Dismissed

V.Gangadharan v. Asst.Superintendent of Post Offices

Kerala HC23 Jun 2016WP(C)/565/2008

Case brief

AI extract

What is this about?

The Kerala HC dismissed a writ petition challenging the removal of a Gramin Dak Sevak from service. The court affirmed the Central Administrative Tribunal's decision, holding that disciplinary proceedings are not barred even if the misconduct involves a cognizable offence, especially when the criminal complaint was withdrawn after the accused satisfied the loss.

What did the court decide?

The writ petition filed by V. Gangadharan challenging the order of removal from service was dismissed, upholding the orders of the Disciplinary Authority and the Central Administrative Tribunal.

V.Gangadharan Vs Asst.Superintendent of Post… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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WP(C).No. 565 of 2008 (S)

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O.A.NO. 902/2003 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER(S) :

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V.GANGADHARAN, AGED 50 YEARS, S/O.LATE VELUKKUTTY NAIR, GRAMIN DAK SEVAK, CHULLIYODU (UNDER ORDERS OF REMOVAL FROM SERVICE), RESIDING AT THIRUMUNDICKAL HOUSE, AMARAMBALAM P.O., VIA POOKKOTTUMPADAM, MALAPPURAM DISTRICT 679 332.

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BY ADV. SRI.M.A.SHAFIK

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RESPONDENT(S) :

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1. ASSISTANT SUPERINTENDENT OF POST OFFICES (O/S), OFFICE OF THE SUPERINTENDENT OF POST OFFICES, MANJERI DIVISION, MANJERI 676 121.

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2. THE SUPERINTENDENT OF POST OFFICES, MANJERI DIVISION, MANJERI 676 121.

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3. A.SUDHAKARAN, INQUIRING AUTHORITY AND SUB DIVISIONAL INSPECTOR (POSTAL), PERINTHALMANNA.

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4. M.M.VARGHESE, OFFICER ON SPECIAL DUTY, OFFICE OF THE CHIEF PMG, BOMBAY, FORMERLY, ASSISTANT SUPERINTENDENT OF POST OFFICES, OFFICE OF THE SUPERINTENDENT OF POST OFFICES, MANJERI DIVISION, MANJERI 676 121.

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5. UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI.

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R1, R2 & R5 BY ADV.N.NAGARSH, A.S.G OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 565 of 2008 (S)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE O.A.NO.902/03 FILED BEFORE THE C.A.T ERNAKULAM BENCH.

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EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT FILED IN O.A.NO.902/03 BEFORE C.A.T.

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EXHIBIT P3: TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER BEFORE THE C.A.T.

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EXHIBIT P4: TRUE COPY OF THE ADDL.REPLY STATEMENT FILED BEFORE THE C.A.T.

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EXHIBIT P5: TRUE COPY OF THE M.A.NO.615/2006 FILED BY THE PETITIONER BEFORE THE C.A.T.

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EXHIBIT P6: TRUE COPY OF THE ORDER DATED 09.08.2006 IN O.A.NO.902/03 OF THE C.A.T. ERNAKULAM BENCH.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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W.P.(C)No.565 OF 2008

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Dated this the 23^rd June, 2016

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JUDGMENT

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P.R. Ramachandra Menon, J.

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Interference declined by the CAT (Central Administrative Tribunal) by dismissing the O.A.No.902 of 2003, challenging Annexure-A4 order dated 17.10.2002 imposing punishment of removal from the service upon the petitioner, as confirmed by Annexure-A5 order dated 28.02.2003, is under challenge in this writ petition.

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The crux of the factual matrix is that the petitioner was working as a 'Gramin Dak Sevak Mail Deliverer' (formerly EDDA) of Chulliyode Branch Post Office from 11.03.1996. During his tenure as above, a complaint was received by the Branch Post Master in November 1998, to the effect that the complainant by name Sajil Mushtak T.A., who was working abroad had sent a cheque for a sum of Rs.19000/- in favour of his father by name

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Abdu Thottiyil, along with an unregistered letter, which was still to be delivered and that the money had not reached the hands of the addressee. In view of the allegation raised in the complaint, the matter was enquired into by the 4^th respondent, when it was revealed that the letter was not delivered to the addressee. At the same time, the enquiry made with the Canara Bank, Nilambur Branch revealed that a cheque bearing No.034763 dated 05.10.1998 was encashed by the Bank on 12.10.1998. The Bank however reported that they were not in a position to say, who had presented the cheque for encashment or to whom the money was given. This necessitated further enquiry. In the course of the said proceedings, the addressee by name Abdu (father of the complainant) preferred a complaint before the police alleging misappropriation and such other offence. A statement was also given by the aforesaid person by name Abdu on 08.12.1998. Subsequently, the petitioner had also given some statements (Annexures-A14 and A15) and the materials collected prima facie revealed that the contents of the cheque,

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i.e. Rs.19000/- was virtually satisfied by the petitioner in cash to the person by name Abdu through another person by name Kuttasseri Kunhimuhammed. Presumably on satisfaction of the due amount, it appears that the complaint preferred before the police was not pursued further. According to the Department, there was failure on the part of the employee in maintaining absolute integrity and honesty, violating the relevant provisions of the conduct rules. This made them to issue Annexure-A2 charge sheet dated 25.06.2001. The charge was denied by the petitioner. The Department placed the petitioner under 'put off duty' and an enquiry was conducted in terms of Rule 10 of the GDS (Conduct and Employment)Rules, 2001.

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Witnesses were examined in the enquiry and they were cross examined as well. Based on the materials produced , the Inquiring Authority arrived at a finding that the misconduct was proved and accordingly, a report was submitted before the competent authority. A copy of the report was forwarded to the petitioner seeking for his explanation, if any, with regard to the

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proven mis-conduct and on receipt of the same, explanation was submitted by the petitioner on 16.08.2002. In the meanwhile, because of the delay in finalising the proceedings, the petitioner had come to be reinstated in the service without prejudice to the rights and liberties of the respondents to proceed with disciplinary action . On getting the version of the petitioner as above, the disciplinary authority considered the entire materials, including the enquiry report and the evidence and arrived at a finding on guilt. Considering the nature and gravity of the proven misconduct, the disciplinary authority imposed punishment of 'removal from service' as per Annexure- A4 dated 17.10.2002.

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Being aggrieved of the said order, the petitioner took up the matter by way of Annexure-A5 before the second respondent. After considering the appeal, the second respondent rejected the same as per Annexure-A5 order dated 28.02.2003. This was sought to be challenged by the petitioner by filing O.A. before the Tribunal. The challenge raised against the orders passed by the disciplinary and appellate authority was sought to be resisted

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from the Department by filing a detailed reply statement. A rejoinder was also filed by the petitioner. After hearing, the Tribunal held that there was absolutely no grounds to call for interference. It was accordingly, that the O.A. was dismissed as per Ext.P6 order dated 09.08.2006, which is under challenge in this writ petition.

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The learned counsel for the petitioner submits that the course and proceedings pursued by the Department is not at all correct or sustainable and is in total disregard to the binding judicial precedents on the point. No finding could have been arrived at, merely based on surmises and conjectures. It is said that, at no point of time, had the petitioner conceded that he had effected any payment to the person by name Abdu and that the statements procured from him were on pressure, which hence could not be the basis to have punished the petitioner. The learned counsel further submits, in terms of the pleadings raised in the O.A. as well as in the writ petition, that the alleged instance amounts to serious offence under the IPC and in the said

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W.P.(C)No.565 OF 2008

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circumstance, it was for the Department to have it pursued further by way of prosecution proceedings instead of disciplinary action. As such, the domestic enquiry itself was not correct or sustainable, submits the learned counsel.

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Yet another contention is that, the enquiry report is vitiated for want of proper application of mind. Signature on the reverse side of the cheque was not verified by causing the same to be examined by any Finger Print Expert. Inference drawn by the Enquiry Officer, the Disciplinary Authority and the Appellate Authority is on the presumption that the petitioner had effected re-payment to the person by name Abdu. It is stated that, it is a case of no evidence and as such, the various rulings rendered by the Apex Court, as referred to in the O.A. would come into play, and hence interference is required. The learned counsel further submits that the penalty is quite disproportionate to the allegedly proven misconduct.

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The learned Standing Counsel appearing for the respondents/Department submits that the enquiry was conducted

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strictly adhering to the relevant rules. There is no infringement of any principles of natural justice. Every opportunity was given to the petitioner to defend the case. Petitioner cannot contend that no proceedings will lie by way of disciplinary action, merely for the reason that the amount due was satisfied and that no police complaint was subsisting. The way in which the evidence

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has to be appreciated, the scope of judicial review, adequacy of evidence and such other aspects have been discussed in detail by the Tribunal in the context of law declared by the Apex Court on the point. This being the position, the finding rendered by the Tribunal upholding Annexures A4 and A5 orders passed by the Disciplinary Authority and the Appellate Authority does not call for any interference; submits the learned counsel.

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At very outset, this Court would like to make it clear that the idea and understanding of the petitioner that the instance, if the alleged misconduct involves an offence, has to be proceeded firstly by way of 'prosecution proceedings' and then alone could the disciplinary action be pursued by the Department, is

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thoroughly wrong and misconceived. There are instances, where disciplinary proceedings have been intercepted during the pendency of the criminal prosecution proceedings; lest the defence of the delinquent employee should be adversely affected in the prosecution proceedings.

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There is no bar or taboo in proceeding with disciplinary

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action during pendency of the criminal proceedings. Proper course of action to be followed has been explained by the Apex Court as per the decision in the State of Rajasthan vs. B.K. Meena and others ( AIR 1997 SC 13) . The issue had come up for further consideration before the Apex Court later as well and the position has been made clear as per the decision in

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Capt.M. Paul Anthony vs. Bharat Gold Mines Ltd. & another ( AIR 1999 SC 1416 ), holding that an instance of misconduct may give rise to three different proceedings such as disciplinary action in connection with the service, criminal proceedings, if it

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involves an offence and civil proceedings, if the misconduct has resulted in any loss and if so, to recover the loss. It was also

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asserted by the Apex Court that all the three proceedings could be pursued simultaneously and there is no bar except for intervention, which may be required in some given circumstances, to the appropriate extent, as specified. The pleadings and proceedings with reference to the alleged misconduct and the precedents cited in this regard are not applicable to the case in hand, primarily for the reason that there is no such bar and secondly, for the reason that no criminal case is admittedly pending before any Forum/Court. Eventhough a complaint was preferred at the instance of the addressee by name Abdu, the matter was not pursued further; presumably for the reason that the due amount was satisfied by the party concerned, as revealed from the version given by the aforesaid person by name Abdu.

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The Tribunal has referred to all the relevant aspects and the finding has been rendered against the petitioner, also placing reliance on the decision of the Apex Court reported in AIR 2006 SCW 701 (= AIR 2006 SC 3522 )[ Chairman-cum-

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M. D., T. N. C. S. Corpn. Ltd. and Ors. vs. K. Meerabai] ,

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which is seen quite in order .

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With regard to the adequacy of evidence or as to the contentions of the petitioner that this is a case of no evidence, the Tribunal has relied on the verdict passed by the Apex Court in Lalit Popli vs. Canara Bank and others [2003 (3) SCC 683 = AIR 2003 SC 1796 ]. The scope of judicial interference in departmental proceedings was dealt with in the light of the verdict rendered by the Supreme Court in B.C. Chaturvedi vs. Union of India and others [(1995)6 SCC 749 = AIR 1996 SC 484] and in R.S. Saini vs. State of Punjab ( [(1999)8 SCC 90 = AIR 1999 SC 3579]. The observation made by the Apex Court in Syed Rahimuddin vs. Director General C.S.I.R. & others [ AIR 2001 SC 2418 ], as extracted in paragraph '5' was also relied on, before arriving at the finding. Similarly, the instant case was found as deserving no sympathy, in the light of

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the ruling rendered by the Apex Court in Karanataka Bank Ltd.

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vs. A.L. Mohan Rao [ 2006 SCC (L&S)59 ].

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It is worthwhile to note the course and events with regard to the complaint preferred by the sender of the cheque, non-delivery of the cheque and letter to the addressee, encashment of the cheque as confirmed by the Bank, filing of a complaint before the Police at the instance of the addressee Abdu, the demands made by Abdu and other unpleasant situations resulted in the workplace of the petitioner, making the petitioner to prefer a complaint before the Postal authorities and also before the Police, which are matters of record. The sequence of events has to be analysed in the light of various statements given by the petitioner on different dates, as Annexures- A14 and A15, and also the submission/statement given by the person by name Abdu, as referred to already. On reading all these things together, it is discernible that the different links have combined themselves to form a chain, ultimately leading to withdrawal of the complaint filed before the Police by the aforesaid Abdu on satisfaction of the amount due, i.e. Rs.19000/-. Even though there is no positive evidence in this regard, it can be safely

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concluded that the complaint was caused to be withdrawn, or not pursued, only in view of satisfaction of the due amount by the petitioner herein, who thus got saved from the prosecution proceedings.

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This Court does not intend to say anything as to whether the course pursued by the Police was correct or not. If any offence was involved, it was for the Police to have it enquired into;(more so when it was a cognizable offence); it being an offence against the society. The State had an obligation to have had it prosecuted, to arrive at the truth. In any view of the matter, the settled position, in so far as any disciplinary proceedings are concerned, is that 'preponderance of probability' is sufficient and that the instance need not be proved beyond any reasonable doubt, as in the case of criminal proceedings. To quote the words of Justice V.R. Krishna Iyer, as he then was, there is no allergy even to 'hear-say evidence' as held in 1982

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(1)LLJ 46.( State of Haryana vs. Rattan Singh )

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Going by the materials on record, this Court finds that the

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factual position has been subjected to scrutiny at different levels; firstly by the Enquiring authority, secondly by the Disciplinary authority, thirdly by the Appellate authority and lastly by the Central Administrative Tribunal. The verdict passed by the Tribunal is perfectly within the four walls of law and there is no scope for any interference at the hands of this Court. The writ

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petition fails and the same is dismissed accordingly.

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P.R. RAMACHANDRA MENON, JUDGE

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ANIL K. NARENDRAN, JUDGE

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V.Gangadharan v. Asst.Superintendent of Post Offices

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V.Gangadharan v. Asst.Superintendent of Post Offices

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