Central Administrative Tribunal - Cuttack
S K Satapathy vs D/O Post on 6 September, 2022
1 O.A.No. 260/00088 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00088 of 2017
Reserved on 23.08.2022 Pronounced on 06.09.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Sanjit Kumar Satapathy aged about 44 years, S/o. Late
Bishnu Charan Satapathy, resident of At - Soubhagya Nagar,
PO - Angul HO, PS - Angul, Dist- Angul, Odisha, PIN-759122,
presently working as Inspector of Posts, Angul East Sub
Division, Angul.
.....Applicant
For the Applicant : Mr. C.P.Sahani, Counsel
-Versus-
1. Union of India, represented through its Secretary-cum-
Director General of Posts, Dak Bhawan, Sansad Marg, New
Delhi - 110116.
2. Chief Post Master General, Odisha Circle, At/P.O.
Bhubaneswar, Dist.:- Khurda, Odisha - 751001.
3. The Director of Postal Services, Sambalpur Region,
Sambalpur - 768001.
4. The Superintendent of Post Offices, Cuttack South
Division, Cuttack -753001.
5. The Superintendent of Post Offices, Dhenkanal Division,
Dhenkanal -759001.
..... Respondents
2 O.A.No. 260/00088 of 2017
For the Respondents: Mr. M.R.Mohanty, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
Charge sheet under Rule 16 of CCS (CCA) Rules, 1965 was issued to the applicant vide Annexure-A/2 dated 31.03.2015 alleging that the applicant, Inspector of Posts, Cuttack Sub-Division, was holding the additional charge of Inspector of Post, Kujang Sub Division, during the period from 28.02.2013 to 11.06.2013, was directed to submit report after necessary inquiry relating to keeping excess amount by one Sri Sangram Keshari Behera, the then Postmaster, Gr. I, Kujang S.O. vide letter No. G5-Misc/06 dated 07.05.2013 enclosing thereto copy of the Postmaster, Jagatsinghpur HO Error Extract No. 65 dated 15.04.2013. But, the applicant did not take action promptly thereby allowing Sri Sangram Keshari Behera to defraud the amount from several accounts. It is the case of the applicant he submitted application seeking documents as also denying the allegation made against him but the Disciplinary Authority (DA in short) allowed him only to peruse five documents. Again, the applicant submitted an application on 23.04.2015 requesting supplying him document, which was rejected by the DA in letter dated 27.04.2015. On 29.02.2016, applicant submitted written statements of 3 O.A.No. 260/00088 of 2017 defence denying the allegation. The DA vide order dated 26.09.2016 imposed the punishment of recovery of Rs. 1,00,000/-. Applicant submitted appeal on 30.09.2016 and alleging no consideration of his appeal approached this Tribunal in OA 722/2016, which was disposed of on 20.10.2016 with direction to the Appellate Authority (AA in short) to consider and dispose of the appeal of the applicant. The AA rejected the appeal in letter dated 30.01.2017. Thereafter, the applicant filed this O.A. inter alia stating that the allegation made is not correct and is based on no evidence and that imposition of punishment for subsidiary offence is not permissible is no more res integra and, therefore, the charge sheet under Annexure-A/2 dated 31.03.2015, order of the DA Annexure-A/9 dated 26.09.2016 and order of AA under Annexure- A/12 30.01.2017 are liable to be quashed with direction to the respondents to refund the amount recovered from him with interest.
2. The sum and substance of the case of the respondents in their counter is that after coming to the notice of the fraud committed by Sri Behera, Ex- Postmaster, Kujang SPO, the applicant being the Inspector in-charge, of the judisdictional SPO was directed vide letter No. G5-Misc/06 dated 07.05.2013 to submit the report after necessary inquiry but the applicant had failed to do so promptly. Had he done so promptly, the fraud committed by Sri Behera, Ex- Postmaster, Kujang SPO, during the period could have been averted. The act of 4 O.A.No. 260/00088 of 2017 the applicant became unbecoming on the part of a Govt. servant chargesheet under Rule 16 was issued against him. He had sought documents, opportunity of perusal of document was duly allowed to him he perused the same and submitted the reply to the charge sheet denying the allegations against him. The DA considered the reply of the applicant vis a vis the records and in order to make good of the loss caused to the department, the applicant was imposed with the order of punishment for his contributory negligence in a well reasoned and speaking order. The applicant preferred appeal, which was duly considered by the AA and also in a well reasoned order communicated the reasons justifying as to why no interference is warranted in his appeal. Accordingly, the respondents denied the allegation of violation of the rules of principle of natural justice in any manner requiring the interference by this Tribunal and prayed for dismissal of this O.A.
3. Ld. Counsel for the applicant, at the cost of repetition of the averments made in the O.A., has denied the receipt of the letter No. G5-Misc/06 dated 07.05.2013 and submitted that had the respondents caused a regular inquiry, it could have been unearthed as to how far it is correct that the letter was duly received by the applicant but only to punish the applicant for somehow or the other without any fault of him the respondents imposed the punishment based on conjecture and surmises in violating the cardinal principle of law 5 O.A.No. 260/00088 of 2017 that however suspicion may be that can not be proved in a domestic inquiry. He has also placed reliance on the decision of the Hon'ble Apex Court in the case of O.K.Bhardwaj Vs. UOI & Ors, (2001) 9 SCC 180, to substantiate that even through it is a minor penalty proceeding when the factual aspect is in dispute, the respondents ought to have gone for a regular inquiry. Ld. Counsel for the applicant has also relied on the decision of this Tribunal in O.A. 103/2015, (Khageswar Mohanta Vs UOI & Ors) disposed of on 28.06.2017 and O.A. No. 260/00338 of 2018 (Manmohan Mohapatra) decided on 25.05.2022 wherein this Tribunal quashed the punishment imposed on the said applicants for the offence committed by another employee, to substantiate that the imposition of punishment for subsidiary offender is bad in law. Accordingly, Ld. Counsel for the applicant has prayed for the relief claimed in the O.A.
4. On the other hand, Ld. Counsel for the respondents has denied the allegation by stating that since the letter No. G5-Misc/06 dated 07.05.2013 was shown to have been delivered at the addressee, as per Section 114 of Evidence Act, read with the decision of the Ho';ble Apec Court in the case of C.C.Alavi Haji Vs. Palapetty Muhammed & Anr. , (2007) 6 SCC 555, it is to be treated that the document is deemed to be delivered. Thus, taking the plea that the letter is not delivered. Further, by drawing the attention of para 14 of 6 O.A.No. 260/00088 of 2017 Section 27 of General Clauses Act read with the decision dated 01.08.2008 in the case of Subodha S.Salaskar Vs. Jayaprakash M Shah & Anr., Criminal Appeal No. 1190/2008, it is presumed that the letter has been delivered. Accordingly, while denying the stand of the applicant that he has not received the letter, it has been reiterated that since the applicant has failed to take action promptly and submit the report Sri Behera committed the fraud of huge amount and after following due procedure of rules and complying with the principles of natural justice, in order to make the loss good, the applicant was imposed with the punishment commensurate with the gravity of misconduct, which needs no interference by this Tribunal. Accordingly, Ld. Counsel for the respondents has prayed for dismissal of this O.A.
5. Considered the rival submission of the respective parties and perused the records. Admittedly, no inquiry is required to be done unless delinquent has asked for the same in a proceeding under Rule 16 of CCS (CCA) Rules, 1965. However, it is seen that the Hon'b le Apex Court 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 7 O.A.No. 260/00088 of 2017 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"
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.
6. It is also admitted fact that the applicant has specifically denied of receipt of the letter No. G5-Misc/06 dated 07.05.2013 and the punishment was imposed without holding any regular inquiry provided under rules. Therefore, at this stage, this Tribunal do not inclined to express any opinion as to whether the conduct of the applicant comes within the meaning and definition of misconduct and whether imposition of punishment for subsidiary offender is legally tenable because it is the specific case of the applicant that onus of burden completely lies on the DA to prove to receipt f the letter and, according to the applicant, it could have been unveiled had the respondents caused due inquiry. Since, the factual aspect f the matter is under dispute, by applying the law laid down above, the impugned order is quashed and the matter is remitted back to the respondents authority to cause a 8 O.A.No. 260/00088 of 2017 detailed inquiry in the matter provided under rule 11 of the CCS (CCA) Rules and, accordingly, act upon based on the result of the such regular proceedings. The refund of the recovered amount, as prayed for, shall be decided after the closure of the proceedings. The entire drill shall be completed within a period of 4 months of the date of receipt of a copy of this order.
7. In the result, O.A. is allowed to the extent as mentioned above in para 6. There shall be no order as to costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS