Director of Postal Services, Central Region, Kochi v. K. U. Gopinathan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 12181 of 2010(S) -------------------------OA.445/2009 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/RESPONDENTS IN OA: ---------------------------------------- 1. DIRECTOR OF POSTAL SERVICES, CENTRAL REGION, KOCHI-682 018. 2. THE SENIOR SUPERINTENDENT OF POST OFFICES, TRICHUR DIVISION, TRICHUR-680 001. 3. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT/APPLICANT IN OA: ------------------------------------ K.U.GOPINATHAN, S/O. E.P.K.NAIR, POSTAL ASSISTANT(BCR) WADAKKANCHERRY.H.O., RESIDING AT KAVUNKALUCHANATHIL HOUSE, ERUMAPETTI.P.O. TRICHUR-680709. BY ADV. SRI.P.C.SEBASTIAN SRI.MARTIN G.THOTTAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12181 of 2010(S) ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 : TRUE COPY OF THE ORIGINAL APPLICATION NO.445/09 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P2 : TRUE COPY OF THE REPLY STATEMENT FILED IN OA NO.445/09 BEFORE THE CAT. EXT.P3 : TRUE COPY OF THE ORDER IN OA NO.445/09 DATED 01.02.2010 OF THE CAT, ERNAKULAM BENCH. /TRUE COPY/ PA TO JUDGE ## **Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 12181 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of November, 2011 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** Heard the learned counsel for the petitioners as well as the respondent. 2. It is not in dispute that the respondent herein was issued with a statement of imputations of misconduct on the ground he did not account for a sum of `.2,001/- and rather misutilised the powers vested with him and prepared 10 vouchers without spending the said money. However, he has denied all the allegations alleged against him and requested for dropping of the proceedings. The disciplinary authority after considering representation, apart from recovery of `.2,001/-, a penalty of denial of one increment without cumulative effect for 35 months was imposed. 3. Aggrieved by the same, an appeal also came to be filed, but the appellate authority confirmed the penalty imposed by the disciplinary authority. Impugning the said action of the department, the respondent approached the Central W.P.(C) No. 12181 of 2010 ## -:2:- Administrative Tribunal (CAT for short), contending, neither the disciplinary authority nor the appellate authority followed the principles of natural justice. ## 4. Reliance was placed on **O.K. Baradhwaj v. Union** **of India and others** [ **2002 SCC (L&S) 188** ]. The CAT after referring to the facts in issue and especially the fact that the respondent has categorically denied the statement of imputations of misconduct, proceeded to opine that there ought to have been enquiry, having regard to the facts and circumstances of the case and there is violation of principles of natural justice, therefore, the Original Application came to be allowed. Consequently, the proceedings of the disciplinary authority and the appellate authority came to be quashed and set aside. Apart from that, the amount of `.2,001/- already recovered from the respondent employee was directed to be refunded to him forthwith, liberty was reserved to the employer to hold an enquiry as contemplated under Rule 16(1)(b) of CCS (CCA) Rules, 1965, if so desired. Aggrieved by the same, the petitioner employer is before us. 5. According to the learned counsel for the petitioner, the interpretation of Rule 16(1)(b) is relevant for consideration and ## W.P.(C) No. 12181 of 2010 ## -:3:- according to them, it is within the discretion of the disciplinary authority to drop enquiry, depending upon the facts and circumstances of each case. He further contended, as the imposition of penalty was minor, in the wisdom of the disciplinary authority, they were of the opinion no enquiry need be conducted, in view of the statements from various taxi and autorickshaw drivers recorded by the petitioner authority. He also places reliance on **O.K. Baradhwaj** 's case (supra) and **Food Corporation of India, Hyderabad v. A.Prahalada Rao and another** [ **2001 SCC(L&S), 186** ] respectively. 6. We have gone through these two judgments and also the facts in the present case. During the course of submissions, the learned counsel for the petitioner submitted that similar allegations are made against the respondent employee. This time the amount said to have been misused is nearly `.13,000/- and the petitioners are contemplating what disciplinary action to be taken. Apparently the respondent employee is in service. In the case of O.K. Baradhwaj (supra), the provision of Rule 16(1)(b) of CCS (CCA) Rules, 1965 was not at all discussed, therefore, there was no justification for CAT W.P.(C) No. 12181 of 2010 -:4:- to place reliance on this judgment. On the other hand, he relies upon the Food Corporation's case(supra) to contend, where a minor penalty could be imposed, the disciplinary authority has option to discard holding a regular departmental enquiry in such a case. 7. In this case depending on the facts and circumstances, their Lordships held, it was only discretionary under which such departmental enquiry could be discarded by authority. However, when we go through the contents of the judgment, we note that in the said case also their Lordships were of the opinion that Court's power of judicial review is limited and though limited, Court can interfere where the authority held the enquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry and imposing punishment or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached such conclusion. It is further held that as per the regulations holding a regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering facts of each W.P.(C) No. 12181 of 2010 ## -:5:- case and if it is misused or used arbitrarily, it would be subject to judicial review. Therefore, we have to see whether the facts and circumstances in this case would warrant such judicial review. 8. Apparently, the allegations made against the respondent is of serious nature, the quantum of fund misused by the respondent is not the criterion to conclude whether it is a serious misconduct or not, but the nature of misconduct is relevant. Here the nature of misconduct alleged against the respondent employee is misappropriation of funds of the department by producing false vouchers. According to the disciplinary authority, the amount was only `.2,001/-, therefore it warranted minor penalty being imposed. Looking at the statement of imputations as stated above, misappropriation of funds of the department was the misconduct. Even otherwise, when the respondent/employee denied categorically the statement of imputations alleging misuse of `.2,001/-, he must be given an opportunity to disprove such allegations made against him. Apparently, the only material the disciplinary authority had with them was the statement of the so called autorickshaw and taxi drivers. But the respondent had no W.P.(C) No. 12181 of 2010 -:6:- opportunity to controvert the said statement of the drivers. Therefore, the very nature of the procedure adopted by the petitioner authority is arbitrary and it violates the principles of natural justice. When the statement of the drivers was the basis for imposing penalty of denial of one increment for 35 months without cumulative effect, he should have given an opportunity to explain or to controvert the said statement of the drivers. In that view of the matter, for the reasons stated above, we find that the CAT was justified in allowing the Original Application and accordingly, the present Writ Petition is dismissed. **Manjula Chellur, Ag. Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb