Central Administrative Tribunal - Jabalpur
Ram Bir Parashar vs M/O Communications on 11 May, 2019
Sub: Departmental Enquiry-Post Office 1 OA No.202/00305/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : GWALIOR
Original Application No.202/00305/2015
Gwalior, this Friday, the 11th day of May, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Ram Bir Parashar, S/o Late Shri Lala Ram Parashar,
Aged 60 years, Occupation Retd. Postal Assistant,
R/o Gali No.9, Yadunath Nagar,
Bhind (M.P.) Pin-477001 -Applicant
(By Advocate -Shri J.P.Saxena)
Versus
1. Union of India through Secretary,
Ministry of Communication, Dak Bhawan,
Sansad Marg, New Delhi-110 001.
2. Chief Post Master General, Post Offices,
MP Circle, Hoshangabad Road, Bhopal
(MP) Pin 462012
3. Post Master General, Indore region,
Indore (MP) 452001
4. Director of Postal Services, Indore Region,
Indore-452001
5. Superintendent of Post Offices, Chambal Dn.
Morena (M.P.) 476001 -Respondents
(By Advocate - Shri Akshay Jain)
(Date of reserving the order:07.05.2018)
ORDER
By Navin Tandon, AM:-
Being aggrieved by imposition of minor penalty of recovery of Rs.80,000/-; non-regularisation of his suspension period as duty Page 1 of 15 Sub: Departmental Enquiry-Post Office 2 OA No.202/00305/2015 for all purposes; and withholding of his retiral benefits, the applicant has filed this Original Application.
2. The facts of the case as narrated by the applicant are that the applicant was working as Assistant Postmaster (Saving Bank) Bhind Head Post Office during the period from 04.05.2012 to 08.01.2013. Vide memo dated 07.01.2013 (Annexure A-1) he was placed under suspension. The suspension order was revoked vide memo dated 01.11.2013 (Annexure A-2).
2.1 The applicant has stated that vide memo dated 01.11.2013 (Annexure A-3) a charge sheet under Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 was issued to him "alleging that cheques received from Umari and other Sub Post Offices in the HO Bhind were not accounted for in Part-II of the list of HO though its intimation was sent to concerned Sub Post Master, SO, as a result of which in the accounts of those account holders who had deposited cheques in the respective SPOs reflected minus balance in account books maintained in the Bhind HO". Further, "that applicant failed to get fed the data of saving bank transaction which took place in sub post offices in system software through the SOSB ledger assistant of Head Office and after the withdrawals on the basis of SB-7 the balance was not checked with the ledger balance of HO and failed to report Page 2 of 15 Sub: Departmental Enquiry-Post Office 3 OA No.202/00305/2015 irregularities to Divisional office which act of applicant is violative of Rule 38(2) and (3) of Savings Bank Manual (Vol.I) (amended upto October,2010). It was further alleged "that after the withdrawals of more than Rs.5,000/-, applicant not prepared the list of withdrawals exceeding Rs.5000/- and got them verified from the SOSB ledger assistant on the basis of list of saving bank transactions and vouchers received in Head Office and the same was not sent for further checking by the postal inspector. As a result whereof, details of withdrawals could not be checked with the accounts of depositors".
2.2 The applicant further stated that in his reply to the charge sheet submitted on 26.11.2013 he had denied the charges leveled against him. In his defence he had submitted that "(i)there was acute shortage of staff in S.B.Branch of Bind HO; (ii) there was pendency of ledger posting in 35,000 R.D.accounts and balances of sub post offices were in minus when applicant was deployed as Assistant Post Master (SB) in Bhind HO". "After clearance of cheques, applicant used to send cheques collection list to SBCO and one list was sent to concerned SPO after making necessary entry in sub office slip. Applicant's duty was limited to these two functions which he performed promptly. It was for the SPOs to make necessary entries in the pass book and ledger of respective Page 3 of 15 Sub: Departmental Enquiry-Post Office 4 OA No.202/00305/2015 depositors and thereafter to send list of transaction to SBCO Bhind HO. It was also the duty of SBCO of Bhind HO to make necessary entries in the computer and to update the balances of SPOs. Applicant does not come at all in picture after sending the list of clearance of cheques to SBCO and respective SPOs". 2.3 The applicant has further submitted "that disciplinary authority, without considering the reply of the applicant and appreciating the material available on record awarded punishment of recovery of Rs.80,000/- from pay in 4 installments commencing from December 2013 to March 2014 as part of the loss of Rs.7,10,000/- caused to government by Shri B.M.Sharma, Sub Post Master, Umri vide memo No.F4-1/1/Umri/12-13 dated 24.12.2013" (Annexure A-6). He further submitted that "the disciplinary authority in the aforesaid punishment order Annexure A-6 has not stated as to how the suspension period from 07.01.2013 to 07.11.2013 shall be treated, more so when it is the settled proposition of law that where the minor penalty of recovery is imposed, the whole of the suspension period should be treated as period spent on duty".
2.4 The applicant has also stated that he "has retired on superannuation from government service on 31.03.2014"
(Annexure A-7).Page 4 of 15
Sub: Departmental Enquiry-Post Office 5 OA No.202/00305/2015 2.5 The applicant had challenged the impugned order of punishment of recovery by submitting his appeal dated 24.12.2013.
However, since the same was not decided he had filed Original Application No.486/2013, which was disposed of vide order dated 18.7.2014 (Annexure A-9) with a direction to the respondents to dispose of his appeal within two months from the date of receipt of copy of the said order. Thereafter, the Director Postal Services vide his order dated 28/29.08.2014 (Annexure A-10) rejected the appeal of the applicant.
3. In this Original Application, the applicant has prayed for the following reliefs:
"8(i) The impugned order of disciplinary authority A-6 and that of appellate authority A-10 be quashed as illegal and unsustainable in law.
8(ii) The period of suspension from 09.01.2013 to 07.11.2013 be kindly ordered to be treated as duty and full pay and allowances for the aforesaid period be kindly ordered to be paid.
8(iii) The recovery of Rs.80,000/- made from applicant be kindly directed to be refunded with interest forthwith. 8(iv) The payment of Death-cum-Gratuity, Commutation of Pension, Leave Encashment and any other dues which are payable to applicant be kindly ordered to be paid with interest on delayed payment.
8.(v) Any other relief in the circumstances of the case, this Hon'ble Tribunal deems fit be kindly allowed to be given. 8(vi) Cost of litigation be kindly allowed.Page 5 of 15
Sub: Departmental Enquiry-Post Office 6 OA No.202/00305/2015 3.1 In support of his claim, the applicant has placed reliance on the decision of this Tribunal in the matters of Smt.Kalpana Shinde Vs. Union of India and others (Original Application No.344 of 2003) & four other similar cases, decided by a common order dated 22.11.2004 (Annexure A-11) whereby this Tribunal in similar circumstances has allowed those Original Applications by quashing and setting aside the orders of recovery. The decision in the case of Smt.Kalpana Shinde (supra), was upheld by the Hon'ble High Court vide order dated 15.4.2008 (Annexure A-12).
4. On the other hand the respondents submitted that "the applicant was working from 04.05.2012 to 08.01.2013 as Assistant Postmaster (Saving Bank) Bhind Head Post Office". Because of his failure to supervise LOT, "respective cheques amount was not accounted for in Part-II of Head Office Accounts. Resulted minus balance in several accounts and Shri B.M.Sharma misappropriated government money of Rs.7,10,000/- taking shelter of ignorance of rules and regulations by the applicant". The applicant has totally failed to perform duties assigned to him, due to his negligence and failure Shri B.M.Sharma succeeded in committing misappropriation of Rs.7,10,000/-.
4.1 The respondents have further submitted that "before issue of charge sheet. fact finding inquiry was conducted and applicant was Page 6 of 15 Sub: Departmental Enquiry-Post Office 7 OA No.202/00305/2015 found responsible for his haring various rules mentioned in charge sheet".
4.2 The respondents have also stated that "as far as the charge of non-taking of amount of cheques in Part-II in the HO accounts is concerned, this task should be performed by the Postal Assistant but the work was not completed. Therefore, the applicant is responsible for non-taking the amount of cheques in Part-II. Being a supervisor every government servant holding supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all government servants for the time being working under his control and authority but the applicant has failed to do so". The respondents have also submitted that the "applicant was working as supervisor at Head Office (Bhind Head Post Office) while Shri B.M.Sharma, SPM Umri was working under his subordination. Thus, he had to supervise the act of Shri B.M.Sharam vigilantly and intelligently but he failed to discharge his duties". 4.3 The respondents have also stated that the "applicant is not entitled for full salary for the period of suspension from 09.01.2013 to 07.11.2013 as he was not suspended in the Umri fraud case but at that time he was also responsible for other fraud case, which was mentioned in preliminary submission". Page 7 of 15 Sub: Departmental Enquiry-Post Office 8 OA No.202/00305/2015 4.4 The respondents have also contended that "the applicant was retired from Govt. service on 31.03.2014 and his retirement dues were withheld by respondents because applicant was found indulged in several other fraud cases i.e. Nai Zameen Sub Post Office (loss amount involved Rs.1,34,56,560/-), Bhind Kutchery Sub Post Office (loss amount involved Rs.1,19,983), Alampur Sub Post Office (loss amount involved Rs.14,57,000/-), Phoop Post Office (loss amount involved Rs.2,18,000/-), Raun Post Office (loss amount involved Rs.1,55,882/-) and Lahar Post Office (loss amount involved Rs.32,10,100/-). In Nai Zameen Sub Post Office fraud case, the applicant was found responsible and a charge sheet under Rule 14 of the CCS(CCA) Rules, 1965 has been issued to him on 13.03.2014, vide SPOs Morena Memo No.F4-2/Nai Zameen/disc action/R.B.Parashar/2012-13 which is pending under prosecution witness examination stage, therefore, all the pending dues are withheld by respondent".
5. In his rejoinder, the applicant has submitted that he "was working in Head Office Bhind and the alleged sum was misappropriated by Shri B.M.Sharma, Sub Post Master Umari. Hence in this fact situation, before awarding punishment of recovery, the disciplinary authority was under legal obligation to satisfy himself from the material on record whether Sub Post Page 8 of 15 Sub: Departmental Enquiry-Post Office 9 OA No.202/00305/2015 Master Umari succeeded in defalcating money due to negligence of applicant. Disciplinary Authority not made any detailed enquiry in the whole case and merely on the surmise that the fraud could have been prevented if the applicant was not negligent, he has held him guilty of the charges leveled against him". The applicant has further stated that prior to joining of the applicant in Bhind Head Office "there was pendency of ledger posting in 35,000 RD accounts and balances of sub post offices where in minus when applicant was deployed as Assistant Post Master (SB) in Bhind HO". The applicant has further stated that "for the lapses of respondents for not providing staff for clearance of pendency and non working of SBCO group in Bhind HO, applicant can not be fired". The applicant was not directly or indirectly involved in the alleged delinquency. Applicant worked in the Bhind HO whereas the fraud is stated to have taken place in Sub Post Offices Nai Zameen, Kutcheri, Phooph, Raun, Lahar and in such circumstances applicant was not all concerned with what happened in SPOs. Therefore, the respondents cannot withhold his retiral dues. The applicant was not enjoying the regular posting but was intermittently discharging the duties of checking in regard to SB branch of Bhind HO and therefore, it was incumbent upon the respondents to have first shown the nexus in respect of the Page 9 of 15 Sub: Departmental Enquiry-Post Office 10 OA No.202/00305/2015 misappropriation and dereliction of the duties by applicant. The recovery ought to have been made from the person who was indulged in such misappropriation of fund.
6. The respondents have also filed their reply to the rejoinder wherein they have mostly repeated their submissions made in their reply.
7. Heard the learned counsel of both sides and carefully perused the pleadings of the respective parties and the documents annexed therewith.
7.1 We have also perused the decision of this Tribunal in the matters of Smt.Kalpana Shinde (supra), paragraph 9 of which read thus :
"(9). In the instant case, the charges leveled against the applicants are that of their negligence in failing to detect the fraud perpetuated by other staff members of other post office in time. They are not charged that by any act of omission or commission or negligence or breach of orders by them, they had caused any pecuniary loss to the Govt. Another significant aspect is that they are not charged with having any intention to fraud the Govt. of the amount misappropriated by some third parties. The provisions of Rule 11 (iii) of the CCS (CCA) Rules are attracted only when any pecuniary loss caused to the Government by negligence or breach of orders is attributed directly to the employee concerned. In the instant case the applicants obviously were not directly responsible for the misappropriation of the amount and therefore, the recovery if any was to be made for the loss of the amount, ought to have been made from the person directly responsible for the misappropriation. It is also pertinent to note that no detailed inquiry has been made by the Disciplinary Authority in the whole case and merely Page 10 of 15 Sub: Departmental Enquiry-Post Office 11 OA No.202/00305/2015 on the surmise that the fraud could have been prevented. The applicants were not negligent in carrying out their duties he has held them guilty of charges leveled against them. He has not elaborated how the fraud could have been detected earlier and has not even cared to hold the detailed inquiry into the circumstances of the fraud perpetuated by the staff of Shabda Pratap Ashram, Gwalior Sub-Office. The applicants could have been held guilty of the charges leveled against them if due to any omission or commission on their part, the perpetuation of fraud by some body else would have been possible or they themselves had associated in perpetuating the fraud. The contention of the applicants suggests that they had been employed or given work in different periods to post the entries, etc., of the back dates.
If they were required to post the entries of the back dates which were pending, it would mean that they could not have prevented the fraud as the fraud was already perpetuated when they started their work of posting the entries. No detailed inquiry has been held by the Disciplinary Authority in this question of posting of the entries by the relevant clerk."
7.2 We have also gone through the order dated 15.4.2008 passed by Hon'ble High Court in W.P.No.796 of 2005 in the matters of Smt.Kalpana Shinde's case (supra), relevant extract of which read thus:
"(11)..... It is thus, not in dispute that the respondents were not enjoying regular posting of RDSOLC but were intermittently discharging the duties and, therefore, it was incumbent upon the competent authority to have first shown the nexus in respect of the misappropriation and the dereliction of the duties by the respondents. It is pertinent to note that that the respondents were not charged of an act of omission or commission or negligence or breach of orders the them, causing thereby pecuniary loss to the Government or that they were having any intention to commit fraud the Government revenues. Thus alleged loss cause to the petitioner/Union of India was not directly or indirectly attributed to the respondents"Page 11 of 15
Sub: Departmental Enquiry-Post Office 12 OA No.202/00305/2015 7.3. In the instant case we find that the allegations against the applicant was that he was negligence in failing to detect the fraud perpetuated by his subordinate posted in another sub post office in time. The applicant is not charged that by any act of his omission or commission or negligence or breach of orders by which he had caused any pecuniary loss to the Government. There was no allegation against him that he was having any intention to fraud the Government of the amount misappropriated by some third parties. Thus, the applicant was not directly responsible for the misappropriation of the amount and therefore, the recovery if it was to be made for the loss of the amount, ought to have been made from the person directly responsible for the misappropriation. The same view has been held by this Tribunal in the matters of Smt.Kalpana Shinde (supra) which has been upheld by the Hon'ble High Court as mentioned hereinabove. In the matter of Smt. Kalpana Shinde (supra) the Tribunal had also relied on the following decisions in the matters of (i) J.M. Trivedi Vs. Reserved Bank of India 2004 (2) GLH 514; (ii) S.K. Chaudhary Vs. Union of India and Ors .in OA504/1996; (iii) C.N. Harihar Nandanan Vs. Presidencey Post Master Madras SPC 1988 (8) ATC 673 and (iv) J.M. Makwana Vs. Union of India & Ors. in OA750/98, before quashing and setting aside the impugned orders Page 12 of 15 Sub: Departmental Enquiry-Post Office 13 OA No.202/00305/2015 of recovery. Thus, the present case is fully covered by the decision in the matter of Smt. Kalpana Shinde (supra) and, therefore, the impugned order of recovery is liable to be set aside.
8. As regards the regularization of the suspension period as duty, we find that the applicant was placed under suspension vide order dated 07.01.2013 and the same was revoked vide order dated 01.11.2013, on the very same date when minor penalty charge sheet was issued against him and finally the applicant was imposed the minor penalty of recovery of Rs.80,000/-. The Department of Personnel & Training OM NO. 11012/15/85 Estt.(A) dated 3rd December, 1985 stipulates that the period of suspension is to be treated as duty if only a minor penalty is imposed. It was ordered that if the departmental proceedings against a suspended employee for the imposition of a major penalty finally end with minor penalty, the period of suspension is to be treated as wholly unjustified in terms of FR 54-B and the employee concerned there should be paid full pay and allowances from the period of suspension by passing suitable order under FR 54-B. The spirit of the order is that if the disciplinary proceeding ends only in minor penalty, even the suspension is unjustified and the government servant is entitled to treat the period of suspension as the period spent on duty for all purposes. Thus, the applicant is entitled for Page 13 of 15 Sub: Departmental Enquiry-Post Office 14 OA No.202/00305/2015 full pay and allowances during the period he remained under suspension. The respondents' contention that the applicant is not entitled for full salary for the period of suspension as he was not suspended in the Umri fraud case but at that time he was also responsible for other fraud cases, cannot be accepted as they have failed to substantiate their claim in this regard by producing relevant supporting documents.
9. As regards the relief sought for by the applicant for directing the respondents to release his retiral dues, the respondents have submitted that the applicant's retiral dues were withheld by the respondents because the applicant was found indulged in several other fraud cases i.e. Nai Zameen Sub Post Office (loss amount involved Rs.1,34,56,560/-), Bhind Kutchery Sub Post Office (loss amount involved Rs.1,19,983), Alampur Sub Post Office (loss amount involved Rs.14,57,000/-), Phoop Post Office (loss amount involved Rs.2,18,000/-), Raun Post Office (loss amount involved Rs.1,55,882/-) and Lahar Post Office (loss amount involved Rs.32,10,100/-). In Nai Zameen Sub Post Ofice fraud case the applicant was found responsible and a charge sheet under Rule 14 of the CCS(CCA) Rules, 1965 has been issued to him on 13.03.2014, and disciplinary proceedings under Rule 9 is pending Page 14 of 15 Sub: Departmental Enquiry-Post Office 15 OA No.202/00305/2015 under prosecution witness examination stage, therefore, all the pending dues are withheld by the respondents case. Therefore, we are of the considered view that at this stage no directions can be issued to be respondents to release other retiral dues till final decision in the proceedings pending under Rule 9 (ibid).
10. In the result the Original Application is partly allowed with the following directions:-
(i) The impugned order of recovery dated 24.12.2013 (Annexure A-6) as well as the appellate order dated 28/29.08.2014 (Annexure A-10) are quashed and set aside.
(ii) The period of suspension from 09.01.2013 to 07.11.2013 be treated as duty for all purposes and full pay and allowances for the said period be paid to the applicant.
(iii) The respondents are directed to refund the recovered amount of Rs.80,000/- to the applicant.
(iv) All these payments be made to the applicant within a period of 90(ninety) days from the date of communication of this order, failing which the respondents shall pay interest on these amount at the rate of 6(six) per cent to the applicant.
(vi) No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rkv
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