ORDER

This writ petition is filed by the unsuccessful applicant before the Central Administrative Tribunal, Bangalore Bench, Bangalore (hereinafter referred to as 'the Tribunal' for short) in Original Application No.170/00552/2019 dated

25.02.2020. The challenge before the Tribunal was to an order by which the applicant was dismissed from service.

2. The learned counsel for the petitioner submits that the petitioner was initially appointed as Gramin Dak Sevak, Branch Post Master (GDS BPM) with effect from 27.07.2002. He was selected as Postman with effect from 15.02.2016. While he was working as postman at Kuvempunagara SO, he sent Annexure-A5 letter to the first respondent regarding his misusing of department money amounting to Rs.9,635/- for the treatment of his daughter, who was suffering from brain damage. He sought permission to credit the misused amount to the department account. Permission was granted. Thereafter, Annexure-A6, charge memo was issued on 09.04.2018 alleging four charges. The applicant admitted the charges in the inquiry held against him. Holding the charges proved the first respondent by Annexure-A9 imposed the punishment of reducing the pay for one stage for a period of two years with cumulative effect. However, by Annexure-A10 dated 07.11.2018, the second respondent issued a notice proposing to enhance the penalty to that of dismissal from service. The applicant submitted his response as Annexure-A11. However, disregarding the same by Annexure-A12 dated 31.01.2019, the second respondent dismissed the applicant from service and he was relieved on 06.02.2019. Though mercy petitions and appeals were submitted, the same were not considered. On these contentions, the applicant had approached the Tribunal. A ground was raised that the second respondent, who was not the revising authority as stipulated by the rules and was only holding additional charge of the post had no power to issue the impugned notice or the order of dismissal exercising the power of revision conferred by the Central Civil Services Classification Control and Appeal Rules (hereinafter referred to as 'the CCS(CCA) Rules' for short), which was a statutory power.

3. Reliance is placed by the writ petitioner on the provisions of the rules and the Government instructions issued by the Central Government specifically stating that the statutory powers shall not be exercised by officers holding additional charge of the post concerned.

4. Learned counsel for the petitioner has relied on the judgment of the Apex Court in Shardul Singh v. The State of Madhya Pradesh and others1 as well as the judgment of a co-equal bench of this Court dated 21.01.2021 in W.P.No.27664 of 2015 (S-CAT) [Union of India and others v. K.Subramanyam]. A judgment of the Aurangabad Bench of the Bombay High Court in W.P.No.12333 of 2021 [Union of India and others v. Pashupati Digambar Swamy] was also relied on to contend that the order of penalty would take effect only upon its communication to the delinquent.

5. We have considered the contentions advanced, the materials placed on record as well as the rules on the point. We have also considered the Government Orders and the decisions relied on. We have heard the learned counsel appearing for the respondents and perused the statement of objections placed on record. We find that the alleged misappropriation had occurred in the year 2015; no action of any nature had been taken by the department apparently

1 AIR 1966 Madhya Pradesh 193

since the issue was not noticed by any of the respondents. On 30.11.2017, the petitioner himself wrote a letter to the first respondent stating that due to ailment of his daughter, he had utilised an amount of Rs.9,635/- for her treatment and sought permission to remit the amount to the Department. It was only thereafter on 09.04.2018, that a decision had been taken to conduct the inquiry against the petitioner. In the inquiry also, the petitioner admitted the charge and only sought that a lenient view m