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2024 DIGILAW 27 (ORI)

Md. Zakria v. Union of India

2024-03-28

B.R.SARANGI, G.SATAPATHY

body2024
JUDGMENT G. Satapathy, J. The petitioner who is a retired employee of Department of Post by filing the present writ has assailed the findings recorded in the Departmental proceeding by praying to quash the impugned order dated 20.03.2017 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 214 of 2011, so also the order dated 29.06.2001 awarding penalty to him in such Departmental proceeding and the incidental orders passed on 18.08.2001 and 31.12.2009 by Sr. Postmaster and Chief Postmaster General respectively as well as, to grant all consequential and financial benefits as due admissible to him including the pensionary benefits, in exercise of extraordinary power under Articles 226 & 227 of the Constitution of India. 2. Briefly stated, the petitioner while working as a Stamp Vendor in the Postal Department, faced a Departmental Proceeding initiated against him on 02.02.1997 on the allegation of causing loss of revenue amounting to Rs.132/- to the Department by collecting letters and cash towards full payment of postage from different senders of foreign letters on 15.12.1994 and thereby, deriving unauthorized pecuniary benefits. On 02.06.1997, the Senior Postmaster Mr. B.K. Patra was, accordingly, appointed as Inquiring Authority(in short, "IA") to conduct the inquiry and on 31.03.1998, the petitioner requested the IA to supply some relevant documents, but the Senior Post Master expressed his inability to supply the documents. The IA, however, conducted the inquiry and exonerated the petitioner fully by his report dated 17.09.1999, but the Disciplinary Authority(DA) being dissatisfied with the inquiry report by an order passed on 29.11.1999 again remitted the matter back to the IA for conducting further inquiry from the stage of examination of witness Nos. 7 to 10, since they were not examined in the inquiry. Again the IA conducted the further inquiry by examining only Sri B.Digal as state witness No.7, out of the remaining 04 state witnesses because the remaining 03 witnesses did not attend the inquiry despite repeated summons. 7 to 10, since they were not examined in the inquiry. Again the IA conducted the further inquiry by examining only Sri B.Digal as state witness No.7, out of the remaining 04 state witnesses because the remaining 03 witnesses did not attend the inquiry despite repeated summons. After a detail inquiry, the IA has again found the Department to have miserably failed to prove the charge against the petitioner and, accordingly, submitted the inquiry report to the Disciplinary Authority(DA) on 27.11.2000, but the Disciplinary Authority while disagreeing with the finding of IA, passed an order on 08.05.2001 holding the petitioner guilty of the charge and thereafter, proceeded to impose penalty by issuing show cause to the petitioner who submitted his explanation on 17.05.2001 by denying the charge and requesting the Disciplinary Authority to exonerate him by accepting the inquiry report furnished by the IA, but the Disciplinary Authority by way of an order passed on 26.09.2001 awarded major penalty to the petitioner by reverting him to the lower post of 'Group D' until he is found fit, after a period of three years from the date of the order, to be restored to the higher post of Postman and the petitioner was, accordingly, reverted to the post of Group 'D' by an order of the Department passed on 04.07.2001. It is relevant to note that the petitioner was also placed under suspension from 17.02.1995 to 05.07.2001 and his period of suspension was treated as such by an order of the Department passed on 18.08.2001. It is also stated by the petitioner that no opportunity was given to him before passing the order for treating his suspension period as such. While the matter was as such, the learned SDJM, Bhubaneswar by his judgment dated 19.02.2003 passed in GR Case No. 4146 of 1994 acquitted the petitioner of the criminal charges which was initiated against him on the selfsame allegation as leveled in the Departmental Proceeding, but after his acquittal, on 21.08.2003 the petitioner filed a revision before the Chief Post Master General(CPMG) who by his order dated 02.05.2006 rejected the claim of the petitioner on the ground of delay in filing the revision. The petitioner, however, challenged such order of CPMG before the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 839 of 2006, wherein the learned Tribunal quashed the order of CPMG dated 02.05.2006 and directed him to consider and dispose of the revision petition of the petitioner afresh on merit by way of a speaking order. Pursuant to such order of the learned Tribunal, the Chief Post Master General by way of a detailed and speaking order dated 31.12.2009 rejected the claim of the petitioner. The petitioner, however, claiming such order of the Revisional Authority-cum-OP No.2 to be illegal, arbitrary and gross-violation of natural justice had challenged the same before the learned Tribunal in O.A. No. 214 of 2011. According to the petitioner, his punishment was in gross-violation of Rule 14(15) of CCS(CCA) Rules, 1965, but the learned Tribunal passed order on 20.03.2017 in O.A. No. 214 of 2011 in rejecting the claim of the petitioner by concluding inter alia that the Tribunal cannot re-appreciate the evidence and reach its own conclusion and the order of Disciplinary Authority passed a decade back and the delinquent employee having already undergone the punishment, it cannot alter such punishment. The learned Tribunal by the impugned order has also further assigned that the Disciplinary Authority as well as Revisional Authority have assigned valid reasons for finding the petitioner guilty of the charge in Departmental Proceeding and by holding so, the learned Tribunal accordingly dismissed the O.A. No. 214 of 2011. Hence, this writ petition by the petitioner. 3. In response to the notice of the writ petition, OP Nos. 1 to 3 have filed their joint counter affidavit denying all the allegations made by the petitioner and inter alia contending that the request of the petitioner for additional documents had been well considered by the IA and all reasonable opportunity had been given to the petitioner to prove his innocence through the documents listed in the Departmental Proceeding and the Disciplinary Authority had also communicated the reasons to the petitioner with regard to disagreement with the finding of the IA and the Disciplinary Authority on the basis of material evidence had held the petitioner guilty of the charge and accordingly awarded penalty to the petitioner in the Departmental Proceeding and after award of penalty, the period of suspension of the petitioner was regularized as such basing on the Rules and provisions of the Department. It is also stated in the counter affidavit that the Departmental Proceeding was concluded before conclusion of trial in the criminal case and the Departmental Proceeding can run independently of the criminal charges. It is also noted in the counter affidavit that the finding in the Departmental Proceeding has been confirmed by the learned Tribunal in O.A. No. 214 of 2011 and the claim of the petitioner being unmerited, the writ petition is liable to be dismissed. 4. Heard Dr. J.K. Lenka, learned counsel for the petitioner so also Mr. A.K. Mohanty, learned Central Government Counsel appearing for OP Nos.l to 3 and perused the record. In the course of hearing, Dr. Lenka has argued vehemently by contending inter alia that the learned Tribunal had erroneously interpreted the law and concluded by taking hyper technical view that the order of Disciplinary Authority passed way back in 2001 cannot be altered after a decade and that too, without considering the materials on merits, but the acquittal of the petitioner from the criminal charges is itself indicative of the fact that the petitioner was not at all guilty of the charge for which he has been awarded major penalty in the Departmental Proceeding by reduction in rank. It is also submitted that the Revisional Authority without any analysis of evidence collected in support of the charge in the Departmental Proceeding has passed the order mechanically refusing the claim of the petitioner ignoring the report of the IA who had found the petitioner innocent of the charge twice; once in the initial Departmental Proceeding and subsequently, in the same proceeding after Disciplinary Authority remitted the matter back for inquiry afresh. Dr.Lenka has also submitted that the IA after taking into consideration the relevant evidence and documents had found the petitioner not guilty of the charge twice, which was further confirmed by the acquittal of the petitioner in the criminal case, but the Disciplinary Authority ignoring these facts has not only punished the petitioner by reverting him to lower in rank, but also has passed order subsequently to treat the period of suspension as such which is contrary to the Provisions of Rules 14(15) of CCS(CCA) Rules, 1965. In summing up his argument, Dr. Lenka has prayed to allow the writ by quashing the orders and restoring the petitioner with financial benefits as due and admissible to him. 5. In summing up his argument, Dr. Lenka has prayed to allow the writ by quashing the orders and restoring the petitioner with financial benefits as due and admissible to him. 5. On the other hand, Mr.Mohanty, learned Central Government Counsel has submitted that not only the petitioner has accepted his punishment by joining in the reverted post, but also he was not vigilant to approach the authority with promptitude since the petitioner has challenged his punishment after a gap of eight years in the Tribunal. It is also submitted by the learned CGC that the petitioner after being awarded with penalty in the Departmental Proceeding on 26.09.2001 has accepted the same by joining in the Group 'D' post and he first came out from the deep slumber for the first time after his acquittal on 22.02.2003 by filing a revision before the Chief Post Master General, but he has never challenged the order of penalty in Departmental Proceeding in any Appellate forum and thereby, the Tribunal has rightly rejected the claim of the petitioner by refusing to interfere with in the matter after more than a decade and half and therefore, the petitioner's claim merits no consideration. Accordingly, the learned CGC has prayed to dismiss the writ petition. 6. After having carefully considered the rival submissions, this Court has extensively perused the materials available on record. On the face of record, it is quite indisputable that a Departmental Proceeding was initiated against the petitioner on 02.02.1997, but he was exonerated by the Inquiring Authority Mr. B.K. Patra(IA)-cum-SDI(P) Nayagarh West Sub-Division, Nayagarh vide his report dated 27.11.2000, however, the Disciplinary Authority-cum-Senior Post Master, GPO, Bhubaneswar, while disagreeing with the findings of the IA has considered that the charges framed against the petitioner stands proved and he, accordingly, communicated his findings to the petitioner vide letter No. B/51 dated 08.05.2001 asking/giving option to the petitioner to make any representation in writing if he so wishes on receipt of the above stated letter, to which the petitioner made a detailed representation to the Disciplinary Authority to exonerate him by accepting the inquiry report submitted by IA. After receipt of the detailed representation of the petitioner and considering it, the Disciplinary Authority by an order passed on 29.06.2001 has held the petitioner to be guilty of the charge framed against him in the Departmental Proceeding and, accordingly, awarded penalty by ordering the petitioner to be reverted to the lower post of Group 'D' until he is found fit, after a period of three years from the date of this order, to be restored to the higher post of Postman. It is also found from the record that pursuant to the order of the Disciplinary Authority, the petitioner was reverted and posted as Group 'D' on 04.07.2001 by the order of Senior Post Master GPO, Bhubaneswar and his period of suspension with effect from 17.02.1995 to 05.07.2001 was treated as such by the order of the Senior Post Master GPO, Bhubaneswar as communicated to the petitioner vide Memo No. B5-51(SUB) dated 18.08.2001. 7. Admittedly, the petitioner did not prefer any appeal against the order of penalty awarded to him in Departmental Proceeding, rather it appears that he had accepted the penalty by joining in the Group 'D' post till he was acquitted in the criminal case in GR Case No. 4146 of 1994 by learned S.D.J.M., Bhubaneswar vide judgment dated 19.02.2003, which was instituted for the selfsame allegation and, therefore, the petitioner remained silent since 04.07.2001 on which date, he was reverted to Group 'D' post till he preferred a revision before the Chief Post Master General on 21.08.2003, but the Chief Post Master General vide order dated 02.05.2006 rejected the revision petition for delay of more than two years. The petitioner, however, successfully got the order passed in the revision quashed by the Tribunal in O.A. No. 839 of 2006 which was disposed of on 12.11.2009 directing the respondent(CPMG) to consider and dispose of the revision petition of the petitioner on merit and to pass a reasoned order within 90 days, whereafter the Chief Post Master General, Orissa Circle, Bhubaneswar vide order dated 31.12.2009 disposed of the revision petition of the petitioner by passing a speaking order refusing to interfere with the order passed by the authority in the Departmental Proceeding. Being aggrieved, the petitioner had again approached the Tribunal in O.A. No. 214 of 2011 which was also dismissed on merit. 8. Being aggrieved, the petitioner had again approached the Tribunal in O.A. No. 214 of 2011 which was also dismissed on merit. 8. Assailing the impugned order passed by the Tribunal, the petitioner has approached this Court in this writ petition, but although the petitioner remained silent for more than two years from 04.07.2001 till 21.08.2003, however, the Tribunal did not take into account the aforesaid delay while setting aside the order of Authority passed in the revision by directing to consider the revision petition of the petitioner afresh, but the petitioner again remained silent for more than two years in approaching the Tribunal in OA No. 214 of 2011 after his revision petition was rejected by the Chief Post Master General on 31.12.2009 by a speaking order. This delay is, however, material since the petitioner wishes to challenge the order passed more than a decade ago. Further, the Tribunal has rightly considered that the petitioner has accepted his penalty by joining the Group 'D' post, but this Court considers that after accepting such penalty, the subsequent challenge of the petitioner to the penalty after a considerable time is just like unsettling the orders which has already been carried out and thereby, causing great difficulty to the department in restoring the benefits to the petitioner after more than two decades. 9. One of the ground as advanced by the learned counsel for the petitioner is for urging the Court to re-appreciate the evidence tendered in the Disciplinary Proceeding and consequent orders, but what is the scope of interference by this Court in exercise of power under Articles 226 and 227 of the Constitution of India in Departmental Proceeding has been succinctly laid down by the apex Court in Union of India and others v. P. Gunasekaram; (2015) 2 SCC 610 , wherein it has been held at paragraphs 12 and 13 of the judgment which reads as under:- 12. xx xx 'The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. xx xx 'The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 10. Further, in State of Haryana and another v. Rattan Singh; (1977) 2 SCC 491 , the apex Court at paragraph-4 has held as under: 'It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good." xx xx The above decisions has made it clear that re-appreciation of evidence led in Departmental Proceeding by writ Court is impermissible, but the petitioner herein wants the Court to go in detail into the evidence and record a finding in his favour by hair-splitting appreciation of evidence led in the Departmental Proceeding which is impermissible. Further, no ground as detailed in the decisions referred to above has been urged by the petitioner in this writ. 11. Additionally, Dr. Lenka, learned counsel for the petitioner has relied upon the decision in Dr. Minaketan Pani Vrs. State of Orissa; CRLMC No. 3407 of 2010 disposed of on 20.05.2022, but the said decision having rendered in quashing of criminal charges against the delinquent on the ground of charges being not established in the Department Proceeding is clearly not applicable to the present case inasmuch as quashing of criminal charges or acquittal in criminal case ipso facto would not exonerate the delinquent of the charge leveled in Departmental Proceeding since the standard of proof required to establish the charge in criminal case is 'beyond all reasonable doubt', whereas the standard of proof in Departmental Proceeding is 'preponderance of probability". It can so happen that a person acquitted of criminal charges can still be held liable in Departmental Proceeding in view of the standard of proof adopted in criminal case is different from the standard of proof adopted in Departmental Proceeding. In other words, a person who is not held liable on the pedestal of proof of accusation beyond all reasonable doubt can still be found liable for the charge in Departmental Proceeding in the lower standard of proof of preponderance of probabilities. The learned Tribunal has, accordingly, rightly held that mere acquittal of the petitioner in criminal proceeding would not be a bar for drawing a Disciplinary Proceeding against him. The learned Tribunal has, accordingly, rightly held that mere acquittal of the petitioner in criminal proceeding would not be a bar for drawing a Disciplinary Proceeding against him. Besides, no ground has been made out by the petitioner which persuades this Court to take a contrary view to that have been taken by the Tribunal. It is not the case of the petitioner that the Revisional Authority or Disciplinary Authority has passed the order on no evidence. Further, had the petitioner being aggrieved by the findings of the Disciplinary Authority, he could have preferred any appeal against such order, but he remained silent for two years and thereafter, preferred a revision before the Authority and in addition, when the Revisional Authority rejected his claim, the petitioner again sat idle and did not challenge such order for near about two years. This Court, however, does not see any reason to upset the findings recorded against the petitioner after more than two decades of the order passed by the Disciplinary Authority. Further, no provision of CCS(CCA) Rules, 1965 has been brought to the notice of the Court to consider that the findings arrived at by the Tribunal is perverse or suffers from any illegality. Besides, the petitioner could not convince the Court that the Disciplinary Authority lacks jurisdiction to arrive at findings disagreeing with the Inquiry report submitted by Inquiring Authority or the penalty imposed on the petitioner is shockingly disproportionate. 12. On wholesome consideration of the principle laid down by the Apex Court in the decisions referred to above and taking into account a critical analysis of conspectus of materials placed on record and discussion made hereinabove, this Court does not find any reason to interfere with the order passed by the Disciplinary Authority and the Tribunal. Resultantly, the writ petition being devoid of merit stands dismissed on contest, but no order as to costs.