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2025 DIGILAW 156 (GUJ)

Union of India v. Holiyabhai Jemubhai Vasava

2025-02-25

CHEEKATI MANAVENDRANATH ROY, UMESH A.TRIVEDI

body2025
ORDER : UMESH A. TRIVEDI, J. 1. By way of this petition under Articles 226 and 227 of the Constitution of India the petitioners have challenged the order passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as ‘the tribunal’) dated 17.11.2015 in Original Application No.251 of 2011 whereby it quashed and set aside the orders dated 31.03.2004 and 12.04.2011 by the disciplinary authority and appellate authority respectively and the matter was remanded back to the disciplinary authority to take appropriate view for imposing lesser punishment other than dismissal from service and removal from service within a period of two months from the date of receipt of copy of the order and the respondent was directed to be reinstated in service. 2. This case has a very checkered history as narrated hereunder: 2.1 The respondent – employee was working as GDS Branch Postmaster since the year 1988. In the year 2002, while he working as GDS (Branch Postmaster), Chitpur B.O. at PO Uchchhal, he was served with memorandum of charges dated 11.02.2002, which contained two articles of charges namely that he remained abruptly absent from his duty with effect from 28.12.1999 to 31.12.1999 without getting the leave approved and he had obtained B.O. bag containing cash bag for Rs.4300/- closed by SPM Uchchhal S.O. for Chitpur B.O. on 24.12.1999 but the same was not taken into account of Chitpur B.O. account with effect from 28.12.1999 and onwards was not maintained and submitted to the competent authority. On denial of such charges and conducting the inquiry, penalty of dismissal from service was inflicted by the order dated 31.03.2004. The same was challenged by preferring an appeal before the appellate authority. Until 02.06.2004 it remained unattended for a pretty long time, and therefore, he approached ‘the tribunal’ by Original Application No.387 of 2005 and ‘the tribunal’ by order dated 12.06.2006 allowed and quashed and set aside the disciplinary proceedings and directed the petitioners to reinstate the respondent in service with consequential benefits. The said order of ‘the tribunal’ dated 12.06.2006 was challenged by the petitioners by way of Special Civil Application No.23547 of 2006 before this Court. The said order of ‘the tribunal’ dated 12.06.2006 was challenged by the petitioners by way of Special Civil Application No.23547 of 2006 before this Court. This Court vide order dated 22.07.2010 was pleased to quash and set aside the order dated 12.06.2006 and the matter was remanded back to decide it afresh in accordance with law, and thereafter, ‘the tribunal’ heard the matter afresh and by order dated 21.02.2011 in Original Application No.387 of 2005 directed the appellate authority to consider the statutory appeal of the respondent dated 02.06.2004 and to pass a reasoned and speaking order after affording a personal hearing to the respondent herein. Pursuant thereto, the appellate authority considered the appeal and vide order dated12.04.2011 dismissed the same. 2.2 Being aggrieved by the said order dated 12.04.2011, the respondent filed the aforesaid Original Application challenging the initial order dated 31.03.2004 and order on reconsideration passed by the authority dated 12.04.2011 passed by the appellate authority. ‘The tribunal’ by the impugned order quashed and set aside the order dated 31.03.2004 and 12.04.2011 passed by the disciplinary authority and confirmed by the appellate authority and the matter was remanded back to the disciplinary authority to take appropriate view for imposing lesser punishment other than dismissal from service and removal from service within a period of two months from the date of receipt of a copy of the order and the respondent was directed to be reinstated in service. It is against that order, the present petition is filed by the petitioners. 3. Mr. Harsheel Shukla, Central Government Standing Counsel, learned advocate has vehemently submitted that the scope of judicial review is very limited in disciplinary action taken against the respondent for unauthorized absence, without getting leave approved as also retaining cash amount of Rs.6836.05 for a period of six days, which ultimately came to be deposited by him with the authority, claimed to be temporarily misappropriated. To the charge memorandum issued, the respondent attempted to explain that he fell sick, and therefore, he could not get his leave sanctioned prior to proceeding on leave. He has further explained that the B.O bag containing cash was intact and it was not even opened by the delinquent. It is because of illness he could not report for duty and get it deposited before the competent authority. He has further explained that the B.O bag containing cash was intact and it was not even opened by the delinquent. It is because of illness he could not report for duty and get it deposited before the competent authority. However, the said explanation offered by the delinquent did not find favour with the disciplinary authority and finding of guilt was recorded against him by imposing punishment in the form of dismissal from service under Rule 9 of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement)Rules, 2011 (hereinafter referred to as ‘the Rules’). 4. Heard Mr. Harsheel Shukla, Central Government Standing Counsel, learned advocate for the petitioners. According to his submission, the order passed by the disciplinary authority and confirmed by the appellate authority is found to be just and proper even by ‘the tribunal’. In such circumstances, according to his submissions, ‘the tribunal’ could not have interfered with the punishment imposed, which is provided under Rule 9 of ‘the Rules’ as one of the punishments. He has further submitted that despite ‘the tribunal’ concluded that the departmental inquiry was just and proper, there was no procedural defect and even the charge of misconduct has been proved, which is grave in nature, despite that, ‘the tribunal’ has interfered with the punishment imposed and directed the disciplinary authority to impose punishment under Rule 9 of ‘the Rules’ other than dismissal or removal from service, which is not permissible. Relying on the decision in the case of Union of India and Others Vs. Dwarka Prasad Tiwari, (2006) 10 SCC 388 , more particularly, paragraph nos.12 to 15 for a proposition that the Court should not interfere with the administrative decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscious of the Court, in the sense that it was in defiance of logic or moral standards. 4.1 It is further submitted that the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. In short, it is his submission that unless the punishment imposed shocks the conscience of the Court /tribunal, there is no scope for interference in the punishment imposed. In short, it is his submission that unless the punishment imposed shocks the conscience of the Court /tribunal, there is no scope for interference in the punishment imposed. 4.2 He has further submitted that though Rule 9 of ‘the Rules’ may prescribe different punishments, which can be imposed upon the delinquent, the choice made by the administrator cannot be substituted by ‘the tribunal’, more particularly, after holding that inquiry was conducted as per ‘the Rules’ and there is no lacuna therein. He has further submitted that there appears no grievance against the procedure adopted while conducting an inquiry and finding recorded by the disciplinary authority and also confirmed by the appellate authority. The grave concern of the respondent employer appears to be proportionality into the punishment. 4.3 In that respect relying on the decision in the case of Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, (2005) 3 SCC 254 , more particularly, paragraph 13 thereof for a proposition that misappropriation of Rs.93/- held to be dishonest or was so grossly negligent and delinquent was considered not fit to be retained as a Conductor. It is also held therein that in such cases there is no place for generosity or misplaced sympathy on the part of judicial forums and thereby interfere with the quantum of punishment. 4.4 While summing up, it is submitted that at any rate, ‘the tribunal’ could not have interfered with the punishment imposed on the ground of proportionality. Temporary misappropriation to the tune of Rs.6836.05 is proved but the mere fact that it has been deposited by the delinquent is no ground to interfere with the punishment by ‘the tribunal’. It is submitted that the employer has lost faith in the delinquent OfÏcer, and therefore, for such grave act, which is held to be grave by ‘the tribunal’, punishment of dismissal from service could not have been interfered by it, and therefore, it is submitted that the petition be allowed and order of tribunal be quashed and set aside. 5. As against that, Ms. Sunita Chaturvedi, learned advocate for the respondent employee submitted that there were two charges levelled against the respondent for unauthorized absence i.e. taking leave without it being sanctioned and retaining cash of the department, which was found to be intact in bag when presented before the competent authority for depositing the same. 5. As against that, Ms. Sunita Chaturvedi, learned advocate for the respondent employee submitted that there were two charges levelled against the respondent for unauthorized absence i.e. taking leave without it being sanctioned and retaining cash of the department, which was found to be intact in bag when presented before the competent authority for depositing the same. Therefore, according to her submission, for a very short span of leave, that too, on medical emergency, no disciplinary action should have been taken against him. She has further submitted that as such from 28.12.1999 till 31.12.1999, for four days only respondent defaulted in depositing the amount of cash before the competent authority as 01.01.2000 and 02.01.2000 being holiday, there is no question of resuming duty on that day, and therefore, it was presented on 03.01.2000. Therefore, she has submitted that since the punishment imposed is grossly disproportionate to the charge levelled, ‘the tribunal’ has rightly remanded the case back to the disciplinary authority for imposing punishment other than dismissal or removal from service. 5.1 She has further submitted that by the time he had put in 11 years of unblemished service and on a single incident of retaining cash with him, that too, for six days only, instead of depositing with the competent authority, when he fell sick for which he produced medical certificate issued by Government Hospital may be of an adjoining border State, has not at all been considered by the Department, and therefore, the order passed by ‘the tribunal’ being just and proper, this Court may not interfere with the decision rendered by it. 6. Having heard learned advocates for the appearing parties and going through the impugned decision as also documents annexed with it, we are called upon to examine whether ‘the tribunal’ could have interfered with the punishment of dismissal from service in the facts and circumstances of the case directing the authority to impose lesser punishment than dismissal or removal from service as provided under Rule 9 of ‘the Rules’. 6.1 Considering the fact that the action against the respondent employee took years together for the final conclusion, his prime time of youth, he spent in this litigation by now. So far as charge levelled against the respondent delinquent is grave, there is no dispute, regarding the same. 6.1 Considering the fact that the action against the respondent employee took years together for the final conclusion, his prime time of youth, he spent in this litigation by now. So far as charge levelled against the respondent delinquent is grave, there is no dispute, regarding the same. At the same time, absence from duty without leave being sanctioned, that too, for ill-health of the petitioner, and therefore, not depositing the amount of cash before the competent authority, that too, for few days only, is the result thereof. However, neither from the order of ‘the tribunal’ nor from the documents annexed, it is coming on record whether that certificate and the explanation offered, based thereon, is considered by the department in its true and correct perspective or not. At the same time, even if charge levelled against the delinquent is proved, his explanation based on documentary evidence has to be considered and then only the decision in respect of punishment to be imposed when rule prescribes several punishments and not the only punishment of dismissal or removal from service, which includes censure, debarring of a Sevak from appearing in the recruitment examination for post of Postman and /or from being considered for recruitment of Postal Assistants /Sorting Assistants for a period not exceeding three years, debarring of a Sevak from being considered for recruitment to Group ‘C’ for a period not exceeding three years and recovery from Time Related Continuity Allowance of the whole or part of any pecuniary loss caused to the Government by negligence or breach of order. 6.2 If for such a grave charge falling as misconduct under Rule 9 of ‘the Rules’, even censure is also provided, as an alternate punishment, ‘the tribunal’ has rightly considered assigning reasons, the explanation offered that dismissal from service is shocking to the conscience of it for the breach alleged, and therefore, ‘the tribunal’ remanded back the matter to the disciplinary authority for imposing any other punishment than dismissal or removal from service, appears to us to be just and proper. 6.3 The respondent employee has put in 11 years of unblemished service. Retaining cash of the ofÏce for a period of six days only because he fell sick may be a grave offence, and major penalty under Rule 9 of ‘the Rules’ could be imposed. 6.3 The respondent employee has put in 11 years of unblemished service. Retaining cash of the ofÏce for a period of six days only because he fell sick may be a grave offence, and major penalty under Rule 9 of ‘the Rules’ could be imposed. There is no provision, which specifically prohibits the disciplinary authority from imposing any other suitable punishment to meet with the ends of justice for reasons to be recorded in writing. As coming out from Rule 9 of ‘the Rules’, several punishments shown in it, which can be imposed as a major penalty, being conscious of narrow scope, doctrine of proportionality being a tool of judicial review, ‘the tribunal’ opined that punishment of dismissal from service imposed by the disciplinary authority is shockingly disproportionate. The decision relied on by Mr. Harsheel Shukla, Central Government Standing Counsel, learned advocate for the petitioners in the case for District Judge, Bahraich and Another Vs. Munijar Prasad, (2002) 10 SCC 425 for its proposition cannot be ignored but at the same time, there is a finding recorded by ‘the tribunal’ that punishment imposed is shockingly disproportionate. While considering several mitigating circumstances, the decision in the case of Dwarka Prasad Tiwari (Supra) is not applicable in the present case as choice of punishment imposed by the disciplinary authority is not supported by reasons and for not imposing any other punishment, no reasons are assigned by it. At the same time, the decision in the case of A.T. Mane (Supra) also could not be applicable as ‘the tribunal’ has not interfered with the punishment for showing any generosity or misplaced sympathy, and therefore, decision of ‘the tribunal’ when it records reasons for remanding back the case to disciplinary authority for the purpose of imposing any suitable punishment other than dismissal or removal from service, we see no reason to interfere with the same while sitting in jurisdiction under Articles 226 and 227 of the Constitution of India. 7. In view thereof, this petiton stands rejected. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated.