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2021 DIGILAW 502 (ORI)

Kailash Chandra Mohanty v. Union Of India

2021-12-15

A.K.MOHAPATRA, S.MURALIDHAR

body2021
ORDER Dr. S. Muralidhar, CJ. - The Petitioner, who retired from service as Superintendent, Railway Mail Service, Berhampur-Ganjam Division, Berhampur, has filed this writ petition challenging the order dated 22nd January, 2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (CAT) in O.A. No.282 of 2012. 2. The background facts are that the Petitioner joined as Postal Assistant on 10th April, 1972. Subsequently he was promoted in the ranks and was ultimately to the post of Superintendent in 2001. He superannuated on 31st July, 2010. 3. It is stated that between 18th July, 2005 and 20th December, 2005 the Petitioner was posted as Assistant Manager (Administration) in Postal Printing Press (PPP), Bhubaneswar and thereafter as Deputy Manager then from May, 2008. On 3rd October, 2006 the Chief Post Master General, Orissa Circle, Bhubaneswar (Opposite Party No.2) issued a memo of charges against the Petitioner under Rule 14 of the Central Civil Services (CCA) Rules, inter alia alleging that the Petitioner, in violation of the guidelines, had allowed his son and three other persons to be appointed as Apprentice (Book Binder) during his incumbency as Assistant Manager, PPP. It was further alleged that, by such action in question, those Apprentices were paid stipend, which had resulted in loss of money for the Government and gain to the Petitioner, as one of those Apprentices happened to be his own son. It was further alleged that the Petitioner endorsed the irregular noting dated 20th September, 2005 of the Dealing Assistant recommending selection of three other persons including the son of the Dealing Assistant. 4. The Petitioner denied the charges and a disciplinary enquiry was conducted. It is stated that, while awaiting the report of the enquiry, the Petitioner superannuated. Accordingly, the Petitioner was paid only provisional pension and the payment of gratuity was withheld as was the commuted value of pension and other benefits. 5. On account of the delay in finalization of the disciplinary proceedings, the Petitioner filed O.A. No.427 of 2011 in the CAT. By the order dated 7th July, 1911 the CAT disposed of the said O.A. by directing Opposite Party No.2 to conclude of the disciplinary proceeding within three months. 6. On 14th July, 2011 the Petitioner was forwarded a copy of the Enquiry Report dated 18th April, 2007 asking him to either make a representation or a submission. By the order dated 7th July, 1911 the CAT disposed of the said O.A. by directing Opposite Party No.2 to conclude of the disciplinary proceeding within three months. 6. On 14th July, 2011 the Petitioner was forwarded a copy of the Enquiry Report dated 18th April, 2007 asking him to either make a representation or a submission. Thus, the enquiry report was furnished to the Petitioner more than four years after it was made ready. 7. Thereafter the ADG, Vigilance (Opposite Party No.4) in the name of the President of India and in consultation with the UPSC, on 21st February, 2012 issued the order of punishment by way of imposing penalty of withholding 20% of the monthly pension of the Petitioner for a period of 5 years and further directing the withholding of his entire gratuity amount permanently. 8. Being aggrieved by the said order, the Petitioner again approached the CAT by filing O.A. No.20 of 2012. By the impugned order dated 22nd January, 2014, the CAT dismissed the O.A. for the following reasons: (i) There was no violation of any rule or procedure in finalizing the disciplinary proceedings. (ii) The delay in finalizing the enquiry proceeding was not prejudicial to the Petitioner. Further the President has power under Rule 9 of the CCS CCA (Pension) Rules, 1972 to withhold whole or part of the pension or gratuity or both or withdraw a pension or a part thereof by way of punishment. (iii) The delay of 4 years in furnishing the Petitioner a copy of the enquiry report cannot be said to vitiate the punishment since the punishment had 'already taken effect and the respondents have implemented the same order already.' (iv) The CAT was not a court of appeal and cannot re-appreciate the evidence in the disciplinary proceeding. The plea that the Petitioner was not the final approving authority for the appointment of the apprentices would not exonerate the Petitioner from the misconduct. (v) No interference by the CAT with the quantum of punishment was warranted. 9. This Court has heard the submissions of Mr. S.K. Das, learned counsel for the Petitioner and Mr. P.K. Parhi, learned Assistant Solicitor General appearing for the Opposite Parties Govt. of India. 10. (v) No interference by the CAT with the quantum of punishment was warranted. 9. This Court has heard the submissions of Mr. S.K. Das, learned counsel for the Petitioner and Mr. P.K. Parhi, learned Assistant Solicitor General appearing for the Opposite Parties Govt. of India. 10. A careful perusal of the enquiry report reveals that the two charges proved against the Petitioner were: (i) That he irregularly managed to get his son engaged as an apprentice in the Book-binding trade under the special category at the PPPP, Bhubaneswar; (ii) That, he endorsed an irregular noting of the Dealing Assistant recommending the selection of the sons of the staff members working in the PPP, Bhubaneswar as Apprentices. 11. The fact remains that, in the organizational hierarchy, the Petitioner was working as Assistant Manager and was not the ultimate decision-making authority when it came to appointment of Apprentices. Secondly, the Petitioner had an unblemished track-record till then. 12. In the rejoinder to the counter affidavit the Petitioner has pointed out that no loss as such was caused to the government, as the appointments were cancelled within 4 to 5 days from the date of issuance of the appointment orders. Therefore, a crucial part of the Articles of Charge regarding loss caused to the government and a corresponding gain to the Petitioner was factually not proved by the Opposite Parties. 13. Be that as it may, even if the misconduct encompassed under Articles I and II in the enquiry can be said to have been proved against the Petitioner, the punishment of withholding of the entire gratuity of the Petitioner on a permanent basis apart from withholding 20% of his monthly pension for five years does appears to be disproportionate. 14. In Dev Singh v. Punjab Tourism Development Corporation (2003) 8 SCC 9 , while explaining the general principle that the CAT will not ordinarily interfere with the quantum of punishment, the Supreme Court explained as under: 'A Court sitting in an appeal against a punishment imposed in disciplinary proceedings will not normally substitute its own conclusion on penalty. 14. In Dev Singh v. Punjab Tourism Development Corporation (2003) 8 SCC 9 , while explaining the general principle that the CAT will not ordinarily interfere with the quantum of punishment, the Supreme Court explained as under: 'A Court sitting in an appeal against a punishment imposed in disciplinary proceedings will not normally substitute its own conclusion on penalty. However, if the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court, then the Court would appropriately mould the relief either by directing the Disciplinary or the Appellate Authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare case and impose appropriate punishment with cogent reasons in support thereof.' 15. The present case appears to fall in the category of a 'rare case' of disproportionate punishment. For a person who has served with an unblemished career over three decades in the Postal Department, a single infraction should not attract such a huge penalty of forfeiture of his entire gratuity. As far as the other part of the punishment is concerned, the withholding of 20% of the monthly pension for five years has already been suffered by the Petitioner. To be fair, learned counsel for the Petitioner did not ask for the said portion to be modified. 16. In the above circumstances the Court directs that the punishment imposed on the Petitioner of withholding of his entire gratuity stands set aside and the other part of the punishment in the order of withholding 20% of his monthly pension for five years is sustained. The impugned penalty order dated 21st February, 2012 of Opposite Party No.4 and the corresponding impugned order of the CAT stands modified accordingly. 17. The writ petition is disposed of in the above terms.