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2018 DIGILAW 468 (GUJ)

VAISHALI WD/O ANILKUMAR PARMAR v. UNION OF INDIA

2018-02-09

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned order passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad passed in Original Application No.172 of 2014, by which, the learned Tribunal has dismissed the said OA and has not interfered with the order passed by the Revisional Authority removing the petitioner from service. 2. The facts leading to the present Special Civil Application in nutshell are as under: 2.1. That the petitioner herein – original applicant joined the services with the respondent as GDS (BPM) on 7.10.2008. That at the relevant time she was served as GDS (BPM) at Raisingpur BO, Takatunak SO. She was served with the memorandum of charges bearing No. B2/11/03/1112 dated 27.09.2011 alleging that she had accepted certain amount towards GEB collection. However, failed to credit the amount into the Government account under the head (GEB Collection) on the date of receipt of the same. It was further alleged that she failed to make the entries in the respective BO SB RD and RPLI journal on the respective dates. The Article of Charges, for which, departmental inquiry was initiated are as under: “Smt. V.A. Parmar, while functioning as GDS BPM Raisingpur BO (Takatuka SO) during the period from 7.10.2008 to continue, committed the following irregularities. Article I During the course of second inspection of Raisingpur BO (Takatuka SO) on 18.08.2011, the IP(PG), Himatnagar noticed that: 1. Smt. V A Parmar struck total in GEB Collection list short by Rs.591 on 11.06.2011 and thus short credited Rs.591 into the BO Account dated 11.06.2011. 2. Smt. V A Parmar failed to credit GEB collection made under receipt Nos.97980 to 97983 for Rs.593 on 13.06.2011. 3. Smt. V A Parmar failed to credit an amount of GEB collection made under GEB receipt No.97971 for Rs.1854 on 13.06.2011. The Short and the non credited amount as shown in para Nos. 1 to 3 were made good by her only on 23.6.2011 after intimated by the GEB authority. 4. Smt. V A Parmar accounted for amount of GEB collection as Rs.293 instead of Rs.2934 made under GEB receipt No.97919 on 10.06.2011. The difference amounting to Rs.2641 was made good by her only on 18.08.2011, after intimated by the GEB authority. 1 to 3 were made good by her only on 23.6.2011 after intimated by the GEB authority. 4. Smt. V A Parmar accounted for amount of GEB collection as Rs.293 instead of Rs.2934 made under GEB receipt No.97919 on 10.06.2011. The difference amounting to Rs.2641 was made good by her only on 18.08.2011, after intimated by the GEB authority. Thus Smt. V A Parmar, GDSBPM, Raisingpur BO failed to credit the correct amount received by her as GEB collection as shown above on the date of its receipt into the Government account. Thus, failed to observe the instructions on GEB Collection, issued vide this Office Letter No. G2/GEB/0405 dated 28.09.2004 and Rule No. 165 of BO Rules in Gujarati Language. (Sixth edition corrected upto 31.3.1982). Article II During the aforesaid period, Smt. V A Parma, GDSBPM, Raisingpur BO (Takatuka SO) failed to make entries of the following into SB, RD, RPLI Journals on the respective dates. Sr.No Date Amount shown in BO Account Under Head Shown in Concerned Journal 1 26.5.2011 4120 RD (Deposit) 4080 2 26.4.2011 3391 RPLI --- 3 4.4.2011 1300 WFA (withdrawal) ---- 4 26.4.2011 3300 SB(withdrawal) ---- 5 16.4.2011 100 SB (Deposit) --- 6 30.5.2011 1500 SB (Deposit) --- 7 5.7.2011 5000 SB (Deposit) --- 8 26.5.2011 1000 NREGS (withdrawal) ---- 9 30.06.2011 700 NREGS (withdrawal) ---- 10 20.07.2011 150 NREGS (withdrawal) ---- 11 13.08.2011 600 NREGS (withdrawal) ---- Thus, Smt. V.A. Parmar failed to observe the rule nos. 51, 131, 143 of BO Rules in Gujarati Language (Sixth edition corrected up to 31.3.1982). It is therefore, alleged that by the aforesaid Act, Smt. Parmar failed to maintain devotion to duty and absolute integrity as required of her under Rule 21 of GDS (C & E) Rules. 2011.” 2.2. That on receipt of the said memorandum, the petitioner submitted her written statement of defence. In the departmental inquiry misconduct and the charge alleged came to be proved. 2011.” 2.2. That on receipt of the said memorandum, the petitioner submitted her written statement of defence. In the departmental inquiry misconduct and the charge alleged came to be proved. However, it appears that Disciplinary Authority took the lenient view and found that as the petitioner had admitted the charges, credited the entire amount into the Government account subsequently and that she had assured that henceforth she will be careful in crediting the amount, Disciplinary Authority imposed the penalty of debarring her from appearing in the departmental examination for the post of Multi Tasking Staff Group C and Postman and from being considered for the recruitment as PA/SA for a period of three years. That thereafter, Director of Postal Services, Gujarat Circle, in exercise of the power under Rule 19 of GDS ( C &E) Rules, 2011 by the order dated 13.3.2012 took the order passed by the Revisional Authority under suo motu revision. 2.3. That the Revisional Authority in exercise of powers conferred under Rule 19 of the Rules, 2011 ordered to initiate the disciplinary proceedings under Rule 10 of the said Rules and on completion of the inquiry the case be forwarded to him for final conclusion / imposing penalty. It appears that pursuant to the above order, the Superintendent of Post Offices, Sabarkantha Division, Himatnagar issued a memorandum of charges dated 3.4.2012. Pursuant to the said charge memorandum dated 3.4.2012, the petitioner herein original applicant was called upon to show cause as to why inquiry shall not be held against her, for failure to maintain devotion to duty and absolute integrity as required of her under Rule 21 of the Rules, 2011. That the petitioner original applicant submitted written statement of defence on 23.4.2012. The Inquiry Officer was appointed. On conclusion of the inquiry, the Inquiry Officer submitted his report dated 21.5.2012 holding that charges leveled against her in the said charge memo has been proved beyond the doubt. That on receipt of the said report, the Director of Postal Services (HQ) Gujarat Circle by his order dated 26.3.2013, imposed the penalty of removal from service dated 26.3.2013, the petitioner presented a petition dated 10.4.2013 to the Chief Postmaster General, Gujarat Circle, who by his order dated 15.1.2014, rejected the said petition dated 10.04.2013. Being aggrieved and dissatisfied with the removal from service, the petitioner approached the learned Tribunal by way of OA No. 172 of 2014. Being aggrieved and dissatisfied with the removal from service, the petitioner approached the learned Tribunal by way of OA No. 172 of 2014. That by impugned judgment and order, the learned Tribunal has dismissed the said OA, which has given rise to the present Special Civil Application under Articles 226 & 227 of the Constitution of India. 3. Shri Jigar Gadhavi, learned advocate for the petitioner original applicant has vehemently submitted that the order passed by the Revisional Authority imposing punishment / penalty of removal from service is contrary to the procedure which is required to be followed under Article 19 of the Rules, 2011. 3.1. It is submitted by Shri Gadhavi, learned advocate for the petitioner that as per second proviso to Rule 19 of the Rules, assuming that Revisional Authority has power and / or authority and /or jurisdiction to pass any order which deems fit otherwise imposing or enhancing any penalty, in that case also, delinquent is required to be given reasonable opportunity on making representation against the penalty imposed. It is submitted that in the present case the order passed by the Disciplinary Authority has been revised / modified by the Revisional Authority and order of removal has been passed without giving any opportunity to the petitioner to show cause as to whey the penalty of removal be not imposed. It is submitted that therefore, the order of removal passed by the Revisional Authority can be said to be against the principle of natural justice inasmuch as the procedure as required to be followed under second proviso to Rule 19 has not been followed and no opportunity has been given to the petitioner to show cause as to why the petitioner may not be removed from service. 3.2. It is further submitted by Shri Gadhavi, learned advocate for the petitioner that even the Revisional Authority, when ordered inquiry afresh, no notice to the delinquent was served and the Revisional Authority did not issue notice and afresh inquiry was ordered for enhancement of punishment by issuing the charge sheet. Making above submissions, it is requested to allow the present petition. 4. Shri Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondent has vehemently opposed the present petition. 4.1. Making above submissions, it is requested to allow the present petition. 4. Shri Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondent has vehemently opposed the present petition. 4.1. It is submitted by Shri Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondent that the order passed by the Revisional Authority is absolutely in consonance with the provision of Rule 19 of the Rules, 2011. It is further submitted by Shri Devang Vyas, learned Assistant Solicitor General of India appearing on behalf of the respondent that as such earlier the disciplinary authority held and found the charge and misconduct alleged proved. It is submitted that said finding has attained the finality. It is submitted that thereafter the Revisional Authority in exercise of powers under Rule 19 of the Rules took the order passed by the Disciplinary Authority under suo motu revision. It is submitted that after the Revisional Authority ordered for inquiry in the manner laid down in Rule 10 and in the same delinquent participated and only thereafter Revisional Authority passed an order removing the petitioner from service. It is submitted that same is rightly not interfered with by the learned Tribunal. Making above submissions, it is requested to dismiss the present petition. 5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the Revisional Authority passed the order impugned before the learned Tribunal removing the petitioner from service in exercise of powers under Rule 19 of the Rules, 2011. Rule 11 reads as under: 19. Revision: (1) Notwithstanding anything contained in these rules(i) the Head of the Circle, or Region (ii) any other authority immediately superior to the authority passing the orders; or (iii) any other authority specified in this behalf of the Government by general or special order, and within such time as may be specified in that general or special order. Revision: (1) Notwithstanding anything contained in these rules(i) the Head of the Circle, or Region (ii) any other authority immediately superior to the authority passing the orders; or (iii) any other authority specified in this behalf of the Government by general or special order, and within such time as may be specified in that general or special order. May, at any time, either on its own motion or otherwise call for records of any enquiry or disciplinary case and revise an order made under these rules, reopen the case and after making such enquiry as it considers necessary, may (a) confirm, modify or set aside the order or (b) pass such orders as it deems fit: Provided that no such case shall be reopened under this rule after the expiry of six months from the date of the order to be revised except by the Government or by the Head of Circle or by the Postmaster General (Region) and also before the expiry of the time limit of three months specified for preferring an appeal under Rule 14: Provided further that no order imposing or enhancing any penalty shall be made by any Revisionary Authority unless the Sevak concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to imposed any of the penalties specified in Clauses (v) and (vi) of Rule 9 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed except after the inquiry in the manner laid down in Rule 10, in case no such enquiry had already been held." 5.1. There does not seem to be any dispute and as such it is imperative from the record that after the First Appellant Authority did not agree with the order of penalty imposed by the Disciplinary Authority of debarring the petitioner from appearing in the departmental examination for the post of Multi Tasking Staff Group C and Postman and from being considered for the recruitment as PA/SA for a period of three years and as it was proposed to impose major penalties specified in clause v and vi of the Rule 19 ordered inquiry under Rule 10. Thereafter, Superintendent of Post Offices, Sabarkantha Division, Himatnagar issued a memorandum of charges dated 3.4.2012 and the applicant was required to show cause as to why inquiry shall not be held against her, for failure to maintain devotion to duty and absolute integrity as required of her under Rule 21 of the Rules, 2011. To the aforesaid, the petitioner submitted her written statement of defence and thereafter fresh inquiry was initiated as per Rule 19 and on conclusion of the inquiry, the Inquiry Officer submitted his report dated 21.5.2012 holding that charges leveled against her in the said charge memo has been proved beyond the doubt. That thereafter, the Revisional Authority passed order removing the petitioner from service by observing as under: "The alleged omission mentioned in the memo of charges is not merely an omission but it was misappropriation as the so called short credit of the amount was credited by the Charged official on pointing out by the IP (PG) during the second inspection or by the GEB authority. If this could not be challenged by them then the said amount would have been pocketed by the Charged Official. Such act on part of the charged official cannot be tolerated. The Charged Official holds a position of trust where honesty and integrity are inbuilt requirements of functioning. In the postal business absolute devotion, diligence, integrity and honesty need to be preserved by every postal employee and in particular by the Branch Post Master who plays a vital role in the rural area where she represents the Government of India. But the credibility of her office and through her, the reliability of the Department was affected by such an act by the charged official. Hence, she cannot be dealt with leniently. The family circumstances narrated by the Charged Official cannot be taken into consideration for these reasons. In view of this, I inflict the punishment of removal from service, upon the official." 5.2. Therefore, as such procedure as required to be followed under Rule 19 has been strictly followed. At this stage, it is required to be noted that in the order dated 13.03.2012 itself it was stated that the punishment imposed by the disciplinary authority is required to be revised and modified to one of the major penalty. It cannot be disputed that the penalty of removed his one of the major penalty. At this stage, it is required to be noted that in the order dated 13.03.2012 itself it was stated that the punishment imposed by the disciplinary authority is required to be revised and modified to one of the major penalty. It cannot be disputed that the penalty of removed his one of the major penalty. Therefore, it cannot be said that no opportunity was given to the petitioner to show cause as to why the order of penalty of remove may not be imposed. However, it is stated that why any one of the major penalty may not be imposed which includes the order of penalty imposed which is a major penalty. 5.3. Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned Tribunal has committed any error in dismissing the OA. We are in complete agreement with the view taken by the learned Tribunal. No interference of this Court is called for. Under the circumstances, the present petition deserves to be dismissed and is accordingly dismissed.