Central Administrative Tribunal - Cuttack
P K Pradhan vs D/O Post on 15 March, 2023
1 O.A.No. 260/00463 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00463 of 2019
Reserved on : 01.03.2023 Pronounced on: 15.03.2023
CORAM:
HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
Shri Pradeep Kumar Pradhan, aged about 50 years, belongs
to Gr. D, Son of late Duryodhan Pradhan, At/PO- Badgogua,
Via/PS-Bonaigarh, Dist- Sundargarh, Ex-GDSBPM,
Badgogua BO.
..... Applicant
For the Applicant : Mr. S.K.Ojha, Counsel
-Versus-
1. Union of India represented through the Secretary to
Govt. of India, Ministry of Communications & IT,
Department of Posts, Dak Bhawan, Sansad Marg, New
Delhi-110001.
2. The Chief Postmaster General, Odisha Circle,
Bhubaneswar, At/Po-Bhubaneswar, Dist. Khurda, PIN -
751001.
3. The Director of Postal Services, Sambalpur, O/o the PMG,
Sambalpur Region, At/PO/PS/Dist- Sambalpur-768001.
4. The Sr. Superintendent of Post Offices, Sundargarh
Division, At/PO/PS-Sundargarh-770001.
.....Respondents
For the Respondents: Mr. B.R.Swain, Counsel
2 O.A.No. 260/00463 of 2019
ORDER
Swarup Kumar Mishra, Member (J):
The applicant has filed this OA with the following prayers:
"(i) To quash the chargesheet under Annexure-A/9 and orders of removal contained under Annexure-A/13 and Appellate order under Annexure-A/15 holding the same as illegal.
(ii) To allow this OA with costs and back wages to the applicant for king (sic) him out of employment without any appropriate reason;
(iii) To pass any appropriate order as deem fit and proper in the interest of justice directing department to recover the cost and back wages for the Disciplinary Authority for harassing a poor employee."
2. Respondents have filed counter contesting the case of the applicant, to which, the applicant has also filed rejoinder.
3. According to the Ld. Counsel for the applicant on 18.04.2016 Chargesheet was issued to him with four articles of charges, out of which, the main charge was that while conducting inventory on 27.03.2015 a sum of Rs. 19,320/- was found shortage of Govt. Cash. Regular Inquiry was conducted and 22 witnesses were examined from the side of the prosecution. The Inquiry Officer submitted its report on 26.12.2017 (A/10) holding the charges not proved.
3 O.A.No. 260/00463 of 20193(i). Insofar as Article I of charge is concerned, it has been held by the Inquiry Officer that the vouchers and cash of Rs. 11,789.50 of 27.03.2015 were kept inside office table drawer duly locked and made over by the CO to Sri B.Kar (SW-19) on the next day as per Ext.S-5. Had Sri Lakra submitted the BO account Book (Ext.D-5) and BO Daily account dated 27.03.2015 (Ext.D-3/D-4) prepared and submitted by C.O/applicant, to the SSPOs and the SSPOs checked the said records, no such charge regarding shortage of Govt. Cash would have been framed against the C.O. Further, the transactions made by the C.O. on 27.03.2015 as per Ext.D/3 have been copied and shown as transaction dated 28.03.2015 by Sri Lakra to mislead the SSPOs without reporting the correct facts. The Disciplinary Authority has accepted the findings of Inquiry Officer in respect of other three charges but disagreed with the findings in respect of Article 1 indicating that on 27.03.2015 Sri Lakra has conducted inventory accompanied by the Magistrate so also Police Officer but did not indicate in his report that any such cash was recovered and thus held that the allegation in Article-I as proved. Copy of the report of the IO along with dissenting note was supplied to the applicant, who had submitted his reply stating inter alia that on 4 O.A.No. 260/00463 of 2019 27.03.2015, during first half of the business hour, after receipt and disbursement of the amount, the balance amount of Rs. 11,789.50 was kept in the table drawer, which was locked. This fact has been admitted by the Magistrate in his deposition that they reached on spot at about 11.20 AM and he has not permitted to break the lock and, after inventory, the team left the office keeping the post office sealed. 3(ii). On the next day, i.e. on 28.03.2015, the IP with the Police Officer and the officer, who will take the charge, arrived at the Post office and in presence of the applicant conducted further inventory. After opening of lock put on the drawer it was found that all the transaction vouchers and cash of Rs.11,789.50 is viable, which they took into custody. Hence, there was no shortage of Govt. Cash as has been alleged. However, without taking into account the said fact, the Disciplinary Authority vide order dated 27.03.2018 (A/13) imposed punishment of removal from service. It is submitted by Ld. Counsel for the applicant that although a detailed appeal was filed by the applicant, the Appellate Authority without appreciating the points raised by him, rejected the same confirming the order of removal passed by the Disciplinary Authority upheld the punishment with vague reasons and going 5 O.A.No. 260/00463 of 2019 beyond the records and evidences collected/recorded at the time of Inquiry.
3(iii) The case of the applicant is that when it is established that there was no shortage of fund, he has been victimized for non-application of mind by the authorities, which may be either intentional or with malafide intention. Further, in view of the settled proposition of law by the Hon'ble Apex Court in the case of S.P.Malhotra Vrs. Punjab National bank [(2013) 2 SCC (L&S) 673], when the Disciplinary Authority disagrees with the findings of the Inquiry Officer, then before recording its findings on such charge, it must record its tentative reasons for such disagreement and supply the same to the delinquent officer for opportunity to represent before it records its findings. In the instant matter, reason of disagreement is not available rather the Disciplinary Authority directly recorded his findings without showing any reason as to why he is not in agreement with the findings of the Inquiry Officer. Further, it is the case of the Ld. Counsel for the applicant that the since the order of punishment is not sustainable in the eye of law by applying the principle laid down by the Hon'ble Apex Court in the cases of UOI Vrs. K.V.Jankiraman, AIR 1991 SC 2010, and 6 O.A.No. 260/00463 of 2019 Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya, (2014) 2 SCC (L&S) 184, the order of punishment is liable to be quashed and the applicant is to be reinstated with all back wages.
4. In wholesome, the case of the respondents, which is also reiterated by the Ld. Counsel appearing for the respondents in course of argument is that it is a fact that the IO held all the charges as not proved and submitted its report to the DA. The DA examined the report vis a vis all connected records but did not agree with the findings of the IO insofar as Article No.1 is concerned. Hence, the DA supplied the copy of the report of the IO along with disagreement note so far as Article No.1 is concerned to the applicant enabling him to submit his reply, if any. The DA after examining the matter in its entirety including the reply so submitted by the applicant to the disagreement note, imposed the punishment of removal in a well reasoned and speaking order, which was also upheld by the AA. It has been submitted that the plea of the applicant that he had kept the cash and voucher in its table drawer duly locked on 17.03.2015 is nothing but an afterthought to cover up his misdeed because the statement is not corroborated by any evidence. Ld. Counsel for the respondents has also submitted that the 7 O.A.No. 260/00463 of 2019 entire disciplinary proceedings was conducted and concluded by following due procedure of rules and law after giving the applicant adequate opportunity. The punishment was imposed is supported with evidence insofar as the Article of charge no. 1 that to in a well reasoned and speaking order there is hardly of any scope for this Tribunal to interfere on the same. Hence, Ld. Counsel for the respondents has prayed for dismissal of this OA.
5. We have considered the rival submission of the parties and perused the records.
6. The allegation in the Article I is as under:
"That Shri Pradeep Kumar Pradhan while working as GDSBPM, Badgogua BO in account with Bonaigarh SO under Uditnagar HO during the period from 01.08.1993 to 26.03.2015 kept shortage of Govt. cash of Rs. 19320.50 on 27.03.2015. Shortage of Govt. cash Rs. 19320.50 was found by the IPOs Bonaigarh Sub-Division at Badgogua BO during preparation of inventory report of cash & stamps of Badgogua BO from 10.15 AM onwards on 27.03.2015 in presence of the Executive Magistrate, Bonaigarh and Police troops which is as follows. The charge of the office of GDSBPM Badgogue BO was hand over to Sri Basudev Kar, O/S Mails on 27.03.2015.
Closing balance of 26.03.2015= Rs. 19320.50 Physically found
Cash = Rs. 19320.50 Cash = Nil
IPS= Nil IPS= Nil
8 O.A.No. 260/00463 of 2019
Revenue= Nil Revenue= Nil
It is therefore, imputed that the said Shri Pradeep Kumar Pradhan by his above act failed to maintain absolute integrity and due devotion to duty as required under the provisions of Rule-21 of GDS(Conduct & Engagement) Rules, 2011."
7. The finding of the IO insofar as Article I is concerned is as under:
"It is alleged that the IPOs Bonaigarh proceeded to Badgogua BO on 25.03.2015 to seize the Govt. cash, relevant records and to serve put off duty Memo. But Sri Pradhan denied to receive the put off duty Memo and to hand over any Govt. documents. It is informed by the Disciplinary authority that no put off duty Memo was prepared by the SSPOS or IP Bonaigarh on 25.03.2015. Further SW-20 has not recorded any statement of Sri B.Kar, 0/5 Mails or Sripati Karigar, GDSMD, Badgogua BO regarding refusal of the C.O. Hence the allegation is not sustained.
It is also alleged that on 27.03.2015, 5W-20 proceeded to Badgogua BO with Hon'ble Executive Magistrate and police troops for seizure of Govt. cash, stamp,records and to serve the memo of put off duty. But Sri Pradeep Kumar Pradhan was found absconded from the office from 9.45 A.M. on 27.03.2015 and the office was closed. It is found from the deposition of SW-20 against Q. No 74 that he is not aware if the C.O. had absconded from office from 09.45 hours as he arrived there at 10.15 hours. As such this allegation is not sustained.
It is alleged that the IPOs Bonaigarh prepared Inventory report of cash & stamps of Badagogua BO from 10.15 A.M. onwards on 27.03.15 in presence of the Executive Magistrate, Bonalgarh. The Executive Magistrate (SW-21) and 9 O.A.No. 260/00463 of 2019 ASI of Police(SW-22) deposed during oral inquiry that they on receipt of SDM Bonal Memo No 1297 dtd 27.03.2015 started from Bonaigarh at 1100 hours with IPOS Bonaigarh and arrived at Bargogua BO at about 1120 hours. Sri B.Kar, O/S mails also deposed that they arrived at Bargogua BO at about 1100 hours. Further Sri Lakra deposed that he received SDM Memo after 1000hours duly entered in peon book and on receipt of the Memo, he proceeded to Bargogua BO along with others. As such the preparation of Inventory from 10.15 onwards is not proved.
It is charged that the IPOS Bonaigarh found shortage of Rs. 19320.50 at Bargogua BO on 27.03.2015. The office was closed at 1030 as per Notice of Hours of Business, but the IPOs broke the office lock and entered into the office suo- motto without any order of SW-21. The time of preparation of inventory is not noted; whereas as per the deposition of Sw- 21 & Sw-22, the putting of the time is mandatory. It is found that as per B.O. Daily account dtd 26.03.2015 the closing balance of Bargogua BO was Rs. 19320.50. The IPOs found IPs of Rs. 28/- as per the inventory prepared by him and as admitted by the SW-21 & Sw-22. But the IPOs has reported false shortage of cash to the SSPOSs.
The actual BO balance dtd 26.03.2015 is not verified by the IP Bonaigarh. The C.O. had made 25 transactions between 0830 to 1030 hours and had received Rs. 7969/- and disbursed Rs. 15500/ before closing the BO on 27.03.2015 at 10:30 Hours, which is admitted and deposed by Sri Lakra during cross- examination against Q. No 59. Moreover, the vouchers and cash Rs. 11789.50 of 27.03.2015 were kept inside office table drawer duly locked and made over by the C.O. to Sri B. Kar, (SW-19) on the next day as per Ext. S-5. Had Sri Lakra submitted the BO account Book (Ext. D-5) and BO Daily account dated 27.03.2015(Ext. D-3/D-4) prepared and submitted by the C.O. to the SSPOs and the SSPQS checked the 10 O.A.No. 260/00463 of 2019 said records, no such charge regarding shortage of Govt. cash would have been framed against the C.O. Further the transactions made by the C.O. on 27.03.2015 as per Ext-D/3 have been copied and shown as transaction dtd 28.03.2015 by Sri Lakra to mislead the SSPDs without reporting the correct facts.
As such, the charge regarding shortage of cash to a tune of Rs 19320.50 is not proved.
8. The following was the tone of the disagreement note recorded by the DA.:
"Dated at Sundargarh the 16.02.2018 Sub-Proceeding under Rule-10 of GDS (Conduct & Employment) Rules-2011 against Sri Pradeep Kumar Pradhan, GDSBPM (on put off duty), Badgogua BO Va'w Bonaigails SO The copy of the Inquiry report dated 26.12.2017 submitted by Sri SK Singh, IO-cum-ASP(I/C), Rourkela East Sub-Division, Rourkela is sent herewith for submission of your representation, if any to the undersigned within a period of 15 (fifteen) days.
If no representation is received from you within the stipulated date, it shall be presumed that you have no submission to make and action will be taken against you as deemed appropriate.
There were four articles of charges framed against you vide SSPOs, Sundargarh Division, Sundargarh memorandum bearing no B3/R-218 dated 18.04.2016 on which an enquiry was held. After dispassionately going through the charges, evidences adduced, documents exhibited, witness examined and all other connected records/documents, I am inclined to 11 O.A.No. 260/00463 of 2019 furnish my disagreement note on article-1 of the charges. The same disagreement observation is furnished below for your information.
From the deposition statements of Sri Blastus Lakra IPO (SW-20) dated 24.10.2017, Sri Mitrabhanu Naik, ORS, Ex- Asst Collector, Bonaigarh dated 20.11.2017 (SW-21) and Sri Phanibhusan Mohanta, Ex-ASI Police, Bonaigarh (SW-22) dated 20.11.2017, it is found that they have clearly stated during the oral inquiry that the inventory of cash and stamps of Badgogua BO was prepared on 27.03.2015 in the absence of Sri Pradeep Kumar Pradhan, as he did not attend the office on the same day. In the said inventory i.e exhibit no S-17, it is found that in the office on date 27.03.2015, only Indian Postage Stamps of Rs 28/- were available. That clearly goes to prove that the office has no other cash and stamps except the amount of Rs 28/- (Rs Twenty Eight) only in shape of Indian Postage Stamps as mentioned above.
The amount of shortage of cash and stamps to the extent of Rs 19320.50 Ps was clearly collaborated by the deposition on the fateful day as deposed by Sri Blastus Lakra, IPO (SW-20) on 24.10.2017 during the inquiry.
Moreover SW-20, the IPO Bonaigarh Sub-Division stated in his deposition that during his visit to Badgogua BO on 26.03.2015, the charged official denied to make over the charge of office. SW-20, the IPO further stated that during the RPLI Mela held at Bonaigarh SO on dated 10.01.2015, the charged official misbehaved Sri Blastus Lakra, IPO in the said RPLI mela.
Therefore in presence of such evidence and documents, it can be undeniably held that allegation brought against you in article-l of memorandum bearing no B3/R-218 dated 18.04.2016 stands proved without any doubt. I do differ from the IO on his findings on this article of charges.12 O.A.No. 260/00463 of 2019
A copy of this letter may please be acknowledged."
9. The relevant portion of the order of the DA dated 27.03.2018 reads as under:
" I have gone through the representation dated 28.02.2018 of said Sri Pradhan along with Inquiry Authority report and all other relevant records/documents of the case very carefully to reach ts a conclusion.
The submission of said Sri Pradhan regarding observation of the disciplinary authority not going through the connected records before furnishing the disagreement notes on the finding of the Inquiry Authority is not correct. In a departmental inquiry the standard of proof required is preponderance of probability. From Exhibit of S-20 it is found that there was shortage of cash of Rs. 19320.00 which was charged under UCP on 27.03.2015. From Ext. S-17 prepared with signatures of Sri Mitrabhanu Naik, Executive Magistrate (SW-21) and Sri Phanibhusan Mohanta, ASI of Police (SW-22) and Sri Blastus Lakra, IP, Bonigarh Sub Division(SW-20), it is evident that only Indian Postage Stamp of Rs 28.00 (Twenty eight) was available in the office on 27.03.2013. Thus it is clear that there was shortage of cash in the office. From Ext.S-18, the letter of IP, Bonaigarh Sub Division marked A/Badagogua BO dated 27 03.2015 addressed to the SSPOs,Sundargarh Division, it revealed that said Sri Pradhan denied to receive the put off duty memo. The same has also been stated by Sri Blastus Lakra(SW-20) in his deposition dated 24.10.2017 very clearly. The said Sri Pradhan has also refused to make over the charge of GDSBPM to GDSMD. Sri Blastus Lakra has further stated in his deposition that during the RPLI mela on 10.01.2015 Sri Pradeep Kumar Pradhan 13 O.A.No. 260/00463 of 2019 loudly shouted against him and threatened him verbally. The submissions made by said Sri Pradhan after receive of Inquiry Authority report and disagreement note have been examined and considered by the undersigned. From the evidences adduced during the oral inquiry, it is quite evident that the allegations brought out in Article-1 of the charges against said Sri Pradhan are established. He did not keep the office open even on the date of visit of IP, Bonaigarh Sub Division with ASI Police Bonaigarh and the Assistant Collector Bonaigarh on 27.03.2015. Sri Phanibhusan Mohanta, ASI Police Bonaigarh(SW-22) in his deposition dated 20.11.2017 has stated that they came back from the BO at about 13:30 hours. Similarly, Sri Mitrabhanu Naik, Assistant Collector, Bonaigarh (SW-21) in his deposition dated 20.11.2017 stated that they returned from Badgogua BO at about 14:00 hours. The second shift of the BQ is from 13:00 hours to 14.00 hours as pointed out by Sri Pradhan himself in his representation dated 28.02.2018. Thus, he has admitted that he had not attended office on 27.03.2015.
The arguments advanced by said Sri Pradhan are only based on after thoughts which cannot be accepted as rational and logical. Holding a responsible post of BPM in Department of Posts requires high level of discipline and devotion to serve the rural public. He has failed to uphold the dignity of the Department and further acted in the manner to tarnish its image through his misdemeanour of keeping shortage of office cash.
Sri Pradeep Ku Pradhan was further supposed to be disciplined and well behaved in his manner while dealing with the public as well as the departmental officials. His misbehavior shown to the IP Bonaigarh, Sri Blastus Lakra during the RPLI mela stands proved from the deposition of Sri Lakra (SW-20) dated 24.10.2017. The said Sri Pradhan cannot escape from the charges in Article-I of the 14 O.A.No. 260/00463 of 2019 memorandum under the aegis of some unacceptable and feeble arguments advanced by him.;
From the facts narrated above, I consider that Sri Pradeep Kumar Pradhan is not a fit person to be retained in the engagement. Therefore, I Sri Manoj Kumar Naik, SSPOs, Sundargarh Division. Sundargarh award him with the punishment of removal from engagement with immediate effect which shall not be a disqualification for future employment."
10. It is seen that that the IO besides taking other points has held that the actual BO balance dtd 26.03.2015 is not verified by the IP Bonaigarh. The C.O. had made 25 transactions between 08.30 to 10.30 hours and had received Rs. 7969/- and disbursed Rs. 15500/ before closing the BO on 27.03.2015 at 10:30 hours, which is admitted and deposed by Sri Lakra during cross- examination against Q. No 59. Moreover, the vouchers and cash Rs. 11789.50 of 27.03.2015 were kept inside office table drawer duly locked and made over by the C.O. to Sri B. Kar, (SW-19) on the next day as per Ext. S-5. Rule 15 of the CCS(CCA) Rules, 1965 deals with regard to the action to be taken on inquiry report as under:
"15. Action on inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, 15 O.A.No. 260/00463 of 2019 remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant."
Whereas, the DA in his note of disagreement did not whisper anything relating to the findings of the IO that the vouchers and cash Rs. 11789.50 of 27.03.2015 were kept inside office table drawer duly locked and made over by the C.O. Further, the statement that during the RPLI Mela held at Bonaigarh SO on dated 10.01.2015, the charged official misbehaved Sri Blastus Lakra, IPO in the said RPLI mela weighed as a part of the disagreement note although this not formed a part of the charge sheet. Rule 15 of the CCS (CCA) Rules, quoted above, provides that where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with 16 O.A.No. 260/00463 of 2019 its own tentative reasons for disagreement, if any, with the findings of inquiring authority is to be supplied to the charged official to enable him to submit his written defence, if any. The DA came to a positive finding that the allegation brought against the applicant in Article-l of memorandum stands proved without any doubt, which in no circumstances can be said to be a tentative disagreement as provided in the rules. It is seen that the view taken by the DA in the disagreement note ultimately led to imposing the punishment of removal even without whispering anything on the specific stand of the applicant supported by the finding of the IO to the effect that the vouchers and cash Rs. 11789.50 of 27.03.2015 were kept inside office table drawer duly locked and made over by the C.O. that too by putting emphasis that during the RPLI Mela held at Bonaigarh SO on dated 10.01.2015, the charged official misbehaved Sri Blastus Lakra, IPO in the said RPLI mela, which was not a part and parcel of the allegation in Article-I of the charges. Nowhere it is the case of the respondents that although the table drawer of the applicant was broke opened during inventory but nothing was found therein. Law is well settled that the DA cannot impose the punishment by taking into consideration anything which is 17 O.A.No. 260/00463 of 2019 not the part of the charge sheet. The AA failed to apply its mind in proper perspective to the facts recorded above especially when the applicant has been imposed the highest punishment of removal from service. We are, therefore, of a considered view that this case falls within the parameter of no evidence, no opportunity and non- application of mind warranting judicial interference in the matter. Accordingly, we quash the order of punishment dated 18.04.2016 (A/9) and the order of Appellate Authority dated 31.05.2019 (A/15) and direct the respondents to reinstate the applicant within a period of 30 days from the date of receipt of a copy of this order. In such an event, the applicant shall be entitled to all service and financial benefits from the date of removal till reinstatement.
11. In the result, this OA stands allowed to the extent stated above. No costs.
(PRAMOD KUMAR DAS) (SWARUP KUMAR MISHRA) MEMBER(A) MEMBER (J) RK/PS