MD MASHUD KHAN CHOUDHURY vs DEPTT OF POSTS on 1 October 2026

ORDER

PER: SANJIV KUMAR, MEMBER (A):

Since both these two O.As have been filed by the same applicant under Section 19 of the Administrative Tribunals Act, 1985, therefore, same are being heard together and are being decided by this common order. In both the cases, applicant is seeking the following reliefs: O.A. No. 31/2023 “8.1 To quash and set aside the impugned order dated 09.02.2022 (Annexure-A/1) with all consequential benefits.

8.2 To direct the respondents to reinstate the applicant in the post of GDS BPM, Dholai Molai B.O. in account with Katlacherra S.O. with benefits of current as well as arrear Time Related Continuity Allowance (TRCA), annual increase in TRCA, dearness allowance, Productivity Link Bonus with all other consequential benefits.

8.3 Costs of the application.

8.4 pass any such order/orders as Your Lordships may deem fit and proper.”

O.A. No. 47/2024 “8.1To quash and set aside the impugned order dated l4.08.2023 [Annexure- A/1issued by the

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Director of Postal Service (HQ), Assam Circle, Guwahati with all consequential benefits.

8.2 To quash and set aside the impugned order dated 26.12.2023 [Annexure- A/2] issued by the Senior Superintendent of Posts, Cachar Division, Silchar with all consequential benefits.

8.3To quash and set aside the impugned communication dated 08.02.2024 [Annexure- A/3] issued by the Inspector of Posts, Silchar South Sub-Division, Silchar with all consequential benefits.

8.4 To quash and set aside the communication dated 14.09.2023 [Annexure- A/4] placing the applicant under deemed put off with all consequential benefits.

8.5 To direct the respondents to conclude the departmental proceeding taking into consideration the report of the inquiry officer dated 05.08.2020 with all consequential benefits.

8.6 To direct the respondents to release the ex- gratia payment as per Rule 12 (3) of GDS (Conduct and Engagement) Rules, 2011 while placing him under put offwith all consequential benefits.

8.7 Cost of the application.

8.8 pass any such order/orders as Your Lordships may deem fit and proper.”

2. Sri H.K. Das, learned Sr. Advocate assisted by Ms. D. Mahanta, learned counsel for the applicant has submitted that the applicant was initially appointed as Branch Postmaster at DholaiMolai Extra Departmental Branch Post Office vide Order dated 04.06.1989. However, vide Order

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dated 27.09.2018, he was placed under 'put off' duty followed by the issuance of one Chargesheet dated 14.12.2018. The applicant, thereafter, participated in the said disciplinary proceedings and Inquiry Officer submitted his Report dated 05.08.2020(Annexure-A/15) by exonerating him from all the charges. However, the disciplinary authority issued disagreement note to the applicant on 21.06.2021(Annexure-A/16). Against such disagreement note, the applicant made his representation on 26.07.2021(Annexure-A/17). The disciplinary authority vide Order dated 09.02.2022(Annexure-A/1) had imposed a penalty of dismissal from engagement. Against which, the applicant had preferred an appeal dated 07.03.2022 before Director of Postal Services (Annexure-A/22). Since, the AppellateAuthority did not pass any order in this regard, he approached this Tribunal by filing O.A. No. 31/2023, which was admitted on 01.03.2023. However, during pendency of the said O.A., the appellate authority without taking the leave of this Court had passed the

Order

dated 14.08.2023(Annexure-A/1), whereby the punishment order

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was set aside with a direction to the disciplinary authority to initiate de novo inquiry from the stage of examination of IO's report under the third stage of disciplinary proceedings by the appropriate disciplinary authority. Subsequently, one Order dated 26.12.2023(Annexure-A/2) was passed by Sr. Superintendent of Posts to appoint an Inquiry Authority to inquire into the charges. Further, vide Order dated 08.02.2024 (Annexure-A/3), the Inquiry Authority had fixed the next date of hearing on 22.02.2024 which is contradictory to the settled principle of law. It has been further submitted by the applicant that after setting aside of the disciplinary authority's order by the appellate authority, the applicant was again put under 'put off' duty vide order dated 14.09.2023 and no ex- gratia amount has been paid till date. Being aggrieved with, he has filed the O.A. No. 040/00047/2024.

3. According to the learned Sr. Advocate for the applicant, action of the respondents in proceeding with denovo enquiry is in violation of Rule 15 of the CCS (CCA) Rules, 1965. It was argued that there can be only one enquiry in a disciplinary proceeding, and in support of his contention,

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learned Sr counsel placed reliance of Hon’ble Supreme Court in the case of K.R. Deb vs. the Collector of Central Excise, Shillong, reported in 1971 (2) SCC 102.In addition, it was also argued that since this Tribunal was in seize with the matter, order of the appellate authority dated 24.08.2023 is not tenable in view of the operation of Rule 19(4) of Administrative Tribunals Act, 1985.

4. As regards OA.31/2023, learned Sr counsel submitted that the conclusion derived by the disciplinary authority in the impugned penalty order dated 09.02.2022 that the applicant was a habitual offender while imposing harsh punishment of removal was based on extraneous consideration inasmuch such allegation never formed part of the charge sheet. As regards Article of Charge-I relating to shortage of cash detected at Dholai Molai BO on 24.09.2018 It was also contended that the enquiry officer in his report specifically concluded that as the prosecution side failed to produce the BO Account book during the course of enquiry despite PO was repeatedly asked to do so, Article of charge –I could not be proved. As regards Article of Charge-II

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relating to receipt of Rs.1000/- from one Rinku Saha by the applicant for alleged opening of RD account, it was also argued that PW-4 Sri Rinku Saha did not attend the hearing on several occasions to prove the charges despite notices to that effect were duly served to him. Therefore, the enquiry officer in his report exonerated the applicant from both the charges. However, according to the learned Sr counsel, the disciplinary authority in a preconceived mind imposed the punishment of dismissal based on assumption and presumption overlooking the reasonable report of the enquiry officer.

5. The another limb the arguments advanced on behalf of the applicant is that the Disciplinary Authority of the applicant was the Senior Superintendent of Post Offices, Cachar, Silchar and the order of imposing penalty dated 09.02.2022 was issued by the Senior Superintendent of Post Offices, Darrang Division, Tezpur. It was argued that since the charge sheet and the disagreement note was issued by the SSPOs, Cachar Division, the impugned penalty order dated 09.02.2022 issued by an incompetent authority i.e., the SSPOs,

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Darrang Division without having no know how of the entire proceeding.

6. In view of the grounds set forth in the preceding paras 3 to 5, learned Sr counsel, therefore, prayed for allowing both the OAs.

7. Per contra, Sri P. Saikia, learned Addl. CGSC for the respondents has submitted that the applicant namely Md. Mashud Khan Choudhury, the then Gramin Dak Sevak Branch Post Master (GDSBPM in short), Dholai Molai Branch Office in account with Katlicherra Sub Office (SO in short) was initiated a Departmental proceeding under Rule 10 of Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 vide office Memo No. F1-1/2018-19/DA dated 14.12.2018 and on finalization of the case, he had been awarded penalty of dismissal from engagement which shall ordinarily be a disqualification for future engagement by the ad-hoc disciplinary authority i.e., Senior Superintendent of Post Offices, Darrang Division vide Memo No. F1-1/2018-19/DA dated 09.02.2022. On being aggrieved, the applicant preferred a departmental appeal dated 07.03.2022, which

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has been disposed of by the Appellate Authority with direction for holding de-novo inquiry, as per Rule 18 of the GDS (Conduct & Engagement) Rules, 2020 which is parimateria with the Rule 27 of the CCS (CCA) Rules, 1965. Accordingly, the disciplinary authority examined the Inquiry Officer’s report and ordered for inquiry of the charges by appointing an independent inquiry authority. Simultaneously, the applicant has been informed to be continued under put off duty from the date of dismissal of engagement letter dated 14.09.2023 in accordance with Rule-12(4) of GDS (Conduct & Engagement) Rules, published on 14.02.2020.

8. As per the learned Addl. CGSC, the applicant while working as Gramin Dak Sevaks Branch Post Master (GDSBPM in short) of Dholai Molai Branch Post Office during the period from 01.01.2018 to 26.09.2018, had violated the provisions of Departmental Rules as narrated in the Memorandum of charges framed against him. During the inspection on 24.09.2018, the Inspector of Posts, Hailakandi Sub Division found shortage of cash amounting to Rs.3640.54 which was

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credited by the applicant at Katlicherra S.O on 17.10.2018 as UCR and the same eventually proves shortage of cash and misappropriation of govt. money by the applicant. The alleged financial irregularities have been detected and accordingly the department has taken it seriously as the alleged issues involved the question of public money and being a custodian of public exchequer, such acts of the Applicant cannot be permissible in the eye of law. Therefore, the disciplinary authority was not satisfied with the reply of the applicant and accordingly, as per the provision of Rule-10 of the Department of Posts Gramin Dak Sevaks (Conduct & Engagement) Rules, 2011, Inquiring Authority and Presenting Officer were appointed on 03.01.2019 to conduct the inquiry into the charges framed against the applicant. The charges have been framed against the applicant based on documentary evidence and dropping of the charge sheet does not arise.

9. According to the learned counsel for the respondents, ADP was prepared by the delinquent (applicant) himself with proper date and stamp and APD-2

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and APD-3 were prepared by the Senior Post Master, Katlacherra Sub Office, Dholaimolai by stating his closing balance. The said closing balance fully agreed with the opening balance mentioned in PD-1 by PW-1 and thereby it is confirmed that there shortage of cash of Rs.3640.54 and the applicant is the custodian of office stamp and other related documents as such he is responsible for such materials. According to the learned counsel, the factum of crediting of the said shortage of cash by the applicant on 17.10.2018 as UCR subsequent to its detection eventually proves misappropriation of Govt. money by the applicant.

10. Besides, rebutting the contention of the applicant that penalty order was passed by incompetent disciplinary authority, learned counsel submitted that SSPOs, Darrang Division was appointed as ad-hoc disciplinary authority of the instant case by the CPMG, Assam Circle vide Memo No.VIg/14/IO-PO/95 (PT-II) dated 06.10.2021 to finalize the case, therefore, said authority was competent to issue the order in question.

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11. We have heard both the sides, perused the pleadings and the decisions relied upon.

12. While the applicant was working as BPM at Dholai Molai EDBO, on 24.09.2018, the Inspector of Posts, Hailakandi Sub-Division visited the said Dholai Molai BO and found shortage of cash balance. Thereafter, applicant was placed of put-off duty w.e.f. 27.09.2018 vide order dated 27.09.2018 in contemplation of a departmental proceeding. The Senior Superintendent of Post Offices, Cachar Division issued the Memorandum of Charge dated 14.12.2018 with two articles of charge. Contents of the charge are that – during the period from 01.01.2018 to 26.09.2018, applicant failed to produce Government cash amounting to Rs. 3,640/- to the Inspector of Posts during his visit to Dholai Molai B.O. on 24.09.2018; and he accepted money to the tune of Rs. 1,000/- on 25.06.2018 from one Sri Rinku Saha for opening of a new R.D. account but the account was neither opened nor the money was credited to the Government account. Applicant having denied the charges, regular enquiry was conducted.

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In the meantime, order of put off duty was revoked and accordingly, applicant resumed his duties.

13. The Inquiry Officer after detailed inquiry had submitted his report on 05.08.2020 (Annexure-A/15) and derived at conclusion that both the charges levelled against the applicant stood not proved. The observations and findings of the Inquiry Officer on the Charges Framed are being reproduced below: “OBSERVATION AND FINDINGS ON THE CHARGES FRAMED

CO DENIED BOTH THE CHARGES, BUT NEITHER COULD SUBMIT ANY DOCUMENT (ACTUALLY PROSECUTION SIDE COULD NOT PRODUCE) ANY DOCUMENT PROVING HIS INNOCENCE NOR COULD PRODUCE ANY WITNESS WHO PROVES HIS INNOCENCE. DURING EXAMINATION OF THE PROSECUTION WITNESSES ALSO, THE DEFENCE SIDE COULD NOT BRING OUT ANYTHING WHICH PROVE INNOCENCE OF THE CO.

AS MENTIONED ABOVE, NEITHER THERE WERE COMPLETE SET OF DOCUMENTS ENLISTED IN THE CHARGE-SHEET NOR PRODUCED BY THE PO WHICH COULD ESTABLISH THE OFFENCES COMMITTED BY THE CO AND THUS PROVE THE CHARGES BROUGHT AGAINST THE CO NOR ALL LISTED WITNESSES ATTENDED THE HEARING OR ONE OF THE VITAL WITNESS CALLED INTO THE HEARING, THE CASE IS WEAK AND CURSORY AT EVERY STAGE OTHER THAN THE DEPOSITIONS OF THE PW-1, THERE IS NOTHING STRONG ENOUGH TO PROVE THE OFFENCES OF THE CO.

SO, MYSELF IN MY CAPACITY AS INQUIRY OFFICER AFTER CONDUCTING INQUIRY OBSERVING ALL THE FORMALITIES, HAVE FOUND THAT BOTH THE ARTICLES OF CHARGES BROUGHT AGAINST SRI MASHUD KHAN CHOUDHURY, GDSBPM, DHOLAI MOLAI BO, VIA KATLACHERRA SO IN CHARGESHEET ISSUED VIDE SENIOR SUPERINTENDENT OF POST OFFICES. CACHAR DIVISION, SILCHAR NO. P1-1/2018-19/DA DATED 14-12-2018 IN DISC PROCEEDING INITIATED UNDER RULE 10 OF DOPGDS (CONDUCT & ENGAGEMENT) RULES 2011 HAS NOT BEEN PROVED BEYOND SHADOW OF DOUBT AND I HEREBY COMPLETE MY REPORT WITH THIS REMARK”.

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14. However, after almost 10 months, the disciplinary authority vide its letter dated 21.06.2021 forwarded the enquiry report to the applicant along with its disagreement note (Annexure-A/16), for furnishing his reply. Applicant submitted his reply on 26.07.2021 (Annexure-A/17) praying for exoneration from the charges. Thereafter, one ad-hoc Disciplinary Authority i.e. Senior Superintendent of Post Offices, Darrang Division, Tezpur issued the impugned order dated 09.02.2022 (Annexure-A/1) imposing major penalty of “dismissal from engagement which shall ordinarily be a disqualification for future engagement” upon the applicant.

15. Pending consideration of his appeal dated 07.03.2022 (Annexure-A/18), applicant challenged the penalty order before this Tribunal vide O.A. No. 31/2023, which was admitted on 01.03.2023. During pendency of OA, the appellate authority had passed the order dated 14.08.2023 which is the subject matter of challenge in subsequent OA.47/2024 and the same was stayed vide order dated 06.03.2024.

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16. In this regard, Section 19(4) of the Administrative Tribunal's Act, 1985, which is relevant for the adjudication of OA.47/2024 stipulates as under:- "(4) Where an application has been admitted by a Tribunal under subsection (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter thereafter be entertained under such rules"

17. It is noted that O.A. No. 31/2023 was admitted by this Tribunal on 01.03.2023, on which date, departmental appeal dated 07.03.2022 was still pending before the Appellate Authority. Therefore, when the Tribunal is seized with the matter, no appeal could have been decided in terms of the prescription, quoted above. No leave of this Tribunal was sought or granted to decide the appeal. The Appellate Authority's order dated 14.08.2023 was, therefore, passed without jurisdiction.

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18. In view of the above, impugned appellate order dated 14.08.2023 is set aside and aside for want of jurisdiction. All consequential communications dated 26.12.2023, 08.02.2024 and 14.09.2023 are also quashed and set aside. O.A. No. 47/2024 is allowed as above.

19. Even though the appellate order is set aside on technical consideration, it records a specific and material circumstance. “….. scrutiny of the Disciplinary case file and considering relevant records, it is observed, as per CO’s letter No.Vig/14/IO-PO/95 (PT-III) dated 07.02.2022, SPOs/Cachar Division was directed that Ad-hoc Disciplinary Authority is to proceed from the stage of examination of IO’s report (including agreement/ disagreement notes) as the competent has viewed that the procedure adopted in r/o IO report forwarding to Charged Official was incorrect. But without following his order the above case was finalized by the Ad-hoc Disciplinary Authority on 09.02.2022….” From the above, it is apparent that the competent authority had found procedural defects in the conduct of the disciplinary enquiry, and therefore, by letter dated 07.02.2022, had directed that the Ad-hoc Disciplinary

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Authority is to proceed from the stage of examination of the Inquiry Officer's report, including the disagreement note. However, the Ad-hoc Disciplinary Authority proceeded to finalise the case in haste within two days and imposed the major penalty of disengagement which shall ordinarily be a disqualification for future engagement vide on 09.02.2022 without complying the aforesaid direction of the competent authority.

20. In view of the above, we are of the considered opinion that the impugned order dated 09.02.2022 suffers from procedural infirmity as noted above. Accordingly, the order dated 09.02.2022 is set aside and quashed on procedural grounds. We remand the matter back to the competent Disciplinary Authority to recommence the decision-making process from the stage at which the defect had occurred, as noticed hereinabove, strictly in accordance with relevant GDS Rules. The Disciplinary Authority is directed to conclude the proceeding, as

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expeditiously as possible, but not later than three months from the date of receipt of this order. The consequential monetary and other service/engagement benefits shall abide by the result of the disciplinary proceeding and shall be regulated by the competent authority in accordance with the applicable rules. OA No.31/2023 is disposed of in above terms.

21. It is made clear that this Tribunal has not expressed any opinion on the merits of the Articles of Charge. The competent authority shall take an independent decision in accordance with law and on the basis of the material forming part of the disciplinary record.

22. There shall be no order as to costs.

(SANJIV KUMAR)

(RAJINDER SINGH DOGRA)

MEMBER (A)

MEMBER (J)

PB

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