Madras High Court
R.Magaravel vs Union Of India on 1 February, 2024
Bench: D.Krishnakumar, R.Vijayakumar
W.P.(MD)No.6042 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 08.01.2024
PRONOUNCED ON : 01.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD).No.6042 of 2009
R.Magaravel ...Petitioner
Vs
1.Union of India
Represented by the Director
Postal Services
Southern Region (TN)
Madurai 625 002
2.The Senior Superintendent of Post Offices
Tirunelveli Division
Tirunelveli 627 002
3.The Registrar
Central Administrative Tribunal
Chennai ...Respondents
Prayer : Writ Petition has been filed under Article 226 of Constitution of India
to issue a writ of Certiorarified Mandamus, to call for the records relating to the
order passed by the third respondent dated 02.11.2005 in O.A.No.50 of 2005
and quash the same and further direct the official respondents 1 and 2 to
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W.P.(MD)No.6042 of 2009
reinstate the petitioner into service with all back wages and other service and
monetary benefits.
For Petitioner : Mr.T.Sakthikumaran
For Mr.A.Thirumurthy
For R1 & R2 : Mr.S.Jeyasingh
Senior Panel Counsel Government of India
ORDER
(Made by R.VIJAYAKUMAR,J.)
The present writ petition has been filed by a Gramin Daksevak Branch
Post Master challenging the order passed by the Central Administrative
Tribunal on 02.11.2005 in O.A.No.50 of 2005 wherein the Tribunal had
confirmed the order of dismissal passed by the first respondent herein.
2.The facts leading to the filing of the present writ petition are as
follows:
(i)The petitioner herein while he was working as a Gramin Daksevak
Branch Post Master at Thiruvengatanathapuram Branch was placed under off
duty on 16.10.1987 and a charge memo was issued to him on 27.01.1998
inflicting three charges relating to misappropriation. A criminal complaint was
lodged as against the writ petitioner before Eruvadi Police Station and a
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criminal case came to be registered in C.C.No.54 of 1989 before the Judicial
Magistrate Court, Nanguneri. The learned Judicial Magistrate, after trial,
convicted the writ petitioner for rigorous imprisonment for two years with a fine
of Rs.3,000/- on 04.05.1990. Appeal was filed by the writ petitioner before the
First Additional Sessions and District Court, Tirunelveli in C.A.No.182 of
1990. Based upon the conviction, the petitioner was dismissed from service by
the second respondent on 27.08.1990. The Appellate Court in C.A.No.182 of
1990 had confirmed the penalty of Rs.3,000/-, but modified the punishment of
two year as one year by its order dated 06.02.1991.
(ii)The petitioner filed Crl.R.C.No.84 of 1991 before this Court. After
hearing both the sides, the matter was remitted back to the Appellate Authority
for rehearing C.A.No.182 of 1990 by its order dated 22.11.1993. The First
Additional Sessions and District Judge, Tiruneveli after remand, had set aside
the penalty and also sentence and acquitted the writ petitioner vide his judgment
dated 11.11.1996.
(iii)Taking advantage of the order of acquittal from the criminal
proceedings, the petitioner made a request for reinstatement on 17.04.1997. The
order of dismissal based on conviction was set aside on 27.08.1990. The
disciplinary proceedings that were closed due to the conviction in the criminal
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Court were revived by the second respondent.
(iv)The petitioner had filed O.A.No.821 of 1998 challenging the
appointment of Mr.A.Ramasamy as Enquiry Officer. This application was
closed by the Tribunal on the ground that the enquiry has already been
completed. Challenging the same, the petitioner had filed W.P.No.8245 of 1999
before this Court. This Court had directed the authorities to complete the
enquiry within a period of four months from the date of receipt of copy of the
order.
(v)The petitioner had participated in the enquiry proceedings and
submitted his explanation on 04.09.2001. The Disciplinary Authority imposed
the punishment of dismissal by its order dated 05.02.2002. The appeal filed by
the writ petitioner before the first respondent was rejected on 18.05.2004.
Challenging the said order, the petitioner had filed O.A.No.50 of 2005 before
the Central Administrative Tribunal, Madras. The Administrative Tribunal
under the impugned order dated 02.11.2005 had confirmed the order of
dismissal on the ground that the charges levelled against the writ petitioner are
grave in nature. Challenging the said order, the present writ petition has been
filed.
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3.Contentions of the learned counsel appearing for the writ petitioner
are as follows:
(i)The Tribunal had not properly appreciated the fact that the witnesses
were not examined in the presence of the writ petitioner and no opportunity was
given to cross examine them.
(ii)A copy of the preliminary enquiry report was not furnished to the writ
petitioner which is the sole basis for passing an order of dismissal.
(iii)No reasonable opportunity was given by the Enquiry Officer as well
as by the Disciplinary Authorities. The Disciplinary Authority without
independently assessing the merits of the case, had dismissed the petitioner.
(iv)On being acquitted by the Criminal Court, the Authorities ought to
have reinstated the petitioner, instead they have chosen to revive the
Departmental Enquiry which was closed already.
(v)The witnesses namely N.Ayyadurai Nadar and V.Chellammal were
examined behind the back of the writ petitioner which is clearly in violation of
the principles of natural justice and the judgment of the Hon'ble Supreme Court.
(vi)Even assuming that there are minor lapses on the part of the writ
petitioner, punishment of dismissal is excessive and the third respondent ought
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to have set aside the order of dismissal. Hence, he prayed for allowing the writ
petition.
4.Contentions of the learned counsel appearing for the respondents 1
and 2 are as follows:
(i)The petitioner has been charged with grave misconduct of
misappropriation by failing to credit in the Government account of various
amounts that were received by him.
(ii)The assisting Government servant for the petitioner had withdrawn his
service in his letter dated 26.06.1990 as the petitioner being convicted by the
Court. The enquiry had been abruptly terminated due to the fact that the
petitioner was convicted by the Criminal Court.
(iii)After the petitioner was acquitted by the Criminal Court, the
petitioner was not willing to participate in the enquiry and he had preferred an
appeal against the revival of disciplinary proceedings. The petitioner had not
attended the enquiry and he was filing various application in order to prolong
the enquiry proceedings. The petitioner had even filed an appeal alleging bias as
against the Enquiry Officer, but ultimately the said application was dismissed.
The enquiry was held on 11.09.1998, 23.09.1998, 16.10.1998, 04.12.1998,
13.01.1999, 28.01.1999 and 25.06.1999.
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(iv)The petitioner had challenged the revival of the disciplinary
proceedings before the Central Administrative Tribunal. However, the said
application was dismissed. The petitioner had filed W.P.No.8245 of 1999 before
this Court challenging the said order. This Court had confirmed the revival of
the enquiry, but directed the authorities to complete the enquiry within a period
of four months. Only thereafter, the petitioner had attended the enquiry on
06.08.2001 and 14.08.2001. The enquiry report was submitted on 12.10.2001
and the petitioner had submitted his explanation on 13.11.2001. After
considering his explanation, the petitioner was dismissed on 15.11.2001. The
appeal filed by the petitioner before the Director of Postal Services, Madurai
was rejected on 18.05.2004.
(v)Though ample opportunities were granted to the writ petitioner, the
petitioner was habitually absenting himself from attending the enquiry in order
to drag on the enquiry proceedings. The petitioner failed to utilise the
opportunities granted to him at all stages. Merely because the petitioner was
acquitted in the criminal proceedings, it will not be a legal impediment for
proceeding with the Departmental proceedings, since it relates to misconduct or
breach of duty of the delinquent.
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(vi)The petitioner had alleged that two of the witnesses have been
examined behind his back. Though the petitioner was granted an opportunity to
cross examine them, the petitioner had not utilized those opportunities. The
petitioner had been dismissed from service for grave charges of
misappropriation after giving due opportunities to the writ petitioner. Therefore,
the order of the Central Administrative Tribunal may be sustained.
5.We have considered the submissions made on either side and perused
the material records.
Discussion:
6.The petitioner while he was working as Gramin Daksevak Branch Post
Master, was issued with a charge memo on 27.01.1998. The following are the
summary of the charges:
(i)Charge No.1:
The petitioner had failed to credit a sum of Rs.500/- on 11.05.1987
and Rs.1000/- on 14.05.1987 in the Government account after collecting the
same.
(ii)Charge No.2:
The petitioner had failed to credit into the Government account for
a sum of Rs.600/- on 20.06.1987 and Rs.550/- on 26.06.1987 after collecting
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the same from the general public.
(iii)Charge No.3:
The petitioner had failed to credit into the Government account the
deposit of Rs.1290/- on 09.04.1987 and Rs.505/- on 25.04.1987 after collecting
the same from the general public.
7.The petitioner had challenged the order of dismissal primarily on the
following grounds:
(i)The petitioner was not granted any opportunity to cross examine the
witnesses.
(ii)He was not furnished with a copy of the preliminary enquiry report
which is based to the dismissal order.
(iii)After being acquitted from the criminal case, the Disciplinary
Authority ought to have revived the disciplinary proceedings which was closed
earlier.
(iv)Two witnesses namely N.Ayyadurai Nadar and V.Chellammal were
examined behind the back of the petitioner which is in violation of the
principles of natural justice.
(v)Even assuming without conceding that there are some minor lapses,
the punishment of dismissal is disproportionate to the alleged misconduct.
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8.The petitioner was suspended from service and disciplinary proceedings
were initiated on the allegation of misappropriation of funds. In view of his
conviction by the criminal Court, the disciplinary proceedings were abruptly
stopped and an order of dismissal came to be passed. After the revision filed by
the petitioner was remitted by the High Court, the Sessions Judge had acquitted
the writ petitioner. Thereafter, the respondent authorities have revived the
disciplinary proceedings.
9.In view of the conviction order, the authorities have no other option
than to dismiss the writ petitioner. However, on being acquitted, the authorities
have revived the disciplinary proceedings. Mere acquittal in the criminal
proceedings, will not be an impediment for the respondent authorities to
revive/initiate disciplinary proceedings, especially when the misconduct relates
to discharge of official duties.
10.The petitioner in paragraph No.9 of his affidavit had categorically
admitted that he could not attend the enquiry and he had issued a telegram to
postpone the same. The respondent authorities in their counter have pointed out
that at least on 8 occasions, the petitioner was granted opportunity to appear for
the enquiry. The petitioner had voluntarily chosen not to appear before the
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enquiry citing one reason or the other. Therefore, the contention of the learned
counsel appearing for the writ petitioner that the petitioner was not provided
with ample opportunity to defend himself is not factually correct.
11. During the hearing dates on which the witnesses were examined by
the Presenting Officer, the petitioner had chosen to remain absent and therefore,
he had not availed the opportunity to cross examine the witnesses namely
N.Ayyadurai Nadar and V.Chellammal. Therefore, the respondent authorities
cannot be found fault with for not permitting the petitioner to cross examine
those witnesses.
12.The petitioner has been charged with misconduct of misappropriation
by not crediting the amounts collected from the general public into the
Government account on 4 occasions. Therefore, the charges are serious in
nature. The Enquiry Officer after giving ample opportunity to the petitioner had
found that the charges are proved. In view of the serious charges, the
punishment of dismissal inflicted upon the petitioner cannot be considered to be
disproportionate to the proved charges.
13.The Appellate Authority has independently considered the grounds
raised by the writ petitioner and has confirmed the order of dismissal. The
Tribunal has also independently assessed each one of the charges and have
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arrived at a finding that the charges have been clearly proved by documentary
evidence and pass books of the respective customers. It could be clearly seen
that the petitioner had adopted dilatory tactics to protract the enquiry
proceedings.
14.In view of the above said facts, we do not find any merit in the writ
petition. The writ petition stands dismissed. No costs.
(D.K.K.J.,) (R.V.J.,)
01.02.2024
Index :yes
Internet :yes
NCC : yes/no
msa
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To
1.Union of India
Represented by the Director
Postal Services
Southern Region (TN)
Madurai 625 002
2.The Senior Superintendent of Post Offices
Tirunelveli Division
Tirunelveli 627 002
3.The Registrar
Central Administrative Tribunal
Chennai
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D.KRISHNAKUMAR, J.
AND
R.VIJAYAKUMAR,J.
msa
Pre-delivery Order made in
01.02.2024
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