P.C. Pandit, J.
1. This petition under Article 226 of the Constitution has been filed by Jagan Nath Gosain, Ex-Assistant Sub-Postmaster, Chandigarh, and is directed against the order dated 18-7-1962 passed by the Post Master General, Punjab Circle, Ambala, confirming on appeal the order dated 19-1-1962 of the Director, Postal Services, compulsorily retiring the petitioner from service and imposing a penalty of Rs. 1,000 on him.
2. The facts of the case are that Shri Hira Nand, Sub-Post Master, Chandigarh-1, proceeded on five days' casual leave with effect from 8-5-1961. The petitioner was asked to relieve him. He signed the charge report on 6-5-1961, but failed to verify the cash and stamps balance before taking over the key of the office safe from Shri Hira Nand on 7-5-1961 at about 8 P.M. The petitioner did not call Inder Singh, Treasurer, who was the joint custodian of cash and stamps, for actual verification of the balances and he did not even see if the safe containing the cash and stamps was actually locked. On 8-5-1961, which was a holiday, the petitioner attended the office from 6-30 A.M. to 11-10 A.M. In the meantime, one telegraphic money order for Rs. 100 was received for payment. The petitioner instead of calling the Treasurer and arranging for the money gave Rs. 13, which were received from Hallomajra Branch Office on that very day, and permitted Narain Dass Gauba, Head Postman, to pay the balance of Rs. 87 out of his own pocket and thus arranged for the payment of the telegraphic money order to the payee. On 9-5-1961 Inder Singh, Treasurer, at about 9-15 A.M. asked for the key of the safe from the petitioner, who handed over the same to him instead of going himself to open the safe. Inder Singh tried to open the safe, but found that the key did not work. He then opened the door of the safe without using either of the two keys, one that was with him and the other which he had obtained from the petitioner. He found that the cash amounting to Rs. 25,810.88 nP. was missing from it and the duplicate set of keys was lying in it. The safe did not, however, show any signs of having been tampered with or forced open. The petitioner was then charge-sheeted on 4-8-1961 for the breach of Rules 45 and 46 contained in Posts and Telegraphs Manual Volume IV, Rules 103 and 106 of the Posts and Telegraphs Financial Handbook Volume I and for gross carelessness and negligence in the performance of his duties, which resulted in a loss of Rs. 25,810.88 nP. to the Department. On 11-8-1961 he asked for the attested copies of the statements of the various officials made during the course of the preliminary enquiry regarding the theft. This request was, however, refused by the Department on 25-8-1961 on the ground that the statements given during the course of departmental enquiries had not been referred to in the statement of allegations supplied to the petitioner. These were, therefore, not relevant to the charges. He was told that in case, however, the statements of any official were subsequently made use of during the course of proceedings, copies would be supplied to him and he would have an opportunity of cross-examining the witnesses during the proposed enquiry. oN 22-9-1961 the petitioner sent a written reply to the charge-sheet supplied to him.
On 4-10-1961 a regular enquiry was held against him by Shri D.D. Pasarnikar. No witnesses were produced before the Enquiry Officer, who merely put certain questions to the petitioner and his replies thereto were then recorded by him. He submitted his report on 6-10-1961 holding him guilty of all the charges. On 21-10-1961 the Director of Postal Services, served a show-cause notice on the petitioner as to why he should not be dismissed from service. The petitioner submitted his reply to the same on 7-11-1961. After going through the same, the Director, Postal Services, passed the impugned order on 19-1-1962 and the same was confirmed on appeal on 18-7-1962 by the Postmaster General, Punjab Circle, Ambala. This led to the filing of the present writ petition on 11-9-1962.
3. Only two contentions had been raised before me by the learned counsel for the petitioner. It was submitted, in the first instance, that the petitioner had not been given a reasonable opportunity to defend himself as provided in Article 311 of the Constitution. The copies of the statements of the witnesses, who had been, admittedly, examined in the preliminary enquiry, had not been supplied to him and, consequently, he could not defend himself properly. Reliance in this connection was placed on a Supreme Court ruling in State of Madhya Pradesh v. Chintaman Sadashiva, AIR 1961 SC 1623.
4. It is common ground that no witnesses were examined by the Enquiry Officer to prove the charges levelled against the petitioner. The charges framed against him were found to be proved on the basis of the replies given by him to the various allegations made against him. The statements of the witnesses were, therefore, quite irrelevant for the purposes of the enquiry and no prejudice has been caused to the petitioner by the non-supply of the copies of their statements. The breach of the rules had been admitted by the petitioner in his written reply to the charges framed against him and in the replies to the questions put to him by the Enquiry Officer. The petitioner was asked if he wanted to produce any witnesses in his defence, but he refused to do so. The Supreme Court decision relied upon by the learned counsel for the petitioner is of no assistance to his client, because all that is stated therein is:
'Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relied, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The right to cross-examine the witnesses who gave evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the Enquiry Officer by not giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had not been held in accordance with the rules of natural justice.'
As already mentioned above, the Department has not relied on the statements of any of the witnesses recorded in the preliminary inquiry for holding the petitioner guilty of the charges levelled against him. It is on his own admission that he has been found guilty.
5. It was then submitted by the learned counsel for the petitioner that no witnesses had been examined by the Department before the Enquiry Officer for proving the charges against the petitioner and, therefore, he had no opportunity to cross-examine them. In the written reply and in the answers given to the questions put by the Enquiry Officer, he had not admitted the charges framed against him. There was, thus, no evidence on which the petitioner could be held guilty of the various charges. That being so, the impugned order compulsorily retiring him from service was liable to be quashed. In this connection, reference was made to the decision of the Supreme Court in Union of India v. H.C. Goel, .AIR 1964 SC 364.
6. After hearing the counsel for the parties and going through the charges, the written reply of the petitioner thereto and the answers given by him to the various questions put to Mm by the Enquiry Officer, I am of the opinion that there was enough material before the Punishing Authority for coming to the conclusion that the petitioner was guilty of the charges levelled against him. Tie charges were as under:
'CHARGE NO. 1.
That the said Shri Jagan Nath Gosain while officiating as S. P. M. Chandigarh-1 P. O. during the period from 7-5-1961 to 9-5-1961 tailed to verify the contents of the office safe (Nanu's) at the time of transfer of charge to him by Shri Hira Nand Dewan, Sub-Postmaster on 7-5-1961 as required under Rule 45/46 of Posts and Telegraph Manual Volume IV.
CHARGE NO. 2.
That during the aforesaid period and while functioning in the aforesaid office, the said Shri Jagan Nath Gosain failed to prepare a charge report in the prescribed form (detailing the particulars of cash and stamps balances received) while taking over the charge from Shri Hira Nand Dewan, S. P. M. who was to proceed on casual leave from 8-5-1961 with permission to leave station on 7-5-1961, as required under Rule 46 of Posts and Telegraph Manual Volume IV.
CHARGE NO. 3.
That during the aforesaid period and while functioning in the aforesaid office, the said Shri Jagan Nath Gosain ordered payment of a T. M. O. for Rs. 100 received on 8-5-1961 by obtaining private funds amounting to Rs. 87 from Shri Narain Dass Gauba, Head Postman, in contravention of Rule 103 of Posts and Telegraph Financial Hand Book Volume I, prohibiting mixing up of private funds with public cash or accounts.
CHARGE NO. 4.
That during the aforesaid period and while functioning in the aforesaid office the said Shri Jagan Nath Gosain failed to be present at the time of opening of safe (Nanu's) on 9-5-1961 as required under Rule 106 of Posts and Telegraph Financial Hand Book Volume I.
CHARGE NO. 5.
That thus he displayed gross carelessness and negligence in his duties which resulted in loss of Rs. 25,810.88 nP. to the Department.'
The relevant portion of the written reply to charge No. 1 given by the petitioner runs thus:
'On my further insistence after the party was over, Shri Dewan Hira Nand simply handed over the key of the iron safe to me and did not agree to the check of the cash with the remarks that Shri Inder Singh, Cashier, had already left the place and might not be available and it would be getting late. He also assured me that the safe was closed by him and Inder Singh together in the presence of Shri Pritam Singh, Assistant Treasurer, and there was nothing to worry about. Shri Hira Nand Dewan was my immediate boss with a life long career of service and I had full confidence in him and as there was also no factor to arise my suspicion, I did not think it proper to press him further for checking and counting of the cash contained in the safe, took over the keys from him and left Post Office at about 8 P.M. While on my way home, it again occurred to me that I should have insisted upon the complete and formal handing over of the cash according to the rules, but since there was no apparent reason to disbelieve him on the point that he had closed safe in the presence of Shri Inder Singh, Treasurer, and Pritam Singh, Assistant Treasurer, I went forward with this idea in my mind that the cash could be checked immediately on the next working day before the distribution started as permissible under Rule 124 of Posts and Telegraph Financial Handbook Volume 1.'
In the reply to a question regarding this charge put to him by the Enquiry Officer, the petitioner stated thus--
'Yes, I accept this charge, but the circumstances in which I accepted the key from Shri Hira Nand Dewan may kindly be taken into consideration as well.'
7. With regard to charge No. 2, the petitioner's written reply is:
'The charge report was prepared on May 6, 1961, by Shri Khem Raj Gupta, Correspondence Clerk, on the prescribed form and I signed It when the same was presented to me at about 3 P.M. The Post Office closes down at 6 P.M. and various financial transactions in the form of receipt of returns from Postmen and other Post Offices continue up to 6 P.M. It was not possible to enter the details of the cash balance on the back of the Charge Report at that time, and as such it was not signed on the back. I had it in my mind that this will be filled in later on when I take over the charge of the cash balance from Shri Dewan Hira Nand, which could not be done because of the circumstances already stated in reply to charge No. 1.'
In reply to the following question put to him by the Enquiry Officer, the reply given by the petitioner was:
'Question. It means the charge report was not prepared in full after you took as acting S. P. M. from Shri Hira Nand Dewan. Is this correct?
Answer. Yes, it is so. But I would request that the circumstances in which these particulars could not be written may kindly be taken into account.'
8. Regarding charge No. 3, the relevant portion of the written reply given by the petitioner is as under:
'I was informed that Rs. 13 had been received from the Hallo Majra B. O. on the same day and that could be utilized for the said purpose. Accordingly, amount of Rs. 100 was disbursed to the payee in which Shri Narain Dass Gauba contributed Rs. 87 out of his own accord and voluntarily. I allowed this course of action only to avoid complaint from the payee in this respect and in the interest of smooth working of the Post Office.'
In reply to the following question put to him by the Enquiry Officer, he stated thus:
'Question. This means you allowed the Head Postman, Shri Narain Dass Gauba, to use his private money for the purpose of the Government. Do you agree?
Answer. I allowed Shri Gauba to use private money because he voluntarily offered to do so. In fact, I did not like this course to be adopted but as it was holiday and as the Treasurer was not available in the office, I did so only to avoid the public complaint.'
As regards charge No. 4. his written reply is:
'On 9-5-1961, I came to the Post Office at 6-30 A.M. and enquired about Shri Inder Singh, Treasurer. I was informed that he had not come by that time. I was busy in important and urgent official matters when Shri Inder Singh came at about 9-15 A.M. I told Shri Inder Singh that the cash had to be checked and counted. He requested for supplementary key which was in my possession. I asked him to wait for a few minutes so that I may dispose of the matter in hand. He again requested for the key after a couple of minutes, which I handed over to him with the remarks that he should proceed and I would be following him there and then. Within a few seconds, I left my seat to follow him but I was taken aback when I heard a shriek from Shri Inder Singh that the safe was already unlocked, as S. P. M.'s key could not be moved. T reached there immediately with the members of the staff and moved the handle of the safe when to my astonishment I found that it was all empty and no cash was contained therein, Under the circumstances, I submit that I was not negligent in my conduct.'
In reply to the following question put to him by the Enquiry Officer, he stated as under:
'Question. Why did you then hand over the key to the Treasurer instead of opening the safe yourself?
Answer. As I was very busy with other work and as Shri Inder Singh, Treasurer, repeatedly insisted to hand over the key to him, I did so, but followed him immediately.'
9. It may be mentioned that if the first four charges are proved against the petitioner, then he would automatically be found guilty for gross carelessness and negligence in his duties under charge No. 5. From the above, it will be clear that the breach of the rules was admitted by the petitioner. He was, however, giving the circumstances under which the said breach had occurred. The fact, however, remains that he himself admits the breach of the rules. It cannot therefore, be held that the impugned order was passed on no evidence. The Supreme Court ruling, therefore, does not apply to the facts of the present case.
10. The result is that this petition fails and is dismissed but with no orders as to costs.