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2022 DIGILAW 2842 (RAJ)

Kishan Lal S/o Shri Birbal Ram v. Union Of India

2022-12-01

KULDEEP MATHUR, SANDEEP MEHTA

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JUDGMENT : MATHUR, J. 1. By way of filing present writ petition, the petitioner has assailed validity and correctness of the order dated 10.07.2019 passed by Central Administrative Tribunal, Jodhpur Bench (hereinafter referred to as ‘Tribunal’) in Original Application (OA) No.290/000299/2013, by which the Tribunal dismissed the OA preferred by the petitioner against the order dated 30.11.2012 passed by disciplinary authority imposing punishment of 'removal of service' upon the petitioner as affirmed by appellate authority vide order dated 20.08.2013. 2. The brief facts giving rise to the present controversy are that the petitioner while holding the post of Gramin Dak Sevak, Branch Post Master (‘GDS BPM’) was served with a charge sheet dated 20.11.2009 under Rule 10 of Indian Postal Department, Gramin Dak Sevak, (Conduct & Employment) Rules 2001 (hereinafter referred to as ‘Rules of 2001’). In the charge sheet, three charges were levelled against the petitioner. The first charge pertained to an entry made by petitioner at Raneri Branch Post Office on 04.06.2009 in Branch Office, daily account reflecting receipt of Rs.5,00,000 which was forwarded to Accounts Office, Phalodi, Sub-Post Office and later on the same day, the entry of Rs.5,00,000 was deleted in the Branch Office accounts and balance was reduced. The second charge pertained to not providing receipts of remittances in the treasury book of Branch Office, Raneri, as detailed out in charge No.2. The third charge alleged that the amounts received by Branch Office on certain dates (mentioned in the charge) as reflected in the daily accounts which were not entered in the branch office slips of Accounts Office, Phalodi were not brought to the knowledge of higher authorities by the petitioner, in violation of Rule 21 of Rules of 2001. It was further alleged in the charge sheet that the aforesaid acts facilitated the fraud committed by Sub-Post Master, Phalodi and Treasurer, Phalodi to the tune of Rs.1.97 crores. 3. The petitioner submitted a reply to the charge sheet vide letter dated 24.11.2009 denying the charges levelled against him. An enquiry officer came to be appointed by the disciplinary authority on 31.08.2010. The disciplinary proceedings thereafter were conducted as per the procedure enumerated in the Rules of 2001. The enquiry report dated 23.02.2012 came to be submitted by the enquiry officer wherein all the three charges were found to be proved against petitioner. An enquiry officer came to be appointed by the disciplinary authority on 31.08.2010. The disciplinary proceedings thereafter were conducted as per the procedure enumerated in the Rules of 2001. The enquiry report dated 23.02.2012 came to be submitted by the enquiry officer wherein all the three charges were found to be proved against petitioner. The disciplinary authority served a copy of the enquiry report upon petitioner through letter dated 29.02.2012 inviting representation, if any. A detailed representation dated 15.03.2012 was submitted by the petitioner reiterating that he was not guilty of the charges levelled against him and the disciplinary proceedings initiated against him may be dropped. The disciplinary authority, after analysing the enquiry report and representation of the petitioner, by a detailed order dated 30.11.2012, imposed penalty of ‘removal from service’ upon the petitioner. The appeal dated 19.12.2012 preferred against the order of removal by the petitioner before the appellate authority came to be rejected vide order dated 20.08.2013. 4. An Original Application No.290/000299/2013 under Section 19 of the Administrative Tribunals Act, 1985 came to be filed by the petitioner before the CAT challenging the order of removal dated 30.11.2012 issued by disciplinary authority and order dated 20.08.2013 passed by appellate authority. The Central Administrative Tribunal, Jodhpur Bench, vide order dated 10.07.2019 dismissed the original application. Hence, the petitioner has preferred the present writ petition under Article 226/227 of the Constitution of India. 5. Learned counsel for the petitioner vehemently and fervently argued that the petitioner has been punished for the alleged conspiracy between him and the staff at Post Office, Phalodi whereas no such charge was alleged against him in the charge sheet dated 20.11.2009. Learned counsel further submitted that a delinquent employee cannot be punished for allegations beyond the ones which have been levelled against him/her in the charge sheet. It was further submitted that the disciplinary authority without recording its satisfaction has shown agreement with the enquiry report, though the same was based on statement made by petitioner, recorded in the preliminary enquiry which remained uncorroborated. It was submitted that mere admission/confession is not enough to act upon in a departmental enquiry and the conclusion arrived at has to be based on independent evidence, whereas in the present case, the entire enquiry report was based on conjectures and surmises, which is unsustainable in the eyes of law. It was submitted that mere admission/confession is not enough to act upon in a departmental enquiry and the conclusion arrived at has to be based on independent evidence, whereas in the present case, the entire enquiry report was based on conjectures and surmises, which is unsustainable in the eyes of law. It was further submitted that the petitioner was working as an extra departmental agent and therefore Indian Postal Department, Gramin Dak Sevak, (Conduct & Employment) Rules 2001 were not applicable upon him. Lastly, it was submitted that the learned Tribunal failed to appreciate the facts and law applicable to the present case in the correct perspective. It was thus prayed that the instant writ petition deserves acceptance by this Court. 6. Per contra, learned counsel for the respondents argued that the petitioner, during the course of preliminary enquiry had admitted in the written statements dated 05.06.2009 and 25.06.2009 that corrections in the Branch Office accounts were made by him. Learned counsel further submitted that an entry of Rs.5,00,000/-was made by the petitioner in Branch Office Accounts of Raneri in the receipt side on 04.06.2009 and the same was dispatched to Phalodi, Sub Post Office however later on, the entry of Rs.5,00,000/-was deleted from Branch Office Accounts and the balance in Branch Office was reduced by Rs.5,00,000/-, which is sufficient to prove the guilt of the petitioner. Learned counsel further submitted that two officials of the department namely Shri Arjun Ram Bishnoi, SPM, Phalodi and Shri Pancha Ram Bishnoi, Treasurer, Phalodi were found to have committed fraud to the tune of Rs.1.97 crores. The modus operandi of the fraud was that false remittances of MGNREGA cash to the Branch Office falling under jurisdiction of Phalodi, Sub-Post Office were shown. The Phalodi Sub Post Office was Account Office for 22 Branch Offices including Raneri Branch Office. The petitioner facilitated the fraud by not reporting these facts to the higher authorities and allowing remittance of cash without creating liabilities of Branch Office. Learned counsel submitted that during the disciplinary proceedings, documentary evidence was brought on record and statements of witnesses were recorded in conformity with the procedure provided under the Rules of 2001 and charges against the petitioner were found to be proved. The disciplinary authority and the appellate authority objectively considered the representations submitted by the petitioner and by reasoned orders rejected the same. The disciplinary authority and the appellate authority objectively considered the representations submitted by the petitioner and by reasoned orders rejected the same. Learned counsel further submitted that the disciplinary proceedings were conducted in conformity with the principles of natural justice; the petitioner never demanded opportunity of personal hearing before appellate authority and therefore the objection raised in this regard is absolutely unjustified. Lastly, it was submitted that the conclusions arrived at by disciplinary authority and the appellate authority do not suffer from any illegality or perversity and therefore the Tribunal rightly refused to interfere with the findings arrived at in the disciplinary proceedings. It was thus prayed that the writ petition may be dismissed being devoid of merit. 7. Heard learned counsel for the parties at length and perused the material available on record. 8. Before dealing with the merits of the case, it would be pertinent to note that Gramin Dak Sevaks are not regular employees of the respondent department but are appointed as extra departmental agents working on part time basis. The services of Gramin Dak Sevaks are regulated by Gramin Dak Sevak, (Conduct & Employment) Rules 2001 which have been superseded and replaced by Gramin Dak Sevak (Conduct & Engagement) Rules, 2011. Rule 10 of the Rules of 2001 provides the procedure for imposing major penalty against Gramin Dak Sevaks on finding him/her guilty of grave misconduct or negligence during the period of engagement. Thus, the argument raised by counsel for the petitioner that Rules of 2001 are not applicable upon the petitioner does not hold water and is rejected. 9. It has been authoritatively held by Hon’ble the Supreme Court in the case of Government of Tamil Nadu vs. A. Raja Paniyan, reported in 1995 (1) SCC 216 that courts/tribunals cannot sit as a court of appeal over a decision based on the findings of the enquiry authority and department proceedings by making a roving factual enquiry. Where there is relevant material which the disciplinary authority has accepted and the same reasonably supports the conclusion reached by disciplinary authority, it is not the function of the courts/tribunals to review the same and record different finding than that of disciplinary proceedings. 10. The petitioner herein while working on the post of Gramin Dak Sewak, Raneri was subjected to a departmental enquiry for committing financial irregularities. 10. The petitioner herein while working on the post of Gramin Dak Sewak, Raneri was subjected to a departmental enquiry for committing financial irregularities. The petitioner had not denied charge No.1 levelled against him in the charge sheet dated 20.11.2009 pertaining to an entry of Rs.5,00,000/-on 04.06.2009 made in Branch Office accounts and Branch Office daily account of Raneri. The entry made in Branch Office daily account was dispatched to Phalodi sub post office, which was account office for Raneri branch office. Later on, the entry made in Branch Office account of Rs.5,00,000/-was deleted. In other words, petitioner admitted making an entry of Rs.5,00,000/-, without actual receipt of the amount. The aforesaid act of the applicant was also substantiated through documentary evidence and production of two witnesses namely D.R. Suthar and Neeraj Kumar Soni during the enquiry proceedings. 11. The charge No.2 pertained to non-acknowledgment of various receipts against amounts received on different dates from Accounts Office i.e. Phalodi Sub Post Office by Raneri Branch Office, as detailed in the charge. It was thus alleged that the petitioner had violated the rules and procedure provided in the Branch Post Office Regulations VIth Edition and directions issued by the office of Chief Post Master General, Jaipur vide letter No.SB/37-1/NREGA/07 dated 10.07.2008. The charge was found to be proved against the petitioner on the basis of production of Branch Office accounts for the alleged period. The aforesaid accounts were verified by witnesses and the petitioner. 12. In the third charge, it was alleged that the petitioner failed to report that on certain dates, the amounts received by the Branch Office as reflected in the daily accounts were not entered in the branch office slips of Accounts Office, Phalodi. Further, the petitioner neither asked for fresh branch office slips nor did he bring this fact to the knowledge of higher authorities. This charge was held to be proved against the petitioner on the basis of slips (Ex/P3) and branch office accounts (Ex/P2). 13. It is pertinent to note here that despite various opportunities being extended, the petitioner failed to produce any evidence in his defense before enquiry officer. 14. The enquiry officer, after thoroughly examining the documentary and oral evidence held all the charges to be proved against the petitioner. 13. It is pertinent to note here that despite various opportunities being extended, the petitioner failed to produce any evidence in his defense before enquiry officer. 14. The enquiry officer, after thoroughly examining the documentary and oral evidence held all the charges to be proved against the petitioner. The disciplinary authority accepted the findings recorded by the enquiry officer and imposed the penalty of ‘removal from service’ upon the petitioner vide order dated 30.11.2012. The appellate authority, after examining the appeal submitted by the petitioner against the punishment of ‘removal from service’ imposed upon him rejected the same being devoid of substance, vide order dated 20.08.2013. 15. In our considered opinion, the enquiry officer has submitted a well reasoned enquiry report after considering the material produced before him. Once, the petitioner had admitted the entry of Rs.5,00,000 in the Branch Office, without receiving actual amount and subsequently deleting the same after the same was forwarded to Phalodi Sub Post Office, the enquiry officer was totally justified in holding the petitioner guilty of charge No.1. 16. Similarly, the charge Nos.2 and 3 were also established by way of documentary and oral evidence to the effect that the accounts were not verified which paved way for fraud of Rs.1.97 crores, committed by Sub Post Master and Treasurer, Phalodi Sub Post Office. It was established that the modus operandi of the fraud was false/bogus remittances of MGNREGA cash to the branch offices. The petitioner facilitated the same by violating the procedure in the Branch Post Office Regulations VIth Edition and by not reporting the same to the higher authorities. 17. In view of the findings arrived at by the enquiry officer in the enquiry report, it cannot be said that this is a case of no evidence against petitioner or that the petitioner has been punished for the charges which were not levelled against him in the charge sheet dated 20.11.2009. We may hasten to add here that the findings recorded by enquiry officer have been challenged however, the procedure adopted in the enquiry has not been challenged. 18. It is settled law that the writ court, while exercising power of judicial review in a case arising from the disciplinary proceedings cannot re-appreciate and examine the sufficiency of the evidence. 19. We may hasten to add here that the findings recorded by enquiry officer have been challenged however, the procedure adopted in the enquiry has not been challenged. 18. It is settled law that the writ court, while exercising power of judicial review in a case arising from the disciplinary proceedings cannot re-appreciate and examine the sufficiency of the evidence. 19. We have also perused the orders dated 30.11.2012 and 20.08.2013 passed by disciplinary authority and appellate authority respectively which clearly shows that the enquiry report and objections thereupon by the petitioner have been thoroughly considered by the disciplinary authority before accepting the report of enquiry officer. Since, the authorities after examining the material, decided to accept the enquiry report, the elaborate separate reasons are not required to be given by the disciplinary authority and appellate authority. 20. Hon’ble the Supreme Court in the case of Municipal Committee, Bahadurgarh vs. Krishnan Bihari & Ors., reported in AIR 1996 SC 1249 held that:- “In a case of such nature – indeed, in cases involving corruption – there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.” 21. Similarly, in the case of Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh, reported in AIR 2006 SC 2730 , Hon’ble Apex Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only acceptable punishment is dismissal. 22. In the considered opinion of this Court, it has been clearly established in the departmental enquiry that the petitioner is guilty of defrauding public money. An employee working in the respondent department dealing with public money is required to maintain absolute integrity and public faith. No leniency can be shown towards an employee who is guilty of defrauding public money or destroying the public faith. The powers of judicial review available to this court cannot be exercised in cases where corruption and financial irregularities have been established by way of holding regular departmental enquiry. 23. In that view, the order dated 10.07.2019 passed by Central Administrative Tribunal, Jodhpur Bench in Original Application No.290/000299/2013 does not call for any indulgence and is upheld. The writ petition stands dismissed. 24. No order as to costs.