Central Administrative Tribunal - Chandigarh
Krishan Kumar Saini vs D/O Post on 10 May, 2023
1- O.A. No. 1081/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1081/2021
Pronounced on:10.05.2023
(Reserved On: 06.03.2023)
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Krishan Kumar Saini, aged about 65 years, S/o Sh. Lal Chand Saini, R/o
House No. 496, Urban Estate-II, Hisar-125005, former Postal Assistant
(Group C) Narnaul Head Post Office (Haryana )
....Applicant
(By Advocate: Mr. Jaswinder Singh)
Versus
1. Union of India through Secretary to Govt. of India, Dept of Posts,
Dak Bhawan, New Delhi-110001.
2. The C.P.M.G. Haryana Circle, Ambala Cantt - 133001.
3. The Superintendent of Post Offices, Hisar Division, Hisar -125001.
4. The Superintendent of Post Offices, Gurgaon Division, Gurgaon -
122001.
... .Respondents
(By Advocate: Mr. Sanjay Goyal)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
(i) To declare that the recovery of Rs.716240/- made from the salary, leave encashment and DCRG of the applicant is wrong irregular, illegal and thus void.2- O.A. No. 1081/2021
(ii) To quash and set aside orders contained in letters dated 19.03.2021, 28.05.2021 and 17.08.2021 issued by Respondent No. 2
(iii) To direct the respondents to refund/release the recovered amount of Rs.716240/- with interest @12 % p.a. with effect from the date of recovery.
2. The factual matrix of the case is that the applicant joined the Department of Posts as Postal Assistant in August1980 in Model Town Sub Post Office, Hisar. He was proceeded against under Rule 16 of CCS (CCA) Rules, 1965 vide Memo dated 11.12.2009, in respect of allegations related to payment of NSCs/KVPs issued by Mini Sectt. Hisar Post Office to the person other than the actual investor. The penalty of withholding of one increment for one year without cumulative effect and recovery of Rs 4,08,770/- was imposed on the applicant by Respondent no.3/ SPOs Hisar Dn. OM Dt. 27.9.2010 (Annexure A-1), which was later revised to that of only of recovery of Rs 408770/- by the Revisionary Authority viz., CPMG, Haryana Circle vide Memo. No. Staff/1-4/15/2014 dated 01.10.2015. The applicant submitted a representation dated 16.1.2020 (Annexure A-2), to Respondent No.3 for refund of the aforesaid amount of recovery, followed by another representation dated 22.12.2020 (ANNEXURE A-5), under Rule 117 read with Rule 114 & 15 of Postal Man. Vol. II to DPS O/o. CPMG Haryana Circle (Respondent No.2). The Respondent No.2 replied vide letter no. Staff/25-1/898/I dated 19.3.2021 (Annexure A-6) that "Your representation dated 22.12.2020 has been considered & rejected". It has been contended that no reasons have been assigned/communicated therein, which is bad in law.
3- O.A. No. 1081/2021
3. It has been further submitted that while working as Postal Assistant, Narnaul, Head PO, the applicant was proceeded against under Rule 16 of CCS (CCA) Rules, 1965 vide Memo dated 20.10.2015 (Annexure A-7) in respect of allegations related to payment of NSCs/KVPs issued by Mini Sectt. Hisar PO not to the actual investor and a penalty of recovery of Rs 3,07,470/- from Leave Encashment and DCRG of the applicant was imposed by SPOs Gurgaon Division. The applicant submitted a representation dated 28.2.2020 (Annexure A-8) to Respondent No.4, for refund of the aforesaid amount of recovery which was replied vide letter dated 28.10.2020 (Annexure A-10) stating that "your representation dated 28.2.2020 is belated one and not reviewable now". Aggrieved thereby, the applicant submitted a petition dated 27.3.2021 (Annexure A-11) under Rule 117 of Postal Man. Vol. II to Respondent No.2, which has been replied vide letter no. Staff/25- 1/898/I dated 28.5.2021 (Annexure A-12) that "Your representation dt. 27.3.2021 has been considered & rejected". It has been contended that the said order dated 28.05.2021 is very sketchy, skeletal and cryptic and unreasoned as no reasons have been assigned/communicated therein, which is bad in law. The applicant got served Legal Notices dated 30.7.2021 and 31.7.2021 (Annexure A-13 and Annexure A-14) requesting respondent no.2 to pass a well-reasoned order. The respondent no. 2 has replied to the legal Notices vide Letter dated 17.8.2021 (Annexure A-15) rejecting the request of the applicant stating therein that "even though DFSC Hisar has not submitted any claim in respect of the defrauded amount, but in future DFSC Hisar or any other depositor can submit his claim for sanctioning the defrauded 4- O.A. No. 1081/2021 amount". It has been contended that the logic given is highly unreasonable and unjust.
4. It has been contended that in reply to the Application under RTI Act, respondent No.3 has informed the applicant vide letter No. CR-RTI/Info/126/2018-19 dated 03.09.2019 (A-3) that there has been no claim/payment with regard to the alleged wrong payment of NSCs/KVPs in Mini Sectt. P.O. Hisar for the relevant period and thus the information relating to such cases may be treated as nil, it is highly arbitrary and unreasonableness on the part of the respondents to retain the huge recovered amount with them. Further, the order of recovery of Rs. 3,07,470/- from Leave Encashment/ DCRG of the applicant, as ordered by Respondent No. 4 vide order dated 20.10.2015 is wrong, illegal, without jurisdiction and void as Rule 11(3) of CCS(CCA) Rules,1965 provides for recovery of pecuniary loss caused to the government ONLY from the „pay‟. It has also been contended that respondent no.2 has disposed of the petition of the applicant in a cursory, cryptic, non- speaking and unreasoned order, which is against the Principles of natural justice and not legally sustainable. Reliance in this regard has been placed upon various judgments including Secretary & Curator Victoria Memorial Hall v Howrah Gantantrik Samity ((2010) 3 SCC 732]; G.Vallikumari v Andhra Education Society [(2010) 2 SCC 497] & Competition Commission of India v SAIL [(2010) 10 SCC 744].
5. It has further been contended that the reason of rejecting the application for refund of the recovered amount as given in para 4 of the letter dated 17.8.2021 - "even though DFSC Hisar has not submitted 5- O.A. No. 1081/2021 any claim in respect of the defrauded amount, but in future DFSC Hisar or any other depositor can submit his claim for sanctioning the defrauded amount" - is highly unreasonable and unjust. The respondents cannot cause prejudice and huge financial burden to the applicant on the basis of imaginary future possibility. There cannot be any lawful recovery and retention of recovered amount with regard to the prospective loss, which is yet to be suffered. The statutory Rule provides for recovery in case of any pecuniary loss caused by him to the Government and not for any prospective loss, which may be caused. It is well settled in law that when a statute prescribes to do a particular thing in a particular manner, the same shall not be done in any other manner than prescribed under the law. Reliance in support of the argument has been placed on judgments of the Hon‟ble Supreme Court in the cases of State of Uttar Pradesh v. Singhara Singh[AIR 1964 SC 358] Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422] In Captain Sube Singh v. Lt.Governor of Delhi, AIR 2004 SC 3821 and In State of Jharkhand v. Ambay Cements, [(2005) 1 SCC 368.
6. The respondents have filed written statement contesting the claim of the applicant. It has been stated therein that a complaint was made by one other postal official against the applicant on the allegations that the applicant was committing fraud in payment of NSCs/KVPs by encashing the unclaimed instruments (NSCs/KVPs) pledged in favour of Distt. Food and Supply Controllers, Hisar, which was lying with District food and Supply Controllers Hisar. The matter was inquired by the investigation team of Respondent No. 2, which disclosed that the applicant was involved in fraudulent activities. He was proceeded under Rule 16 of CCS (CCA) Rule 1965 vide memo dated 6- O.A. No. 1081/2021 11.12.2009 for alleged non-payment of NSC/KVP to the actual depositor in contravention to Rule 23 of Post Office Saving Bank Manual Volume II. He was further alleged for payment of pledged NSC/KVP without obtaining the security release letter from District Food and Supply Controller, Hisar and violated Rule 39 of Post Office Saving Bank Manual Volume II. The applicant was awarded a penalty of withholding of next one increment for one year without future effect and recovery of Rs.4,08,770/- including penal interest of Rs.63,553/- from the salary of the applicant vide memo dated 27.09.2020 (Annexure A-1). While consideration of the appeal, the penalty was reduced to the recovery of Rs.4,08,770/- including penal interest of Rs.6,35,53/- from the salary of the applicant. The petition of the applicant was rejected on merit by the concerned authorities.
7. The District Food and Supply Controller (DFSC) Hisar also reported the matter to Police Authorities and FIR No. 411 dated 16.07.2009 under Section 420, 409, 379, 120 B of IPC was registered in Civil Lines, Police Station, Hisar regarding fraudulent payments of some NSCs/KVPs, which were lying in the custody of DFSC Hisar and were pledged as Security in his favour. The payments of these NSCs/KVPs were made without obtaining the security release orders from the office of DFSC Hisar. Consequently, the applicant along with two other officials of the Department were convicted and the learned Court sentenced the applicant to undergo simple imprisonment for three years along with fine of Rs.10,000/- for the commission of an offence punishable under Section 409 and 420 of IPC read with Section 120 B of IPC. These punishments were awarded in each of Sections 409 and 7- O.A. No. 1081/2021 420, which were to run concurrently. Meanwhile, the applicant was transferred from Hisar to Gurgaon Division to join as Postal Assistant Narnaul under Rule 37 of Postal Manual, Vol IV vide Respondent No. 2 memo dated 23.11.2010 on administrative grounds, but the applicant had joined Narnaul HO on 15.03.2014. Therefore, the applicant remained absent from 26.11.2010 to 14.03.2014 to avoid his transfer. On the basis of further involvement of the applicant, the matter was processed under Rule 16 of CCS (CCA) Rule 1965 vide Memo dated 22.01.2015 for alleged non payment of NSC/KVP to the actual depositor in violation of Rule 23 of Post Office Saving Bank Manual, Volume II. The applicant was further alleged with the charge of payment of pledged NSC/KVP without obtaining the security release letter from District Food and Supply Controller, Hisar and violated Rule 39 of Post Office Saving Bank Manual, Volume II. The applicant was awarded a penalty of recovery of Rs.3,07,470/- from the leave encashment/DCRG vide memo dated 20.10.2015 (Annexure A-7). The applicant has also submitted an appeal and petition against the penalty and the same was rejected on merit by the concerned authorities.
8. It has been further submitted that under CCS (CCA) Rule, 1965, the disciplinary action was initiated by respondent No. 4 against the applicant as he was identified as co-offender in the case of fraudulent payment of various NSC/KVPs in the name of various firms duly pledged in favour of District Food and Supply Office, Hisar. The charge sheet under Rule 14 of CCS (CCA) Rules 1965 was issued vide memo dated 23.02.2011. The applicant was deliberately avoiding the receipt of charge sheet as numerous repeated efforts were made by 8- O.A. No. 1081/2021 respondent no. 3 for delivery of Charge Sheet to the applicant. Finally, the disciplinary case was processed further and Inquiry and Presenting Officers were appointed by Respondent No. 4 vide memo dated 23.05.2012. The date of the preliminary hearing was fixed as 20.07.2012 but no proceeding could be held as the applicant did not attend the enquiry. The next date of hearing was fixed as 28.08.2012 but the applicant again did not attend the enquiry on 12.09.2012 and 28.09.2012. The inquiry officer completed the inquiry and submitted his report, a copy of which was supplied to the applicant vide memo dated 14.09.2015, holding that the charged framed against the applicant as partially proved. The applicant submitted a representation dated 01.10.2015. On the basis of enquiry report and connected case report, the respondent No. 4 awarded a penalty of compulsory retirement from service with immediate effect vide memo dated 20/23.10.2015. The applicant was treated as relieved from service on 26.10.2015. The total recovery of Rs.7,16,240/- from salary/leave encashment/DCRG was to be made against the penalty awarded under Disciplinary proceedings Memo dated 27.09.2020 (Annexure A-1) and 20.10.2015 (Annexure A-
7) whereas only Rs.6,31,532/- could be recovered from the applicant and Rs.84,708/- is still pending to be recovered from him. The respondents have placed reliance upon the following judgments of the Hon‟ble Apex Court:-
(i) Union of India Vs. P. Gunasekaran, 2015 (s) SCC 610
(ii) State Bank of India & Ors Vs. Samarendra Kishore Endow & Another, (1994) 1 SC 217 9- O.A. No. 1081/2021
(iii) Regional Manager UPSRTC, Etawah Vs. Hoti Lal,(CA No. 5984/2000), 2003 (2) AISLJ 56
(iv) Union of India Vs. Parma Nanda, AIR 1989 SC 1215
(v) Om Parkash Vs. Union of India by C.A.T. Chandigarh Bench ( O.A No. 060/133/2014 decided on 25.07.2016)
9. The applicant has filed rejoinder. It has been stated that the respondents withheld full pension of the applicant illegally vide order dated 08.03.2018 (Annexure Rej-1). When the appeal filed against the said order was not decided, the applicant filed O.A. No. 1002/2020 and this Tribunal directed the respondents to decide the appeal within three months. The order of the Tribunal was not complied with within he stipulated period, the applicant filed CP No. 38/2021 alleging non compliance. It was thereafter only that the appeal of the applicant was allowed vide order dated 23.08.2021 (Annexure Rej-2) and the order dated 08.03.2018 was quashed by the Appellate Authority. The pension of the applicant was restored vide order dated 15.12.2021 issued by Respondent No. 4 (Annexure Rej-3). Rest is the reiterated version of the Original Application.
10. I have gone through the pleadings, perused the cited judgments and considered the arguments of learned counsel for both the sides.
11. The applicant herein has been alleged with respect of non-
payment of NSC/KVPs twice and proceeded against under Rule 16 of CCS (CCA) Rules, 1965. It is to be noted here that the genesis of the preliminary investigation by the department in respect of non- payment of NSC/KVP to the investors was on the basis of complaint by other 10- O.A. No. 1081/2021 postal employee with regard to fraud in payment of NSC/KVP by encashing the unclaimed instruments. As a consequence thereof, firstly he was awarded the punishment of withholding of one increment for one year without cumulative effect and recovery for Rs.4,08,770/- along with penal interest of Rs.63,553/- vide order dated 27.09.2010 which was later on reduced to recovery for Rs.4,08,770/- along with penal interest of Rs.63,553/- and secondly, he was awarded penalty of recovery of Rs. 3,07,470/- from leave encashment and DCRG by respondent no. 4 vide memo dated 20.10.2015. On the similar allegations, a criminal case was also got registered against the applicant by one of the investor wherein he was convicted and sentenced to undergo simple imprisonment for three years along with fine of Rs.10,000/- for the commission of an offence punishable under Section 409 and 420 of IPC read with Section 120 B of IPC by the Trial Court. The conviction of applicant under Section 409/120-B read with Section 107 of IPC has been upheld by the learned Sessions Judge, Hisar, vide order dated 16.11.2017.
12. The Disciplinary Authority initiated the action under rule 14 of CCS (CCA) Rules, 1965 against the applicant being co-offender in the case of fraudulent payment of various NSC/KVPs in the name of various firms duly pledged in favour of District Food and Supply Office, Hisar and the Charge sheet dated 23.02.2011 was issued to the applicant. On the basis of the findings of the Inquiry Officer and having considered all connected records of the case, the respondent no. 4 decided the case and the applicant was awarded a penalty of compulsory retirement from service with immediate effect vide memo dated 20/23.10.2015. 11- O.A. No. 1081/2021
13. The first contention of the applicant is that there has been no claim/payment with regard to the alleged wrong payment of NSC/KVPs for the relevant period, therefore, the retaining the huge recovered amount by the respondents is illegal and arbitrary. As discussed hereinabove that the other postal official had intimated the postal authorities about the fraud committed by the applicant in respect of unclaimed instruments i.e. KVS/NSC, which means the applicant has safely chosen to commit fraud in respect of unclaimed instrument, so that there would not be any claim from the investor in future. Therefore, the contention of the applicant, that there is no claim with regard to the alleged wrong payment of NSC/KVPs would not absolve the applicant from his misdeed, which has been proved in the Trial Court and thereafter upheld by the Appellate Court. From the pleadings of the case, it is clear that the allegations of involvement of the applicant in offence of criminal breach of trust for non- payment of NSC/KVPs to the real investor has been proved before the Trial Court. Having conducted the inquiry as per the relevant rules, the respondents awarded penalty of recovery of Rs. 7,16,240/- from the applicant vide orders dated 27.09.2020 (Annexure A-1) and 20.10.2015 (Annexure A-7). The respondents have rightly rejected this plea of the applicant stating that even though DFSC, Hisar has not submitted any claim in respect of the defrauded amount, but in future DFSC, Hisar or any other depositor can submit his claim for sanctioning the defrauded amount. The fact of the matter is that the applicant has committed fraud with the public money, which has been proved and the applicant has been punished by the Trial Court, therefore, the applicant is liable to pay the penalty as awarded by the disciplinary authority, irrespective of the fact that there has not 12- O.A. No. 1081/2021 been any claim/payment with regard to the alleged wrong payment of NSCs/KVPs in the regional office. Such cases of criminal misconduct have to be dealt with sternly by the authorities, leaving no scope of leniency. The appropriate punishment has been awarded by the disciplinary authority as the applicant having committed fraud with the public money does not deserve any sympathy. The Hon‟ble Supreme Court in the case of Regional Manager, UPSRTC, Etwah & Ors. Vs. Hoti Lal & Another, 2003 (2) AISLJ 56 has held as under:-
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal."
14. Moreover, it has now been well settled that the Courts/Tribunals shall not interfere with the quantum of punishment unless the same is outrageous defiance of logic, perverse and irrational. In this context, the Hon‟ble Supreme Court in the case of B.C. Chaturvedi Vs. Union of India and Others, 1995 (6) SCC 749 held as under:-
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the 13- O.A. No. 1081/2021 appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof."
15. Also, in the case of Union of India and Others Vs. P. Gunasekaran (supra), it has been reiterated that the interference in service matters with regard to disciplinary proceedings is permissible only in cases of perversity. Similarly, in the cases of K. Jagannatha Shetty (supra) and State Bank of India and Others (supra), it has been held that Tribunal cannot interfere with the penalty imposed on delinquent employee by the competent authority, unless, it is not commensurate with delinquency of employee.
16. The applicant has referred to judgments in the cases of Secretary Victoria Memorial Hall (supra), G. Vallikumari (supra) and Competition Commission of India (supra), which are not at all relevant to the issue in hand and thus, would not be able to help the applicant herein.
17. The other contention of the applicant is that his representation dated 27.03.2021 for review of punishment orders has been rejected by passing a sketchy, skeletal, cryptic and unreasoned order dated 27.03.2021, which is bad in law. On perusal of the record, it is noticed that the applicant‟s representation dated 28.02.2020 has been rejected being a belated one, therefore, no reasons were required to be given, when it was not decided on merits. Though the appeal dated 27.03.2021 has been rejected without giving any reasons, but the respondents while replying to the legal notice dated 30.07.2021 and 14- O.A. No. 1081/2021 31.07.2021 gave a detailed reasoning for rejecting the claim of the applicant. Thus, the plea of the applicant that the reasons and justification for rejection of his claim were not given by the respondents is not accepted in this view of the matter.
18. In view of the discussion aforementioned, I do not find any merit in the case of the applicant who has been convicted by the Trial Court for the offence of criminal breach of trust and conviction has been upheld by the Sessions Court. The Original Application is, therefore, dismissed.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟