicant before the Appellate Authority that Shri Kawaljit Singh should have been produced. From the facts and circumstances of the case, we are also unable to agree with the applicant's contention that this has caused any prejudice to him.
It is not denied that the applicant has been given a reasonable opportunity to cross examine other witnesses, if he wanted to. The Appellate Authority in his very detailed and speaking order has also dealt with the points taken by the applicant in the appeal, which includes this issue also. The Appellate Authority has stated in Para 3.2.8 of his order that he has fairly examined this aspect of the matter and has discussed the evidence with regard to this issue. He has stated, inter alia, that the evidence of Shri Kawaljit Singh relates to Voucher 13.4 pertaining to payment of honorium to the Judges, Umpires and Referees. He has further stated that he has found that the charge in respect of Voucher 13.4 has not been conclusively proved, although the applicant had contravened certain financial rules. This, therefore, shows that the Appellate Authority has indeed applied his mind to the facts of the case, including that Shri Kawaljit Singh was not produced as a witness in the enquiry proceeding and in the circumstances of the case, it cannot be taken to have vitiated the entire disciplinary proceeding or caused any prejudice to him. As stated above, the Appellate Authority has, in his order dealt with this point and has also stated that the charge in respect of voucher 13.4 is not proved, in which payment to Shri Kawaljit Singh has been mentioned. Therefore, taking into account the facts and circumstances of the case, we are unable to agree with the contentions of Mr. Sarma, learned Counsel, that on this ground alone the penalty orders should be set aside.
9. Mr. Sarma, learned Counsel has relied on the judgment of the Supreme Court in Kuldeep Singh v. Commissioner of Police and Ors., 10. However, taking also into account the judgment of the Supreme Court in State Bank of Patiala and Ors. v. S.K. Sharma, JT 1996(3) SC 722, we are unable to agree with the submissions that the applicant has suffered any prejudice in this case, as he has been given reasonable opportunity of hearing, including cross examination of the other witnesses.
10. It is settled law in a catena of judgments of the Apex Court that in exercising the power of judicial review the Tribunal is not to interfere with the disciplinary matters and punishment orders as if it is exercising an appellate jurisdiction. The Tribunal can interfere with the finding of the Enquiry Officer or competent authorities only when they are arbitrary or utterly perverse. Union of India v. Parama Nanda, AIR 1989 SC 11 85; Union of India v. Upendra Singh, JT (1994) 1 SCC 655=1994(2) SLJ 77 (SC)=( 1994) 3 SCC 357; Govt. of Tamil Nadu v.Rajapandian, AIR(SC) and Shriji Vidyalaya and Anr. v. Patel Anil Kumar Lallubhai, JT (1998) 8 SC 460. Taking into account the facts and circumstances of the case, it cannot be stated that the conduct of the enquiry proceeding or the penalty order passed by the Appellate Authority are arbitrary or utterly perverse to justify any interference in the matter. There is no doubt that there has been some evidence which has been produced during the enquiry proceeding held against the applicant on the charges levelled against him which have been considered in detail by the Appellate Authority in his order, along with the grounds taken in the appeal by the applicant. The impugned order is a detailed and speaking order which has considered all aspects of the matter in great detail and is in accordance with the rules, instructions and in compliance with the principles of natural justice. In the circumstances, we find no good ground to set aside the Appellate Authority's order. It is also relevant to note that he has also taken a lenient view of the matter considering the long past services of the applicant while imposing the penalty of compulsory retirement instead of removal.
11. We have also considered the other submissions made by Mr. Sarma who has also very strenuously argued regarding the evidence produced before the competent authorities. As the Tribunal cannot re-appreciate the evidence to come to its own conclusion or substitute its own decision for that of the competent authority unless there are exceptional circumstances warranting it, and as no such grounds exist in this case, we find no justification to set aside the impugned penalty orders.
12. In the result, for the reason given above, we find no merits in this application. The O.A. accordingly, fails and is dismissed. No order as to costs.