Central Administrative Tribunal - Allahabad
Ajay Singh vs Post Up Circle on 6 March, 2024
Reserved on 26.02.2024
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 06th day of March, 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 455 of 2012
Ajai Singh S/o Shri Bhagawat Prasad, R/o Village Godaura, Post
Kishanpur, District Fatehpur.
........... APPLICANT
By Advocate: Shri A K Dave
Versus
1. Union of India, through the Secretary, Ministry of
Communication Department of Posts Dak Bhawan, Government
of India, New Delhi - 110001.
2. Chief Post Master, General U.P. Circle, Lucknow.
3. Director Postal Services Kanpur Region, Kanpur - 2808001.
4. Senior Superintendent of Post Offices, Kanpur City Division
Kanpur - 1.
5. Superintendent of Post Offices Fatehpur Division, Fatehpur -
210601.
..........RESPONDENTS
By Advocate: Shri R K Srivastava
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri A K Dave, learned counsel for the applicant and Shri R.K. Srivastava, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"(i) to quash and set-aside the impugned order of compulsory retirement dated 09.6.2010 (Annexure No.
1|Page A-1) passed by the Chief Post Master General U.P. Circle Lucknow (Respondent no.2)
(ii) to direct the respondents to reinstant the Applicant in service with all consequential benefits including arrear of salary.
(iii) to pass any other and further orders as the Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iv) to award cost of the petition."
3. A compendium of the facts as have been narrated in the present original application is that the applicant is aggrieved by the order dated 09.06.2010 passed by the respondents by way of which the punishment of "Compulsory Retirement" was imposed upon him.
The said punishment was imposed modifying the punishment of "Removal from Service" which was imposed earlier. The modification was made by the respondents in compliance to the Tribunal's order. The major allegation of the applicant is that the punishment of "Compulsory Retirement" was too harsh and disproportionate upon him and thus, the same is liable to be done away with thereby granting him all the consequential benefits.
4. At the outset, referring to the relief clause of the original application, learned counsel for the applicant submitted that three major relief have been sought vide the instant OA viz. quashing of the order of compulsory retirement, reinstatement of the applicant in service and grant of consequential benefits as accrue. However, since the applicant has already attained the age of superannuation, the question of reinstatement does not arise. Thus, the prayer of the applicant remains limited to quashing of the order of compulsory retirement and grant of consequential benefits.
5. Disclosing a brief history of the case, learned counsel for the applicant submitted that the applicant was a permanent employee of the respondents' department and during the tenure of the posting in the post office Khaga, a payment of Kishan Vikas Patra issued from
2|Page the Post Office Sahatwar District Ballia amounting Rs. 5,52,900/- was made to one Sri Sultan Ahmed on 9.12.96, 6.3.97, 13.3.97, 23.4.97 at Post Office Khaga on presentation of the KVPs by the aforesaid Sri Sultan Ahmad. Later on, it was transpired that the aforesaid KVPs presented for encashment by Sri Sultan Ahmad were forged and fictitious. In that view of the matter, disciplinary proceedings were drawn against applicant under Rule 14 of Central Civil Services (Classification Central and Appeal) Rules 1965 vide Superintendent of Post Offices, Fatehpur Division Fatehpur Memo No.FS/1/97-98/DP/ Ajai Singh/Fatehpur dated 3.3.98 and the applicant was served with a chargesheet. Six articles of charges were leveled against the applicant. According to Charge No. 1 (Article 1), it was alleged that the applicant while performing his work and duties as Saving Certificates Counter Assistance during the period from Jan 1995 to 16.09.1997 encashed forged KVPs alleged to have been issued from Post Office Sahatwar District Ballia in the name of Sri Sultan Ahmad without verifying the Local Address in violation of Rule 23(1) of Post Office Saving Bank Manual Volume II.
6. Learned counsel for the applicant further submitted that according to Charge No.2 and 3 (Article 2 and 3), it was alleged that the applicant while functioning as Saving Bank Counter Assistant at Post Office Khaga failed to dispatch by regd. Post the applications of Sri Sultan Ahmad dated 5.2.97 addressed to Sub Post Master, Post Office Sahatwar District Ballia for verification for making payment of KVPs as required under rule 31(1) PO SB Man Vol.II. As a consequence of which the application having forged verification entries of the Sub-Post Master, Post Office Sahatwar District Ballia were found attached with the Vouchers of KVP on the basis of which KVP amounting to Rs. 552,900/- were fraudulently encashed by Sri Sultan Ahmad. Thus the applicant is said to have failed to maintain absolute integrity and devotion of duty as required under rule 3(1)(i) and (ii) of Central Civil Service (Conduct Rules) 1964. According to Charge No. 4 (Article 4), it was alleged that the applicant in performance of his work and duties failed to examine that KVP of
3|Page denomination of Rs. 1000/- presented for encashment at Post Office Khaga on 6.3.97, 13.3.97 and 3.6.97 were lost and stolen as per Circular of loss of KVP from Chief Post Master General, Assam Circle, Guwahati vide L. No.INV/GM-77/95-96 dated 18.7.95 circulated by Post Master General Kanpur and Superintendent of Post Offices Fatehpur vide L.No.INV/M-I-LD/95 dated 25.7.95 and F/Loss/95 dated 8/95 respectively as required under rule 23(1)(c) PO SB Man. Vol-II. Thus the applicant is also said to have failed to maintain integrity and devotion of duty as required under Rule 3(1)(i) and (ii) of Central Civil Service (Conduct Rules) 1964. Furthermore, according to charge No.5 (Article 5), it was alleged that the applicant failed to maintain register showing the particulars of Certificates lost before or after issued from the custody of Post Office as required under item 8 of Appendix 8 read with Rule 42(2)(ii) PO SB Man Vol.-II. It is on account of the aforesaid alleged fraudulent encashment of KVP to the tune of Rs. 5,52,900/- to Sri Sultan Ahmad has resulted in loss to the Government. Lastly, according to Charge No.6 (Article 6), it was alleged that on account of gross negligence of the applicant in the discharge of his official work and duties the Government has incurred loss of Rs. 5,52,900/- on account of fraudulent encashment of KVPs by Sri Sultan Ahmad in contravention of Rule 58 of Financial Hand Book Volume 1 read with rule 23 (1) & 23(1)(c) Rule 31(1) and Rule 204 of P&T Manual Vol. 2 and 3 respectively. The Inquiry Officer submitted his inquiry report dated 06.11.2000 wherein only charge no. 3 and 5 were found proved against the applicant and other charges were not established.
7. Learned counsel for the applicant further submitted that when the matter went to the Disciplinary Authority, the said Authority disagreed with the findings of the Inquiry Officer and in exercise of its powers under Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, awarded the punishment of dismissal from service to the applicant vide its order dated 28.02.2001. Being aggrieved by the aforesaid punishment order, the applicant preferred an appeal dated 08.03.2011. The
4|Page Appellate Authority after going through the record of disciplinary proceedings and the memo of appeal, set aside the punishment order dated 28.02.2001 passed by the Disciplinary Authority and vide its order dated 19.04.2001, moderated the punishment to the extent of reduction of pay in three stages from Rs. 4700 to 4400/- in the time scale of pay of Rs. 4000-100-7000/- for a period of 3 years and further ordered the recovery of Rs. 36000/- from the pay of the applicant within a period of 3 years in equal monthly installment of Rs. 1000/-. Aggrieved still, the applicant preferred Revision challenging the order dated 19.04.2001. To the blatant shock of the applicant, the Revisionary Authority disagreed with the findings of the Appellate Authority and imposed the punishment of removal of the applicant from Government service with immediate effect vide its order dated 19.07.2004. Aggrieved still, the applicant approached before this Tribunal vide OA No. 1029 of 2004 which was decided on 18.03.2010 remitting the matter back to the Revisional Authority for reconsideration of the applicant's revision petition. Learned counsel further submitted that in compliance of the order of the Tribunal, the applicant preferred a representation dated 05.04.2010 before the Respondents but once again the respondents passed an illegal order dated 09.06.2010 imposing the punishment of "compulsory retirement" upon the applicant.
8. Referring to the order dated 09.06.2010, learned counsel for the applicant submitted that although in the above order, the Revisional Authority has mentioned the details of charges, reply and objection raised by the applicant as well as additional grounds taken by the applicant vide his representation dated 05.04.2010, but the same have not been considered in the true spirit of the Tribunal's order dated 18.03.2010 and this fact is alone to attribute the impugned order as vitiated. Thus, referring to the entire facts and circumstances of the case, learned counsel for the applicant prayed that the instant case be allowed in favour of the applicant thereby granting him the relief sought.
5|Page
9. Learned counsel for the respondents vehemently opposed the prayer of the applicant and by way of counter, he has submitted that each of the authorities viz. Inquiry, Disciplinary, Appellate and Revisionary are required to work independently without forming any prejudice on the basis of a decision already taken by the previous / subordinate authority. While it is true that the investigation carried out by the previous authority is liable to be looked into before passing an order, in no way, any authority is obligated to take action in accordance with the view already taken by previous / subordinate authorities. Similarly in the instant case of the applicant, the findings of the inquiry officer was overturned by the Disciplinary Authority as all the charges were found affirmed, and in this regard, punishment of dismissal from service was imposed upon the applicant. Although the said punishment was moderated by the Appellate Authority, the Revisionary Authority once again affirmed the punishment given by the Disciplinary Authority. When the matter was remitted back to the Revisionary Authority for reconsideration in compliance of the order of the Tribunal, the Authority considered each and every aspect of the case and imposed the punishment of compulsory retirement upon the applicant by way of a reasoned and speaking order. As such, no illegality or infirmity can be attributed to the impugned order as the punishment was imposed owning to the gravity of charges leveled and established against the applicant.
10. Referring to the Tribunal's order dated 18.03.2010, learned counsel for the respondents further submitted that while passing the order, the Tribunal never directed the respondents to absolve the applicant. The limited direction issued was to reconsider the matter afresh. The said order was complied with in letter and spirit by the respondents and a reasoned and speaking order dated 09.06.2010 was passed thereby imposing the punishment of compulsory retirement upon the applicant. Referring to the order dated 09.06.2010, learned counsel for the respondents submitted that each and every article of charges was deliberated upon in the said order and only when all the charges stood established, respondents went ahead with imposing the
6|Page punishment of compulsory retirement upon the applicant. Even the additional points that were submitted by the applicant by way of his representation dated 05.04.2010 were explicitly discussed and looked into by the respondents in that order. Thus, referring to entire facts and circumstances of the case, prayer was made to dismiss the instant original application being devoid of merits.
11. Applicant has filed rejoinder reiterating the same facts and grounds as have been narrated in the original application.
12. We have considered the rival contentions advanced by the contesting parties and perused the documents on record.
13. As the facts of the case have already been narrated in detail, same are not reiterated for the sake of brevity. Since this is the second round of litigation as the applicant had earlier approached before this Tribunal by way of OA No. 1029 of 2004 wherein he had challenged the order dated 19.07.2004 passed by the revisionary authority, it would be in the fitness of things first and foremost to straightway refer to the judgment dated 18.03.2010 passed by the Tribunal. This is because in its judgment, the Tribunal had deliberated upon the article of charges leveled and established and quantum of punishment imposed thereafter. It is an admitted fact that vide the above judgment, the Tribunal had remitted the matter back to the revisionary authority to decide it afresh, but it would be in the absolute interest of justice to retrace the findings recorded in that judgment. Accordingly, the entire order dated 18.03.2010 is reproduced herein below:
"Learned counsel for the applicant vehemently urged that the Appellate Authority after considering the entire case of the applicant and grounds taken in the memorandum of appeal modified the punishment order passed by the Disciplinary Authority and imposed the penalty reducing his pay by 03 stages from Rs. 4000- 100-7000 for period of 03 years with effect from 1.4.2001 with further stipulation that he will not earn
7|Page increments during the period of reduction and on expiry of this period, the reduction will have the effect of postponing his future increments of pay. Besides, an amount of Rs.36,000/- has also been ordered to be recovered from his pay for a period of three years in the equal monthly installment of Rs.1000. Against this order dated 19.4.2001 passed by the Appellate Authority, the applicant preferred a revision petition before the C.P.M.G. Lucknow. The memorandum of revision petition has been annexed as Annexure-A-14 page-141. Vide order dated 8.4.2004, the Revisional Authority issued a notice enhancing the punishment of the applicant, to which he furnished his reply dated 6.5.2004 which is marked as Annexure-16 to the OA. Learned counsel for the applicant would contend that the representation against show cause has not been properly considered by the Revisional Authority. The Revisional Authority has not recorded any positive findings to defer with the findings recorded by the Appellate Authority. He further submits that out of six charges only charge No.3 and 5 were taken as proved without his involvement in the criminal misconduct. Learned counsel for the applicant would further contend that both the modified penalties contained in the appellate order were confirmed and there currencies too have already expired. There was hardly any justification for the Revisional Authority to revise the appellate order at such a belated stage. According to the applicant the revisional order has been passed due to extraneous considerations. The proposed penalty awarded by the Revisional Authority also does not conform with the principle of natural justice and fair play. The Revisional Authority has not properly considered the proportionality of punishment / quantum of punishment in its true perspective and according to law.
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2. Having given our thoughtful consideration to the pleas raised by the parties counsel, we are satisfied that revisional order has not been passed in accordance with the following decision of the Hon'ble Supreme Court rendered in the case of Ram Chandra (1986 SCC (L&S)
383), N.M. Arya Vs. United India Inssurance Company (2006 SCC (L&S) 840), D.F.O Vs. Madhusudan Das (2008 Vol 1 Supreme Today page 617) and Direcotr, I.O.C Vs. Santosh Kumar (2006 Voll. 11 SCC page 147) in which it has been held by the Hon'ble Apex Court that while deciding the representation/appeal by the competent authority, speaking order should be passed.
3. In view of the our aforesaid observation and without interfering with the order of punishment, we are of the considered view that the revisional order has not been passed after proper application of mind and in accordance with the decision of the Hon'ble Supreme Court. We accordingly quash and set aside the revisional order dated 19.7.2004 and remit the matter back to the Revisional Authority for reconsideration of the revision petition of the applicant in accordance with the provision of rule and pass appropriate reasoned and speaking order, within a period of three months from the date of receipt of copy of this order. While deciding the revision petition of the applicant the proportionality of punishment/ quantum of punishment shall also be looked into.
4. With the above directions, the OA is disposed of.
No costs."
The above quotation makes it abundantly clear that the Tribunal had attributed the order of the Revisional Authority as one not passed after proper application of mind and accordingly the matter was remitted back to the Revisional Authority. Furthermore, the contention of the applicant that the modified penalties contained
9|Page in the appellate order were confirmed and there currencies too had already expired, cannot be ignored.
14. Furthermore, a perusal of the order dated 09.06.2010 passed by the Revisional Authority reveals that the punishment of "compulsory retirement" was imposed upon the applicant citing the reason that same kind of punishment was imposed upon one Shri K P Singh by the Kanpur authority of the respondents' department. This was done as the charges leveled and established against the said K P Singh were same as the ones leveled and established against the applicant. For the sake of clarity, the said portion of the order is reproduced herein below:
"I have gone through the entire case very carefully alongwith the relevant records of the case and points raised by the Petitioner in his Petition. In the instant case, I find that the charges against the Petitioner are found proved due to lapses on his part the Government sustained heavy loss to the tune of Rs. 5,52,900/- in shape of payment of forgedly issued KVPs and accordingly he was punished commensurately and the punishment is found proportionate to the gravity of lapses committed by him. But in the same case another offender Shri K.P. Singh, the then SPM, Khaga was also alleged for irregular payment of KVPs under reference and he was awarded the penalty of compulsory retirement by the Disciplinary Authority i.e. DPS, Kanpur vide Memo No. Vig/M-8/01 dated 30.10.2002. Also, in the case of Petitioner orders of Appellate Authority dated 19.4.2001, was effected and entire amount was got recovered and the currency of punishment was over before issue of Revision Order dated 19.7.2004. Therefore, keeping in view these facts, I intend to modify the penalty of 'Removal from Service' to that of 'COMPULSORY RETIREMENT'. This will meet with the ends of justice."
The above quotation also reveals that the respondents' authority has itself admitted to the fact that in the case of the 10 | P a g e petitioner, the order of the Appellate Authority dated 19.04.2001 was effected and entire amount was got recovered and the currency of the punishment was over before issue of Revision Order dated 19.07.2004. This simply implies that the punishment imposed by the Appellate Authority got executed and the requisite recovery was made from the applicant and the currency period was also expired before the matter came to the Revisional Authority. While passing the impugned punishment order, Revisional Authority has not taken into consideration the previous order passed by the Appellate Authority. Therefore, in all likelihood, the respondents should have refrained themselves from imposing another punishment order when a punishment order already got executed. This action on the part of the respondents amounts to "double jeopardy" on the applicant. Thus, for this reason itself, the case is liable to be allowed in favour of the applicant.
15. Furthermore, the respondents have equated the case of the applicant with one Shri K P Singh arguing that the charges leveled and established in both the cases were similar and therefore, the applicant deserved the same punishment as was given to Shri K P Singh. However, in his representation dated 05.04.2010, submitted by the applicant before the respondents, the applicant vehemently contended that his case is liable to be equated at par with another case of a Postal Assistant namely Mr. MR Khan and not with Shri K P Singh. This is because the applicant was similarly situated as M R Khan and not with K P Singh, who was having higher responsibility than the applicant. And since, M R Khan was given the punishment of withholding of one increment for two years with cumulative effect, same sort of punishment, if any, was required to be inflicted upon the applicant also. Regarding this contention of the applicant, not much reasonable recordings have been made either in the impugned order dated 09.06.2010 or in the counter affidavit filed by the respondents or even in the arguments advanced by the respondents' counsel. And thus for this reason also, the case is liable to be allowed in favour of the applicant.
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16. In view of the above deliberations and analysis and also taking into cognizance the limited relief which can be advanced to the applicant at this stage when he has already cross the age of superannuation and no case of reinstatement can be made out, it would be in the fitness of things as well in the utmost interest of justice, if the instant original application is allowed in favour of the applicant. Accordingly, the original application is allowed to the extent that the order dated 09.06.2010 passed by the respondents is hereby set aside so much so that it is deemed that punishment imposed by the Appellate Authority upon the applicant was already executed as the recovery was made and currency period was expired till the matter came up before the subsequent authority. Since the applicant has already crossed the age of superannuation and cannot be considered for reinstatement, nonetheless, respondents are hereby directed to refix the applicant's pay notionally for the purpose of granting the pension and other post retiral benefits by taking into account the entire service he would have rendered till his actual retirement if the order of compulsory retirement had never been passed. This is because two different punishments for the same set of charges imposed by different authorities cannot run concurrently. The above exercise must be completed within a period of 06 months from the date of receipt of certified copy of this order, without fail.
17. All associated MAs stand disposed of. No costs.
(Dr Sanjiv Kumar) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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