Wednesday, September 28, 2011

OA No.292 /2009






S.V. Naik, Aged 28 years,
S/o Vittoba Naik,
GDS MD, Anmod BO,
Ramnagar SO- 581 453 (Sirsi NI). ... Applicant

(By Advocate Shri B. Venkateshan)


1. Union of India,
Represented by the Secretary,
Department of Posts,
Dak Bhavan, New Delhi-110 001.

2. Postmaster General,
North Karnataka Region,
Dharwad-580 001.

3. Superintendent of Post Offices,
Srsi Division, Sirsi-581 402

4. Assistant Superintendent of Post Office (HQ),
O/o Supdt. Of Post Offices,
Sirsi Dn. - 581 402. ... Respondents

(By Advocate Shri M. V. Rao,
Sr. Central Govt. Standing Counsel)


Hon'ble Smt. Leena Mehendale, Member (A):

The OA arises out of the order dated 06.06.2006 passed by the respondents imposing the penalty of removal from service. The appeal against the said order was rejected by order dated 31.01.2007 and his further petition to the Postmaster General, Dharwad, was rejected vide order dated 03.03.2009.

2. The brief facts of the case are as under:-
3. The applicant who was Gramin Dak Sevak Mail Deliverer (GDS, MD) at Anmod Branch Office, in account with Ramnagar Sub-Office, under the Head Office of Sirsi, was given a charge memo dated 27.4.2003 levelling the following three charges:

1. That he did not convey the BO bag from Anmod Bus Stop Point to the HO on 18-12-2002.
2. that he did not deliver soome ordinary letters to the addressees and
3. that he was involved in non credit of VP amount of Rs.861/-

4. The disciplinary action was dropped on 14.10.2003, but, was initiated again on 11.11.2003. It was concluded on 13.9.2005 and ADA imposed the punishment order dated 06.06.2006 of removal from service. Both the appeal and the petition were rejected by the appellate authority and the PMG Dharwad respectively.

5 Heard Shri B. Venkateshan, learned counsel for the applicant and Shri M.V. Rao, learned Senior Central Govt. Standing Counsel for Respondents.

6. The learned counsel for the applicant sought to quash the impugned order dated 06.06.2006 and subsequent orders on the following grounds.

a) As regards charge No.3, the applicand has already been punished vide Memo No.ASP/(HQ)/ADA-1/01, dated 8-4-2002. Thus, punishing him once again for the same charge amounts to double jeopardy which the respondents are not permitted.
(b) the article of charge No.2 is that the applicant has failed to deliver the ordinary articles received at BO on 25-11-02, 26-11-02, 28-11-02 and 4-12-02 which were entrusted to him for delivery on these respective dates. Although the Inquiry Officer has said that this charge is proved, the most important witness examined by him was PW-3, who himself has stated in his deposition that the statement of the applicant purported to have been given before the PW-3 were actually not recorded by him, but that he put his signature and stamp under the directions of tHe IPO, Dandeli. PW-3 has further stated that he does not know how to read or write Marathi language and hence he was not fit for recording the statement of the applicant. This statement of the applicant at Ex.P-9 and Ex.P-10 were purported to have been given by him before PW-3 and were to be relied upon by the Inquiry Officer, for proving charge.
(c) As regards charge No.1, namely, not conveying the BO bags from the Bus stop to the Post Office, the applicant claims that it is not one of the duties entrusted to him. Among the witnesses examined, there is one hotelier who has recounted the incidence before the Inquiry Officer stating that the bus was very late on that day and when it finally arrived, someone has dropped the BO bag from the bus to the hotelier. He thereafter delivered it to the BO and that the distance between the BO and the Bus stop is nearly 25 metres, only.

Thus, the learned counsel argued that out of the three charges the 3rd charge was not tenable as it amounted to double jeopardy and the applicant could not be punished for the third charge. The first two charges seems to be of much lesser gravity and especially the second charge cannot be said as proved. It is also important to note that in the entire service of the applicant for about 16 years, these two incidences have happened only once and hence the punishment of removal from service seems to be too harsh. He further argued that even though the Tribunal is normally not supposed to look into the question of gravity of charge vs. The quantum of punishment. Yet, the Tribunal ought to take such a note when the punishment is grossly disproportionate or harsh. He quotes the decision of the Apex Court in the case of Kailash Nath Gupta Vs. Inquiry Officer (R.K. Rai) Allahabad Bank & Ors. In Civil Appeal No.2508/1998 decided on 27.3.2003 and reported in 2003(3)ATJ (Supreme Court) 227. to say that the quantum of punishment of removal from service imposed by the respondents is too excessive and disproportionate to the gravity and nature of offence.

7. The learned counsel for the applicant further submits that in accordance with the provisions contained in DG P&T letter No.114/324/78-Disc.11, dated 5-7-1979, incorporated as Government of India Instructions No.(9) below Rule -15 of CCS (CCA) Rules, 1965, inter alia stipulates that "once the proceedings initiated under Rule 14 or 16 of CCS (CCA) Rules, 1965 are dropped, the Disciplinary Authorities would be debarred from initiating fresh proceedings against the delinquent officer unless the reasons for cancellation of the original charge sheet or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings are being dropped without prejudice to further action which may be considered in the circumstances of the case. In the instant case, the DA while dropping the earlier charge sheet has not indicated the reasons for dropping the said charge sheet. Hence, the DA is debarred from fresh proceedings. Hence, the charge sheet is defective. Thus, the learned counsel has challenged the action of the Disciplinary Authority who first dropped the action on 14.10.2003 and later again initiated action on 11.11.2003.

8. Hence, the learned counsel prays for quashing the punishment order on the ground that the punishment for charge No.3 amounts to double jeopardy, Charge No.2 is not proved and is a minor charge and Charge No.1 cannot be construed as proved because conveying the BO bag from the Bus stop to the BO was not part of his job. Above all the disciplinary action was first dropped on 14.10.2003 but was again initiated on 11.11.2003 without assigning proper reasons.

9. The learned counsel for the respondents mainly contended that before arriving at the penalty, the previus bad record of the applicant is considered by framing specific charge in the charge sheet. By this, he is referring to Charge No.3. However, charge No.3 as read from the text of the charge sheet does not indicate that it only a previously observed bad record, but, has been brought out as a specific charge and definitely amounts to double jeopardy. The other two charges are either not fully proved or are of minor nature.

10. Hence, the orders of dismissal dated 06.06.2006 is quashed and also the orders in subsequent appeal and petition. The applicant is to be reinstated with full wages.

11. With the above observation, this OA is allowed with no order as to costs.



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