Allowed

Lalit Pratap Singh v. Union Of India

Chhattisgarh HC22 Apr 2022WPS/2949/2015

Case brief

AI extract

What is this about?

Removal of a postal employee was held vitiated by withholding relevant defence documents and independently found shockingly disproportionate. The Court rejected the double-jeopardy challenge, allowed the petition, quashed the challenged orders and directed reinstatement with 50% back wages and all other consequential benefits.

What did the court decide?

Challenged orders quashed; reinstatement with 50% back wages for the intervening period and all other consequential benefits.

Lalit Pratap Singh Vs Union Of India — Service and Employment | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 2949 of 2015

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Lalit Pratap Singh S/o Shri Sushil Chandra Verma, Aged About 43 Years Ex. Postal Assistant, Rajnandgaon Head Post Office, Durg Postal Division, Chhattisgarh Circle, Chhattisgarh 491441, At Present R/o- Teachers Colony, Village And Post Somni, Police Station- Somni, Tahsil- Civil And Revenue District Rajnandgaon Chhattisgarh, Chhattisgarh

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---- Petitioner

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Versus

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Union of India Through, its Secretary, Ministry of Communication, Department of Post, Central Secretariat, North Block, New Delhi - 110001, Delhi

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The Member P, Postal Services Board, Department Of Post, Dak Bhawan, Parliament Street, New Delhi - 110001, District : New Delhi, Delhi

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Chief Postmaster General, Chhattisgarh Circle, Raipur Chhattisgarh 492001, District : Raipur, Chhattisgarh

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Director Postal Services, Chhattisgarh Circle, Raipur Chhattisgarh 492001, District : Raipur, Chhattisgarh

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Sr. Superintendent Of Post Offices, Durg Division, Civic Centre, Bhilai, District Durg Chhattisgarh 490006, District : Durg, Chhattisgarh

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---- Respondents

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(Cause-title taken from Case Information System)

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------------------------------------------------------------------------------------------------ For petitioner : Mr. Ashutosh Trivedi, Adv. For Respondents : Mr. Ramakant Mishra, Asstt. Solicitor General. Reserved on : 10-2-2022

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Order delivered on: : 22-4-2022

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------------------------------------------------------------------------------------------------ Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. N.K. Chandravanshi, Judge

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CAV ORDER

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Per N.K. Chandravanshi, J.

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1. This Writ Petition (S) has been preferred against the order dated 17-12-2014 (Annexure P-1) passed by the Central Administrative Tribunal, Jabalpur, bench Jabalpur (in short 'CAT'), by which, petitioner's Original Application No. 603/2011 has been dismissed. The application was filed for quashing and setting aside of the order dated 27-7-2004 (Annexure P-2) passed by the Senior Superintendent of Post Offices, Durg Division, whereby penalty of removal from service was imposed upon the applicant and order

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dated 18-3-2005 (Annexure P-3) and order dated 23-12-2010 (Annexure P-4), whereby his appeal and revision petition were, respectively, rejected.

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2. The petitioner was appointed to the post of Postal Assistant on 19-11-1997 at Head Post Office, Rajnandgaon. On 12-6-2000, he was transferred to Sub-Post Office, Sector 6, Bhilai, as Postal Assistant. It is alleged that for the period from 12-6-2000 to 3-1-2002, some financial irregularities were pointed out against the petitioner and others, causing loss to the respondent-department. Therefore, the petitioner was issued a chargesheet dated 2-9-2002 for the misconduct committed by him while working as Postal Assistant in Sector 6, Bhilai, alleging that while working on the said post, he had shown withdrawal amounting to Rs. 40,000/- and accounted for in PO account on 17-8-2001, in the SB Account No. 420887 without verifying the entries in the ledger and without comparing the signature of the depositor with the specimen signature book and had allowed withdrawal of Rs.70,000/and Rs. 60,000/- on 1-1-2001 and 10-4-2001, respectively, without verifying the entries in the ledger in the SB Account No. 421650, which was already transferred on 24-7-1997. He had also shown half withdrawal and accounted for in PO Account amounting to Rs. 21,000/- on 1-1-2001 in the recurring deposit A/c No. 163083, which was already closed on 26-11-1998. In RD Account No. 163864, he had shown half withdrawal and accounted for in PO Account on 17-11-2000 amounting to Rs. 18,000/-, in which half withdrawal was already made. In other RD Account, he had shown withdrawal and accounted for in PO Account amounting to Rs. 24,300/-, which was already closed on 7-5-1999. Thereafter, an inquiry officer was appointed, who after full fledged inquiry, submitted his report on 11-5-2004 to the disciplinary authority, holding the charges proved against the petitioner. After supply of inquiry report, the petitioner submitted his representation against said inquiry report and after considering his representation and other material, the

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disciplinary authority vide order dated 27-7-2004 (Annexure P-2) imposed major penalty of removal from service, on the petitioner. The appeal filed by the petitioner was rejected by the appellate authority vide order dated 18-3-2005 and the revision filed by the petitioner was also rejected by the revisional authority i.e. Chief Post Master General, Chhattisgarh vide order dated 23-12-2010. Thereafter the petitioner filed Original Application No. 603/2011 before the CAT, which was also rejected by the impugned order. Hence, this writ petition.

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3. The grounds raised by the petitioner in this petition are that the departmental inquiry has been conducted without following the principles of natural justice, as the petitioner has not been provided proper opportunity of hearing. Further, since the petitioner has been held responsible by respondent No. 5 only for the loss of Rs. 21,150/-, on being compelled, he had deposited the said amount with the department. Despite that, he has been imposed major penalty i.e. removal from service, which amounts to double jeopardy to the petitioner. Lastly, considering the loss caused to the respondentsdepartment, for which petitioner has been held responsible, aforesaid penalty imposed upon him is disproportionate. Hence, he prayed for grant of relief as sought for in the petition.

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4. The respondents-department has filed a detailed reply contending therein that since the petitioner has committed misconduct of misappropriation of government money, without following the provisions prescribed, after departmental inquiry, he has been punished by the disciplinary authority, by providing due - opportunity of hearing as prescribed under the relevant rules and following the principles of natural justice. There is no question of victimization of double jeopardy to the petitioner in view of provisions of Rule 108 of the Postal Manual, Volume III, wherein it has been provided that the department can take action of recovery as well as impose

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penalty for the misconduct committed by an employee. Since the petitioner has not only caused huge loss to the department, he also has betrayed the trust of public at large to the department, which is a major misconduct and which diminished the confidence of public at large in the public institution of Post Office. Hence, penalty of removal from service imposed upon the petitioner cannot be termed as disproportionate to the misconduct committed by him. Hence, the orders passed by the disciplinary authority, the appellate authority, the revisional authority, and CAT are just and proper and are not liable to be interfered with by this Court.

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5. To support the case of the petitioner, learned counsel for the petitioner made three-fold submissions. Firstly, the departmental inquiry has been conducted without following the principles of natural justice, as during departmental proceedings, though the application filed by the petitioner for production and supply of 13 documents, was accepted and vide order dated 23-5-2003, inquiry officer directed the disciplinary authority to supply the same, but the same was not supplied by the disciplinary authority, holding that those documents were not relevant. Secondly , earlier in preliminary inquiry, he was held responsible by the respondent No. 5 for loss of Rs. 21,150/only, and on being compelled by the respondents, he had deposited Rs. 21,150/-. Thereafter, he has been penalized in the departmental proceedings also, which amounts to double jeopardy to the petitioner. Thirdly , it is submitted that the main culprit of alleged financial irregularity was Shri J.K. Amritkar, the then Sub-Post Master of Sub-Post Office, Sector 6, Bhilai, who had accepted his guilt and FIR was also lodged only against him, which clearly establishes that act of fraud, mis-appropriation or cheating is not on the part of the petitioner. It also reflects that respondents themselves accepted that whatever alleged misconduct has been committed by the petitioner did not involve dishonesty, fraud or cheating on the part of

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petitioner, hence he has not been arrayed as co-accused in the FIR lodged against Shri J.K. Amritkar. Despite that, he has been imputed with major penalty i.e. removal from service, which is disproportionate to the alleged misconduct and is on extremely higher side, as in the preliminary inquiry, the petitioner has been held responsible for the financial loss of Rs. 21,150/- only to the department.

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6. Learned counsel for the petitioner further submits that all the aforesaid grounds were continuously raised by the petitioner before the disciplinary authority, the appellate authority, revisional authority and CAT also, but without considering aforesaid facts, all the authorities have out-rightly dismissed his petitions.

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7. It is further submitted that for alleged misconduct, other subordinate employees were also found involved, from whom, some part of amount of loss to the government has been recovered, but no action for major penalties has ever been initiated against them. This decision of the respondent is clearly discriminatory against the petitioner as compared to other employees. Hence, learned counsel for the petitioner prays for grant of the reliefs sought in the petition.

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8. On the other hand, learned counsel for the respondents submits that as regards violation of principles of natural justice, the documents sought for by the petitioner during departmental inquiry, were not relevant to the charges levelled against him. Hence, they were not produced before the inquiry authority. Further, the petitioner has not pointed out before the appellate or other authorities as to how any prejudice has been caused to him by non-supply of said 13 documents, in making his defence during the course of inquiry. Charges levelled against the petitioner have been proved from the documents and evidence adduced by the department, which were extensively cross-examined by the petitioner/defence assistant provided to the petitioner.

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Hence, it cannot be said that inquiry was conducted in violation of principles of natural justice on account of non-supply of alleged documents sought for by the petitioner and due opportunity of hearing has not been provided.

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9. As regards alleged dis-proportionate penalty imposed upon the petitioner, learned counsel for the respondents submitted that the misconduct committed by the petitioner was fully proved in full fledged inquiry. Since, the inquiry was conducted against the petitioner for his doubtful integrity and dereliction of his duty, it is incorrect to say that there was no allegation of dishonesty or fraud upon him. The misconduct committed by the petitioner was not only causing loss to the department, but he also betrayed the trust of public at large on the public institution of Post Office. The misconduct committed by Shri J.K. Amritkar, the then Sub-Post Master of Sub-Post Office, Sector 6, Bhilai is similar to the petitioner and Shri Amritkar was also held guilty of the charges levelled against him. However, since he had retired from service during pendency of the inquiry proceedings and he remained suspended also, his matter was placed before the Union Public Service Commission, which had imposed punishment of reduction of pension to the minimum level, as he could not be removed from service. It has been recorded in the finding of departmental inquiry that Shri Amritkar had also committed major misconduct. Hence, it cannot be said that major penalty imposed upon the petitioner of removal from service is disproportionate.

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10. So far as double jeopardy of the petitioner is concerned, learned counsel for the respondents submitted that Rule 108 of the Postal Manual, Volume III specifically provides that department can take action for recovery of loss caused to the department as well as also impose penalty for misconduct committed upon an employee. Depositing of embezzled amount does not absolve the petitioner from his liability for misconduct, hence it is

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incorrect to state that his punishment is hit by the principle of double jeopardy.

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11. Learned counsel for the respondents further argued that in exercise of power of judicial review, court cannot interfere in disciplinary matter, until and unless the findings recorded by the authority are based on no evidence or there are no material to support the conclusion so arrived at or if the material on the basis of which, such conclusion has been arrived at, was such that no reasonable or prudent man on that basis, could have arrived at such conclusion. The present case is not of such nature. It is further submitted that the contention of the learned counsel for the petitioner that he is treated with discrimination is not tenable, as direct involvement of other employees was not found in commission of alleged misconduct, because alleged misconduct of embezzlement had taken place in Sub-Post Office, Sector 6, Bhilai, Distt. Durg, where the petitioner and Sub-Post Master Shri J.K. Amritkar were posted, whereas other employees were not posted at that Sub-Post Office. Although, they were also charge sheeted for not making posting in ledger of that particular date, case of mis-appropriation could not be found against them, and only dereliction of duty was found established against them, which is altogether a different misconduct. Therefore, there is no question of discrimination as against the petitioner. Hence, the impugned orders passed by the authorities are not liable to be interfered with.

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12. We have heard learned counsel for the parties, and perused the material available on record.

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13. After hearing learned counsel for both the parties, following 3 issues arise for consideration before us :-

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i. Whether due opportunity of hearing has been provided to the petitioner in the departmental inquiry proceedings conducted against him and principles of natural justice have been followed ?

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ii. Whether the punishment of the petitioner is hit by the doctrine of double jeopardy, as, for the same offence he has been punished twice ?

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iii. Whether the penalty imposed upon the petitioner is highly disproportionate to the misconduct committed by him which shocks the conscience of the Court ?

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Point No. (i)

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14. It is admitted fact that during departmental inquiry proceedings, the petitioner had filed application for production and supply of 13 documents, which were relevant for his defence. Respondents have filed copy of that application (Annexure R-1/1) with their return, but those documents were not produced by the presenting officer, as the disciplinary authority informed the inquiry officer that those documents were not relevant to the charges levelled against the petitioner. Aforesaid facts have been taken on record by the inquiry officer in the inquiry report (Annexure R-1/8) in para 3 (Page – 14 of the inquiry report), which is reproduced below :-

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“3. …...आरोपिपित कर्मरचारी द्वारा स्वयं कर्े बचाव प्रस्तुत क र ्ने कर्े िलिये अतितिरक बचाव दस्तावेज कर्ी सूची िजसमे क्रमाँकर् 01 से 13 तकर् कर्े बचाव दस्तावेजो कर्ा नाम उल्लेिखित िकर्या गया है उसे िदनाँकर् 23/05/03 कर्ोप सुनवाई मे प्रस्तुत िकर्या गया है । बचाव दस्तावेज कर्ा अतध्ययन कर्े पिश्चात् यह आवश्यकर् समझा गया िकर् आरोपिपित कर्मरचारी द्वारा माँग कर्ी गई सूची मे दजर दस्तावेज क्रमाँकर् 01 से 13 तकर् सभी आरो प से सम्बंिधित दस्तावेज है अ त ः बचाव दस्तावेज कर्ोप स्वीकर्ार िकर्या गया तथा

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िदनाँकर् 23/05/03 कर्ोप ही प्रस्तुतकर्तार अतिधिकर्ारी कर्ोप आदेश िदया गया िकर् वह सुनवाई मे माँग कर्ी गई समस्त दस्तावेज प्रस्तुत क र ्े । िदनाँकर् 14/08/03 कर्ोप बचाव दस्तावेज कर्ी सूची प्रवर अतधिीक्षकर् डाकर्घर दुगर संभाग िभलिाई कर्ोप भेजी गई। प्रवर अतधिीक्षकर् डाकर्घर दुगर संभाग िभलिाई कर्े एफ पित क्रमाँकर् 6-2/01-02/िडस/एलि.पिी.िस./32 िदनाँकर्10/09/2003 कर्े माध्यम से जाँच अतिधिकर्ारी कर्ोप सूिचत िकर्या गया है िकर् आरो प पित मे 13 बचाव दस्तावेजो कर्ा कर्ही भी हवालिा नही िदया गया है अ त ः उक दस्तावेज Relevant नही है, िजससे िकर् उक दस्तावेजो कर्ी प ि ूतर नही कर्ी जा सकर्ती है । अतितिरक दस्तावेजो, सूची मे दजर क्रमाँकर् 01 से 13 तकर् कर्ी प ि ूतर सुनवाई मे नही कर्ी गई ।....”

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15. A perusal of inquiry report further shows that in the written submission filed by the petitioner also, he had raised the issue that despite his application, which was allowed by the inquiry officer, the disciplinary authority had not provided those documents, which is illegal. The inquiry officer has noted petitioner's above submission in para 6.10 (Page - 35) of inquiry report, which is reproduced below :-

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“6.10 मेरे आवेदनो िदनाँकर् 9-9-02, 21-10-02, 22-4-03, 2308-03 पिर न्याय नही िमलिी । िनयमो एवं स्पिष डी.जी. पिोपस्ट नई िदल्ली कर्े इंस्टरकर्शन िहदायतो कर्े होपते हुए भी एकर् भी बचाव दस्तावेज कर्ी प ि ूतर मात अतवलिोपकर्न हेतु भी नही क र ्ाई गई और इस सम्बंधि मे मैने संबंधिता रेलिेव्हेसी (Relevancy) एवं कर्स्टरिडयन कर्ा भी िजक्र अतपिने 23-5-03, 23-8-03, कर्े आवेदनो मे िकर्ये थे और तदनुसार िदनाँकर् 17-09-03 एवं 26-09-03 कर्ोप पिुनः िवचाराथर आवेदन भी िकर्या, िजसकर्ी प्रितिल ि पि आपिकर्ोप एवं प्रस्तुतकर्तार अतिधिकर्ारी जी कर्ोप भी िदया । तेरह दस्तावेजो मे से एकर् भी नही िदखिाई गई । नैसिगरकर् न्याय एवं उिचत अतवसर प्रदान नही कर्ी गई । सी.सी.एस. (सी.सी.ए.) िनयम 1965 कर्े िनयम 14 कर्े सब रूलि 11 कर्े नोपट तथा सब रूलि 12, एवं

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िनयम 14 कर्े अतन्तगरत गवनरमेट आफ इंिडया कर्े इंस्टरकर्शन क्रमाँकर् 22, 24 तथा जी.आई.एम.एच.ए.ओ.एम. नं. एफ-30/5/61 ए.व्ही.डी. िदनाँकर् 25-8-61 एवं आिटरकर्ेलि 311 (2) कर्ा स्पिष उल्लंघन िकर्या गया है, अतिभयोपजन गवाहो कर्े पिूवर ही उन्हे प्रदान िकर्या जाना था, क्योिकर् एकर् बार जाँच अतिधिकर्ारी िनयुक क र ्ने कर्े बाद संबंधिता रेलिेवेसी बाबत उन्हे ही सूक्ष्म िवचार क र ् आदेश देना है और उन्होने ऐसा 23-05-03 कर्ोप एवं 16-08-03 कर्ोप िकर्ए भी थे, पिरन्तु अतनुशासिनकर् अतिधिकर्ारी, श्रीमान प्रवर अतधिीक्षकर् महोपदय ने, उनकर्े कर्ायरक्षेत जुिरसिडक्शन मे नही होपने कर्े बाद भी िदनाँकर् 19-08-03 कर्ोप अतनावश्यकर्, अतसंवैधिािनकर् आप ि त डालिी, िजसकर्ा स्पिषीक र ्ण भी पिूणरतया दी गई, इसकर्े बावजूद भी उन्होने अतपिने 10-9-03 कर्े पितादेश क्रमाँकर् एफ 6-2/0102/िडस/एलि.पिी.िस./32 िदनाँकर् 10-09-03 कर्ोप जाँच अतिधिकर्ारी कर्ोप सूिचत िकर्ये िकर् बचाव दस्तावेज रेलिेवेट (संबंिधित) नही है और उसकर्ी प ि ूतर नही कर्ी जा सकर्ती, जबिकर् ऐसा कर्हना िविधि संमत नही है । …”.

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16. Sub-rules (12) and (13) of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short “the Rules of 1965”) are relevant to quote here, which provide as under :-

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“ (12) The inquiring authority, shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:

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Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.

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(13) On receipt of the requisition referred to in sub-rule

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(12), every authority having the custody or possession of

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the requisitioned documents shall produce the same before the inquiring authority:

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Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents. ”

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17. Thus, aforesaid provision clearly speaks that when any notice / application is received by the inquiry authority for discovery or production of documents and if he refuses the same, then he has to record the reason for refusal and if he does not refuse, then he shall send requisition for production of such documents to the authority, in whose possession or custody the documents are kept. Sub-Rule (13) provides that upon receipt of such requisition, the authority concerned having possession or custody of those documents shall produce the same before the inquiry authority. Thus, as per this rule, relevancy or necessity for production of those documents could be decided by the inquiry officer only and not by the other authority or disciplinary authority. As per the proviso appended to the Rule (13), if production of documents is not feasible for the reasons provided in the proviso itself, then the authority concerned shall inform the inquiry authority and the inquiry authority under intimation to the delinquent officer, shall withdraw the requisition made by it.

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18. In the instant case, observations made by the inquiry officer as has been noted in the preceding paragraphs, emphatically show that the application filed by the petitioner for production and supply of 13 documents was allowed by the inquiry officer finding them relevant for the charges levelled against the petitioner and by following the provisions of Rule 14(12) of Rules of 1965, he had ordered for production of those documents and also requested the disciplinary authority to hand over those documents to the presenting officer. Despite that, those documents were not produced before the inquiry officer and the disciplinary authority itself, stepping into the shoes of inquiry officer, decided that those documents were not relevant to the charges levelled against the petitioner. This conduct of the disciplinary authority was clearly in violation of provisions of sub-rules (12) and (13) of Rule 14 of the Rules of 1965.

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19. Although, learned counsel for the respondents has argued that the petitioner was unable to establish his plea of prejudice in defending himself due to non-supply of alleged documents, such submission has no merit. Since the application of the petitioner was allowed by the inquiry officer holding that those documents were relevant to the charges levelled against the petitioner, in view of the provisions of sub-rules (12) and (13) of Rule 14 of the Rule of 1965, the disciplinary authority was not competent to refuse production of those documents, holding them irrelevant, and therefore, it is not necessary that the petitioner has to establish prejudice.

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20. The appellate authority and even the CAT have not considered aforesaid facts in their orders, but the revisional authority (Chief Post Master General, CG Region, Raipur) has observed in para 5 of his order dated 2312-2010 (Annexure P-4) as under :-

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“5. याची कर्ा कर्थन है िकर् उन्होने अतपिने बचाव मे 13 अतितिरक बचाव दस्तावेज जोप प्रक र ्ण से संबंिधित थे तथा िजन्हे जाँच अतिधिकर्ारी ने स्वीकर्ार क र ् प्रस्तुती हेतु आदेश िदये थे िफर भी अतनुशासिनकर् अतिधिकर्ारी ने प्रदान नही िकर्ये और इस तरह उन्हे प्राकर्ृितकर् न्याय से वंिचत रखिा गया ।

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जाँच अतिधिकर्ारी कर्ी आड र शीट संख्या 3 िदनाँकर् 23-5-2003 तथा संख्या 4 िदनाँकर् 26-9-2003 कर्े अतवलिोपकर्न से स्पिष होपता है िकर् याची द्वारा अतपिने बचाव हेतु कर्ुछ अतितिरक बचाव दस्तावेज माँगे थे िजन्हे जाँच अतिधिकर्ारी द्वारा आरो प ो से संबंिधित होपने कर्े कर्ारण स्वीकर्ार भी िकर्या गया । बावजूद इसकर्े याची कर्ोप एकर् भी बचाव दस्तावेज प्रदान न िकर्या जाना िवचारणीय है । िकर्न्तु जाँच मे अतन्य साक्ष्यो कर्े आधिार पिर याची कर्े िवरूद िवरिचत आरो प िसद पिाये गये है ।”

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21. It is to be noted that the revisional authority had itself observed that it was worth consideration that despite order of inquiry authority for production of additional defence documents sought for by the petitioner, why not a single document was produced, but even then, he surprisingly himself did not consider this issue and dismissed the revision petition on the ground that from other documents, charges levelled against the petitioner were proved.

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22. When the department produced documents for proving of charges levelled against the delinquent employee which were in their favour, then it was also their duty to produce those documents, which were sought for by the delinquent employee to defend himself. But, in the instant case, it is clear that respondents produced only those documents which were favourable to them, but they did not produce those documents which were relevant for defence of the petitioner, despite the fact that those documents were held relevant to the charges, by the inquiry officer.

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23. Hence, we find that, the departmental proceedings conducted against the petitioner culminating in removal of the petitioner from service, is not only vitiated for procedural illegality/ irregularity, but also for violation of salutary principles of natural justice. Hence point No. (i) is decided in favour of the petitioner.

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Point No. (ii)

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24. For decision of this point, Rule 108 of Postal Manual Volume III, is relevant which provides as under :-

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“108. The maximum amount which may be recovered from a delinquent officer on account of the loss caused to the Department through his negligence should be 1/3 rd of his pay should be taken into account. In addition to the penalty of recovery, technically there is no bar to impose any other statutory penalty if the circumstances of the case justify it. The punishing authority should, however, bear in mind that when more than one penalty is imposed, one of which is recovery of pay of the whole or a part of the loss caused to Government, the net cumulative effect on the Government servant should not be of such severity so as to make impossible for him to bear the strain.”

¶80

25. Thus, as per above provision, there is no bar in imposition of any other statutory penalty, along with recovery of loss caused to the department by the delinquent officer, but the net cumulative effect of the penalty should not be of such severity, so as to make impossible for the delinquent to bear the strain. Hence, in the light of this rule, recovery of the alleged amount from the petitioner and holding him guilty in departmental inquiry proceeding cannot

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be termed, that he has been victimized by the doctrine of double jeopardy. Hence, this issue is not found in favour of the petitioner.

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POINT No. (iii)

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26. As has been stated in preceding paragraphs that, it is not in dispute that, for alleged misconduct/irregularity, earlier the petitioner was found responsible and he was directed to deposit Rs. 21,150/- only. It is also not rebutted by the respondents that for alleged criminal mis-appropriation, First Information Report was lodged only against Shri J.K. Amritkar, Sub-Post Master. If any dishonesty, fraud or cheating would have been found committed by the petitioner, then certainly he would have also been implicated as co-accused in the FIR, but not implicating him in the FIR by the respondents itself shows that action of fraud, mis-appropriation or cheating was not found on the part of the petitioner and whatever misconduct was committed by him, was negligence and dereliction in duty. Although, learned counsel for the respondents submitted in his arguments that due to doubtful integrity and dishonesty, the petitioner was charge sheeted, but since he was not named as co-accused with J.K. Amritkar in the FIR, who is said to be main culprit of the alleged irregularity, hence, the submission made by learned counsel for the respondents in this regard, is not sustainable. Since the petitioner was found responsible for loss of Rs. 21,150/- only to the department, hence considering the gravity/ magnitude of alleged misconduct, we find that, penalty of major punishment i.e removal from service inflicted upon the petitioner is shockingly dis-proportionate, which shocks the conscience of this Court. Therefore, considering the nature of misconduct, lesser punishment ought to have been inflicted. Hence, point No. (iii) is found in favour of the petitioner and this writ petition deserves to be allowed on this count also.

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27. As regards judicial review in matters of department proceedings, in B.C. Chaturvedi -v- Union of India [(1995)6 SCC 749], Hon'ble Supreme Court has observed in para 18 as under :

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“ 18. A review of the above legal position would establish

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that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”

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28. In the case of Apparel Export Promotion Council -v- A.K.

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Chopra [(1999) 1 SCC 759], the Hon'ble Supreme Court has observed in paras 16 and 17 as under :

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“16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to

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re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and

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have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141 HL] observed:

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“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.

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17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.”

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29. Very recently, the Supreme Court in the matter of Union of India

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v. Ex. Constable Ram Karan [(2022) 1 SCC 373] while dealing with identical fact situation where the punishment imposed by the disciplinary authority is

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found to be shocking to the conscience of the Court has held that the scope of judicial review on the quantum of punishment is very limited and can be exercised only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct. It was observed as under:

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“23. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.”

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30. Although, as per the law laid down by Hon'ble Supreme Court in the departmental proceedings, scope of judicial review is very limited, but in this case, the principles of natural justice for providing opportunity of hearing have not been followed by the respondents, and the departmental inquiry has been conducted in violation of sub-rules (12) and (13) of Rule 14 of the Rules of 1965. Thus, fair treatment has not been given to the petitioner and the

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departmental inquiry is faulted with procedural illegality and irregularity. In that view of the matter, the order of removal cannot be sustained. It is also found that, for alleged financial irregularities, the respondents themselves have found the petitioner responsible only for Rs. 21,150/-, and he was also not implicated in FIR in criminal mis-appropriation with main accused J.K. Amritkar, the then Post Master. Therefore, in our considered view, major punishment imposed upon the petitioner of removal from service, even otherwise, is highly dis-proportionate, which shocks the conscience of this Court. Therefore, in the light of the law laid down by Hon’ble Apex Court, we are inclined to hold that the departmental inquiry proceedings conducted against the petitioner and the punishment imposed upon him, is illegal and not sustainable.

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31. Therefore, in view of the observation made in foregoing paragraphs, the instant writ petition is allowed. The order dated 17-12-2014 passed by the CAT (Annexure P-1), order dated 27-7-2004 passed by the disciplinary authority (Annexure P-2), order dated 18-3-2005 passed by the appellate authority (Annexure P-3) and order 23-12-2010 passed by the revisional authority (Annexure P-4), being not sustainable, deserve to be and are hereby set aside/quashed. Consequently, it is ordered that the petitioner will be reinstated in service. He will also be entitled for 50% of the back wages for the intervening period and he will also be entitled to all other consequential benefits.

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32. Accordingly, the writ petition stands allowed to the above extent. No costs.

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Sd/- SD/(Arup Kumar Goswami) (N.K. Chandravanshi) Chief Justice Judge

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Pathak /

Lalit Pratap Singh v. Union Of India

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Lalit Pratap Singh v. Union Of India

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