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2016 DIGILAW 598 (MP)

Hemar Singh Parmar v. Union of India

2016-07-25

P.K.JAISWAL, VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. Petitioner has filed the present petition being aggrieved by order dated 20.03.2015 passed in Original Application No.877/2013 by the Central Administrative Tribunal, Jabalpur, circuit sitting at Indore, by which his original application has been dismissed. Facts of case are as under - 1. Petitioner was appointed as Postal Assistant at Dhar (MP) on 10.07.1996. Thereafter, he was transferred to Post Office at Dewas (MP). While working as Postal Assistant in Dewas BNP, a charge-sheet was issued to him on 20.02.2009, alleging that he received an amount of Rs. 2,97,000/- from the depositor-Hemar Singh Parmar to open a new MIS (Monthly Income Scheme) account in his name, wife's name and his daughter's name on 27.03.2008, but neither he deposited the amount nor he opened the new accounts on the said date. Thereafter, he opened the four MIS Account on 12.09.2008 and deposited the amount of Rs. 1,98,000/- and issued pass-book. He has not deposited the balance amount of Rs. 99,000/- till 16.09.2008. A charge-sheet was issued against him under Rule 14 of Central Civil Services (CCA) Rules, 1965 for the major penalty. Vide representation dated 06.03.2009, the petitioner denied the charges and requested for holding regular departmental enquiry. 2. Shri M.S. Malviya, Retired Assistant Director (Staff) was appointed as Inquiry Officer to conduct the departmental enquiry against the petitioner. The department appointed Shri Omprakash Chouhan as Presenting Officer. In support of charges, three witnesses were suggested namely (i) Shri M.L. Verma, Assistant Superintendent, Dewas Sub-Division (ii) Vishram Ram Kashyap (Complainant) and (iii) Smt. Geeta Agrawal, Agent. During the enquiry, the Presenting Officer has examined the two witnesses namely Shri M.L. Verma and Shri Vishram Ram Kashyap. That Smt. Geeta Agrawal was called to appear before the Inquiry Officer on 10.09.2009, 11.09.2009 and 15.09.2009 but she did not appear in the said enquiry. On 10.09.2009, her husband appeared and stated that she does not want to say anything and earlier statement given by her is correct. Accordingly, the Presenting Officer has dropped the evidence of Smt. Geeta Agrawal. In the enquiry, the prosecution got examined 24 documents as Exhibit-P/1 to Exhibit-P/24. In defense, the petitioner/delinquent did not examine any witness or himself but has produced eight documents as Exhibit-D/1 to Exhibit-D/8. Accordingly, the Presenting Officer has dropped the evidence of Smt. Geeta Agrawal. In the enquiry, the prosecution got examined 24 documents as Exhibit-P/1 to Exhibit-P/24. In defense, the petitioner/delinquent did not examine any witness or himself but has produced eight documents as Exhibit-D/1 to Exhibit-D/8. On the basis of enquiry and evidence on record, the Inquiry Officer has submitted its report on 10.09.2009 with the opinion that the charges against the petitioner are proved. 3. On the basis of enquiry report, the disciplinary authority has supplied the copy of enquiry report to the petitioner seeking explanation from him within fifteen days. The petitioner submitted the objection to the inquiry report on 27.11.2009. The disciplinary authority vide order dated 30.12.2009 has awarded the punishment of removal from service to the petitioner. 4. Being aggrieved by the punishment order, the petitioner had preferred an appeal. The appellate authority vide order dated 30.03.2010 has dismissed the appeal. Thereafter, the petitioner preferred the revision and vide order dated 15.05.2003, the revision was also dismissed. 5. Being aggrieved by orders of punishment, appellate authority as well as revisional authority, the petitioner had preferred an original application under Section 19 of the Administrative Tribunal Act, 1985 before the Central Administrative Tribunal, Jabalpur. After notice, the respondents filed the reply in which punishment was justified stating that the petitioner was issued charge-sheet on a compliant made by Shri Vishram Ram Kashyap (complainant) and the petitioner himself has admitted his misconduct by depositing the balance amount of Rs. 99,000/- in the VCR on 16.09.2008. The learned Tribunal on the basis of aforesaid vide order dated 20.03.2015 has dismissed the original application filed by the applicant placing reliance of the letter dated 16.09.2008, a finding has been recorded that the departmental enquiry has been conducted after observing the principles of natural justice and after affording full opportunity of hearing to the applicant. 6. Being aggrieved by the order of learned Tribunal dated 20.03.2015, the present writ petition was filed by the petitioner under Article 227 of the Constitution of India. 7. Shri R.K. Shukla, learned counsel appearing on behalf of the petitioner submits that the sole question is under consideration before the learned Tribunal and as well before this Hon'ble High Court. 6. Being aggrieved by the order of learned Tribunal dated 20.03.2015, the present writ petition was filed by the petitioner under Article 227 of the Constitution of India. 7. Shri R.K. Shukla, learned counsel appearing on behalf of the petitioner submits that the sole question is under consideration before the learned Tribunal and as well before this Hon'ble High Court. Whether the statement of Geeta Agrawal, Savings Bank Agent, which was recorded during the course of preliminary inquiry could have been relied by the Inquiry Officer without giving opportunity to the applicant to cross-examine her, "if that be so", then the entire enquiry vitiates and the punishment order is liable to be set-aside. In support of the question raised in this petition, Shri R.K. Shukla, learned counsel for the petitioner submits that the allegations against the petitioner are that he directly received the amount from the complainant to deposit in the account but he did not deposit the amount in the account for a period of six months and thereafter he deposited only Rs. 1,98,000/-. The defense of the petitioner before the Inquiry Officer was that the amount was not given to him by the complainant on 27.03.2008 but he received the said amount on 12.09.2008 from the Savings Bank Agent-Smt. Geeta Agrawal and he issued receipts and pass-book on the same day. In all the receipts, there is a seal and signature of Smt. Geeta Agrawal, as the commission of the deposit was also paid to Smt. Geeta Agrawal. The complainant has not produced any material either by way of documentary or oral evidence, that he gave the amount of Rs. 2,97,000/- to the petitioner on 27.03.2008, therefore, the Inquiry Officer has wrongly recorded the findings against the petitioner in absence of evidence of Smt. Geeta Agrawal, Agent, who was crucial witness in the enquiry. 8. Per Contra, Shri Deepak Rawal, learned Assistant Solicitor General appearing for the respondents-Union of India submits that on the basis of statement of complainant-Vishram Ram Kashyap and Shri M.L. Verma and the documents produced in the enquiry are sufficient to establish the misconduct of the applicant. Being a Government employee, he had misappropriated the funds and later on, he himself deposited the balance amount of Rs. 99,000/-, therefore, the evidence and cross-examination of Smt. Geeta Agrawal is immaterial and no prejudice has been caused to the petitioner. Being a Government employee, he had misappropriated the funds and later on, he himself deposited the balance amount of Rs. 99,000/-, therefore, the evidence and cross-examination of Smt. Geeta Agrawal is immaterial and no prejudice has been caused to the petitioner. The order of punishment is justified and not liable to be interfered. In the rejoinder, Shri R.K. Shukla, learned counsel for the petitioner submits that the petitioner had rendered twelve years of unblemished and blotless service and for the sole conduct, the punishment of removal from service is harsh and highly excessive and it is disproportionate to the nature of allegation. 9. We have heard learned counsel for both the parties. 10. That, the complainant-Vishram Ram Kashyap has made a written complaint to the respondent that on 27.03.2008 he went to the post-office for opening of an account under Monthly Income Scheme (MIS) with an amount of Rs. 2,97,000/-. Shriman Postmaster Sahab has given him six forms for opening of the accounts which he filled and handed over to the Postmaster Sahab and when he demanded the passbook he said that the same is not available today and later on he will issue the same. He issued me a receipt, thereafter he is demanding the passbook since last six months but the Postmaster Saheb has not issued the same. Finally, he issued me the passbook on 01.09.2008 which is incomplete. On the basis of the complaint, a charge-sheet was issued to the petitioner alleging that he directly received the amount from the depositor and while working as Sub-Postmaster accepted the amount of Rs. 2,97,000/- on 27.03.2008, but issued the four pass-books on 12.09.2008 of amount of Rs. 1,98,000/-. Later on, 16.09.2008, he deposited the balance amount of Rs. 99,000/-. Thereafter, in collusion with the agent he created evidence that to the effect that the amount received through the Agent on 12.09.2008 and the commission was paid to her. In support of the charge-sheet, the department has proposed to examine three witnesses namely M.L. Verma (Assistant Superintendent), Post Office-Dewas, Complainant-Vishram Ram Kashyap and Smt. Geeta Agrawal-Savings Bank Agent. 99,000/-. Thereafter, in collusion with the agent he created evidence that to the effect that the amount received through the Agent on 12.09.2008 and the commission was paid to her. In support of the charge-sheet, the department has proposed to examine three witnesses namely M.L. Verma (Assistant Superintendent), Post Office-Dewas, Complainant-Vishram Ram Kashyap and Smt. Geeta Agrawal-Savings Bank Agent. The defense of the petitioner was that the entire amount was received by the Agent-Smt. Geeta Agrawal and she handed over the same to the petitioner on 12.09.2008 and accordingly he opened the MIS account and issued the passbook and commission was paid to her which is evident from the seal and signatures over the receipt. 11. That the Inquiry Officer in his report has stated that Smt. Geeta Agrawal has recorded her statement and in the preliminary inquiry on 20.09.2008, the said statement has been proved by M.L. Verma (Assistant Superintendent), Post-Office, Dewas (PW-1). The finding of collusion between the petitioner and the agent was also recorded. 12. That, in the entire incident which took place between 27.03.2008 to 12.09.2008, the role of Smt. Geeta Agrawal-Savings Bank Agent is very important. The petitioner took specific defense that Smt. Geeta Agrawal has acted as an agent between the depositor and the petitioner for which commission amount was also paid to her. Therefore, in our considered opinion she is important witness in departmental enquiry against petitioner and could not have been dropped by the department. She was at the relevant point of time was working as Agent in the post office, therefore, her presence could have been secured by the Department. The department has not produced any documents to the effect as to what action has been taken against Smt. Geeta Agrawal who was working as Agent at the relevant time and she refused to appear before the Inquiry Officer. 13. That, the Hon'ble Supreme Court in the case of Kuldeep Singh v. Commissioner of Police and Others reported in (1999) 2 SCC 10 . That in the departmental enquiry the essential component is the reasonable opportunity and principles of natural justice. The delinquent must be given reasonable opportunity to cross-examine the witnesses if their statements are relied upon by the Inquiry Officer. The disciplinary proceedings are of a quasi-judicial character, therefore, there has to be a conclusion on the basis of some evidence. That in the departmental enquiry the essential component is the reasonable opportunity and principles of natural justice. The delinquent must be given reasonable opportunity to cross-examine the witnesses if their statements are relied upon by the Inquiry Officer. The disciplinary proceedings are of a quasi-judicial character, therefore, there has to be a conclusion on the basis of some evidence. If there is no evidence to sustain the charge against the delinquent, he cannot be held guilty and the findings would be perverse. Para-27 of the judgment is reproduced below: 27. This rule which lays down the procedure to be followed in the departmental enquiry itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to cross-examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the conditions that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him, then also it could be brought on record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial inquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be produced. 14. That, in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others reported in (2013) 4 SCC 465 , the Supreme Court has held the cross-examination of witness is one part of the principles of natural justice and requires that the party must be given an opportunity to adduce the evidence and the opposite party should be taken opportunity to cross-examine the witnesses. Cross-examination is one part of the principles of natural justice. 24. Cross-examination is one part of the principles of natural justice. 24. A constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine the witnesses, would violate the principles of natural justice. 25. In Lakshman Exports Ltd v. CCE, this Court while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned to establish that the goods in question had been accounted for in their books of accounts and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd v. Nusli Neville Wadia, this Court considered a case under the public premises (Eviction of Unauthorized Occupants) Act, 1971 and held as follows (SCC Page-295, Para-45) "45 If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right." (emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 27. In K.L. Tripathi v. SBI, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudiced has been caused to the appellant by the procedure followed. 27. In K.L. Tripathi v. SBI, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudiced has been caused to the appellant by the procedure followed. A party who does want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, specially when the same was not requested and there was no dispute regarding the veracity of the statement. "9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the customer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official" 28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the government, is that the Government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the Government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India, this Court held: (SCC P.310, Paras-13-14). Unless the said statements are provided to the Government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India, this Court held: (SCC P.310, Paras-13-14). "13........Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation........ 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review." 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice. 15. The Division Bench of this Court has considered this fact in the case of S.K. Talwar v. Union of India and Others passed in Writ Petition No.7546/2006 vide order dated 19.10.2011. 15. The Division Bench of this Court has considered this fact in the case of S.K. Talwar v. Union of India and Others passed in Writ Petition No.7546/2006 vide order dated 19.10.2011. Para 10 of the order dated 19.10.2011 passed in Writ Petition No.7546/2006 is reproduced below: Para: 10 On the perusal of the impugned order of the Tribunal, it is noticed that though the petitioner had raised the aforesaid two grounds in respect of placing of reliance on the statements of Shri Atul Pandey and ignoring the defence documents in the inquiry report and these grounds have also been noted by the Tribunal in the impugned order, but these grounds have not been examined by the Tribunal, statements of Shri Atul Pandey and Shri S.S. Roy which were recorded during the course of preliminary inquiry have been relied upon in the inquiry report without giving any opportunity to the petitioner to cross-examine them which was contrary to the judgments of the Supreme Court. 16. That, in the present case, the petitioner has specifically raised his ground about non cross-examination of Smt. Geeta Agrawal and reliance of her statement given during the preliminary enquiry. This ground was neither considered by the disciplinary authority nor considered by the appellant authority. 17. We have gone through the impugned judgment passed by the Tribunal in which the Tribunal has also lost sight to deal with the important ground raised by the petitioner regarding right to cross-examine the witness whose statements were relied upon by the Inquiry Officer. Instead of remanding the matter to the Tribunal, we are of the considered opinion to remand the case to the department to initiate the department enquiry at the stage of calling Smt. Geeta Agrawal, Agent before the Inquiry Officer and afford an opportunity to the petitioner to cross-examine her and thereafter fresh enquiry report be submitted by the Inquiry Officer. In case the presence of Smt. Geeta Agrawal, Agent is not possible to secure then the disciplinary authority is directed to award the suitable punishment to the petitioner, other than removal/termination from service. The petitioner be reinstated without back-wages by the respondents.