Union Of India & Ors. vs Ram Kumar Sharma
2009 Latest Caselaw 2668 Del

*             HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 10006/2009

                      Judgment reserved on: July 13, 2009
%                     Judgment delivered on: July 16, 2009

      Union of India & Ors.                    ..... Petitioners

                      Through: Mr.A.K.Bhardwaj, Advocate

                  Versus

      Ram Kumar Sharma                         ..... Respondent

                      Through: None.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                  Yes

2. To be referred to Reporter or not?          Not Necessary

3. Whether the judgment should be reported
   in the Digest?                              Not Necessary


A.K. PATHAK, J.

1. Petitioners have filed this writ petition against the order

dated 30th March, 2009 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi (for short hereinafter

referred to as "Tribunal") whereby order dated 15th May, 2007

passed by the Disciplinary Authority imposing penalty of

withholding of next two increments of the respondent with

cumulative effect has been set aside.

2. Initially respondent was appointed as a postman with the

Petitioner. Later on he was promoted as Postal Assistant w.e.f.8th

May, 1986. Respondent was placed under suspension on 15 th

March, 1995 on the ground of contemplation of disciplinary

proceedings against him. Charge sheet dated 29th January, 1997

was served upon him. Vide order dated 12th May, 2000, the

Disciplinary Authority imposed the penalty of reduction in post to

the cadre of postman for a period of three years upon the

respondent. However, aforesaid order was set aside by the

Member (P) vide order dated 5th January, 2004 with the direction

to hold de novo proceedings from the stage of appointment of

Enquiry Officer.

3. Pursuant to the order dated 5th January, 2004 enquiry was

held and Enquiry Officer gave report on 26th December, 2006

wherein he concluded that charge No.1 and 2 had remained

unproved but charge No.3 was proved only to the extent that

VPMOs were issued late.

4. Enquiry Officer submitted his report to Disciplinary

Authority. Vide order dated 15th May, 2000 Disciplinary Authority

accepted the enquiry report and imposed the penalty of

withholding of next two increments of the respondent with

cumulative effect.

5. Respondent preferred an appeal but the same was rejected

by the Appellate Authority vide order dated 3 rd March, 2008.

Thereafter respondent filed OA NO.2172/2008 before the

Tribunal wherein the impugned order has been passed.

6. Tribunal has held that sufficient evidence had not been

brought home by the department to establish conclusively the

guilt of the delinquent official. Tribunal further held that

Disciplinary Authority has to record the definite finding with

reasons in support of the conclusion that charge against the

delinquent official stood proved and suspicion and surmises

cannot take place of proof. In the facts of this case, Tribunal

was of the view, that conclusion was based on suspicion and

surmises.

7. We have perused the Enquiry Report and orders of the

Disciplinary Authority as well as Appellate Authority. We are in

agreement with the Tribunal that no definite finding with reasons

has been recorded in the order of the Disciplinary Authority.

Enquiry Officer in his report dated 26th December, 2006 has

himself stated that all the three charges levelled against the

respondent could not be proved in toto and the third charge was

proved only to the extent that VPMOS were issued late but this

was not confirmed as to whether these VPMOs were issued late

or VPP articles were delivered late. This itself shows that the

Enquiry Officer himself was sceptical about the evidence on

record.

8. Order of the Disciplinary Authority is a non-speaking order.

No reasons have been assigned by the Disciplinary Authority to

arrive at the conclusion that charge No.3 was duly proved against

the respondent. Disciplinary Authority has simply quoted

findings of the Enquiry Officer in Para No.4 but he has not given

his opinion. The charge No.3 was to the effect that the

respondent while working as Postal Assistant in Parcel Import

Branch during the period 23rd June, 1993 to 14th March, 1995

had failed to deposit the amount in treasury and got issued the

VPMOs after lapse of several days and mis-utilised the

Government amount deliberately in respect of the four VPP

articles.

9. However, no definite findings have been recorded either by

the Enquiry Officer or the Disciplinary Authority that the charge

of mis-utilization of the Government fund was duly proved. As

stated above, Enquiry Officer had himself stated that third charge

was proved only to the extent that VPMOs were issued late.

Accordingly, we are of the opinion that the Tribunal has rightly

held that department had failed to establish conclusively the guilt

of delinquent official. Tribunal has rightly observed that the

suspicion and surmises cannot take place of proof.

10. We do not find any jurisdictional error in the impugned

order. The writ petition is accordingly, dismissed in limine.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 16, 2009 ps