1. The applicant who is working as Postal Assistant at Kheralu, has again approaches this Tribunal challenging the punishment imposed on him by the Disciplinary Authority (in short DA) and upheld by the Appellate Authority (in short AA). His case has a chequered history. He was served with a charge-sheet on dated 17/ 19.1.1994 leveling certain imputations of failing to forward a cash bag containing Rs. 15,000 to the Head Office and thereby causing cash loss of Rs. 15,000 to the Government. Simultaneously an F.I.R. was also lodged with the Police and a criminal case bearing No. 258 of 1994 was filed in the Magistrate Court. On his submitting the representation on the charges leveled against him, the DA vide its order dated 7.3.1994 imposed a penalty of recovery of Rs. 15,000 and withholding of one increment for thirty months. After unsuccessful appeal and review application, the applicant approached this Tribunal by filing OA/252/1997. This Tribunal vide its order dated 25.1.2002 quashed and set aside the orders passed by the DA. AA and Revisional Authority (in short RA) on its findings that the principals of natural justice were not observed while imposing the said penalty. The Tribunal, however, remitted the matter back to the DA to pass appropriate order in accordance with the rules and instructions.
Consequently, the DA after taking into consideration the representation of the applicant, passed another order on dated 7/12.8.2002 imposing a penalty of recovery of Rs. 15,000 from the pay of the applicant. This order also came to be challenged by the applicant before this Tribunal by way of filing OA/458/2002. Since the applicant had approached the Tribunal without first exhausting the remedy of appeal, the Tribunal vide its order dated 16.9.2002 directed the applicant to prefer an appeal before the AA within one month from the date of the order. The applicant thereupon preferred an appeal on dated 14.10.2002 and the AA while deciding the appeal vide its order dated 16.12.2002 remitted the matter back to the DA to provide a reasonable opportunity to the applicant by initiating de novo proceedings from the stage of considering the representation dated 20.2.02/8.3.02, observing guidelines contained in GOI instructions No. 1 and 2 below Rule 16 of CCS (CCA) Rules and pass appropriate orders. The DA thereafter appointed an Inquiry Officer (in short IO) and the IO after holding a regular inquiry into the charges leveled against the applicant, submitted his report on 10.11.2003 exonerating the applicant from the charges leveled against him. The DA, however, did not agree with the IO's report and his findings and vide its Note of disagreement dated 4.12.2003 asked the applicant to submit his representation on the points of disagreement. After the applicant submitted his representation, the DA vide its memo dated 29.12.2003 held that the charges leveled against the applicant were fully proved on the basis of evidence on record and imposed a penalty of reduction to five stages in the time scale of the pay of the applicant for a period of two years without cumulative effect and not adversely affecting his pension.
Aggrieved by this order the applicant preferred an appeal. His appeal has come to be rejected by the AA vide its order, dated 28.6.2004. In the meantime, in the criminal case pending before the JMFC Kheralu the applicant was acquitted by the Magistrate Court vide his order dated 20th January, 2004. The applicant had therefore preferred a review but the review of the applicant had also come to be rejected by the Reviewing Authority. He has therefore now again approached this Tribunal.
2. The applicant has vehemently contended that without any evidence proving the charges levelled against him and without considering the fact that the IO has exonerated him of the charges, the DA has without application of mind illegally imposed penalty on him. He has also contended that the AA had no jurisdiction to remit back the matter for de novo proceedings and it was not open for the 10 to hold de novo inquiry into the charges leveled against him. The 10 has, however, rightly exonerated him of the charges levelled against him on appreciation of the evidence before him and there was absolutely no reason for the DA not to agree with the findings of the 10. It is also contended that the DA has not given any reasons for his disagreement with the findings of the 10 and as such his disagreement is not justified at all. Even the Criminal Court has acquitted him of the charges and therefore DA had no jurisdiction to find him guilty and impose the penalty on him. He has approached this Tribunal for quashing and setting aside the order of penalty imposed by the DA and confirmed by the AA and the RA.3. The respondents in the written counter have defended the punishment imposed by the DA and confirmed by the AA as well as RA. According to them all opportunity was given to the applicant to defend himself in a regular inquiry though he was served with a charge-sheet under Rule 16 of the CCS (CCA) Rules. They have pointed out that the AA on finding that the applicant in his representation had asked for a regular inquiry into the charges, had remitted the matter back to the DA for a regular inquiry and pursuant to that remission of the matter, the DA had held a regular inquiry into the charges. The applicant was supplied all the documents and was given all opportunity to cross examine the witnesses. The DA only after giving him an opportunity to submit his representation on the Note of disagreement had finalised the inquiry and imposed a penalty on him. There was, therefore, no violation of the principles of natural justice and the penalty imposed on the applicant is not required to be interfered with. They have contended that it was always open to the DA to disagree with the findings of the Inquiry Officer and to arrive at its independent conclusion. The order of the DA can not be faulted on this ground. The penalty imposed on the applicant is also not excessive, unreasonable or harsh and as such it does not require any interference.
4. We have heard the learned Counsels of both the parties and duly considered the rival contentions. At our direction, Mrs. Malkan, the learned Counsel for the respondents has made available the departmental inquiry file and we have perused the same also.
5. It is pertinent to note that the applicant was served with charge sheet under Rule 16 of the CCS (CCA) Rules for minor penalty. It was alleged that due to applicant's negligence, in sending a bag containing Rs. 15,000 in cash, the department had sustained a loss of Rs. 15,000 and thereby he had failed to maintain absolute integrity and devotion to duty. It was also alleged that the weight of the cash bag was 860 grammes and the label of the same was also prepared by the applicant himself. The details of the remittance was also shown in the "R" Bag he had placed and got it sealed. Thereafter he had got closed "M" Bag for Kheralu by putting the said "R" Bag and ordinary mail for Kheralu in it. Simultaneously he had got prepared "R" bag for Mehsana RMS and closed it in "D" bag for Mehsana RMC along with ordinary mails. These both bags i.e. "M" bag Kheralu and "D" bag Mehsana were handed over to Hiraji Thakor EDA for onward transmission to Kheralu. "M" bag closed by Sudasana P.O. was received in sound condition by Kheralu. On opening, it was found that M Bag containing Rs. 15,000 was not there. Since both the bags were received in sound condition at Kheralu and Mehsana respectively, it was concluded that some mischief had been made and due to negligence of the applicant the bag must have been lost. The applicant had denied his involvement in the loss of bag containing Rs. 15,000 but could not give any satisfactory explanation for loss of the bag. In the first inquiry, the DA had found him guilty and ordered the recovery of Rs. 15,000 from him by way of penalty. The said order had come to be quashed by the Tribunal vide its order in OA/252/1997 and the matter was remanded to the DA to pass appropriate order after considering representation of the applicant. The DA had thereafter again passed the order of punishment on dated 13.8.2002 and in the appeal preferred by the applicant, the AA had on consideration that since the representation of the applicant was not duly considered by the DA and in the representation the applicant had requested for oral inquiry and had given some reasons in support thereof, had remitted the matter back to the DA for de novo proceedings from the stage of the submission of representation dated 20.2.2002/8.3.2002 observing guidelines contained in GOI Instruction 1 and 2 below Rule 16 of the CCS (CCA) Rules. Though the AA's order is questioned by the applicant, we find that there is no infirmity in the said order. The order dated 16th December, 2002 of the AA inter alia reads as under: On going through the penalty order, it is observed that the appellant was given an opportunity to submit representation.
However, in the said order, it is stated that no representation was received and orders were passed ex-parte. On the other hand, in Para 7 of the appeal, the appellant has pleaded that he had sent a representation dated 20.2.2002/8.3.2002 with a request to provide him certain documents but were not supplied. The appellant has sent a copy of his this representation with the appeal. However, it is found that the Disc. Authority, while submitting appeal, has not disputed receipt of representation by him and avoided to offer comments on this aspect. In Para 10 of the representation the appellant has requested for oral inquiry and in support, he has given reasons also. At this stage, I would not like to enter into the dispute as to whether the representation in question was actually sent by the appellant and received by the Disc. Authority or not. But with a view to provide him a reasonable opportunity to the appellant, without entering into the merit of the case, I am of the opinion that the case be remitted back to the Disc. Authority for de novo proceedings from the stage of considering the representation dated 30.2.02/8.3.02, observing guidelines contained in GOI Instructions No. 1 and 2 below Rule 16 of CCS (CCA) Rules and pass appropriate orders.
6. A plain reading of the above order clearly indicates that the AA was very much within his right to remit the matter back to the DA. It was submitted by the learned Counsel for the applicant that if the AA found the order to be perverse or violative of the provisions of the rule, he ought to have quashed and set aside the same rather than remitting the matter back to the DA. It is also submitted that no de novo proceedings could have been ordered by the AA and therefore, the order of the AA was not in consonance with the provisions of the rules. It is not possible to agree with the submissions made by the learned Counsel.
Apart from the question of the order not being in violation of any rules, we find that the applicant had accepted this order and participated in the inquiry held by the 10 pursuant to the DA directing a regular inquiry by appointing an Inquiry Officer. Once having accepted the order of the AA and participated in the regular inquiry, it was not open to the applicant to challenge the order of the AA. In any case, the provisions under Rule 16 in fact lend justification to this order. Rule 16(1) provides that subject to the provisions of Sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties other than those specified in Clause (i) to (iv) of Rule 11 shall be made except after: (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in Sub-rules (3) to (23) of Rule 14 in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary.
Further Sub-rule (1-A) of Rule 16 lays down that notwithstanding anything contained in Clause (b) of Sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under Clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in Sub-rule (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty.
Sub-rule (1) (a) as well as Sub-rule (1 -A) of Rule 16 clearly envisage the consideration of representation of the delinquent before imposing any penalty on him.
7. It is quite apparent from the order of the AA that the DA had failed to consider the representation of the applicant and in the representation itself, the applicant also had asked for a regular oral inquiry in to the imputations made against him. The AA was therefore clearly justified in remitting the matter back to the DA for holding regular inquiry after considering the representation dated 20.2.20O2/8.3.20O2 of the applicant. The Govt. of India Instructions No. 1 and 2 below Rule 16 contain the same guidelines of holding a regular inquiry if the delinquent seeks a regular inquiry and the charges levelled against him are grave. We therefore do not find any infirmity in the order of the AA. We further do not find any irregularity or illegality committed by the DA in appointing the 10 and the charges leveled against the applicant inquired into by the 10. The applicant has not made any grievance about the 10 not giving him an opportunity to cross examine the witnesses or inspecting the documents etc. In fact, we do not find any allegations of non observance of principles of natural justice by the 10 while conducting the inquiry.
The 10 has exonerated the applicant of all the charges. The DA has however, not agreed with the findings of the 10. While furnishing a copy of the inquiry report to the applicant, he had also furnished the note of disagreement and invited the representation from the applicant.
The DA has pointed out in its note of disagreement that as per the depositions of SW-1 to SW-5 'M' bag closed by Sudasana SO was received in sound condition and had found nothing doubtful. As per the depositions of B.B. Srimali SW1 contents of 'M' bag received from Sudasana were found missent. This shows that he had not put the cash bag properly in 'M' bag for Kheralu. As per the deposition of D.S.Darji the then Treasurer Kheralu and SW 5 it is clear that the cash bag was not received from 'M' Bag for Kheralu SO closed by Sudasana SO.This proves that he failed to place cash bag containing remittance of Rs. 15,000 for Kheralu in to 'R' Bag for Kheralu and this R-Bag should be placed in M-Bag for Kheralu SO. The note of disagreement of the DA clearly reveals that he had given reasons for not agreeing with the findings of the 10. His reasons were based on the evidence adduced in the inquiry. It was open to the applicant to point out that this evidence was not reliable. It was for the DA to appreciate the evidence and come to his independent conclusion. Merely because the 10 had appreciated the evidence favouring the applicant it cannot be said that same evidence could not have been re-appreciated by the DA and that there was no evidence proving guilt of the applicant adduced in the inquiry. Significantly in its order dated. 29.12.2003 the DA has given sufficient reason for not agreeing with the IO' s findings and we find that these reasons cannot be said to be perverse or imaginery. They are based on the evidence recorded in the inquiry against the applicant and therefore they cannot be interfered by the Tribunal. It is contended by the learned Counsel for the applicant that all the witnesses are supporting the case of the applicant and therefore the conclusion that the applicant is guilty was not possible at all. The DA in his order had observed that as per depositions of the said witnesses, the Bag was received in tact condition at Kheralu SO but the cash bag was not found with the M Bag which was closed by Sadasana SO. This proves that the party had failed to put the cash bag containing remittance of Rs. 15,000 into 'R' bag for Kheralu and he has made a loss of Rs. 15,000 to the Government.
8. We have perused the depositions of the witnesses and we find that evidence recorded by the IO clearly suggests that the M bag for Kheralu was sealed and labelled by the applicant and the said M Bag was found in sound condition when it was opened at Kheralu but on examination it was found that cash bag containing Rs. 15,000 was not there. Since it was applicant who was responsible for placing the M Bag in the R Bag and the evidence suggested that he had in fact labelled and sealed M Bag and the cash bag containing remittance of Rs. 15,000 was not found on opening the R Bag, the conclusion was inevitable that due to the negligence of the applicant the same must have been lost. The evidence required to prove was only the fact of the applicant's placing the M Bag in the R Bag for Kheralu and that there is ample evidence on record to show that it was applicant who had labelled and sealed both the bags. In fact, it was his duty to label and seal them. Hence when the cash Bag containing Rs. 15,000 was not found at its destination, the conclusion of DA, regarding the charges against the applicant are proved, cannot be said to be perverse or not based on the evidence on record.
9. It is a settled legal position that the jurisdiction of this Tribunal to interfere with the disciplinary matters cannot be equated with the appellate jurisdiction and we cannot interfere with the findings of the Inquiry Officer or Disciplinary Authority where these findings are not arbitrary or perverse or not based on no evidence. If there has been any inquiry conducted as per the rules and in accordance with the principles of natural justice, what punishment would meet the ends of justice is the matter exclusively within the jurisdiction of the Competent Authority. If the penalty can lawfully be imposed and is imposed on proved misconduct the Tribunal has no power to substitute its own discretion for that of the authority. In case of B.C.Chaturvedi v. Union of India as well as in the case of High Court of Judicature Bombay v. Shri Shashikant S. Patil , the Supreme Court has laid down that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter to be canvassed before the High Court under Article 226. It is further laid down that the decision of the Disciplinary Authority cannot be interfered with if there is no violation of natural justice or statutory regulations.
10. In the instant case, there are no allegations of the inquiry being vitiated on account of the breach of the principles of nature justice or on account of the violation of any statutory rules. The order of the Disciplinary Authority is challenged only on the ground that there was no sufficient evidence either before the Inquiry Officer or before the Disciplinary Authority to conclude that the applicant was guilty of the charges levelled against him. However, as observed earlier, we have found that there was sufficient evidence before the Inquiry Officer and the Disciplinary Authority to point to the guilt of the applicant. The applicant in fact has no where denied that he was on duty on that day and that it was his duty to place the M Bag containing money for despatch to Kheralu and that in fact he had labelled and sealed those bags. The conclusion is therefore inevitable that when this bag was not found at Kheralu though the R Bag was in a sound condition, the applicant must have been negligent in placing the M Bag in the R Bag.
We therefore do not find any illegality or irregularity in the inquiry proceedings which would require our interference. The order of the DA is quite elaborate and reasonable one and the same is based on the evidence on record. In the circumstances, we see no reason to take a different view than the one taken by the DA.11. For the reasons discussed above, we do not find any merit in this O.A. and are of the considered opinion that the O.A. deserves to be rejected. Accordingly, the O.A. is rejected with no orders as to the costs.