Central Administrative Tribunal - Cuttack
M Mohapatra vs D/O Post on 25 May, 2022
1 O.A.No. 260/00338 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A. No. 260/00338 of 2018
Reserved on 18.04.2022 Pronounced on 25.05.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Sri Manmohan Mohapatra, aged about 63 years, son of
late Purna Chandra Mohapatra of Vill/Po:- Siruli, PS-
Chandanpur, Dist: Puri, retired Supdt. of R.M.S 'N'
Division, presently residing at DL/29 VSS Nagar,
Bhubaneswar-7.
..... Applicant
For the Applicant : Mr. S.K.Ojha, Counsel
-Versus-
1. Union of India, reptd. through its Secretary Posts-cum-
Director General, Department of Posts, Govt. of India,
DAK BHAVAN, New Delhi.
2.Chief Postmaster General, Odisha Circle, Bhubaneswar,
Odisha.
..... Respondents
For the Respondents : Mr. B.Swain, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
Assailing and challenging the memorandum of charge sheet issued under Rule 16 of CCS (CCA) Rules, 1965 under Annexure-A/3 2 O.A.No. 260/00338 of 2018 dated 05.03.2014, the order of Disciplinary Authority under Annexure- A/5 dated 06.05.2014 imposing punishment of recovery of Rs. 70,000/- in seven equal monthly installments and order under Annexure-A/8 dated 02.09.2016 rejecting the appeal preferred by the applicant, this O.A. has been filed by the applicant inter alia seeking the following reliefs:
"(i) To admit the OA;
(ii) To quash the Charge memo dated 05.03.2014 (Annex.A/3), order dated 06.05.2014 (Annex.A/5) and
02.09.2016 (Annex.A/8) passed by the Disciplinary Authority and Appellate Authority respectively.
(iii) To direct the Respondents to refund the recovered amount with 9% interest per annum from the date of realization to till the payment is made.
(iv) To pass any other order/orders as deem fit and proper for the ends of justice."
2. Respondents have filed counter inter alia stating that for committing omission and commission in the matter of discharging the duties leading to misappropriation of government money, disciplinary proceedings under rule 16 of Rules ibid was initiated against the applicant by issuing charge memo under Annexure-A/3. The applicant submitted reply to the same. The Disciplinary Authority after going through the facts of the matter, documents and the reply submitted by 3 O.A.No. 260/00338 of 2018 the applicant imposed the punishment of recovery in a well reasoned and speaking order under annexure-A/5. The applicant preferred appeal against the order of punishment and, thereafter, approached before this Tribunal in O.A. 846/2014. Since the appeal was pending, this Tribunal did not admit the O.A. and disposed of the same at the admission stage on 26.11.2014 directing disposal of the appeal. After going through the allegation made against the applicant, entire records, documents and the appeal of the applicant, the Appellate Authority did not find any ground to interfere in the order of punishment imposed on the applicant and, accordingly, rejected the appeal of the applicant in a well reasoned order under Annexure-A/8 dated 02.09.2016. Hence, according to the respondents, there being no infraction of any of the statutory rules and principle of natural justice interference in the matter is not warranted and this O.A. is liable to be dismissed.
3. Applicant has filed rejoinder in which besides reiterating the stand taken in the O.A., it has been stated that the applicant has been visited with the punishment of recovery as an subsidiary offender for the alleged fraud committed by SPM, Pallahat SO. The main allegation is that had the applicant carried out the inspection at the right timely, 4 O.A.No. 260/00338 of 2018 misappropriation/further misappropriation committed by the SPM, Pallahat SO could have been avoided. Further, it is the stand of the applicant that when there was no shortage, question of inquiry personally was not warranted. Hence, he has reiterated the prayer made in the O.A.
4. Respondents have also filed reply to rejoinder more or less reiterating/clarifying the stand taken in their counter. Copy of the general rules providing the procedure for making investigation/inquiry in such misappropriation cases has been filed by the applicant through a memo.
5. Arguments advanced by the respective parties with reference to their respective pleadings were duly considered and records were perused.
6. Before delving into the contentions advanced by the respective parties for better appreciation the articles of charge served upon the applicant under Annexure-A/3 is reproduced below:
"Article-I Sri Manmohan Mahapatra, now SPOs Cuttack South Division, Cuttack while working as ASPOs I/c, Khurda Sub- division, Khurda under Puri Postal Division during the period from 25.4.2005 to 12.7.2009 had carried out annual inspection of Pallahat SO under the accounts 5 O.A.No. 260/00338 of 2018 jurisdiction of Khurda HO on 11.12.2008 for the year 2008. As a part of his inspection he verified Cash and Stamps of the SO and found Rs.48,645.02 (Rupees Forty- eight thousand six hundred forty five & paise two only) and noted this amount in Para-4 of his IR dated 20.12.2008 without confirming whether result of verification was correct. The Postmaster, Khurda HO vide his SO slip dated 11.12.2008 had acknowledged the closing balance of Pallahat SO dated 06.12.2008 is Rs.1.77,751.62 and the SPM Pallahat SO brought forwarded the OB of 08.12.2008 as Rs.54,100.00 in his account book by showing a shortage of balance by Rs.1,23,651.62. The said Sri M. Mohapatra by not verifying the cash & stamps from such acknowledged date following the instruction No. 1 of SO questionnaire of "Guide to Inspection of Sub Post Office" Revised edition 2006, published by DOP, Government of India, allowed this shortage to continue. Had Sri Mahapatra as ASP I/c enquired into this huge shortage of cash as per SO slip and SO Account Book. dated 06.12.2008 on the spot without further loss of time following the provisions of Rule 167(3) read with the Rule-217 of Postal Manual Vol-V, the entire amount of shortage of cash of Rs.1,23,651.62 could have been collected instantly through personal interrogation out of fear of Police action or prosecution.
Thus, it is imputed that the said Sri Manmohan Mohapatra by not following the above provision of Rules and not exercising his inspectorial acumen to investigate the loss of public money as enjoined in above noted rules had not only shown laxity in supervision facilitating fraud by contributory negligence, but also failed to observe devotion to duty and thereby violated the provisions of Rule-3(2) (i) and Rule-3(1) (ii) of CCS (Conduct) Rules, 1964 Article-II The said Sri Mohapatra in the above case instead of enquiring into the case personally at HO level, where his own office is headquartered had submitted one letter 6 O.A.No. 260/00338 of 2018 addressed to the Postmaster Khurda HO vide No. A/Pallahat SO/08 dated 11.12.2008 as reported by him in his IR dated 20.12.2008 as per his inspection report reflected in para-9. He waited till 19.01.2009, when he started investigation into the case by the time, the SPM had further misappropriated Rs.1,14,309.00 from various SB/RD accounts as noted below.
xxx xxx xxx Inquiries made into this fraud case revealed that SPM had already defrauded an amount to the tune of Rs.11,16,942.50/- including Rs.1,14,309/- during the period aforementioned.
Had Sri Mohapatra as ASP I/c Khurda Sub-Division. Khurda taken prompt action following the provisions of Rule, 213-A read with Rule-218 of Postal Manual Vol.-V, the above additional loss to the Department could have been warded off.
Thus, it is imputed that the said Sri Manmohan Mohapatra by the above acts failed to maintain devotion to duty and also acted in a manner which is quite unbecoming on the part of a Government Servant in violation of Rule-3(1) (ii) and Rule 3(1) (iii) of CCS (Conduct) Rules, 1964."
7. The applicant's stand is that the disciplinary proceedings initiated against the applicant is based on no evidence, the Disciplinary Authority imposed the punishment without due application of mind and that the Appellate Authority upheld the order of the Disciplinary Authority without giving due/proper consideration to the true fact of the matter as the applicant had discharged his onerous duty of making inquiry in accordance with the procedure provided under the rules and 7 O.A.No. 260/00338 of 2018 that imposition of punishment as a measure of subsidiary offender is against the decision of this Tribunal in O.A. 103/2015, (Khageswar Mohanta Vs UOI & Ors) disposed of on 28.06.2017. Hence, it is submitted that there being injustice caused to the applicant in the decision making process of the matter, the applicant is entitled to the relief claimed in this O.A.
8. On the other hand, Ld. Counsel appearing for the respondents submitted that from the records and arguments advanced by the Ld. Counsel for the applicant, it transpires that the applicant desires this Tribunal to go into the merit of the matter and come to the finding that the initiation of proceedings culminating with imposition of punishment is bad in law, which is not permissible as held by the Hon'ble Apex Court, various High Courts as also this Bench of the Tribunal in very many cases in past. At the cost of repetition, it was contended that charge sheet was served on the applicant under Rule 16 ibid for omission and commission in discharging duties by the applicant with due diligence. In terms of the rules, in the matter of proceeding under Rule 16, the procedure prescribed to be followed in Rule 14 proceedings is not mandated unless specifically requested by the delinquent against whom Rule 16 proceedings has been initiated. 8 O.A.No. 260/00338 of 2018 Although, opportunity was available for the applicant to demand for regular inquiry, he did not exercise the said opportunity. He submitted reply to the charge sheet. The points raised by the applicant before this Tribunal were also raised before the Disciplinary Authority in the reply submitted by the applicant. The Disciplinary Authority took note of the same and in a reasoned order held the applicant guilty and imposed the punishment which was also upheld by the Appellate Authority. Therefore, the stand taken by the applicant insofar as the merit of the matter is misnomer. Further, it has been contended by him that the applicant has been opposing the present punishment imposed on him although while the applicant during his incumbency of SPO and SRM as Disciplinary Authority initiated and imposed punishment for similar offence committed by the employees concerned. Hence, he has prayed for dismissal of this O.A.
9. It is the case of the applicant that the loss alleged to have been caused to the department is not correct and, according to him, he had verified the cash and stamp balance of Pallahat SO during inspection dated 11.12.2008 and found Rs. 48,645.02, which was noted by him in IR dated 20.12.2008. During inspection dated 11.12.2008, he had seen the SO slip of Pallahat SO dated 10.12.2008 showing closing balance 9 O.A.No. 260/00338 of 2018 dated 05.12.2008 as Rs. 1,77,751.62 and SO slip dated 11.12.2008 showing closing balance dated 06.12.2008 same as Rs. 1,77,751.62 due to non-incorporation of transaction dated 06.12.2008. But the SPM Pallahat after taking into account transaction dated 06.12.2008 had shown closing balance dated 06.12.2008 as Rs. 54,100.02 and reflected as opening balance on next working day dated 08.12.2008 as Rs. 54,100.62 with variation of Rs. 0.60 paisa. This stand has been refuted by the respondents in inter alia stating that the applicant while working as ASP I/C, Khurda Sub Division, under Puri Division had carried out annual inspection of Pallahat Sub Post Office on 11.12.2008. during verification he verified the cash and stamp balance of the Sub Post Office and found Rs. 48645.02 and noted in his IR but did not confirm the correctness of the balance. The Postmaster, Khurda HO had acknowledged balance of Pallahat SO dated 06.12.2008 as Rs. 1,77,751.62 in the SO slip dated 11.12.2008, but the SPM, Pallahat Sub Post Office brought forward the opening balance of 08.12.2008 as Rs. 54,100/- in the office account book. Therefore, an amount of Rs. 1,23,651.62 was shown shortage in the opening balance. The applicant did not verify cash and stamp balance from the acknowledged date as per rules.
10 O.A.No. 260/00338 of 2018
10. It is seen that the applicant has been charge sheeted under Rule 16 of the CCS(CCA) Rules, 1965 not for committing any fraud or misappropriation by himself but on the allegation that for his failure to timely discharge the duty of inspection, the SPM has misappropriated the fund, which could not be recovered from him and immediate investigation into the case on 11.12.2008 by the applicant could have prevented such misappropriation and was imposed with the punishment of recovery of Rs. 70,000/- vide order under Annexure- A/5 dated 06.05.2014 which was upheld by the Appellate Authority vide Annexure-A/8 dated 02.09.2016. It is seen that the applicant in his reply dated 22.04.2014 to the charge sheet under Rule 16 of the CCS (CCA) Rules, 1965 vide Annexure A/3 dated 05.03.2014 had specifically stated as under:
SPM, Pallahat SO had shown Rs.1,77,751.62 as the CB of his SO Account on 05.12.2008 which was acknowledged as Rs 1,77,751.02 by the HO on 10.12.2008 with a minor discrepancy of 60 paise.
Again without taking transactions of S.O. of dated 06.12.2008 the HO had acknowledged the same Rs.1,77,751.62 as the CB of dated 06.12.2008.
But, the SPM has correctly cast the CB of dated 06.12.2008 as Rs.54,100.02 and had correctly shown the same balance as OB of date 08.12.2008 (07.12.2008 being Sunday). The fact was reported to HO on 11.12.2008 by him for verification and report about correctness of balance for dated 06.12.2008 to 10.12.2008, which has been reflected in para-9 of his IR.11 O.A.No. 260/00338 of 2018
He had verified from last acknowledged balance for dated 05.12.2008 instead of dated 06.12.2008 wrongly.
Khurda HO later took both days transaction into SO Summary (wrongly written as BO Summary) showing a discrepancy of 60 paise only.
When there was no shortage, the alleged violation of rules cited in charge sheet becomes a non-entity.
With regard to Article-II, said Shri Mohapatra has further pointed out that, Since he had correctly verified SO Balances and there was no difference in balance except 60 paise, the figure of 05.12.2008 was simply copied by H.O. on 06.12.2008, without accounting for the transaction of dated 06.12.2008 at all, as is evident from S.O. Summary.
He had received the reply of Head Postmaster on 15.01.2009 and started investigation immediately from 16.01.2009 instead of dated 19.01.2009.
Further, he had explained that during December, 2008, he was busy in inspection of other POs.
He had shown five (05) accounts where he has challenged that CLI report was wrong in assessing these accounts to have fraud to be tune of Rs.2,5000/- as they find place in LOTs by the SPM.
He had requested to peruse the HO Ledger Cards of 17 SB and RD accounts to verify the truth, but these were denied to him. Lastly, as pointed out by him, provisions of Rule-213-A of Postal Manual Volume-V which has been alleged to have been violated by him, are applicable to theft and robbery cases but not to the shortage of cash and stamp balance cases. When the charge is itself incongruous, the deliberation on infringement of the said rule is meaningless.
Lastly, he has prayed to drop the charge sheet against him to meet the ends of justice.
11. As per the rule and law, the Disciplinary Authority was under
obligation to meet and answer to all the points raised by the applicant 12 O.A.No. 260/00338 of 2018 in his defence while imposing order of punishment. Therefore, it is necessary to quote observation of the Disciplinary Authority based on which he has imposed the punishment of recovery on the applicant which reads as under:
"I have gone through the charged memorandum, CLI report, his defence representation and connected case records and find that in respect of article-1.
(a) Shri Mahapatra has totally diverted his attention from the main issues i.e. as to why he failed to verify the balance from the date of HO acknowledged balance i.e. from 06.12.2008 which was available with him on the day of inspection instantly in contravention of instructions of 'Guide to Inspection of SOs 2006 Edition. Even if he argues that he had verified the balances from the CB dated 05.12.2008, the immediate action on his part on inspection date was to record the statement dated 11.12.2008 of the SPM to explain the discrepancy which was more urgent than to ask the HO to confirm the balance later. The matter could have been sorted out then and there. There might not have been a need to refer the case to HO, in case SPM had confessed his guilt.
Further, as professed by said Mahapatra that he had found the SO balance correct as the HO had failed to incorporate the transacted amount of dated 06.12.2008, it is questionable as to how could he instantly foresee the content of SO Summary which is maintained at HO? How could he preconceive that SO Slip dated 11.12.2008 from Khurda HO to Pallahat SO acknowledging the CB of 06.12.2008 had not included the transactions of 06.12.2008 itself when he was sitting at SO to verify cash balances? All the submissions of Shri Mahapatra are therefore afterthoughts when he consulted HO cash Book, SO Summary, etc. to elicit a reply to the charges. The fact remains that he failed to verify SO accounts from 06.12.2008 onwards on the basis of HO acknowledged balance and did not derive shortage of cash of Rs.1,23,651.62 paise, the onus of which lied on the SPM himself to replenish. Further, such a probe to examine the SPM, Shri Ramesh Chandra Jena, on the spot could have garnered a fear in his mind not to commit the 13 O.A.No. 260/00338 of 2018 misappropriation in subsequent seventeen (17) SB/RD transactions amounting to Rs.1,14,309.00 which is the central point of Article No.ll. Even for a while it is admitted that Rs.2500/- as pointed out by Shri Mahapatra was erroneously noted in respect of three SB and two RD accounts in CLI, he was silent on whether the LOT was supported by SB-3 Forms or not, indirectly admitting his supervisory lacunae. His contention that provision of Rule 213- A of Volume-V is applicable to only theft and a robbery case which was not brought out is a myth. Is not stealing money from the deposits of all customers by our own SPM an example of theft? Is it not a greatest example of robbery of public funds? Is not an FIR lodged in Departmental fraud case when SPM is found to have misappropriated public deposits? It is surprising to know that the officer Shri Mahapatra has countenanced the infringement of rules instead of admitting his error of not verifying cash and stamp in the office correctly on the day of inspection. There was no need to refer the case to HO and wait for a confirmation to start enquiry when discrepancy in cash balance was visible on the day of inspection on the basis of SO Slip. I do not hold any of the counter challenges of said Shri Mahapatra valid and acceptable. His delay for more than 15 days to enquire into the case has resulted in further loss of Rs.1,14,309/- by way defrauding of SB/RD deposits. On the other hand his instant inquiry into the case could have acted as a break to arrest fraud for which his contribution was immense. I, Shri Tilak De, Chief Post Master General, Odisha Circle, Bhubaneswar do hereby order recovery of Rs.70,000/- (Rupees seventy thousand) only from his pay @ Rs.10,000/- (Rupees ten thousand) only per month in seven (07) equal monthly installments with immediate effect.
12. On a cogent reading of the points raised by the applicant and vis- a-vis the observation based on which the punishment has been imposed by the Disciplinary Authority, this Tribunal is not convinced that the Disciplinary Authority imposed the punishment after meeting and answering the points raised by the applicant. However, the applicant preferred appeal against the order of punishment. Rule 27 of 14 O.A.No. 260/00338 of 2018 the CCS (CCA) Rules, 1965 deals and provides the manner of consideration of the appeal of an employee against the order of punishment as under:
"27. CONSIDERATION OF APPEAL:
(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider-
(a) whether the procedure laid down in these rules have been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders-
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:
provided that-15 O.A.No. 260/00338 of 2018
(i) The Commission shall be consulted in all cases where such consultation is necessary *[and the government servant has been given an opportunity of representing against the advice of the Commission];
(ii) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses
(v) to (ix) of rule 11 and in inquiry under rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of rule 14 and thereafter, on a consideration of the proceedings of such inquiry and make such orders as it may deem fit:
(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of rule 11 and an enquiry under rule 14 has been held in the case, the appellate authority shall make such orders as it may deem fit after the appellant has been given a reasonable opportunity of making a representation against the proposed penalty; and
(ii) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of rule 16, of making a representation against such enhanced penalty.
(3) In an appeal against any other order specified in rule 23, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable.
13. As per the rules, it was the primary duty of Appellate Authority to look into as to whether the procedure laid down in the above rules have been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India 16 O.A.No. 260/00338 of 2018 or in the failure of justice. It was the specific case of the applicant that the Disciplinary Authority imposed the punishment without any evidence and had the Disciplinary Authority considered all the points raised by him in his defence, the Disciplinary Authority would not have come to such a conclusion. But it appears that the Disciplinary Authority without considering this specific aspect noted above found the applicant guilty. It is also out of place to mention that Rule 16 of CCS (CCA) Rules, 1965 provides as under :
"16. PROCEDURE FOR IMPOSING MINOR PENALTIES:
(1)(1) Subject to the provisions of sub-rule (5) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; >
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) consulting the Commission where such consultation is necessary. The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission to the Government servant, who shall be required to submit, if he so desires, his written representation or submission on the advice of 17 O.A.No. 260/00338 of 2018 the Commission, to the Disciplinary Authority within fifteen days;
and
(e) recording a finding on each imputation or misconduct or misbehavior."
14. The Hon'ble Supreme Court while dealing with a matter of Rule 16 of CCS (CCA) Rules, 1965 in the case of O.K.Bhardwaj Vs. UOI & Ors., 2002 SCC(L&S) 188, was pleased to hold as under:
"Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with"
15. In the case of Uday Shankar Das Vs. UOI in OA 436/2001, who was imposed with the minor penalty without inquiry, by applying the decision of Hon'ble Apex in the case of O.K.Bhardwaj (supra) this Tribunal quashed the punishment vide order dated 12.03.2003, which was also upheld by the Hon'ble High Court of Orissa.
16. It cannot be disputed that the allegation against the applicant is factual which was also denied by the applicant in his defence before the Disciplinary Authority and the Disciplinary Authority, in view of the law stated above, ought to have called for a regular inquiry instead of imposing the punishment even without meeting and answering all 18 O.A.No. 260/00338 of 2018 the points raised by the applicant in his defence. Thus, this Tribunal is of the opinion that the punishment imposed by the Disciplinary Authority which was upheld by the Appellate Authority is in violation of the principle of natural justice and law discussed above. Accordingly, the impugned order of the Disciplinary Authority and Appellate Authority are hereby quashed. Normally, the matter should have been remitted back to the Disciplinary Authority for a detailed inquiry but taking into consideration that the applicant has in the meantime retired from service, this Tribunal did not feel it just and proper to remit the matter back. Hence, as a consequence of quashing the impugned order, the respondents are directed to refund the amount, if any, recovered from the applicant within a period of 60 (sixty) days from the date of receipt of a copy of this order.
17. In the result, the O.A. stands allowed by leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS