Bombay High Court
Arun Laxmikantrao Aadhe vs The Union Of India & Ors on 12 September, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2840 OF 2007
Arun s/o Laxmikantrao Aadhe,
Age : 45 years, Occu. Nil,
R/o c/o P.S. Dalal, Saraswatinagar,
Parbhani, District Parbhani PETITIONER
VERSUS
1. The Union of India,
Department of Posts,
through the Superintendent of
Post Offices, Nanded
2. The Senior Superintendent of
Post Offices, Dhule
3. The Director Postal Services,
Aurangabad
4. The Secretary,
Ministry of Communication,
Department of Posts,
Dak Bhavan, New Delhi - 110 001 RESPONDENTS
----
Mr. Pradeep Deshmukh, advocate for the petitioner
Mr. D.G. Nagode, Assistant Solicitor General
for the respondents
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 12th September, 2017
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JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Heard the learned counsel for the petitioner
and the learned Assistant Solicitor General,
representing the respondents.
2. The petitioner has challenged the judgment and
order dated 2nd December, 2005, passed in Original
Application No. 428 of 2005 by the Central
Administrative Tribunal, Bench at Mumbai ("Tribunal",
for short), whereby the order dated 13th September, 2002,
passed by the Appointing Authority of the petitioner
imposing the penalty of his removal from service came to
be upheld.
3. The petitioner was working as Treasurer-II, a
Group C employee, in the Head Post Office at Parbhani.
He was governed by the Central Civil Services Rules. It
was alleged that on 31st December, 1996, he misused the
Government amount of Rs.77,928/-, kept shortage in
postage and revenue stamps which were part of the cash
balance of Parbhani Head Post Office. He further
misused the Government amount of Rs.614/-, being the
sale proceeds of salable publications of Parbhani Head
Office. While functioning as Treasurer-II in Parbhani
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Head Office, during the period from 6th December, 1996 to
31st December, 1996, he did not supply the postage/
revenue stamps to the Post Offices of Kalamnuri,
Hingoli, Gangakhed, Basmatnagar and Naya Mondha of
Parbhani, in full, to meet their requirements. He was
charged for failing to maintain absolute integrity and
devotion to duty and thereby committing misconduct as
contained in Rule 3 (1) (i) and (ii) of the Central
Civil Services (Conduct) Rules of 1964.
4. A regular departmental enquiry was initiated
against the petitioner. Memorandum dated 4 th June, 1997
to that effect was served upon him with the articles of
charges, statement of imputations of misconduct/
misbehaviour in support of articles of charges, the list
of the documents and the list of the witnesses. The
petitioner was given an opportunity of hearing. The
Enquiry Officer examined six witnesses, who were cross-
examined by the petitioner. The Enquiry Officer found
the petitioner guilty of the above mentioned charges.
Accordingly, he submitted his report to the Disciplinary
Authority of the petitioner. The Disciplinary Authority
supplied copy of the enquiry report to the petitioner
vide letter dated 28th January, 2002 and called upon him
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to make representation or submission, if any, against
the findings recorded against him in the enquiry report,
within fifteen days from the receipt of that letter.
After considering the representation of the petitioner,
the Disciplinary Authority accepted the enquiry report
holding the petitioner guilty of the above mentioned
charges. The Disciplinary Authority then referred the
papers of enquiry to the Appointing Authority of the
petitioner for passing of the final order. The
Appointing Authority of the petitioner accepted the
enquiry report and passed the final order on 13 th
September, 2002, inflicting the penalty of removal of
the petitioner from service with immediate effect.
5. The petitioner filed departmental appeal under
Rule 23 of the Central Civil Services (Class, Control &
Appeal) Rules, 1965 ("Rules of 1965", for short). The
Appellate Authority extended the petitioner an
opportunity of hearing and ultimately, dismissed the
appeal, vide order dated 18th February, 2003.
6. The petitioner filed Original Application
No.428 of 2005, challenging the order passed by the
Appointing Authority removing him from service as well
as the order passed by the Appellate Authority. The
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Tribunal, after considering the rival contentions of the
parties, did not find any force in the contentions of
the petitioner. The Tribunal, therefore, dismissed the
Original Application vide order dated 2nd December, 2005,
which is under challenge in this writ petition.
7. The learned counsel for the petitioner submits
that the departmental enquiry was not initiated against
the petitioner by his Disciplinary Authority. According
to him, the Senior Superintendent of Post Offices was
the Appointing Authority of the petitioner. Therefore,
as per Rule 12 (2) (b) of the Rules of 1995, the Senior
Superintendent of Post offices was the Disciplinary
Authority. However, the departmental enquiry has been
initiated against the petitioner by the Superintendent
of Post Offices, Nanded, who was neither the Appointing
nor the Disciplinary Authority of the petitioner. He
further submits that the impugned order, removing the
petitioner from service ought to have been passed by the
Senior Superintendent of Post Offices, Nanded Division,
Nanded. However, it has been passed by the Senior
Superintendent of Post Offices, Dhule, who was holding
additional charge of the post of Superintendent of Post
Offices, Nanded. Therefore, according to him, the
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impugned order, removing the petitioner from the service
is not legal.
8. The learned counsel for the petitioner further
submits that the petitioner was not in exclusive custody
of the postage stamps and publications. The Post Master
also was the joint custodian of the postage stamps and
publications. The postage stamps and stationary were
being kept in lock and key and one of the keys used to
be with the Post Master. He submits that though the
Post Master was jointly responsible for shortage of
postage stamps and publications, he has been set scot-
free. The Post Master was equally responsible for
shortage of postage stamps and publications. The
petitioner was assured that in case the shortage of
postage stamps and publications is made good by him, no
action would be taken against him. Believing that
assurance, prior to initiation of the departmental
enquiry, he deposited the entire amount of Rs. 78,542/-,
which was the subject matter of the charges levelled
against him, without admitting that he was responsible
for shortage of postage stamps and publications.
However, only because he deposited that amount, he was
subjected to the disciplinary enquiry and ultimately,
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came to be removed from the service.
9. The learned counsel for the petitioner submits
that the petitioner never indulged in any misbehaviour
or misconduct. The postage stamps and publications were
being verified periodically. No shortage was noticed at
any time prior to 31 st December, 1996. The petitioner
has been punished for the misdeeds of the Post Master,
who was jointly responsible to account for the stock of
postage stamps and publications, being the joint
custodian. The learned counsel, therefore, submits that
the penalty imposed against the petitioner may be set
aside and the impugned judgment and order passed by the
Tribunal may be quashed and set aside. In the
alternative, he submits that the petitioner did not
indulge in any misconduct prior to 31st December, 1996.
He had sincerely rendered services in the Department of
Posts since the year 1988. His service record is
unblemished. He has the responsibility of his family.
The amount which was required to be deposited for making
good the loss of the Government had been deposited by
him much prior to initiation of departmental enquiry.
In the circumstances, the punishment of removal of the
petitioner from service would be harsh, illogical and
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would shock the conscience of the Court. He, therefore,
submits that the said punishment may be reduced and the
petitioner may be inflicted lesser penalty of compulsory
retirement.
10. The learned Assistant Solicitor General
(A.S.G.), appearing for the respondents submits that the
charges levelled against the petitioner were serious.
He was given full opportunity of defending himself
before the Enquiry Officer as well as the Disciplinary
Authority. The principles of natural justice have been
duly followed by the Enquiry Officer. The evidence of
the witnesses as well as the documents produced on
record clearly disclose that the petitioner committed
the misconduct as mentioned in the charges levelled
against him. The petitioner has been rightly ordered to
be removed from the service considering the serious
nature of the charges proved against him. The Tribunal
has rightly considered the facts as well as the evidence
on record and has rightly confirmed the said penalty.
He prays that the writ petition may be dismissed.
11. The petitioner, admittedly, is a Group-C
employee. As seen from the order dated 4th August, 1988,
the Senior Superintendent of Post offices is the
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Appointing Authority of the petitioner. As per Rule 12
(2) (b) of the Rules of 1965, the Appointing Authority
or the Authority specified in the Schedule would be the
Disciplinary Authority of the petitioner. Accordingly,
as per the Schedule, Part-I, Item No. 14, the officer of
Group "A" of Indian Postal Services will also be the
Disciplinary Authority of the petitioner besides the
Appointing Authority. The learned A.S.G. submits that
the Superintendent of Post Offices being a Group "A"
officer, was competent to initiate the disciplinary
proceedings against the petitioner. He, therefore,
submits that the authority of the Superintendent of Post
Offices, Nanded to initiate the disciplinary proceeding
against the petitioner cannot be questioned. He further
submits that the authority of the Superintendent of Post
Offices to initiate the disciplinary proceedings against
the petitioner was not challenged by the petitioner
before the Enquiry Officer, the Appointing Authority,
the first Appellate Authority or even before the
Tribunal. Therefore, according to him, this challenge
taken up by the petitioner for the first time before
this Court, is not sustainable.
12. We find substance in the contention of the
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learned A.S.G. In view of Rule 12 (2) (b), read with
Schedule Part-I Item No.14 of the Rules, the
Superintendent of Post Offices being the Group "A"
officer, was quite competent to act as the Disciplinary
Authority of the petitioner and to initiate disciplinary
proceedings against him. Moreover, the petitioner never
challenged the authority of the Superintendent of Post
Offices to initiate the disciplinary proceedings against
him either before the Enquiry Officer, or the Appellate
authorities or even before the Tribunal. As such, the
contention challenging the authority of the
Superintendent of Post Offices to initiate disciplinary
proceedings against the petitioner, for the first time
before this Court, cannot be entertained.
13. There is no dispute that the Senior
Superintendent of Post Offices was the Appointing
Authority of the petitioner. The impugned final order
removing the petitioner from service has been passed by
the Senior Superintendent of Post Offices, Dhule, who
was holding additional charge of the Senior
Superintendent of Post offices, Nanded. The contention
of the learned counsel for the petitioner that the
incharge Senior Superintendent of Post Offices was not
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competent to pass the final order is sans substance.
The Senior Superintendent of Post Offices, Dhule, who
was looking after the work of Senior Superintendent of
Post Offices, Nanded, because the later officer was not
on duty, was quite competent to pass the final order in
the disciplinary proceedings initiated against the
petitioner. Moreover, the authority of the in-charge
Senior Superintendent of Post Offices to pass final
order inflicting penalty on the petitioner has been
challenged for the first time before this Court and such
belated challenge cannot be entertained.
14. About the merits of the matter, it would be
sufficient to state that the petitioner was extended
full and fair opportunity of hearing by the Enquiry
Officer, the Disciplinary Authority, the Appointing
Authority and the first Appellate Authority. The
evidence recorded by the Enquiry Officer has been
scrutinized properly by him. The fact that the
petitioner deposited the entire amount, which was
required to be recovered for making good the loss caused
to the Government, itself indicates that the petitioner
accepted the liability that was fixed against him even
prior to initiation of the disciplinary proceedings.
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The Tribunal has rightly considered the facts as well as
the evidence on record and has rightly confirmed the
findings recorded by the Enquiry Officer, holding the
petitioner guilty of the above mentioned charges. We do
not find any perversity in the said findings. We hold
that the charges levelled against the petitioner have
been duly proved and he has been rightly held guilty of
the said charges. To that extent, the impugned judgment
and order passed by the Tribunal do not call for any
interference.
15. The only question that remains to be considered
is about the quantum of penalty imposed against the
petitioner. There is no dispute that the petitioner was
appointed on 4th April, 1988 in the Postal Department.
There is nothing on record to show that there was any
allegation of misconduct/misbehaviour on the part of the
petitioner during the period from 1988 till 1996. It is
only in December, 1996 that the shortage of postage
stamps and publications was noticed when he was working
as the Treasurer-II in Head Post Office at Parbhani.
From the stand taken by the petitioner, the Post Master
was joint custodian of stamps and publications. He has
come with a specific case that one of the keys of the
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lock blocking the said stamps, publications, etc. used
to be with the Post Master. Therefore, according to
him, he was not in exclusive custody of the postage
stamps, publications, etc. Though this contention of
the petitioner has not been accepted by the Enquiry
Officer, we are of the view that some concession ought
to have been given to the petitioner on this count. The
petitioner had deposited the entire amount in respect of
the shortage of postage stamps, publications, etc. even
prior to initiation of the disciplinary enquiry. This
was certainly a mitigating circumstance in favour of the
petitioner, which should have been considered while
fixing the quantum of penalty. It seems that this fact
has not been considered while passing the impugned
orders. In our view, in the circumstances of the
present case, the penalty imposed against the petitioner
removing him from service would be rather harsh and
illogical. We, therefore, think fit to modify the final
order by reducing the penalty of removal from service to
compulsory retirement as mentioned in Rule 11 (vii) of
the Rules. In our view, this penalty would be quite
adequate in the circumstances of the present case.
16. The Writ petition is liable to be allowed
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partly. The impugned order is liable to be modified. In
the result, we pass the following order:-
O R D E R
(i) The Writ Petition is allowed partly.
(ii) The impugned order dated 13 th September, 2002,
holding the petitioner guilty of the charges levelled
against him is maintained as it is.
(iii) The impugned order inflicting penalty against
the petitioner, removing him from service, is modified
and instead, he is imposed the penalty of compulsory
retirement as mentioned in Rule 11 (vii) of the Central
Civil Services (Class, Control and Appeal) Rules, 1965.
(iv) Rule is made absolute accordingly.
(v) No costs.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/wp2840-2007
