Central Administrative Tribunal - Cuttack
Medini Prasad Dash vs D/O Post on 14 November, 2017
O.A.No.304 of 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No.304 of 2015
Cuttack this the 14th day of November, 2017
CORAM:
THE HON'BLE SHRI S.K.PATTNAIK, MEMBER(J)
THE HON'BLE DR.MRUTYUNJAY SARANGI, MEMBER(A)
Sri Medini Prasad Dash, aged about 57 years, S/o. Fakir Mohan
Dash, At/PO-Barapalli, Dist-Baragarh, presently working as
Postal Assistant, Baragarh H.O., At/PO/Dist-Baragarh
...Applicant
By the Advocate(s)-M/s.D.P.Dhalasamant
N.M.Rout
Arindam
-VERSUS-
Union of India represented through:
1. The Director General of Posts, Govt. of India, Ministry of
Communications, Department of Posts, Dak Bhawan,
Sansad Marg, New Delhi-110 001
2. The Chief Post Master General, Odisha Circle,
Bhubaneswar, District-Khurda-751 001
3. The Post Master General, Sambalpur Region, At/PO/Dist-
Sambalpur-768 001
4. The Director, Postal Services, O/o. Post Master General,
Sambalpur Region, At/PO/Dist-Sambalpur-768 001
5. The Superintendent of Post Offices, Sambalpur Division,
At/PO/Dist-Sambalpur-768 001
...Respondents
By the Advocate(s)-Mr.C.M.Singh
ORDER
DR.MRUTYUNJAY SARANGI, MEMBER(A):
The applicant was working as Postal Assistant at Bargarh H.O. at the time of filing of the O.A. He has filed this O.A. praying for quashing the Charge Memo dated 12.09.2014, the order of the Superintendent of Post Offices, Sambalpur Division 1 O.A.No.304 of 2015 (Disciplinary Authority) dated 31.12.2014 and the order of the Director, Postal Services, Sambalpur Region (Appellate Authority) dated 10.02.2015. He has also prayed for a direction to be issued to the respondents to refund the recovered amount to him.
2. Records show that on 3.6.2015 an interim relief was granted to the applicant directing that no recovery shall be made from his salary in pursuance of the Disciplinary Authority's order dated 31.12.2014.
3. The facts of the case as they appear from the O.A. are as follows:
The applicant had joined as Postal Assistant on 18.03.1980 at Sambalpur Head Office under the Department of Posts. He is working as Postal Assistant at Bargarh H.O. with effect from 31.5.2013. He was issued with a Charge Memo under Rule-16 of CCS (CCA) Rules, 1965 on 12.09.2014 with the following Articles of Charge:
Article-I Shri Medina Prasad Dash PA Bargarh HO while working as SPM Ghess SO under Bargarh HO with effect from 16.04.2010 to 30.05.2013 did not take any action to call for the pass books from Talpadar BO under its account jurisdiction for addition of interest after receipt of the interest statement from Bargarh HO. Had it been done by Shri Dash in time as envisaged in Rule-75 of POSB Manual Volume-I, then the commission of fraud at Talpadar BO could have been detected earlier. As a result of which Shri Gokul Chandra Sahu GDS BPM Talpadar BO got scope to commit further fraud of Rs.253830.20 out of the total fraud of 2 O.A.No.304 of 2015 Rs.634924.80 for which Shri Dash is responsible for the loss sustained by the department.
It is therefore imputed that by his above acts Shri Medini Prasad Dash failed to maintain devotion to duty and violated Rule-3(I)(ii) of CCS (Conduct) Rules, 1964.
Article-II Shri Medina Prasad Dash PA Bargarh HO while working as SPM Ghess SO under Bargarh HO with effect from 16.04.2010 to 30.05.2013 did not take any action on non receipt of SB pass books for addition of interests from Talpadar BO in which transactions have been made after 31st March and to maintain the Special Error Book. Had it been done by Shri Dash in time as per the provisions under Rule-74 of POSB Manual Volume-I, then the commission of fraud by Shri Gokul Chandra Sahu GDS BPM Talpadar BO to the tune of Rs.634924.80 could have been detected earlier. As a result of which the department sustained a loss of Rs.253830.20 for the inaction by Shri dash for which Shri Dash is responsible.
It is therefore imputed that by his above acts Shri Medini Prasad Dash failed to maintain devotion to duty and violated Rule-3(I)(ii) of CCS (Conduct) Rules, 1964.
Article-III Shri Medina Prasad Dash PA Bargarh HO while working as SPM Ghess SO under Bargarh HO with effect from 16.04.2010 to 30.05.2013 did not prepare the required list by 20th July in respect of SB pass books which are not received for entry of interest till 30th June every year and send to the Inspector of Posts Rajborasambar Sub Division, Rajborasambar. Had it been done by Shri Dash in time as per the provisions under as per the provisions under Rule-76 (b) (1)of POSB Manual Volume-I second edition corrected up to December, 2010, then the commission of fraud at Talpadar BO could have been averted and detected much earlier. As a result of which Shri Gokul Chandra Sahu 3 O.A.No.304 of 2015 GDS BPM Talpadar BO got scope to commit further of Rs.253830.20 out of Rs.634924.80 excluding interest for which Shri Dash is responsible for the above loss sustained by the department.
It is therefore imputed that by his above acts Shri Medini Prasad Dash failed to maintain devotion to duty and violated Rule-3(I)(ii) of CCS (Conduct) Rules, 1964.
Article-IV Shri Medini Prasad Dash PA Bargarh HO while working as PM Ghess SO under Bargarh HO with effect from 16.04.2010 to 30.05.2013, did not take any action to call for the Talpadar BO SB pass book account no.1298926, 1298842, 1298843 and 1298675 to settle the discrepancies between balance shown in interest statement and that in SO Ledger (SO record) during posting of interest for the year 2009-10. Had it been done by Shri Dash in time as envisaged in Rule-73 (4) of POSB Manual Volume-I second edition corrected up to December, 2010, then the commission of fraud at Talpadar BO could have been averted and detected much earlier. As a result of which Shri Gokul Chanda Sahu GDS BPM Talpadar BO got scope to commit further of Rs.253830.20 out of Rs.634924.80 excluding interest for which Shri Dash is responsible for the above loss sustained by the department.
It is therefore imputed that by his above acts Shri Medini Prasad Dash failed to maintain devotion to duty and violated Rule-3(1)(ii) of CCS(Conduct) Rules, 1964.
The Memo of Charges was sent to the applicant and he submitted his defence representation on 22.9.2014. In his defence representation, he stated that on 16.4.2010 he came to know that Shri Gokul Sahu, GDSBPM, Talpadar B.O. was a paralysis patient and his work was being managed by his son Shri Tekchand Sahu. After coming to know of this irregularity, 4 O.A.No.304 of 2015 he had informed the then Inspector of Post Offices Shri Girish Chanda Sahu, who visited the B.O. on 25.6.2010. The Inspector of Post Offices in his report had pointed out this irregularity. Subsequently the next Inspector of Post Offices Shri Ashok Rath also inspected the Branch Office, but could not detect the fraudulent case. On receipt of information about the misappropriation in one Savings Bank Account No.1298889 of Shri Gajindra Bag, the applicant called for the pass book and informed the Inspector of Post Offices Shri Ashok Rath who visited Talpadar Branch Office and seized the office key and gave the charge of B.O. to the EDDA Shri Duitiya Bhorasaga. In his defence statement, the applicant stated that the fraud was discovered by him and therefore, the charges framed against him are not valid and he should be exonerated. The Disciplinary Authority, however, did not accept the defence offered by the applicant and held him guilty of lack of supervision and concluded that had the applicant observed the due procedures laid down by the Department, then the fraud at Talpadar B.O. could have been detected earlier and further loss of Government money could have been avoided. The Disciplinary Authority imposed a punishment on him for recovery of Rs. 1 lakh in twenty installments of Rs.5,000/- per month with effect from the pay of January, 2015. The applicant filed an appeal against this order which was disposed off by the Director of Postal Services, Sambalpur Region, the Appellate Authority, by 5 O.A.No.304 of 2015 his order dated 11.5.2015 upholding the punishment awarded by the Disciplinary Authority. Aggrieved by this, the applicant has filed the O.A. praying for the relief as mentioned at Para-1 above.
4. The applicant has based his prayer on the grounds that the Charge Memo dated 12.9.2014 is vague and unspecific and the action of the respondents violates Articles 14 and 16 of the Constitution of India. Respondent No.5 has imposed the punishment without conducting an inquiry and the recovery of Rs.1 lakh is unreasonable since no assessment has been made for the pecuniary loss. The impugned order dated 31.12.2014 by the Disciplinary Authority is without application of mind since no misappropriation has been done by the applicant. Therefore, the order of recovery by the Disciplinary Authority has been passed without explaining the manner in which the lapses on the part of the applicant had a link with the loss sustained by the Department. The applicant had detected the fraud and because of his action the Inspector of Post Offices conducted the inquiry and submitted the report. Therefore, the punishment imposed on the applicant is unjust and liable to be quashed. No recovery should have been made from the applicant without conducting a proper inquiry.
5. The Respondents in their counter-reply filed on 8.12.2015 submitted that the applicant is guilty of lapses which led to the loss incurred by the Department. He had neglected to 6 O.A.No.304 of 2015 call for the Pass Book from Talpadar B.O. for addition of interest and for checking the transactions. He also failed to maintain the Special Error Book as a result of which the fraud committed by Shri Gokul Chandra Sahu could not be detected and Shri Sahu got scope to commit further fraud of Rs.253830.20 in different SB/RD Accounts out of the total fraud of Rs.634924.80. He also did not take any action to call for the SB Account No.1298926, 1299026, 1298843 and 1298675 of Talpadar BO to settle the discrepancies between balance shown in interest statement and that in SO Ledger (SO record) during posting of interest for the year 2009-10, violating the provisions of Rule-73(4) of POSB Manual Volume-I, Respondents have submitted that the applicant had filed O.A. No.88 of 2015 before this Tribunal earler and the said O.A. was disposed off at the admission stage ordering the Respondent No.4 to consider the appeal filed by the applicant. The punishment order imposed by the Disciplinary Authority was upheld by the Appellate Authority subsequently. The Respondents have argued that the orders of the Disciplinary Authority and the Appellate Authority have been passed with due application of mind since the applicant is a first line direct supervisor to examine and maintain the work of GDSBPM. Because of lack of supervision, the Department incurred pecuniary loss and therefore, the imposition of punishment of 7 O.A.No.304 of 2015 recovery of Rs.1 lack from the applicant as a portion of the loss sustained by the Department is legal , valid and sustainable.
6. The applicant has filed a rejoinder on 5.9.2017 and reiterated that as soon as he came to know about the irregularities of Talpadar B.O., he had informed the Inspector of Post Offices telegraphically and the then Inspector of Post Offices inspected Talpadar B.O. on 25.6.2010 and submitted a report pointing out the irregularities. The Respondent No.5 (Superintendent of Post Offices, Sambalpur Division) without taking any action against the GDS BPM of Talpadar B.O. had allowed the son of Shri Gokul Chandra Sahu to commit fraud. Due to the inaction of Respondent No.5, an amount of Rs.634924.80 has been misappropriated by the then GDS BPM of Talpadar BO. The responsibility has been unfairly shifted against the applicant. Subsequently, Shri Ashok Rath, Inspector of Post Offices visited Talpadar B.O. and placed Shri Gokul Chandra Sahu under off duty. Since the fraud was detected on the information given by the applicant, he should not be awarded any punishment.
7. The Respondents had filed M.A.No.312 of 2017 on 7.6.2017 praying for the vacation of the interim relief since the applicant was to retire on superannuation on 31.10.2017 and it will be difficult to recover the amount from the retirement benefits under Rule-73 of CCS (Pension) Rules. The matter was 8 O.A.No.304 of 2015 listed for final hearing on 30.10.2017 and reserved for orders after hearing the learned counsels from both the sides.
8. During the arguments, the learned counsel for the applicant cited the judgment in O.K.Bhardwaj vs. Union of India & Ors. [2002 SCC (L&S) 188] in which the Hon'ble Supreme Court has laid down the principle that opportunity of being heard is essential even in case of minor penalty. He has also cited the orders of this Tribunal in O.A.No.241 of 2014 wherein the departmental proceedings initiated under a vague Charge Memo was held to be illegal and quashed and in yet another O.A.No.582 of 2016, this Tribunal had quashed the disciplinary proceedings on the ground that the Postal Authorities had not conducted inquiry into the matter of fraud in time and in view of the fact that the applicant did take steps in the matter, the orders of the Disciplinary Authority and the Appellate Authority do not appear to be based upon the facts of the case. On the other hand, to support their contention that the applicant failed to perform the duties assigned to him, the learned counsel for the respondents cited the judgment of the Hon'ble Supreme Court in Ramachandra Keshav Adke (Dead) vs. Joti Chavare and Ors. ( AIR 1975 SC 915) in which it was held that where the power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. 9 O.A.No.304 of 2015
9. We have heard the learned counsel from both the sides and perused the documents submitted by them. We have also gone through the case laws cited by both the sides. Whereas the Respondents' reliance on Ramachandra Keshav Adke (Dead) vs. Joti Chavare and Ors. (supra) is irrefutable and it goes without question that a Government official must exercise the authority and power given to carry out his duties in a particular way and any infraction of the same is bound to attract punitive action, the applicant on the other hand has relied upon the orders passed by this Tribunal in earlier cases. The facts of the present case clearly point out to a fraud and defalcation committed by the BPM, Talpadar B.O. The applicant had pointed out irregularities being committed in Talpadar B.O. where the incumbent BPM had unauthorizedly and illegally entrusted the work of running the BO to the son. The Respondents have not disputed that this irregularity was pointed out by the applicant following which the Inspector of Posts Offices had gone and conducted an inquiry in Talpadadr BO. The Respondents have taken great efforts to prove the fact of lack of supervision by the applicant in checking the Savings Bank Accounts and the remittance of interests in certain Accounts which led to the defalcation and fraud in the B.O. However, while fixing responsibility on the applicant for a sum of Rs.1 lakh to be recovered from him, the respondents have failed to conduct an inquiry knowing fully well that this is a case of defalcation by 10 O.A.No.304 of 2015 the BPM and fixing up responsibility even for supervisory lapses on the part of the applicant called for a detailed inquiry. In coming to this conclusion, we are guided by the principles laid down by the Hon'ble Supreme Court in O.K.Bhardwaj vs. Union of India & Ors (supra).
10. In earlier cases also this Tribunal had considered similar matters and had given decision on the need for conducting an inquiry before passing the orders of recovery. In O.A.No.582 of 2016, this Tribunal in its order dated 22.6.2017 had observed as under:
"6. The Appellate Authority has confirmed the order of the Disciplinary Authority. The order of the Disciplinary Authority was imposed without holding any formal inquiry since there is no such mandatory provision and the applicant did not make any representation to that effect to the Disciplinary Authority. However, the Disciplinary Authority while mentioning that the applicant made a correspondence with the ASPO, Bargarh in the year 2014 after the case had come to light has observed that the applicant failed to take further follow up action to enforce the compliance. However, from the documents filed, I find that the applicant had also sent a letter dated 16.11.2012 to the S.P.O., Sambalpur Division, mentioning the fact that the concerned GDS BPM is not sending the SB passbooks for interest posting. Therefore, the observation of the SPO appears somewhat unreasonable since the records reveal that the applicant did take steps to call for the SB passbooks and kept the concerned authorities informed with a request to take appropriate action also. I also find that the applicant had made some valid submissions in the appeal petition but the Appellate Authority has not dealt with these submissions in a fair manner. It appears, on the basis of the records, that the allegation that the applicant did not take any action to call for the passbooks and to report the matter to the higher authorities does not hold water. No reasonable basis is found to be given for the order of recovery of Rs. 90,000/- to be recovered in two installments of Rs. 45,000/- each from the pay of the applicant. The authorities have alleged that the applicant is guilty of contributory negligence and his failure of supervision has made the path easier for the delinquent to 11 O.A.No.304 of 2015 commit the said misappropriation but the punishment of recovery of Rs. 90,000/-, that too in two installments on the basis of this charge, appears to be bad in law. It is not that the applicant has not taken any action to call for the passbooks and alert the higher authorities regarding suspicious transactions of the main delinquent. It could be asked that if the applicant had informed the authorities on 16.11.2012 making a request for looking into the matter with regard to the suspicious activities of the main delinquent why the authorities did not immediately conducted an inquiry into the matter to fix responsibility on the main delinquent. Therefore, the Respondent-authorities themselves cannot said to be free from the charge of failure of supervision. As against the records that the applicant did take steps in the matter, the orders of Disciplinary Authority and the Appellate Authority do not appear to be based upon the facts of this case.
7. On the subject of contributory negligence and the culpability of the postal department employees with regard to failure of supervision or their role as subsidiary offenders in such matters, the Tribunal had earlier decided a few O.As. In O.A.No. 634/2009, Sukomal Bag Vs. UOI & Ors., a similar matter was decided by the Tribunal by an order dated
11.11.2010 by which the case of the applicant was allowed and the orders of punishment was quashed. Similar matter had come up for adjudication before the Tribunal in O.A. No. 106/2016, which was decided on 25.04.2017. In this O.A. also, a similar order was passed following the earlier precedent. Therefore, based upon the decisions earlier given by the Tribunal in similar matters and also considering the fact that similar issues are involved in the present O.A., I am of the opinion that the charge sheet, order of punishment by the Disciplinary Authority and the order of the Appellate Authority are not sustainable under law. Therefore, the same are quashed and set aside and, thus, the O.A. is allowed with no costs to the parties.
11. Similarly in O.A.No.241 of 2014, the following observations were made by this Tribunal while passing the orders dated 13.10.2017:
"That apart if there was loss of Rs.2,54,000/- to the Government I do not understand the reasoning of the department in ordering the recovery of Rs.1,27,000/- and showing laxity in respect of other portion of loss of 12 O.A.No.304 of 2015 Rs.1,27,000/-. From the charge memo and order of the disciplinary authority it reveals that entire amount of Rs.2,54,000/- has been paid to Dilip Kumar Sahu. If there were fraudulent transactions, FIR should have been lodged against Shri Dilip Kumar Sahu along with the present applicant for such alleged misappropriation and illegal withdrawal of Government money, but for the reasons best known, the department did not resort to that method. Since the department did not furnish the relevant documents to the delinquent employee the entire proceeding is liable to be quashed, as prejudice caused to the employee cannot be under estimated. To sum up, charges leveled on the delinquent employee both under Articles I & II have not been proved by way of documentary or cogent evidence and rather the department in order to avoid collection of primary evidence resorted to the backdrop method by initiating a minor penalty proceedings in respect of such huge financial irregularity, even without showing what was the exact degree of culpability on the part of the delinquent employee in all those transactions. Since initiation of the departmental proceedings under vague charge memo is illegal and not tenable, the same is liable to be quashed in the larger interest of justice, equity and good conscience. Since the orders have been passed without legal evidence and proof of the documents, the same are liable to be quashed. In a departmental proceeding, based on documents, nothing can be assumed and has to be proved with reference to relevant documents of transaction including production of deposit ledger and withdrawal slips, which was grossly missing in this case.
6.Hence the O.A. is allowed. The orders of Disciplinary Authority dated 20.12.2013(Annexure-A/3) and Appellate Authority dated 25.03.2014(Annexure-A/6) being arbitrary and illegal the same are hereby quashed. The charge memo of 2013 has been issued for misconduct taking place in between 2000 and 2001 and that too without specification of the misconduct and 13 O.A.No.304 of 2015 hence, the same is also quashed on the ground of inordinate delay and latches as also being vague and unspecific. No costs".
12. In the present case, although the applicant has maintained that it was on his report that the Inspector of Post Offices had conducted the inquiry into the activities of Talpadar B.O., this aspect has not been taken into account in the orders passed by the Disciplinary Authority and the Appellate Authority. While trying to establish the lapses on the part of the applicant due to lack of supervision, the Disciplinary Authority and the Appellate Authority have also not established how they have arrived at a figure of Rs.1 lakh as a compensation for the loss of Rs.634924.80 as the total loss sustained by the Department. Moreover, while fixing an amount for recovery from the applicant, the Disciplinary Authority has failed to conduct an inquiry which seems to be arbitrary and irregular. Similarly the fixing of an amount of Rs.1 lakh is also arbitrary and without any basis. Documents also show that on 25.6.2010, the Inspector of Post Offices had filed an inspection report with a conclusion that the BPM had maintained the records in a haphazard manner and a copy of the report had been sent to the Superintendent of Post Offices, Sambalpur Division. There is no mention of any lack of supervision on the part of the applicant in the said inquiry report. The very fact that the punishment has been imposed on the applicant without 14 O.A.No.304 of 2015 conducting a due inquiry and proper examination of the fact has vitiated the departmental proceedings.
13. In view of the above, the O.A. is allowed. The Charge Memo dated 12.09.2014, orders of the Disciplinary Authority dated 31.12.2014 and the orders of the Appellate Authority dated 11.05.2015 are quashed and set aside. Any recovery made from the applicant may be refunded to him within a period of four weeks from the date of receipt of this order.
14. No order as to costs.
(DR.MRUTYUNJAY SARANGI) (S.K.PATTNAIK)
MEMBER(A) MEMBER(J)
BKS
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