M J NINAMA Vs. POST MASTER GENERAL AHMEDABAD

JUDGEMENT

(1.) Petitioner who was Upper Division Clerk in the Posts and Telegraphs Department was removed from service by an order dated December 19 1981 passed by the Director Postal Services (HQ) Gujarat Circle Ahmedabad (hereinafter referred to as the Disciplinary Authority). In the appeal preferred by the petitioner the Post Master General Ahmedabad by his order dated August 13 1982 agreed with the finding of guilt recorded by the Disciplinary Authority but modified the penalty from removal to that of compulsory retirement from service. The petitioner has by this petition under Article 226 of the Constitution of India challenged the findings recorded by the Disciplinary Authority and the Appellate Authority and the punishment imposed on him on several grounds. One of the grounds raised by the petitioner is that he was denied reasonable opportunity of being heard in respect of the charges levelled against him on account of failure on the part of the Disciplinary Authority to supply him copy of the report of the Enquiry Officer and reasons recorded by him for disagreeing with the findings recorded by the Enquiry Officer. Since in nay opinion for the reasons which I shall presently state the petitioner must succeed on this ground I do not consider if necessary to set out or deal with other grounds raised in this petition.

(2.) The petitioner was given chargesheet dated April 16 1977 wherein it was alleged that on November 6/7 1976 the petitioner had demanded bribe of Rs. 800/- from one Kanjibhai Zalabhai Ninama of village Jab-Chitaria for getting appointment order of his son Badabhai Kanjibhai Ninama (herein-after referred to as Ninama) and threatened that appointment order would be cancelled if the said amount was not paid. He repeated his demand when he met Ninama and accepted Rs. 650/- from him as part of the bribe amount on November 15 1976 He demanded accepted the balance of the amount of Rs. 150/- as bribe from Ninama in the afternoon of November 17 1976 near the office of the Post Master General at Ahmedabad. It is alleged that before giving this amount of Rs. 150/- Ninama had approached Central Bureau of Investigation and a trap was laid to apprehend the petitioner when he accepted amount of Rs. 150/-. It is alleged that the petitioner accepted currency notes of Rs. 150/- to which phenolphthalein powder was applied in presence of the Panch witnesses and put these currency notes in his pocket in the presence of one of the Panchas who had accompanied Ninama when Ninama went to pay this amount to the petitioner. Thereafter a raid was carried out and the amount of Rs. 150/- was recovered from the petitioner. Disciplinary proceedings founded on the above charges were initiated against the petitioner. The Disciplinary Authority appointed Enquiry Officer to record evidence and submit his findings on the basis of suck evidence. The Department led evidence to prove the charges levelled against the petitioner. Petitioner also examined two witnesses to prove his defence that Rs. 150/- which he received from Ninama on November 17 1976 as stated above were paid towards loan of Rs. 300 which Ninama had taken from him. The Enquiry Officer by his report Annexure `B dated September 26 1978 held that the charges framed against the petitioner were not proved. The Disciplinary Authority however by his order dated December 22 1978 remitted the matter to the Enquiry Officer mainly to record a specific finding whether the document Exhibit D-1 alleged to be a receipt or promissory note dared August 12 1978 executed by Ninama was genuine or not. The Enquiry Officer again by his report Annexure `C dated March 12 1979 recorded a finding that the petitioner was not guilty of the charges levelled against him. The Disciplinary Authority however again remitted the matter to the Enquiry Officer for farther enquiry. The Disciplinary Authority directed the Enquiry Officer to send the document Exhibit D-1 to the Hand-writing Expert for examination and obtain his opinion regarding the genuineness of the signature purported to be of Ninama on the document. The document was sent to the Hand-writing Expert and after he gave his opinion he was examined as a witness. In the opinion of the Hand-writing Expert signature appearing below the document Exhibit D-1 was not that of Ninama. The Enquiry Officer however after appreciating the evidence on record by his report Annexure `D dated October 6 1981 again held that the charges framed against the petitioner were not proved. It appears that copies of the reports submitted by the Enquiry Officer to the Disciplinary Authority were not supplied to the petitioner. After the last report Annexure `D was submitted by the Enquiry Officers the Disciplinary Authority on appreciation of the evidence on record disagreed with the findings recorded by the Enquiry Officer. He saw no reason to discard the evidence of the Hand-writing Expert and held that the document Exhibit D-1 which was alleged to be receipt of the promissory note executed by Ninama was not proved to have been executed by him. In his view theory of loan was an after thought and it was concocted to explain away receipt of Rs. 150/- from Ninama on November 17 1976 in presence of a Panch witness. The Disciplinary Authority for the reasons recorded in his order Annexure `E dated December 19 1981 held the charge framed against the petitioner proved beyond the shadow of doubt and imposed penalty of removal from service on the petitioner. It may be mentioned here that before recording the finding of guilt the Disciplinary Authority had not heard the petitioner. As already pointed out above copies of the reports submitted by the Enquiry Officer were not supplied to the petitioner nor was he given any opportunity to make representation to the Disciplinary Authority against the reasons which weighed with the Disciplinary Authority in disagreeing with the Endings recorded by the Enquiry Officer. Copy of the order Annexure `E was supplied to the petitioner after it was passed by the Disciplinary Authority. He was also supplied copy of the findings recorded by the Enquiry Officer before he approached the Post Master General Gujarat Circle Ahmedabad who was the Appellate Authority by way of appeal. The Appellate Authority however by his order dated August 13 1982 agreed with the findings recorded by the Disciplinary Authority and held that the charges levelled against the petitioner were proved. However so far as penalty was concerned it was reduced from that of removal from service to that of compulsory retirement from service from the date of the order of the Disciplinary Authority.

(3.) Now it is in the background of the above Acts that the question arises whether the petitioner could be said to have been afforded reasonable opportunity as contemplated by Article 311 (2) of the Constitution. Article 311 in so far as is relevant for our purpose reads as follows: