V KUMARA SWAMY vs Dept of Posts on 28 December 2018

1. 1. Inspector Posts, Narsampet Sub Division, Narsampet 506132,

2. 2. The Superintendent of Post Offices, Warangal Division, Warangal,

3. 3. The Post Master General, , Hyderabad Region, Hyderabad 500001,

4. 4. Union of India represented by The Secretary to the Govt. of India, Ministry of Communications & IT, Department of Posts, India, Das Bhavan, Sansad Marg, New Delhi 110001.

... Respondents

Counsel for the applicant : Mr.M VENKANNA

Counsel for the respondents : Mr. K Venkateswarlu, Addl. CGSC

C O R A M :

THE HON'BLE MR .JUSTICE L NARASIMHA REDDY, CHAIRMAN THE HON'BLE MR. B.V.SUDHAKAR, MEMBER (A)

OA 021/1232/2012The seal of the Central Administrative Tribunal, featuring a circular emblem with a sunburst in the center, surrounded by the text 'Central Administrative Tribunal' and 'सत्यमेव जयते' at the bottom.**ORAL ORDER****(Per Hon'ble Mr. Justice L Narasimha Reddy, Chairman)**

The applicant herein was appointed as a Grameen Dak Sevak (GDS) in respect of Chennaraopet SO of Warangal District. He was also entrusted with the duties of Packer and Mail Career. A charge memo was issued to him on 15.5.2009 alleging that he accepted instalments in respect of Recurring Deposit (RD) accounts and Rural Postal Life Insurance (RPLI), between June and September 2007 and did not hand over the amounts to the Sub Post Master (SPM). It was also alleged that he performed duties beyond what was entrusted to him. The applicant submitted his explanation denying the charges. He stated that the acceptance of instalments was on account of absence of SPM at the relevant point of time, and on instructions of the SPM on various occasions.

2. Not satisfied with the explanation, the Disciplinary Authority appointed the Inquiry Officer. Through his report dated 16.11.2010, the Inquiry Officer held the charges as proved. The Disciplinary Authority agreed with the findings and furnished a copy of the report to the applicant. On consideration of the explanation submitted by the applicant, the Disciplinary Authority passed the order dated 30.11.2010, imposing the punishment of debarring the applicant from being considered for recruitment to Group 'D' for a period of three years.

The logo of the Central Administrative Tribunal, featuring a circular emblem with a sunburst in the center and the text 'Central Administrative Tribunal' around the perimeter.OA 021/1232/2012

3. The Appellate Authority proposed to exercise the powers of suo moto review, as regards the order of punishment, and issued show cause notice dated 21.03.2011. The applicant submitted his explanation to the same. Thereafter, a second notice was issued on 27.02.2012. The applicant repeated his earlier defence. Taking the same into account, the Appellate Authority passed the order dated 20.03.2012 imposing the punishment of dismissal from engagement. Orders of original and enhanced punishment are challenged in this OA.

4. The applicant contends that he has been discharging the functions of GDS without any complaint and to the satisfaction of the authorities for $2\frac{1}{2}$ decades. He contends that it was only when the SPM was not there in the office and he was instructed to do so, that he accepted the instalments of RD and RPLI, to avoid inconvenience to the customers and the allegation of failure to hand over the amounts to the SPM is totally baseless. He further submitted that during the course of the inquiry, the Presenting Officer far exceeded his limits by declaring the witnesses as hostile. He contends that the Inquiry Officer committed patent illegality in taking upon himself, the task of Presenting Officer and has examined several witnesses, beyond the scope of his functions. He submits that there was no basis for holding the charges as proved or for imposition of the punishment debarring him for engagement for three years. The applicant further contends that the appellate authority has chosen to review the

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OA 021/1232/2012The logo of the Central Administrative Tribunal, featuring a circular emblem with a wheel in the center, surrounded by the text 'Central Administrative Tribunal' and 'भारतीय न्यायिक प्रणाली'.

punishment without any basis and failed to notice the illegality committed by the Inquiry Officer.

5. The respondents filed counter opposing the OA. It is stated that the applicant did not dispute the fact that he collected the instalments from the depositors and admitted that it is wrong on his part. It is stated that in the inquiry, the charges against him were held proved. It is also stated that the Appellate Authority has exercised the powers vested in him under Rule 19(1)(i) of GDS (Conduct & Engagement) Rules, 2011 and imposed punishment, commensurate with the charges held proved against the applicant.

6. We heard Mr. M.Venkanna,, learned counsel for the applicant and Mrs. M Swarna, proxy counsel for Mr. K.Venkateswarlu, Additional Standing Counsel for the respondents.

7. The applicant was functioning as GDS from 1984. He was issued charge memo, by which time, he completed twenty five years of service. The allegation against him is that he accepted certain installments in respect of RDs and DPLIs and did not hand over the amounts to the SPM. The four articles are similar but are with reference to the holders of different accounts. The applicant stated that he had to receive the installments since the SPM was not present and soon after his arrival, the amounts were handed over to him. Not being satisfied with his explanation, the Disciplinary Authority appointed the Inquiry Officer.

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8. The applicant filed a copy of the report of the Inquiry Officer as well as the copies of the depositions recorded by the Inquiry Officer. Rarely one comes across, the type of inquiry that was undertaken by the Inquiry Officer in the instant case. For instance, one of the witnesses examined by the Department was Mr. Sambaiah, PW-5. He was shown a statement said to have been recorded from him on 4.12.2007. On perusal of the same, he stated that it is not his statement. In addition, he stated that on 15.6.2007, he paid Rs.593/- to the Post Master and latter in turn gave Pass book to the applicant. According to him, the applicant gave receipt for Rs.593/-, put a seal on the pass book, and handed it over to him. After this deposition, following endorsement was made by the Inquiry Officer:

**"At this stage, the P.O has declared that the PW5 turned hostile"**

The examination in chief was stated as 'NIL'. Then he permitted the PO to cross examine the said witness. After conclusion of the cross examination of PW5 by the PO, the Inquiry Officer took upon himself, to examine the witness. He has put as many as 13 questions, which are purely in the form of cross examination. For example, in Question Q8, he asked, "you are speaking false even after knowing that Exhibit P12 is true." The witness answered in negative. This was followed by another question by the Inquiry Officer viz., "in case the facts mentioned in Exhibit P12 are not true, should we cancel RPLI policy NO.EA-198055". The witness said that they can do so. The other question put by him does not even

OA 021/1232/2012The logo of the Central Administrative Tribunal, featuring a circular emblem with a sunburst design in the center, surrounded by the text 'Central Administrative Tribunal' and 'भारत सरकार' (Government of India) in Devanagari script.

occur to a professional defence lawyer in criminal court. The witness was not even permitted to be examined by the charged officer i.e., the applicant.

9. Another account holder was PW4 by name Smt. M.Rajitha. In the chief examination, the only answer elicited from her was that Exhibit P10 is her statement. In the cross examination the applicant wanted the witness to read Exhibit P10 and explain the contents thereof, to the Inquiry Officer. On this, the Inquiry Officer gave following ruling:

"The PW-4 has already stated before the I.O during the course of inquiry that she had studied 9^th class. Again the statement dated 8.1.08 has been given to the PW-4 Smt. M.Rajtha, she has gone through the statement. Further the statement is read over to the PW-4 and explained by me in telugu. After knowing about the contents of the statement, the PW-4 has stated that the contents of her statement are true. Hence the question is disallowed."

10. Then in reply to another question put by the applicant, the witness claimed ignorance about the date of Exhibit P10 or its contents. The PO has not chosen to reexamine the witness. However, the Inquiry Officer took upon himself, to examine the said witness and has put as many as 8 questions which a professional defence lawyer would hesitate to ask. As regards PW3, the amount of examination by the Inquiry Officer far exceeded that of the applicant. Similarly, he went on examining every witness.

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The logo of the Central Administrative Tribunal, featuring a circular emblem with a sunburst design in the center, surrounded by the text 'Central Administrative Tribunal' and '1971' at the bottom.OA 021/1232/2012

11. The inquiry was totally vitiated. Obviously noticing the patent illegality in the inquiry proceedings, the Disciplinary Authority wanted to give a ^quiescens ~~Nineyus~~ to the issue by imposing the punishment of debarring the applicant for a period of 3 years for being considered for engagement as Group 'D'.

12. The Appellate or the Reviewing Authorities are conferred with the power of modifying the punishment to ensure that the proceedings before the sub-ordinate authorities takes place in a correct and proper manner. They are not supposed to take sides, much less feel that, they are part of the department, when exercising such power. In the instant case, any scrutiny of the proceedings by the properly trained officer at the stage of Appellate Authority would have result in annulment of the order of punishment having regard to the manner in which the Inquiry Officer conducted himself. As a matter of fact, strictures ought to have been passed against the Inquiry Officer for the manner in which behaved with the witnesses as well as the applicant. Unfortunately, the Appellate Authority has chosen to exercise suo moto powers to impose the maximum punishment of dismissal from engagement against the applicant.

13. We are of the view that miscarriage of justice took place against the applicant who rendered 25 years of unblemished service as GDS. It appears there were allegations against the SPM and we were informed that he was removed from service on being held guilty of misconduct. It may be true that the applicant

A handwritten signature in dark ink, appearing to be 'M.S.' or similar initials.

OA 021/1232/2012The logo of the Central Administrative Tribunal, featuring a circular emblem with a sunburst design in the center, surrounded by the text 'Central Administrative Tribunal' and 'भारत सरकार' (Government of India) in Devanagari script.

discharged his functions which were not within his legitimate duties. When the SPM was not in office, he received the instalments and pass books and returned them to the customers after obtaining the signature of the SPM. Thereby he rendered service while the SPM was doing disservice. Not a single witness examined by the Department spoke to the factum of the applicant misappropriating any amounts collected by him. The Inquiry Officer reduced the entire departmental Inquiry into a mockery and he far exceeded the role of a Presenting Officer. The nature of the questions put by him to the various witnesses examined by the department would clearly demonstrate the amount of prejudice he entertained against the applicant. We are of the view that the entire proceedings are vitiated and the order passed by the disciplinary authority is liable to be set aside.

14. Coming to the Appellate Authority, except stating initially that he intends to exercise the power of review and thereafter to differ with the view taken by the Disciplinary Authority, not a single reason worth its name was mentioned in the show cause notices. Even in the order, no reference was made to the deposition of any witness to come to a different conclusion. Mere existence of power is not a justification for exercising there of, more so when such power is sought to be exercised to the detriment of an employee who already suffered punishment.

15. We therefore allow the OA setting aside the order of punishment dated 30.11.2010 passed by the Disciplinary Authority

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and the one dated 20.03.2012 of the Appellate Authority. The applicant shall be extended all the consequential benefits. There shall be no order as to costs.

प्रमाणित प्रत CERTIFIED TRUE COPY

केस संख्या CASE NUMBER: OA 1232/2012 निर्दण्ड का तारीख DATE OF JUDGEMENT: 28-12-2018 जिला/मंडल/बेन्च का नाम जिला/मंडल/बेन्च का नाम DATE MADE IN/ON ON: 7-1-2019

Nirmal 7/1/19

जिला अधिकारी / मंडल अधिकारी Session Officer / Court Officer भारतीय प्रशासनिक मण्डल Central Administrative Tribunal हैदराबाद बेंच/Hyderabad Bench