Central Administrative Tribunal - Kolkata
Samar Kumar Mitra vs D/O India Post on 7 June, 2022
1 O.A. No.350/00123/2018. ' t CENTRAL ADMINISTRATIVE TRIBUNAL ~~ KOLKATA BENCH KOLKATA O.A. No.350/001 23/2018. Date of Order : This the | he Day-of June, 2022. Hon'ble Ms Bidisha Banerjee, Judicial Member Hon'ble -Dr.(Ms) Nandita Chatterjee, Administrative Member Samar Kumar Mitra son of Late Harihar Mitra formerly P.A. Sodepur, now dismissed from service, Aged about 58 years, residing at Vill & P.O. Kalyannagar Co-operative Colony, Via-Panshila, District North 24 Parganas, ~ Pin - 700112. | beeeeeees Applicant - Versus - 1. Union of India Service through the Secretary, Ministry of Communication, -- Department of Posts, Dak Bhavan, New Delhi -- 110001. 2. The Chief Postmaster General, 'Department of Posts, India, 'West Bengal Circle, Kolkata-700012. 3. The Director of Postal Services, Kolkata Region, Office of the Postmaster General, Yogayog Bhavan, C.R.Avenue, Kolkata -- 700012. 4, The Assistant Director of Postal Services, West Bengal Circle, Yogayog Bhavan, C.R.Avenue-32, Kolkata-700012. 5. The Senior Superintendent of Post Offices, North Presidency Division, Barrackpore, Kolkata -- 700 120. ceneeenens Respondents Advocate forthe applicant: Mr P.C.Das & Ms T. Maity Advocate for the respondents : Mr T.K.Chaiterjee. 2 O.A. No.350/00123/2018, ORDER
MS BIDISHA BANERJEE, MEMBER(J) Heard Ld. Counsels
2. The relief sought for in this O.A are thus -
"fa) An order quashing and setting aside the impugned final Order, Appellate Order and Revisional Order which are Annexures A-3, A-4 and A-5 respectively to this application and further directing upon the respondents to reinstate the applicant in service and to pay the applicant all arrears of salaries and allowances;
(b) Issuance of any other order or orders and/or direction as this Hon'ble Tribunal may deem fit and proper."
3. The brief background of the case is as follows :
While he was attached to Sodepur as P.A, a disciplinary proceeding was initiated against the applicant by issuing charge sheet containing 3 articles of charges along with the statement of imputation of misconduct. On the basis of self same charges, @ Criminal Case was instituted and the applicant was arrested but released on bail on 21.10.2001. The applicant alleges that the Disciplinary Authority, without even waiting for the outcome of Criminal proceeding passed order of suspension, suspending the applicant from service with effect from 17.10.2001. The said order was communicated to the applicant on 30.10.2001. The Disciplinary Authority appointed an Enquiry Officer to enquire into the charges leveled in the charge sheet. The applicant would further allege that, the Enquiry Officer without considering that on the self same allegation a criminal case was pending, concluded the enquiry and submitted his finding declaring the charges leveled against the applicant as proved. The Disciplinary Authority, only on the basis of such finding issued his final order imposing punishment in the nature of dismissal from service. While the main charges against the applicant were "manipulation" and "misappropriation", both 3 0.A. No.350/00123/2018. of which constitute penal offence which could only be determined and adjudicated upon by an appropriate Criminal Court. Against such final order so passed by the Disciplinary Authority the applicant preferred an appeal in terms of Rule 23 but the Appellate Authority also rejected the applicant. Later the criminal case initiated against the applicant on the self same set of facts being Special Case No.9 of 2001 was. finally adjudicated on 23.06.2016 and after a full fledged trial the applicant was acquitted of the charges. The Ld. 3 Additional Sessions Judge, Barasat opined that the prosecution failed to prove their case beyond the scope of reasonable doubt that the applicant was entrusted with the alleged. _ misappropriated cash, that he dishonestly converted the same for his personal use. The Ld. Sessions Judge acquitted the applicant from the charges.
The applicant claims that on his honourable acquittal after full fledged trial from Criminal Case he is entitled to be reinstated in service as per the principle laid down by the Hon'ble Apex Court. The Revisional Authority rejected his revision petition on the ground of limitation but the Revisional Authority failed to consider that the applicant after his acquittal from the criminal case ought to have been reinstated in service, The applicant has alleged that the Revisional Authority has passed its order without application of mind.
4, Per contra, the respondents would aver that "while the applicant was working as Sub Postmaster cum Treasurerm, Sodepur sub Post Office during the period from 06.07.2001 (A/N) to 13.07.2001 {A/N), Sri Samar Kr. Mitra received remittance from different post offices under its case management jurisdiction amounting to Rs.9.12,000/- on 11.07.2001. But the 4 O.A. No.350/00123/2018. said Sri Mitra manipulated the total of remittances received from such - post offices by overwriting Rs.9,12,000/- to Rs.4,52,000/- in the Treasurer's Case Book dated 11.07.2001 and showed total remittance as (Rs.3,62,000 + Rs.90,000] = Rs.4,52,000/-, thereby reducing an amount of Rs.4,60,000/- only which was found misappropriated resulting in loss of Rs.4,60,000/- to the Govt. exchequer. In Sodpur Sub Post Office Daily Account dated 12.07.2001, the closing balance was shown as Rs.8,55,975.77/-. But in Sodepur Sub Post Office Daily Account dated 13.07.2001, the Opening Balance (which should be the same as the Closing Balance of 17.07.2001) was shown as Rs.3,95,975.77/- instead of Rs.8,55,975,77/- by the said Sri Mitra being the Sub Post Master cum Treasurer, Sodpur Sub Post Office.
Thus, the said Sri Mitra being the Sub Post Master cum Treasurer, Sodpur Sub Post Office manipulated an amount of Rs.4,60,000/- (Rs.8,55,975.77 ~ Rs.3,95,975.77) in the Govt. account. The said Sri Mitra worked as Postal Assistant (Treasurer) Sodpur Sub Post Office on 14.07.2001 and he was unauthorisedly absent from 16.07.2001 onwards. A prima facie case _ of misappropriation to the tune of Rs.4,60,000/- was established against the said_Mitra_and_ an F.LR was lodged with the Officer-in-Charge, Khardah Police Station under Khardah Police Station Case No.209 dated 17.07.2001 under Section 409 I.P.C. The official was put into jail custody on 31.08.2001, -
which continued for more than 48 hours. He was subsequently placed under suspension with effect from 31.08.2001 vide office memo No.F2- 4/01-02 dated 17.10.2001 in terms of sub rule (2) of Rule 10 of CCS (CCA) Rules, 1965 and office memo No.F2-4/01-02 dated 12.11.2001. Subsistence Allowance for the first three months of suspension was sanctioned equal | to an amount of leave salary which said Sri Mitra would have drawn if he had been on leave on half average pay, or on half pay, in addition to 5 0.A. No.350/00123/2018. Dearness Allowance and any of his compensatory allowances admissible 7 from time to time on the basis of which said Sri Mitra was in receipt on the date of suspension, subject to the fulfilment of other conditions. In this office memo No.F2-4/01-02 dated 02.01.2002, it is further ordered on Is! review of suspension as per Rule 53 of FRSR, Part that the suspension would continue and subsistence allowance would continue to the drawn at the same rate as ordered vide this office memo dated 12.11.2001, mentioned earlier. Time to time review of suspension has been done by the Review Committee."
Further that "the Disciplinary Proceedings against Sri Samar Kr. Mitra was initiated under Rule 14 of CCS (CCA) Rules 1965 under office memo No.F2-4/01-02/Disc./S.K.Mitra dated 28.12.2001. The same has been finalized with punishment of "Dismissal from Service" vide memo No.F2- 4/01-02/Disc/S.K.Mitra dated 31.03.2009. The applicant has preferred an appeal on 15.05.2009 against the order of the Sr. Superintendent of Post Offices, North Presidency Division, Barrackpore dated 31.03.2009. The Appellate Authority has duly considered the appeal and passed the order to uphold the punishment order of Sr. Superintendent of Post Offices, North Presidency Division. He also preferred Revision Petition on 07.12.2016.
The Revisional Authority has rejected the said Revision Petition on. .
31.08.2017 on the ground of bar by limitation as per instructions contained in para 2(ii) of DG Posts letter No.C-1101 1/01/2001-VP dated 26.09.2014, Out of a total loss of Rs.4,60,000/- pointed out earlier, only Rs.30,000/- could be recovered till date from the other official at fault and nothing could be recovered from Sri Mitra. Hence, the total loss to the Govt.
exchequer till date is Rs.4,30,000/-."
6 0.A. No.350/00123/2018.6. By way of rejoinder, the applicant would contend that in case of misappropriation to the tune of Rs.4,60,000/- an FIR was lodged with Khardah Police Station. The authority on the basis of prima facie case regarding misappropriation started a criminal case U/s 409 and the applicant was arrested, the respondents should have waited for the outcome of Criminal Case. The Disciplinary Proceeding was initiated on 28.12.2001 while. criminal case was started on. 17.07.2001. The Departmental Proceeding got concluded by a final order dismissing the applicant from service on 31.03.2009. The applicant was acquitted of Criminal charges of misappropriation etc. in 2016. It is alleged that Appellate Authority rejected the appeal without considering the provision. we of Rule 27 of CCS(CCA) Rules 1968 and stated that the revisional petition that was filed on 07.12.2016 on receipt of the order of acquittal dated 23.06.2016. The applicant would further allege that when Rs.30,000/- was recovered from other officials, the applicant could not have been alleged to have manipulated and misappropriated Rs.4,60,000/-. Further that, criminal case was started on 16.07.2001 on the allegation of manipulation and misappropriation and Disciplinary Proceeding was started on 28.12.2001 on the same allegation, the Disciplinary Proceeding initiated on 28.12.2001 ought to have been concluded after waiting for the result of criminal case.
7. The records were perused and fival contentions noted. The following position emerged :
The Sr. Superintendent of Post Offices, as the Disciplinary Authority has recorded as under :7 O.A. No.350/00123/2018.
"Regarding objection 6, | do not understand what the Charged Official wants to say. In the previous objection he pleads, he did not commit any wrong whereas in_this objection he agrees he had made mistake _for being overburdened. Does mistake mean pocketing of Rs.4,60,000/- a heavy amount and use the same for own purpose?
In this supplementary representation the Charged Official did not assign any new fact but endorsed a copy of letter no.F2-4/01-02 dated 06.05.2002 issued by the then Sr. Supdt. of Post Offices, North Presidency Division, Barrackpore requesting the Charged Official fo refund the whole misappropriated amount of Rs.4.6 lacs either wholly or in instalments. The Charged Official cannot set before fhe Disciplinary Authority any precondition of refund of misappropriated money. The Charged Official had misappropriated the money and it is his obligation to refund the same so that Govt. loss is made good. He cannot pray reinstatement to the post of PA for refunding the loss sustained by the Department for misdeeds of the Charged Official. This precendition of reinstatement of service is not acceptable to the Disciplinary Authority. On the other way by preferring this appeal of refund of misappropriated money, if he is taken back to the service from suspension, he is admitting the misappropriation of Rs.4.6 lacs. Regarding finding of another official guilty for this misappropriation the other official had been charge sheeted which was already discussed earlier paras and punished suitably appropriate to his offence. The Charged Official cannot equate his gravity of offence with another official who was also found guilty and punished." ' Then he concludes that :
"Lam amazed how.an official having more than 23 years of service and rendering a greater portion of service in APS cadre a glorious service adopted this kind of misappropriation of govt. money to the tune of Rs.4.6 lacs__and_ siill persuading for giving chance of refunding the misappropriated amount by giving back the service and in instalments too, Did not the Charged Official find any time during the period 2001 to 2009 (the suspension period) to refund the misappropriated amount to the Govt. account even he did not intend to refund the money to the Government and when he admitted in_other words that the amount of Rs.4.6 lacs was fjaken away by him"
Thus, it is evident that there has been an error of judgment on the part of the Disciplinary Authority, who on one hand says that Charged Official has pleaded "he did not commit wrong" then in the same breathe declares that "he admitted in other words that the amount of Rs.4.6 lacs was taken away by him."
8. Scope of Judicial Review in Disciplinary Proceedings is quite limited. It has been succinctly held in Union of India vs. P. Gunasekharan, (2015) 2 SCC 610, that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary 8 O.A. No.350/00123/2018, proceeding. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings under Articles 226/227 of the Constitution of India, the High Court shall not:
" (i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
iii] go into the adequacy of the evidence:
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
{vii) go into the proportionality of punishment unless it shocks ifs conscience."
In B.C. Chaturvedi v. Union of India & Others (1995) 6 SCC 749, a three Judge Bench of the Hon'ble Supreme Court has held that "power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings cn the evidence."
9. The revisional order dated 31.08.2017 reads as under :
"Subject: -- Revision Petition preferred by Sri Samar Kumar Mitra, formerly . PA, Sodepur SO, North Presy Dn. against the order of dismissal from service of Postal Assistant, North Presidency Division issued by the SSPOs, North Presy Dn.
With reference to the above mentioned subject it is to intimate that Chief Postmaster General, West Bengal Circle has considered your revision petition and pleased to reject the Petition on the ground of bar by limitation as per instructions contained in para 2{ii) of DG Posts letter No.C-11011/01/2001-VP dated 26.09.2014,"9 O.A. No.350/001 23/2018.
The said authority has evidently failed to consider the merit of the case in the light of the order of acquittal.
10. Due to the reasons enumerated above and having noted the acquittal order of the Criminal Court and on that score existence of extenuating factors revisional order dated 31.08.2017 is quashed, The Revisional Authority is directed to re-consider the application dated 07.12:2016 in the light of the order of acquittal and issue appropriate order within 2 months from the date of receipt of a copy of this order.
ll. OAis thus disposed of. No costs.
" ea v (Dr. Nandita Chatterjee ) (Bidisha Banerjee ) Member(A) Member (J)