CWP No. 15658 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 15658 of 2010 Date of Decision 07.12.2010 Raj Pal -----Petitioner Versus Central Administrative Tribunal & others ----Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. C.M. Chopra, Advocate for the petitioner. Mr. Vikram Bajaj, Advocate for the respondent Nos. 2 to 6. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution is directed against order dated 07.01.2010 (Annexure P- 13) passed by the Central Administrative Tribunal, Chandigarh Bench (for brevity 'the Tribunal'), holding that the charges of misappropriation/ embezzlement levelled against the petitioner stand fully proved in the departmental enquiry and the punishment of dismissal from service is not unwarranted. 2. Before dealing with the legal issue, it would first be necessary to notice few facts. The petitioner has been working as Gramin Dak Sewak Branch Postmaster, Rajowal Branch Post Office, Faridkot (for brevity 'the GDS BPM'). He was placed under put off CWP No. 15658 of 2010 -2- duty on 10.01.2005. Finally, a charge-sheet dated 26.05.2005 (Annexure P-1) alleging misappropriation of money was issued. A regular departmental eqnuiry was held and on 27.02.2006, the Enquiry Officer submitted his report holding him guilty of charges. On 09.03.2006, he was handed over an enquiry report and his comments were sought on the report within 15 days. On 20.03.2006, the petitioner submitted his representation against the findings of the Enquiry Officer (Annexure P-4). The representation made by the petitioner was rejected and the disciplinary authority imposed penalty of removal from service vide order dated 28.04.2006. Thereafter on 26.05.2005, the petitioner filed an appeal against order of disciplinary authority before the Director of Postal Service (Annexure P-6), which was dismissed on 7.11.2006 (Annexure P-7). Thereafter, petitioner filed revision petition before the Post Master General, Punjab region (Annexure P-8). Still further, the revision petition was dismissed on 16.08.2007 (Annexure P-9). The petitioner filed an original application before the Tribunal, which was defended by the respondents and the same was eventually dismissed on 07.01.2010 and feeling aggrieved, he has approached this Court. It would be pertinent to read the finding recorded by the Tribunal in the concluding paras of its order, which reads thus: “We have heard the learned counsel for the applicant who tried to prove innocence of the applicant on technicalities that complainant did not attend the inquiry and receipt No. 192 does not CWP No. 15658 of 2010 -3- contain the signatures of the applicant. He also stated that this receipt was only of Rs. 784/- and to harass the applicant, “extra one” was added to the figures in receipt to make it (figure of) Rs. 1784/-. He also argued that the admission of the applicant during the preliminary inquiry cannot be taken on record unless applicant is an opportunity to verify the same and just on the basis of this lacuna the case against the applicant is not made out. Learned counsel for the respondents produced original record like BSNL bill No. T11082004835817 dt. 7.8.2004 in respect of telephone No. 270013 which is for Rs. 1784/- (Annexure R-1) and obviously when a telephone bill is deposited the receipt is to be issued for the same amount and receipt No. 192 was duly issued for an amount of Rs. 1784/- (Annexure R-3). However, annexure R- 2 which is copy of all the registered transactions, an amount of Rs. 784/- only has been accounted for in respect of the receipt No. 192. Thus misappropriation of Rs. 1000/- of government money is proved beyond doubt and, as per original report of inquiry produced during the course of hearing of the matter, applicant has admitted to the receipt of Rs. 1784/- but accounted CWP No. 15658 of 2010 -4- for only Rs. 784/-. We have given deep consideration to the issue involved and have perused the record placed before us. From the records and the statement recorded by the applicant during the course of preliminary hearing as well as subsequently and on the basis of records, misappropriation of Rs. 1000/- in respect of telephone bill for telephone No. 270013 receipt No. 192 dated 7.8.04 amounting to Rs. 1784/- was issued and an amount of Rs. 784/- only was account for into government fund. Learned counsel for the respondents also cited judgment of the Tribunal passed in O.A. No. 769/PB/2007 dated 9.7.2009 in the case of Mahinder Singh Vs. Union of India wherein a similar case was held to be devoid of merits and was dismissed. Charge No.2 has been proved beyond reasonable doubt and applicant has also admitted to the misdeed committed, we are also not convinced by the argument regarding technicalities that the applicant could have got away with and escaped the harsh punishment of removal from service in departmental proceedings on mere technicalities. Departmental proceedings proceeded on CWP No. 15658 of 2010 -5- probability and the rules of strict evidence are not applied in the departmental proceedings. Disciplinary proceedings are not like criminal trial where doctrine of proof of beyond doubt is applied. This was so held in Tara Chand Vyas Vs. Chariman & Disciplinary Authority & Ors. 1997 4 SCC-565 and High Court of Judicature Bombay Vs. Vijay Singh Nimbalkar and others 1997 (5) SCC, 129.” 3. Mr. C.M. Chopra, learned counsel for the petitioner has vehemently argued that the findings of the Enquiry Officer on the charge of misappropriation of Government funds is absolutely erroneous as it is based on no evidence. According to the learned counsel, the petitioner never made any admission as is sought to be brought by the Enquiry Officer. Another submission put forth by the learned counsel is that the Tribunal has committed grave error in law by accepting those findings, which are against the principles of natural justice. He has maintained that the complainant who was the material witness, has not been produced by the department, depriving the petitioner of his valuable right of cross-examining him. 4. Mr. Chopra, learned counsel for the petitioner has then attacked the order of the appellate authority by urging that it is without application of mind and there is no compliance with the provisions of Rule 10 of Gramin Dak Sewak (Conduct and Employment) Rules, 2001 and argued that the petitioner has CWP No. 15658 of 2010 -6- rendered more than 31 years of unblemished service. He has urged that such a penalty is harsh. 5. Mr. Vikram Bajaj, learned counsel for respondent Nos. 2 to 6 has however, urged that the findings are based on evidence particularly, the admission made by the petitioner and documentary evidence. According to the learned counsel, the amount of Rs. 1784/- was shown in receipt No. 192 to the consumer whereas the amount credited was Rs. 784/-. Therefore, misappropriation of Rs. 1000/- was proved. 6. Having heard learned counsel for the parties and perused the paper book with their able assistance, we are of the view that the petitioner was issued charge-sheet with two following articles of charges, which reads thus: “Article-I Sh. Rajpal, while working as GDS BPM Rajowala in account with Faridkot HO during the period of 27.12.03 to 26.4.2004 is alleged to have misappropriated a sum of Rs. 8501 (Rs. eight thousand five hundred one only) by way of issuing TRC receipts and by not accounting for the said amount in government accounts violating the provisions contained in Rule 124 & 133 of Rules for Branch Offices (Seventh edition corrected upto 31.3.1986). His above act further alleged that said CWP No. 15658 of 2010 -7- Sh. Rajpal to have failed to maintain absolute integrity and devotion to duty violating the provisions contained in Rule 21 of the Gramin Dak Sevak (Conduct and Employment) Rules, 2001. Article II That the said Sh. Rajpal, while working in the aforesaid capacity on 31.8.2004 is alleged to have issued TRC receipt No. 192 for Rs. 1784 (one thousand seven hundred eighty four only) on account of telephone no. 270013 but accounted for the amounts of Rs. 784/- (seven hundred eighty four only) in to government accounts violating the provisions contained in Rule 124 & 133 of Rules for Branch Offices (Seven edition corrected upto 31.3.1986). His above act further alleged the said Sh. Rajpal to have railed to maintain absolute integrity and devotion to duty violating the provisions contained in Rule 21 of Gramin Dak Sevak (Conduct and Employment Rules, 2001).” 7. Thereafter a regular departmental enquiry was held. According to the Enquiry Officer, charge No.1 alleging misappropriation of a sum of Rs. 8501 was not proved whereas charge No.2 stood proved. The basis of the finding recorded by the Enquiry Officer was that on 31.08.2004, the petitioner issued TRC CWP No. 15658 of 2010 -8- receipt No. 192 for Rs. 1784/- on account of telephone No. 270013 and accounted for only Rs. 784/- into the government account. The petitioner has admitted the short credit of Rs. 1,000/- in his written statement dated 29.11.2001. After he has confirmed the contents of office copy of receipt No. 192 dated 31.08.2004 issued in respect of Telephone No. 270013 (Annexure R-1). He has also confirmed the contents of TRC list dated 31.08.2004 (Annexure R-2) wherein amount of Rs. 784/- was taken into account in respect of receipt No. 192. 8. The contention of the petitioner is that the Enquiry Officer has exonerated him in respect of charge No. 1 on the ground that the complainant did not appear before the Enquiry Officer despite notice whereas in respect of charge No.2, complainant did not appear but yet the charge has been held to be proved. The basic reason for recording finding against the petitioner is that he had admitted vide his statement dated 29.11.2004 that the receipt was issued by his son which indicated that the petitioner was not performing his duty with devotion. 9. It has accordingly been held that the admission is best form of evidence as it is self-incriminating, therefore, it is per se admissible. The aforesaid admission made by the petitioner is fully corroborated by the official record produced before the Enquiry Officer. Therefore, we do not find any justifiable ground to record a conclusion that the petitioner is not guilty of the charges. 10. It is well settled that in the absence of any violation of CWP No. 15658 of 2010 -9- mandatory provision of the Rules concerning holding of enquiry it is not possible for the Courts to interfere in the quantum of punishment chosen by the employer. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of Union of India v. Parma Nanda, (1989) 2 SCC 177. It has been observed therein that ordinarily the Courts or the Tribunal has no power to interfere with the punishment awarded by the competent authority in departmental proceedings on the ground of the penalty being excessive or disproportionate of the misconduct proved, provided the punishment is based on evidence and is not arbitrary, mala fide or perverse. The aforesaid view has been followed in the case of State of Karnataka v. H. Nagaraja, (1998) 9 SCC 671. 11. As a sequel to above discussions, there is no room for us to interfere. The petition is wholly without merit and accordingly the same is dismissed. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE December 07, 2010 Atul