1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.1181 OF 2009 1. Union of India, (Through its Secretary) Ministry of Communications, Department of Posts, New Delhi. 2. The Department of Posts, Senior Superintendent of Post Offices, Nagpur MFL Division, Nagpur. .. PETITIONERS. // VERSUS // Madhu S/o. Motiram Bhendarkar, aged about 38 years, Occu : Nil, R/o. Pandhri, Tq. Sadak Arjuni, District : Gondia. .... RESPONDENT. -------------------------------------------------------------------------------------------------------------------------- Dr. R.S. Sundaram, Advocate for Petitioners. -------------------------------------------------------------------------------------------------------------------------- CORAM : A.H.JOSHI AND A.R.JOSHI, JJ. DATED : NOVEMBER 23, 2009. ORAL ORDER (Per A.R.Joshi, J ): 1. Heard learned Advocate for the petitioner at length. 2 2. Order of Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur, dated 22nd February, 2008 is challenged in the present writ petition by the then respondent/ present petitioner Union of India and Department of Posts. 3. By the impugned judgment and order following directions were given for giving relief in favour of the then applicant/ present respondent. The said directions, detailed in paragraph 13 of the impugned order are reproduced for the sake of ready reference : “13. In view of the above discussion of law and facts, the impugned order of removal from service dated 14.09.2004 as well as the Appellate Authority’s order dated 25.01.2005 are hereby quashed and set aside. The respondents are directed to reinstate the applicant with all consequential benefits, including continuity of service, seniority, back wages, arrears thereon, etc. However, in the facts and circumstances of the case, we restrict the right of the applicant to get the arrears on account of back wages only to the tune of 50%. The applicant will be, however, entitled to all other notional benefits on his reinstatement. Respondents are directed to comply with the above directions within a period of two months from the date of receipt of a copy of this order. The O.A., thus, stands allowed in terms of the above directions. No order as to costs.” 4. Prior to discussing the rival submissions certain factual position can be summarized as under : (a) Present respondent was appointed as GDS Extra Departmental Branch Post Master on 1st January, 1994 and was posted at the Branch Post Office at village Pandhri. 3 b) In March, 2000, the respondent was put off duty on revealing his involvement in the misappropriation of the funds when it came to the notice of the Sub Divisional Engineer, Gondia during visit at Pandhri Post Office. c) In the year 2001 he indulged in misappropriation of certain amount during the course of his employment. d) He was chargesheeted in February, 2002. First charge was for misappropriation of a sum of Rs.50,603/- and second concerning uncounting of Rs.200/- deposited in recurring account of one account holder of the post but not credited. e) A departmental enquiry was conducted after issuance of the chargesheet. f) The Enquiry Officer submitted his report in July, 2004 exonerating the present respondent with respect to the charge of misappropriation of Rs.50,603/- but holding him guilty for not duly accounting the amount of Rs.200/- shown credited in the passbook at the recurring deposit account of the account holders and punishment of removal from service, vide order dated 14th September, 2004 was imposed. 4 5. The above finding of the Enquiry Officer were challenged by the respondent as punishment was imposed by the Disciplinary Authority based on the said findings. 6. The said appeal was rejected by the order dated 24th January, 2005. Against the said order of the appellate Authority the original application was preferred before Central Administrative Tribunal. The said Original Application No.2093/2005 was allowed by impugned order which is challenged by the Union of India and Postal Department in the present writ petition. 7. We have gone through the reasoning given by Central Administrative Tribunal. The admitted position as noticed from facts on record is summarized as follows: i) Present respondent was exonerated from the charge of misappropriation of Rs.50,603/- ii) He was only held guilty in the departmental enquiry for unaccounting of Rs.200/-. iii) Admittedly there was no proof brought before the Enquiry Officer as to the primary evidence regarding deposition of Rs.200/- by the account holder, by way of production of either counter foil of pay-in-slip or pay-in-slip in the custody of the Post Office. iv) The account holder, in whose account allegedly amount of Rs.200/- was shown credited by the respondent was not sure as to whether he had actually the cash deposited of Rs.200/-, as alleged. 5 8. On the above admitted position, the arguments advanced on behalf of the respondent, counter to the arguments of the petitioners Central Government, can be appreciated. 9. Argument of the respondents was that there was violation of principles of natural justice, inasmuch as the relevant documents asked by him were not produced and he was not given an opportunity to file his reply when the major penalty was imposed as to removal from service and that also in the light of his exoneration from the major charge of misappropriation of the amount of Rs.50,603/-. 10. On factual aspect it is significant to note that such document was of prime importance in order to establish the charge against the respondent regarding he himself accepting Rs.200/- by making endorsement on the pay-in-slip and giving acknowledgment on the counter foil of the account holder. Moreover, non-production of such primary evidence is fatal to the department when it was called for by the respondent during the enquiry against him. 11. It is required to be mentioned that, admittedly, present respondent was acquitted from the criminal case lodged against him for the offence punishable under Section 409 of the Indian Penal Code. 12. We have gone through the reasoning given by the Central Administrative Tribunal. 6 13. Barring persuading us to draw another conclusion and to differ from the conclusions and findings reached by the Tribunal no other submissions are advanced. 14. Whether solitary entry in pass book without supporting oral and documentary evidence was a question of jurisdictional fact before the Tribunal. The Tribunal has dealt with this question by appreciating facts and evidence. The tribunal is a forum of original jurisdiction. This Court is not sitting in exercise of appellate jurisdiction. The fact finding done by the Tribunal is seen well founded and is not shown to be vitiated due to any error of law or being contrary to evidence. 15. Considering the above factual position and considering the rival submissions, we do not find anything to interfere with the impugned order and hence, the present writ petition is devoid of merit and the same is dismissed. The petitioner shall bear own costs. JUDGE JUDGE RR.