Patna High Court

Bijendra Kumar vs The Union Of India And Ors on 16 January, 2023

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.4372 of 2018
     ======================================================

Bijendra Kumar Son of Late Yoganand Mishra, Resident of Village P.O.- Laxmipur, Police Station- Khajauli, District- Madhubani.

... ... Petitioner/s Versus

1. The Union Of India and Ors

2. The Chief Post Master General, Bihar, Patna.

3. The Director of Postal Services H.Q., O/C Chief Post Master General, Bihar, Patna.

4. The Post Master General, Northern Region, Muzaffarpur.

5. The Director, Postal Services N, O/o the Post Master General, Northern Region, Muzaffarpur.

6. The Superintendent of Post Offices, Madhubani Division, Madhubani.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Alok Kumar Choudhary, Advocate Mr. Shailendra Kumar Jha, Advocate For the U.O.I. : Dr. K.N. Singh Additional S.G.

                             :     Mrs. Kanak Verma, C.G.C.
     For the Respondent/s    :     Mr. S.D Sanjay Addl. Soc. Gen.

====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 16-01-2023

Pursuant to the earlier order Mr. Mahesh Pd. Deo,

SPOs, Madhubani and Mr. Ranjay Kumar Singh, Assistant

Director, (Establishment and Legal) O/o The Chief Postmaster

General, Bihar Circle, Patna are present in the Court.

2. In the instant petition the petitioner has assailed

the order of the Central Administrative Tribunal, Patna Bench

Patna (in short CAT) dated 20.07.2017 passed in O.A. No. Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

050/00840/2014 (Annexure 15).

3. Brief facts of the case are that the petitioner, while

working as Gramin Dak Sevak (for short 'GDS') was charge-

sheeted in a departmental enquiry on 02.02.2007. Enquiring

Authority has opined that charges levelled against the

petitioner were not proved. On receipt of Enquiring Officer's

report, the Disciplinary Authority disagreed with the

Enquiring Officer's report and proceeded to issue a show-

cause notice asking the petitioner's explanation. The

petitioner submitted his explanation but it was not to the

satisfaction of the Disciplinary Authority. Thereafter, the

Disciplinary Authority proceeded to impose the penalty of

removal from service on 14.05.2009 on the petitioner. It was

the subject matter of appeal and it was rejected on 19.08.2010.

He has invoked remedy under Section 19 of the Central

Administrative Tribunal Act, 1985 by filing OA No. 185 of

2010. It was disposed of while directing the petitioner to file a

revision. The petitioner had filed a revision and it was rejected

on 31.01.2012. The petitioner is stated to have filed one more

O.A. No. 262 of 2012 dated 30.05.2014 and it was decided on

30.05.2014 in which the matter was remanded to the

Reviewing Authority. Accordingly, the Reviewing Authority Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

proceeded to pass order on 15.09.2014 in rejecting the

petitioner's claim. Still aggrieved by the decision of the

respondent, petitioner invoked remedy before the CAT in

filing OA No. 050/00840/2014 and it was decided on

20.07.2017 against the petitioner. Hence the present petition.

4. Learned counsel for the petitioner submitted that the

Disciplinary Authority while disagreeing with the Enquiring

Officer's report has not considered petitioner's explanation. It

is further submitted that Disciplinary Authority has not been

empowered to disagree with the Enquiring Officer's report in

the Rules Called Department of Posts, (Conduct and

Employees) Rules 2001 (for short Rules, 2001) with reference

to Rule 10 of Rules 2001 in the result all the consequential

orders passed by the Disciplinary Authority, Appellate

Authority, Revisional Authority and order of the Tribunal are

liable to be set aside on the legal issue that Disciplinary

Authority is not empowered to disagree with the Enquiring

Officer's report and proceed further in the matter.

5. On the other hand, learned counsel for the respondent

Dr. K.N. Singh, Additional S.G. assisted by Mrs. Kanak

Verma, C.G.C. , submitted that there is no infirmity in the

enquiry proceedings and further the petitioner has admitted on Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

two occasions in respect of alleged charge. It is further

submitted that Disciplinary Authority was not satisfied with

the Enquiring Officer's report and disagreed with the

Enquiring Officer's report and proceeded to issue a show-

cause notice and obtained explanation from the petitioner and

proceeded to impose the penalty of removal from service

while invoking Rule 15 of the Central Civil Service (CCA)

Rules, 1965. Hence, no inference is called for in so far as

order of the CAT dated 28.07.2017 passed in OA No.

050/00840/2014.

6. Heard learned counsel for the respective parties.

7. In the light of various Apex Court decisions we are

not in a position to re-appreciate evidence in the disciplinary

proceedings & only procedural lapses or any violation of rules

Tribunals and Courts can interfere insofar as disciplinary

proceedings matters are concerned. In the present case learned

counsel for the petitioner submitted that Disciplinary

Authority has exceeded his jurisdiction on receipt of

Enquiring Officer's report while importing Central Civil

Service (CCA) Rules 1965, in particularly, Rule 15 of the

CCA Rules, 1965. The aforesaid issue is required to be taken

note of. It is undisputed that the petitioner is a Gramin Dak Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

Sevak and he is governed by Rules 2001. Rule 2 of Rules

2001 reads as under:

2. Application

These rules shall apply to Sevaks of the Department of Posts, Ministry of Communications, Government of India."

8. Perusal of the Rules 2001 it is evident that Central

Government Servants (CCA) Rules, s1965 (for short Rules,

1965) have not been adopted to GDS. In other words, "Rules

1965" is applicable to Central Government servants. GDS post

is not a Central Government servant post so as to import

provisions of (CCA) Rules, 1965 to the case in hand (GDS).

Therefore, the Disciplinary Authority has committed error in

invoking Rule 15 of Rules 1965 instead of restricting to Rules

2001. In Rules 2001, there is no provision for the Disciplinary

Authority to disagree with the Enquiring Officer's report and

proceed in the matter. This is legal lacuna which cannot be

rectified.

9. The petitioner has made out a prima-facie case so as

to interfere with the orders of the Disciplinary, Appellate,

Revisional Authorities and CAT order dated 14.05.2009,

19.08.2010, 22.09.2010 and 30.05.2014, respectively. They are Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

hereby set aside, the matter is remanded to the Disciplinary

Authority to pass a fresh order from the defective stage, namely,

on receipt of the Enquiring Officer's report in terms of Rule 10

of Rules 2001. The above exercise shall be completed within a

period of three months from the date of receipt of this order.

10. The concerned authority is hereby directed to regulate

the intervening period from 14.05.2009 to till passing of afresh

order in the disciplinary proceedings as suspension or duty and

extend all monetary and service benefits, in the light of

Managing Director, ECIL V. B Karunakar, reported in (1993)

4 SCC 727, read with Chairman-cum-Managing Director,

Coal India Limited & Ors. V. Ananta Saha and Others,

reported in (2011) 5 SCC 142, paragraphs 47 to 50, reads as

under:-

47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC633], Punjab Dairy Development Corpn.

Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. vs. Durgapur Projects Ltd. [(1999) 7 SCC 645].

48. In ECIL v. B. Karunakar [(1993) 4 SCC727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126: AIR2009 SC 161], this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is Patna High Court CWJC No.4372 of 2018 dt.16-01-2023

reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh [(2006)7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC3018], Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC(L&S) 372].

50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."