Central Administrative Tribunal - Mumbai
Govind Shivaji Kavthankar vs Posts on 12 July, 2024
1 Oo OA No.758/2021 CENTRAL ADMINISTRATIVE TRIBUNAL, | MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.758/2021 Dated this Friday the 42th day of July, 2024 CORAM : JUSTICE SHRI M.G. SEWLIKAR, MEMBER (JUDICIAL) SHRI RAJINDER KASHYAP, MEMBER (ADMINISTRATIVE) Shri Govind Shivaji Kavthankar, S/o Late Shivaji Kavthankar, Age 58 years, |SG Postal Assistant Sawantwadi, Head Post Office, Pin 416 510, R/o At Post Kavthani, Taluka -- Sawantwadi, Dist. Sindhudurg, Pin 416 514, (M) 7768904598. - Applicant (By Advocate Shri R.B.Kadam) | Versus 1. The Union of India, Through Secretary, Department of Posts, Ministry of Communications & IT, Sansad Marg, New Delhi-110 001. 2. The Chief Post Master General, Maharashtra Circle, Mumbai GPO Building, Mumbai 400 001. | 3. 'The Postmaster General, Goa Region, Panjim 403 001. 4, The Superintendent of Post Offices, Sindhudurg Division, Sindhudurg Nagari 416 812. ~ Respondents (By Advocate Smt. N.V.Masurkar) Order reserved on 19.06.2024 Order pronounced on 12.07.2024 2 OA No.758/2024 ORDER
Per : Shri Rajinder Kashyap, Member (5) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985. The following reliefs have been sought :
"8.a) This Hon'ble Tribunal may be pleased to call for the Original records of the case of the applicant from the respondents and after perusal consider grant of reliefs as prayed for hereunder on the basis of settled principle of laws and rules.
&.b} To quash and set aside the impugned orders i.e. Annexure A/1 and Annexure A/2 and direct the Respondents to refund the applicant the amount so far recovered from him at Rs.5,000/- (Rs. Five thousand) per month from the pay of june, 2018.
8.c) Cost of this Original Application be provided for.
8.d) Any other further order as this Hon'ble Tribunal deems fit in nature and circumstances of the case be passed." oe
2. The brief facts of the case are that the applicant was. working as Postal Assistant Sawantwadi HO for the period from 05.12.2006 to 22.06.2011 under the administrative control of respondent: No.4. Misappropriation of Government money was 3. OA No.758/2021 7 detected at K.K.Colony, Post Office during November, 2015. The applicant states that he was ordered to work in Sub Office savings Bank (s0sB) for two days ie. on 22.03.2011 and 24.03.2011, he states that while giving his statement to the SPO Sawantwadi Sub Division on 19.08.2017 (Annexure A-3), it was clearly told that he did hot post List of Transactions (LoT) of Konal Katta Post Office for the dates 19.03.2011, 22.03.2011 and 24.03.2011, respectively. The applicant states that he remembers to have handle the work of consolidation and listing of MPKBY/PRSS lots. containing deposit i in the accounis.. He further stated that unless he saw the record of withdrawal, he would not be abie to say about his involvement. He states that the respondents have framed allegations against him without cogent reasons of having posted (list of transactions) LOT of Konalkatta Colony P PO for two days (19. 03, 2011 and 22.03.2011) in the Head Post Office SOSB | Ledger. A charge- sheet under Rule 16 of CCS (CCA) Rules, 1965 was issued on 12.01.2018 by the respondent No.4. To prove his innocence, the applicant sought some documents from the yr a 4 OA No.758/2021 respondents. Respondents allowed inspections of three | documents, however, applicant were shown only two documents. The respondents issued a Punishment order on 24.05.2019. ordering recovery of Rs.2,50,000/- (Rupees Two Lakhs. Fifty Thousand only) in 50 installments. each at the rate of Rs.5,000/- (Rupees Five Thousand only) per month. Against the above- mentioned punishment order, the applicant on 19.07.2018 preferred appeal to the Appellate Authority. The Appellate Authority rejected his appeal on 11.02.2019. The main contention of the applicant is that he had only worked for two days i.e. | 23.11.2011 and 24.11.2011 in the sosp Branch of Head Post Office. He further states that he has denied to have performed the work of ledger posting of list of transactions of K.K.Colony Post Office on 19.03.2011, 22.03.2011 and 24.03.2011 and this aspect has been clarified in his statement recorded by the ASPO on 19.08.2017. The contention of the applicant is that though he may. have worked in SOSB for the Said days but it does not prove that he has posted list of transactions in the Sawantwadi Head Post 4 5 . OA No.758/2021 Office ledgers. He states that unless relevant documents bearing his signature / initials are examined and confirmed by him, he cannot be held accountable. The respondent No.4 has deliberately overlooked this aspect and imposed punishment of recovery upon him. The applicant claims that despite his request for examination of ten documents, the respondents have not shown him the relevant documents and deprived of him from his legitimate right of defence and prove his innocence in the matter and has imposed punishment of recovery. The applicant has placed reliance on a number of judgment of Hon'ble Courts /. Tribunals and states that the respondent authorities have not given any consideration to the said judgments.
3. The respondents. have filed their reply on 29.11.2022 wherein they have confirmed the involvement of applicant in the fraud case and imposition of penalty of Rs.2,50,000/- (Rupees Two - Lakhs Fifty Thousand only] towards recovery to pecuniary loss sustained by the department due to negligence of the applicant.
The above recovery was ordered to be recovered in 50 equal @ 6 OA No.758/2021 monthly installments of Rs.5,000/- (Rupees Five Thousand only) with immediate effect. They have also confirmed the rejection of the appeal dated 28.06.2017 of applicant at the level of Appellate Authority on 11.02.2019. The respondents state. that misappropriation of public money at Konalkatta Sub Post Office . _ Was committed by Shri Suresh Vasudev Bandekar, Ex. Gramin Dak Sevak Mail Deliverer (GDSMD) of Konalkatta Colony SO in Savings Bank Accounts / Recurring Deposits Accounts / Time Deposits Accounts / Monthly Income Scheme Accounts to the tune of Rs 1,63,50,059/. (Rupees One Crore. Sixty Three Lakhs Fifty Thousand and Fifty Nine only) during the period from 20.04.2010 to 27.10.2015. During the course of investigation of said fraud case, it revealed that there were withdrawals of Rs.10,000/- (Rupees Ten Thousand only) & Rs.20,000/- (Rupees Twenty Thousand only) on dates 19.03.2011 & 22.03.2011, respectively from SB Account No.3254417 standing in the name of Smit. Bhagabai Ramchandra Patharvat. These withdrawals were made.
at Konalkatta Colony SO by forging signatures and without nm a OA No.758/2021 knowledge of the depositor. The SB List of Transactions (LOTs) of Konatkatta Colony SO contained both these transactions. They submit that the applicant while working as PA SOSB, he had received Konalkatta Colony SO SB LoTs dated 19.03.2011 & 22.03.2011 on 22.03.2011 & 24.03.2011, respectively and posted these transactions in SOSB Sanchay Post System. However, while posting the LoTs, Applicant failed to check and verify signature of the depositor on SB withdrawal vouchers of Rs.10,000/- (Rupees Ten Thousand only) dated 19.03.2011 & Rs.20,000/- (Rupees Twenty Thousand only) dated 22.03.2011 of SB account no.3254417 which was forged. As per provision of Rule No.38(1) of. Post Office Saving Bank Manual Volume |, PA SOSB has to confirm Signature of the depositor on withdrawal form with that of specimen signature available in HO record. However, while posting the above withdrawals in SOSB Sanchay post, applicant failed to check & compare the signatures of the depositor on payment warrant with that of specimen signature available on HO record and thus, infringed the provision of said rule. He also failed 8 OA No.758/2021 to initial the entries in Konalkatta Colony SO SB LoTs in token of carried out the checks. Though there was difference in the signatures of the depositor on the withdrawal forms, the Sub Postmaster Konalkatta Colony SO failed to obtain identification of respectable person on both sides of withdrawal forms. Shri G.S.Kavthankar failed to point out this discrepancy while posting - the vouchers and also failed to raise the objections regarding non obtaining of identification of respectable person on the application side of the withdrawal forms.
3i{aj. They state that Konaikatta Colony SO is double handed Sub Post Office but, there was no signature of PA Konalkatta Colony SO
- on SB-7 withdrawal forms dated 19.03.2011 & 22.03.2011 of SB account 3254417. As per the provisions of Note 3 below Rule 33(2) of POSB Manual Volume-| when the post of PA is vacant, the SPM Konalkatta Colony SO had to pass suitable remark on application side of withdrawal forms to this effect for information of Head Office /SBCO to avoid raising of objections. But, SPM Konalkatta Colony SO had not passed such remarks on said withdrawal forms.
9g Lo OA No.758/2021While working as PA sosB, Applicant failed to observe above _ provisions of the rule and also failed to raise the objection in this regard. As per DG's Instructions No.4-95/Misc.03/2007-inv dated 16.07.2007 below Rule No.85 of POSB Manual Volume-l, PA SOSB have to prepare High Value Withdrawal Memo regarding SB withdrawal above Rs.10,000/- (Rupees Ten Thousand only) in form _ prescribed in Appendix Il. it should be piaced for signature of Postmaster/ Assistant Postmaster, for further submission to sub Divisional Head for its verification. However, Applicant had not prepared and sent High Value Withdrawal Memos for high value. withdrawals of Rs. 10,000/- & Rs.20 000/. dated 19. 03, 2011 & 22.03.2011 respectively in SB account no.3254417, Thereby infringed srovistons of above-mentioned Rule 85 and. thus, displayed lack of devotion to duty. It was mentioned that while working. as PA Sawantwadi. HO, Applicant has violated the provisions of Rule No. 38(1) of POSB manual volume 1 Note 3 of Rule No. 33(2) of POSB Manual volume-1, Rule No. 85 (Read with DG's Instructions No.4- 95/Misc.03/2007-inv dated 16.07.2007 and 10 OA No.758/2021 revised SB Order No.02/2013 dtd. 26.02.2013 of POSB Manual Volume-I and thus, infringed the Rule No. 3 (1) (ii) of CCS (Conduct) Rules, 1964.
3(b). They further state that had applicant carried out the prescribed checks as above & verification of signature of the depositors on withdrawal forms as laid down in POSB Rules while . posting withdrawal ofRs.10,000/- dated 19.03.2011 & Rs.20,000/- dated 22.03.2011 of SB 'account no.3254417 in Sanchay Post system and had he performed his duties as per rilles, fraud at Konalkatta Colony SO could have detected earlier and further fraud could have been averted. Due to gross negligence on the part of Applicant while working as PA SOSB Sawantwadi HO, fraud at Konalkatta Colony sO could not be detected on early date and fraud remained continued for further long period of five years;
which resulted into heavy pecuniary loss to the Department to the tune of Rs.1,63,50,059/-.
3{c). As per Attendance Register of Sawantwadi HO for the month of March, 2011 and Nominal Roll of Sawantwadi HO, the Applicant af 11 . . OA No.758/2021 was working in Sub Office Savings Bank (SOSB) section during -~ period 21.03.2011 to 25.03.2011. As. per Nominal Roll of Sawantwadi HO (R-1), the Applicant was only the official who was "allotted with the work related to SOSB data (i.e., posting of deposit/withdrawal vouchers of Sub Offices) during the period 21.03.2011 to 75.03.2011. The Postmaster is assigning duties to each PA under his control through Nominal Roll and it is justlike as Order Book. So, contention of the Appellant that the Order Book was not shown to him is invalid. Further, SB LOT of Konalkatta Colony SO dated 19.03. 2011 was received at Sawantwadi HO. on 22.03.2011 and through this LoT. SB withdrawal voucher of Rs. 10,000/. dated 19.03.2011 of SB account no.3254417 was s received in SOSB section of Sawantwadi HO on 22.03.2011. SB LoT of Konalkatta _ Colony SO dated 22.03.2011 was received at Sawantwadi HO on 24.03.2011 through which, SB withdrawal voucher of Rs.20,000/- dated 22.03.2011 of SB - account n0.3254417 was received in SOSB section of Sawantwadi HO on.
24.03.2011.
12 - OANo.758/2021 -3(d). Respondents State that from the statement of applicant, it is. clear that he has admitted of having posted these transactions in the ledger. They state that applicant has himself admitted of having been posted in the Savings Bank Branch. They further say that as per rules and procedures of PA, SBSO at HO, the applicant did 'not perform his work of carrying out checking of vouchers _ before posting in the ledgers in these cases nor he Verified the specimen signatures of Account holder, hence, has shown gross negligence causing fraud to the Gepartment for which disciplinary action was taken against the applicant and punishment of recovery was Imposed upon-him.
3(e}, They. state that Nominal Roll of Sawantwadi HO, Attendance Register of Sawantwadi HO, etc, were shown to him on 19.08.2017 prior to initiation of the disciplinary proceedings and further some more relevant documents like Nominal Roll of Sawantwadi HO, High Value Register, etc. were provided him on 26.04.2018 for inspection as: per his request letter dated 27.01.2018. Thus, every Opportunity in view of natural justice and 13 OA No.758/2021 Sufficient time period was given to the Applicant to submit his representation, The documents relevant to the charges levelled against the Applicant were shown to him and_ sufficient Opportunity was given to him to submit his representation on the memo of charges. Specific transactions are mentioned in the memo of charges as well as the charges levelled against the Applicant are clearly elaborated. The charges leveled against him are clear and based on the documentary evidences. The Applicant was punished for grave procedural lapses & irregularities committed by him while working as PA SOSB Sawantwadi HO. Earlier, he had demanded irrelevant documents for inspection like investigation report of fraud case, amount recovered from main offender and ather officials, statements of SPM Konalkatta Colony - SO, etc: and some other records. Every opportunity was given to him to defend his case, but he did not submit his representation within the stipulated time limit, even after inspection of the documents. He should have submitted his representation after inspection of the documents to prove his innocence but he failed 14 . OA No.758/2021 to do so. Hence the case was finalized vide memo of even number dated 24.05.2018. Applicant was the only official who was allotted ~ the work related to SOSB data on 22.03.2011 and 24.03.2011, | Duties allotted to remaining officials working in SOSB Branch on that days are clearly noted in the Nominal Roll. Further, pendency of posting of SOSB transactions for 10-12 months is nowhere reported to the respondent, 3(f}. They state that the applicant did not file reply to charge sheet nor did he ask for the detailed enquiry and therefore it: is submitted that the contentions now raised are after thought and without merit and non- sustainable in law. They submit that the Applicant has quoted judgment in respect of holding of an inquiry in minor penalty cases. But in the instant case, the Applicant never requested the Disciplinary Authority for oral inquiry, Further, oral inquiry is not 'feasible in the departmental Rule 16 case uti the Disciplinary Authority thinks it fit & justifiable. However, as ner Applicant's request and by considering the principle of natural justice, the relevant documents were made available to the 15 . , OA No.758/2021 Applicant for inspection and his disciplinary case has been finalized as per nules 2 procedure. The Applicant has been identified as subsidiary offender in Konalkatta Colony SO fraud case due to his | grave lapses & negligence while working as DA SOSB Sawantwadi HO. Therefore, imposition of punishment of recovery of amount Rs.2,50,000/- is correctiy imposed on him considering the level of failure of performance of his responsibility. The Applicant has shown grave negligence in his duties while working as PA SOSB and due to this, fraud at Konalkatta Colony SO continued for further period of more than four years. So the Applicant is responsible for the loss sustained by the department in said fraud case and, therefore, the punishment of recovery awarded to the Applicant towards his share in the loss of the department. In view of above fact- and circumstances, they conclude by stating that the OA is without substance and hence liable to be dismissed with cost. .
4. In rebuttal, applicant has filed his rejoinder on 02.02.2023 wherein he has reiterated the facts. stated: in his Original | Application. He submits that the contention of the respondents 16 OA No.758/2021 that statutory remedy of revision petition is available to the applicant under Rule 29 of the CCS (CCA) Rules, 1965 is correct, however, the said remedy is optional and not mandatory. He submits that he has posted the transactions is not supported by the documentary records. Only from the entry made in the nominal roll of the office showing the applicant on SOSB branch on these dates is not a sufficient proof to hold applicant responsible when many officials were performing the work of posting of pending transactions. What is material in this case' is to produce the said LOTs bearing signature /initials of the applicant in token of having posted those transactions. Moreover, respondents are aware that there was backlog of posting of transactions for months together, A{a). The applicant submits that the contention of the respondents is baseless one unless and until LoTs are shown to the applicant and brought on records. He further submits that action of the respondents is not well within the law as stated by the respondents in this Para. Because either Disciplinary Authority or 17 OA No.758/2021- Appellate Authority have not confirmed with reference to the concern documents i.e. LOTs that transactions have actually been posted by the applicant.
A(b). The applicant reiterates that he worked in SOSB branch but while working on the said branch he has performed the work of SB.
Consolidation and MPKBY and PRSS listing work which are also one of the items of work in SOSB branch. Secondly signature in attendance register proves that applicant is on duty, showing name of the official in the Nominal Rol! denotes in which branch ne | has worked, but 'circumstances warranting such "casual arrangement of official working in another branch on regular basis need to be reduced to writing in Office Order Book. When he is ordered to work on a short-term basis or urgent basis in addition to many other things. The applicant is asking for the said Office Order Book but respondents are not showing the same. Moreover, only vouchers were shown to the applicant but List of Transactions (Lots) were not shown to him. He states that he did not admit to have posted these transactions as stated. by the respondents. uf COMET Bae 18 OA No.758/2021 Moreover, it is a fact that there was huge backlog of transactions to be posted in the Sanchay Post which was being cleared by deploying many officials working in the office on over time basis.
A(c). The applicant states that he has asked for inspection of 10 documents from the respondent no.3 and respondent no.3 is saying that relevant documents were shown to the applicant. Here applicant submits that High value memo register, Report of hand writing experts, Proof regarding posting of alleged transactions in Sanchay Post, Investigation Report are related with the alleged fraud case and the charge sheet issued to the applicant but respondent no.4 did not allow inspection of those documents though asked for by the applicant. Therefore, respondent's say:
that reasonable Opportunity in view of natural justice, is provided to the applicant jis wrong. He again submits that whatever respondents have stated in this Para is not acceptable to applicant because the charge sheet and punishment are based on imaginary facts without confirming the facts with documentary proof that applicant has actually posted alleged transactions.19 OA No.758/2021 _
A(d). The applicant contends that the respondents have not been able to prove that applicant himself has posted the transactions for which he has been held responsible. Therefore, allegation/ failure
- against the applicant mentioned in this Para are without any documentary evidence and hence not acceptable to him. = 4(e). The applicant submits that the Respondent No.3 did not confirm as to whether the applicant has posted the transactions for which charge sheet has been issued to him and straightway rejected applicant's appeal. There is no document before the respondents showing that applicant has actually posted the transactions for which he has been held accountable. He submits that the reply of the respondents is not to the facts raised in the OA. Applicant asked for additional documents which were not supplied to him. This was essential in view of categorical denial of applicant to have posted transaction in Sanchay Post Software. This. denial has hit the cannons of the principle of justice and fairness while deciding appeal of the applicant. Applicant further states that the respondents have not been able to bring on record ad _ .
Se ae 20 OA No.758/2021 concrete evidence showing that applicant has actually attended to and posted the transactions for which he has been punished.
4(f). The applicant submits that the crucial document which was to be provided to the applicant was LoTs of the alleged transactions and the said document was not provided to the applicant. As said earlier the Attendance Register will prove t applicant was on duty in the office, Nominal Roll prove in which branch applicant had worked. However, both these documents will not prove that the LOTS referred to in the charge sheet have actually been posted by the applicant keeping in view the large pendency of earlier LOTs waiting for posting and for 4 their clearance staff, Divisional office was being called to Savantwadi HO on Saturday and Sunday, Therefore, respondents are required to: bring Strict proof showing that transactions referred in the charge sheet have actually been performed by the applicant. For this Respondent can check records available with them in the system/SERVER, He submits that it is true that applicant has not asked for enquiry in the case but applicant vide his application dated 23.01.2018 expressed his | 21- OA No.758/2021 desire to inspect certain documents and showing proof regarding . posting of SB LoTs in SOSB sanchay Post Software was one of the documents among them. He further informed respondent no.4 that entry of User Id of the official remains in the server. This. document wag crucial for him and it was relevant, however, the said document was not provided to the applicant for inspection. Extension of time was also sought for submission of reply. However, instead of considering request of the- applicant respondent no.4 finalized the case, issued punishment order on | 24.05.2018. However, respondent no.3 did not think it fit to at least provide relevant document for inspection to the applicant though he has considerable time of four months to do it, The applicant contends that he was denied reasonable opportunity to defend his case which is in violation to the principle of natural justice. The applicant again submits that the respondents have not established the imputations against the applicant by evidence and awarded punishment based on conjectures .and surmises hence the same is arbitrary, unfair and unjust. -
@) Se 22 | OA No.788/2021
5. Sur-rejoinder has been filed by the respondents on 08.08.2023 wherein they have repeated the contentions and submissions made by them in their reply. The contention of the Applicant that common proceedings should have been conducted in his case is not tenable as he had never requested the Disciplinary Authority for conducting the inquiry in his case, It s | also to the Disciplinary Authority to decide whether to conduct common proceedings in any case or otherwise. An oral inquiry is not feasible in the departmental Rule 16 case until the Disciplinary Authority thinks it is fit & justifiable, "Rest of the points mentioned in the sur-rejoinder have already mentioned in the reply filed by the respondents. The respondents submit that first statement of the Applicant.was recorded on 19.08.2017 by showing his Japses
- and by allowing him to inspect the relevant documents. |
- Thereafter, the Applicant submitted two applications dated 23.01.2018 & 26.03.2018 and demanded for some more documents and also stated that he will submit his representation after inspecting the said documents. Accordingly, relevant 23 . - OA No.758/2021 * documents were made. available to him for inspection, but then also, applicant did not submit his representation and tried to prolong the disciplinary case. As sufficient opportunity was already given to him, therefore, his disciplinary case was decided | on 24.05.2018. Thus, more than nine months period was available with the Applicant to represent his side from the date of his statement recorded, i.e., 19.08.2017. As such; his contention that the Disciplinary Authority has not considered his request of extension of time for submitting the representation is not true.
6. The applicant has also filed MA No.193/2022 along with OA to seek condonation of delay. The applicant in his prayer in the MA has stated that considering the pandemic situation all over the country due to COVID-19, the limitation period was extended by Hon'bie Supreme Court from time to time, the delay in filing the OA may be condoned. It may be mentioned that the applicant has filed appeal against the order of punishment imposed upon him on 19.07.2018 which was decided by the Appellate Authority on 11.02.2019. The present Original Application 'was filed on aft "
Be ag 24 OA No.758/2021 08.11.2021. The matter was heard on 11.02.2022 wherein this Tribunal ordered the respondents to file 2 short reply within two weeks. Last chance was given to the respondents on 07.11.2022 to file reply within three weeks on the OA as well as MA No.193/2022.. However, reply to MA was not filed along with the reply on OA filed on 29.11.2022. At last, the respondents filed reply to rejoinder in MA for condonation of delay. While filing the said reply on 25.07.2023, MA No.193/2023 is mentioned instead of correct MA. No.193/2022. They have raised objection of delay in tiling the Original Application. It is surprising that the respondents are filing their reply to the MA even after the time period given to them to file reply including the extended time period to file the reply was over. As stated above, the applicant filed appeal against the punishment order dated 24.05.2018 mentioned at Annexure At on 19.07.2018. The said appeal was decided by the Appellate Authority on 11.02.2019. The OA was filed on 08.11.2021. No doubt there is a delay in filing the Original Application by the applicant. However, keeping in view the reason brought forth in 25 OA No.758/2021 the MA for seeking condonation of delay and prevalent COVID-19 situation in the country where everything had come to a stand still, we are inclined to allow MA filed by the applicant to seek condonation of delay and accordingly, the delay is condoned. ~
7. Heard the learned counsel for the applicant and the learned counsel for the respondents. Learned counsel for the applicant stated that the applicant is not at fault as he did not make ledger entries while working at Sawantwadi Head Post Office. On asking pointed questions to the counsel for the applicant on the issue of providing the documents like SB-7 withdrawal forms and nominal roll: register, the aspect that the applicant has worked in the Savings Bank Branch (of SOSB and has handled work on the relevant dates would not suffice 2 The learned counsel for the applicant responded that the issue involved in the matter is that whether the applicant has made entry in the SOSB ledger at Head Post Office on relevant dates for the said transactions will be revealed once the ledger entry, list of transactions (LoT) and relevant vouchers are checked and it is the established that it is SP ares a # ee
- # 2 a : a Py @! .
Sas) 16 OA No.758/2021 applicant who has made the entry. Merely providing SB-7 withdrawal form, a copy of nominal roll register and extract and xerox copy of ledger, in itself may not prove that the applicant has made entry. On further asking question has to why the applicant did not submit his representation to the Disciplinary Authority in time, the learned counsel for the applicant stated that the applicant has submitted representation and explained the position in his appeal, however, the Disciplinary Authority as well as the Appellate Authority did not give any credence to the points raised .
_ by the applicant. The learned counsel for the respondents stated that the due to negligence of applicant, a huge fraud has taken place causing loss to the Department, applicant has been identified as subsidiary offender and punishment nas been imposed upon him as per departmental rules and regulations and there is delay in agitating cause of action by the applicant before this Tribunal.
47(a). The applicant has placed reliance the judgment rendered by the Allahabad Bench of CAT in the matter of B.R. Verma Vs. Union 27 OA No.758/2021.. of India & Others in the case of OA 496/2008 decided on 14.09.2011 wherein the following has been held :
"13. Again in the case of J. Makwana Vs. Union of India & Ors in O.A No. 750/98 decided on 04.09.2001 by the Ahmedabad Bench of this Tribunal same question of holding somebody else liable for the fraud perpetuated by somebody else was involved. Quashing and setting aside the order of the recovery passed by the Disciplinary Authority therein, the Tribunal has observed as under: -
We have.no hesitation in concluding that the whole order of the disciplinary authority as. well as of the appellate authority is based on misconception of the terms negligence and in. utter disregard to the' provisions of Rule 11(3) of the CCS (CCA) Rules. It appears that the disciplinary authority and the appellate authority believe that. whenever some fraud has taken place in the department and there is loss of revenue, somebody should be held guilty for the loss caused to the department. It is not kept in mind by the disciplinary authority as well as the appellate authority that the rule providing for imposing penalty i.e. Rule 11(3) of CCS (CCA) Rules clearly lays down that the recovery can be imposed from the pay of the Govt. Servant if the pecuniary loss is caused by him to the Govt. by the negligence or the breach of the orders. We fail to understand how the penalty of recovery of Rs.9,000/- could have been imposed by the disciplinary authority on the applicant and confirmed by the appellate authority, when the charges leveled against the applicant not that, he by his act of negligence caused any pecuniary loss to the Govt. The .charge leveled against the applicant was that by his negligence in 28 OA No.758/2021 not posting the entries of passbooks in the error book, the fraud was not detected earlier. The: Tribunal had further gone to observe that even if for a moment we believe that applicant was negligent in not posting the entries of the passbooks in the error book, then also this negligence was not such that would be a cause for punishing the applicant with recovery of loss sustained by the department as well . withholding of one increment. The applicant obviously is not responsible for the misappropriation of this amount and therefore, the recovery if any was to be made for the loss of the amount ought to have _been made from the person directly responsible for the misappropriation. | ;
_ 14. We are in complete agreement with the ratio laid down bythe above judgments. The order passed by the Disciplinary Authority and upheld by the Appellate Authority imposing punishment of recovery of the. applicants is not in accordance with the provisions of Rule | 11(3) of CCS (CCA) and therefore cannot be sustained. The order can easily be said to be illegal and as such, deserves to be quashed and set aside in all the cases.
15. From the facts of the case in hand it is no where remotely suggested by the respondents that misappropriation of amount/fraud was committed by the applicant and the pecuniary loss caused to the department was hot on account of any act of omission or commission of the applicant, nor the applicant, in any way, a co-conspirator or associated with it. Even the charge sheet 'Was issued under rule 16 of the CCS (CCA) Rules, which itself denotes that there is no serious charge against him. In - view of the above jurisdictional! pronouncement when the - person concerned is directly responsible for misappropriation of money causing pecuniary loss to the government, it was held that no recovery can be made from him. Moreover, recovery of money is a mater of civil RA :
_ 29 OA No.758/2021
- consequence is not permissible without firstly conducting
-an-regular inquiry. Thus for the forgoing reasons «as pointed out above the impugned order dated 31.07.2007 and 08.08.2008 are set aside. If any amount in pursuance to the impugned order is recovered from the applicant, the same shall be refunded to the applicant within period of four weeks. No costs."
8. | The controversy involved in this matter is that the applicant is denying to have posted alleged transactions in SOSB Branch ledger in Sanchay Post Software System at Sawantwadi Head Post Office while the respondents have alleged that the applicant has posted the said transactions in the SOSB ledger at the said Head Post Office while working in SOSB Brarich on 22.03.2011 and 24.03.2011. The applicant states that to prove his innocence, he asked for additional documents, the respondents did not supply him. the required documents, held him guilty and thereafter, imposed penalty of recovery of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) from his pay to be recovered at the rate of Rs.5,000/- (Rupees Five Thousand only) in SO monthly instalments.
The respondents state that relevant documents were supplied to the applicant and the other documents sought by the applicant were not found relevant to the charge under Rule 16 of CCS (CCA} 30 , OA No.758/2024 Rules, 1965. The respondents have identified the applicant as subsidiary offender in the case of fraud taken place at Konalkatta Colony Post Office.
8(a). It is seen that the applicant has filed appeal on 19.07.2018, the appellaté authority is duty bound to cross check the documents and can seek connected additional documents to determine the involvement of Charged Officer and his delinquency in any matter. Acting mechanically, without application of mind is a serious handicap and result of such actions are miscarriage of justice. To act as Appellate Authority is a quasi-judicial function and needs to be performed with diligence in an unbiased manner. We find that the appellate authority has acted in mechanical manner while deciding appeal of the applicant. it is also to stress that the judicial orders of Hon'ble Courts lay down law and the executive authorities are duty bound to follow the law laid down in such judicial pronouncements.
&(b). It is further seen that the respondents have issued a charge-
sheet under Rule 16 of CCS (CCA) Rules, 1965 to the applicant ina 31 OA No.758/2021 fraud case as they have identified him as Subsidiary Offender and a punishment of recovery of 25.2,50,000/- (Rupees Two Lakhs Fifty Thousand only} to be recovered in 50 monthly instalments at the rate of Rs.5,000/- (Rupees Five Thousand only) per month was imposed. Before initiating disciplinary action against the applicant, his | statement has been recorded on 19.08.2017 wherein the applicant has stated that he has been shown the following six documents:
"1... SB-7 of. Account. No.3254417 19.03.2011 & 22.03.2011.
2. SB-7 of Account No. 3254417 Specimen Signature Book.
Ledger copy of a/c no.3254417.
Zerox copy of Passbook of A/c No. 3254417.
Nominal Roll of Sawantwadi HO for March, 2011.
Attendance Register of Sawantwadi HO for March, 2011."
Dn pw 8(c). In the said statement, the applicant has stated that as per Nominal Roll of March, 2011 of Sawantwadi HO, he has been shown to have worked on 22.03.2011 and 24.03.2011 in SOSB Branch, He further states that on-both these dates while looking after the work of SOSB Branch, it is seen that SB-7 forms of 32 a OA No.758/2024 withdrawal of Rs.10,000/- dated 19.03.2011 and withdrawal of Rs.20,000/- dated 22.03.2011 are seen to have been received in SOSB Branch. He also states that Office Order Book was not made. available to him. He also states that he remembered to have performed the work of consolidation and MPKBY/PRSS listing on 22.03.2011 and 24.03.2011 at Sawantwadi, HO. He concluded by saying that he shall be able to tell about both SB-7 vouchers, if he has shown office Order Book of Sawantwaci HO for both these dates.
8(d). From the above statement, it is clear that the applicant has seen SB-7 of Account No.3254417 for 19.03.2011 and 22.03.2011 have been seen by the applicant, specimen signature for the said account has also been seen by him along with a ledger copy and Xerox copy of Account No.3254417, Therefore, the assertion of applicant to see the Office Order Book to confirm whether he was ordered to have worked in SOSB Branch is an afterthought as he himself has confirmed of having worked in the said branch. The nominal roll register of Sawantwadi Head Office for the month of | 33 OA No.758/2021. March, 2011 and the attendance register for the same month also confirmed the same and both these documents were also seen by the applicant at the time of giving his statement. In his statement dated 19.08.2017, the applicant, has been shown the required documents and in the said statement, he has mentioned while working in the SOSB Branch, he should have brought these irregularities to the notice of higher authorities and by seeing the . documents enclosed with the vouchers. He states that he did not make any posting of these transactions. He further states that he had requested to 'supply him ten documents, however, the respondents only supplied him three documents therefore, he could not prove his innocence in the matter.
8(e). As per 'the laid down procedure, applicant while rhaking entry into the SOSB ledger at HO for the transaction taken placed at Sub Post Offices and reported to s0sB through LoTs and vouchers, need to check LoTs and vouchers and authenticate LoTs/voucher with his_ initial / signature. Even when SB-7 --
_ withdrawal form were shown to the applicant by the respondents 34 : OA No,758/2021 on 19.08.2017 and his statement was recorded, the respondents did not bring clarity on the aspect that it was, in fact, applicant who made entries into the SOSB ledgers at Sewantwadi Head Post for the withdrawals in question in the relevant account. Even to prove preponderance of probability of involvement of any official in any act which has caused harm / loss to the respondents, the respondents have to effectively build their case. The vouchers like Lot, SB-7 withdrawal form, posting in hardcopy ledger / Sanchay Post Software at SOSB in Head Post Office, shift report of software, log report (in computerized application like Sanchay Post Software) are crucial documents indicating which could reveal as to who logged in and at what time. The above documents were essential documents which would have provided definite leeway to the respondents to authoritatively establish that it was the applicant who, in fact, has. made entries in the SOSB ledger using Sanjay Post Software at SOSB Head Post Office. Unfortunately, the respondents have merely placed reliance upon SB-7 withdrawal 35 | OA No.758/2021 forms (without confirming that it was applicant who had checked
-and authenticated the same before making entry in the ledger).
a(fh It may be stated that List of Transaction (oT) is a document containing details of transactions taking place at Sub Office under the control of Head Post Office and is received everyday from the Sub. Post Office along with the connected vouchers. The concerned Postal Assistant working in SOSB at Head Post Office is required to cross check the vouchers with LoT and, thereafter, post the relevant transactions in the Head Post Office ledger. While doing so, he authenticates voucher as well as LoTs with his initial / signature. When the. applicant is vehemently denying of having | made posting in the Sanchay Post Software Ledger in SOSB at Head Post Office on the given dates and the respondents are not providing him. documents like LoT, shift report, log reports, other crucial documents, imputing allegation to the applicant and declaring him Subsidiary Offender and thereafter, proceedings against him under Rule 16 of CCS {CCA) Rules, 1965 resulting in imposition of penalty of recovery of Rs.2;50,000/- (Rupees Two 36 OA No.758/2021 Lakhs Fifty Thousand only), is unjust and bad in law. The respondents have to establish in their case that it is applicant who has made entries in the ledger which were later on detected as
- fraudulent entries. Nowhere in their reply, the respondents have stated that the applicant has put his signature on any of the vouchers of having checked/examined the fraudulent transactions taken place at Konalkatta Sub Head Post Office and, thereafter, made entries in SOSB ledger using Sanchay Post Software at Sawantwadi Head Post Office nor they have sroduced any record while filing the reply that applicant has worked on Sanchay Post Software System and has made entry in the SOSB ledger at HO. We hold that the case of the respondents is weak and they have not done any ground work to prove the involvement of applicant in posting the fraudulent transactions at Konalkatta sub Office for which he has been punished. The action of the respondents to selectively provide documents to the applicant and rejecting the relevant document like list of transactions and not producing the shift report, log report of Sanchay Post Software which would have 37 OA No.758/2021 determinately brought out as to whether it was applicant who has made entries in the SOSB ledger used in Sanchay Post Software, cast serious doubts on the action of the respondents in this matter. Principles of natural justice have been blatantly flouted.
9. in view of the above, the OA is allowed. Annexure A-1 and Annexure. A-2 are quashed and set aside. The respondents are directed to refund the amount so far recovered from the applicant within three weeks from the date of receipt of a certified copy of ' this order along with interest at the rate of 7 % per annum.
Pending MA, if any, stand closed. No cost.
(Rajinder Kashyap) (Justice M.G. Sewlikar)
- Member (A) | Member (J) kmg*