THE SUPERINTENDENT OF POST OFFICES v. K.V.KUTTAN

THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.----------------------------------------W.P.(C)No.3736 of 2007----------------------------------------Dated this the 31st day of January, 2012JUDGMENTThottathil B.Radhakrishnan, J. The establishment is before us. They challenge an order ofthe Central Administrative Tribunal.2. First respondent, while working as a Gramina Dak SevakMail Deliverer, faced disciplinary proceedings on two counts. Therewere two Articles of charges against him. He was issued with a memoof charges and a statement with allegations. He answered them.Disciplinary proceedings commenced in the midst. The establishmenthad to bring in two corrigenda to rectify certain clerical anomalies in theallegations against the delinquent. In its wisdom, the disciplinaryauthority thought it fit to issue fresh memo of charges. It, accordingly,dropped the earlier proceedings and issued memo of charges afresh.The delinquent participated in the enquiry. That followed the 2nd memoof charges. He was found guilty by the Enquiry Officer on one count,the other not having been established. He carried a departmentalappeal. That was lost. He went to the Central Administrative Tribunal. WP(C).No.3736/20072It was argued before the Tribunal that, having regard to the nature ofRule 133 of the P & T Manual Vol.III, the disciplinary proceedings whichwas initiated de novo had to fail because the initial disciplinaryproceedings was not closed or dropped by stating their reason for suchclosure. This contention of the employee found favour with theTribunal, though it was rightly held that the employee failed to establishany breach of principles of natural justice in conducting the enquiry.Resultantly, the disciplinary proceedings were set aside and it wasordered to ensure that status quo is restored as if there was no suchdisciplinary proceedings, including by way of reinstatement etc.3. The learned counsel for the Department argued thatthere is no shred of materials to show that the employee wasprejudiced, at any point of time, owing to the closure of the earlierproceedings and issuance of charge memo de novo. He further arguedthat, having regard to the gravity of the allegations against the MailDeliverer, it would be wholly unjust and unreasonable in public interestto close off the enquiry proceedings on a mere technical approach. 4. Per contra, the learned counsel for the employee arguedthat the disciplinary authority and the enquiry authority are merely WP(C).No.3736/20073exercising authority under statutory rules and if there is breach of suchrules, consequences shall necessarily to follow. In the case in hand, theresult of violation of the aforenoted Rule 133 is that the entiredisciplinary proceedings have to fail, it is pointed out. The learnedcounsel specifically says that administrative instructions issued underRule 133 cannot be overcame by the establishment and the result hasto follow. 5. As already noticed, the learned Tribunal found that thereis no violation of principles of natural justice. Rule of hearing has notbeen violated. There is no reason to assume that materials were notconsidered by the enquiry authority. Therefore, even if officialinstructions, in terms of Rule 133, provide that when a disciplinaryproceedings is being closed or dropped, the delinquent is entitled to anotice thereof and also that no fresh proceedings shall be initiated onthe same allegations, it is not as if such principle is akin to the`doctrine of double jeopardize' or in terms of the indefeasible principlescontained in Article 311(2) of the Constitution of India. Not only that,the initiation of the 2nd disciplinary proceedings was not challenged bythe employee, at any time, at its initial stage. He voluntarilyparticipated; defended himself; got himself exonerated from one of the WP(C).No.3736/20074charges; filed an appeal against the finding to the statutory appellateauthority and ultimately, raised the issue of the legality of the 2ndcharge only for the first time before the Tribunal. With this, we remindourselves that the employee was a Mail Deliverer. His duties andresponsibilities included carrying of money orders for delivery to theaddressees. The allegation which has been found is that a particularmoney order around Rs.900/- and odd was not delivered to the correctaddressees. Though it chould be pointed out that Mail Deliverer's postis lower down in the hierarchy, it is a nerve centre for the commonman. The confidence with the establishment should have in suchpersonnel and the reciprocal confidence that the people had in theestablishment would speak in volumes of the required credibility,integrity and other issues. The law governing the realm of discipline inbanking sector cannot be ignored while looking at such sector dealingwith money transactions through post office, through money orders,postal orders, savings banks etc.6. With the aforesaid, we are inclined to take the view thatthe learned counsel for the employee is justified in pointing out that theTribunal, having regard to the nature of the decision it rendered, did notfurther proceed to consider whether there was tangible material to WP(C).No.3736/20075sustain the finding of the Enquiry Officer as against the delinquent.Examining the impugned order of the Tribunal, we are clear in our mindthat this aspect needs a second look. That cannot be done underArticle 226/227 of the Constitution of India, even if that exercise is tosustain the impugned order. We also think that it would not be properfor the Tribunal also to do it, at the first instance, now. On the totalityof the facts and circumstances and taking into consideration thejurisdictional aspects, we are of the view that it would be appropriatethat the employee's appeal is re-heard by the appellate authority. Weclarify that while the employee will be entitled to file supplementalgrounds in that appeal, the question of violation of the official guidelinesreferable under Article 133, referred above, stands foreclosed hereby.That issue shall not be re-agitated. In the result,(1) The writ petition is allowed in part.(2) The impugned order of the Central AdministrativeTribunal is quashed.(3) The argument based on administrative/officialinstructions under Rule 133 of P & T Manual Vol.III, as WP(C).No.3736/20076raised by the employee before the Tribunal is rejected.(4) The appellate order passed by the establishment(Annexure A1 before the Tribunal) is quashed.(5) The first respondent herein is directed to appear beforethe appellate authority on 22.2.2012 to enable theappellate authority to fix appropriate date of hearing.Let such appeal be disposed of within a time limit of twomonths from the date of appearance of the employee.(6) The employee is given liberty to file supplementalgrounds of appeal before the appellate authority,except on any ground referable to Rule 133 oradministrative/official instructions issued thereunder.(7) No costs. Sd/- THOTTATHIL B. RADHAKRISHNAN JudgeSd/- C.T.RAVIKUMAR JudgeTKS/31.1.2012