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2017 Supreme(Bom) 2158
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Vasanti A. Naik, V.M. Deshpande, JJ.
Union of India - Appellant
Vs.
Prabhu Diwan Lute - Respondent
Writ Petition No. 4274 of 2007
Decided On : 10-02-2017
Advocate Appeared:
For the Appellant : Dr. R.S. Sundaram
For the Respondent: Shri R.K. Shrivastava
Headnote:Gramin Dak Sevak Rules-Rule 5-Constitution of India, Article 311-Removal from service.- Disciplinary authority has jurisdiction to differ with reasons from Enquiry Officer.
The disagreement note is also available on record at Annexure F. The perusal of the said note shows that the Disciplinary Authority has given detailed reasons as to why it wished to take a different view than the findings recorded by the Enquiry Officer. Surely the Disciplinary Authority was well within its jurisdiction to differ by recording the cogent reasons for the said.
Gramin Dak Sevak Rules -Rule 5-Constitution of India, Article 311-Removal from service.- Removal of employee from post of EDBPM on ground of contravention of EDA Rules, 1964 justified.
In the present case, according to the Members of the Tribunal, there is a delay of almost two years in respect of the disagreement note from the date of the enquiry report. The copy of the original application filed before the Tribunal is available on record and it is at Annexure-B to the present writ petition. Perusal of the grounds raised in the said original application show that it is conspicuously absent in respect of the ground of delay caused by the Disciplinary Authority for issuing the disagreement note. Further from the tenor of the impugned judgment, it is clear that the respondent herein was unable to point out any prejudice before the Tribunal in that behalf.
It was not the case of the respondent that for no reasons the Disciplinary Authority failed to take immediate decision about the disagreement causing a serious prejudice to the respondent.
The Members of the Tribunal have completely failed to consider the aspect of prejudice. Of course, the delay is an important aspect, however, for that, the delinquent must be able to show that such delay has caused prejudice to him, then only, the delay in recording the disagreement note shall be fatal to the employer. Even otherwise according to Court the delay is not much.
In the present case, since either before the Tribunal or before the Court the respondent was unable to point out that any prejudice was caused to him, in Court`s view, the reasonings, as recorded by the Tribunal, are required to be set aside.
Gramin Dak Sevak Rules -Rule 5-Constitution of India, Article 311-Removal from service.- Where employee admitted his guilt and deposited amount of depositors, illegally withdrawn by him therefore removal of employee from service justified.
V.M. Deshpande, J.
The Postal Department of Union of India is before this Court in the present writ petition, thereby the Department challenges the judgment and order dated 20.3.2007 passed by the learned Members of the Central Administrative Tribunal, Nagpur Bench in Original Application No.2001/2005. By the said judgment and order, the Tribunal set aside the order of punishment imposed by the Disciplinary Authority and the respondent - original applicant before the Tribunal was directed to be reinstated in service forthwith with all consequential benefits including the back wages and seniority.
2. This Court admitted the present writ petition on 25.11.2008 and also granted the interim relief in favour of the petitioners in the writ petition.
Facts :
3. The respondent was appointed as an Extra Departmental Postal Assistant (EDPA) on 10.9.1975. He was promoted as an Extra Departmental Branch Post Master on 15.9.1985 and in the said capacity he was posted at Amgaon Dighori Branch Post Office. On 15.9.1997 in contemplation with the departmental action, in accordance with the Rules, he was placed under put off duty w.e.f. 15.9.1997.
4. On 17.2.1998 the Senior Superintendent of Post Office, Nagpur (Rural) Nagpur issued chargesheet against the respondent vide chargesheet No.F4/4/D/P.D.L/9798. The chargesheet was issued under Rule 8 of E.D.A. (Conduct and Service) Rules, 1964.
5. An Enquiry Officer was appointed by the Authority to hold and conduct the departmental enquiry against the respondent and also appointed Presenting Officer.
6. The respondent denied the charges. The respondent was duly represented in the departmental enquiry by his defence assistant. The Enquiry Officer submitted his report on 6.7.1999 thereby recorded a finding that the charges levelled against the petitioner were not proved.
7. The Disciplinary Authority disagreed with the findings recorded by the Enquiry Officer by its disagreement note dated 3.4.2001. The said detailed note was furnished to the respondent along with the copy of the enquiry report. The respondent was also given an opportunity to make representation in respect of the report of the Enquiry Officer and the disagreement note. The said opportunity was availed by the respondent. The Disciplinary Authority vide order dated 26.9.2002 by virtue of powers vested in it under Rule 3A of E.D.A. (Conduct and Service) Rules 1964, revised Rule 5 of G.D.S. (Conduct and Employment) Rules, 2001 ordered that the respondent be removed from the post of EDBPM, Amgaon Dighori.
8. The respondent preferred statutory appeal before the Appellate Authority and the Appellate Authority vide its order dated 8.9.2004 dismissed the appeal.
9. That gives rise to the filing of Original Application No.2001/2005 by the respondent before the Central Administrative Tribunal. The said application was contested by the petitioners herein. The learned Members of the Tribunal vide judgment and order dated 20.3.2007 allowed the original application on the ground that the Disciplinary Authority took unreasonable time of almost two years for disagreeing with the findings of the Enquiry Officer and also on the ground that the statements recorded in the preliminary enquiry were not supplied. Hence, this writ petition.
Submissions :
10. We have heard Dr. Shri R.S. Sundaram for the petitioners and Shri R.K. Shrivastava for the respondent.
11. According to the learned Counsel for the petitioners, the finding recorded by the learned Members of the Tribunal that no personal hearing was given to the respondent is contrary to the Rules. What is required is only to give an opportunity to the respondent to make a representation in respect to the disagreement note. He submitted that the disagreement note was supplied along with the copy of the enquiry report to the respondent. The respondent, according to the learned Counsel for the petitioners, availed the opportunity to make the representation and submitted his detailed representation.
12. The lear
