Bombay High Court
The Union Of India vs Hanmant Nivrutti Karade on 6 December, 2016
Bench: Anoop V. Mohta
901-wp-5506-08-judgment.doc
Ladda(PS).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5506 of 2008
The Union of India
The Union of India, through
The Director of Postal Services,
Pune Region Office of the
Post Master General, Pune Region.
Pune - 411 001. ..Petitioner.
Vs.
Shri Hanmant Nivrutti Karade ..Respondent.
Residing at New Mhada Colony,
L-68, Sadar Bazar, Satara-415 001.
Mr. Y.S. Bhate a/with Mr Upendra Lokegaonkar i/by Mr Jaydeep S.
Deo for the Petitioner.
Mr. Abhay Thorat for the Respondent.
CORAM : ANOOP V. MOHTA AND
A.S.GADKARI, JJ.
RESERVED ON : 18th NOVEMBER, 2016
PRONOUNCED ON :6th December, 2016.
JUDGMENT:- (PER A.S. GADKARI,J)
1) By the present petition under Article 226 of the Constitution of
India, the petitioner, Union of India, through the Director of Postal
Services, Pune Region has questioned the correctness of the order
dated 7th May, 2008 passed by the Central Administrative Tribunal,
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Bombay Bench, Mumbai in Original Application No. 395/2007
thereby quashed and set aside the Appellate Authority and
Revisional Authority's orders dated 31st March, 2006 and 27th July,
2006 respectively and restored the penalty order dated 5 th October,
2005 issued by the Disciplinary Authority with further
directions/modifications.
2) The facts giving rise to the present petition can briefly be
enumerated as under :
(i) The respondent was appointed as a Postal Assistant through the
process of open recruitment on 25th May, 1992.
(ii) When the respondent was working as the Postal Assistant, he
was temporarily engaged as PL/VPP Clerk at Karad Head Office. As
VPP Clerk the respondent had delivered on 24 th July, 2004 VPP No.
306878 dated 15th July, 2004 to the addressee and collected the
value of the parcel amounting to Rs.5822/-. However, the
respondent did not credit the amount to the Government account on
24th July, 2004 by M.O. in lieu of the VPP delivered. That, similarly
on another occasion i.e. on 25th August, 2004 the respondent
delivered VPP/EPP No. 74534 dated 20th August, 2004 to the
addressee and collected the value of parcel amount of Rs.5513/-.
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Though under the Postal Rules the respondent was obliged to credit
the amount of Rs. 5513/- to the Government account by issuing
M.O. on the same day in lieu of cash receipt of delivery of VPP, but
he made entry of M.O. in the register of VPP received for delivery
against the concerned entry of VPP No.74534 on 9 th September,
2004. Thus, as far as the second VPP is concerned, the respondent
credited the said amount in the Government account belatedly after
about 15 days i.e. on 9th September, 2004.
(iii) After the inquiries were initiated against the respondent,
he deposited an amount of Rs.11,644/- with the Department on 20 th
January, 2005 under a covering letter. The record further reveals
that on 24th February, 2005, the respondent further deposited an
amount of Rs. 649/- vide receipt No. 38 of Book No. KL 4434 on
account of amount of penal interest in respect of the said VPPs.
(iv) The Department thereafter decided to conduct inquiry
against the respondent and accordingly a charge-sheet was served
upon him on 28th May, 2005. The respondent submitted his
representation on 11th June, 2005. In his representation dated 11 th
June 2005 the respondent denied the charges levelled against him.
During the course of the said Inquiry, the respondent by his letter
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dated 14th September, 2005 admitted the mistake committed by him
in its totality. In the said letter dated 14 th September, 2005, he
stated that mistakes were committed due to family problems and
other pressing circumstances and/or needs and sought benevolent
consideration from the Inquiry Officer. In view of the admission
given by the respondent, the Inquiry Officer therefore stopped the
further inquiry. After taking into consideration the representation
and the admission given by the respondent by his letter dated 14 th
September, 2005 the Disciplinary Authority felt that an opportunity
to retain the respondent in the services should be given with a hope
that he may show improvement in his behaviour in future. The
Disciplinary Authority therefore under the powers vested in it vide
Rule 12 (2) of the Central Civil Services Rules, (Classification,
Control & Appeal) Rules, 1965, (for short CCS (CCA) Rules, 1965)
ordered to reduce the pay of the respondent by two stages i.e. from
Rs.4600 to 4400 in the pay scale of Rs.4000-100-6000 for a period
of two years with cumulative effect from 1st January, 2006. It was
further directed that during the period of reduction, the respondent
was not to earn increments of pay.
(v) The record further reveals that the Director of Postal
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Services, Pune Region Pune (Appellate Authority) by exercising its
powers under Rule 29 (1) (v) of the C.C.S (CCA) Rules, 1965 sought
to enhance the penalty imposed on the respondent by the
Disciplinary Authority. He, therefore, issued a show cause notice to
the respondent. The respondent submitted his representation to the
Appellate Authority. In his representation the respondent has
submitted that he belong to a backward community i.e. the lowest
strata of the society and because of the attending circumstances
which were beyond his control, he did not deposit the amounts of
the said VPPs in a stipulated period. The respondent also sought
leniency from the concerned authority.
(vi) That the Appellate Authority after taking into
consideration the various aspects of the matter ordered that the
respondent be removed from service with immediate effect vide its
order dated 31st March, 2006
(vii) That feeling aggrieved by the order passed by the
Appellate Authority, the respondent preferred a revision petition
before the Chief Postmaster General, Maharashtra Circle, Mumbai.
The Revisional Authority in exercise of the powers conferred to it
under Rule 29 (1) (v) of CCS (CCA) Rules, 1965 rejected the
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revision petition by its order dated 27th July, 2006.
(3) The respondent being aggrieved by the orders of
removal from service for and for seeking reinstatement in the
service, preferred Original Application No. 395/2007 before the
Central Administrative Tribunal (for short "the Tribunal") Bombay
Bench, Mumbai. The Tribunal after hearing the parties to the said
Original Application No. 395/2007 by its order dated 7.5.2008 was
pleased to quash and set aside the orders passed by the Appellate
Authority and Revisional Authority dated 31st March, 2006 and 27th
July, 2006 respectively and directed the petitioner to restore the
penalty order dated 5th October, 2005 passed by the Disciplinary
Authority. The Tribunal has directed that the Respondent be
reinstated with continuity of service and all other consequential
benefits subject to the penalty order dated 5 th October,2005. The
Tribunal, however, has further directed that the Respondent will not
be entitled to any back wages for the period from the date of his
removal till the date of his reinstatement or till the expiry of the the
period of two months from the date of passing of the said order
dated 7th May, 2008 by the Tribunal, whichever is earlier. The said
order is impugned herein.
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(4) The petitioner being dissatisfied and aggrieved by the
said order has preferred the present petition as stated earlier on 8 th
July, 2008. This Court by its order dated 3 rd December, 2008 has
admitted the present petition and granted stay to the impugned
order passed by the Tribunal.
(5) Mr Bhate, the learned counsel appearing for the
petitioner submitted that the learned Members of the Tribunal erred
in recording a finding in respect of the deposit of the VPP amount by
the respondent. He further submitted that the finding recorded by
the Tribunal that the respondent has deposited double amount for
one VPP is incorrect. He further submitted that it is alleged against
the respondent that, he misappropriated the amounts of the
Government is a serious allegation and therefore the Tribunal has
wrongly come to the conclusion that the Appellate Authority has
made to deposit double than the amount in question is incorrect. He
further submitted that the findings recorded by the Appellate
Authority and Revisional Authority in their orders dated 31 st March,
2006 and 27th July, 2006 are legally correct and proper and needs no
interference at the instance of the Tribunal. He submitted that the
Disciplinary Authority and the Tribunal both have committed grave
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error in accepting the contention of the respondent thereby directing
him to be reinstated in the services with all other consequential
benefits and with other directions. He therefore prayed that present
petition may be allowed and the order passed by the learned
Members of the Tribunal dated 7th May, 2008 may be quashed and
set aside.
(6) Mr Thorat, the learned counsel appearing for the
respondent per contra, vehemently opposed the petition and
submitted that as a matter of fact the respondent has made alleged
loss good by making payment of Rs.11644/- by his covering letter
dated 20th January, 2005 and has also subsequently deposited an
amount of Rs.649 on account of penal interest. He submitted that
thus the petitioner's Department never suffered any permanent
monetary loss. He further submitted that the respondent was
removed from service since 31st March, 2006 and in the last more
than 8½ years the life of the respondent has become miserable as it
is very difficult for him to survive. He submitted that after taking
into consideration various attending circumstances of the present
case, the Disciplinary Authority at the first instance and subsequently
the learned Members of the Tribunal have passed equitable orders
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which need not be interfered and/or disturbed by this Court in the
interest of justice. He therefore prayed that the present petition may
be dismissed.
(7) We have perused the entire record made available before
us. The record reveals that the respondent though delivered on
24.7.2004 VPP No. 306878 dated 15 th July, 2004 and collected value
of parcel amount of Rs.5,822/-, did not issue M.O. on the same day,
as necessary under the Postal Rules. Similarly, the respondent on
subsequent occasion i.e. on 25th August, 2004 delivered VPP/EPP
No. 74534 dated 20th August, 2004 to the addressee and collected
the parcel amount of Rs.5513/- and instead of issuing M.O. on the
same day as per the Rules, deposited the said amount with the
Government by issuing M.O. on 9th September, 2004 i.e. 15 days
belatedly. Thus, it clearly appears from the record that as far as the
second VPP is concerned, the respondent deposited the said amount
by way of M.O. belatedly after 15 days i.e. on 9th September, 2004.
(8) It is by now settled position of law that, more than one
penalties can be visited upon a charged official but if one of the
penalties so imposed is recovery of pecuniary loss, then the other
penalty has to be suitably tempered by being toned down so as to
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make it bearable to the charged official.
The learned Members of the Tribunal has held that the
enhancement of penalty by the Appellate Authority, ordering
removal of the respondent under Rule 11 (8) of the said Rules is
clearly in violation of Rule No. 108 of Volume III of Posts and
Telegraphs Manual laid down by the P & T Department. The
Tribunal after relying on the ratio laid down by the Supreme Court
in the case of B.C. Chaturvedi Vs. Union of India reported in 1996
SCC (L&S) 80 has held that, if the punishment imposed is highly
disproportionate to the alleged misconduct committed by the
respondent it would shock the judicial conscious of the Court. It
further held that the penalty imposed by the Appellate Authority
imposing extreme penalty of i.e. removal from service was excessive
and grossly disproportionate to the misconduct of the respondent.
(9) In the peculiar facts and the circumstances of the present
case, it clearly appears to us that the punishment imposed upon the
respondent by the Appellate Authority and affirmed by the
Revisional Authority by its orders dated 31st March, 2006 and 27th
July, 2006 respectively was grossly disproportionate and excessive.
The record reveals that the respondent is the only bread earner of
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his family and hails from the lower strata of the society. At the cost
of repetition, it is to be noted here that though the respondent had
caused loss to the petitioner-Department, it was of temporary in
nature and by his letter dated 20th January, 2005 the respondent has
made the said loss good and has also paid penal interest of Rs.649/-
on the said belated deposit of payment. We are of the view that an
opportunity to show the improvement in the behaviour in future
must be given to the respondent.
(10) In view of the above, we are of the considered opinion
that the orders passed by the Appellate Authority and Revisional
Authority dated 31st March, 2006 and 27th July, 2006 are totally
unreasonable and arbitrary and cannot be sustained in the eyes of
law. It clearly appears to us that the impugned order dated 7 th May,
2008 passed by the learned Members of the Tribunal is an equitable
order and the view taken therein is just right and proper. We see no
error, illegality or perversity in the said impugned order to interfere
with in our writ jurisdiction under Article 226 of the Constitution of
India. Petition is accordingly dismissed with no order as to costs.
(A.S. GADKARI, J.) (ANOOP V. MOHTA,J.)
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