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2014 DIGILAW 618 (JHR)

Rajni Kant Thakur v. Union of India

2014-05-12

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Judgment : R.Banumathi, C.J. The petitioner has preferred this writ petition, challenging the order dated 14.2.2013 passed in O.A No.218/2011(R) by the Central Administrative Tribunal, Circuit Bench, Ranchi, dismissing the said Original Application of the petitioner. 2. The petitioner was initially appointed on 21.9.1971 as Branch Post Master at Chanda Block. On the complaint of one Shri Pradip Kumar Singh, resident of village and post – Chanda, District – Godda, the petitioner was placed on put-off duty on 7.11.1988 due to involvement of the petitioner in a complaint of alleged fraudulent payment of Money Order of Bara Bazar Post Office M.O No.9224 dated 16.6.1988 for Rs.50/-. In the course of investigation of the petitioner’s past work, more cases of similar nature were noticed. The petitioner was proceeded against under Rule – 8 of P & T EDAs (Conduct & Service) Rules, 1964, vide the Supdt. Of Post Offices Bhagalpur Division Bhagalpur Memo No.F-3/3/88-89 dated 22.11.1988 with allegation of alleged misappropriation of 10 Money Orders for Rs.2900/-(Two thousand and nine hundred only) and alleged non-delivery of one Registered Letter to the addressee. On conclusion of enquiry, the petitioner was awarded with punishment of dismissal from service, vide order dated 30.4.1991. The petitioner thereafter preferred an appeal before the Director, Postal Services, who ultimately rejected the appeal, vide order dated 28.8.1993. Thereafter, the petitioner filed revision application before the Chief Postmaster General, Bihar Circle, Patna, who also rejected the same, vide order dated 3.7.1995. The petitioner then approached the CAT, Patna Bench, vide O.A No.526/1996, who, by its order dated 22.3.2001, dismissed the prayer of the petitioner. Thereafter, the petitioner filed a writ petition in this Court, W.P (S) No.4433/2002 and this Court, vide order dated 14.10.2003, dismissed the writ petition. 3. Being aggrieved by the order of dismissal of the writ petition, the petitioner moved Hon’ble Supreme Court in Civil Appeal No.1998/2006 and the Hon’ble Supreme Court, vide order dated 10.4.2006, disposed of the Civil Appeal, setting aside the order of the High Court and quashing the order of dismissal giving liberty to the authorities to conduct a fresh inquiry. There was a specific direction that the proceedings should be commenced within four months from the date of the order and must be completed as early as possible preferably within a period of three months. There was a specific direction that the proceedings should be commenced within four months from the date of the order and must be completed as early as possible preferably within a period of three months. While disposing of the appeal, Hon’ble Supreme Court observed that the petitioner was not given opportunity to cross-examine the witnesses, nor had any opportunity of representing his case before the Enquiry Officer been given and therefore, it cannot be said that the enquiry proceeding was held in accordance with the principles of natural justice. 4. Pursuant to the order of the Hon’ble Supreme Court, by letter dated 13.9.2006, fresh proceeding was initiated appointing an Enquiry Officer. The grievance of the petitioner is that the Enquiry Officer did not allow the request of the petitioner to postpone the enquiry fixed on 1.11.2006 and 2.11.2006 since the petitioner was in Delhi in connection with the treatment of his son. It is further alleged that his defence assistant was also not allowed to participate in the enquiry proceedings and prosecution witnesses were examined on 1.11.2006 and two more witnesses were examined on 2.11.2006 and fifteen documents were exhibited without affording any opportunity to the petitioner to cross-examine the witnesses. According to the petitioner, inspite of his representation, the case was closed without giving him an opportunity to examine or to produce evidence and the Enquiry Officer submitted his report on 14.2.2007. After receipt of the copy of enquiry report, on 16.3.2007 the petitioner filed another representation to the Disciplinary Authority alleging violation of principles of natural justice and of the direction of the Hon’ble Supreme Court. Without considering the points raised by the petitioner, the Disciplinary Authority awarded the punishment of dismissal from service, vide order dated 25.4.2007. 5. Being aggrieved by the order of dismissal from service, the petitioner preferred an appeal before the Director, Postal Services, Jharkhand Circle, Ranchi and the appellate authority, vide order dated 30.1.2008, dismissed the appeal. Seeking for quashing the order of dismissal dated 25.4.2007 and challenging the order of the appellate authority, the petitioner preferred O.A No.148/2009. Vide order dated 4.3.2010, the Tribunal allowed O.A No.148/2009 quashing the order passed by the appellate authority and directed the appellate authority to reconsider the appeal with a further direction that the exercise should be completed within two months from the date of receipt of that order. Vide order dated 4.3.2010, the Tribunal allowed O.A No.148/2009 quashing the order passed by the appellate authority and directed the appellate authority to reconsider the appeal with a further direction that the exercise should be completed within two months from the date of receipt of that order. On receipt of the order passed in O.A No.148/2009, the appellate authority, namely, the Director, Postal Services, Jharkhand Circle, Ranchi heard the matter afresh and disposed of the appeal on 18.10.2010 directing for initiation of de novo proceeding from the stage of the inquiry from where ex parte inquiry was started. Challenging the said order of the appellate authority dated 18.10.2010 and contending that the said order directing de novo proceeding is illegal, improper and without application of mind, the petitioner in the third round of litigation filed O.A No.218/2011. Observing that the order of the appellate authority dated 18.10.2010 does not suffer from any infirmity and that an opportunity has to be given to the petitioner to take part in the enquiry from the stage he was debarred of an opportunity of contesting the matter, vide order dated 14.2.2013, the Tribunal dismissed O.A No.218/2011, which is the subject-matter in this writ petition. 6. Learned Senior Counsel for the petitioner, Mrs.M.M.Pal, contended that the Tribunal dismissed the Original Application without application of mind and without considering the facts that inspite of specific direction of Hon’ble Supreme Court, the enquiry proceeding was not conducted in compliance with the principles of natural justice and in view of the repeated illegality on the part of the respondents, the Tribunal ought to have allowed the Original Application quashing the order of dismissal. It was further submitted that when the Apex Court issued specific direction to conduct fresh enquiry in accordance with law after affording opportunity to the petitioner, it was the statutory duty of the respondents to conduct the proceedings in accordance with the principles of natural justice. It was further submitted that the prayer for adjournment of the proceeding fixed on 1.11.2006 and 2.11.2006 was due to unavoidable circumstances but beyond the control of the petitioner (for the treatment of the petitioner’s son at Delhi) and the respondents purposely examined four witnesses on those dates, i.e. on 1.11.2006 and 2.11.2006 in absence of the petitioner and his defence assistant. The grievance of the petitioner is that even after repeated request, the witnesses were not recalled. The grievance of the petitioner is that even after repeated request, the witnesses were not recalled. Learned counsel further submitted that the appellate authority by the order dated 18.10.2010 ordered for de novo enquiry from the day of enquiry from where the ex parte proceeding commenced is not sustainable in law and without considering this aspect, the Tribunal erred in dismissed the Original Application. Learned counsel has relied upon the decisions in support of his contention:-2014 (2) JBCJ 150 (SC) [Ishwar Chandra Jayaswal v. Union of India & Ors.]; AIR 1996 SC 484 [B.C.Chaturvedi v. Union of India & Ano.] and Mundrika Prasad Singh v. Union of India & Ors. (Order dated 22.10.2008 passed in LPA No.30/2008). 7. On behalf of the respondents, it was submitted that sufficient opportunity was afforded to the petitioner and having regard to the gravity of the charges, the punishment of dismissal was imposed on the petitioner in accordance with law. It was further submitted that having regard to the grievance of the petitioner as to the non-compliance of the principles of natural justice, the appellate authority, vide order dated 18.10.2010, ordered for fresh enquiry with a view to affording an opportunity to the petitioner for contesting the matter and the Tribunal rightly dismissed the Original Application and the order does not call for any interference. 8. Pursuant to the order of the Hon’ble Supreme Court, disciplinary proceeding was initiated afresh appointing an Enquiry Officer. On 1.11.2006, two prosecution witnesses were examined and on 2.11.2006, two more witnesses were examined and fifteen documents were marked. According to the petitioner, in connection with the treatment of his son, he was in Delhi and therefore, he could not be present for the enquiry and also it is alleged that his defence assistant was also not allowed to participate in the enquiry. Since sufficient opportunity was not afforded to cross-examine the witnesses and to contest the matter, the appellate authority, vide order dated 18.10.2010, ordered for fresh enquiry. 9. It is well settled that natural justice requires that a party be given an opportunity of contesting the case by cross-examination of the witnesses called by the other party on relevant issues. This general principle of compliance of principles of natural justice is of relevance, particularly in view of the direction issued by the Hon’ble Supreme Court. 9. It is well settled that natural justice requires that a party be given an opportunity of contesting the case by cross-examination of the witnesses called by the other party on relevant issues. This general principle of compliance of principles of natural justice is of relevance, particularly in view of the direction issued by the Hon’ble Supreme Court. The grievance of the petitioner is that the prayer of the petitioner for adjournment for the purpose of cross-examination of the prosecution witnesses was refused, depriving him the opportunity of cross-examination of the witnesses. It is also to be noted that no further date was fixed for cross-examination of the witnesses. Reasonable opportunity was not afforded to the petitioner when the witnesses were examined. But failure to give an opportunity to cross-examine the witnesses will not necessarily vitiate the proceedings. In the facts and circumstances of the case, to comply with the specific direction of the Hon’ble Supreme Court, the appellate authority, by its order dated 18.10.2010, directed for initiation of de novo proceeding from the day of enquiry from where ex parte enquiry was started. 10. As pointed out by the Tribunal, since the matter was remanded for fresh enquiry, there is hardly any scope of prejudice being caused to the petitioner. By the order of de novo enquiry, the petitioner will get a chance of not only cross-examining the witnesses already examined by the Department, but also will get an opportunity of examining himself and other witnesses on his behalf, which shall be subject to cross-examination by the Department. We do not find any infirmity in the order of Tribunal calling for interference. In the result, the writ petition is dismissed.