Om Prakash VII, Member (J)
1. Shri Karunesh Kumar Tripathi, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed by the applicant seeking following relief:
“i. To set aside the orders dated 01.04.2010 passed by respondent no. 2 (Annexure A-2), 10.09.2009 passed by respondent no. 3 (Annexure A-1).
ii. A suitable order or direction commanding the respondents to reinstate the service of the applicant on the post of GDS Branch Postmaster, Chanehti Branch Post Office, Bareilly and to grant him consequential benefit to the applicant.
iii. Any other order or direction as the Hon’ble Tribunal may deem fit and proper in the circumstances of the cae in favour of the applicant.
iv. Award cost of this application to the applicant.”
3. A synopsis of the controversy prevailing in the instant case is that the applicant is aggrieved by the order dated 10.09.2009 passed by the respondent no. 3 whereby the applicant has been removed from service. Similarly, the applicant is also aggrieved by the order dated 01.04.2010 passed by the respondent no. 2 by way of which applicant’s appeal against order dated 10.09.2009 was rejected by the appellate authority. Vide the instant OA, the applicant seeks quashing of the aforesaid orders thereby directing the respondents to reinstate him with all consequential benefits.
4. We have heard the learned counsels for the parties and gone through the records.
5. Disclosing a brief history of the case, learned counsel for the applicant submitted that the applicant was initially appointed on the post of Branch Postmaster on 24.07.1983 in the respondents department. On 13.05.2008, a charge sheet was issued against the applicant with the prime allegation of misappropriation of government money to the tune of Rs. 13,500/- to which the applicant submitted his reply on 21.05.2008 denying the charges. Inquiry was conducted in the matter and inquiry report was submitted on 20.09.2008 subsequent to which a show cause notice dated 22.09.2008 was issued to the applicant to which applicant submitted his reply on 10.10.2008. Learned counsel argued that on 27.10.2008, punishment was imposed upon the applicant whereby he was debarred from appearing in the departmental examination for a period of three years along with a recovery of Rs. 7,450/- to be done from him.
6. Learned counsel for the applicant further argued that a certain punishment was imposed upon the applicant vide order dated 27.10.2008. However, again on 29.01.2008, a show cause notice was issued to the applicant to enhance the punishment to “removal from service”. Applicant submitted his reply on 12.02.2009 but without considering the same, the respondents went ahead and passed the order dated 10.09.2009 thereby enhancing the punishment to removal from service. Applicant preferred an appeal against the order dated 10.09.2009 but the same got rejected vide order dated 01.04.2010. Learned counsel further argued that the orders dated 10.09.2009 and 01.04.2010 are wholly illegal and arbitrary especially because the amount of Rs. 13,500/- has already been deposited by the applicant. Thus, prayer was made to quash the aforesaid orders thereby granting all the consequential benefits to the applicant.
7. Learned counsel for the respondents vehemently opposed the prayer of the applicant’s counsel and by way of the counter affidavit, he argued that the applicant was charged with misappropriation of the government money to the tune of Rs. 13,500/-. He received an amount of Rs. 13,500/- from one Smt Nanhi Devi to be deposited in her account. But the applicant did not deposit the said amount into her account and instead used it in his own interest. It was only during the course of inquiry that the applicant deposited the amount of Rs. 13500/- under the Head of Unclassified Receipt dated 18.08.2007 with the Head Post Office Bareilly. Learned counsel further argued that the applicant has himself accepted to the charges of misappropriation done by him. Accordingly, a punishment of debarment from departmental examination along with a recovery of Rs. 7,450/- was imposed upon him vide order dated 27.10.2008. Learned counsel further argued that in exercise of powers vested under Rule 19 of GDS (Conduct and Employment) Rules, 2001, the respondents reassessed the offence of the applicant and issued a fresh show cause notice. Later, vide order dated 10.09.2009, punishment imposed upon the applicant earlier was enhanced to “removal from service”. Learned counsel argued that this was done because the competent authority was of the view that the punishment earlier imposed upon the applicant was not commensurate to the gravity of the charges established against the applicant and therefore enhancement of the punishment was necessary and no illegality or infirmity can be attributed to the said action of the respondents.
8. Rejoinder has been filed by the applicant reiterating the facts as have been mentioned in the OA.
9. We have considered the rival contentions advanced by the learned counsel appearing for the parties and gone through the documents on record.
10. As the facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. It is an admitted fact that the applicant had himself accepted the charges leveled against him which implies that the punishment which was imposed upon the applicant vide order dated 27.10.2008 was sufficient as it was imposed consequent to the inquiry conducted by the inquiry officer. However, the aforesaid punishment was enhanced to “removal from service” vide order dated 10.09.2009. What’s need to be examined is what factors compelled the respondents to enhance the punishment already imposed upon the applicant. Admittedly, the applicant was charged with misappropriation of the amount to the tune of Rs. 13,500/-. Since the applicant’s counsel as well as the respondents, both have admitted the fact that during the course of inquiry, the applicant had deposited the amount. When a certain order was already passed consequent to which a certain recovery was imposed upon the applicant, there was little or no need for the respondents to have issued another punishment order as that would have amounted to double jeopardy upon the applicant. However, the same was done and the earlier punishment of debarring the applicant from participating in departmental examinations along with imposing a certain recovery upon him was enhanced to the severe punishment of removal from service. Even if it is assumed that the punishment imposed earlier was not commensurate to the gravity of the charges established against the applicant and that the said punishment was required to be enhanced, it was incumbent upon the respondents’ authorities to have recorded sufficient and cogent reasons for the enhancement of the punishment. A perusal of the order dated 10.09.2009 reveals that no such reasons have been afforded by the respondents which may establish as to what led to the revision / enhancement of the punishment. The order dated 10.09.2009 simply says that the applicant “has failed to putforth any convincing argument to rebut the charges leveled against him in his competent disciplinary authority i.e. SSPOs Bareilly vide memo dated 27.10.2008 is not commensurate with the gravity of charges leveled against Shri Mobin Mian, GDS BPM Chanehti, Bareilly. Therefore, I hereby order that the punishment of debarring from departmental examination of Postman / PA cadre for three years and recovery of Rs. 7450/- imposed upon Shri Mobin Mian be enhanced to that of “Removal from Service” with immediate effect.” The preceding quotation clearly reveals that no cogent justification was afforded by the respondents for enhancing the punishment imposed upon the applicant earlier.
11. In view of the aforesaid deliberations, this Tribunal is of the considered opinion that when a punishment was already imposed upon the applicant, there was no requirement to issue fresh punishment. The punishment imposed earlier pertained to debarment from sitting in departmental examination and recovery of a certain amount. That was enhanced to a severe punishment of removal from service. This exercise committed on the part of the respondents was absolutely unnecessary and uncalled for especially considering the fact that no cogent reasons were afforded for enhancing the punishment. Thus, the instant original application is liable to be allowed and is accordingly, allowed. Impugned orders dated 10.09.2009 and 01.04.2010 are hereby quashed and set aside. As the applicant’s date of birth is 01.01.1955, the applicant has already attained the age of superannuation in the year 2015 and thus he would have retired from service in 2015 itself. Thus, respondents are further directed to grant him back wages along with all the retiral and post-retiral benefits that would have accrued had the impugned orders never been passed. The above exercise must be completed within a period of four months from the date of receipt of certified copy of this order.
12. All associated MAs stand disposed of. No costs.
