Swarup Kumar Mishra ORDER
Swarup Kumar Mishra, Member (J)
1. The applicant challenging the order of punishment dated 09.10.2019 (Annexure A/11) reducing her pay by one stage from Rs. 28,700 to Rs. 27,900 for a period of two months with immediate effect and rejection of her appeal vide order dated 17.03.2020 (Annexure A/14) upholding the punishment has filed this OA praying for following reliefs:
a) To set aside the chargesheet No. K3/IV/07/2019 dated 01.08.2019, order of punishment no. No. K3/INV/07/2019 dated 09.10.2019 and appellate order no. INV/51-24/2019 dated 17.03.2020.
b) And pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case with costs.
2. Heard both sides and perused the records.
3. It is the stand of the learned counsel for the applicant that the applicant had done her duty as per provisions of Speed Post Operational Manual issued by the Postal Directorate dated 03.03.2011. He submitted that the applicant being posted at NSH Bhubaneswar, which deals only with speed posts, and the office being computerized there is no provisions of maintaining registers or following Rule 67 and Rule 80 of Postal Manual, which is for normal and other posts not speed posts. He further submitted that the applicant after receiving charge memo had asked for few documents but which were not supplied to her on flimsy grounds thus prejudicing her in the proceeding. Therefore the charge sheet being vague and punishment order as well as order of appellate being violative of principle of natural justice is bad in law, therefore they are liable to be set aside.
4. Respondents, on other hand, submitted that the applicant had been careless while performing her duty and that the applicant should have effected the transfer of bag/article through an error entry in register or hand to hand receipt book, her not doing so resulted in the speed post article going missing and recovered from a bag labeled to Pathankot NSH by Delhi RMS. The respondents submitted that documents which were available and relevant to the case were allowed to the applicant and both the disciplinary as well as appellate authority after going through all records, defence representation of the applicant imposed/upheld the punishment on applicant.
5. The applicant was served charge memo dated 01.08.2019 with following statement of imputations:
Ms. Jyotirmayee Panda, Sorting Assistant, NSH Bhubaneswar under O/o the SRO RMS 'N' Division, Bhubaneswar was arranged for working as Sorting Assistant, NSH Bhubaneswar/1 on 29.07.2019. On that day she had received one loose Speed Post article No. EO433999081IN in her set NSH Bhubaneswar/1 from NSH Bhubaneswar/3 dated 28/29.07.2019 (night set). Ms. Panda after completion of sorting work prepared one SP bag No-EBO11743314 (meant for dispatch to New Delhi NSH) in which the above said article with entry at Sl 18/36 in the speed post manifest dated 29.07.2019 was enclosed. Enquiry made into this case further revealed that Ms. Panda had prepared the said SP bag containing the said article but had not made over the SP bag No. EB00011743314 to HSA, NSH Bhubaneswar/1 on 29.07.2019 for its onward transmission to the destination station as required under the provision of Rule 67 of Postal Manual Volume-VII read with Rule 80 of the said manual. Consequently the disposal of the said article as well as the SP Bag No. EBO0011743314 could not be traced out in the set on the same date or on subsequent dates. Further enquiry into the case revealed that the said SP Bag was transmitted up to Delhi point via N 25 section instead of airlift without any record maintained en route till it was opened at New Delhi NSH on 31.07.2019 i.e. after 02 days.
Thus it is imputed that said Ms. Jyotirmayee Panda by not discharging her duties had not only violated rules of the Postal Manual afore noted but also had failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a government servant in violation of Rule 3(1)(ii) & Rule 3(1)(iii) of CCS (Conduct) Rules 1964.
6. The whole set and substance of the imputations made against the applicant is that she had not made over the SP bag No. EB00011743314 to HSA, NSH Bhubaneswar/1 on 29.07.2019 for its onward transmission to the destination station i.e. NSH, New Delhi. But however it is seen from Annexure A/1 that the said article was enclosed in SP Bag No. EB00011743314 was sent to Bhubaneswar NSH on 28.07.2019, however the said bag instead of being sent by air to New Delhi was sent to Bhubaneswar RMS by Bhubaneswar NSH and from there it was sent to New Delhi by train. The respondents in their counter submitted that the applicant in her appeal had stated that she had handed over the speed post bag to Head Sorting Assistant for dispatching it to the AP TMO and the bag was returned by airlines but she did not provide any proof for that. From the speed post tracking vide Annexure A/12 it is seen that NSH Bhubaneswar indeed received and sent the article to New Delhi NSH on 29.07.2019 at 9.38 am but thereafter it was sent to Bhubaneswar RMS. Why the article was sent back to Bhubaneswar RMS instead of being sent by air is something that the respondent department could have found out. The claim of the applicant that due to forbidden items the article might have been returned by airlines and sent by rail could have been found out by the department instead of putting out the onus of producing proof on the applicant. It is also evident from Annexure A/15 that the said article bearing no. EO433999081IN was put in bag number EB0011743314 and closed for New Delhi NSH. When the proof of the bag being received by Bhubaneswar NSH is fully evident from the tracking record, this Tribunal is at loss to understand how the fault of the applicant has been proved by the department.
7. The 2nd set of charge against the applicant was she not following the provision of rule 67 of postal manual volume VII read with Rule 80 the said Manual. However it is seen that vide postal directorate letter dated 03.03.2011, the whole gamut of operation in speed posts has been brought under Speed Post Operational Manual wherein it has been mentioned that the speed post manual shall become the single source of information/reference document for handling of speed post article. Therefore, the said charge leveled against the applicant falls flat on the face of record.
8. This Tribunal is well aware of its limited scope of interference in disciplinary proceedings as held by numerous judicial pronouncements. In the case of Union of India Vs. P. Gunasekhran MANU/SC/1068/2014 : 2015 (2) SCC page 610, Hon'ble Supreme Court has held as under:'
".......In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a) The enquiry is held by a competent authority;
b) The enquiry is held according to the procedure prescribed in that behalf;
c) There is violation of the principles of natural justice in conducting the proceedings;
d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced he finding;
i) The finding of fact is based on no evidence."
9. In the present case, it is seen that the authorities while imposing the punishment as well as considering the appeal of the applicant did not take into consideration the speed post tracking (Annexure A/12) into record, which was available to them easily, thus disabling themselves from reaching a fair conclusions. They also did not take into consideration when the applicant pointed it out in her appeal, thus have failed to look into an admissible and material evidence in proper perspective, which is apparent on face of record. Thereby the respondents, reached at a faulty conclusion of finding the applicant at fault, when she wasn't. Non supply of documents to the applicant also is one vital factor, prejudicing and depriving her of the opportunity of defending her, also vitiated the entire proceeding. Therefore the impugned orders dated 09.10.2019 & 17.03.2020 are accordingly quashed and set aside. Ordered accordingly.
10. The OA is allowed but in the circumstances without any order to cost.
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