Central Administrative Tribunal - Kolkata
Abhijit Shain vs D/O India Post on 17 February, 2022
CENTRAL
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ADMINISTRATIVE SRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. No.950/01841/2021.
- -Hon'bie Ms Bidisha Banerjee, Judicial Member
Hon'ble -Dr.(Ms} Nandita Chatterjee,
For the applicant
Por the respondents -
Administrative Member
Shri Abhijit Shain,
Son of Late Madan Mohan Shain,
Residing at Anandanagar,
P.O. India, Kharagpur,
Midnapore, PIN ~ F21 309.
oo. Applicant.
1. Senior Superintendent of Post Offices,
Midnapore Division,
Having his office at Midnapore,
Midnapore - 721 1Ql.
_THrector of Postal Services,
Office of the Post Master General,
Squth Bengal region,
Yogajog Bhavan, C.R. Avenue,
Kolkata ~ FOO O12.
_ Union of India,
Represented through the Secretary,
Department of Posts,
Ministry of Communication,
Dak Bhawan,
New Delhi - 110 G01.
Oe
we
Respondents.
'Mr, M. Ali Sardar, Counsel
Mr. &. Chatterjee, Counsel
V4.2 GOAL -
Date of Order >
OC ae
2 OLA. No.Gs0/0 844 {2023
ORDER
anaennnnne Per : Bidisha Baneriec: Judicial Member Lk. Ld . counsel were heard.
2 The applicant who is approaching his replacement has preferred this application to seck the following relies ° "Ba Ar order setting aside the proposed inquiry on the purported charge sheet dated 23-07-2 N2i issued by the Senior Superintendent of post Offices, Midnapore Division, Midnapare
-~ 721 101,
b) Any other order and/or direction as the Learned Tribunal mary deem fit and proper."
3. The gravamen of indictments against the applicant as the charge memo dated 23.07.2021 is suggestive of, is extracted verbatim hereinbelow for clarity « Article-I fee Sri Abhijit Shain, PA (L&G}, Jhargram HO. while working as Postmaster, Jhargram. H.O. for the period fram. 97.08.2019 to till date failed to assign ary duty to nis subordinate staff towards posting of SB vouchers of Baligeria S.O., anon CBS post office, in the concerned HO ledger in system software in eomputer at Jhargram HO on the abave noted period ™ accordance with the provisions contained in sub rule-(4) of Rule-2 and Rule-3 of POSB Savings Bank Manual Vol-l (Sixth Edition, Corrected up to July'2012).
During this period Sri Shyamal Mahata, the then SPM, Baligeria $.Q. misappropriated an amount of Rs. 3,36, 000,00 (Rs, Three lakh thirty sw thousand} from Baligeria 3.0, Jt 'Be type SB Account No, 1184792 standing in. the names of Sri Kalicharan Mahata & Smt Mousurnt Mahata through the following fraudulent withdrawals by Wal of forging signatures without the Knowledge of the deposttors.
en enn ET -- .
| Date of fraudulent | Armour afl i; No, | withdrawal fraudulent .
| | withdrawal(RS.) 3019 t i tT | 06.) 300000,00.
(2. | 18.0) | > 3 OA. Ho. S50/01841 (2021 Although. those withdrawal vouchers were duly received et dhargram HO, in time but the said uithdrawal vouchers were not posted in the respective H.O. ledger in the system software at Jhargram HO. as per rule 48 & fii} of POSB Savings Bank Manual Voll (Sixth Edition, Carrected up to July mors} and thus as a consequence of non-posting of SB voucher in Jhargram H.O. the aforesuid fraudulent withdrawals could not be detected in time.
As such Sri Shain, while working as Postmaster, Jhargram. EL.O. failed to discharge his duties properly and gave a scope to the then SPM, Baligeria 8.0. fo nisappropriate the Govt. money to the tune of Rs, 12,81, 923/- so far detected, Had prescribed rules and procedure been followed scrupulousty by Sri Abhijit Shain PA. (LSG) Jhargram HO. while working as Postmaster, Jhargram H.O. fraud committed by Sri Shyamal Mahata, the then SPM, Baligeria 5.0, would have been detected in the initial stage of fraud.
By doing so, Sri Abhijit Shain, PA {LSG), Jhargram H.O. while working as Postmaster, Jhargram $1.0, violated the provisions made in sub rule ~ (2), (3) & (7) of Rule-2 ane Rule-3 of POSE Savings Bank Manual Vol-l, (Seth Eidition, Corrected up to July '2012) and thereby failed to maintain devotion to duty, acted in a manner which is unbecoming of @ Govt. servant and also failed to take all possible steps fo ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority as required of him under Rule-/1}ii), Rule-ofl jit) & Rule-Sleyt) of COS (Conduct) Rules, 1964.
Article IT Sri Abhijit Shain, PA(LSG) Jhargram BLO. while workoig as Postmaster, Jhargram HO. for fhe period from. 21.08.2079 to Gll date failed to assign ary duty to his subordinate staff towards posting of SB vouchers of Baligeria 8. O, a nen CBS post office, in the concerned HO ledger in system. softivare Mm computer at JRargram HO an the above noted peried in accordance with the provisiors contained a. sub rule-(4) of Rute-2 are Rule-3 of POSB Savings Bank Manual Vol-I (Sixth Edition, Corrected up to July 'S012).
During this period Sri Shyamal Mahata, the then SPM, Baligeria. $.Q. misappropriated an amount af Rs. 24,430.00 (Rupees Twenty four thousand four hundred thirty) enly from Nagripada B.O. in account with Baligeria S.O, SB Account No. es 8 A. NoO.250/01841/2021 1188582 standing m the name of Smt Mamata Dhal through. the follounng frauciulent withdrawal by way of forging signature without the knowledge of the depositor.
PS~ | Date of fraudulent | Amount 1 No. | withdrawal | fraudulent el 'withdrawal (Rs) POT SL T2 26 Although that withdrawal vor Jnargram HH.O, in time but the said withdrawal voucher Was not posted in the respective H.O. leager in the system software at Jhargram ALO, as per rule 48 fi) & (ii) of POSB Savings Bank Manual Vol-I (Sixth Edition, Corrected up to July 2012) and thus as @ consequence of non-posting of SB voucher of Baligeria SO in Jhargram HO, the aforesaid frauculent withdrawal could not be detected in time.
As such Sri Shain, wuiule working as Postmaster, Jhargram H.O. failed to discharge his duties properly and gave -- a scope to the then SPM, Baligeria $.Q. ta misappropriate the Govt. money to the tune of Rs, 12,81,920/- 50 far detected. Had prescribed rules and procedure been followed scrupulously by Srt Abhijit Shain PA. (LSG) Jhargram 2H. QO. while working as Postmaster, Jhargram HO. fraud committed by Sri Shyamal Mahata, the then SPM, Baligeria SO. would have been detected in the initial stage af fraud.
By doing 50, Sri Abhijit Shain, PAILSG], Jhargram. ALO?» while working as Postmaster, Jhargram 4,0. violated the provisions made in sub rule - (2), (3) & (4) of Rule-2 and Rule-3 of POSB Savings Bank Manual Vol-l, (Sith Edition, Corrected up to July '2012 and thereby filed to maintain devotion to duty, acted im a manner which is unbecoming of a@ Gaul servant and alse failed to take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority as required of him under Rule-3{1}{t), Rule-S{T}fin} & Rule-Ga}iy ef COS {Conduct} Rules, 1964.
Apticle-lIf Sri Abii Shain, P.AJALSG) Jhargram H. O. while working as Postmaster, Jhargram H.O. for the period from 22.08.2019 to til date failed to assign any duty to his subordinate staff towards posting of SB vouchers of Baligeria 5.O., a mon CBS post office, in the soncerned HO ledger tr systerr software in qt computer at Jhargram HO on the above noted period in accordance with the pro visions contained in sub rule-(4) of Rule-2 and Rule-3 of POSE Savings Bank Manual Vol-I (Seth Edition, Corrected up to July 2012) During this period Sri Shyamal Mahata, the then SPM, Baligeria, S.O. misappropriated an amount of Rs. 8000. OO (Rupees Nine thousand) only from 3B Account No. 118802 standing opened at Nagripada B.O. in account with Baligeria 5.0. in the name of Tattwamashi Barik through the following fraudulent withdra wal by wal @ f forging signature without the knowledge of the depositor at Baligeria SO, Although. that withdrawal voucher was duly received at Jhargram H.Q, in ume but the said withdrawal poucher was nat posted in the respective HO. leciger in the system software at Jhargram ALO, as per rule 48 fi) & fii) of POSB Savings Bank Manual Voll (Sixth Eictition, Corrected up to July 2012) and thus ag a consequerice of non-pesting of SB voucher in Jhargram HO. the aforesaid fraudulent withdrawal could not be detected in time.
As such Sri Shain, while working as Postmaster, Jhargram H.O, failed to discharge his duties properly and gave a scope ta the then SPM, Baligeria SO, to misappropriate the Govt. money to the tune of Bs. 12,81,923/- so far detected. Had preseribed rules and procedure been followed scrupulously by Sri Abhijit Shain P.A. (LSG) Jhargram HO, By doing so, SrtA bhijit Shain, PA(LSG), Jhargram HQ. while working as Postmaster, Jhargram HO. violated the provisions made i sub rule ~ (2), (8) & Fp of Rule-2 and Rule-3 of POSB Savings Bank Mearual Vol-l, (Sucth Edition, Corrected up to July "2072) and thereby failed to maintain devotion to duty, acted in a manner which is unbecoming of a Govt, servant and also failed to take all possible steps fo ensure the integrity aril devotion to duty af all Government servants for OLA, NoS80/O18al/ 2021
---- ne EE ET USL | Date of fraudulent Amount op No. | withdrawel ' fraudulent
-- _[ withdrawal (Rs) UL (9000.00 § OA. Mo. 350/01841 72021 the time being under his control and autherity as required of him under Rule-3(if{iti), Rule-3U Mii) & Rule-a(2je) of COS (Conduct) Rules, 1964. .
4. The grounds of challenge put forth are the following.
{I} That or a close scrutiny of the purported charge sheet, i appears that the charges have been formed in a casual and cavalier fashion without considering the factual situation int which the postings of the voucher in the system were not made for years and during tenure of his predecessors number of official preceding of the anpheant.
(2) The purported charges have been framed with bias coud close mind in prejudged manner as to the quilt af the applicant. Such charges are ex facie illegal and unsustainable tr law, we (3) The authority was evidently confused as to the cunbit, the construction and implication of the Rutes in a case sought to be made out against the applicant, (4) Returns of all categories were pending since long last date af checking of vouchers of Baligaria which could rot be obtained from available records. The Disciplinary authority had deliberately aritted to take note of the said relevant factors.
(5) The respondent authorities deliberately kept the sub office unmanned for years inspite of their knowledge. An accounting office remauiing 50% short of personel for years tagether was leaving the necessary updating of accounts in mess which the respondents ought to have taken note of before the applicant was, sought to be victimized on an omnibus charge.
(6) There wus undue delay in framing up of ihe alleged misappropriation, from the fast date of such misappropriation. and that too without details as to the personnel during whose tenure such lapses might have been committed, "
5. At hearing Ld. Sr. counsel 5.A.AK would place the following quiries put before the apphcant.
a eB 0, The Postmaster Jhargram HO Jhargra-72 1307 No : fa/ Misc Baligeria/ Corr/ 2020-2 1 Dated at Midnapore the O9.7 L2020 Sub: Suspected misappropriation of Govt, money by way af fake withdrawal committed by Sri Shyamal Mahata, the then SPM, Baligeria SO (now under suspension), In connection with the above noted subject, your are requested te furnish specific information on the following powts-
1. Whether SO SB branch of Jhargram HO is working? If not please intimate the date from which SOSB branch of Jhargram HO ts not hworkulg.
2, Intimate the sanctioned strength and working strength of SOSB & SBCO brane of Jhargram HO.
3. Intimate date wise submission. of return to SBCO in respect of Buligeria SO with number of vouchers.
4. Intimate whether vouchers of Baligeria SO are posted requiarly by SOSE branch af Jhargram HOP If posting of vouchers of Beligeria SO has been terminated, then please intimate the date from which posting of vouchers of Baligeria SO has been. terminated with reason.
S Please intimate number of backlag vouchers in respect of Baligeria SO date wise.
6. Please abtain information from SBCO branch ~-- how meny TD accounts have been closed with particulars of the accounts during the period from April, 2019 to July, 2020. Also obtain information whether any particular TD accounts has been closed twice during that periad and Uf se particulars thereof.
7 Pleuse intenate last date of checking of vouchers of baligeria 8O at SBCO branch.
8. Please intimate the names of the APMs of SOSB branch of Jhargram HO chronologically.
2. Please intimate the date when vouchers of Baligeria SO sent to SBCO branch last. .
Sr Supdt. of Post Midnapore Dn, Midnapore-
6 Ld. Sr. counsel would forcefully argue that, the Principal Offender being one SPM Mahata who has admittedly misappropriated, the lapses being brought to the notice by the present applicant, the applicant having successfully met the allegations in absence of any finding of fact that he had connived DAY 6 S50 {01844 (2021 ia with. the Principal Offender the applicant ought not to have been charge sheeted. That, the applicant had successfully met the charges in the following words.
a:
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a a a source "teen, , we "Point No.1. Yes, at present SOSB branch. is functioning. But with effect from O1,04. 2016, the said branch was not functioning properly, Voucher posting Was stoped since 01.4,2016 but the said branch was managed by skeleton staff towards attending revival case, Cheque clearing, verification of CIF in respect of SOs for further submission to CPC Kolkata, issue of duplicate Pass etc by exclusive one PA combined with Sub Account PA which was looked after by one APM in addition his own. entrusted works, Point No.2: The sanctioned strength was APM-1 and Pas-4.
But due to vehement shortage of staff, working strength was almost half and occasionally i was zero, But, poucher was totally stepped since 01.4.2016. Some works keeping the importance ur mind, was done with combined basis. Since April 2019, the said pranch ts totally unmanned but occasionally the important works are to be done by combined basis. in this perspective, the maiter was brought to the notice of Divisional head offand on.
Point No.3:- As the works of SOSB Branch were not being done in a regular measure, the statistic, return and other allied works had not been maintained, A S a matter of consequence, the date wise of submission of return and No of vouchers exclusively for Baligeria SO could not be feasible to intimate.
Point No. 4 Owing to acute shortage of staff, Posting of vouchers in respect of Baligeria SO including other Non CBS Sub offices could not be done. However, posting of SB voucher of Baligeria including ether Non CBS office is pending since 26,4,2016. Qpening of TD Accounts in respect of Non CBS offices, nomination of SB accounts were pending from 01.04.2018, :
Point No.8:- Since the branch was occastonally wnmanned, and as a result, maintaining of statistics, records of counting of vouchers af NON-SBS post affices could not be accomplished. Hence, date-wise back long vouchers of Baligeria SO including other NON-CBS SOs could not be feasible to ascertained, Point Ne. SBCO Jhargram HO its unable to submit the information as sought for towards number of TD accounts closed during the period from April 2019to July 2020. Further ?
& OLA. No. S50/01843 /202) OA, No Qo0/01 4/208"
Owing to CO VID 19 pandemic, the respective warks were also hampered in a great measure.
Point_No.7- In-cis-much-as, returns for all categories would not he received by SBCC for the NON CBS offices since OL.11.2Q15 CODY enclosed) and as such, if may be assumed that the voucher fi respect of Baligeria including ather NON CBS offices had been checked by SECO upto 31.40.2015."
That the charges have been framed with an ulterior motive to harass and humilate che applicant at the fag end of his career to caver up the latches of the department and te make him a scape gO at.
y 'The respondents have attempted to repel the arguments having said as wnider:
'} SrLAbhijtt Shain, while working as Postmaster, Jhargram HO during the period from 16. 08.2019 te ull date, an incidence of defaleation of huge amount of Govt money by Sri Shyameal Mahata, the then SPM, Baligeria SO funder Jhargram HO) has been detected. Baligeria Sub Post affice Was running with Sanchoy Post module and there was single staff, namely Srt Shyamal Mahata who had been provided pass weords for both operator and supervisor. Using supervisory pass word, Sri Shyamel M ahata got access in the data entry site and modified the previous transactions and thereby defalcated huge qriount of Gavi. money from various SR accounts (standing either at Baligeria SO or at its branch offices) by adopting following modus operand.
fa) That incorporation of fake deposit transactions/ false.
funding mith a tump SM amount and thereby enhancing balance amount at credit in respect of same SB accounts cand leter on. withdrawal of that same enhanced amount from. the respective account by forging signature of the concerned depositors, beyoned thew knowledge.
(b) That incorporation of fake interest amounts in some SB accounts and later on withdrawal of the respective enhanced amounts by forging signatures of the concerned depositor(s} A My ae et sense SNS, fc} That deleting the earlier interests paid in respect of some TD/MIS Accounts and thereby causing enhancement af number of installment of interests lying due in r/o the targeted TD/MIS than. the actual number of installments interest ought to be lain due and later on withdrawal of that amounts of enhanced number of installments of interests from the respective TD/MIS accounts by forging signature(s} of the respective depositors(s).
id} That deleting bonafide withdrawal transactions in respect of some SB accounts in the sanchay post ledger thereby causing enhancement of balance at credit in respect of those SR accounts and later on. withdrawal of that same enhanced amount from the respective account by forging signature of the concerned depositors.
fe) That sometimes deleting the TD/ MIS accounts after clasure of those accounts from Data entry site and subsequent false creation of TD/ MIS Accounts with same numbers and date and later on withdrawal of the closure proceeds of these doubly created accounts by forging signatures of the respective deposttors.
2, That in most of the cases combinations of more than one type or all types of modus operandi as stated above have been found adopted by the delinquent SPM.
3. That it has been established that, whatever may be the modus operandi adopted by the delinquent SPM to enhance the balances at credit in respect of different SB accounts, defalcation of Govt. money has been made factually through fake withdrawals by forging signature of the concerned depositors beyond thet knowledge.
7. 4, That those withdrawal transactions were duly accounted for at Baligeria 8.0. and reflected in the concerned Sanchay Post ledger, SB Long Book, SB List of Transactions & Sib Office Daily Account on the respective dates of fraudulent withdrawals and after the days' work the withdrawal vouchers along with other vouchers with list of transactions were duly sent to Jhargram HO along with Sub office Daily Account for checking & supervision of daily office account as well as posting of Savings hank vouchers in the system software of respective sanchay Post ledgers at Jhargram Head Post office as per rule 48(i) & fii) of POSB Savings Bank Marntucl Vol-l (Sixth Edition, Corrected up to July "2012) regularly.
10 OA. No.356/01841/2021i VW OA, No 250/01 B41 /2021 o That during the period 0 f incumbency of Sri Abhypit Shain, as Postmaster and overall supervisor of Jhergram HO, those withdrawal vouchers were duly received ut Jhergram H.Q. in time, but neither the said withdrawal pouchers mor any vauchers were posted the system software af the respechve Sanchay post ledgers at Jhargram H.OQ. en. fhe same clates or any subsequent dates as per the said Rule.
&. That Sri Abhijit Shain, P_AALSG) Jhargram HO. while working as Postmaster, dhargram HO. for the period from. 27,08.2019 to til date failed to assign any duty to his subordinate staff towards posting of Savings Bank vouchers of Baligeria Sub post office in the concemed HO ledger in system software Ut compnder at Jhargram HO on the above noted period in accordance with the provisions contained in sub mile- (4) of Ride-s and Rule-3 of POSE Savings Bank Manual Voll {Sixth Edition, Corrected up to July "201 2}.
¥ Thet ox absence of any staff in the SOSB branch at Jhargram HO. and rion posting the concerned SB wouchers during this period, fhe guspicious negative ledger balance, which would have surely beer arisen, ifthe SB vouchers Were posted in lime, could not be taken up for further verification. as per rule and thus, as @ consequence of non-posting of SB voucher at dhargram H.O., the fraudulent withdrawals had not heen come inte light. srt Shain clearly admitted in his report dated 19.12.2020 that, since 26.04.2016, mo staff hac beer.
2assigned to SO SB hranch at Jhargram H.Q. for SB voucher posting in respect of Non-CBS Post offices like Baligeria S.O. &, Phat Sri Abhijit Shay being the Postmaster of Jhargram HO did not watch over the issue of ron posting of SB vouchers in respect of Baligeria 80 and other non CBS post offices, and did not take anu t nitiatives towards posting of hack long SG vouchers_as_well as opening of 1D accounts i respect af Baligsria SC oumhich are pending since 26.04, 2016 and OLOLZOLS respectively. Sri Shain even remained silent after learning the fact_of such Mon posting af SB vouchers, and in turn. mor submission of SB returns for all PO SB schere mn respect of Bahgeria SO to SsBco branch of Jhargram, siuce O11L2015, avery months throuch Monthly Performance Report af SBCO branch, Jhargram HO, us well as correspondences made by SBCO, Jhargram HO vide no SBCO/IRR/ CBS dated O5.09,2019; 22.10.2012. 06.12.2019 and also vide No SBCO/URR/SR dated 28.11.2019; O68. 72.9019 dated 49.03.2020 endorsed to hun.
12 OLA, No. 350/0184 1/202)MX hone XK (10) That so it_is_the fact that said Sri Abhijit Shain, while working as Postmaster, Jhargram HO during the period from 16.08.2019 to till date has shown gross negligence _in duties and have failed to maintain devotion to duty, failed to take all possible steps while holding supervisory post to ensure the integrity and devotion to duty of all the Government servaruts for the time being under his control and authority as required Pay under rule-3(1)}{it) & Sule B(2N) of CCS Conduct Rules 1964. e P = (il) That the delinquent Sub Postmaster, Sri Shyamal Mahata a has chearly admitted his offence and credited voluntarily a sum of Rs 1,00,30,000,00 (Rupees One crore and thirty thousand) only in tetal into Govt. account through Un Classified Receipts to compensate a part of Gout. loss so sustained. for that defalcation of huge amount of Govt. money at Baligeria sO.
(12) That past Work Verification of Sri Shyamal: Mahata is going on and the total logs of Govt. money in Baligeria Sub Post affice fraud case is yet to be siccessed.
{13} Theat considering the nature and grave of the fraud case, at Baligeria Sub Post affice which has led the Govt. to sustain a huge amount of Govt. money and lapses on the part of Sri Abhijit Shain, the Postmaster of Jhargram Head Post office, Sri Shain has been detected _as_ one of the subsidiary offender and therefore charge sheeted under Rule-14 of ECCSICCA) Rules, 1965 by Sr. Supdt. of Posto ffices, Midnapore Dn, through memo Na Memo Ne. FD 4/A-7/07/2020-21 /Baligeria/ A. Shain dated at Midnapore the 23.07.2021."
@ We have considered the rival contentions and perused the records.
Q, In State of Punjab and Ors.vs, Ram Singh Ex. Constable [7992 (4) SCC 84] ; 1992 SCC (L&S) 793; (1992) 27 ATC 435, Hon'ble Court while explaining the Import of the term "misconduct", observed as under :
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, iis synonyms are misdemeanor, misdeed, misbehavior, delinquency. impropriety, mismanagement, offense. but not negligence or carelessness."
Sis 13 O.A. No.350/0184 1/2021 Misconduct in office has been detined as:
"Any unfawful behaviour by _@ public officer in relation to the duties of his office, willful_in_ character. Term embraces acis which the officer holder had no right fo perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
in P. RamanathaAiyar's Law Lexicon, 3rd edition, at page 3027, the tenn 'misconduct has been defined as under:
"The farm imisconduct' implies, a_wrongful intention, and not a mere error of judgment.
in Union of india &Ors. vs. J. Ahmed (1979 (2) SCC 286) :1979 SCC (L&S) 157, jiawes held-
"Cade of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow. that conduct which is blameworthy for the Government servant in ihe context of Conduct Rules would be misconduct. ifa servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, ft is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle {indicator Newspapers, 1959 1 WLR 698)) This view was adopted in ShardaprasadOnkarorasadTiwarnl__v. Divisional Superintendent, Central Railway. Nagpur Division, Nagpur, (67 Bom LR 1596), and Satubha_K, Vaghela v. MoosaRaza (10 Guj LR 23). The High Court fas noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under
"Misconduct means, misconduct arising from ill motive: acis of negligence, errors of judgment, or innocent mistake, do not canstitute such misconduct." , femphasis added} It ig therefore explicit that in a given cage, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down "atlteay "et fe.2
14 OVA. No.3S0/01841/2024 therefore. In absence of any Ul motive or violation of any code of conduct applicable to him, the applicant could not have been punished.
10. in Chairrman and Managing Director, United Commercial Bank and Others vs, P. C. Kakkar [(2003) 2 SCC 93], the Hon'ble Court observed as under i- {emphasis added) "Where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Reyappe (1974) 4 SCC 3 fas in cases where punishments in disciplinary cases are challenged}, the question will be whether the ddministrative order js "rational" of "reasonable" and the test then Is the Wednesbury _test, The Courts would then by confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he figs acted illegally ar has omitted relevant factors fram consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have token, If his action does not satisfy these rules, itis to be treated as arbitrary. in GB. Miahajan v. Jalgaon Municipal Council (1991) 3 SCC ST at p. iii Venkatachaliah, J. jas he then was} pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has te be judged from the stand point of Wednesbury rules, in Tata Cellular vs. Union of india (1994) 6 §CC 651 at pp. {6793-
80), indian Express Newspaper Bombay {P) Ltd. V. Union of India {1985} 1 SCC G41 at p. 691), Supreme Court Employees Welfare Assn. V. Linion of india (1989) 4 SCC 187 at p. 241} and U.P, Einancial Coron. V. Gem Cap (india} {P) Ltd. (1893) 2 SCC 2359 at p.2G7) while judging whether the administrative action is "arbitrary" under Article 14 fe. otherwise then being discriminatary}, this Court has confined itself to a Wednesbury review always.
The applicant has admittedly and evidently assumed charge on 21.8.19, yet he has been charged with lack of posting particulars in ledgers and journals from 2015, which allegation is unreasonable, irrational, absurd, meritless and reveal absolute non application of mind by the disciplinary authority in the framing of charges, as well as arbitrary.
li. We are aware that the scope of interference with a charge sheet is very limited.
if In Than Singh vs UOT [(2003) 3 ATJ 42, the Hon'ble Delhi High Court attempted an enumeration of the grounds on which the administrative decision to issue charge sheet or the charge sheet itself could be reviewed by a judicial forum. Hon'ble Court held as under :
The grounds upon which the correctness or othertvise of the charge sheet can be questioned are: fi) If it does not disclose any nmusconduct, (tl) if it discloses bias or prejucges the guilt of the charged employee, {ui) there is non-application of mind in issuing the charge-sheet fiv) if it is vague, {v) if it is based on stale allegations, (vi) if it is issued mala fide."
The decision of Hon'ble Apex Court in Union of India v AN, Saxena [(1992(2) SLR 11; AIR 1992 SC 1233; 1992 SCC (L&S5}) 861; (1992) 21 ATC 670] followed by Union of India v Upendra Singh {[1994(1) SLR 831; (1994) 2 SLJ 77; (1994) 3 scc 357;1994 SCC (L&S) 768] also holds the field.
Later decisions are explicit in their statements but the law remains the same. In Special Director & Another v Mohd. Ghulam Ghouse and Another {[(2004) 3 SCC 440], the Hon'ble Supreme Court held that courts should not interfere at the show cause stage | unlegs the show cause is "totally non est in the eye of law". However, these decisions, do not stultity ennui by Courts inta the jurisdictional fact Court can always find out if the condition precedent for the issue of charge sheet was satisfied. In _ other words, the Court will certainly enquire if there was a prima facie case, which ig the very basis for formation of an opinion by the competent authority, The Court will look into whether the opinion was fairly formed that it is necessary to hold an inquiry and a charge sheet is necessary to be issued. When there is 4 question as to the very existence of a prima facie case, the Court may enquire into the process of formation of the opinion itself. The absence of a prima facie case will lead to arbitrariness and must OA. No.350/01841/2021 OAL [email protected]/0184 1/202) rob the authority the jurisdiction to frame the required opinion, In such circurnstarices, it is quite possible that the "opinion" has not been fairly arrived at, and it may be tainted with bias or mala fide.
We would note that, judicial review is said to be addressed to the decision-making process. Whether or not the competent authority had before him the material for "invoking the decision making process" is certainly a matter for judicial review at the threshold of the enquiry and not after the employee has gone into the hog of sufferings and harassments, Where the employee was issued a charge sheet only 4 days before his superannuation and the authorities did not proceed with the same for 4 long years thereafter, thereby causing the employee to suffer by not releasing his retiral dues, the Hon'ble Court had interfered at charge sheet stage [K.C. Brahamachary V Chief Secretary, Delhi {1997} 37 ATC 419]. Where the authorities raked up stale materials of more than 12 years old and issued charge sheet with a view to adopt sealed cover procedure, it was held that the Tribunal had rightly interfered [Swapan Kumar Das v Union of ¢ India (2002) 1 ATJ 615].
12. Further, the charge memo explicitly expresses opinion of the respondents on the allegation even before the enquiry is conducted, with the use of following terms:
"failed to discharge his duties properly and gave a SS " Pe scope to the then SPM, Baligeria 8.0. to misappropriate the | . Govt. money to the tune of Rs, 12,81,923/- so-far. detected."
"falled to assign any duty to his. subordinate staff towards posting of 8B vouchers of Baligeria 8.0."
enemy shegS pee é "at y 5 VW? O.A.No.350/0184 1/2021 In Oryx Fisheries Pvt. Ltd. Vs. Union of India & Ors.,{2010}) 13 SCC 427, the Hon'ble Apex Court observed as "Ris well settled that a quasi-judicial authority, while acting in exercise of its statutery power must act fairly and must act with an open mind while initiating a shou! cause proceeding. A show cause proceeding is meant to give the person proceeded against a reasonable opportunity of meking his objection against the proposed charges indicated in the notice.
Justice is roated in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in_the minds of thase subjected to its jurisdiction, such authority must act with utmost fairness, Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.
lt is of course true that the show cause notice cannot be read hyper-technically and it is well setiled that it is to he read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to tt must get an impression that he will get an effective opportunity to rebut the allegations contained in the show ectuse notice and prove his innocence. If on a reasonable reading of a. show-cause notice _a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged epinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quast- judicial proceeding under a statutory regulation which promises te give the person preceeded against a reasonable opportunity of defence, Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person. after giving him. a show cause notice.
The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to if."
p ~~ 8 gunleteay® "RES 3 a press SN Se 18 OA, No.350/0184 1/2023 Hon'ble Court relied upon the test of bias laid dewn in Kumaon Mandal case, (2001) 1 SCC 182, any man of ordinary prudence would come to a conclusion that "in the instant case the alleged guilt of the appellant had been prejudged at the stage of show-cause notice itself."
13. In the aforesaid backdrop, the impugned charge memo is quashed with liberty to act in accordance with law.
O.A thus stands disposed of, No costs.
(DR NANDITA CHATTERJEE) {BIDISHA BANERJEE} MEMBER (A) | MEMBER (J) pe