Union Of India And Others vs Rajesh Kumar Singh And Another
2014 Latest Caselaw 353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 33
 

 
Case :- WRIT - A No. - 39425 of 2006
 

 
Petitioner :- Union Of India And Others
 
Respondent :- Rajesh Kumar Singh And Another
 
Counsel for Petitioner :- Ajay Bhanot
 
Counsel for Respondent :- S.C.,N.K.Upadhaya
 

 

 
				********
 

 

 

 
Hon'ble Rajes Kumar,J.

Hon'ble Ashwani Kumar Mishra,J.

(Delivered by Hon'ble Rajes Kumar, J.)

Heard Sri Ajay Bhanot, learned Standing Counsel for the Union of India, appearing on behalf of the petitioners. Though the case has been called out in the revised list, but no one appeared on behalf of the respondent no.1.

By means of the present petition, the petitioners have challenged the order dated 8th March, 2006, passed by the Central Administrative Tribunal, in Original Application NO. 245 of 2004, filed by the respondent no.1-Rajesh Kumar Singh (hereinafter referred to as the 'respondent') whereby the Tribunal has allowed the Original Application, setting aside the order of termination, and directed the petitioners to take back the respondent in service with the further direction that the respondent would be entitled for the pay and allowance for the period during which he remained out of service, with the increments due and his seniority will also remain intact.

The brief facts, giving rise to the present petition, are that the respondent, while he was posted as Postman, at Mahmoorganj, Varanasi, has been charged that he paid the money against four money orders to one Dhirendra Singh, without verifying his identity. An enquiry has been initiated against the respondent and a chargehseet has been served upon him. In the enquiry proceedings, the charges levelled against the respondent were found proved and an enquiry report was submitted to the Disciplinary authority, who has passed the order of punishment of removal of respondent from service on 25th December, 1993. The appeal filed against the said order by the respondent has also been dismissed vide order dated 20th June, 1994. The respondent challenged the said order before the Central Administrative Tribunal, by means of Original Application No. 1867 of 1994. Said Original Application was partly allowed vide order dated 26th April 2002 and the matter was remitted back to the Disciplinary authority with the direction to reconsider the quantum of punishment. The aforesaid order of the Tribunal was challenged by the petitioners by way of Writ Petition No. 29468 of 2002 before this Court, which has been dismissed vide order dated 5th August, 2002. In pursuance of the order of the Tribunal, the Disciplinary authority passed order dated 26th September, 2003, holding the respondent guilty of embezzlement of public fund and upheld the charge of mis-conduct. The Disciplinary authority, again passed the order of removal of the respondent from service. Against the said order, the respondent filed an appeal, which too has been dismissed. Thereafter, the respondent filed Original Application No. 245 of 2004. The Tribunal by the impugned order has allowed the Original Application.

The Tribunal, in its order, has observed that by the earlier order of the Tribunal, as upheld by the High Court, the Disciplinary authority has been mandated to reconsider the quantum of penalty as it cannot impose the penalty of removal from service under the facts and circumstances of the case. The Tribunal observed that while admitting the fact that in a number of cases, minor penalty was imposed, in some cases, Censure was imposed and in certain other exoneration was the result. The order dated 26th April 2002 has attained finality when the writ petition against the same was dismissed in 2002 and the Disciplinary authority has chosen not to move the matter before the Apex Court. In that event, whatever may be the cause or justification, there is no question of same order of removal from service being passed. The authorities have exceeded the jurisdiction. The impugned order of penalty as well as that of appellate order are, therefore, liable to be set aside.

Learned counsel for the petitioners submitted that the Tribunal in its order dated 26th April, 2002, has affirmed the enquiry report as well as the order of the Disciplinary authority to the extent that the charges levelled against the respondent stood proved. Therefore, the order of the Tribunal to this extent has not been set aside or modified by the writ court. Thus, the order of the Tribunal, to the extent that the charges stood proved, attained finality. The only question remained for consideration by the Tribunal was that whether on such proved charges what quantum of penalty should be awarded. He submitted that, while remanding back the case, the Tribunal has not held that the penalty of removal from service is wholly unjustified and should not have been awarded or some other penalty would have been awarded. The Tribunal has remanded back the case to the Disciplinary authority for consideration of the quantum of punishment afresh. It does not mean that the Disciplinary authority was prohibited or restrained from levying the penalty of removal of respondent from service. The Disciplinary authority, on the facts and circumstances and the charges levelled against the respondent having being found proved, rightly was of the view that it is a case of embezzlement of public fund and of a misconduct for which appropriate penalty would be the major penalty, that is, removal of respondent from service. Therefore, the view of the Tribunal that the major penalty of removal from service cannot be passed by the Disciplinary authority is not justified. He submitted that the respondent has to follow the procedure provided under Rules 115, 121 and 127 of the Postal Manual, which specifically provides that the money against any money order is to be delivered at the addressee's address after proper verification of his identity whereas in the present case, the money against four money orders, each of Rs.2,000/=, have been delivered not at the place of the addressee, but at the Post Office itself and that too without proper verification of the identity of the addressee to a bogus person. The money against the money orders has been paid to one Dhirendra Singh, who was not eligible person to receive the money, without verifying his identity. Thus, it is a clearcut case of non-following the proper procedure, provided under the Rules, embezzlement/misappropriation of public fund. Therefore, it is a case of misconduct. The Postman, holds a post, where he used to handle public money and as such he is supposed to be be man of integrity and his job is based on the faith and trust. The respondent was bound to deliver the money against the money order to the genuine and eligible person, who was entitled to receive the money at the addressee's place of residence after proper verification of his identity, which he completely failed to do and, therefore, major penalty awarded by the Disciplinary authority of removal from service was wholly justified. He also submitted that no parity can be claimed for an illegal act. Even though the case of the respondent is entirely different to other cases, but even if it is assumed that the facts of the case are similar to the other cases where minor penalty has been awarded, then also an illegality cannot be permitted to be perpetuated. The reliance is being placed on the decision of the Full Bench of Delhi High Court reported in (2004) 1 SCC ESC 531, Chanderpal v. NCT of Delhi and others (Paragraphs 6.7, 6.8, 6.9 & 6.10) and the decision of the Apex Court reported in (1997) 3 SCC 321, State of Haryana and others v. Ram Kumar Mann (Paragraph -3).

Learned counsel for the petitioners lastly submitted that for the charge of misappropriation of public fund or embezzlement of public fund, punishment of removal from service is the appropriate punishment. The reliance is being placed on the decision of the Apex Court in the case of Regional Manager, UPSRTC, Etawah and others v. Hoti Lal and another, reported in (2003) 3 SCC 605 ( Paragraphs 9 & 10), decision of this Court in the case of V.K. Bahadur v. State Bank of India, Lucknow and another, reported in (2000) 2 UPLBEC 1462 (Paragraphs 13 & 14) and the decision of the Apex Court in the case of Disciplinary Authority-Cum-Regional Manager and others v. Nikunja Bihari Patnaik, reported in (1996) 9 SCC 69.

We have considered submissions made by the learned counsel for the petitioners and gone through the materials on record.

We are of the view that the order of the Tribunal is patently illegal and erroneous and is not sustainable for the reasons stated below.

Chargesheet, wherein charges have been levelled against the respondent, reads as follows:

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For the proper adjudication of the case, it would be appropriate to refer the procedure provided for delivery of the Money Order under Postal Manual. Rules 121 and 127, of Vol. VI, Chapter III of the Postal Manual are very relevant in this regard, which are being reproduced below:

121. Payment of money orders.- (1) The register of M.O.s received must be signed by the postmen in acknowledgement of the M.Os and cash made over to them for payment, the total amount of cash given to each postman to pay money orders being written by him in words and figures over his signature. When a postman or some other official selected by the Postmaster is ordered to accompany another postman who is carrying M.Os articles on which customs duty is due and V.P. Articles of value more than the prescribed maximum he should affix his signature below the postmaster's orders in the register of M.Os received, in token of having seen them, and it will be his duty to accompany the postman in his beat up to a point when the cash is reduced to the limit prescribed for a single postman. The official should again affix his signature in the register of M.Os received in the presence of the treasurer below the acquittance by the postman for the money received by the postman for payment of Mos. The escorting official should sign in the postman's book, in the column 'remarks' against each M.O. Which was paid in his presence during his travel, with the postman, and note also the time and place at which he left the postman against the entry of the last M.O. Paid in his presence, which had the effect of reducing the amount of unpaid money orders plus the aggregate value of V.P. articles and articles on which customs duty is due realisable from addressee to a point within the limit prescribed for a single postman.

(2) Before paying a M.O. The postman should require the payee or the person authorised by the payee in writing to receive money orders on his behalf and to sign the receipt and acknowledgement in ink. If the name of the payee's father is given in the M.O. The payee should be required to sign it thus- "A, son of Z". When a M.O. is paid to a person other than the payee on the written authority of the latter, the person receiving payment of the M.O. Should be requested to sign the receipt and acknowledgement of the M.O in the following manner.

------for------

(Signature of the person (Name of the payee)

receiving the payment)

Before paying a M.O. the postman should see that the correct amount has been received by the payee in the proper spaces provided in the receipt and acknowledgement portions of the M.O Form mentioning the date in the acknowledgement. The intimation portion of a V.P.M.O should be cut off and delivered to the payee at the time of payment.

On the signed receipt and acknowledgement being returned to him, the postman should pay the amount of the order and detach the coupon which should be left with the payee. The postman should then himself sign the M.O as the official by whom payment was made, and note the date of payment, in the places provided for these purposes.

NOTE.- In the case of an unclaimed or refused M.O which is repaid to the remitter his signature should be taken on the receipt and only coupon should be detached and handed over to the remitter.

(3) All M.Os given out for payment must, as an absolute rule be returned (together with acknowledgements) to the M.O. Assistant and the money (if any) remaining undisbursed to the treasurer, before the office is closed for the day. The accounts between the postman, the treasurer and the M.O. Assistant must be adjusted before the close of the office.

EXCEPTION.- The disposal of acknowledgement relating to money orders issued in favour of officers of Government or District Local or Municipal Boards, is governed in some cases by special rules which provide for the retention of the acknowledgement by the payee. To these acknowledgements, the procedure prescribed in this paragraph does not apply.

(4) If the payee of a M.O is illiterate, his thumb-impression, seal or other mark should be obtained on the receipt and acknowledgement in the presence of a resident witness who should be required to attest it with his signature. When the payee's thumb-impression is taken, the following procedure should be followed:

All grease and dirt should first be carefully removed from the ball of the left thumb, which should then be wiped dry, laid on the special ink-pad provided for the purpose and very lightly rolled from left to right until it is sufficiently inked. The thumb should then be placed on the paper and a complete impression obtained by rolling it very lightly once from left to right. If the thumb is rubbed or allowed to slip either on the pad or paper, a good impression cannot be secured. It is always advisable to take one or two experimental impressions on waste paper before finally impressing the thumb on the document.

Before proceeding on his beat, a postman should be careful to see that there is sufficient printers ink in the special ink pad supplied to him for taking thumb-impressions to last during the entire period of his absence from the post office. The pad should be replenished with ink from the post office whenever necessary.

NOTE 1.- When the amount of a M.O payable to an illiterate villager is less than five rupees, and there is no literate man in the village to witness the payment, the M.O may be paid in the presence of an illiterate witness, whose thumb-impression should be taken on the M.O including the acknowledgement in attestation of payment. In every such case the name of the witness should be written on the M.O by the postman by whom it is paid.

NOTE 2.-When the amount of a M.O payable to an illiterate villager is five rupees or more, and no literate witness is available in the village, payment should be duly attested by securing the left thumb-impression of the headman of the village on the M.O and his name should be written it is paid.

NOTE 3.- If the payee of a M.O be a blind person the procedure to be followed in respect of an illiterate payee should be observed in this case.

(5) When the payee of a M.O is a 'pardanashin' woman who has not an agent appointed in writing to receive M.Os on her behalf, her signature (or mark, if she is illiterate) should be attested by a respectable witness (ordinarily a relative known as such to the postman), and payment should be made to the witness. When the witness is not personally known to the postman, he (or she) must before receiving payment, be identified, and the person who identifies him (or her) should be required to sign the M.O as a witness to the payment.

(6) When M.Os are paid by postman who serve villages outside post-towns the signatures of the headman of the village or of the village accountant or other respectable resident of the place where payment is made, must, in every case, be taken on the money order in attestation of the payment, whether the payee is illiterate or not.

(7) When a pension money order is paid to a departmental pensioner, the postman should endorse under his dated signature, on the back of the acknowledgement portion of the money order, a certificate in English or the Regional language to the effect that pensioner is alive on the date of payment. The certificate endorsed by the postman or village postman on the back of the acknowledgement portion of pension money orders paid in January, April, July and October should be attested by at least two respectable persons in the village.

(8) a postman who asks for, or receives, a commission or present on paying a money order is liable to removal.

A. In S.O the cash on account of money orders remaining unpaid should be made over by the postman to the money order Assistant.

127. Responsibility for correct delivery of articles and payment of money orders. --(1) Postman are responsible for the correct delivery of all articles and the correct payment of all money orders entrusted to them. In all cases of doubt, the postman must satisfy himself as to the addressee's or payee's identify by making proper enquiries before delivering the article or paying the money order.

(2) In the case of uninsured registered articles of the letters mail and registered parcels, if the addressee is not personally known to the postman, delivery should be made in the presence of a respectable witness residing in the locality, whose name should be noted on the receipt. In the case of insured-articles for a person unknown to the postman, the same procedure should be followed, but the witness in whose presence delivery is made must also be able to identify the addressee.

(3) Money orders in favour of persons not permanently resident within the jurisdiction of the office of payment or personality known to the postman should be paid only on satisfactory proof of the identity of the claimant with the person named in the money order. The information obtained from the person who identifies the claimant must be such as will enable the officials of the post office to readily find the payee again, should any mistake or fraud have occurred, and, with this object, the permanent address of the payee, as vouched for by the person who identifies him, must be noted on the M.O. by the indentifier who should add his own address below his signatures under the "Identifier's Certificate" printed on the money order form. If he refuses to comply with this request, the postman should exercise greater care in accepting the identification as genuine. A postman is not authorised to pay a M.O. to any one personality unknown to him unless and until he has been satisfactorily identified by some trustworthy person known to the postman, and it must be understood that the statements of such persons are not to be accepted without full enquiry as to his actual knowledge of the claimant. He should always be asked to explain how he become acquainted with the claimant and how long he has known him. It should not be considered sufficient evidence of the right of a claimant of a M.O. that the money has been remitted in response to a telegram sent by him.

(4) In any case in which the postman is not fully and clearly satisfied as to the addressee's or payee's identity, he should not make delivery or payment, but adopt the safer plan of taking back registered or insured article or M.O. to the post office, at which the person who claims to be the addressee or payee should be requested to call for the purpose of obtaining delivery of payment.

(5) Whenever an article is delivered, or a M.O. is paid, in the presence of a witness, or is taken back to the post office because the postman is not satisfied as to the identity of the claimant, the postman should report the circumstances immediately to the Assistant concerned and also to the postmaster. The precautions mentioned above are specially necessary in the case of articles and money orders for persons not very well known, but not so much in the case of articles for delivery or money orders for payment at the residence of well-known persons.

All the charges, levelled against the respondent, stood proved in the enquiry proceeding and the same has been upheld by the Disciplinary authority in its order dated 25th December, 1993, which has been upheld by the appellate authority vide order dated 20th June, 1994. The Tribunal in its order dated 26th April, 2002, while remanding back the case to the competent authority, has not set aside the finding recorded by the Enquiry Officer and the Disciplinary authority, so far as it related to the charges, which stood proved. The matter has been remitted back to the competent authority with the direction to reconsider the quantum of punishment. The writ court also, while upholding the order of the Tribunal, dated 26th April, 2002, has also not disturbed the findings of the Disciplinary authority in this regard. There is nothing, either in the order of the Tribunal or in the order of the writ court, which restricted the power of the Disciplinary authority to impose major penalty of removal of the respondent from service. The direction of the Tribunal was only to reconsider the quantum of punishment, with reference to the quantum of punishment awarded to other employees, in similar situation. Therefore, the Tribunal is not justified in holding that the major penalty of removal of the respondent from service could not be imposed by the Disciplinary authority, after remand of the case.

We are also of the view that parity cannot be claimed in respect of quantum of penalty levied upon the respondent. Each case depends upon its on fact. Even assuming that in similar situation, minor penalty has been levied in other cases, it may not be treated as a precedent to be followed. It is the settled principle of law that the illegality cannot be perpetuated.

Reliance is being placed on the following decisions:

In the case of Chanderpal v. NCT of Delhi and others (supra), the Apex Court held as follows:

"6.7. In State of Bihar and others v. Kameshwar Prasad Singh and another, 2000 (2) SCT 889 (SC), the law operating in the field is stated in the following terms :

"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and others v. NDMC and others, 1996 (2) SCC 459, held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution, which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed :

"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others, 1997 (1) SCC 35, this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding :

"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."

In State of Haryana and others v. Ram Kumar Mann, 1997 (3) SCC 321, this Court observed :

"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e. benefit of withdrawal or resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetuate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make right."

6.9 Once it is found that the writ petitioners have indulged in such fraudulent activities rendering them unbecoming of the members of the Police Force, their services were bound/liable to be terminated and no illegality can be said to have been committed by the respondents. If in some other cases, the appellate authority had taken a different view without adverting to the real issue, the same would not itself confer any legal right upon the writ petitioners herein to pray for a writ of or in the nature of Mandamus directing the respondents to reinstate in service following illegal order.

6.10 A writ of mandamus can be sought for by a person when there exists a legal right in himself and a corresponding legal obligation on the respondents.

Equality clauses enshrined in Articles 14 and 16 of the Constitution of India would apply only when the petitioner has been deprived of a legal right. A delinquent officer in no circumstance can base his claim invoking equality clause where its foundation is based on illegality.

He cannot be permitted to urge that although he is guilty of commission of a misconduct he should not be punished only because others have been let off either by mistake or otherwise.

No case, thus, has been made out to interfere with the impugned judgment of the Tribunal.

So far as question of quantum of punishment is concerned recently in Om Kumar and others v. Union of India, (2001) 2 SCC 386, it was held :

"69. the principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.

70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611, this Court reiterated to "proportionality" in the quantum of punishment but the Court observed that the punishment was shockingly disproportionate to the misconduct proved. In B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749, this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham, (1997) 7 SCC 463.

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment."

In the case of State of Haryana and others Vs. Ram Kumar Mann, (supra), the Apex Court held as follows :

"3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on 18-5-1982. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance on 18-5-1982. It may be that the Government for their own reasons, had given permission in similar case, to some of the employees mentioned earlier, to withdraw their resignations and had appointed them. The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits."

Rule 127 of the Postal Manual provides responsibility for correct delivery of articles and payment of money orders. Sub-rule (1) of Rule 127 provides that Postman are responsible for the correct delivery of all articles and the correct payment of all money orders entrusted to them. In all cases of doubt, the postman must satisfy himself as to the addressee's or payee's identify by making proper enquiries before delivering the article or paying the money order.

Sub-rule (3) provides that the Money orders in favour of persons not permanently resident within the jurisdiction of the office of payment or personality known to the postman should be paid only on satisfactory proof of the identity of the claimant with the person named in the money order. The information obtained from the person who identifies the claimant must be such as will enable the officials of the post office to readily find the payee again, should any mistake or fraud have occurred, and, with this object, the permanent address of the payee, as vouched for by the person who identifies him, must be noted on the M.O. by the identifier who should add his own address below his signatures under the "Identifier's Certificate" printed on the money order form.

Sub-rule (4) provides that in any case in which the postman is not fully and clearly satisfied as to the addressee's or payee's identity, he should not make delivery or payment, but adopt the safer plan of taking back registered or insured article or M.O. to the post office.

Sub-rule (5) provides that whenever an article is delivered, or a M.O. is paid, in the presence of a witness, or is taken back to the post office because the postman is not satisfied as to the identity of the claimant, the postman should report the circumstances immediately to the Assistant concerned and also to the postmaster.

It further provides that the precautions mentioned above are specially necessary in the case of articles and money orders for persons not very well known, but not so much in the case of articles for delivery or money orders for payment at the residence of well-known persons.

In the present case, the respondent has not even visited the payee's place of residence, no verification of his identity and genuineness has been made. The signature of the witness or the identifier has also not been taken. The money has been paid at the Post Office itself. The payment has been made, without any witness and in the absence of the identifier, to a non-genuine and bogus person contrary to the procedure provided under Rule 127, referred hereinabove, which resulted in causing financial loss to the Post Office/Postal Department. Thus, a clearcut case of negligence, misconduct and embezzlement has been made out. As stated above, the charges against the respondent stood proved and the same has been upheld by the Tribunal and this Court. In the circumstances, the question is whether on the proven charges, the punishment of removal from service awarded to the respondent is justified.

The postman holds a post, which deals with the public money. His Job is based on the faith and trust and, thus, he should be a man of impeccable integrity, which cannot be compromised for any reason whatsoever. Not following the procedure provided under the Manual/Rules and delivering the money or articles to a non-genuine person raises a doubt about the integrity and conduct of the respondent. The Apex Court in a number of decisions has, time and again, held that where an employee is found to be involved in such act, which leads to misappropriation/embezzlement of public money, the only punishment, which should be awarded is removal of such employee from service. Some of the decisions of the Apex Court are referred hereinbelow:

In the case of Regional Manager, U.P. SRTC, Etawah and others Vs. Hoti Lal and another, (supra), the Apex Court held as follows :

"9. The decision in U.P. SRTC case was really in a different factual background making it distinguishable from the facts of the present case, and has no application. In Karnataka SRTC v. B.S. Hullikatti, reported in (2001) 2 SCC 574 it was held that it is misplaced sympathy by courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower domination knowing fully well the correct fare to be charged. It is the responsibility of the bus conductors to collect the correct fare from the passengers and deposit the same with the Corporation. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. It was finally held that the order of dismissal should not have been set aside. The view was reiterated by a three-Judge Bench in Regional Manager, RSRTC v. Ghanshyam Sharma, reported in (2002) 10 SCC 330 where it was additionally observed that the proved acts amount either to a case of dishonesty or of gross negligence, and bus conductors who by their actions or inactions cause financial loss to the corporations are not fit to be retained in service.

10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree, reported in 1974 LCR 120 (NIRC)]. A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal."

In the case of V.K. Bahadur Vs. State Bank of India, Lucknow and another, (supra), the Apex Court held as follows :

"13. Thus the submission of learned Counsel for the petitioner that there was no mala fide intention on the part of the petitioner and there was no personal gain is not tenable. Learned counsel for the petitioner has referred only to the concluding part of the findings, but it is settled law that a document has to be read as a whole, and stray observations in a document or order cannot be read in isolation. As already stated by us above a Bank runs on public confidence and no leniency can be shown where allegations of lack of integrity or devotion to duty are found proved against a Bank employee. In this respect greater integrity and devotion to duty is required from Bank employees as compared to employees of other organisation. Any leniency shown in such matters would be wholly uncalled for and misplaced, vide Disciplinary Authority v. N. B. Patnaik, 1996 (9) SCC 69.

14. In Ram Pratap Sonkar's case (supra), this Court has distinguished the decisions of the Supreme Court in Kailash Nath Gupta v. Enquiry Officer, 1997 ACJ 896, and in State Bank of India v. T. J. Paul, JT 1999 (3) SC 385. In fact in State Bank of India v. T. J. Paul (supra), the Supreme Court held that in the case of a Bank employee even if there was no actual loss to the Bank the employee can yet be held guilty of major misconduct."

In the case of Disciplinary Authority-Cum-Regional Manager and others Vs. Nikunja Bihari Patnaik (supra), the Apex Court held as follows :

"7. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every officer/employee of the bank to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. It requires the officer/employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him. Breach of Regulation 3 is 'misconduct' within the meaning of Regulation 24. The findings of the Inquiry Officer which have been accepted by the disciplinary authority, and which have not been disturbed by the High Court, clearly show that in a number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority. True, it is that in some cases, no loss has resulted from such acts. It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy; the advances have become sticky and irrecoverable. It is not a single act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a bank--for that matter, in the case of any other organisation--every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank would become chaotic and unmanageable. Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations. The very act of acting beyond authority--that too a course conduct spread over a sufficiently long period and involving innumerable instances--is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases but they may also lead to huge losses. Such adventures are not given to the employees of banks which deal with public funds. If what we hear about the reasons for the collapse of Barings Bank is true, it is attributable to the acts of one of its employees, Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority. As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary through as a matter of fact, in this case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit--huge profit, as the High Court characterises it--they are no less blameworthy. It is wrong to characterise them as errors of judgment. It is not suggested that the respondent being a Class I Officer was not aware of the limits of his authority or of his powers. Indeed, Charge 9, which has been held established in full is to the effect that in spite of instructions by the Regional Office to stop such practice, the respondent continued to indulge in such acts. The Inquiry Officer has recorded a clear finding that the respondent did flout the said instructions and has thereby committed an act of disobedience of lawful others. Similarly, Chage 8, which has also been established in full is to the effect that in spite of reminders, the respondent did not submit "Control Returns" to the Regional Office. We fail to understand how could all this be characterised as errors of judgment and not as misconduct as defined by the Regulations. We are of the opinion that the High Court has committed a clear error in holding that the aforesaid conduct of the respondent does not amount to misconduct or that it does not constitute violation of Regulations 3 and 24.

8. We must mention that Shri V.A. Mohta, the learned counsel for the respondent, stated fairly before us that it is not possible for him to sustain the reasoning and approach of the High Court in this case. His only submission was that having regard to the age of the respondent (37) years and the facts and circumstances of the case, this Court may substitute the punishment awarded to the respondent by a lesser punishment. The learned counsel suggested that any punishment other than dismissal may be imposed by this Court. We considered this request with the care it deserves, but we regret that we are unable to accede to it. The learned counsel for the Bank, Shri V.R. Reddy, Additional Solicitor General, also stated, on instructions of the Bank, that it is not possible for the Bank to accommodate the respondent in its service in view of his conduct."

In a recent decision in the case of of Rajasthan State Transport Corporation & Another v. Bajrang Lal, Civil Appeal No. 4104 of 2007, decided on 14.3.2014, the Apex Court has held that the only punishment in case of the proved case of corruption is dismissal from service.

Further, Rule 132 of the Postal Manual provides for penalties for neglect of duty, which provides that if a Postman is found guilty of habitually loitering on his beat, or employing the agency of un-authorised person, or persons unconnected with the Post Office to deliver articles entrusted to him for delivery, or otherwise neglecting his duty, he would be liable to removal or prosecution in a Court of Law under the Post Office Act.

In view of the aforesaid discussions, we are of the view that the order of the Tribunal, setting aside the order of termination and directing the petitioners to take back the respondent in service, with the further direction that the respondent would be entitled for the pay and allowance for the period during which he remained out of service, with the increments due and to keep his seniority intact is legally incorrect, not sustainable in law and is liable to be set aside.

In view of what has been discussed hereinabove, the writ petition succeeds and is allowed. The impugned order, dated 8th March, 2006, passed by the Central Administrative Tribunal, in Original Application No. 245 of 2004, is set aside.

No order as to cost.

Order Date :- 31.03.2014

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