M.N.Chaudhary (Since Deceased) ... vs Union Of India & Ors.
2013 Latest Caselaw 5 Del

$~R-3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: January 02, 2013

+                         WP(C) 1727/2001

      M.N.CHAUDHARY (SINCE DECEASED)
      THROUGH LRs.                                      ..... Petitioner
           Represented by: Ms.Jyoti Singh, Sr.Advocate instructed by
           Ms.Saahila Lamba, Advocate.

               versus
      UNION OF INDIA & ORS.                                 ..... Respondents
          Represented by: None.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (Oral)

1. Deceased M.N.Chaudhary, working as SPM NEPZ Noida was served with a chargesheet listing four Article of Charges as under:-

"Article.I While working as SPM NEPZ Noida on 3.6.93 Shri M.N. Chaudhari booked three Regd. Articles No.2930,2931 & 2932 and a SPA No.182 and collected `54/-from the senders in cash as full prepayment of transmission in place of getting the postage stamps affixed. This amount of `54/- so recovered was later on credited by the SPM in UCR on 3.6.93. In this way Shri M.N.Chadhari SPM NEPZ violated rule 106 of P& T Ma.Vol.V.

Article .II On 1.6.93 while working as SPM NEPZ Shri M.N.Chadhary booked 33 regd. Parcels bearing regn. No.2299 to 2331 tendered by M/S Times watches Ltd, E.1/90, Phase.II Noida through its commercial Trainee Shri Ram Behari. Shri M.N. Chaudhary collected `5118/- from Shri Ram Behari in cash as full prepayment of transmission in place of getting the postage stamps affixed on the parcels

in contravention of rule 106 of P& T Man.Vol.V.

Shri M.N.Chaudhary while booking above noted regd.parcels issued receipt in RP.51 for the amount excess than the actual postage stamps affixed on the parcels by him in contravention of Rule 171(1) of P& T Man.Vol.VI Part.I and rule 4 (1) of FHB Vol.I.

Article.III On 1.6.93 Shri M.N.Chaudhary working as SPM NEPZ Noida booked 33 regd. Parcels bearing No.2299 to 2331 tendered by M/s Times watches Ltd. E.1/90 Phase.II Noida through its commercial trainee Shri Ram Behari and issued receipt dt.1.6.93 to the sender in form RP.51. But these articles were dispatched by him only on 3.6.93 after a long unauthorized detention, in violation of rule 90 of P&T Man.Vo.V.

Article.IV While working as SPM NEPZ during May & June, 93 Shri M.N.Chaudhary did not write up so a/c from 21.5.93 to 1.6.93 as required under rule 84 of Postal Man.Vol.VI Part.III."

2. Indicted by the Inquiry Officer and agreeing with the report of the Inquiry Officer, the Disciplinary Authority levied a penalty of dismissal from service vide order dated August 22, 1994 against which appeal filed by M.N.Chaudhary resulted in partial success when vide order dated September 15, 1995 the Appellate Authority opined that no revenue loss was caused but M.N.Chaudhary had evidenced gross negligence by violating the Rules of the Department on the subject and in view of his unblemished past 17 years service rendered to the Department, warranting a lenient view to be taken, modified the punishment from that of dismissal from service to one of compulsory retirement.

3. With respect to the charges against M.N.Chaudhary it would be apparent that as regards Article I of the charge it was only that he was a little late in crediting `54/- which he had received from the sender of a parcel and in respect whereof postage stamps worth `54/- had already been affixed on

the parcel. In other words, after receiving `54/- M.N.Chaudhary got affixed stamps worth equivalent sums and thus the money was in effect accounted for, save and except an entry to be made in the account book. As regards Article II of the Charge the evidence would reveal that M.N.Chaudhary had collected `5118/- and had issued the stamps to the person who had brought 33 parcels i.e. Ram Bihari who had then affixed stamps of a lesser value on the parcels and in respect of which Article of Charge, the Appellate Authority agreed that it was partially proved. As regards Article III of the Charge, the misdemnour only was of late dispatch of the parcels. Pertaining to Article IV it again related to an act of omission and not commission.

4. It is this which has led the Appellate Authority to alter the punishment to one of compulsory retirement, and it is obvious that the intent is that Sh.M.N. Chaudhary should receive pension for having rendered blameless service for 17 years.

5. But unfortunately, the applicable pension Rules require 20 years service rendered before pension can be earned and thus the penalty of compulsory retirement imposed upon M.N.Chaudhary, though intended to be benevolent, has yielded him no benefit.

6. Ms.Jyoti Singh, learned Senior Counsel appearing for the wife and children of the deceased states that she has been instructed not to question the findings returned against the petitioner and make a limited submission. Counsel urges that if the intention behind the appellate order was for M.N.Chaudhary to receive pension, which obviously it is, it is apparent that the Appellate Authority was not appraised that the pensionable service is 20 years service and M.N.Chaudhary had rendered only 17 years service. Learned Senior Counsel urges that this Court should substitute the penalty by levying a penalty of a kind where M.N.Chaudhary would receive pension and on his death the family would receive the family pension.

7. We are nobody to substitute the penalty. But a faced with a situation

where our direction to the Appellate Authority to reconsider the matter would result in further delay; and regretfully an issue which surfaced in the year 1993 has lingered on till today. Charge-sheet issued in the year 1993 resulted in a penalty levied on August 22, 1994. The appellate order came into existence on September 15, 1995. M.N.Chaudhary challenged before the Central Administrative Tribunal resulted in O.A.No. 2257/1997 being dismissed vide impugned order dated July 5, 2000. Thereafter, the writ petition was admitted and languished in the Record Room of this Court. M.N.Chaudhary died. His legal heirs were brought on record .

8. What should we do?

9. Look for precedents.

10. We have found one!

11. In the decision reported as 2007 (140) DLT 26 Ex.Sepoy Sube Singh v. UOI & Ors. the date of an order of discharge was shifted so as to entitle Sube Singh to receive pension. The said decision authored by Hon'ble Mr.Justice T.S.Thakur was followed by a Division Bench on March 3, 2011 when W.P.(C) 3898/1998 Ex.Nk.Sanwath Singh vs. UOI & Ors was decided.

12. Ends of justice would be met, keeping in view the long passage of time when the misdemeanor was committed and the appellate order was passed the writ petition is being disposed of, that the order levying penalty of compulsory retirement is shifted to a date immediately preceding the day when M.N.Chaudhary completed 20 years service thereby entitling him to pension with effect from the said date and his family to be receiving family pension from the date when he died.

13. Ordered accordingly.

14. Pension payable to M.N.Chaudhary be computed reckoned from the date he would have rendered 20 years of service and thereafter family pension be computed with effect from February 25, 2012 when M.N.Chaudhary died. Arrears be paid to the three legal heirs of

M.N.Chaudhary in equal shares with respect to the pension which he would have received and as regards the family pension the same be disbursed to his wife. No interest be paid for the reason though with retrospective effect the pension payable is being ordered by us today. Legal heirs be informed if any codal formalities are to be completed.

15. No costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 02, 2013 skb