http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  6573 of 2004

PETITIONER: A. Sudhakar

RESPONDENT: Post Master General, Hyderabad & Anr.

DATE OF JUDGMENT: 24/03/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J:

                The Appellant was working as a Sub-Post Master Marrimandal.  A  departmental proceeding was initiated against him by the Superintendent of  Post Offices, Hanamkonda wherefor a chargesheet was issued on 13.8.1992.   An Enquiry Officer was appointed.  He was found guilty of commission of  the first charge and a part of third charge but he was exonerated in respect of  the second charge.         Although the chargesheet was issued by the Superintendent of Post  Offices although he was otherwise the disciplinary authority in respect of the  Appellant, but as he was appointed to the Lower Selection Grade by the  Director of Postal Services in the year 1983 prior to divisionalisation of  Lower Selection Grade Cadre which took place from July, 1989, upon  completion of the enquiry, the records were forwarded to the   Director of Postal Services being the appointing authority.  As the Director  of Postal Services was both appointing and disciplinary authority in respect  of the Appellant herein, he took into consideration the aforementioned report  of the Enquiry Officer and by an order dated 7.3.1994 imposed a punishment  of compulsory retirement of the Appellant from services.  He preferred an  appeal thereagainst before the Post Master General which was dismissed by  an order dated 8.4.1994.  An Original Application thereafter was filed by the  Appellant before the Central Administrative Tribunal, which was allowed.   

The contentions of the Appellant before the said Tribunal were:

(i)     The Superintendent of Post Offices being the designated  disciplinary authority, the imposition of a major penalty by the  Director of Postal Services was illegal. (ii)    The enquiry report was vitiated in law as the Enquiry Officer acted  in a post-haste manner in proceeding to hold the enquiry without  giving  proper opportunities to the Appellant to appoint an officer  to assist him in the departmental enquiry as a result whereof he  was gravely prejudiced.   (iii)   An additional document, a copy whereof had not been annexed  with the chargesheet was taken into consideration while examining  a witness.   (iv)    So far as third charge is concerned, only purported negligence on  his part, having been proved, the quantum of punishment was  disproportionate to the gravity of misconduct.

       The Central Administrative Tribunal by an order dated 13.8.1997  allowed the said original application holding:

(i)     The disciplinary authority who passed the order of compulsory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

retirement had no jurisdiction and the order passed was improper  without following the procedure. (ii)    Certain documents were supplied to the Appellant during the time  when one of the witnesses was being examined on behalf of the  department, which was impermissible in law. (iii)    The documents on which reliance was placed contained certain  anomalies as regard the names of the signatory.

       The Respondent herein aggrieved by and dissatisfied therewith filed a  writ petition which by reason of the impugned judgment dated 31.3.2003 has  been allowed.

       Dr. Kailashnath Pillai, learned counsel appearing on behalf of the  Appellant would submit that the High Court committed a serious error in  setting aside the well-reasoned judgment of the Tribunal.  It was further  submitted that as the Appellant was entitled to have the assistance of the  government servant, although 10 days’ time had been initially granted  therefor, when the Appellant prayed for 15 days’ further time, the same was  refused as a result whereof the Appellant was gravely prejudiced.  A copy of  the additional document which was not supplied to him was taken in  evidence when the main witness was being examined during the course of  enquiry which was contrary to Rules 14(11) and 14(15) of the Central Civil  Services (Classification, Control and Appeal) Rules, 1965 (’the Rules’).  As  the identity of the lady on whose complaint the proceeding was initiated had  not been conclusively determined in view the fact that the Sub-Divisional  Inspector (SDI) (Posts) during a preliminary enquiry recorded a statement of  a lady whose name was written as Rajavva at the top of the sheet but while  noting the name of the person who had put her right hand thumb impression  thereon, it was attested as that of ’Lachavva’, the entire disciplinary  proceedings must be held to have been vitiated.

       Mr. T.S. Doabia, learned senior counsel appearing on behalf of the  Respondent, on the other hand, would submit that as the Director of Postal  Services, was the appointing authority, no illegality has been committed by  his acting as a disciplinary authority.  The learned counsel further submitted  that it has not been denied or disputed by the Appellant that the Appellant  had taken a sum of Rs. 5000/- from a lady which had been handed over for  obtaining a Kisan Vikas Patra on 18.5.1992 but the same was deposited only  when the complaint was made to the Superintendent of Post Offices on  15.7.1992 which goes to show that the Appellant defalcated the amount  temporarily.   

       It was contended that the Appellant had been given an opportunity to  defend himself and during the course of enquiry, although a xerox copy of  the document in question had been supplied to him, he had merely asked for  inspection of the original document and in view of the fact that the same was  not traceable, he was informed thereabout.  He made no complaint that he  should have been supplied a copy of the said document together with the  show-cause notice

       The learned counsel would contend that having regard to the facts and  circumstances of this case, the quantum of punishment imposed upon the  Appellant cannot be said to be excessive.

       The three Articles of charges levelled against the Appellant are as  under:

"Article \026 1: Sri A. Sudhakar while holding charge  of office of the Marrimustial So as SPM failed to  issue K.V.Ps for an amount of Rs. 5000/- after  accepting the amount of Rs. 5000/- for issue of 5  year KVPs on 18.5.92 from one Smt. Laxavva,  resident of Marrimustial across Marrimustial P.O.  counter and thus failed to follow the provisions of  Rule 8 read with Rule 7 of KVP rules 1988 and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

also failed to maintain integrity and devotion to  duty as prescribed in Rule 3(1)(i) & (ii) of CCS  (Conduct) Rules, 1964.

Article \026 II: Sri A. Sudhakar while functioning as  SPM, Cherial SO during the period 1987 to 1991  obtained a huge loan of Rs. 20,000/- from Sri B.  Veereshalingam, teacher and entered into  protracted correspondence about the loan and  interest payment, etc., and thereby failed to  manage his private affairs reasonably to a standard  level and thereby contravened the provisions of  Rule 17 of CCS (Conduct) Rules, 1964.

Article \026 III: Sri A. Sudhakar while functioning as  SPM, Marrimustial SO on 15.7.1992 failed to take  into account an amount of Rs. 5000/- credited by  him on 15.7.92 vide ACG-67 receipt No. 77 dated  15.7.92 and thereby failed to maintain absolute  integrity and devotion to duty as prescribed in Rule  3(1)(i) and (ii) of CCS (Conduct) Rules, 1964."

       As noticed hereinbefore, whereas the first charge was held to have  been proved beyond doubt and third charge was only partially proved; the  second charge was held to be have not been proved.

       The Tribunal, in arriving at a finding that the Superintendent of Post  Offices being the designated authority the order of punishment could not be  imposed upon the Appellant by the Director of Postal Services, relied upon a  decision of the Central Administrative Tribunal in K.P. Varghese v. DPS,  Calicut and others, [(1992) 19 ATC, CAT Ernakulam].  However, in that  case, by reason of the action on the part of the said higher authority as a  disciplinary authority, the delinquent officer was deprived of the forum of  appeal.  Such is not the position here.  Clause (2) of Article 311 of the  Constitution of India puts an embargo upon passing of an order of dismissal,  removal or reduction of rank in services by an authority below the rank of  the appointing authority.  There does not appear to be an embargo in terms  of the said provision that a higher authority would not act as a disciplinary  authority.  In the instant case, the Appellant has not been deprived of an  opportunity of preferring an appeal against the order of the Director of  Postal Services.  He admittedly preferred an appeal before the Post Master  General which was duly considered.  In a matter of this nature, it would be  obligatory on the part of the delinquent officer to show prejudice. [See Surjit  Ghosh v. Chairman & Managing Director, United Commercial Bank and  others, (1995) 2 SCC 474 : AIR 1995 SC 1053 and Balbir Chand v. Food  Corporation of India Ltd. and Others (1997) 3 SCC 371]

       The Department of Posts, when a query was raised as to the effect of  the changes in the rules in the year 1989 by a letter dated 5.07.1990, clarified  the matter stating:

"I am directed to say that consequent upon  divisionalisation of LSG cadres on the Postal and  RMS side, heads of division have been vested with  the powers to impose all penalties as given in Rule  11 of CCS (CCA) Rules, 1965.  Prior to that, the  power to impose major penalties were vested only  with the DPS whereas heads of the divisions were  competent to impose minor penalties as indicated  at Sl. No. (i) to (iv) of Rule 11 ibid.

       However, references have been received  from some of the officers seeking clarifications  about the competency of the officers for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

imposition of major penalties against the LSG  officials who were appointed prior to  divisionalisation of LSG cadre and after that.  In  this regard, it is clarified that the LSG staff  appointed by the DPS prior to divisionalisation of  the cadre can be proceeded against under Rule 14  only by the DPS and LSG staff appointed by the  divisional Superintendent after the  divisionalisation of the cadre can be proceeded  against by the Heads of the Divisions.  In other  words, the revised schedule of appointing/  disciplinary/ appellate authorities as circulated  vide this office letter No. 12/8/87-Vig. III dated  September, 1989 still holds good but those  officials who were appointed by an authority  higher than that indicated in the above referred  schedule, their cases for imposition of major  penalty will have to be referred to the authorities  who actually appointed them."

       Before us, the Respondents have categorically stated in the counter  affidavit that prior to 1989 the Director of Postal Services was the  appointing authority.  As the Appellant was appointed in the year 1983, he  was appointed by the Director of Postal Services.  It has not been denied or  disputed that he was appointed by the Director of Postal Services, but a  contention has merely been raised to the effect that as he was promoted  when the Lower Selection Cadre was divisionalised, the Superintendent of  Post Offices must be held to be the designated authority.  The Respondents  have placed before us a notification dated 7.7.1989 to show that the Director  of Postal Services was the appointing/ disciplinary authority in respect of the  officials who were promoted to the Lower Selection Grade Cadre prior to  divisionalisation of Lower Selection Grade Cadre.  We, therefore, have no  hesitation in holding that the Director of Postal Services was the appointing  authority.  In any event, as the Appellant has in no manner been prejudiced  thereby, the impugned judgment cannot be faulted on that count.

       Dr. Pillai has, however, relied upon Black’s Law Dictionary, page 447  to show what the terms ’Designate’ and ’Designatio unius est exclusion  alterius, et expressum facit cessare tacitum’ would mean which are given in  the following terms:

"Designate. To indicate, select, appoint, nominate,  or set apart for a purpose or duty, as to designate  an officer for a command.  To mark out and make  known; to point out; to name; indicate.  New  Haven Federation of Teachers v. New Haven Bd.  Of Ed., 27 Conn. Sup. 298, 237 A.2d 373, 380.   

Designatio unius est exclusion alterius, et  expressum facit cessare tacitum. The specifying of  one is the exclusion of another, and that which is  expressed makes that which is understood to cease.  (The appointment or designation of one is the  exclusion of the other; and that which is expressed  prevails over that which is implied.)"

       He furthermore relied upon the decisions of this Court in A. Sanjeevi  Naidu, Etc. v. State of Madras and Another [(1970) 1 SCC 443] and  Hemalatha Gargya v. Commissioner of Income Tax, A.P. and Another  [(2003) 9 SCC 510].

       We, in this case, are not concerned, as regard the concept of the  designated authority.  If an authority has been designated by a statute

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

enjoining him to perform statutory duties indisputably it is he who has to do  the same but in a case of this nature where clause (2) of Article 311 of the  Constitution of India envisages that a delinquent officer should not be  imposed with major penalties save and except an order passed by the  appointing authority, the latter becomes the designated authority.

       It is now trite that an authority higher than the appointing authority  would also be the designated authority for the purpose of Article 311 of the  Constitution of India.  Even the appellate authority can impose a punishment  subject, of course, to the condition that by reason thereof the delinquent  officer should not be deprived of a right of appeal in view of the fact that the  right of appeal is a statutory right.  However, if such right of appeal is not  embellished, an authority higher than the appointing authority may also act  as a disciplinary authority.

       Sanjeevi Naidu (supra) was a case under Section 68(C) of Motor  Vehicles Act, 1939.  In that case the State Government was a designated  authority and in that view of the matter it was held that the statutory  functions could not be delegated to any other authority.

       In Hemalatha Gargya (supra), this Court was concerned with a case  under Voluntary Disclosure of Income Scheme, 1997.  A designated  authority was created under a statute.  The question which has been raised  herein did not arise for consideration therein.

       Before the High Court, it appears, the records of the disciplinary  authorities had been produced upon perusing the same.  The High Court  perused the same.  It came to the conclusion:

"The other ground urged before us and the  Tribunal is that the lady who had given the  complaint had given a different name than the  name she gave when she was examined before the  Enquiry Officer.  It is admitted that the lady, who  gave the complaint was an illiterate woman, had  not the complaint written by someone-else and it is  not known under what circumstances a different  name was shown at her thumb impression in the  complaint than the name she gave when she was  being examined before the Enquiry Officer.  This  was known to the delinquent official.  Had he got  any doubts about the identity of the witness, he  could have cross-examined her.  In any case, the  lady who had appeared before the Enquiry Officer  categorically stated that on 18.5.1992 she had  given a sum of Rs. 5,000/- to respondent No. 1/  delinquent for issuing Kisan Vikas Patras but the  delinquent had failed to give the said certificate or  even return back the money she had given to him  even after two months from the date of receipt of  money from her.  In any case, we are not going to  interfere with the finding of the Tribunal on  question of such fact.  The allegation that  sufficient time was not given to peruse certain  documents is not borne by record.  The documents  were given well in advance and as a matter of fact  the respondent had not expressed any grievance  before the Enquiry Officer that he had not  sufficient time to peruse the documents on which  the department had relied."

       It is not disputed that a complaint petition was filed by a lady.  SDI  (Posts) visited the village for the purpose of conducting an enquiry.  It has  furthermore not been disputed that the Appellant had deposited the amount

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

on 15.7.1992, i.e., after the complaint was lodged.  The complainant was  examined by the Enquiry Officer.  She was also cross-examined by the  Appellant.

       From the proceeding sheet in the departmental enquiry dated  11.11.92, it appears that the Appellant was asked to furnish the list of  additional documents and witnesses to be examined by way of defence, if  any.  He had prayed for 15 days’ time.  He was directed to submit the same  within 10 days.  He, however, again prayed for 15 days’ time for nominating  his AGS.  It appears that 10 days’ time had already been given to him on 20th  October, 1992 and he had furthermore been granted 10 days’ further time.   From the proceeding sheet dated 20.03.1993, it appears that the officer who  was assisting in the disciplinary enquiry was present.  The said proceeding  sheet reads, thus:

"During the last sitting the additional documents of  Sl. 3 and Sl. 4 i.e. original promissory notes and  letters dated 13.02.90, 27.01.92, 30.01.92,  18.02.92 and 19.02.92 were asked to be produced  to the P.O.  The SP is expressed his inability to  produce the original vide his letter No. F7-1/92-93  dated 09.02.93 that they are not available.  Since  the charge sheet was issued and cited documents  shown in the annexure \026 III of charge sheet, are  Xerox copies the inquiry will be held with the  Xerox copies only Re. G.S. requests with the I.O.  that the (illegible) \026 1 is the day finding inquiry, as  such are dire needed for the impose of words the  fair inquiry and on the other side providing the  reasonable opportunity the G.S. to defend himself  in a proper way in the said enquiry."

       It is, therefore, evident that the Appellant merely asked for a copy of  the original document.  He had made no grievance that no copy of the said  document has been supplied to him as a result whereof he was prejudiced.   There could not have been any confusion about the identity of the lady as the  same was a matter of record in view of the fact that a lady who had paid him  a sum of Rs. 5000/- for issuance of Kisan Vikas Patra, the name of buyer  whereof was borne out from the records.  Only because the SDI (Posts) in  his report had made a mistake in spelling the name of the complainant, the  same by itself would not mean that the identity of the complainant was in  dispute.  Even if the same was in dispute it was open to the Appellant to  cross-examine the witnesses in that behalf.  It is not the case of the Appellant  that such cross-examination was effected.                  In terms of Article 311 (2) of the Constitution of India, the procedural  requirements which were required to be followed were as under:

(i)     opportunity to the concerned officer to deny his guilt and establish  his innocence which means he must be told that what the charges  against him are and the allegations on which such charges are  based; (ii)    he must be given a reasonable opportunity to cross-examine the  witnesses produced against him and examine himself or other  witnesses on his behalf; and (iii)   he must be given opportunity to show cause that the proposed  punishment would not be proper punishment to inflict which  means that the tentative determination of the competent authority  to inflict one of the three punishments must be communicated to  him.

       It is well-settled that those principles of natural justice are not  embodied principles.  The requirements contained in Article 311(2) of the  Constitution of India in view of the decision of this Court in Khem Chand v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

Union of India [(1958) SCR 1081] are held to be as a part of the principle of  natural justice.  The courts in the aforementioned situation are required to  see as to whether non-observance of any of the said principles in a given  case has resulted in denial of justice.  If there had been substantial  compliance of the procedure, the court may not interfere.  [See State of Uttar  Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775 and Kuldeep Singh v.  Commissioner of Police and Others, (1999) 2 SCC 10]

       Contention of Dr. Pillai relating to quantum of punishment cannot be  accepted, having regard to the fact that temporary defalcation of any amount  itself was sufficient for the disciplinary authority to impose the punishment  of compulsory retirement upon the Appellant and in that view of the matter,  the question that the third charge had been partially proved takes a back seat.

       In Hombe Gowda Educational Trust and Another v. State of  Karnataka and Others [(2006) 1 SCC 430], this Bench opined:

"The Tribunal’s jurisdiction is akin to one under  Section 11A of the Industrial Disputes Act.  While  exercising such discretionary jurisdiction, no doubt  it is open to the Tribunal to substitute one  punishment by another; but it is also trite that the  Tribunal exercises a limited jurisdiction in this  behalf.  The jurisdiction to interfere with the  quantum of punishment could be exercised only  when, inter alia,  it is found to be grossly  disproportionate.

       This Court repeatedly has laid down the law  that such interference  at the hands of the Tribunal  should be inter alia on arriving at a finding that no  reasonable person could inflict such punishment   The Tribunal may furthermore exercises its  jurisdiction when relevant facts are not taken into  consideration by the Management which would  have direct bearing on the question of quantum of  punishment.

       Assaulting a superior at a workplace  amounts to an act of gross indiscipline.  The  Respondent  is a teacher.  Even under grave  provocation a teacher is not expected to abuse the  head of the institution in a filthy language and  assault him with a chappal. Punishment of  dismissal from services, therefore, cannot be said  to be wholly disproportionate so as shock one’s  conscience.  

       A person, when dismissed from services, is  put to a great hardship but that would not mean  that a grave misconduct should go unpunished.   Although  the doctrine of proportionality may be  applicable in such matters, but a punishment of  dismissal from service for such a misconduct  cannot be said to be unheard of.  Maintenance of  discipline of an institution is equally important.   Keeping the aforementioned principles in view, we  may hereinafter notice a few recent decisions of  this Court."

       [See also State of U.P. v. Sheo Shanker Lal Srivastava & Ors., JT  2006 (3) SC 48, The Workmen of Bhurkunda Colliery of M/s. Central  Coalfields Ltd. v. The Management of Bhurkunda Colliery of M/s. Central  Coalfields Ltd., JT 2006 (2) SC 1, Syndicate Bank & Ors. v. Venkatesh  Gururao Kurati, JT 2006 (2) SC 73, L.K. Verma v. H.M.T. Ltd. & Anr., JT

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

2006 (2) SC 99 and The Commissioner of Police & Ors. v. Syed Hussain, JT  2006 (2) SC 332]

       For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.  However, in the facts and circumstances of the  case, there shall be no order as to costs.