The Superintendent of Posts, Mavelikkara Division, Mavelikkara; Inspector of Posts, Kayamkulam Sub Division, Kayamkulam; Asst. Superintendent of Posts (HQ), Mavelikkara Division, Mavelikkara - 690101; Union of India represented by its Secretary, Ministry of Communications, Department of Posts, New Delhi v. S.T. Nityanand

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939** **OP (CAT).No. 532 of 2011 (S)** **-----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OA 478/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS (RESPONDENTS IN THE ORIGINAL APPLICATION)** **--------------------------------------------------------------------------------------------** **1. THE SUPERINTENDENT OF POST OFFICES MAVELIKKARA DIVISION, MAVELIKKARA - 690101** **2. THE INSPECTOR OF POSTS,KAYAMULAM SUB DIVISION, KAYAMKULAM** **3. THE ASST.SUPERINTENDENT OF POST OFFICES(HQ),MAVELIKKARA DIVISION,, MAVELIKKARA - 690101** **4. UNION OF INDIA REPRESENTED BY ITS SECRETARY,MINISTRY OF COMMUNICATIONS,, DEPARTMENT OF** **POSTS,NEW DELHI** **BY ADVS.SRI.T.P.M.IBRAHIM KHAN,ASSISTANT SOLICITOR GENERAL OF INDIA** - **SRI.P.PARAMESWARAN NAIR ASSISTANT SOLICITOR GENERAL OF INDIA** - **SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL OF INDIA** ## **RESPONDENT(APPLICANT IN THE ORIGINAL APPLICATION)** **--------------------------------------------------------------------------------------** **S.T.NITYANAND, AGED 31 YEARS, S/O.SHRI S.S.SARMA (LATE), EXGDS MD.,KADUVINAL P.O.,RESIDING AT .CHENKILATHU MADOM,, KANDIYOOR P.O.,MAVELIKKARA -690103** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 532 of 2011 (S)** **-----------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXTP1 COPY OF RULE 9 OF THE GRAMIN DAK SEVAK (CONDUCT AND EMPLOYMENT) RULES 2001 EXTP2 COPY OF THE ORIGINAL APPLICATIN NO.478/2009 FILED BY THE RESPONDENT/APPLICANT ALONG WITH ANNEXURES BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXTP3 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS BEFORE the CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION N.478/2009 EXTP4 COPY OF THE DG'S INSTRUCTION AT 2(2) BELOW RULE 7 OF GRAMIN DAK SEVAKS (CONDUCT &EMPLOYMENT) RULES 2001 EXTP5 COPY OF THE ORDER DATED 9.11.2010 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.478/2009** ## **RESPONDENTS EXHIBITS** ## **NIL** ## **TRUE COPY** ## **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **O.P.(CAT) No.532 of 2011 -----------------------------------------------------Dated this the 22[nd] day of May, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The petitioners were the respondents in O.A.No.478 of 2009. Challenge is against Ext.P5 order passed by the Tribunal, whereby the orders passed by the Departmental authorities, removing the applicant from service, pursuant to culmination of the disciplinary proceedings initiated against him for temporary misappropriation and unauthorised absence came to be intercepted by the Tribunal ordering reinstatement with all consequential benefits. The case projected by the Department is that there is a total misconception in the minds of the Tribunal as to the clarity of the charges and that the verdict passed by the Tribunal is not correct or sustainable in the eye of law. O.P.(CAT) No.532 of 2011 2 2. The Original Petition was admitted way back on 7.2.2011, as granting interim stay for a period of one month, which was extended until further orders on 27.6.2011. Despite the completion of service, the respondent has not chosen to appear before this Court to contest the matter. The respondent/applicant was working as a Gramin Dak Sevak Mail Deliverer/(GDS MD) at Kaduvinal Post Office, Kayamkulam Sub Division, Mavelikkara Postal Division with effect from the year 2001. While so, the Gramin Dak Sevak Branch Post Master (GDS BPM) entrusted a sum of Rs.39,010/- to the applicant on 12.5.2005, which included a sum of Rs.2280/- towards money order to be given to the addressees concerned. The proceedings were supposed to be returned on the next day ie; 13.5.2005 F.N. But the applicant chose to remain absent and absconded from the scene, without giving the due amount to the persons O.P.(CAT) No.532 of 2011 3 concerned and also without remitting the amount back to the Department. 3. In view of the situation, the matter was reported by the GDS Branch Post Master to the Assistant Superintendent of post offices on 16.5.2005. Immediately, the Assistant Superintendent of Post offices visited the place on 17.5.2005. Pursuant to further steps taken, an FIR came to be registered against the culprit on 18.5.2005 as Crime No.110/2005 of Vallikunnam Police Station under Section 409 of the Indian Penal Code. Subsequently, the applicant remitted the due amount in the Kayamkulam Head Post Office on 27.5.2005. The applicant was put off duty on 14.6.2005, pending enquiry. 4. In terms of the relevant provisions of GDS (Conduct and Employment), Rules 2001, Annexure A1 charge sheet came to be issued on 5.6.2006, with the following three charges. O.P.(CAT) No.532 of 2011 4 ## “Article I That the said Sri.S.T.Nityanand while working as GDSMD Kaduvinal, absconded with Govt. money to the tune of Rs.36,730/which was entrusted to him by GDSBP, Kaduvinal GDSBO, Smt.A.Safiath on 12 May 2005. Sri.S.T.Nityanand GDSMD, (under put off duty) Kaduvinal thus failed to maintain absolute integrity and devotion to duty and thereby violated Rule 21 of Dept. of Posts GDS (Conduct and Employment) Rules 2001. ## Article II That the said Sri. S.T.Nityanand while working as GDSMD Kaduvinal , Unauthorized absent from duty fro, 13 May 05 onwards without prior permission and without submitting proper leave application. Sri.S.T.Nityanand thus failed to maintain absolute integrity and devotion to duty and thereby violated Rule 21 of Dept of Posts GDS (Conduct and Employment) Rules 2001. ## Article III That the said Sri.S.T.Nityanand while working as GDSMD Kaduvinal, showed O.P.(CAT) No.532 of 2011 5 Bangalore Meena Lines MO No.1027 dated 02 May 05 for Rs.2000/- (Rupees Two thousand) only payable to Sri.Damodaran, Kuzhiparambil House, Kaduvinal, as paid on 06 May 2005 without obtaining the signature of the payees in the MO form and without paying the amount to the real payee. Sri.S.T.Nityanand thus failed to maintain absolute integrity and devotion to duty and thereby violated Rule 21 of Dept of Posts GDS (Conduct and Employment)Rules 2001.” 5. A domestic enquiry was conducted, on culmination of which, the Enquiry Officer submitted Annexure A2 report, finding the delinquent employee guilty of charges 1 and 2, while in respect of the 3[rd] charge, it was stated as not proved. The report submitted by the enquiry officer was accepted by the Disciplinary Authority, the second respondent herein, who passed Annexure A5 order on 11.1.2008 imposing the punishment of removal from service. This was sought to be challenged by filing Ext.A6 appeal which came to be O.P.(CAT) No.532 of 2011 6 dismissed by the first respondent as per Annexure A7 order. This led to the Original Application filed before the Tribunal seeking to intercept the impugned orders and for reinstatement and such other benefits. 6. The claim was resisted from the part of the Department, pointing out all the relevant aspects and as to the evidence brought on record. The Tribunal observed that there was some factual error in the charge sheet; particularly in respect of 'charge No.1' and further that charge No.3 with regard to the forging of records was a more grievous one; which however was held as not proved. Reference was also made to the version of the delinquent employee, that he had already entrusted the amount with some person deputed by him, to have the due amount returned to the Department and he came to know only much later that the amount was actually not returned to the Department. It was in that context, that O.P.(CAT) No.532 of 2011 7 the amount was remitted in the Head Post Office. It was also noted by the Tribunal that the uncle of the applicant had suddenly fallen ill and bid farewell to the world immediately thereafter. In connection with this, the applicant had to leave the station and these aspects were held as not properly appreciated by the Department. The Tribunal also observed that the real culprit could be the person to whom the amount was stated as entrusted by the applicant and so far as no evidence was there to ignore the version put forth by the delinquent employee in toto, the Department ought to have taken a more lenient view. It was accordingly, that a finding was rendered, particularly with reference to the defective charge sheet (as put forth by the Tribunal), intercepting the enquiry report and the orders passed by the Department, in turn ordering reinstatement of the applicant in duty with all consequential benefits. This is O.P.(CAT) No.532 of 2011 8 under challenge in this Original Petition. 7. The learned Standing Counsel for the petitioner points out that the idea and understanding of the Tribunal as to the contents of the charge sheet and observation that there was some factual error, are thoroughly wrong and misconceived. The observation of the Tribunal, as revealed from paragraph 9 of the order under challenge is as follows: “9. The 1[st] charge reads as follows: That the said S.T.Nityanand while working as GDSMD Kaduvinal, absconded with Govt, money to the tune of Rs.36730/- which was entrusted to him by the GDSBPM, Kaduvinal GDSBO, Smt.Safiath on 12 May 2005. Sri.S.T.Nityanand GDSMD, (under put off duty) Kaduvinal thus failed to maintain absolute integrity and devotion to duty and thereby violated Rule 21 of Dept. of Posts GDS (Conduct and Employment) Rules, 2001” O.P.(CAT) No.532 of 2011 9 As per the submission of the Branch Postmaster, the returns of 12.5.2005 were duly received by her on 13.5.2005. Therefore, the 1[st] charge is factually erroneous. It is factually wrong to say that on 12.5.2005, the applicant absconded with the Government money of Rs.36730/-, which was entrusted to him on 12.5.2005. If the Branch Postmaster duly received on 13.5.2005 the returns of 12.5.2005 as per her say, the question of returning Rs.36730/- which was entrusted to him on 12.5.2005 just does not arise at all. The enquiry authority as well as the Disciplinary Authority and the Appellate Authority failed to notice this factual error.” 8. It is pointed out that the charge was very clear, that the entrustment of the amount of Rs.36,730/- by the GDSBPM was on 12.5.2005. It did not say that the delinquent employee was absent or absconding from 12.5.2005. The absconding was in fact from the next day i.e; 13.5.2005. The Tribunal mistook the factual position that, as per the charge sheet it was stated that the delinquent employee was absconding from 12.5.2005 and O.P.(CAT) No.532 of 2011 10 if this be the position, there would not have been any entrustment of the said amount on that day. After hearing and also after going through the contents of the charge sheet, we find that there is absolutely no obscurity in the charge levelled against the delinquent employee, nor did it mention anywhere that the 'absconding' was with effect from 12.5.2005. It is clear that the amount was entrusted with the employee on '12.5.2005' and the absconding was only with effect from the 'next day'. This being the position, the very foundation for making interference by the Tribunal goes, as the appreciation made by the Tribunal is not at all correct. 9. With regard to the other observations made by the Tribunal, in the subsequent paragraphs and with regard to the version put forth by the applicant, this Court finds it difficult to agree with the same. The factum of entrustment of amount stands admitted. So is the O.P.(CAT) No.532 of 2011 11 position with regard to the factum of leaving the station, without returning the amount or delivering the same to the addressees concerned. It also remains a fact, that the due amount was returned by the delinquent employee only much later on '27.5.2005'. It is true that some excuse was sought to be offered by the delinquent employee, that he had entrusted the amount with a messenger, to have it paid back to the Department and that he came to know of the lapse on the part of the latter only much later. The said version does not appear to be a palatable one for this Court. The employee has conceded as to leaving the station without applying for leave. Whatever may be the contingency, there was a duty upon the delinquent employee to make further enquiry with the Department to ascertain whether the amount stated as entrusted with the messenger or the substitute had actually reached the hands of the Department. There is no O.P.(CAT) No.532 of 2011 12 case that any such endeavour was made. That apart, non return of the amount for nearly two weeks clearly amounts to 'temporary misappropriation', which is a serious charge and is not liable to be termed as a minor charge, as sought to be projected by the Tribunal. The Department has adduced evidence in support of the charges levelled against the employee. The enquiry officer analysed the same, pursuant to which he arrived at a finding that charges 1 and 2 were proved; whereas charge No.3 was not proved. This led to Annexure A5 order passed by the Disciplinary Authority ordering removal from service and the subsequent dismissal of the appeal by way of Annexure A7. 10. It is also brought to the notice of this Court by the learned Standing Counsel for the Department that, pursuant to the registration of Crime against the respondent/applicant, the Trial Court, based on the O.P.(CAT) No.532 of 2011 13 evidence adduced, found the respondent guilty, who accordingly was convicted and sentenced by imposing the punishment of simple imprisonment of 6 months and with a fine of Rs.5000/- as well. Though an appeal was preferred against the verdict it came to be dismissed, though the Revision Petition arising therefrom is stated as still pending. Pendency of the Revision Petition cannot tilt the balance in any manner, in so far as the disciplinary proceedings are concerned; where the degree of proof is different. Preponderance of probability is sufficient to fix the guilt in disciplinary matters. We find support from the ruling of the Apex Court reported in _**State of Haryana and another vs. Rattan Singh (1982 (1) LLJ 46)**_ 11. We are of the view that the Tribunal has unfortunately gone wrong in adjudicating the issue. The verdict passed by the Tribunal is not liable to be sustained. Accordingly, we set aside Ext.P5 order passed O.P.(CAT) No.532 of 2011 14 by the Tribunal and restore the proceedings which were under challenge before the Tribunal. The Original Petition stands allowed. No costs **P.R. RAMACHANDRA MENON JUDGE** **SHIRCY.V JUDGE** smm