| SooperKanoon Citation | sooperkanoon.com/54599 |
| Court | Central Administrative Tribunal CAT Allahabad |
| Decided On | Nov-10-2004 |
| Judge | S S Vice, T A D.R. |
| Reported in | (2005)(2)SLJ389CAT |
| Appellant | Kailash Singh |
| Respondent | Union of India (Uoi) and ors. |
2. Shorn of superfluities, the relevant facts to determine the controversy is that the applicant, at the relevant time, was working as Extra Department Branch Post Master (E.D.B.P.M.) at Branch Post Office, Bankata Amethia, Deoria, Disciplinary proceeding was initiated against him under the Rule 17 of the Extra Departmental Agent (Conduct & Service) Rules, 1964 (hereinafter called the 1964 Rules). He was served with Memorandum of charges by letter dated 17.07.98 (Annexure 9), Articles of charges are as under- ;g vkjksfir gS fd Jh dSyk'k flag vfr-fo- 'kk[kk iksLVekLVj cudVk vesfB;k fnukad 16&9&1997 ls vfr- fo- 'kk[kk iks-ek- ds in ij dk;Zjr gksrs gq, fnukad 12&6&1998 dks dk;Z ls vuqifLFkr jgs rFkk fnukad 24&6&1998 'kk[kk iksLV vkfQl ds fu/kkafjr dk;Zdky 08%00 cts ls 08%30 rFkk 11%30 ls 14%00 cts rd vuqifLFkr jgs A fu/kkZfjr dk;Zdky ds ctk; 14%30 cts mifLFkr gksdj 'kk[kk Mkd?kj fu;ekoyh ds fu;e 5 o 'kk[kk iks-ek- dks ;s dk;Z ugh djus pkfg, 'kh"kZd ds kad 1 ds izfo/kkuksa dk ikyu ugh fd;k A rnuqlkj vfr-fo- ,tsUV vkpj.k ,oa lsok fu;ekoyh 1964 ds fu;e&17 dk mYya?ku fd;k A mDr Jh dSyk'k flag mDr vof/k ls mDr in ij dk;Zjr gksrs gq, bl dk;kZy; ds ifjln fujh{kd Jh LokxhukFk dks fnukad 13&6&1998 o 24&6&1998 dks tkap gsrq 'kk[kk Mkd?kj ds vfHkys[kks dks miYkC/k djkus ls budkj dj tkap esa lg;ksx ugha fd;k A vr% ;g vkjksfir gS fd mDr Jh dSyk'k flag vfHkys[kks dks gLrkUrfjr djus ls budkj dj vfr- fo- ,ts.V vkpj.k ,o lsok fu;ekoyh 1964 ds fu;e&17 ds izkfo/kkuks dk mYya?ku fd;k A ;g vkjksfir gS fd mDr Jh dSyk'k flag mDr vof/k ls mDr in ij dk;Zjr gksrs gw, fnukad 18&11&1997 ls 10&6&1998 (sic) rd izR;sd dk;Z fnol dks ns;rkvksa dk iq.kZ fooj.k ,oa muds Hkqxrku u gksus ds dkj.k nSfud ys[kk esa ugh QthZ ns;rk, fn[kkdj (sic) 'kk[kk Mkd?kj fu;ekoyh ds fu;e 1772 izkfo/kkuks dk ikyu ugh fd;k A rnuqlkj vfr-fo- ,ts.V vkpj.k ,oa lsok fu;ekoyh 1964 ds fu;e 17 ds izkfo/kkuksa dk mya?ku fd;k A mDr Jh dSyk'k flag mDr vof/k esa mDr in ij dk;Zjr gksrs gq, fnukad 18&11&1997 ls 13&4&1998 rd dh vof/k esa udnh miyC/k gksrs gq, Hkh /kukns'kksa ds Hkqxrku djus@djokus esa dkQh foyEc fd;k rFkk nSfud ys[kk ls Hkqxrku ugh gksus dk dkj.k ugh fy[kdj vuko';d udnh jksduk fn[kkdj 'kk[kk Mkd?kj fu;e iqLrd ds fu;e 106] 107] 109 ds izkfo/kkuksa dk ikyu ugh fd;k A rnuqlkj vfrfjDr foHkkxh; ,ts.V vkpj.k ,oa lsok fu;ekoyh 1964 ds fu;e 17 ds izkfo/kkuks dk mya?ku fd;k A 3. The applicant denied the charges by letter dated 27.07.98. On denial of charges by the applicant, the Enquiry proceeding was started and completion of the enquiry, the Enquiry Officer submitted his report to the Disciplinary Authority on 19.12.1998 (Annexure 10-124-126). The Enquiry Officer held that out of the four charges, only charge No. 3 was fully proved and charge Nos. 1, 2 & 4 were partly proved. The applicant was served with the enquiry report and was asked to make representation/submissions against it by a letter dated 24.12.1998 (Annexure 11). He submitted his reply by a letter dated 24.12.1998 (Annexure 12). The Disciplinary Authority, after taking into account the evidence on record, the report of the Enquiry Officer and the representation of the applicant passed a detailed order imposing upon him the penalty of dismissal from service by its order dated 21.01.1999 and the Appellate Authority rejected his appeal by his order dated 18.8.99 and both these orders have been challenged by this O.A.4. The applicant has assailed the impugned order on various grounds mentioned in para 5 and its sub paragraphs of the O.A. The main grounds, inter alia, are as under:- (i) Non supply of material documents even after the persistent demand.
(ii) Non-consideration of the points/objections by the Disciplinary Authority raised by the applicant in his representation.
(iii) Non application of mind by the Appellate Authority in rejecting the appeal, (iv) Delayed distribution of money order without any public complaint could not be proved in enquiry proceedings.
(v) Admission of complaint Inspector that excess money was sent to the Branch Post Office without demand from E.D.B.P.M. falsify the charge that the applicant retained excess money for misusing the same for his personal gains and (vi) The order of dismissal from service is highly excessive and disproportionate to misconduct.
5. The respondents, on the other hand, have resisted the contentions of the applicant by filing a detailed counter affidavit. They have pleaded that all the documentioned in charge-sheet were made available to the applicant. In support of this contention, a copy of the Daily Order Sheet No. 3 dated 28.9.98 of the enquiry proceeding has been attached as Annexure CA 2 of the counter. They have urged that the punishment order and the Appellate order was passed after proper self direction of points raised by the applicant in his representation and memo of appeal. They have further argued that detention of excess money was proved during the enquiry by documentary evidence. The contention of the applicant that excess money was sent to the post office without demand, to trap him on the wrong foot, has been resisted by the respondents that in that case the applicant could have returned the same and should have brought the irregularity to the notice of higher authority which he did not do. They have finally pleaded that the punishment awarded in quite commensurate with the lapses committed by the applicant and the order does not suffer from any illegality or irregularity and are in accordance with the rules. Hence the O.A.deserves to be dismissed.
6. We have carefully heard the rival contentions of the Counsel for either side and perused the pleadings.
7. During the course of argument, the Counsel for the applicant emphasised almost the same facts and legal provisions which had been raised in pleading of the applicant. It may be noticed that those issues have been wholly contested by the respondents which find place in para 5 above. However, the learned Counsel has taken up the issue of non-payment of subsistence allowance during the course when the applicant was put off duty. He has argued that the Supreme Court has in a series of decisions have held that it is a constitutional right and denial of subsistence allowance causes great prejudice the employee. In order to sustain his contention, he has placed reliance on the following judgments:-Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 619 : 1999(3) SLJ 152.
(ii) P.C. Chaturvedi v. U.P. State Textile Corp. Ltd., Kanpur, (2002) 1 UPLBEC 84.Ghanshyam Das Srivastava v. State of Madhya Pradesh, .Jagdamba Prasad Shukla v. State of U.P., In the cases cited supra by the Counsel for the applicant, it is true that the Supreme Court had held that non-payment of subsistence allowance can stand in his way of his constitutional safeguards provided under Articles 21 and 311(2) of the Constitution. The Apex Court's decision can not assist the applicant in view of the fact situation of his case. Firstly, he has made no request for the same. It is well know that he has to demand the same by following certain procedure and he has to certify that he has no source of income except the salary and he has not got himself employed and where. Secondly it is clear from the nature of his employment as E.D.B.P.M. in a post office of his village that he cannot be said to be dependent on his salary. Thirdly, there is no specific pleading pointing out that non-payment of subsistence allowance has caused any prejudice to him and hence he cannot be allowed raise this issue on the occassion of final hearing. He fails on this score.
8. That Counsel for the applicant has laid great emphasis that non-supply of document has vitiated the entire enquiry proceedings. He has placed reliance on the judgment of the Supreme Court in the case of State of U.P. v. Shatrughan Lal, . The facts involved in Shatrughan Lal's case are distinguishable from the case in hand and it does not assist the applicant. The respondent has, on the other hand, resisted the claim and filed a copy of order sheet of the enquiry proceeding to contend that he has been supplied all necessary relevant document. We find the force and substance in the pleading of the respondent. The Counsel for the respondent has not been able to demonstrate as to how non-supply of the same has caused any prejudice to him and stood in his way of effective defence during the enquiry. We get support for our view from the decision of the Supreme Court in (a) Chandrama Tewari v. U.O.I., (b) State of Tamil Nadu v. Thira K.V. Perumal, andGovernment and Ors. v. A.C.J. Britto, , wherein it was held that it was not necessary to supply every document asked for rather the obligation was only to supply material and relevant documents only. Thus, the enquiry proceedings does not appear to have been vitiated on this Court, and the contention of the Counsel for the applicant is negatived.
9. The last submission of the applicant's Counsel is with regard to the imposition of extreme penalty of dismissal from service which is grossly disproportionate to the misconduct proved and he has placed heavy reliance on the judgment of the Apex Court in the case of Kailash Nath Gupta v. Enquiry Officer, 2003 AIR SCW 1813. The Apex Court in K.N. Gupta's case (supra) after elaborately reviewing the case law on the question of quantum of punishment has held in para 11 as under- "In the background or what has been stated above, one thing is clear that power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of which have some bearing on the quantum of punishment, Certainly the Court can direct reconsideration or in an appropriate case to shorten the litigation, indicate the punishment to be awarded." In the fact situation of the Gupta's case (supra) the Apex Court found that non compliance of certain procedure resulted in loss to the bank which was quantified at about Rs. 45,000. The Court further found that there was been no other complaint/charge of misconduct against the appellant except the subject matter of disciplinary enquiry leading to dismissal from service. The Court laid down the following proposition of law:- "(i) Interfere with the quantum punishment is extremely limited.
Quantum of punishment can be subject matter of reconsideration by the Authority or the Court itself in an appropriate case to shorten the litigation; (ii) Factors relevant for deciding the issue of quantum of punishment will be (i) gravity of the offence and (ii) the previous antecedent of the employee in question, and (iii) In case of procedural irregularities, extreme penalty of dismissal from service is not warranted.
10. The applicant's Counsel, in view of the law laid down by the Apex Court in the above case, has strongly pleaded that the case in hand is squarely covered by the ratio of Gupta's case (supra). He even went a step further to contend that the Court in that case even suggested the recovery of money from the appellant for the loss caused to the bank.
He has submitted that the applicant has not caused any loss to the post office. It is also not the case of the respondent that he indulged in any embezzlement of funds of the post office. Mere detention of some money in excess of requirement which was sent to the post office without demand and from the applicant does neither infringes, any rule not cause any loss to the post office. In view of law laid down by the Court, the O.A. deserves to be allowed.
11. In order to better appreciate the issue of proportionality of punishment it would be fruitful to go through some more decisions of the Apex Court to find out whether there are some more grounds/factors which might have weighed the Court to decide the quantum of the punishment. Reference may be made to the case of Ranjit Thakur v. Union of India . In that case, after finding the appellant guilty in Court martial, he was dismissed from service and a sentence of imprisonment was also imposed as permitted by Army Act. While quashing the said punishment on the ground that it was 'strikingly disproportinate', the Apex Court, in para 25 observed thus : "25....The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concert of judicial review, would ensure that even on an aspect which is otherwise, within the exclusive province of the Court martial, if the decision of the Court even as to sentence is an autorageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." We may refer to the case of State of U.P. v. Jaikaran Singh, , the Supreme Court has taken into account the number of years one has served the organisation. The Court held as under :- "...Having regard to the facts and circumstances of the present case and also taking into account the fact that the respondent had served the appellant organisation for about more than 12 years, we think the ends of justice would be met if the order of dismissal is altered to one of compulsory retirement. Accordingly, this appeal is allowed to the extent indicated."Union of India v.P.C. Chaturvedi, "...If the punishment imposed by the Disciplinary Authority the Appellate Authority shocks the conscience the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exeptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 12. A careful perusal and close examination of the law laid down by the aforesaid decisions of the Apex Court would indicate the following principles/ratio.
(i) Interference with the quantum of punishment (K.N. Gupta-supra) is extremely limited and it should be remitted for reconsideration.
(ii) In exceptional and rare cases, the Court can impose appropriate punishment with cogent reasons (P.C. Chaturvedi-supra).
(iii) The punishment, if strikingly disproportionate to the offence, would not be immune from correction (Ranjit Thakur-supra).
(iv) Long years of service of the delinquent employee (Jaikaran Singh- supra).
(v) Gravity of the offence and previous antecedent of the employee (K.N. Gupta-supra).
(vi) In cast of procedural irregularities, extreme penalty of dismissal from service is not warranted (K.N. Gupta-supra).
13. Applying the above principles in the present case we find in the first place that out of the four charges, only one was proved fully which was relating to procedural nature and the applicant failed to fill in the proper column the payment which were to be made. Secondly, the other charges which were partly proved was that he could open the post office two hours late on a single day. It cannot be said to be very serious nature. Thirdly, the detention of some excess money which was sent to his post office without demand from him caused no loss to the Post Office. Even for this, his allegation that it is prompted by bias of the SDI who manipulated despatch of excess money has not been rebutted and the respondents have simply stated that this could have been returned by the applicant. To this applicant has stated that non-availability of cash bag stood in his way of returning the excess money. This has not been denied by the respondents. Fourthly, the charge of delayed distribution of money order could not be fully proved and there was no public complaint. The respondents have failed to quantify the delay. Finally, the charges relating to refusal to hand over certain official paper to Complaint Inspector on oral demand does not constitute a serious offence to warrant extreme penalty of dismissal from service. Keeping in view the nature of offence, we are of the opinion that the O.A. is bound to succeed as the punishment is shockingly disproportionate to the offence proved.
14. In view of the above reasons and discussions made, we think the ends of justice would be met, if the order of dismissal is substituted by that of compulsory retirement and the O.A. is allowed. The impugned order stand modified to the extent indicated above and the applicant would be entitled to consequential retiral benefits. The respondents are directed to take action within a period of three months from the date of receipt of a copy of this order.