Orissa High Court
Union Of India And Others vs Deepak Kumar Sala And Another on 22 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 23216 of 2023
Union of India and others ..... Petitioners
Mr. B.S. Rayaguru, CGC
Vs.
Deepak Kumar Sala and another ..... Opposite Parties
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
22.08.2023
Order No. This matter is taken up by hybrid mode.
02.
2. Heard Mr. B.S. Rayaguru, learned Central Government
Counsel for the petitioners.
3. The Union of India and its functionaries have filed this writ
petition seeking to quash the order dated 16.01.2023 passed in
O.A. No. 260/00851 of 2014 under Annexure-5, by which the
Central Administrative Tribunal, Cuttack Bench, Cuttack has
allowed the original application filed by opposite party no.1.
4. Mr. B.S. Rayaguru, learned Central Government Counsel
for the petitioners contended that since there was misappropriation
of Rs.20,000/- by the opposite party no.1, the Tribunal has
committed error apparent on the face of record by allowing the
original application permitting opposite party no.1, who was
dismissed from service for the irregularity committed by him, to
join in the post. Therefore, interference of this Court is sought for.
5. On perusal of the writ petition and after hearing Mr. B.S.
Rayaguru, learned Central Government Counsel appearing for the
petitioners, this Court finds that being aggrieved by the charge
sheet dated 24.08.2005, punishment of removal order passed by
the disciplinary authority vide order dated 30.06.2006 and the
order of the appellate authority dated 01/05.01.2009 as well as the
order passed by the revisional authority on 15.07.2010 upholding
the punishment of removal passed by the disciplinary authority,
opposite party no.1 filed O.A. No. 260/00851 of 2014 before the
Tribunal.
6. As it appears, opposite party no.1 was appointed as a GDS
Sub-Post Master, Bhauriabad Sub-Post Office on 08.10.2001. Due
to less workload, the office was downgraded to Branch Post
Office on 28.02.2004 and he was appointed as GDS Branch Post
Master without imparting of any training. While he was so
continuing, a proceeding was initiated against him framing article
of charges, i.e. Articles-1 and 2 mentioned in the charge sheet.
The allegation made in Article-1 that one Fakir Charan Behera
visisted Bhauriabad Branch Post Office on 17.07.2004 to open TD
account of Rs.20,000/-. Since the account opening forms were not
properly and correctly filled up, on the request of Mr. Behera, to
keep the cash till his return after filling of the forms, he kept the
amount giving him one manuscript receipt, but after some time
Mr. Behera returned and expressed his reluctance to open the
account and desired to take back his money. The opposite party
no.1 noted the said fact in error book and refunded the amount to
Sri Behera obtaining his signature in the error book. So far as
Article-II is concerned, it is submitted by opposite party no.1 that
on 08.04.2002, on his request, one Chaturbhuja Nayak agreed to
invest an amount of Rs.25,000/- in TD account and gave him the
money and the opposite party no.1 handed him a hand written
receipt. But Chaturbhuja Nayak, after business hour, expressed his
unwillingness to open the account. Opposite party no.1 noted the
incident in office error book and refunded the amount to Sri
Nayak obtaining his signature in the error book to avoid any future
litigation. The said error book was seen by Mail Overseer on
22.06.2004 and the Superintendent of Post Offices, Balasore
Division on 31.08.2004 but they did not raise any objection
regarding the entries. However, he was placed under "put off
duty" on 28.12.2004 vide Superintendent of Post Offices, Balasore
Division memo dated 23.12.2004. He was proceeded against
under Rule-10 of the GDS (C&E) Rules, 2001. The inquiry was
conducted by the IO, Ex-Senior Superintendent of Post Offices,
Puri Division and report was submitted vide letter dated
05.03.2006 with the findings that "the charge under Article-I as
well as under Article-II against the S.P.S., opposite party no.1,
B.P.M., Bhaunriabad B.O. could not be sustained by the
prosecution and are not proved". However, the Superintendent of
Post Offices, Balasore Division did not agree with the findings of
the inquiry officer and forwarded the inquiry report with his
disagreement to the opposite party no.1 for submission of
representation within 15 days. Opposite party no.1 pleading his
innocence, submitted his representation dated 03.06.2006 to the
disciplinary authority, but the said authority did not evaluate the
submission of the opposite party no.1 properly and awarded
penalty of removal. As a consequence thereof, though opposite
party no.1 preferred appeal as well as revision, but the order of
removal was confirmed by both the authorities. Therefore, the
petitioner approached the Tribunal by filing the above referred
original application. After due adjudication, the Tribunal took into
consideration the judgment of the apex Court in the case of Union
of India v. P. Gunasekhran, (2015) 2 SCC 610, by which the
apex Court held that in disciplinary proceedings, the High Court is
not and cannot act as a second court of first appeal. The High
Court, in exercise of its powers under Articles 226 and 227 of the
Constitution of India, shall not venture into re-appreciation of the
evidence and the High Court only see whether it satisfies the
requirement as prescribed by the apex Court from (a) to (i) in the
said judgment. Relying upon the judgment of the apex Court, the
Tribunal found that none of the conditions stipulated in the
aforesaid judgment has been satisfied by the petitioners.
Therefore, the Tribunal came to definite conclusion in paragraphs-
10 and 11 of the impugned order to the following effect:-
"10. It is true that strict rules of evidences are
not applicable to departmental inquiry
proceedings. However, the only requirement of
law is that the allegation against the delinquent
must be established by such evidence acting upon
which a reasonable person acting reasonably and
with objectivity may arrive at a finding upholding
the gravity of the charge against the delinquent
employee. In the present case, it is seen from the
inquiry report that prosecution has failed in
establishing charges of misappropriation by the
applicant. The witnesses in their statement before
the IO have also stated that the applicant has
returned back the money. The inquiry officer in his
report while stating that both the charges against
the applicant not proved has held that applicant
has done irregularity by signing the counterfoils
and stamp impressions which at best is a
procedural lapse on part of the applicant not
amounting to misappropriation.
11. It is well settled that where the enquiry
officer is not the disciplinary authority, on
receiving the report of enquiry, the disciplinary
authority may or may not agree with the finding
recorded by the former, in case of disagreement,
the disciplinary authority has to record the
reasons for disagreement and after affording an
opportunity of hearing to the delinquent may
record his own findings ig the evidences available
on record be sufficient for such exercise or else to
remit the case to the enquiry officer for further
inquiry. Herein the present case, the disciplinary
authority by usage of phrases such as 'article of
charges is fully proved' or 'article of charges is
fully sustained 'even before giving opportunity to
the applicant had made up his mind. The resultant
order of punishment is just a preconceived
outcome where the representation of the applicant
was a mere formality."
7. In the above view of the matter, we do not find any
illegality or irregularity committed by the Tribunal in passing the
order impugned dated 16.01.2023 passed in O.A. No. 260/00851
of 2014 under Annexure-5 so as to cause interference of this
Court.
8. Accordingly, the writ petition merits no consideration and
the same is hereby dismissed.
Ashok (DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 22-Aug-2023 17:27:52
