Abani Mohan Ghosh v. Union Of India, Central Administrative Tribunal, Judgment, Law, casemine.com

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Case Number

O.A No. 408 of 1987

Judges

A.P Bhattacharyya, J.M
Arun Banerjea, A.M

Acts

Rule 9 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964.6.
SECTION 19 ADMINISTRATIVE TRIBUNALS ACT 1985
provision of Rule 9 of the said Rules.
Section 409 of the Indian Penal Code
Rule 9 of the said Rules. In Rule 9
Rule 6 of the aforesaid Rules
Rule 9 of the said Rules.

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Smart Summary

Factual and Procedural Background

The applicant, Shri Abani Mohan Ghosh, was appointed as an Extra Departmental Sub-Postmaster (Extra Departmental Branch Postmaster of Cherolmoni Branch Post Office) by an order dated 26.10.1978. With effect from 8.5.1982 (or 11.5.1982) he was placed under "put off duty" by verbal direction of the Sub-Divisional Inspector of Post Offices, Samsi; that action was approved by the Superintendent of Post Offices, Malda Division. On 9.6.1982 an FIR was lodged alleging defalcation of Rs. 3,581.32 and a criminal case under Section 409 IPC was registered at Chanchal P.S.

The police investigated and ultimately submitted a final report (police final report dated 5.9.1986 is referred to), and the accused, including the applicant, were discharged by the Magistrate (the opinion references discharge and acceptance of the final report). The Public Prosecutor informed the Superintendent of Post Offices, Malda, that the State would not appeal the discharge. On 1.4.1987 the applicant submitted a representation seeking reinstatement; no reply was given. While the present application under Section 19 of the Administrative Tribunals Act, 1985 was pending, the applicant was served with a departmental memorandum of charge-sheet dated 22.9.1987 and filed a supplementary application seeking directions for reinstatement and to prevent giving effect to that charge-sheet.

The respondents admitted the police case ended in a final report but justified their earlier oral action (putting the applicant off duty) as taken under Rule 9 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964. They also explained that no departmental proceedings had initially been instituted due to non-availability of records; a departmental proceeding was initiated (per Annexure-XI) only on 29.2.1987.

Legal Issues Presented

Whether the applicant's service, effectively dispensed with with effect from 8.5.1982 by a verbal order, was lawfully terminated having regard to Rule 6 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964 and the length of his continuous service.
Whether the placing of the applicant under "put off duty" complied with Rule 9 of the said Rules (i.e., whether an enquiry into any complaint or allegation of misconduct was pending or being contemplated at the time of placing him off duty).
Whether the respondents could proceed departmentally against the applicant after the police submitted a final report and the Magistrate discharged the accused.
What relief (if any) the applicant was entitled to — reinstatement, arrears of pay and allowances, and an effective timetable for the disciplinary proceedings.

Arguments of the Parties

Applicant's Arguments

The applicant contended that his services were terminated arbitrarily and without basis and that no formal written order of termination had been passed.
He maintained that after the police investigation produced no incriminating material and the Magistrate discharged him, the respondents had no authority to proceed departmentally (i.e., the respondents should not take departmental action once the criminal process had resulted in a final report and discharge).
He sought reinstatement to his former post and arrears of pay and allowances from the date of the termination, and sought to prevent giving effect to the memorandum of charge-sheet dated 22.9.1987.

Respondents' Arguments

The respondents contended that the applicant had been placed under "put off duty" with effect from 8.5.1982 under Rule 9 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964, and that the action was approved by the Superintendent of Post Offices.
They explained that a complaint had been lodged with the police (leading to Chanchal P.S. Case No. 5 dated 9.6.1982) and initially no departmental proceeding was possible due to non-availability of records.
The respondents admitted the police case ended in a final report but relied on the authority under Rule 9 to justify the put-off duty order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tarapada Chatterjee v. Superintendent of Post Offices, North Hooghly Division and others (T.A. No. 1110 of 1986; decision dated 27.8.1987)	Cited as authority relevant to the circumstances in which a put-off duty order should be treated and the need not to allow extended put-off duty to stand.	The Tribunal referred to this earlier decision to support the conclusion that the prolonged verbal put-off duty in the present case should not be allowed to stand and to justify setting aside the put-off duty order.

Court's Reasoning and Analysis

The Tribunal proceeded through the following analytical steps, applying the statutory rules and the facts presented:

Rule 6 analysis: The Tribunal observed that under Rule 6 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964, services of an employee with less than three years' continuous service may be terminated without notice. The applicant had been appointed on 26.10.1978 and had rendered more than three years' continuous service by 8.5.1982, so his service could not lawfully be terminated without notice and without assigning a reason. The Tribunal therefore found strength in the applicant's contention that the effective termination was unlawful.
Causation and timing: The Tribunal noted that the police FIR and criminal proceedings under Section 409 IPC were initiated on 9.6.1982 — after the date on which the applicant had been put off duty. Because the criminal accusation post-dated the put-off/termination, the Tribunal concluded that misappropriation allegations could not be regarded as the proximate cause for dispensing with his service.
Rule 9 analysis (put off duty): Rule 9 permits putting an employee off duty "pending an enquiry into any complaint or allegation of misconduct." The Tribunal emphasized that at the time of placing the applicant off duty (8.5.1982) there was no pending enquiry, nor did the respondents produce material to show that any departmental enquiry was contemplated on that date. The complaint to police was lodged only on 9.6.1982. Moreover, the put-off duty was effected by a verbal order rather than a written order.
Delay and relevant administrative guidance: The Tribunal noted administrative instructions from the Director General of Posts & Telegraphs (an instruction dated 24.2.1979 limiting put-off duty to 120 days, and a later letter of 25.8.1981 tightening the timeline to not later than four months). Although these instructions are directory rather than mandatory, the Tribunal concluded it was not understandable how the subordinate officer could ignore them. The applicant had been kept under put-off duty for more than five and a half years with departmental proceedings initiated only after more than five years and after the present application was filed.
Precedent support: The Tribunal referred to its earlier decision in Tarapada Chatterjee to bolster the conclusion that prolonged put-off duty contrary to the administrative guidance should not be permitted to stand.
On the question of whether departmental proceedings are barred after criminal discharge, the Tribunal expressly rejected the applicant's contention that departmental action is precluded by the police final report or discharge by a criminal court. The Tribunal held that departmental proceedings may lawfully proceed even if a competent court has discharged or acquitted the employee.
Outcome of analysis: Considering the above, the Tribunal concluded that the oral put-off duty/dispensing with service was not in conformity with Rule 9 and that the effective termination without complying with Rule 6 was bad in law. However, because the allegations against the applicant were of a grave nature (misappropriation of Rs. 3,581.32), the Tribunal did not want to stay or interfere with the departmental enquiry; instead it framed relief that balanced reinstatement with allowing departmental proceedings to continue on an accelerated timetable.

Holding and Implications

Holding: The Tribunal allowed the application. The core rulings are summarized below.

Core Ruling: The Tribunal set aside the verbal order of placing the applicant under "put off duty" and directed that the applicant be reinstated to the post of Extra Departmental Branch Postmaster within six weeks from the date of the order. The Tribunal made no order as to costs.

Additional directions and immediate consequences:

The applicant shall not be entitled to any arrears of pay and allowances for the period during which he was under "put off duty".
The respondents are at liberty to continue the disciplinary enquiry already initiated; however, the Tribunal directed that the disciplinary enquiry shall be finalized within four months from the date of the Tribunal's order.

Implications: The decision directly affects the parties by restoring the applicant to his post and permitting departmental disciplinary proceedings to continue subject to an accelerated timetable. The opinion does not purport to lay down broader binding precedent beyond the application of the Rules and the Tribunal's prior decision cited; the Tribunal treated the administrative instructions about the permissible duration of put-off duty as persuasive guidance and relied upon them (and its prior decision) to conclude that prolonged verbal put-off duty was impermissible in the circumstances before it.

Order: Application allowed; set aside verbal put-off duty order; reinstate applicant within six weeks; no arrears payable; disciplinary enquiry to be finalized within four months.

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Abani Mohan Ghosh v. Union Of India

1. This application under Section 19 of the Administrative Tribunals Act, 1985 has been filed by Shri Abani Mohan Ghosh against the Union of India, represented by the Secretary, Deptt. of Posts & another.

2. The applicant was appointed as an Extra Departmental Sub-Postmaster at Chorolmoni sub-post office within the district of Malda by the order issued by the Superintendent of Post Offices, Malda Division bn 26.10.78

3. The applicant after such appointment was discharging his functions. On 9.6.82 an FIR was lodged against him alleging defalcation of a sum of Rs. 3,581.32 and on its basis a criminal case was started under Section 409 of the Indian Penal Code in the court of the Sub-divisional Judicial Magistrate, Malda. Prior to that, with effect from 8.5.82, his services were terminated by an order issued by the Sub-Divisional Inspector of Post Offices, Samsi. The police investigated the case and being unable to find out any materials against him submitted a final report on 5.9.86 Accepting the final report the Sub-Divisional Judicial Magistrate, Malda discharged him from that case on 29.11.86 The Superintendent of Post Offices, Mala Division enquired from the Public Prosecutor, Malda, whether the prosecution had any intention to proceed further in the matter. The Public Prosecutor gave a reply to the effect that the State would not go against the order on discharge. On 1.4.87 the applicant submitted a representation to the Superintendent of Post Offices, Malda requesting him to reinstate him to his former post. That representation was never considered nor replied to by respondent No. 2. It is applicant's case that the respondents cannot terminate his service in that way arbitrarily and without any basis.

4. During the pendency of the case the applicant was served with a memorandum of charge-sheet issued by respondent No. 2 on 22.9.87 On getting that the applicant filed a supplementary application stating that the respondents had no authority to proceed against him depart mentally when the matter had been investigated by the police and when nothing incriminating had been found out against him. It his application the applicant has prayed for issuing a direction upon the respondents so that he may be reinstated in service and so that he may be paid all his arrears of pay & allowances from after the date of termination of his service. The applicant has also prayed for issuing an order so that the respondents may not give effect to the memorandum of charge-sheet issued against him on 22.9.87

5. The application has been contested by the respondents. It is their case that as there was a charge of misappropriation of Govt, cash against the applicant he was placed under ‘put off duty’ with effect from 8.5.82 by the order issued by the Sub-Divisional Inspector of Post Offices, Samsi. The said action was approved by the Superintendent of Post Offices, Malda Division. A complaint was lodged to the police and on its basis Chanchal P.S Case No. 5, dated 9.6.82, was started. At that time no departmental proceeding was initiated against the applicant for non-availability of records. The respondents admit that the police case started against the applicant had ended in final report. They have justified the ‘put off’ order passed against the applicant as one issued in pursuance of Rule 9 of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964.

6. It is undisputed that the applicant was appointed as an Extra Departmental Branch Postmaster of Cherolmoni Branch Post Office, within the district of Malda by an order issued by respondent No. 2 on 26.10.78 It is also not in dispute that with effect from 8.5.82 or 11.5.82 he has placed under ‘put off duty’ by an order issued by the Sub-Divisional Inspector of Post Offices, Samsi Sub-Division. In this connection, we must mention that the applicant was placed under ‘put off duty’ not by any written order but by verbal direction. Such action taken by the Sub-Divisional Inspector of Post Offices was approved by the Superintendent of Post Offices, Malda. It is further admitted by both sides that on the basis of a complaint lodged by the said Sub-DivisionaJ Inspector of Post Offices, Samsi to the police a case under Section 409 of the Indian Penal Code was started against this applicant at Chanchal P.S on 9.6.82 The police investigated the case but submitted final report against this applicant being unable to find out any materials against him. The final report was submitted by the police on 5.9.86 Annexure-B to the application shows that the Sub-Divisional Judicial Magistrate, Malda, in whose court the said criminal case was pending, accepted the final report. The accused persons of that case including this applicant were discharged on 5.9.86 as we find from Annexure-B. The applicant on the basis of such discharge by the Magistrate and the report given by the Public Prosecutor, Malda to the Superintendent of Post Offices, Malda to the effect that the State would not prefer any appeal against the final report or discharge of the accused persons by the Magistrate, submitted a representation to the Superintendent of Post Offices, Malda, requesting him to reinstate him. Annexure-D is the copy of that representation, dated 1.4.87 Getting no reply the applicant had filed the instant application before this Tribunal for redressal of his grievances.

7. It is admitted by the respondents in. their reply that the applicant is governed by the provisions of the Posts & Telegraphs Extra Departmental Agents (Conduct & Service) Rules, 1964. According to them, the applicant was placed under ‘put off duty’ under the provision of Rule 9 of the said Rules. It is curious to note that the applicant's service was dispensed with with effect from 8.5.82 without any written order. It is applicant's case as is also the case of the respondents that no formal order was passed in that regard. The applicant contends that his service was terminated unlawfully. We find some strength in his contention. Under Rule 6 of the aforesaid Rules the service of an employee who has not already rendered more than three years continuous service from the date of his appointment shall be liable to termination by the appointing authority at any time without notice. It appears that the applicant's service was dispensed with in that way. But we find that as the applicant was appointed as an Extra Departmental Branch Postmaster on 26.10.78 and as he had rendered more than three years' continuous service from the date of his appointment, his service was not liable to termination in that way without any notice and without assigning any reason. The fact remains that the police case against this applicant was started a month after his service was terminated in that way. So, it cannot be said that the allegation of misappropriation of Govt, cash was the proximate cause for passing such an order of termination of his service. Considering the matter from that angle, we cannot but hold that the said termination is bad in law.

8. Now, let us see whether the matter of dispensing with the service of the applicant can be regarded as placing him under ‘put off duty’ as contemplated in Rule 9 of the said Rules. In Rule 9 it is stated that pending an enquiry into any complaint or allegation of mis-conduct against an employee the appointing authority or an authority to which the appointing authority is sub-ordinate may put him off duty. This applicant was placed under put off duty with effect from 8.5.82 Now, it is the admitted case of both sides that the complaint against him to the police was lodged on 9.6.82 It is not the case of the respondents that on 8.5.82 an enquiry into any complaint or allegation of mis-conduct was pending against this applicant and for that he was placed under ‘put off duty’. If that was so why is it that the complaint against him was lodged to the police a month after. It is curious to note that even after the expiry of five years from the date when the applicant was placed under ‘put off duty’ no departmental enquiry was initiated against him. No material has been produced by the side of the respondents before us to show that on the date of placing the applicant under put off duty any enquiry against him was under contemplation even. It is far more curious to see that after the filing of this application before this Tribunal the respondents as late as on 29.2.87 initiated a departmental proceeding against this applicant. Annexure-XI to the supplementary application shows that. Considering the aforesaid we are constrained to hold that placing the applicant under ‘put off duty’ as done by the respondents was not done in conformity with Rule 9 of the said Rules. In this regard, we like to point out the instructions issued by the Director General, Posts & Telegraphs, Govt of India setting out the guidelines for putting off duty. As per such instructions an Extra Departmental Agent should not remain put off duty for a period exceeding 120 days. Such instruction issued on 24.2.79 was made more rigorous by letter No. 151/3/81-Viz. III, dated 25.8.81, issued by the Director General of Posts & Telegraphs, Govt, of India. By that letter it was directed that the cases of put off duties should be finalised at the earliest and not later than four months at the maximum. It is true that such instructions are not mandatory but directory in nature. But if is not understood as to how the instructions issued by the Director General, Posts & Telegraphs, Govt, of India could be ignored by respondent No. 2, who is an officer sub-ordinate to him. What we find is that the applicant has been under ‘put off duty’ for more than five and a half years upto this date. After the expiry of five years the respondents had started a departmental proceedings against him. We think that the said ‘put off duty’ order verbally passed by the Insepctor of Post Offices, Samsi should not be allowed to stand any further. In this connection, we may cite the decision taken by this Tribunal in the case of Tarapada Chatterjee v. Superintendent of Post Offices, North Hooghly Division and others in T.A No. 1110 of 1986 on 27.8.87

9. It has been contended by the side of the applicant that the respondents have no authority to proceed against him departmentally as and when the police had submitted a final report in connection with the same matter. We are unable to accept this contention. Under the law there is no bar to proceed against a Govt, employee departmentally even if he is discharged or acquitted by a competent court on the same offence. So, we reject the argument as advanced by the side of the applicant.

10. In view of our findings made above we hold that the applicant must be reinstated to the post of Extra Departmental Branch Postmaster. We do not like to interfere with the departmental proceeding initiated against the applicant as the allegation against him is of grave nature. The applicant has been charged with misappropriation of Govt, cash to the tune of Rs. 3581.32 So, we hold that the respondents may proceed against this applicant departmentally.

11. In view of our findings made above the application succeeds. We allow the application making no order as to costs. Setting aside the verbal order of placing the applicant under ‘put’ off duty’ we direct the respondents to reinstate the applicant as an Extra Departmental Branch Postmaster within six weeks from this date. The applicant shall not be entitled to get any arrears of pay & allowances during the period of his being placed under ‘put off duty’. Be it mentioned that the respondents will be at liberty, to proceed with the disciplinary enquiry that had been started against the applicant but they shall finalise the same in course of four months from this date.

12. Order accordingly.

Abani Mohan Ghosh v. Union Of India

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Abani Mohan Ghosh v. Union Of India

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