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2017 DIGILAW 80 (GUJ)

Union of India v. Maldevbhai G. Odedara

2017-01-16

ALPESH Y.KOGJE, ANANT S.DAVE

body2017
JUDGMENT : Alpesh Y. Kogje, J. 1. Both these petitions are directed against the same judgment dated 20.08.2014 by the CAT, Ahmedabad Bench in OA No. 123 of 2010. 2. Special Civil Application No. 16765 of 2014 is filed by the Union of India/Department of Post through Chief Post Master General, Gujarat Circle (hereinafter referred to as "the Department") challenging the aforesaid order to the extent that the Tribunal remands the matter to the disciplinary authority to take appropriate view for imposing punishment lesser than the order of removal from service as is imposed by the Department. 3. Special Civil Application No. 10680 of 2015 is filed by the employee challenging the aforementioned order on the ground that the Tribunal ought to have quashed and set aside the charge sheet, departmental inquiry and the punishment imposed. The employee was working as Gramin Das Sevak (GDS) BPM, Mitrada BO between 13.10.1992 to 04.07.2001. When the employee was alleged to have misappropriated the Government funds by not accounting in the branch office accounts, thereby violating Rule 133 and 134 of the BO Rules 7th Edition 1986 and Rule 131 read with Rule 143 and 144 of BO Rules 6th Edition 1982, and had thereby failed to maintain devotion to duty and absolute integrity violating Rule 21 of the GDS (Conduct and Employment) Rules, 2001. In connection with this, the branch inspection was conducted, as the irregularities were found in three accounts in the branch where the amount from the account holders was accepted by the employee and entry in the passbook was made but corresponding entry in the branch office ledger/journal (account) was not made and the amount was also not deposited with the Government. During the branch inspection, when the employee was confronted with this situation, he appears to have given statement in writing accepting the mistake on his part and then redeposited the amount for which irregularity was found in the respective accounts. 4. After the preliminary inquiry, charge sheet dated 30.08.2001 was issued wherein, three allegations were made. "I. On 21.05.2001, the employee had accepted the amount of Rs. 1500/- from the saving banks account holder Deva Sidi Bhutia and after taking thumb impression on the pay in slip, he filled up the remaining details, the counter foil was not given but the entry was made in the passbook without applying any date and seal on the passbook. "I. On 21.05.2001, the employee had accepted the amount of Rs. 1500/- from the saving banks account holder Deva Sidi Bhutia and after taking thumb impression on the pay in slip, he filled up the remaining details, the counter foil was not given but the entry was made in the passbook without applying any date and seal on the passbook. Simultaneously, this amount was not shown credited in the saving banks journal/ledger of the branch office account. He had therefore, misappropriated the amount. II. The employee accepted Rs. 200/- from the account holder of RD account holder Raja Samat Odedara, obtained the pay in slip but did not give the counter foil, made the entry in the passbook without affixing the date and seal and did not make the corresponding entry in the RD journal/ledger of the branch Post Office. Thereby, committed misappropriation. III. Similarly, the employee accepted Rs. 250/- from RD account holder Haja Nagajan Bokhiria, accepting the pay in slip but did not issue the counter foil, made entry in the passbook without affixing date and seal and did not make corresponding entry in the RD journal/ledger of the branch Post Office." 5. It is in aforesaid set of circumstances, the charge-sheet was issued with the statement of allegation (Schedule-II) and the list of written evidence and the copies of documents in support of allegations (Schedule-III). 6. It appears that the Inquiry Officer was appointed by a memo dated 10.10.2001 and the Inquiry Officer submitted his report dated 19.05.2003 after considering the representation of the employee and relevant record, an order of dismissal from service was passed by a memo dated 31.10.2003. The employee carried the case in departmental appeal before the competent authority and by a memo dated 05.04.2005, the appeal came to be disposed of with a direction for conducting departmental proceedings de novo from the stage of examination of the witnesses. 7. It appears that thereafter de novo proceedings were held by intimation under the memo dated 08.04.2005 and the Inquiry Officer vide his report No. IO/MGO/DENOVO/2005 dated 07.05.2007 submitted his report. The copy of which was provided to the employee under the memo dated 18.05.2007 calling upon providing opportunity of making submissions on the report and the inquiry time was extended at the request of the employee and ultimately the submission of the employee was received on 13.07.2007. 8. The copy of which was provided to the employee under the memo dated 18.05.2007 calling upon providing opportunity of making submissions on the report and the inquiry time was extended at the request of the employee and ultimately the submission of the employee was received on 13.07.2007. 8. After considering the documents on record of the inquiry proceedings and the submission made by the employee, the Department passed an order dated 24.10.2007 by which powers conferred under Rule 5 of (GDS) C and E Rules, 2001, imposed the punishment of removal of the employee from Government service by Superintendent of Post Office, Porbandar Division and while passing the order, has carefully recorded the contentions raised by the employee and thereafter, dealing with such contentions, recorded his findings by carefully analyzing the facts on record which were dealt with by the disciplinary authority. The appellate authority also has carefully taken into consideration the contentions raised by the employee for challenging the order of the disciplinary authority, however, the appellate authority also confirmed the findings of the disciplinary authority and the charges which were held to be proved by the disciplinary authority were confirmed by the appellate authority as well. 9. Both the orders of the disciplinary authority and the appellate authority were the subject matter of scrutiny before the CAT, Ahmedabad Bench in OA No. 123 of 2010 but the Tribunal confirmed the findings of disciplinary authority and the appellate authority to the extent of misconduct having been proved against employee. However, by considering the proportionality of the punishment, remanded the case to the disciplinary authority to take appropriate view for imposing lesser punishment. 10. Heard learned Advocates Ms. Trusha Patel on behalf of the Union of India/Department and Ms. Rina Kamani for Mr. P.H. Pathak for the employee. 11. Ms. Patel submits that the order of the Tribunal needs to be interfered with as the Tribunal has exceeded its jurisdiction in remanding the case to the disciplinary authority on the ground of proportionality of punishment. She submits that once the misconduct is proved after the due inquiry and that such findings of misconduct are also upheld by the appellate authority and even when the Tribunal itself has confirmed such findings of misconduct against the employee, remand for the proportionality is not justified. She submits that once the misconduct is proved after the due inquiry and that such findings of misconduct are also upheld by the appellate authority and even when the Tribunal itself has confirmed such findings of misconduct against the employee, remand for the proportionality is not justified. She further submits that considering the nature of misconduct as a result of which the Department has lost faith in its employee and the misconduct being of the nature where the employee's devotion to duty and absolute integrity is under consideration for any lesser punishment is not warranted. 12. She therefore submits that the order of the Tribunal needs to be interfered with to that extent. 13. As against this learned Advocate for the employee Ms Kamani would submit that right from the beginning the employee has been subjected to departmental proceedings without compliance with the principles of natural justice as the employee is not even furnished with the relevant documents which according to her were necessary for the purpose of establishing his defence. She submits that the documents though referred and relied upon during the course of inquiry but the same were not furnished to the employee. Documents like RD journal, SB journal, and the relevant period BO daily account of the Branch, etc were not furnished. She also submits that though the directions were issued to conduct the inquiry de novo from the stage of examination of a witness, none of the witness (account holders) were examined during the course of inquiry nor an opportunity was given to the employee to cross-examine such witnesses. She submits that Rule 10 of GDS (Conduct and Employment) Rules provides for the procedure for imposing the punishment and this Rule provides for furnishing of list of evidence in support of the statement of allegations. She also submits that the Department during the course of inquiry has only referred to and relied upon the statements of the witnesses which were recorded prior to issuance of charge sheet as a part of procedure of branch inspection conducted by ASP Headquarter, Porbandar. Thereafter, during the course of inquiry, no witness has been examined. In view of this, she submits that the entire departmental proceedings and the punishment imposed require to be quashed and set aside. Thereafter, during the course of inquiry, no witness has been examined. In view of this, she submits that the entire departmental proceedings and the punishment imposed require to be quashed and set aside. She relies upon the judgments reported in 2008 (8) SCC page 236 : 2010 (2) SCC 772 and 2013 (4) SCC 301 in support of her contentions. 14. In response to the contentions raised on behalf of the employee, learned Advocate for the Department contends that Rule 10 which provides for the procedure for imposing penalty has been complied with to the fullest extent. She submits that the procedure envisages informing the charges to the employee and a reasonable opportunity of being heard in respect of those charges. Both of which have been complied with and therefore, the procedure and the punishment inflicted is after following the due process. She submits that the employee himself has admitted the misconduct in the statement recorded by the inspecting officer. This statement in writing candidly admits the non-depositing of the amount received from the account holder in the respective account and the respective journal/ledger of the branch. She submits that on that very day when the misconduct was traced out by the Department, the employee offered and deposited the amount which was misappropriated. This in itself is sufficient to bring the employee into the category of employee in whom the Department has lost faith and the employee has not maintained devotion to duty and absolute integrity. She submits that such statement made by the employee at no stage has been withdrawn or retracted by the employee. Therefore, in view of the ratio laid down by the Apex Court in the case of Commissioner of Police, New Delhi Versus Narendra Singh reported in 2006 (4) SCC page 265, the statement thus recorded during the investigation is sufficient to hold the charges against the employee to be proved and no other evidence to substantiate the same is necessary. 15. Having heard the learned Advocates for the parties and perused the record of the case. Rule 10 of GDS (Conduct and Employment) Rules reads as under: "10. 15. Having heard the learned Advocates for the parties and perused the record of the case. Rule 10 of GDS (Conduct and Employment) Rules reads as under: "10. Procedure for imposing a penalty- (1) No order for 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 inquiry 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 inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry. (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 inquiry proceedings along with the inquiry report of the Appointing Authority or Inquiry Officer, if any, appointed in a case where a formal inquiry 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 therefore; and (vii) the order imposing the penalty." The perusal of the order of punishment reveals that it is recorded that along with statement of imputation of misconduct on which the Articles of charges were based along with the documents and a list of witnesses were forwarded to the employee. It is thereafter recorded that the inquiry report conducted de novo was also supplied to the employee and employee after seeking several adjournments was permitted to make his submission on the inquiry report. The order also categorically arrives at the findings based on the evidence on record finding the employee guilty of misconduct and imposing of the punishment of removal. It is thereafter recorded that the inquiry report conducted de novo was also supplied to the employee and employee after seeking several adjournments was permitted to make his submission on the inquiry report. The order also categorically arrives at the findings based on the evidence on record finding the employee guilty of misconduct and imposing of the punishment of removal. The order of confirming the findings of the inquiry report appears to have dealt with the objections of the employee in detail. 16. Similarly, the appellate authority has also gone in great detail with regards to the charges and the objections raised by the employee and confirmed the findings of the disciplinary authority and thereafter, declined to interfere or disagree with the findings of the disciplinary authority. 17. The Tribunal has also gone into the details of the charge, the nature of evidence and the findings recorded on the basis of the evidence. The Tribunal has also dealt with the objections raised by the employee which includes the objection of non-supply of relevant evidence to which the specific finding is given that at no point of time the employee had sought for production of statements recorded by the inspecting officer. It has also gone on to record that after the recording of the statement by the inspecting officer where the employee has admitted his mistake, at no stage the employee has withdrawn such statements or retracted from them. The cursory perusal of statements, however, cannot lead to the conclusion that the employee in such statement has confessed or admitted his guilt, however, the fact that in his written statement he has admitted his mistake which he has not retracted and only when such misappropriation or irregularity surfaced during the inspection did the employee admit his mistake and also redeposited the amount that was misappropriated. Such behaviour in opinion of this Court is enough to lose confidence of an employer and therefore, the employee was proceeded against on the ground of having failed to maintain devotion to duty and absolute integrity. 18. The judgment cited on behalf of the employee in State of Uttaranchal and Others Versus Kharak Singh reported in 2008 (8) SCC 236 in support of the argument that inquiry held should not be an empty formality. 18. The judgment cited on behalf of the employee in State of Uttaranchal and Others Versus Kharak Singh reported in 2008 (8) SCC 236 in support of the argument that inquiry held should not be an empty formality. The Apex Court in this judgment was considering the appeal of the Department and while referring to various principles laid down which would act as guideline as to how inquiry is to be conducted and which procedures are to be followed. Ultimately on the facts of the case, the Supreme Court had found that no witnesses were examined. Apparently, there was not even a presenting officer appointed and the report submitted indicated that the Inquiry Officer himself acted as investigator, prosecutor and the judge. It is in these facts, the Supreme Court had proceeded to give the judgment. In the instance case, the procedure is prescribed under Rule 10 of the GDS Rules and the perusal of the record indicates fair compliance of the procedure prescribed in the Rule. 19. The other judgment in case of Nirmala J. Jhala Versus State of Gujarat reported in 2013 (4) SCC 301 wherein, the Supreme Court was examining the Departmental Inquiry procedure in a case of judicial officer wherein the procedure prescribed under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 were followed. It is not the case of the employee that the procedure of Gujarat Civil Services (Discipline and Appeal) Rules for the purpose of inflicting the major penalty are verbating the same as the procedure prescribed under Rule 10. Moreover the Apex Court was examining the issue as to the evidence which is recorded during preliminary inquiry can be considered without giving an opportunity to the delinquent as regarding of such evidence during the preliminary inquiry is at a stage when the delinquent is not associated with the inquiry. In the instant case, it has been recorded at every stage i.e. at the stage of disciplinary authority, appeal and the petition before the Tribunal. It is recorded that the employee has been supplied with the evidence on record. Yet another judgment relied upon on behalf of the employee in the case of State of Uttar Pradesh and Others Versus Saroj Kumar Sinha reported in 2010 (2) SCC 772 is again on the realm of the facts where the Inquiry Officer has acted as prosecutor as well as the Judge. Yet another judgment relied upon on behalf of the employee in the case of State of Uttar Pradesh and Others Versus Saroj Kumar Sinha reported in 2010 (2) SCC 772 is again on the realm of the facts where the Inquiry Officer has acted as prosecutor as well as the Judge. On facts, the Supreme Court proceeded to hold that inquiry proceedings were vitiated as the proceedings were in breach of Rule 7(V) UP Government Servant Discipline and Appeal Rules, 1999. 20. Learned Advocate for the Union of India has referred to a judgment in the case of Commissioner of Police, New Delhi Versus Narender Singh reported in 2006 (4) SCC page 265 to support her argument that the provisions of Evidence Act are not required to be applied strictly to the departmental proceedings and therefore, where confession/admission in judicial proceedings are required to be established in strict compliance with the provisions of the Evidence Act. The same strict standard may not be applicable to the material and record available on the record of departmental inquiry for it being considered. 21. In view of the aforesaid and considering more particularly the nature of admission recorded at the time of branch inspection, and the same having been made the foundation of the inquiry and the statements recorded of the witnesses in support thereof this Court has no hesitation in holding that the employee has failed to maintain devotion to duty and absolute integrity. Therefore, the petition by the employee Special Civil Application No. 10680 of 2015 deserves to be dismissed and is hereby dismissed. 22. Insofar as the petition by the Union wherein, main objection is to the remand to the disciplinary authority to take appropriate view by imposing lesser punishment other than removal from service, this Court is of the view that after taking into consideration the totality of circumstances, no interference is required to the direction issued by the Tribunal in this regard. In view of the aforesaid, the petition of the Union Special Civil Application No. 16765 of 2014 also deserves to be dismissed and is hereby dismissed. Rule is discharged in both the petitions. No order as to costs.