HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1373 OF 2001 Pritam Singh Petitioners Secretary to Govt. of Indian Union and others Respondent !Mr. P.S. Bhardwaj, Advocate ^Mrs. K.K. Pangotra, ASGI Honble Mr. Justice Hasnain MassodI, Judge Date: 18.09.2010 :J U D G M E N T :
The petitioner was appointed as Extra Departmental Runner (EDR) on 6th of
October 1982 and promoted as Extra Departmental Branch Post Master (EDBPM)
on 07.12.1984 for Post Office Jigni Coal Mines, Kalakote. The Post Office was
inspected by Shri T.R. Anand, Assistant Superintendent of Post Office on 17th
December 1991. Shri Anand, on inspection, found the petitioner to have failed to
make certain entries in the Post Office Book in respect of money transactions and to
have withheld certain amounts, received from the customers. The petitioner was
put off the duties by Shri T.R. Anand with effect from 17.12.1991 and the action
was confirmed by Senior Superintendent of Post Offices, Jammu Division vide
Memo No.ED-613 dated 13th March 1992. The petitioner was relieved from the
charge of EDBPM and the charge handed over to one Shri Raj Kumar, EDR. The
respondents, after lull of a few years, served a formal charge sheet on the petitioner
on 27th of January 1997. The articles of charge were communicated to the petitioner
and an Inquiry Officer appointed to conduct disciplinary proceedings against
petitioner. The Inquiry Officer, after recording statement of as many as 12
witnesses as also witnesses examined by the petitioner in his defence, found the
charges to have been established against the petitioner. The Senior Superintendent
of Post Office Jammu Division recorded agreement with the findings of the Inquiry
Officer and vide Memo No.F6/52/91 dated 14.5.1998, imposed penalty of removal
from service on the petitioner. The petitioner, as provided under Extra
Departmental Agents (Conduct & Service) Rules 1974, preferred an appeal against
order dated 14.5.1998 before Chief Post Master General, J&K. The appeal received
on 18th February 2000 appears to have not been entertained and dealt with on the
ground that it was not filed within three months i.e., period prescribed under Extra
Department Agents (Conduct & Service) Rules 1974.
The petitioner, through medium of present writ petition, seeks quashment of
order memo No.F6/52/91 dated 14.5.1998. The petitioner, not aware of outcome
of appeal, preferred against the aforementioned order, has expressed his inability to
take a stand in respect thereof. The petitioner in alternative seeks any other writ
order or direction as the Court may deem fit in the circumstances of the case.
The petitioners case is that the petitioner was taken ill in 1991 and duly
applied for grant of medical leave; that the respondents did not sanction leave in
favour of the petitioner, coercing the petitioner to render his duties as Extra
Departmental Branch Post Manager while suffering from disease diagnosed by
Doctors as maniac depression psychosis and behavioral disorder. It is pleaded
that the lapses committed by the petitioner during the period May to December
1991, were attributable to the mental disorder suffered by the petitioner. The
petitioner, to establish his bonafides, claims to have deposited the amount withheld,
immediately after it was detected on inspection by Assistant Superintendent of Post
Office on 17th December 1991. The petitioner assails the order dated 14th May
1998 on the ground that no inquiry was conducted with effect from 17th December
1991 i.e., the date the petitioner was put off the duty till charge sheet was served
on the petitioner on 27.01.1997. The charge sheet, according to the petitioner, is
liable to be quashed on this ground alone. It is next pleaded that the petitioner was
not allowed assistance of an Advocate during departmental inquiry and thus denied
a reasonable opportunity to contest the charge sheet. The petitioner also disputes
authority and competence of T.R. Anand, Assistant Superintendent, Police Office,
Jammu, to put off the duty/suspend the petitioner. The petitioner complains that
the petitioner was neither supplied the documents relied upon nor allowed to inspect
the records, so as to enable the petitioner to organize his defence. It is next urged
that the order, impugned in the petition, is not based on the evidence adduced
before the Inquiry Officer. The petitioner has taken pains to give a detailed account
of the evidence adduced in support of the charges and the evidence adduced by the
petitioner in defence, to substantiate his stand that the Inquiry Officer did not make
proper appreciation of the evidence produced before him. The next grievance of the
petitioner, as stated earlier, is that the appeal preferred by the petitioner on 25th of
August 1998 against impugned order dated 14.5.1998, has not been decided by the
Appellate Authority and the repeated reminders made by the petitioner, referred to
in Para XI of the petition, have had no effect on the Appellate Authority.
The respondents, in their objection reply, have questioned maintainability
of the petition on the ground that the questions of fact were intended to be raised in
the petition. The respondents, admitting that the charge was served a few years
after the occurrence, have referred to the evidence recorded by the Inquiry Officer,
to substantiate that all the articles of charge were proved against the petitioner. The
respondents insist that the inquiry was conducted strictly in accordance with rules
and adequate opportunity was given to the petitioner to disprove the charges leveled
against him. It is pleaded that the petitioner participated in the inquiry with the
assistance of his Defence Assistant and that the petitioner was furnished copy of
inquiry report and the petitioner submitted his reply on 24th of March 2002,
whereafter order imposing penalty of removal from service on the petitioner was
passed.
Heard and considered.
The order dated 14th May 1998 is appealable under Extra Departmental
Agents (Conduct & Service) Rules 1964. The Rules provide for an appeal against
order like subject matter of the present writ petition. In terms of Rule 11 of the
Rules, such appeal is to be filed before Chief Post Master General. The petitioner,
as mentioned above, filed appeal against order dated 14th May 1998 on 25.8.1998
i.e., a few days after time prescribed under Rule 11 elapsed/came to end.
Respondents, in their reply, have admitted that appeal was filed against order dated
14th May 1998 by the petitioner. The respondents, however, plead that the appeal
was received in the office of Chief Post Master General, J&K, on 18th February
2000. The reply objections as a matter of fact refer to a reminder received by
respondent No.2 and not the original appeal preferred on 25th of August 1998. The
reply does not make mention of the appeal dated 25th of August 1998, forwarded
vide Speed Post Parcel No.AD 2/41 dated 26th August 1998. The respondents have
merely stated that the appeal was not filed within three months as required in terms
of Rule 11. The respondents neither in para vii nor in para xi of the reply, plead
that the appeal was dealt with by the Appellate Authority. The Appellate Authority
even where appeal is preferred, after prescribed period is over, is required to pass
formal order dismissing appeal as time barred. The Appellate Authority may on
consideration of the grounds taken in the appeal and the issues sought to be raised,
entertain an appeal even after the period of appeal is over. The Appellate Authority
in the circumstances has to look into appeal and not to refuse to even touch the
appeal, let alone go through grounds urged in the appeal, to assess whether any
important issues are raised. In the present case the Appellate Authority has not even
looked at the appeal and failed to pass an order, dismissing the appeal as time
barred or otherwise. In such a situation, appellant is not in a position to know the
reasons, for which appeal was dismissed or to know how grounds set out in the
appeal, were dealt with by the Appellate Authority. In absence of such information
the appellant is deprived of right to question the order of Appellate Authority
through appropriate proceedings. In the present case as pointed out earlier, no order
has been passed by the Appellate Authority on the appeal admittedly received from
the appellant. Though Rule 11 provided an equally efficacious remedy to the
petitioner to question order, forming subject matter of the present petition, yet the
respondents have practically denied the petitioner such right.
It is the Appellate Authority that in the event the appeal was entertained,
would have been in a better position to deal with the grounds set up in the petition
and earlier in memo of appeal. It is for the Appellate Authority to hold opine
whether the petitioner was entitled to service of legal assistance as laid down in
Mohan Chandran and others Vs. Union of India & others (1986 (1) SLR 84 (MP) or
whether because of delay in service of charge sheet, disciplinary proceedings were
vitiated as held in Subhash Chand Basu Vs. Bank of Baroda, (1991 (SLR)
38(Calcutta); State of MP Vs Bani Singh and another (1990 (2) SLR 798).
Again it is for the Appellate Authority to return finding on the plea that due
to non-supply of copy of documents relied upon and non-inspection of records,
prejudice was caused to the petitioner as held in Nathu Singh Vs Rajasthan SRTC
and others (1988 (6) SLR 754 (Rajasthan), or whether the suspension order was
ineffective because of it not having been confirmed within 15 days from the date it
was made, as held in Shambu Nath Panda Vs Union of India and others (1987(1)
SLR 741).
For the reasons discussed, the Appellate Authority Chief Post Master
General, J&K, is directed to deal with and pass orders warranted under law on the
appeal, preferred by the appellant on 25th of August 1998. Having regard to the fact
that the grievance of the petitioner has gone unaddressed for last ten years, the
Appellate Authority shall as far as possible, decide the appeal within two weeks
from the date, copy of the order is made available to the Appellate Authority.
Writ petition is disposed of, accordingly.
( Hasnain Massodi )
Judge
Jammu
18/09/2010
Ajaz Ahmad
