Central Administrative Tribunal - Ernakulam
B.Anilkumar vs Union Of India Represented By The ... on 5 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00869/2016
Monday, this the 5th day of December, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
B.Anilkumar, S/o.late K.A.Bhaskaran,
Postal Assistant, Adoor HO, Department of Posts.
Residing at Thadathil Veedu, Manakayam,
Chittar P.O., Pathanamthitta - 689 663. . . . Applicant
(By Advocate Mr.V.Sajith Kumar)
Versus
1. Union of India represented by the Secretary to Government,
Department of Posts, Ministry of Communications,
Government of India, New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle, Trivandrum - 695 033.
3. Director of Postal Services (HQ),
O/o. of the Chief PMG, Trivandrum - 695 033.
4. The Superintendent of Post Offices,
Pathanamthitta Postal Division,
Pathanamthitta - 689 645. . . . Respondents
(By Advocate Mr.C.P.Ravikumar, ACGSC)
This application having been heard on 16 th November 2016, the
Tribunal on 5th December 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant is aggrieved by the continuance of suspension with effect from 16.1.2014. Applicant entered into the service as a Group D as a compassionate appointee at Adoor HO with effect from 1.3.1993. He was promoted as Postal Assistant in the year 1997. While working as Postal Assistant at Adoor HO, he was deputed to Thattayil SO on 12.9.2009 and officiated up to 4.8.2011. Applicant submits that MPKBY Agent attached to Thattayil SO had committed fraud for a long period including the period officiated by him. On detection of fraud, the officials who held charge of the office during the period of fraud were held responsible and accordingly disciplinary proceedings were contemplated.
2. The applicant was suspended for the purpose of disciplinary proceedings by order dated 17.10.2013 by 4 th respondent. The file produced by respondents was perused by the Bench. The suspension of the applicant was extended by an order dated 13.1.2014 from 16.1.2014 to 14.7.2014 for a period of 180 days. It was served to the applicant on 25.1.2014 well past the 90 days period of first suspension. The suspension thereafter was extended several times through various orders dated 17.7.2014, 1.1.2015, 1.7.2015, 28.12.2015 and 28.6.2016 issued by the 4th respondent.
3. The competent authority relying on State of Orrisa Vs. Bimal Kumar Mohanti (1994) SCC (4) 126 opined that suspension is not a punishment. Further the pendency of a CBI case was also cited as a reason to reject the appeal. The respondent had not issued charge sheet so far. As per Annexure A-6 the applicant had made good the loss sustained by the department.
4. Applicant seeks relief as per the Supreme Court order in Ajayakumar Vs. Union of India 2015 (7) SCC 291 which held that the currency of suspension should not be extended over three months if charge sheet is not served to the delinquent officer. The dictum therein was implemented by 1st respondent by Office Memorandum dated 3.7.2015. The respondents also failed to extend the suspension within the 90 days time prescribed. Though Annexure A-2 is dated 13.1.2014 the same was signed by the competent authority only on 24.1.2014 despite the fact that suspension period had expired on 16.1.2014. Applicant argues that he must be deemed to have been reinstated into service with effect from 16.1.2014, the date of expiry of suspension ordered under Annexure A-1. The reliefs sought by the applicant is to declare that Annexure A-2 and Annexure A-4 series of orders are illegal and inoperative and the applicant be deemed to have been reinstated in service with effect from 16.1.2014 with all consequential benefits and arrears of pay and to direct the respondents to reinstate the applicant in service with effect from 16.1.2014 with all consequential benefits and arrears of pay.
5. Heard the learned counsel for the parties and considered the written submissions made. It was reported by the Postmaster, Adur HO vide letter dated 10.4.2013 that there were certain irregularities in the accounts operated through Smt.Lissy Rajan, MPKBY agent, Thattayil PO. Detailed investigation carried out by ASP (OD and Marketing), Pathanamthitta Division and IP, Adur Sub Division brought to light, non- credit of an amount of Rs.31,75,650/- of RD deposits into Post Office Accounts. The modus operandi was affixing the date stamp impression in the RD pass books without accounting for the deposit in the post office account, with the help of PO staff. The year-wise details of the fraud are as below :
Period of fraud Amount (in Rs.)
January 2009 to December 2009 17950
January 2010 to December 2010 2139800
January 2011 to December 2011 917600
January 2012 to December 2012 68550
January 2013 to June 2013 31750
6. The applicant was working as SPM, Thattayil from 12.9.2009 to 4.8.2011. As is evident from the table above, a major portion of the fraud falls during the period in which the applicant was working as SPM, Thattayil PO. Hence, the applicant was placed under suspension with effect from 17.10.2013.
7. Applicant invites our attention to Annexure A-7 DOPT OM F.No.11012/17/2013-Estt.(A) dated 3.7.2015 which is reproduced below :
The undersigned is directed to refer to DOP&T OM of even No. dated 2nd January 2014 regarding consolidated instructions on suspension and to say that in a recent case, Ajay Kumar Choudhary Vs. Union of India Civil Appeal No.1912 of 2015 dated 16.2.2015 the Apex Court has directed as follows :
We, therefore, direct that the currency of suspension order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee.
2. It is noted that in many cases charge sheets are not issued despite clear prima facie evidence of misconduct on the ground that the matter is under investigation by an investigating agency like Central Bureau Investigation etc. In the aforesaid judgment the Hon'ble Supreme Court has superseded the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance.
3. In this connection, attention is invited to this Department OM No.35014/1/81-Estt.A dated 9.11.1982 which contained the guidelines for timely issue of charge sheet to Charged Officer and to say that these instructions lay down, inter-alia, that where a Government servant is placed under suspension on the ground of 'Contemplated' disciplinary proceedings, the existing instructions provide that every effort would be made to finalise the charges, against the Government servant within three months of the date of suspension. If these instructions are strictly adhered to, a Government servant who is placed under suspension on the ground of contemplated disciplinary proceedings will become aware of the reasons for his suspension without much loss of time. The reasons for suspension should be communicated to the Government servant concerned at the earliest, so that he may be in a position to effectively exercise the right of appeal available to him under Rule 23 (i) of the CCS (CCA) Rules, 1965, if he so desires. The time limit of forty five days for submission of appeal should be counted from the date on which the reasons for suspension are communicated.
4. All Ministries/Departments are requested to bring the above guidelines to the notice of all concerned officials for compliance.
8. We note that this is a case of fraud amounting to over Rs.31 lakhs spread over a period of 2009 to 2013. Without making any observations on the seriousness of the fraud committed or the loss to the public exchequer or the holders of Recurring Deposit Account, we note that Government of India has on 3.7.2015 passed orders curtailing the suspension of officials beyond 90 days. We also note that the Apex Court in Ajayakumar Vs. Union of India 2015 (7) SCC 291 has not quashed the CCS (CCA) Rule 10 on extension of suspension beyond 90 days. Hence the operation of Rule 10 continues. However in this matter we note that the respondent has failed to extend the suspension in time before the expiry of 90 days period. Subsequent order of suspension can not thus be valid in the light of the aforecited decision of the Apex Court. Hence the 3 rd respondent will, within 15 days of receipt of this order reinstate the applicant into service with arrears of pay in a post office other than the one in which fraud has been committed and keep a close watch on the work and conduct of the applicant. OA is allowed accordingly. No costs.
(Dated this the 5th day of December 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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