Union of India v. Dinanath Shantaram Karekar) in support of the submission. Any attempted service
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19146 of 2012 ====================================================== 1. S.N. Pandey S/O Late Rijhan Pandey Retired Superintendent Of Post Offices, West Champaran Postal Division, Bettiah, R/O Village- Mahuwawa, P.S.- Chiriaiya, District- East Champaran, Presently Residing At Mohallah-Srikrishna Nagar, P.O. & P.S.- Motihari, District- Motihari .... .... Petitioner/s Versus 1. The Union Of India Through The Director General Of Posts Department Of Post, Dak Bhawan, New Delhi 2. The Member (Postal) Ministry Of Communication, Department Of Post, Government Of India, Dak Bhawan, New Delhi 3. The Chief Post Master General, Bihar Circle, Patna (Bihar) 4. The Post Master General (Northern Region), Muzaffarpur (Bihar) 5. The Director Of Accounts (Postal), Patna-800001 (Bihar) 6. The Superintendent Of Post Offices West Champaran, Postal Division, Bettiah (Bihar) 7. The Accounts Officer (Admn.-1) Office Of Director Of Accounts (Postal), G.P.O. Campus, Patna-800001 (Bihar) .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Chakrapani, & Mr. Dipak Kumar For the Respondent/s : Mr. N. A. Shamsi, Assistant Solicitor General ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 10-05-2013 Heard learned counsel for the petitioner and the respondents. The present application arises from the order dated 2.3.2012 passed in O.A. No. 640 of 2010 by the Central Administrative Tribunal, Patna Bench, declining to interfere with the departmental proceedings, initiated against the petitioner for making illegal appointments creating doubts about his integrity. Learned Counsel for the petitioner submits that no charge sheet was served on him before superannuation on 30.6.2010. Referring to
Facts
Patna High Court CWJC No.19146 of 2012 (3) dt.10-05-2013 2 Rule 14(4) of the C.C.S. (C.C.A.) Rules, it is submitted that actual delivery of the articles of charges along with the statement of imputations was mandatory. Reliance was placed on AIR 1998 SC 2722 (Union of India v. Dinanath Shantaram Karekar) in support of the submission. Any attempted service while on leave due to illness and hospitalisation is of no relevance. The respondents cannot initiate a disciplinary proceeding after superannuation except under the Pension Rules and in the manner prescribed. The Tribunal held that charges were framed before superannuation on 11.6.2010. It was sought to be served upon the petitioner during 16th and 17th June 2010 while he was in service but his official chambers was found locked. It was then sought to be served at his residence by registered post on 17.6.2010, but it was also found locked. The postman attempted service of the registered letter from 17.6.2010 to 1.7.2010. The Tribunal concluded that the petitioner had evaded receipt of the charge sheet. In support of its conclusion the Tribunal has relied upon (1993) 3 SCC 196 (Delhi Development Authority v. H.C. Khurana) holding that disciplinary proceeding commence when charges are framed and dispatch does not have effect to delay initiation of the proceeding. In Dinanath Shantaram Karekar (supra) the respondent has been absenting himself from office unauthorisedly. The charge sheet sent by registered post returned with the endorsement “not found”. It was additionally noticed that his home address was also available in the concerned service file. It was accordingly opined that further efforts to serve the charge sheet on the respondent should have been made and a single attempt in the circumstances of the case could not be treated as sufficient. Without taking additional steps resorting to paper publication was not proper. There was nothing on record to demonstrate that the news Patna High Court CWJC No.19146 of 2012 (3) dt.10-05-2013 3 paper in which the show cause notice was published was a popular news paper expected to be read by public in general or that it had wide circulation in the area or locality where the respondent lived. The case is distinguishable on its own facts. It was held that actual service of charge sheet was essential as the person to whom it is issued has to be given an opportunity of reply. Each case shall depend on its own facts. We find it difficult to cull out any ratio from the judgement that under all circumstances actual service of the charge sheet was a sine qua non for a departmental proceeding. A departmental proceeding is initiated when the charges are framed and issued. The actual service of the charge sheet on the delinquent has never been considered a necessary concomitant for initiation of a valid departmental proceeding. If that were to be so, a delinquent can successfully evade service of the charge sheet by contrivances and yet would get the benefit of the same on the ground that it had never been served on him. A contextual interpretation of “deliver or cause to be delivered” used in Rule 14(4) of the CCS (CC&A) Rules 1965, would in our opinion, deal with the issuance of the charge sheet by dispatch and its actual service is not necessary. In (1993) 3 SCC 196 (Delhi Development Authority v. H. C. Khurana) it was observed:- “9. …..The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.” 14. „Issue‟ of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the Patna High Court CWJC No.19146 of 2012 (3) dt.10-05-2013 4 charges framed against him requiring his explanation; and not also the further fact of service of the charge- sheet on the employee…..”
Legal Reasoning
“21. …….The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on Patna High Court CWJC No.19146 of 2012 (3) dt.10-05-2013 5 which the disciplinary proceedings are said to have been initiated and not prior thereto….” The respondents took adequate steps to serve the petitioner more than once. It is not the case of the petitioner that notice was attempted to be served on a wrong or incorrect address purposefully. Even if the petitioner was unwell, and as submitted before us, was hospitalized, surely there would have been someone at home to receive the notice when the postman attempted to do so for 16 long days from 7.6.2010 to 1.7.2010. It is not the case of the petitioner that the postman had never visited his house to serve notice. Rule 9(6) of the CCS (Pension0 Rules, 1972, acknowledges the power of the respondents to hold departmental proceedings even after superannuation. If charges were framed and issued to the petitioner before superannuation, it automatically converted to one under the Pension Rules and no formal approval of the same was required as held in (2007) 9 SCC 698 (State of U. P. v. R.C. Misra): “12. In the present case, the respondent had been placed under suspension and charges were also served upon him while he was in service. In such circumstances, Proviso (a) did not come into play at all and there was no requirement of obtaining sanction of the Governor. The enquiry which had been instituted prior to the retirement of the respondent and was completed after his retirement could not, therefore, be held to be illegal on the ground of want of sanction of the Governor…….” The charge in the departmental proceedings related to the making of illegal appointments on the posts of GDSBPM, raising issues for lack of maintaining absolute integrity. The charges are undoubtedly serious and justified continuance of the departmental proceedings after superannuation also. We therefore find no reason to interfere with the order of the Patna High Court CWJC No.19146 of 2012 (3) dt.10-05-2013 6 tribunal under challenge. The application is dismissed. (Navin Sinha, J) (Shivaji Pandey, J) Snkumar/-
Arguments
“15. The meaning of the word „issued‟, on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word „issue‟ given in the Shorter Oxford English Dictionary include : „to give exit to; to send forth, or allow to pass out; to let out; ... to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation‟. The issue of a charge-sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement……” A similar view has been taken in (1994) 4 SCC 468 (State of M. P. vs. L. P. Tiwaiy) observing:- “4. ….It is thereby clear that service of the article of charge is not a condition precedent. Putting it in transmission within the period is sufficient compliance. No doubt every endeavour has to be made to have the charge-sheet served on the delinquent who evades receipt of it, cannot be allowed to take advantage of such evasion.” the delinquent, but This principle has been reiterated in (2007) 9 SCC 625 (Coal India Ltd. v. Saroj Kumar Mishra) it has been held:- “18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.” Explaining the proposition laid down in H. C. Khurana (supra) it has been explained in (2007) 6 SCC 694 (UCO Bank v. Rajinder Lal Capoor) that:-