Mohd Haleem Khan. Member (A)
1. Smt Krishna Sonowal wife of Sraban Kumar Sonowal, resident of village Gagaldubi, P.O. & P.S Boginodi, District Lakhimpur, Assam has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a) Quash and/or set aside the impugned disciplinary proceeding and its findings holding that the article of charges levelled against is proved.
b) Quash and/or set aside the order dated 05/06.2014 issued by the Director, Postal Services, Arunachal Pradesh Division (respondent No.3) removing the applicant from service with immediate effect.
c) Quash and/or set aside the order dated 14th May/9th June 2015 issued by the respondent No.2, the Chief Post Master General, N.E.Circle, Shillong rejecting the appeal.
d) Pass an order directing the respondent authority to reinstate the applicant with back wages.
e) To pass any other appropriate order(s)/direction(s) to the respondents authority for redressal of grievances of the applicant as per provision of law for the ends of justice.
The applicant also sought following interim relief:
'It is further prayed that pending disposal of the present Original Application, Your Lordship may be pleased to stay the operation of the impugned order dated 05/06/2014 and 05th May/9th June’ 2015 with a direction to the respondent authorities not to disposes the applicant from the quarter till disposal of the case."
2. Briefly the applicant joined as Postal Assistant on 27.12.1991. While the applicant was working at Naharlagun SO she was charged for misappropriation of Rs.5,38,000/- and by order No.F-2/Naharlagun SO/2009-10 dated 18.02.2010 she was put under suspension. The applicant was served Memorandum of Charges by letter No.F-2/Naharlagun/Disc/K.Sonowal/2009- 10 dated 30.03.2010 with imputation of 5 article of charges against the applicant. On 06.05.2010 the applicant requested Director of Postal Services. Arunachal Pradesh for extension of time for submitting the written statement as she was undergoing medical treatment and was in a critical health condition. The applicant admitted that respondent No.3 by letter No.F- 2/Naharlagun/SO/2009-10 dated 23.06.2010 allowed her to draw subsistence allowance equal to the leave salary and allowances which she would have drawn on half pay leave. The applicant further submitted that sussistence allowance however, was not revised as per FR 53(1) (iii)(a). The applicant remained under suspension for 38 months.
3. On 17.07.2010 the applicant filed written statement against charge sheet dated 30.03.2010 denying all the charges. By letter dated 13.07.2010 the applicant was communicated that an enquiry is going to be held against her under Rule 14 of the CCS(CCA) Rules, 1965. Shri K.Pandit, ASP(W) was appointed as Enquiry Officer and by letter No. F- 2/Naharlagun/Disc/K.Sonowal/2009-10 dated 13.07.2010 Shri A.B.Rai, PO and OA, office of the DPS, Itanagar was appointed as the Presenting Officer. Accordingly on 30.09.2010 preliminary enquiry under Rule 14 of the CCS(CCA) Rules, 1965 was conducted in the office of ASP(W), Itanagar. According to applicant the authority imposed tremendous mental pressure upon the applicant and insisted for admitting the charges levelled against her. According to the applicant the authority encouraged the applicant to accept her guilt and in turn the authority will consider her case leniently. According to the applicant inspite of persuasion she did not pleaded guilty for the article of charges No.1, 2, 3 and 4 but pleaded guilty for charge No.5 regarding her unauthorised absence on 11.02.2010. According to the applicant the authority did not apprise her of her right to seek appointment of defence assistant to help and defend her case and to file list of defence witness. The applicant further submitted that she was put under tremendous pressure and described it in para (N) of the O.A as follows.
"That during the pendency of the so called inquiry and while the applicant refused to admit the charges levelled against her, the Director Postal Services, Arunachal Pradesh Division, Itanagar-791111 (respondent No.3) imposed more mental pressure upon the applicant and most arbitrarily and purportedly issued a letter being letter No. F-2/Naharlagun/SO/2009-10 dated 19.07.2011 to the Superintendent of Post Offices, Dibrugarh Division, Dibrugarh-786001 intimting him that the Chief PMG has directed him to implement the PAD Act and that as per direction of the Chief PMG, the Director of Postal Services, Arunachal Pradesh Division requested the Deputy Commissioner, North Lakhimpur District to freeze the movable and immovable property of the applicant at her permanent address of village Gagal Dubi, P.O. and P.S. Boginodi, district Lakhimpur. The Director of Postal Services further requested the Superintendent of Posts Offices, Dibrugarh Division to identify the movable and immovable properties of her family and intimate the same to the Deputy Commissioner, North Lakhimpur under intimation to the office of the Director of Postal Services, Arunachal Pradesh, Itanagar."
According to the applicant by letter No.DP/INQ-O6/K. Sonowal/NIg dated 24.08.2011 she was informed of the date for preliminary enquiry as 22.09.2011. Again by letter No.F-2/Naharlagun/Disc/K.Sonowal/TD/09-10 dated 09.02.2012 in which a reference was made of letter No. DP/INQ-06/K. Sonowal/NIg dated 06.02.2012 the enquiry was fixed on 22.02.2012. According to the applicant on this date also authority persuaded her to accept her guilt. According to the applicant she was neither provided with any defence assistant nor she has admitted any charges. The next date was fixed on 28.02.2012. According to the applicant on 03.07.2012 one SW-4 Smt Mitali Bhattacharjee was examined and additional document i.e. Naharlagun treasurer cash book dated 11.09.2009 was exhibited and examined. According to the applicant the Enquiry Officer in a routine manner asked the applicant to cross examine the said SW-4, which she cross examined in a casual manner. According to the applicant the disciplinary authority committed a grave mistake by not allowing the applicant to take a defence assistant. According to the applicant on 03.08.2012 Director Postal Services, Arunachal Pradesh Division, Itanagar relieved the earlier Inquiry Officer Shri Kusheshwar Pandit as being overburdened with other cases ad appointed Sri Rajuzakie Phinyo, SDI, Jairampur Sub Division as the Inquiry Officer.
4. The applicant further submitted by letter No. F-2/Naharlagun/SO/2009- 10 dated 08.11.2012 her suspension was extended by 180 days but the subsistence allowance was not enhanced and in the process the applicant and her children were allowed to suffer from starvation. Under tremendous pressure from the superiors she admitted her guilt and also agreed to pay one lakh as first instalment against the misappropriated Rs.5,38,000/-. The remaining amount was agreed to be paid at the rate of Rs.15000/- per month from her salary with effect from 15.05.2013. Accordingly, Rs.1 lakh was deposited on 24.09.2011. On 15.03.2013 she filed a representation for revocation of suspension as she was under suspension for more than 3 years and the disciplinary authority has not completed her proceedings. She also as advised by the respondent authority agreed to surrender her full salary if her suspension is revoked. Accordingly by letter No. F-2/Naharlagun/SO/2009-10 dated 25.04.2013 the respondent revoked the suspension order dated 18.02.2010 and vide order dated 25.04.2013 transferred the applicant and posted her as Mail P.A, Itanagar HPO, which is according to the applicant a punishment transfer. By letter dated 03.05.2013 she again represented requesting Director Postal services for deduction of Rs. 15,000/- per month from her salary. According to the applicant by letter dated 08.05.2013 and letter dated 10.05.2013 she was informed that hearing of the proceeding was fixed on 17.05.2013 and 18.05.2013. On both days applicant pleaded her guilt and the Inquiry Officer observed that the charged official has admitted all the charges levelled against her. The Director Postal Services vide his letter dated 23.05.2013 asked the Postmaster, Itanagar HPO to recover Rs.15000/- per month from the applicant's pay and other allowances with effect from May, 2013 till adjustment of the misappropriated amount. Ultimately the Inquiry Officer submitted his inquiry report holding the applicant guilty of the charges. The Director Postal Services vide his letter dated 26.09.2013 forwarded the inquiry report asking the applicant to submit her written representation within 15 days. The applicant submitted her written reply on 08.10.2013. The Director, Postal Services, Arunachal Pradesh Division vide his letter No.F- 2/Naharlagun/Disc/K.Sonowal/2009-10 dated 02.12.2013 asked the applicant to deposit the remaining amount of Rs.3,33,000/- within 15 days from the date of receipt of the said letter for finalisation of disciplinary case. The applicant vide her letter dated 09.12.2013 expressed her inability to deposit such amount at a time with further request to consider her case leniently. By letter No.F-2/Naharlagun/Disc/K.Sonowal/2009-10 dated 05.06.2014 most arbitrarily removed the applicant from service with immediate effect.
5. The applicant after receiving the order of removal filed an appeal on 01.07.2014 before the Chief Post Master General, N.E. Circle, Shillong with a prayer to consider the whole case for ends of justice. Pending disposal of the appeal the Director Postal Service, Arunachal Pradesh vide his letter No.D- 2/Allotment/A.P./99/Pt.ll dated 12.08.2014 directed the applicant to vacate the quarter on or before 15.08.2014. According to the applicant the appeal was pending till 10.03.2015. The applicant on 18.10.2014 filed a reminder before the Chief Post Master General, N.E.Circle for early disposal of the matter. According to the applicant finding no response from the appellate authority she filed O.A.No.83/2015 and vide order dated 17.03.2015 the said O.A was disposed of with a direction to dispose of the appeal within a period of two months from the date of receipt copy of the order. The Chief PMG vide his Order No.Staff/109-2/2014 dated 14.05.2015/9.6.2015 rejected the appeal and communicated the same to the applicant. According to the applicant she pleaded her guilt by admitting the charges under tremendous pressure from the authority and she never pleaded her guilt voluntarily. Hence the action taken by the respondents are highly illegal, unjust, unfair and arbitrary and not sustainable in law and as such the impugned order is liable to be set aside and quashed.
6. The respondents tiled written statement and denied all the submissions made by the applicant in this O.A except those specifically admitted or supported by documents. The respondents have admitted that applicant was appointed as Postal Assistant on 27.12.1991 under Arunachal Pradesh Division and her job is transferable all over the postal division after completion of tenure in one place. She was posted at Naharlagun Sub Post Office (S.O) from 31.03.2008 to 10.02.2010 and worked there as Treasurer Postal Assistant (Treasurer PA). Her duty was to maintain office cash, cheque and stamps including other valuables of the office. The surplus cash & cheques of the office are remitted to SBI Naharlagun duly entering in remittance voucher by carbonic process called ACG-13 in triplicate. The total amount remitted through each voucher is also entered in a Register of Bank Remittance called ACG-8. Original copy of that ACG-13 voucher is kept as office record and other two copies are sent to SBI along with cash or cheque. In turn, the third copy of ACG-13 voucher is returned by SBI duly acknowledged the remittance keeping 2nd copy with SBI. This 3rd copy of ACG-13 voucher is sent to Itanagar Head Post Office duly enclosed with office daily account as a proof of bank remittance made by Naharlagun S.O. Between 08.02.2010 to 10.02.2010 Smt Krishna Sonowal had prepared one ACG-13 voucher serial No. 14 duly entered with 3(three) cheques worth Rs.5,80,000/- and another voucher serial No. 19 for cash remittances of Rs.500000/- to SBI Naharlagun Branch and obtained signature of Sub- Postmaster of the office in vouchers. On those days, several ACG-13 vouchers were prepared for making remittance to SBI Naharlagun but clearance was given by SBI on 10.02.2010 only. Smt Krishna Sonowal secretly destroyed ACG-13 voucher No. 19 in which cash Rs.500000/- was entered for remittance to SBI after obtaining signature of Sub-Postmaster Naharlagun in the voucher and pilfered the cash. Other remittance through rest ACG-13 vouchers were deposited in SBI appropriately by Smt Krishna Sonowal on that day. Thereafter, the official made correction furtively. The amount in 3rd copy duly acknowledged by SBI ACG-13 voucher No. 14 of Rs.5,80,000/- changed to Rs. 10,80,000/- by means of eraser smoothly so that the Sub-Postmaster is not able to trace out her misdeed.
Furthermore, as per office order of Director Postal Services, Itanagar Smt Krishna Sonowal had to hand over the charge of Treasurer PA, Naharlagun S.O on 10.02.2010 afternoon to another PA official. But she disappeared after office launch hour and did not attend office next day also keeping herself unauthorisedly absent from duty. Due to her improper activity, all treasury related office records were verified by the Sub-Postmaster with the help of other subordinates and found that, besides stealing cash amount of ACG-13 voucher No. 14 amounting,to Rs.5,00,000/- an additional amount of Rs.38,000/- is also short in her treasury. Therefore, the total misappropriated amount was found as Rs.5,38,000/-.
According to respondents, earlier on 03.07.2007 Smt Krishna Sonowal while holding the charge of Sub-Postmaster Banderdewa S.O she was charge sheeted vide Director of Postal Services, Itanagar Memo No. F- 2/Banderdewa/Disc/06-07 dated 03.07.2007 for committing forgery cases in a number of Post Office Small Savings amounting to Rs. 3.26,297/- during her incumbency there. Afterwards, the official was suspended but the same was revoked after refund of whole defrauded amount.
Again on 11.09.2009 Smt Krishna Sonowal while holding the same charge of Treasurer Naharlagun S.O committed another misappropriation of depositors money Rs. 1,00,000/- by means of closing prematurely one 3 years TD account No. 100128 by falsification which was opened on 25.02.2009 in the name of minor son of Smt Asum Dai. For that reason, Smt Krishna Sonowal was also charge sheeted vide Director of Postal Services, Itanagar Memo No.F- 2/Naharlagun/Disc/TD/09-10 dated 16.09.2011 which is lying un-settled till today.
7. According to the respondents the applicant has doubtful integrity and respondents had no option but to issue charge sheet and started departmental proceeding. According to the respondents the disciplinary authority found the applicant as habitual offender and totally disloyal with doubtful honesty. The respondents controverted the averments made by the applicant in para 4(B) by submitting that the applicant had committed her first scam while she was holding the charge of Sub-Postmaster Banderdewa Post Office from 02.08.2002 to 03.08.2006 and as such she was charge sheeted vide Memo No.F-2/Bahderdewa/Disc/06-07 dated 03.07.2007. The respondents further submitted that she was reinstated after she refunded the misappropriate government money amounting to Rs.3,26,297/- and in support of their contention annexed the above memorandum of charge sheet with the written statement. The respondents also contradicted the averments made by the applicant in para 4(C) of the O.A and submitted that there were two allegations against her while she was working as Naharlagun S.O and not one as she claimed in para 4(C) of the O.A. One was for embezzlement of an amount of Rs.5,38,000/- against which memorandum of charge sheet No.F- 2/Naharlagun/Disc./Sonowal/2009-10 dated 30.03.2010 was issued. According to the respondents she was given second charge sheet at Naharlagun vide Memo No. F-2/Naharlagun/Disc./TDI/09-10 dated 16.09.2011 for committing of misappropriation of Rs.1,00,000/- of a depositor by means of closing one 3 years TD account No. 100128 prematurely by falsification which was opened on 25.02.2009 in the name of minor son of Smt Asum Dai. The respondents also contradicted the submissions made by the applicant in para 4(G). According to the respondents the subsistence allowance was reviewed as per FR 53 (i) (ii) (a) on 27.10.2010, 22.11.2011, 15.05.2012 and 08.11.2012 and the applicant was intimated vide Memo No.F-2/Naharlagun SO/2009-10 on the same dates. The respondents also denied that the Enquiry Officer put pressure on the applicant to accept her guilt during the preliminary enquiry. The respondent further submitted in para 16 of the written statement that if Smt Krishna Sonowal was innocent, why she was unauthorisedly absent from duty on 11.02.2010 and disappeared from her departmental accommodation from evening hours of 10.02.2010 to 11.02.2010 though her residence is in the same boundary of Naharlagun Post Office. She was also apprised of getting Defence Assistant if she desired through letter No.DP/INQ-5/K. Sonowal/NIg dated 09.09.2010 issued by Inquiry Officer. The respondents denied the averments made by the applicant to the effect that she was persuaded to accept the charges. The respondents also elaborated that as per Disciplinary Proceeding rules of Procedure for imposing Major Penalties/Point No. 19(i), (ii), defence assistant is to be arranged by the accused himself/herself under intimation to the disciplinary authority. The respondents further contended that the husband of the applicant is employed in State Bank of India and therefore all submissions made regarding the financial hardship are not correct. Since the applicant was in regular habit of making fraud the reviewing authority did not enhance her subsistence allowance. The respondents also submitted that in her 19 years of regular service the applicant has committed several scams. According to the respondents the submission regarding mental pressure to accept the guilt is baseless. In para 35 of the written statement the respondents submitted as follows:
"That with regard to the averment made in paragraph No.4(EE) of the Original Application, the answering deponent begs to state that there is no connection with in-service mid carrier training and this fraud case. Moreover, Smt Krishna Sonowal had not attended the training programme as stated in this para but submitted wrong information to the Hon'ble Court.'
The respondents further submitted that the refund of Rs. 15000/- per month was her own decision. The respondents directed the whole misappropriated amount be recovered fully. According to the respondents it is crystal clear that the O.A filed by the applicant is liable to be dismissed.
8. In the rejoinder the applicant clarified that she was not posted as Treasurer P.A in the Naharlagun Post office rather she was posted as P.A on official duty. The Postmaster entrusted her duty of treasurer even after there being a special order from the higher authority not to entrust the duty of treasurer to the applicant. The applicant further submitted that Postmaster and the P.A are the joint custodian of cash and other valuables of the post office. Hence for any irregularities and discrepancies in the post office regarding cash both are equally responsible. The applicant denied the contention of the respondents made in para 3(iv) of the written statement and submitted that on 10.02.2010 she handed over the charge of treasurer P.A. She was in the office till 8 P.M. on that day. The applicant however, submitted that on the next day, 11.02.2010 because of her illness she could not come to office but was available in the office quarter, from where she was arrested on 12.02.2010. The applicant was charged for stealing cash amount of Rs.5,00,000/- and an additional amount of Rs.38,000/- which is totally false and fabricated. The applicant submitted that it is true that there was an anomaly of cash during her tenure. But she cannot be held responsible alone as the Postmaster and treasurer both are the joint custodians of the case of the post office. One key of the locker remains with the Postmaster. In response to para 3(v) of the written statement the applicant submitted that after that incident the respondent authorities vide a written office order passed an order not to engage the applicant in any cash related post like treasurer. According to the applicant she was posted at Naharlagun post office as P.A on official duty only. However, the Postmaster engaged her as treasurer purely on temporary measure without any authority from the higher authority. The applicant was also not allowed to draw any special allowances admissible to the treasurer.
9. The applicant denied the averments made in para 3(vi) of the written statement. Applicant, however, submitted that it is true that applicant was. charge sheeted though without any fault on her part. Later the alleged amount was recovered from the savings bank account of P.A and Postmaster. It is stated that the applicant was not the signature verifying authority, she was only payment authority. The Postmaster and P.A are the signature verifying authority. After the verification the applicant had to disburse that amount. The applicant further submitted that several complaints were lodged against the then Director, Postal Services who retired on February, 2015. His pension and other post retirement dues were withheld by the department. According to the applicant departmental enquiry was not conducted as per departmental norms. Tremendous mental pressure was exerted upon the applicant during the inquiry proceeding for admitting the guilt and for recovery of the misappropriate amount from the applicant. The respondents were predetermined to remove the applicant from service. Hence the impugned order removing the applicant from service is liable to be interfered.
10. The applicant controverted the contention of the respondents in para 6 of the written statement and reiterated her statement made in para 4(B) of the O.A. The applicant further submitted that during the year 2002-2006 she had not misappropriated any money as alleged. However, charge sheet was issued to her and alleged amount was recovered from her because she was holding the responsibility of treasurer and the respondent authority threatened her that if she does not admit her guilt and repay misappropriate amount she will be removed from service. The applicant in her rejoinder again reiterated that the respondents had simply extended the period of suspension only after their so called review. The main purpose of review as provided in F.R 53(1) (ii) (a) is not only for extension but also for enhancement of subsistence allowance. The respondent authority failed to consider the provision of F.R 53(1) (ii) (a) in its proper perspective. The applicant was not apprised of the implications of non-availing the assistance of Defence Assistant during the inquiry proceeding. The allegation of escaping from her departmental accommodation from evening hours of 10.02.2010 is totally false and exaggerated. According to the applicant non consideration of enhancement of subsistence allowance by review committee is not tenable in the eye of law. The applicant further submitted that respondent imposed mental pressure upon her to admit her guilt by placing her on suspension for a long period of 38 months. The suspension order was revoked only after her admission of guilt and posted her at Itanagar H.Q. According to the applicant the Postmaster and Treasurer P.A of the post office are the joint custodian of cash and other valuables of the post office. Therefore, the Postmaster is also equally responsible along with the Treasurer P.A. for any embezzlement. But the respondent authorities are trying to impose the whole responsibility only upon the applicant. The applicant further stated that she was repaying the alleged misappropriated amount @ Rs.15000/- per month upto the month of November,2013. By letter No.F-2/Naharlagun/Disc/K.Sonowal/2009-10 dated 2.12.2013 whereby Director Postal Services asked for deposit an amount of Rs.3,33,000/- within 15 days from the date of receipt of the order proves that she has paid Rs.2,05,000/- by the end of November, 2013. Therefore, as on the date of removal she was only liable to pay Rs.2,33,000/-. The applicant reiterated that no charge was proved against her and she has been removed from service on the ground of admission of guilt.
11. Pleadings being complete, the case was heard on 29.08.2017. 12. Learned counsel for the applicant argued variously on the line of various submissions made in the O.A and rejoinder and emphasised that she accepted her guilt under pressure during the enquiry and drew the attention of the Court to the letter No. nil dated 17.07.2010 in which she has denied the charges at the first stage in continuation of her tetter dated 06.05.2010. The learned counsel drew the attention of the Court to the observation of the Hon'ble Gauhati High Court, Agartala Bench in Writ Appeal No. 156 of 2001 In Civil Rule No. 262 of 1992, Manindra Chandra Dhar vs. Tripura Road Transport Corporation and Others and relied on paragraphs 6, 7 and 8 of the judgment, which is extracted below :
"6. In the present case, as indicated above, no written statement of defence, was filed by the appellant after receipt of the memorandum dated 16.6.1990 issued by the Managing Director. Thus, he did not admit any of the articles of charges in his written statement of defence. If that be so, in accordance with Sub-rule (5) of Rule 14 of the Rules, 1965, it was incumbent upon the disciplinary authority to either inquire into the charges himself or to appoint an Inquiry Officer to inquire into the charges.
As a matter of fact, in consonance with the said Sub-rule (5) of the Rule 14 of the Rules, 1965, the disciplinary authority appointed an Inquiring officer to inquire into the Charges but unfortunately, the Inquiring officer instead of inquiring into the charges ex parte or otherwise and recording his findings on the charges on the basis of evidence adduced in such inquiry held the appellant guilty of the charges on the basis of the alleged admission of guilt by the appellant in his preliminary statement before him.
7. We called upon Mr. Debnath to point out the provision in Rule 14 of the Rules, 1965 under which the Inquiring officer has been empowered to record admission or guilt to the charges by an Government servant but Mr. Debnath was unable to point to any such provision in Rule 14 of the Rules, 1965 except the Sub- rule (18) thereof in which it is provided that the Inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. A plain reading of the Sub-rule (18) of Rule 14 of the Rules, 1965 would show that the Inquiring authority has been empowered to question the Government servant "on the circumstanses appearing against him in the evidence" for the purpose of enabling the Government servant to explain any "circumstances appearing in the evidence against him". Thus, only after evidence is adduced and recorded by the Inquiring authority in the inquiry, the Inquiring authority has been empowered to call upon the Government servant to explain the circumstances appearing against him in the evidence and this provision has been made with a view to give an opportunity to such Government servant to explain those circumstances appearing against him in the evidence. In this present case, as indicated above, no evidence was recorded by the Inquiring officer in the inquiry and therefore, the provision in Sub-rule (18) of Rule 14 of the Rules, 1965 was not attracted.
8. Since no inquiry has been held by the Inquiring officer in accordance with Rule 14 of the Rules, 1965 into the articles of charged, he could not have recorded any finding of guilt against the appellant. The report of the Inquiring officer holding the appellant guilty of the charges thus stands vitiated. So also the order of punishment imposed by tile disciplinary authority on the basis of the said report of the Inquiring officer stands vitiated for violation or the provision of Rule 14 of the Rules, 1965. But, on perusal of the impugned judgment and order of the learned Single Judge, we do not find the learned Single Judge has gone into this vital aspect of the case. We, therefore, set aside the impugned judgment of the learned Single Judge as well as the Inquiry report and the order of punishment imposed by the disciplinary authority. It will be open for the disciplinary authority to hold an inquiry in accordance with Rule 14 of the Rules, 1965 against the appellant and pass such order as may be necessary in accordance with the said Rules.’'
13. Learned Addl.C.G.S.C however, during argument vehemently controverted that applicant had rendered her services to the satisfaction of all and drew the attention of the Court to the submission made with regard to the applicant being charge sheeted on earlier occasions also when she was holding the post of Sub-Postmaster, Banderdewa Sub Post Office from 02.08.2002 to 03.08.2006 she was charge sheeted by Director Postal Services, Itanagar by Memo No.F-2/Banderdewa/Disc/06-07 dated 03.07.2007. However, she was retained in service as she deposited Rs.3,26,297/- i.e. the misappropriate Government money. The learned counsel also drew the attention of the Court to Annexure-13 of the O.A. in support of their contention that the applicant was habitual offender and from the letter submitted by the applicant on 15.03.2015, Annexure-13 with the O.A. she herself admitted that she deposited Rs. 100000/- out of Rs.5,38,000/- misappropriate by her and submitted that if she is reinstated she will surrender her salary for repaying Rs.4,38,000/-. The learned counsel also relied on State Bank of India and Others vs. Ramesh Dinkar Punde. (2006) 7 SCC 212 and specifically relied on para 16 of the judgment, which is extracted below :
"16. In Union of India v. Parma Nanda it is held at SCC p. 189, para 27 as under:
27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose pena ty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
and emphasised that the Tribunal has no power to decide the quantum of punishment which remains in the jurisdiction of the disciplinary authority or appellate authority, so long as the decision has been taken as per rules and is not arbitrary or utterly perverted. The learned counsel for the applicant however, controverted the argument made by the learned Addl.C.G.S.C for the respondents on the basis of State Bank of India and Others vs. Ramesh Dinkar Punde (supra) by submitting that the present case is not covered by this decision as the punishment is not based only admission of guilt by the applicant.
14. In view of the above submissions made by rival parties, pleadings and materials on record following observations can be made.
(i) The applicant was served with Memo of Charges by letter No.F- 2/Naharlagun/Disc/K.Sonowal/2009-10 dated 30.03.2010 which has been acknowledged by the applicant by letter dated 06.05.2010. The same is extracted below:
The Director Postal Service Arunachal Pradesh Division Itnagar- 791111.
Sub: Prayer for extension of time.
With reference to your vide office memo No. F2/Naharlagun/Disc/K Sonowal/2009-10, dated 30/03/2010,1 beg to submit as under for your kind consideration and necessary action, please.
That sir, it is worth mentioning that I have been under going medical treatment for last two months. As such though I got received your aforesaid office Memorandum dated 03/03/2010 on 27/04/2010, however I could not prepare for written statement as sought by you due to my critical health condition.
Therefore, in view of above, it is humbly prayed that your honour may kindly be pleased to consider my case, and accordingly I may be granted another 10(ten) days to comply your order and submit my written statement in the interest of justice.
And this act of grace I shall be highly obliged.
Place: Naharlagan Dated: 6/5/2010
Yours faithfully Sd/-
Smti. Krishna Sonowal P.A. Nagarlagun SO.'
From the above it is clear that while the applicant was directed to submit her written statement within 10 days, however, on the basis of her letter it can be assumed that she received the above communication late on 27.04.2010 and sought for 10 days time which was allowed by the authority vide letter No. F- 2/Naharlagun SO/2009-2010 dated 01.07.2010, which is extracted below :
" Office of the Director of Postal Services Arunachal Pradesh Division. Itanaaar - 791111 No: F-2/Naharlagun SO/2009-2010 Dated at Itanagar, the 1st July’ 2010
Smti Krishna Sonowal
Postal Assistant (under suspension)
Sub: Regarding extension for submission of representation i/c/w Rule-14 charge sheet issued dated 30.03.2010.
Ref: Your letter dated 06.05.2010.
On the captioned subject with reference to your letter referred above, you are hereby allowed 10 (ten) days extension for submitting your written representation i/c/w Rule-14 charge sheet issued vide this office memo no. F-2/Naharlagun/Disc/K. Sonowal/2009-10 dated 30.03.2010.
(C.L. Lalfakzuala) Director of Postal Services Arunachal Pradesh Division ltanagar-791 111."
The applicant however, received extension of time late and vide her letter dated 17.07.2010 she denied the charges levelled against her by a small cryptic letter, which is reproduced below:
Postal Services of
Arunachal Pradesh Division, Itanagar
Sub: Representation l/C/W Rule-14 Charges Sheet issued dtd 30/03/2010
Ref: Your letter dated 06/05/2010 Sir,
I have the honour to apprise your good self that herewith submitting some facts for your needful action
That sir, I am rendering my services honestly since date of joining in this Department.
That I have never violated any rules and I am denying all the charges levelled against me as per your letter under reference.
That I shall submitting my defense statement while I shall be appear before enquiry committee in person. I don't accept charges against me since I don't have any access to the documentary evidence.
This is for favour of your kind information and necessary action please.
(Smty Krishna Sonowal) Postal Assistant, Naharlagun S/O, U/s."
From the above correspondences it can safely be assumed that the applicant was provided sufficient time.
15. The letter No.DP/INQ-5/K/Sonowal/Nlg dated 09.09.2010 is also
"DEPARTMENT OF POSTS: INDIA O/o. The Asstt. Supdt. Of Post Offices, West Sub-Division, ITANAGAR -791111.
NO.DP/INQ-5/K. Sonwal/NIg Dated-09-09-2010
Smt. Krishna Sonowal PA (Under Suspens
Please Login To View The Full Judgment!
ion) Naharlagun - 791110. Sub- Departmental inquiry under Rule-14 of the CCS.(CCA) rules, 1965 against Smt. Krishna Sonowal PA, Naharlagun SO. Under his order no. F-2/Naharlagun/Disc/K. Sonwal/2009-10 dated 13-07-2010 copy of which has been endorsed to you also, the DPS, Itanagar has appointed to me as the inquiry authority to inquire into the charges framed against you vide his memo no. F-2/Naharlagun/Disc/K. Sonwa/2009-10 dated 30-03-2010. 2) I shall hold Preliminary hearing in the case on Thursday the 30th September/2010 in my office at D Sector, Postal colony, Itanagar at 1100 hours. You are therefore, requested to attend in the proceedings either alone or accompanied by your Defence Assistant on the appointed date, time and place failing which the proceedings shall be held 'ex-parte'. 3) Instructions for getting your Defence Assistant relieved will be issued if his particulars and willingness to work as such along with the particulars of his controlling authority are received by me before 21-09-2010. Yours faithfully, Sd/- (K.Pandit) IO.& ASPO’s West Sub-Division ltanagar-791 111." (emphasis supplied) In which it is clear that charged officer was given ample opportunity to engage defence assistant. In para 3 of the above letter it has also been clearly mentioned that the appointment of defence assistant will be issued once his particulars and willingness are received by the Enquiry Officer. Thus the contention of the applicant that defence assistant was not provided to her or she was not aware of is not borne out by records. The applicant along with her O.A has filed Annexure-17, 18 and 20, from which the details of daily order sheets of the enquiry can be made out. Annexure-20 is the compilation of the Enquiry report. From the perusal of the enquiry report it can safely be concluded that the Enquiry Officer has taken note of the documents, the case of the presenting officer, case of the charged officer, analysed the documents and evidence of witness are taken into consideration while finalising the report. 16. In view of the fact that the applicant admitted the charges and did not avail of the opportunity to cross examine the witnesses it will be difficult to take her contention on the face value that applicant was not given sufficient opportunity. In her rejoinder in para 7 she did not controvert the submission made by the respondents in para 3(v) with regard to misappropriation of Rs.3,26,297/- while she was posted as Sub-Postmaster, Banderdewa Sub Post Office and the suspension was revoked on making good the frauded amount. The following statement of the applicant in the rejoinder para 7 is specifically taken note by the Court in support of the respondents contention that the applicant is habitual offender. " After the said incident the respondent authorities vide a written office order/instruction passed an order not engage the applicant in any cash related post like treasurer " 17. From the perusal of the enquiry report as made available by the applicant as Annexure-20 the Court does not find merit in the contention of the learned counsel for the applicant that the applicant should get the benefit of the observations of the Hon'ble High Court in Writ Appeal No.156 of 2001 in Civil Rule No. 262 of 1992, Manindra Chandra Dhar vs. Tripura Road Transport Corporation and Others (supra). 18. This court find enough merit in the submissions of the respondents and also agrees with the learned Addl.C.G.S.C that as per observation of the Hon'ble Apex Court in State Bank of India and Others vs. Ramesh Dinkar Punde (supra) this Court cannot go into the quantum of punishment and also that the applicant has been serial offender and been found guilty of misappropriating Government cash. 19. In view of the above observation, the O.A is found to be wanting in merits, both in matters of fact as well as of law and accordingly is dismissed. No order as to costs.