K.KARTHIKEYAN v. CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

BY ADV SRI.T.V.VINU, CGC THIS OP (CAT) HAVING BEEN FINALLY HEARD ON

11.01.2024, ALONG WITH OP (CAT).69/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT) Nos.68 of 2016 and 69 of 2016 ..3.. IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 11TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945 OP (CAT) NO. 69 OF 2016 AGAINST THE ORDER DATED 19.01.2016 IN OA 600/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER: K.KARTHIKEYAN, AGED 59 YEARS, S/O.R.KUNJUKUNJU, GRAMIN DAK SEVAK-MAIL DELIVERER, KAPPIL EAST (PUT OFF DUTY), DEPARTMENT OF POSTS, RESIDING AT PALAKKAVIL, KAPPIL MEKKU, KRISHNAPURAM P.O., ALAPPUZHA-690 533. BY ADVS. SRI.SAJITH KUMAR V. SMT.M.DEEPAMOL SRI.M.JAYAKRISHNAN RESPONDENTS: 1 2 3 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, GOVERNMENT OF INDIA, NEW DELHI- 110 001. THE POST MASTER GENERAL, DEPARTMENT OF POSTS, KERALA CIRCLE, CENTRAL REGION, KOCHI-682 016. THE ASSISTANT SUPERINTENDENT OF POST OFFICES DEPARTMENT OF POSTS, KERALA CIRCLE, MAVELIKKARA DIVISION, MAVELIKKARA-690 101. OP (CAT) Nos.68 of 2016 and 69 of 2016 ..4.. 4 5 THE SUPERINTENDENT OF POST OFFICES, DEPARTMENT OF POSTS, KERALA CIRCLE, MAVELIKKARA DIVISION, MAVELIKKARA-690 101. THE INSPECTOR OF POSTS, DEPARTMENT OF POSTS, KERALA CIRCLE, KAYAMKULAM SUB DIVISION, KAYAMKULAM-690 502. BY ADV SRI.T.V.VINU, CGC THIS OP (CAT) HAVING BEEN FINALLY HEARD ON

11.01.2024, ALONG WITH OP (CAT).68/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT) Nos.68 of 2016 and 69 of 2016 ..5.. J U D G M E N T A. Muhamed Mustaque, J. The petitioner, who is a Gramin Dak Sevak (GDS) – Mail Deliverer, was subjected to disciplinary enquiry as early as in the year 2008. He was proceeded on the allegation that while he was working as GDS-MD at Kappil East GDS BO was entrusted with a sum of Rs.16,900/- on

21.11.2006 for payment of eleven money orders, but failed to return the undisbursed amount of Rs.15,600/- pertaining to nine unpaid money orders. An enquiry was conducted and by Annexure-A6 report, he was exonerated. The finding in the enquiry report reads thus:

For the reasons explained in para 15 above I find that the charge contained in Memo No.ASP/ADA/07 dated 17-04-08, issued by the ASP Mavelikara North Subdivision (Adhoc disciplinary Authority) against Shri K Karthikeran GDSMD (POD) Kappil East will not stand against him.

The enquiry report was submitted as early as on

11.06.2009. The disciplinary authority, Department of Post, acknowledged the report as early as on 07.08.2009. No follow up actions were taken. On 18.08.2009, the petitioner requested to disburse ex-gratia allowances. However, as seen from Annexure-A9, on 29.12.2009, on same set allegations fresh charge sheet was issued. The OP (CAT) Nos.68 of 2016 and 69 of 2016 ..6.. validity of the fresh charge sheet is questioned before the tribunal in O.A No.294 of 2010. The tribunal noting that he has been reinstated in service and based on the submission of the Department of Post before the tribunal that Rule 82 of Postal Mannual Volume – III will be followed, closed the challenge. Thereafter, the petitioner requested regularisation of service on

15.01.2013 and filed O.A No.600 of 2013 before the Central Administrative Tribunal.

During the pendency of the original petition, the department canceled the earlier charge and issued a fresh charge. This is subject to the challenge in separate O.A No.40 of 2015. Both matters were taken up by the tribunal and disposed of by a common judgment. The tribunal negatived the challenge on the ground that Rule 82 of the Postal Manual Volume – III permits fresh enquiry. This is how, the petitioner is before us. It is appropriate to refer Rule 82 of the Postal Manual Volume – III, which reads thus:

It is not permissible to hold departmental enquiry in respect of a charge based on the same facts or allegations which have already been examined by a Court of competent jurisdiction and the Court has given a finding that they are not true. If, however, that Curt has merely expressed a doubt as to the correctness of the allegations, there may be no object to hold departmental enquiry on the same allegation, if better proof than that was produced before the Court or was then available, is forthcoming. If the Court has held that the allegations are OP (CAT) Nos.68 of 2016 and 69 of 2016 ..7.. proved but they do not constitute the criminal offence with which the Government servant was charged, then also it would be permissible to hold a departmental enquiry on the basis of the same allegations.

Rule 82 of the Postal Manual Volume – III has absolutely no application in this matter. Rule 82 would come into play when departmental proceedings are initiated against an employee while court proceedings are pending. In that sense, if competent court found that those allegations are untrue, department is permitted to proceed against such employee, if better proof is available with the department as against the deliquent employee. This is not a case where challenge is made based on the acquittal in a criminal case. The case on one hand is that the petitioner challenges fresh charges on the ground that an enquiry report has already been concluded and the enquiry officer found that charges against the deliquent employee are not true. Thus, if enquiry is concluded then fresh enquiry cannot be initiated on same set of allegations as against the deliquent employee. If the disciplinary authority wants to dissent with the enquiry officer, it could have proceed against the deliquent employee setting out the reason for dissenting with the views of the enquiry officer and proceed against the employee in accordance with law. In stead of expressing dissent on the enquiry report and proceeding, the disciplinary authority has OP (CAT) Nos.68 of 2016 and 69 of 2016 ..8.. chosen to raise new charges on same set of allegations, which is legally not permissible.