Bhaben Ch Sarma vs The Union Of India And 4 Ors
2022 Latest Caselaw 116 Gua

                                                               Page No.# 1/9

GAHC010192292020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/5190/2021

         BHABEN CH SARMA
         S/O LATE DHARMESWAR SARMA
         RESIDENT OF GOMORIA,
         PO HAHARA, PS SONAPUR, DIST KAMRUP (M) ASSAM



         VERSUS

         THE UNION OF INDIA AND 4 ORS
         REPRESENTED BY THE CHIEF POST MASTER GENERAL ASSAM CIRCLE,
         MEGHDOOT BHAWAN, GUWAHATI 781001

         2:THE DIRECTOR POSTAL SERVICES (HQ)
          O/O THE CHIEF POST MASTER GENERAL
         ASSAM CIRCLE
          GUWAHATI 781001

         3:THE SENIOR SUPERINTENDENT OF POST OFFICES

          GUWAHATI DIVISION
          MEGHDOOT BHAWAN
          GUWAHATI 781001

         4:THE INQUIRY AUTHORITY OF ASSISTANT SUPERINTENDENT (HQ)
          RNS
          GUWAHATI DIVISION
         GUWAHATI 781001

         5:THE SUB DIVISIONAL INSPECTOR OF POST OF OFFICES

          GUWAHATI EAST
          ULUBARI
          GUWAHATI 78100
                                                                        Page No.# 2/9


Advocate for the Petitioner   : MR. P J SAIKIA

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

Oral 11.01.2022

The matter is taken up through video conferencing. Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. B. Chakravarty, learned Central Government counsel appearing for all the respondents.

This petition has been filed by the petitioner challenging the order dated 15.06.2016 passed by the learned Administrative Member as well as the order dated 25.10.2017 passed by the learned Judicial Member of the Central Administrative Tribunal, Guwahati Bench, Guwahati (for short, hereinafter referred to as "the Tribunal") in O.A. No.040/00370/2014, by which the Original Application filed by the petitioner against his dismissal from service did not find favour with the Tribunal and the Original Application has been dismissed.

The material facts of this case are that the petitioner was appointed as a Gram Dak Sevak, Branch Post Master, Hahara Branch Office on 08.10.1992. In the year 2007, while he was working as a Branch Post Master at Hahara, an inspection took place on 24.05.2007 where anomalies were detected in the Book of Accounts and thereafter the petitioner was not permitted to operate as a Branch Post Master. Enquiry revealed that between 20.05.2001 and 23.05.2007 while the petitioner was operating as Branch Post Master at Hahara, Page No.# 3/9

he had misappropriate an amount of Rs.9,17,625.60, which was an amount he had received from the depositors but did not deposit the same in the account of the Post Office. Thus, the Post Office had incurred a loss of Rs.9,17,625.60. A charge-sheet dated 03.01.2011 was issued, which was served upon the petitioner on 07.01.2011 with the following charges:

"Annexure-I

Article-I

Sri Bhaben Ch. Sarma while working as GDS BPM, Hahara BO in account with Sonapur SO during the period from 20.05.01 to 23.05.07 accepted money to the tune of Rs.917625.60 from different holders of SB/RD accounts on different dates but he did not credit the amount to Govt. account on the date of deposit or any subsequent dates. Through the omission on his part the Govt. was put to a loss of Government money to tune of Rs.917625.60 violating the provision of Rule-3 of the Rules for Branch Offices (Seventh Edition-Reprint).

Sri Bhaben Ch. Sarma by his above acts exhibited lack of integrity and devotion to duty as enjoined in Rule-21 of the GDS (Conduct and Employment) Rules, 2001.

Annexure-II

Article-I

That the said Sri Bhaben Ch. Sarma while working as GDS BPM, Hahara BO during the aforesaid period accepted money of Rs.917625.60. Out of the aforesaid total defrauded amount, Sri Bhaben Ch. Sarma collected from the depositors in respect of the following SB accounts and RD accounts on different dates for deposits the amount in their accounts. Sri Bhaben Ch. Sarma entered the deposits in the relevant SB/RD Pass Books on respective dates with impression of his office date stamp against each entry of deposit and authenticated the entries by his initials. But he did neither enter the deposits in the B.O. SB Journals nor credit the same in the B.O. account.

SB accounts:-

Sl. Hahara Holders' Date of non Amount Balance Balance Total No. B.O. SB name & credit of non as per as per HO amount a/c nos address credit Pass L/Card defrauded Book (in Rs.) 01 1240440 Sri Marami 15.6.2006 3000 4000 500 3500 Gayari, 08.7.2006 500 Holokhal, Hahara Page No.# 4/9

02 1240523 Sri Ranjita 10.11.2006 200 1500 500 1000 Das, 15.12.2006 200 Kamarkuchi, 20.1.2007 200 Hahara 26.2.2007 200 26.3.2007 200

RD accounts:-

Sl.    Hahara      Holders'     Date of non Denominatio    Balance   Balance   Total
No.    B.O. RD     name &       credit      n (in Rs.)     as per    as per    amount
       a/c nos     address                                 Pass      SO        defrauded
       with date                                           Book      L/Card
       of
       opening


01     243287      Mrs. Kabita 08.06.05      100/-         2700.00 2500.00     200.00
       dt.         Keleng,     26.02.07
       22.03.05    Hahara


02     243366      Barnali      23.12.06     100/-         2500.00 2200.00     300.00
       dt.         Lister,      31.01.07
       25.04.05    Hahara       28.03.07


03     242859      Smt. Jewti   25.10.04     50/-          1900.00 1400.00     500.00
       dt.         Rava,        28.03.05
       25.02.04    Hahara       26.12.05
                                26.09.06
                                22.12.06x3
                                23.03.07x3


04     243238      Drona Ram 26.05.05        200/-         5400.00 4000.00     1400.00
       dt.         Deka,     28.11.05
       31.12.04    Hahara    23.12.05
                             22.03.06
                             29.08.06
                             27.10.06
                             24.02.07

In this way Sri Bhaben Ch. Sarma, GDS BPM (under put off duty), Hahara BO also defrauded from other SB/RD accounts standing at the BO tuning to Rs.917625.60 violating the provision of Rule-3 of the Rules for Branch Offices (Seventh Edition-Reprint). Sri Bhaben Ch. Sarma by his above acts displayed lack of integrity and devotion to duty as enjoined in Rule-21 of GDS (Conduct and Employment) Rules, 2001."

An Enquiry Officer was appointed and the Enquiry Officer in his enquiry report stated that as far as Charge No.1 is concerned, the petitioner in fact had admitted the charges and then deposited an amount of Rs.50,000/- with the Page No.# 5/9

Bank. For the remaining charges, the findings were as follows: "9. Findings-

During preliminary hearing vide daily order sheet dated 4.1.2013 the charged official accepted all the charges brought against him in TOTO and he did not want to proceed further. He was also given full opportunity to inspect documents listed in the Annexure-III of the charge-sheet by which the article of charges had been and after being satisfied the CO admitted his guilty.

As per charge against the CO in Article-1 of Annexure-II, the CO collected amount from the depositors in respect of SB A/C no 1240440, 1240523 and RD A/C nos 243287, 243366, 242859, 243238 and entered the deposits in the relevant SB/RD Pass Books on respective dates with impression of his office date stamp against each entry of security and authenticated the entries by his initials. But he did neither enter the deposits in the B.O RD SB journals nor credit the same in the B.O. account.

While examining the documents listed in the Annexure-III, it has been observed that the CO collected amount from the depositors in respect RD A/C no 242859, 243366, 243238 and entered the deposits in the relevant SB/RD Pass Books on respective dates with impression of his office date stamp against each entry of deposit and authenticated the entries by his initials. He entered the deposits in the B.O RD journals and credited the following amounts into B.O. account as furnished below:

Hahara RD Holders' name & address Date of non credit as Date of credit in to RD A/C no shown (amount) journal & BO account

242859 Smti Jewti Rava, Hahara 25.10.04(Rs. 100.00) 28.10.04(Rs. 101.00) 28.3.05 (Rs. 50.00) 28.03.05 (Rs. 50.00) 26.9.06 (Rs.50.00) 26.9.06 (Rs.50.00) 22.12.06Rs (150.00) 23.12.06Rs (153.00)

243366 Barnali Lister, Hahara 23.12.06(Rs. 100.00) 31.01.07(Rs. 100.00) 28.02.07 (Rs.202.00)

28.03.07(Rs.100.00) BO RD journal period for 28.03.07 is not available to prove whether the amount was actually credited or not

243238 Drona Ram Deka, Hahara 26.05.05(Rs. 200.00) 26.05.05(Rs. 200.00) 28.11.05(Rs. 200.00) 28.11.05(Rs. 200.00) 23.12.05(Rs. 200.00) 30.01.06(Rs. 200.00) 22.03.06(Rs. 200.00) 22.03.06(Rs. 200.00) 29.08.06(Rs. 200.00) 29.08.06(Rs. 200.00) 27.10.06(Rs.200.00) 27.10.06(Rs.200.00) 24.02.07(Rs. 200.00) 24.02.07(Rs. 200.00) Page No.# 6/9

Thus, the article of charges brought against Sri Bhaben Ch. Sarma, GDS, BPM, Hahara B.O. in account with Sonapur S.O. (under put-off duty) framed vide SSPOs Guwahati memo no.F4-1/2008-09/Rule-10/B.Sarma dated 03.01.2011 is partially proved.".

Consequently, by an order dated 04.10.2013, the petitioner was dismissed from service, an order which was challenged by the petitioner in appeal, which was also dismissed. Ultimately the petitioner first approached this Court by means of a writ petition being WP(C) No.6290/2013 but was asked by this Court to file an Original Application before the Tribunal. This the petitioner did by filing O.A. No.040/00370/2014 before the Tribunal.

The case was taken up by a Division of the Tribunal, where the Judicial Member of the Tribunal came to the conclusion that there has been a misappropriation of fund but the punishment of dismissal is too harsh and as far as the punishment was concerned, the order of dismissal was set aside by the Judicial Member and the department was directed to consider a lesser punishment. All the same, the other Member of the Tribunal did not agree with this interference with the punishment and concluded that under the facts and circumstances of the case, dismissal is the only punishment which is liable to be given. Therefore, since there was a dispute as to the quantum of punishment between the two Members of the Tribunal, the matter was placed before the third Member who also concluded that under the circumstances, dismissal was the only appropriate punishment. Thus, the petitioner's dismissal from service being upheld by the Tribunal, the petitioner has approached this Court by means of the present writ petition.

The learned counsel for the petitioner would argue that subsequent to the order of petitioner's dismissal from service, an order dated 07.01.2014 was passed by the Senior Superintendent of Post Offices, Guwahati Division, which states as under:

Page No.# 7/9

"Sri Bhaben Ch. Sarma Sarma, GDS BPM, Hahara BO in account with Sonapur SO is treated under Put-off duty w.e.f. 23.05.2007 to 22.10.2013 by the by the Undersigned. Now, therefore, the undersigned in exercise of powers conferred upon under the provision of Rule-12(1) of GDS (Conduct and Engagement) Rules, 2011 hereby put Sri Bhaben Ch. Sarma, off duty with effect from 23.05.2007."

The learned counsel for the petitioner would hence submit that whereas the petitioner was dismissed from service on 04.10.2013, the department has placed him under suspension during this period. This argument is, however, totally misplaced. All that the order dated 07.01.2014 does is to treat the petitioner's service between 2007 to 2013 as a put-off duty period, which we have been informed by the learned counsel for the respondents means that during this period the petitioner was getting 'off duty' allowance. As far as the disciplinary proceedings are concerned, we find absolutely no anomaly in the same. The petitioner was served with the charge-sheet and he had participated in the entire disciplinary proceedings. The report of the Enquiry Officer as well as the subsequent proceedings do not point out any anomaly committed by the department at any point of time. There is a categorical finding that an amount of Rs.917625.60 or close to this amount was misappropriated by the petitioner. This is an extremely serious charge for a person who is working in a Post Office in a rural area and where he deals with small savings of depositors. Here the entire relationship is one of trust. The Post Office department has lost trust on the petitioner and under these circumstances, dismissal was the only punishment once the charges were proved against the petitioner.

At this stage, we would like to refer to the various decisions which have been relied upon by the Administrative Member of the Tribunal.

In Om Kumar & Ors. -Vs- Union of India & Ors. , reported in (2001) 2 SCC 386, the Hon'ble Apex Court had held as under:

Page No.# 8/9

"26. We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the principle of 'proportionality' in Administrative law was considered exhaustively in Union of India v. Ganayutham, [1997] 7 SCC 463 where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained."

In U.P. State Road Transport Corporation -Vs- Suresh Chand Sarma , reported in (2010) 6 SCC 555, it was held by the Hon'ble Apex Court as under:

"22. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., AIR 1996 SC 1249, this Court held as under:-

'In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.'

Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. Vs. T.B. Kadam, AIR 1975 SC 2025; U.P. State Road Transport Corporation Vs. Basudeo Chaudhary & Anr., (1997) 11 SCC 370; Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) & Ors. Vs. Secretary, Sahakari Noukarara Sangha & Ors., (2000) 7 SCC 517; Karnataka State Road Transport Corporation Vs. B.S. Hullikatti, AIR 2001 SC 930; and Regional Manager, R.S.R.T.C. Vs. Ghanshyam Sharma, (2002) 10 SCC 330.

23. In Divisional Controller N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006 SC 2730; and U.P.S.R.T.C. Vs. Vinod Kumar, (2008) 1 SCC 115, this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal.

24. Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance."

Further, in U.P. State Road Transport Corporation -Vs- Basudeo

Chaudhary & Anr., reported in (1997) 11 SCC 370, the Hon'ble Apex Court in Page No.# 9/9

Paragraph 4 had held as under:-

"4. Having regard to the findings that have been recorded by the Labour Court, it is evident that this is a case where the petitioner had tried to fabricate the record regarding recovery of fare to show that the passengers had travelled for a lesser distance from Khalilabad to Gorakhpur although they had actually travelled from Basti to Gorakhpur. The misconduct that was found established was thus serious in nature and the Labour Court has rightly upheld the punishment of removal from service that was imposed on the petitioner. The High Court was in error in interfering with the award of the Labour Court and in substituting the penalty of censure for removal from service on the view that there was only an attempt to cause loss of Rs 65 to the Corporation and the action of the Corporation terminating the services of the petitioner was not justified."

We must place on record here that all the judgments referred above were relied upon by the dissenting Member of the Tribunal.

Therefore, we totally disagree with the finding of the majority of the Members of the Tribunal, as to the quantum of punishment. Under these circumstances, dismissal from service is the only punishment.

We find no merit in the writ petition. The writ petition is dismissed.

                  JUDGE                     CHIEF JUSTICE




Comparing Assistant