Full Judgment Text
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CASE NO.:
Appeal (civil) 6573 of 2004
PETITIONER:
A. Sudhakar
RESPONDENT:
Post Master General, Hyderabad & Anr.
DATE OF JUDGMENT: 24/03/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J:
The Appellant was working as a Sub-Post Master Marrimandal. A
departmental proceeding was initiated against him by the Superintendent of
Post Offices, Hanamkonda wherefor a chargesheet was issued on 13.8.1992.
An Enquiry Officer was appointed. He was found guilty of commission of
the first charge and a part of third charge but he was exonerated in respect of
the second charge.
Although the chargesheet was issued by the Superintendent of Post
Offices although he was otherwise the disciplinary authority in respect of the
Appellant, but as he was appointed to the Lower Selection Grade by the
Director of Postal Services in the year 1983 prior to divisionalisation of
Lower Selection Grade Cadre which took place from July, 1989, upon
completion of the enquiry, the records were forwarded to the
Director of Postal Services being the appointing authority. As the Director
of Postal Services was both appointing and disciplinary authority in respect
of the Appellant herein, he took into consideration the aforementioned report
of the Enquiry Officer and by an order dated 7.3.1994 imposed a punishment
of compulsory retirement of the Appellant from services. He preferred an
appeal thereagainst before the Post Master General which was dismissed by
an order dated 8.4.1994. An Original Application thereafter was filed by the
Appellant before the Central Administrative Tribunal, which was allowed.
The contentions of the Appellant before the said Tribunal were:
(i) The Superintendent of Post Offices being the designated
disciplinary authority, the imposition of a major penalty by the
Director of Postal Services was illegal.
(ii) The enquiry report was vitiated in law as the Enquiry Officer acted
in a post-haste manner in proceeding to hold the enquiry without
giving proper opportunities to the Appellant to appoint an officer
to assist him in the departmental enquiry as a result whereof he
was gravely prejudiced.
(iii) An additional document, a copy whereof had not been annexed
with the chargesheet was taken into consideration while examining
a witness.
(iv) So far as third charge is concerned, only purported negligence on
his part, having been proved, the quantum of punishment was
disproportionate to the gravity of misconduct.
The Central Administrative Tribunal by an order dated 13.8.1997
allowed the said original application holding:
(i) The disciplinary authority who passed the order of compulsory
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retirement had no jurisdiction and the order passed was improper
without following the procedure.
(ii) Certain documents were supplied to the Appellant during the time
when one of the witnesses was being examined on behalf of the
department, which was impermissible in law.
(iii) The documents on which reliance was placed contained certain
anomalies as regard the names of the signatory.
The Respondent herein aggrieved by and dissatisfied therewith filed a
writ petition which by reason of the impugned judgment dated 31.3.2003 has
been allowed.
Dr. Kailashnath Pillai, learned counsel appearing on behalf of the
Appellant would submit that the High Court committed a serious error in
setting aside the well-reasoned judgment of the Tribunal. It was further
submitted that as the Appellant was entitled to have the assistance of the
government servant, although 10 days’ time had been initially granted
therefor, when the Appellant prayed for 15 days’ further time, the same was
refused as a result whereof the Appellant was gravely prejudiced. A copy of
the additional document which was not supplied to him was taken in
evidence when the main witness was being examined during the course of
enquiry which was contrary to Rules 14(11) and 14(15) of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965 (’the Rules’). As
the identity of the lady on whose complaint the proceeding was initiated had
not been conclusively determined in view the fact that the Sub-Divisional
Inspector (SDI) (Posts) during a preliminary enquiry recorded a statement of
a lady whose name was written as Rajavva at the top of the sheet but while
noting the name of the person who had put her right hand thumb impression
thereon, it was attested as that of ’Lachavva’, the entire disciplinary
proceedings must be held to have been vitiated.
Mr. T.S. Doabia, learned senior counsel appearing on behalf of the
Respondent, on the other hand, would submit that as the Director of Postal
Services, was the appointing authority, no illegality has been committed by
his acting as a disciplinary authority. The learned counsel further submitted
that it has not been denied or disputed by the Appellant that the Appellant
had taken a sum of Rs. 5000/- from a lady which had been handed over for
obtaining a Kisan Vikas Patra on 18.5.1992 but the same was deposited only
when the complaint was made to the Superintendent of Post Offices on
15.7.1992 which goes to show that the Appellant defalcated the amount
temporarily.
It was contended that the Appellant had been given an opportunity to
defend himself and during the course of enquiry, although a xerox copy of
the document in question had been supplied to him, he had merely asked for
inspection of the original document and in view of the fact that the same was
not traceable, he was informed thereabout. He made no complaint that he
should have been supplied a copy of the said document together with the
show-cause notice
The learned counsel would contend that having regard to the facts and
circumstances of this case, the quantum of punishment imposed upon the
Appellant cannot be said to be excessive.
The three Articles of charges levelled against the Appellant are as
under:
"Article \026 1: Sri A. Sudhakar while holding charge
of office of the Marrimustial So as SPM failed to
issue K.V.Ps for an amount of Rs. 5000/- after
accepting the amount of Rs. 5000/- for issue of 5
year KVPs on 18.5.92 from one Smt. Laxavva,
resident of Marrimustial across Marrimustial P.O.
counter and thus failed to follow the provisions of
Rule 8 read with Rule 7 of KVP rules 1988 and
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also failed to maintain integrity and devotion to
duty as prescribed in Rule 3(1)(i) & (ii) of CCS
(Conduct) Rules, 1964.
Article \026 II: Sri A. Sudhakar while functioning as
SPM, Cherial SO during the period 1987 to 1991
obtained a huge loan of Rs. 20,000/- from Sri B.
Veereshalingam, teacher and entered into
protracted correspondence about the loan and
interest payment, etc., and thereby failed to
manage his private affairs reasonably to a standard
level and thereby contravened the provisions of
Rule 17 of CCS (Conduct) Rules, 1964.
Article \026 III: Sri A. Sudhakar while functioning as
SPM, Marrimustial SO on 15.7.1992 failed to take
into account an amount of Rs. 5000/- credited by
him on 15.7.92 vide ACG-67 receipt No. 77 dated
15.7.92 and thereby failed to maintain absolute
integrity and devotion to duty as prescribed in Rule
3(1)(i) and (ii) of CCS (Conduct) Rules, 1964."
As noticed hereinbefore, whereas the first charge was held to have
been proved beyond doubt and third charge was only partially proved; the
second charge was held to be have not been proved.
The Tribunal, in arriving at a finding that the Superintendent of Post
Offices being the designated authority the order of punishment could not be
imposed upon the Appellant by the Director of Postal Services, relied upon a
decision of the Central Administrative Tribunal in K.P. Varghese v. DPS,
Calicut and others, [(1992) 19 ATC, CAT Ernakulam]. However, in that
case, by reason of the action on the part of the said higher authority as a
disciplinary authority, the delinquent officer was deprived of the forum of
appeal. Such is not the position here. Clause (2) of Article 311 of the
Constitution of India puts an embargo upon passing of an order of dismissal,
removal or reduction of rank in services by an authority below the rank of
the appointing authority. There does not appear to be an embargo in terms
of the said provision that a higher authority would not act as a disciplinary
authority. In the instant case, the Appellant has not been deprived of an
opportunity of preferring an appeal against the order of the Director of
Postal Services. He admittedly preferred an appeal before the Post Master
General which was duly considered. In a matter of this nature, it would be
obligatory on the part of the delinquent officer to show prejudice. [See Surjit
Ghosh v. Chairman & Managing Director, United Commercial Bank and
others, (1995) 2 SCC 474 : AIR 1995 SC 1053 and Balbir Chand v. Food
Corporation of India Ltd. and Others (1997) 3 SCC 371]
The Department of Posts, when a query was raised as to the effect of
the changes in the rules in the year 1989 by a letter dated 5.07.1990, clarified
the matter stating:
"I am directed to say that consequent upon
divisionalisation of LSG cadres on the Postal and
RMS side, heads of division have been vested with
the powers to impose all penalties as given in Rule
11 of CCS (CCA) Rules, 1965. Prior to that, the
power to impose major penalties were vested only
with the DPS whereas heads of the divisions were
competent to impose minor penalties as indicated
at Sl. No. (i) to (iv) of Rule 11 ibid.
However, references have been received
from some of the officers seeking clarifications
about the competency of the officers for
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imposition of major penalties against the LSG
officials who were appointed prior to
divisionalisation of LSG cadre and after that. In
this regard, it is clarified that the LSG staff
appointed by the DPS prior to divisionalisation of
the cadre can be proceeded against under Rule 14
only by the DPS and LSG staff appointed by the
divisional Superintendent after the
divisionalisation of the cadre can be proceeded
against by the Heads of the Divisions. In other
words, the revised schedule of appointing/
disciplinary/ appellate authorities as circulated
vide this office letter No. 12/8/87-Vig. III dated
September, 1989 still holds good but those
officials who were appointed by an authority
higher than that indicated in the above referred
schedule, their cases for imposition of major
penalty will have to be referred to the authorities
who actually appointed them."
Before us, the Respondents have categorically stated in the counter
affidavit that prior to 1989 the Director of Postal Services was the
appointing authority. As the Appellant was appointed in the year 1983, he
was appointed by the Director of Postal Services. It has not been denied or
disputed that he was appointed by the Director of Postal Services, but a
contention has merely been raised to the effect that as he was promoted
when the Lower Selection Cadre was divisionalised, the Superintendent of
Post Offices must be held to be the designated authority. The Respondents
have placed before us a notification dated 7.7.1989 to show that the Director
of Postal Services was the appointing/ disciplinary authority in respect of the
officials who were promoted to the Lower Selection Grade Cadre prior to
divisionalisation of Lower Selection Grade Cadre. We, therefore, have no
hesitation in holding that the Director of Postal Services was the appointing
authority. In any event, as the Appellant has in no manner been prejudiced
thereby, the impugned judgment cannot be faulted on that count.
Dr. Pillai has, however, relied upon Black’s Law Dictionary, page 447
to show what the terms ’Designate’ and ’Designatio unius est exclusion
alterius, et expressum facit cessare tacitum’ would mean which are given in
the following terms:
"Designate. To indicate, select, appoint, nominate,
or set apart for a purpose or duty, as to designate
an officer for a command. To mark out and make
known; to point out; to name; indicate. New
Haven Federation of Teachers v. New Haven Bd.
Of Ed., 27 Conn. Sup. 298, 237 A.2d 373, 380.
Designatio unius est exclusion alterius, et
expressum facit cessare tacitum. The specifying of
one is the exclusion of another, and that which is
expressed makes that which is understood to cease.
(The appointment or designation of one is the
exclusion of the other; and that which is expressed
prevails over that which is implied.)"
He furthermore relied upon the decisions of this Court in A. Sanjeevi
Naidu, Etc. v. State of Madras and Another [(1970) 1 SCC 443] and
Hemalatha Gargya v. Commissioner of Income Tax, A.P. and Another
[(2003) 9 SCC 510].
We, in this case, are not concerned, as regard the concept of the
designated authority. If an authority has been designated by a statute
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enjoining him to perform statutory duties indisputably it is he who has to do
the same but in a case of this nature where clause (2) of Article 311 of the
Constitution of India envisages that a delinquent officer should not be
imposed with major penalties save and except an order passed by the
appointing authority, the latter becomes the designated authority.
It is now trite that an authority higher than the appointing authority
would also be the designated authority for the purpose of Article 311 of the
Constitution of India. Even the appellate authority can impose a punishment
subject, of course, to the condition that by reason thereof the delinquent
officer should not be deprived of a right of appeal in view of the fact that the
right of appeal is a statutory right. However, if such right of appeal is not
embellished, an authority higher than the appointing authority may also act
as a disciplinary authority.
Sanjeevi Naidu (supra) was a case under Section 68(C) of Motor
Vehicles Act, 1939. In that case the State Government was a designated
authority and in that view of the matter it was held that the statutory
functions could not be delegated to any other authority.
In Hemalatha Gargya (supra), this Court was concerned with a case
under Voluntary Disclosure of Income Scheme, 1997. A designated
authority was created under a statute. The question which has been raised
herein did not arise for consideration therein.
Before the High Court, it appears, the records of the disciplinary
authorities had been produced upon perusing the same. The High Court
perused the same. It came to the conclusion:
"The other ground urged before us and the
Tribunal is that the lady who had given the
complaint had given a different name than the
name she gave when she was examined before the
Enquiry Officer. It is admitted that the lady, who
gave the complaint was an illiterate woman, had
not the complaint written by someone-else and it is
not known under what circumstances a different
name was shown at her thumb impression in the
complaint than the name she gave when she was
being examined before the Enquiry Officer. This
was known to the delinquent official. Had he got
any doubts about the identity of the witness, he
could have cross-examined her. In any case, the
lady who had appeared before the Enquiry Officer
categorically stated that on 18.5.1992 she had
given a sum of Rs. 5,000/- to respondent No. 1/
delinquent for issuing Kisan Vikas Patras but the
delinquent had failed to give the said certificate or
even return back the money she had given to him
even after two months from the date of receipt of
money from her. In any case, we are not going to
interfere with the finding of the Tribunal on
question of such fact. The allegation that
sufficient time was not given to peruse certain
documents is not borne by record. The documents
were given well in advance and as a matter of fact
the respondent had not expressed any grievance
before the Enquiry Officer that he had not
sufficient time to peruse the documents on which
the department had relied."
It is not disputed that a complaint petition was filed by a lady. SDI
(Posts) visited the village for the purpose of conducting an enquiry. It has
furthermore not been disputed that the Appellant had deposited the amount
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on 15.7.1992, i.e., after the complaint was lodged. The complainant was
examined by the Enquiry Officer. She was also cross-examined by the
Appellant.
From the proceeding sheet in the departmental enquiry dated
11.11.92, it appears that the Appellant was asked to furnish the list of
additional documents and witnesses to be examined by way of defence, if
any. He had prayed for 15 days’ time. He was directed to submit the same
within 10 days. He, however, again prayed for 15 days’ time for nominating
his AGS. It appears that 10 days’ time had already been given to him on 20th
October, 1992 and he had furthermore been granted 10 days’ further time.
From the proceeding sheet dated 20.03.1993, it appears that the officer who
was assisting in the disciplinary enquiry was present. The said proceeding
sheet reads, thus:
"During the last sitting the additional documents of
Sl. 3 and Sl. 4 i.e. original promissory notes and
letters dated 13.02.90, 27.01.92, 30.01.92,
18.02.92 and 19.02.92 were asked to be produced
to the P.O. The SP is expressed his inability to
produce the original vide his letter No. F7-1/92-93
dated 09.02.93 that they are not available. Since
the charge sheet was issued and cited documents
shown in the annexure \026 III of charge sheet, are
Xerox copies the inquiry will be held with the
Xerox copies only Re. G.S. requests with the I.O.
that the (illegible) \026 1 is the day finding inquiry, as
such are dire needed for the impose of words the
fair inquiry and on the other side providing the
reasonable opportunity the G.S. to defend himself
in a proper way in the said enquiry."
It is, therefore, evident that the Appellant merely asked for a copy of
the original document. He had made no grievance that no copy of the said
document has been supplied to him as a result whereof he was prejudiced.
There could not have been any confusion about the identity of the lady as the
same was a matter of record in view of the fact that a lady who had paid him
a sum of Rs. 5000/- for issuance of Kisan Vikas Patra, the name of buyer
whereof was borne out from the records. Only because the SDI (Posts) in
his report had made a mistake in spelling the name of the complainant, the
same by itself would not mean that the identity of the complainant was in
dispute. Even if the same was in dispute it was open to the Appellant to
cross-examine the witnesses in that behalf. It is not the case of the Appellant
that such cross-examination was effected.
In terms of Article 311 (2) of the Constitution of India, the procedural
requirements which were required to be followed were as under:
(i) opportunity to the concerned officer to deny his guilt and establish
his innocence which means he must be told that what the charges
against him are and the allegations on which such charges are
based;
(ii) he must be given a reasonable opportunity to cross-examine the
witnesses produced against him and examine himself or other
witnesses on his behalf; and
(iii) he must be given opportunity to show cause that the proposed
punishment would not be proper punishment to inflict which
means that the tentative determination of the competent authority
to inflict one of the three punishments must be communicated to
him.
It is well-settled that those principles of natural justice are not
embodied principles. The requirements contained in Article 311(2) of the
Constitution of India in view of the decision of this Court in Khem Chand v.
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Union of India [(1958) SCR 1081] are held to be as a part of the principle of
natural justice. The courts in the aforementioned situation are required to
see as to whether non-observance of any of the said principles in a given
case has resulted in denial of justice. If there had been substantial
compliance of the procedure, the court may not interfere. [See State of Uttar
Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775 and Kuldeep Singh v.
Commissioner of Police and Others, (1999) 2 SCC 10]
Contention of Dr. Pillai relating to quantum of punishment cannot be
accepted, having regard to the fact that temporary defalcation of any amount
itself was sufficient for the disciplinary authority to impose the punishment
of compulsory retirement upon the Appellant and in that view of the matter,
the question that the third charge had been partially proved takes a back seat.
In Hombe Gowda Educational Trust and Another v. State of
Karnataka and Others [(2006) 1 SCC 430], this Bench opined:
"The Tribunal’s jurisdiction is akin to one under
Section 11A of the Industrial Disputes Act. While
exercising such discretionary jurisdiction, no doubt
it is open to the Tribunal to substitute one
punishment by another; but it is also trite that the
Tribunal exercises a limited jurisdiction in this
behalf. The jurisdiction to interfere with the
quantum of punishment could be exercised only
when, inter alia, it is found to be grossly
disproportionate.
This Court repeatedly has laid down the law
that such interference at the hands of the Tribunal
should be inter alia on arriving at a finding that no
reasonable person could inflict such punishment
The Tribunal may furthermore exercises its
jurisdiction when relevant facts are not taken into
consideration by the Management which would
have direct bearing on the question of quantum of
punishment.
Assaulting a superior at a workplace
amounts to an act of gross indiscipline. The
Respondent is a teacher. Even under grave
provocation a teacher is not expected to abuse the
head of the institution in a filthy language and
assault him with a chappal. Punishment of
dismissal from services, therefore, cannot be said
to be wholly disproportionate so as shock one’s
conscience.
A person, when dismissed from services, is
put to a great hardship but that would not mean
that a grave misconduct should go unpunished.
Although the doctrine of proportionality may be
applicable in such matters, but a punishment of
dismissal from service for such a misconduct
cannot be said to be unheard of. Maintenance of
discipline of an institution is equally important.
Keeping the aforementioned principles in view, we
may hereinafter notice a few recent decisions of
this Court."
[See also State of U.P. v. Sheo Shanker Lal Srivastava & Ors., JT
2006 (3) SC 48, The Workmen of Bhurkunda Colliery of M/s. Central
Coalfields Ltd. v. The Management of Bhurkunda Colliery of M/s. Central
Coalfields Ltd., JT 2006 (2) SC 1, Syndicate Bank & Ors. v. Venkatesh
Gururao Kurati, JT 2006 (2) SC 73, L.K. Verma v. H.M.T. Ltd. & Anr., JT
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2006 (2) SC 99 and The Commissioner of Police & Ors. v. Syed Hussain, JT
2006 (2) SC 332]
For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly. However, in the facts and circumstances of the
case, there shall be no order as to costs.