Central Administrative Tribunal - Jabalpur
Nathoba Patil S/O Shri Pyarelal Patil vs Union Of India Through Its Secretary on 11 August, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.122 of 2013
Jabalpur, this Tuesday, the 11th day of August,2015
Mr. G.P. Singhal, Administrative Member
Mr. U. Sarathchandran, Judicial Member
Nathoba Patil S/o Shri Pyarelal Patil,
Aged about 50 years, R/o 69, Angihotri Colony,
Betul 460001 (M.P.) - Applicant
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India through its Secretary,
Ministry of Communication & IT, Department of Posts,
Dak Bhawan, Sansad Marg, New Delhi 110001.
2. Chief Postmaster General, M.P.Circle,
Hoshangabad Road, Bhopal 462012 (M.P.).
3. Post Master General, Indore Region, Indore-452001 (M.P.).
4. Superintendent of Post Offices, Chhindwara Division,
Chhindwara 480001 (M.P.). -Respondents
(By Advocate Shri S.K.Mishra)
(Date of reserving the order: 14.07.2015)
ORDER
By G.P. Singhal, AM.-
The applicant is aggrieved by issuance of charge sheet dated 08.04.2011 (Annexure A-1) under Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules,1965 (hereinafter referred to as the CCS(CCA)Rules). He has sought for quashing of the order dated 05.08.2011 (Annexure A-2) passed by the disciplinary authority imposing minor penalty of recovery of Rs.71354/- for his alleged misconduct of gross negligence in his work which facilitated commission of fraud by the GDS, BPM of Ranipur EDBO (Ghoradongri SO) to the tune of Rs.12,62,607/-. He has also challenged the order dated 10.07.2012 (Anenxure-A-3) passed by the appellate authority rejecting his appeal against the aforementioned punishment.
2. The main contention of the learned counsel for the applicant is that 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 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, as held by the Honble Supreme Court in the matters of O.K.Bhardwaj Vs. Union of India and others (2001) 9 SCC 180. The learned counsel for the applicant submitted that in the instant case the applicant had expressly denied the charges levelled against him, still no full fledged enquiry was conducted against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 {hereinafter referred to as the CCS(CCA)Rules} . Hence the orders of punishment of recovery passed against him is liable to be quashed and set aside.
3. The learned counsel for the applicant placed reliance on the following decisions:
(i) G.M.Sorte Vs. Union of India and others, OA No.5 of 2013, decided on 15.6.2015 by Jabalpur Bench of this Tribunal, P.Sreeramulu Vs. The Supdt.of Post Offices & others, OA No.665/2008 decided on 8.6.2009 by Hyderabad Bench of the Tribunal, S.V.Santhoshkumar Vs. The Comptroller & Amp, etc. OA No.247 of 2010 decided on 22.9.2010 by Ernakulam Bench of this Tribunal, Shiv Bhushan Singh Vs. Union of India and others, OA No.497/2009 decided on 22.9.2011 by Allahabad Bench of this Tribunal for the analogy that if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for by relying on the decision of Honble Supreme Court in the matters of O.K.Bhardwaj Vs. Union of India and others (2001) 9 SCC 180.
(ii) C.N.Harihara Nandanan Vs. Presidency P.M. Madras G.P.O. and another, (1988) 8 ATC 673 wherein the Madras Bench of the Tribunal has held that negligence of non-following of departmental instructions for verification of relevant records resulting in non detection of fraud committed by another government servant, not punishable with recovery from pay of the pecuniary loss caused by the fraud.
(iii) In J.M.Makwana Vs. Union of India, 2002 (1) ATJ 283 fraud was committed by another employee and the applicant was found responsible for the same on the ground that by his negligence the fraud was not detected earlier. There was no charge that due to his negligence any pecuniary loss was caused to Government. The Ahmedabad Bench of the Tribunal allowed the OA and quashed the order of recovery as well as the order of penalty.
(iv) Smt.Kalpana Shinde & others Vs. Union of India and others, (2005)1 ATJ 45 decided by Jabalpur Bench of the Tribunal, B.R.Verma Vs. Union of India and others, O.A. No.496/2008 decided on 14.9.2011 by Allahabad Bench of this Tribunal and Shiv Kumar Singh Solanki Vs. Union of India, OA No.2187/2009 decided by Principal Bench of the Tribunal for the analogy that unless the person concerned is directly responsible for misappropriating any amount or for causing any pecuniary loss to the Government no recovery can be made from him.
(v) V.G.Dekate Vs. Union of India and others, Writ Petition (S) No.5634/2009 decided by Honble High Court of Madhya Pradesh at Gwalior. In the said matter by considering the fact that the authority failed to prove the fact that the petitioner was only negligent in performing his duties so the fraud has been committed and that there were other officers also who could have been responsible in the act of fraud, the Honble High Court quashed the order of punishment.
(vi) In Than Singh Vs. Union of India and others, 2003(3) ATJ 42 the Honble High Court of Delhi has held that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would be presumed that the same has been condoned.
(vii) M.P.State Agro Industries Development Corporation Ltd Vs. Jahan Khan, (2007) 10 SCC 88 wherein it was held that penalty of recovery of loss and stoppage of three increments with cumulative effect was a major penalty clearly envisage a regular enquiry before punishing the delinquent employee.
(viii) Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570. In the said matter the appellant was a peon in respondent Bank. He along with others was involved in a case of theft of bank draft book. The Honble Supreme Court has held that orders of disciplinary and appellate authority entails civil consequences hence the orders must be based on recorded reasons.
(ix) Union of India and others Vs. Gyan Chand Chattar, (2009) 12 SCC 78, wherein the Honble Supreme Court held that in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.
(x) Kuldeep Singh Vs. Commissioner of Police (1999) 2 SCC 10 wherein it has been held that court can interfere with finding of guilt if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority.
(xi) Govt.of A.P. and others Vs. A.Venkata Raidu, (2007) 1 SCC 338 wherein it has been held that since the charge was not specific, hence no finding of guilt can be fixed on that basis.
(xii) Union of India and others Vs. J.Ahmed, (1979) 2 SCC 286. In the said matter the respondent-an IAS officer was removed from service. The Honble Supreme Court has held lack of efficiency or attainment of highest standards in discharge of duty attached to public office would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. In the said matter it has been further held that an act or omission which runs counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. It has been further held that if a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service it is misconduct.
4. The respondents in their reply have mentioned that the reply of the applicant dated 24.5.2011 (Annexure A-6) was found unmatched with the memo of charges dated 8.4.2013, which had no relevance with the instant case. According to Para 1.17 of SB Order No.7/2003 as issued by the Government of India, Ministry of Information & IT, Department of Posts vide No.35-15/86-SB dated 27.3.2003 (Annexure R-2) the Sub-Post Master Ghoradongri, Sub Post Office had to submit a certificate to Head Post Office, and Divisional Office at the end of September of every year regarding posting of annual interest in all the pass books of Saving Bank Account at Ghoradongri Sub Post Office. During the course of enquiry of Ranipur Branch Office (in account with Ghoradongri SO) fraud case and verification of pass books of defrauded SB accounts, it was noticed that the Sub-Post Master, Ghoradongri SO had not called for all the pass books of SB accounts of Ghoradongri SO and its Branch Post Offices including Ranipur EDBO, for posting of annual interest in the pass books and have also failed to submit such certificates for the years 2002-2003, 2003-2004 and 2004-2005 by the end of September 2003, for the year 2002-2003, by the end of September 2004, for the year 2003-2004, by the end of September 2005, for the year 2004-2005 to concerned Head Post Office i.e. Betul Head Post Office. The applicant, who was working as Sub Office Ledger Assistant of Saving Bank Branch of Betul Head Post Office failed to keep a keen watch about it during his incumbency as Ledger Assistant Saving Bank Branch, Betul HO and never made any correspondence with the Superintendent of Post Offices, Chhindwara. Thus, the applicant failed to perform his duties properly and carefully and his negligence provided a room to the GDS BPM Ranipur EDBO for committing a fraud.
5. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
6. In the instant case we find that the applicant has been charged for failure to keep a watch on receipt of certificates from SPM Ghoradongri SO about annual interest posting for the years 2002-2003, 2003-2004 and 2004-2005 in all the pass books of SB Accounts of Ghoradongri SO. As per the reply of the respondents, such certificates were required to be submitted - for the years 2002-2003, 2003-2004 and 2004-2005 by the end of September 2003, for the year 2002-2003, by the end of September 2004, for the year 2003-2004, by the end of September 2005, for the year 2004-2005 to concerned Head Post Office i.e. Betul Head Post Office.
7. On perusal of charge sheet it is observed that while for pursuing the matter in regard to non-receipt of certificates from Sub Post Master, Ghoradongri SO for the year 2002-2003, which was to be received after 30th September,2003, the applicant was working on the post for the period from 26.9.2003 to 5.10.2003, 20.10.2003 to 26.10.2003, 26.12.2003 to 30.12.2003 and therefore part of blame for non-pursuance of receipt of certificates for that period could be imputed against the applicant, for the other two years the dates of posting of the applicant do not support the allegation of charge sheet that applicant acted negligently in overlooking receipt of certificates. For pursuing non-receipt of certificate for the year ending September 2004, the applicant was required to be on the relevant post for sufficient time after that date. However, applicant was never posted to look after this work during the period from 13.7.2004 to 6.12.2004 which was crucial for such action. Similarly, for pursuing on non-receipt of certificate for the year 2004-2005 ending September 2005, the applicant had to be posted during relevant period, however, as per the charge sheet, after 21.8.2005 applicant was not posted even for a single day in the remaining part of that financial year. Thus, in this view of the matter we are of the considered opinion that the impugned order of punishment as well as the order passed by the appellate authority are not sustainable in the eyes of law.
8. In the result, the Original Application is allowed. The impugned orders dated 5.8.2011 (Annexure A-2) and 10.7.2012 (Annexure A-3) are quashed and set aside. The respondents are directed to refund the amount of recovery, if any made, from the applicant within a period of one month from the date of communication of this order. The respondents will however be at liberty to take up appropriate proceedings against the applicant in this matter after verifying the facts and accordingly modifying the charge memorandum. However, if it is decided to take any such action, the respondents shall have to conclude it within a period of 6 months from the date of communication of this order. No costs.
(U. Sarathchandran) (G.P. Singhal)
Judicial Member Administrative Member
rkv
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Subject : Recovery for negligence OA No.122/2013
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