Judgment:
ORAL ORDER
(As per Hon'ble Mr. R. Santhanam, Member (Admn))
This application is filed impugning the following orders:
(i) No.ST/21-7/3/06 dated 23.02.2006 of the Director of Postal Services, Hyderabad Region, Hyderabad;
(ii) No. F4-7/2004-2005, dated 3.7.2006 of the Superintendent of Post Offices, Nalgonda Division, Nalgonda;
(iii) No.ST/21-7/3/SR/NLG/08 dated 7.7.2008 of the Director of Postal Services, Hyderabad Region, Hyderabad; and
(iv) Memo. No. F4-7/04-05 dated 23.10.2008 of the Superintendent of Post Offices, Nalgonda Division, Nalgonda;
The proposal to punish the applicant with the order of 'removal from service' has been impugned to be illegal, without jurisdiction and authority.
2. The facts of the case are as follows:
The applicant was appointed as ED/ Mail Carrier/ Packer at Vanipakala Branch Post Office, under Narketpally Sub-Office in the year 1979. Consequent on abolition of the ED/ Sub-Office, he was posted as GDS/ Mail Deliverer at Chityal Sub-Office. When the post of GDS/ Branch Postmaster, Mandra B.O. fell vacant due to the death of the earlier incumbent, the applicant being one of the senior-most having put in 30 years of service, he was asked to officiate as Branch Postmaster by the 4th respondent by oral orders. While he was working as GDSBPM, he was issued a charge memo on 10.08.2005 under the provisions of Rule 10 of the GDS (Conduct and Employment) Rules alleging that while he was functioning as BPM, Mandra BO, he had accepted an amount of Rs.2400/- from different depositors in respect of RD accounts and made necessary entries in the pass books, but failed to incorporate the said transactions in the RD Journal and to credit the said amount in the BO Accounts and that he utilised the amount that he accepted from the depositors for his personal expenses. The total RD fraud came to the tune of Rs.2400/-. The applicant did not give any reply nor did he submit any representation. He was kept under off-duty from 10.03.2005 by SDI(P), Nalgonda North Sub-division by memo dated 10.03.2008. It was subsequently revoked vide memo dated 17.08.2005. Since the applicant did not give any reply, the 4th respondent passed orders on 30.08.2005/26.09.2005 on the charge memo issued against the applicant holding him guilty of the charges and debarring him from being considered for recruitment to Group 'D' post for a period of two years. Subsequently, the 3rd respondent vide memo No. ST/21-7/3/06 dated 23.02.2006 issued a show cause notice to the applicant proposing to revise the order of punishment under provisions of Rule 19(1) of GDS (C and E) Rules, 2001 as the punishment inflicted on the official was found to be not commensurate with the gravity of offence committed by him. On 3.7.2006, the 4th respondent without cancelling the earlier charge memo and the earlier punishment order, issued a fresh charge memo on the same set of facts and calling upon the applicant to give his explanation within ten days of the receipt of the memorandum. On 7.7.2008, the 3rd respondent issued a memorandum to the applicant proposing to enhance the punishment given by the disciplinary authority to that of removal after going through the records of enquiry and reviewing the case. The applicant submitted a reply on 24.7.2008 stating that the second charge sheet issued to him was unauthorised, illegal and invalid and enhancement of penalty was not warranted. He was given additional time of 10 days time for submission of representation in Memo. No. F4-7/04-05 dated 23.10.2008 issued by the 4th respondent. On 30.10.2008, the applicant submitted another representation asking for 10 more days to answer. On 12.11.2008, he straightaway approached this Tribunal and filed the present O.A challenging the proposal to punish him with 'removal' and obtained an order of status quo as on that date.
3. The respondents filed their reply statement stating that the revising authority had proposed to revise the punishment and issued a notice to the applicant on 23.02.2006 and also directed the office of the 4th respondent to send all records pertaining to the case and intimate the date of delivery of notice. He also directed the 4th respondent to follow the full gamut of the inquiry and also send all the records of the inquiry to issue final proceedings. Accordingly, a fresh charge sheet was issued on 3.7.2006. Sri R.Rama Krishna, Ex. ASPOs, Bhongir Sub Division and Sri K. Sreenivasa Rao, ASPOs, Bhongir Sub Division worked as IO and PO respectively in the case and Rule 10 inquiry was conducted and completed and the case was referred to RO for finalization of disciplinary case along with all connected documents vide R-4 office letter dated 28.4.2008. R-3 gave a notice to the applicant on 7.7.2008 to submit his defence representation on the proposed penalty and the time sought by the applicant for submission of defence representation was granted by RO. The applicant again sought time to submit his defence statement on 30.10.2008 which was also granted on 17.11.2008. In the meanwhile, the applicant had approached this Tribunal and also informed the R-4 that he could not submit his defence representation in view of the Tribunal's order dated 18.11.2008 directing to maintain status quo. The respondents further stated that the 3rd respondent is competent to act as revising authority to impose any of the penalties as specified in Rule 9 of GDS (Employment and Conduct) Rules, 2001. According to the respondents, any authority who is superior to the authority who passed the order of penalty at any time, may, on its own motion or otherwise, call for records of any inquiry and pass such order as it deems fit. According to the respondents, there is no irregularity in the procedure followed.
4. The applicant in his rejoinder has stated that an illegal order based on the incompetent charge sheet cannot be revised and the only option for the revising authority who has exercised his power suo moto was to strike down the punishment for the reasons that the charge sheet was issued by the appellate authority who is prohibited under Rul 45 of the P andT Manual Vol. III. According to him, the review notice is null and void. The applicant has claimed that the 4th respondent issued charge sheet in violation of Rule 45 of P and T Manual Vol. III. According to the applicant, for ED officials the power of appointing adhoc disciplinary authority is vested with Regional Postmaster General and the Regional Postmaster General did not appoint the 4th respondent herein as adhoc disciplinary authority and as such, he had no power to punish him as per the schedule and when he has no power to punish, the 3rd respondent has no power to revise.
5. Heard Mr. S. Ramakrishna Rao, learned counsel for the applicant and Mr. P. Brahma Reddy, learned Senior Panel Counsel for the respondents.
6. The issues that arise for consideration are :
(i) Whether the 4th respondent is the disciplinary authority competent to proceed against the applicant;
(ii) Whether the 3rd respondent is the revising authority;
(iii) Whether the orders of the 4th respondent and the 3rd respondent imposing punishment of debarring his promotion and proposing to remove the applicant from services respectively are sustainable in law; and
(iv) To what relief is the applicant entitled?
7. Issue No.(i): Learned counsel for the applicant contended that as per Rule 49 of the P and T Manual Vol. III in respect of CCS (CCA) Rules, 1965 and Schedule of Administrative Powers of Officers, disciplinary authority in respect of an official is to be determined with reference to his posting at the relevant stages of the disciplinary case and not with reference to his posting and status at the time of commission of the offence. Learned counsel for the applicant contended that the applicant is only GDS employee and the appointing authority in his case is only the Inspector of Post Offices/ Assistant Superintendent of Post Offices and the 4th respondent cannot act as the disciplinary authority. But, we find from the facts of the case that the applicant has been functioning as GDSBPM and the appointing authority for GDSBPM is the Superintendent of Post Offices. Even at the time of commission of the offence, the applicant was acting as GDSBPM and therefore, the 4th respondent is well within his rights to issue a charge sheet and act as the disciplinary authority. Therefore, we do not find anything irregular or illegal in the 4th respondent acting as the disciplinary authority in this case. Thus, the first issue is decided against the applicant.
8. Issue No.II: Since it is decided supra that the 4th respondent is the disciplinary authority, the next higher authority can function as the revising authority. In this case, the next higher authority is the Director of Postal Services and therefore, he is competent to act as the revising authority as per the provisions contained in GDS (Conduct and Employment) Rules 2001. Therefore, the second issue is also decided against the applicant.
9. Issue No.(iii):- It is seen from the facts of the case that the disciplinary authority i.e. the R-4 has issued a charge sheet dated 10.08.2005 and imposed punishment vide proceedings dated 30.08.2005/26.09.2005 in accordance with the procedure contained in Rule 10 of the GDS (Conduct and Employment) Rules 2001. But the revising authority i.e. R-3 on a review of the case has decided to enhance the punishment and as seen from the reply statement filed by the respondents, he had directed the R-4 to follow full gamut of the inquiry and to send all the records of the inquiry to him to issue final proceedings. Rule 10 of the GDS (Conduct and Employment) Rules, 2001 contains the following provision relating to penalty of dismissal or removal:
“10. Procedure for imposing a penalty.-
(1) No order imposing a penalty shall be passed except after-
(a) the Sevak is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; and
(b) such representation, if any, is taken into consideration by the Appointing Authority;
Provided that the penalty of dismissal or removal from employment shall not be imposed except after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges:
Provided further that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry.
(2) The record of proceedings shall include-
(i)a copy of the intimation to the Sevak of the proposal to take action against him;
(ii)a copy of the statement of allegations, along with a list of evidence in support thereof, communicated to him;
(iii)his representation, if any;
(iv)the records of the enquiry proceedings along with the enquiry report of the Appointing Authority or Enquiry Officer, if any, appointed in a case where a formal enquiry is necessary;
(v)the representation, if any, of the Sevak on the Inquiry Officer's report;
(vi)findings of the Appointing Authority in respect of the allegations, with reasons therefor; and
(vii)the order imposing the penalty.”
As per rule, if the revising authority was of the opinion that the offence was serious enough to warrant a penalty of dismissal or removal, if proved against the applicant, he should have asked the disciplinary authority i.e. the R-4 to conduct a fresh inquiry and pass appropriate orders in accordance with the procedure contained in GDS (Conduct and Employment) Rules. In this case, though he has asked the 4th respondent to conduct a fresh inquiry, he had asked him to send all the records to him to issue final proceedings. The revising authority has no power to issue proceedings on the basis of the inquiry report and only the disciplinary authority can do so as seen from para 45 of the Postal Manual Vol. III extracted below:
“A penalty can be imposed only by the prescribed punishing authority, and not by appellate authority or any authority higher than the appropriate punishing authority cannot exercise any concurrent original disciplinary jurisdiction..”
10. The disciplinary authority i.e. R-4 in this case should have cancelled his original order of punishment dated 30.08.2005/26.09.2005 and passed fresh orders after conducting inquiry as envisaged in Rule 10 of the GDS (Conduct and Employment) Rules, 2001. Instead of doing so, he had conducted the inquiry and remitted the entire proceedings to the revising authority who issued a notice to the applicant proposing to remove him from service. This procedure is not contemplated under the GDS (Conduct and Employment) Rules and therefore, it is not in accordance with law. Therefore, we consider it appropriate to remit the case to the disciplinary authority for cancellation of the order passed by him in proceedings dated 30.08.2005/ 26.09.2005 and to take further action on the inquiry report in accordance with the procedure prescribed under Rule 10 of GDS (Conduct and Employment) Rules, 2001 and without being prejudiced by the direction or opinion given by the revising authority.
11. In the result, O.A. is allowed setting aside the notice dated 7.7.2008 issued by the 3rd respondent viz., Director of Postal Services, Hyderabad Region, Hyderabad and remitting the matter to the disciplinary authority, 4th respondent, for cancellation of the order dated 30.08.2005/26.09.2005 and for passing fresh orders in accordance with law in the light of the observations made supra. It is made clear that we have not gone into the merits of the case. This order shall be complied with within three months from the date of receipt of this order.
12. There shall be no order as to costs.