Central Administrative Tribunal - Jodhpur
Miss. Sangeeta Kukreja vs M/O Communications on 16 August, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
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OA No.290/00253/2015 Pronounced on : 16.08.2018
MA No.290/00121/2016 Reserved on : 07.08.2018
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CORAM: HON'BLE SMT. HINA P. SHAH, MEMBER (J)
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Ms. Sangeeta Kukreja, D/o Shri Kashi Ramji, aged about 53 years, R/o
202, Parmatma Apartment, Shakti Nagar, Udaipur-313001, at present
employed on the post of Postal Assistant in Udaipur Head Post Office-
313004.
...APPLICANT
BY ADVOCATE : Mr. J.K. Mishra.
VERSUS
1. Union of India, through Secretary to the Govt. of India, Department
of Posts, Ministry of Communications & IT, Dak Bhawan, Sansad
Marg, New Delhi-110001.
2. Senior Superintendent of Post Offices, Udaipur Division, Udaipur.
3. Director of Postal Services, O/o Postmaster General, Raj. Southern
Region, Ajmer-305001.
RESPONDENTS
BY ADVOCATE: Mr. Babu Lal Bishnoi.
ORDER
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HON'BLE SMT. HINA P. SHAH, MEMBER (J):-
1. The present Original Application (O.A.) has been filed by the applicant under Section 19 of the Central Administrative Tribunal's Act, 1985, wherein the applicant seeks the following relief:
"The Impugned charge sheet dated 15.04.2015 (Annexure A1), penalty order dated 16.06.2015 (Annexure A2), imposing the penalty of recovery of Rs.1,02,815/- passed by 2nd respondent may be declared illegal and the same may be quashed. The respondents may be directed to allow all consequential benefits including refund OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 2 of any amount deducted from his salary, if any, as if the impugned orders were never in exercise."
2. The brief facts of the case are as under:-
i) The applicant was initially appointed to the post of Postal Assistant on 10.12.1986 at Udaipur HO and she is presently working on the same post. The applicant was issued with the charge sheet vide memo dated 15.04.2015 under rule 16 of CCS (CCA) Rules, 1965 alleging that while working as PA (SBSO) at Udaipur HO during the period on 13.06.2008, 29.09.2008, 22.04.2009 and 10.06.2009 to prepare half margin verification memo and to challenge the difference of balance after transactions (BAT) shown in pay slip/withdrawal from and due to her negligence, misappropriation of Government money has been done by Shri Pankaj Kumar Nigam.
ii) The applicant had demanded several relevant documents for submitting her defence but instead of supplying the copies she was allowed inspection of the same. Thereafter, she submitted a detailed representation against the said charges vide her letter dated 07.05.2015. She, inter-alia, submitted that the ledger posting in SBSO Branch of Udaipur was pending since long and it was also not her duty as one Mr. Ashok Darra was deputed for the said work. She was asked to do only SB Consolidation for tallying the account of transactions which was also not her duty. She has tried to carry out the said duties to the best of her efforts but she cannot be solely responsible for the said acts.
iii) The applicant was imposed with a penalty of recovery of Rs.1,02,815/- vide order dated 16.06.2015 to be recovered in 20 installments of Rs.5000/- each and last 21st installment of Rs.2815/-. The applicant stated that the charges have been held as proved and it was held that had she worked as per rules, loss of an amount of Rs.5,31,180/-
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 3 misappropriated/caused by Shri Pankaj Kumar Nigam could have been stopped. The applicant stated that her reply to the said charges was paid no heed. It was stated that the charges are of grave nature but lenient view has been taken and the penalty of recovery is imposed.
iv) The applicant stated that the disciplinary authority merely established certain lapses on the part of the applicant without explaining the facts leading to the loss and the manner in which the lapses on the part of the applicant had a link with the loss sustained by the Department. Recovery has been ordered from the applicant itself and there is no mention about the recovery from the alleged principal offender and other co-offenders. Also there is no mention of amount of so called loss or amount of misappropriation made by Shri Pankaj Kumar Nigam, SPM. Though, Nigam was issued with a charge sheet, it did not mention the charges relating to the loss caused as mentioned in the present charge sheet.
v) The applicant stated that neither the loss suffered by the Department due to the act of the applicant has been ascertained nor correctly assessed in a realistic manner, the contributory negligence on the part of the applicant as per mandate of the rules. The applicant stated that specific instructions have been issued by the Postal Department in this regard and the same are placed below the rule 11 of the Rule under heading "Director General P&T Orders" at Sl.No.12, regarding imposition of penalty of a recovery. It is stated by the applicant that she has been performing her duties sincerely and she has not facilitated anyone to misappropriate Government funds. No action has been taken against the principal offender or any action has been taken against the co-offenders. The applicant further added that the whole exercise of the respondent Department seems to recoup the loss occurred due to fraud committed by OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 4 Sub Office Staffs and applicant was made a scapegoat to make loss, fraud committed by Shri Pankaj Kumar Nigam and other such staffs.
vi) The applicant states that similar charges were leveled against her in another disciplinary proceedings vide memo dated 26.03.2014 (Annexure A4) and the same culminated into imposition of penalty of censure and the said order of censure was upheld by the respondents vide order dated 03.03.2015 (Annexure A5).
vii) The applicant has relied towards the judgment passed in OA No.156/2011 titled Sh. B.L. Verma Vs. UOI & Ors., decided on 22.05.2012, and also to the judgment of Sunil Kumar Joshi Vs. UOI & Ors. passed in OA No.252/2012, decided on 09.08.2013 by the very same Bench, which is annexed at Annexure A16. It is hereby submitted that the punishment order of recovery was quashed and OA was allowed in OA No.252/2012 in the same fraud case (Phalodi fraud case). The Hon'ble High Court has also dismissed the WP No.1695/2014, challenging the order of this Tribunal in the said OA vide judgment dated 20.03.2014. The SLP No.CC No.673/2015, filed by the respondents in the said OA, stands dismissed vide order dated 19.01.2015.
viii) The applicant also relies towards the judgment passed by this Tribunal in OA No.251/2012 titled S.N. Singh Bhati Vs. UOI & Ors., where the OA was allowed and the respondents were directed to refund the amount already recovered. The said case was further taken up to the Hon'ble High Court of Judicature for Rajasthan at Jodhpur, and the Hon'ble High Court of Judicature for Rajasthan at Jodhpur, in D.B. Civil Writ Petition No.2494/2014 titled UOI & Ors. Vs. S.N. Singh Bhati, dated 04.04.2014, dismissed the WP filed by the respondents and held that the punishment of recovery is illegal, unjust and improper.
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 5
ix) The applicant has also relied on the following judgments:-
i) OA No.290/00499/2012 titled Jassa Ram Vs. UOI & Ors., decided on 08.06.2018 of this C.A.T. Jodhpur Bench.
ii) OA No.290/00347/2014 titled Mrs. Neelam Ahuja Vs. UOI & Ors., decided on 03.06.2016 of this C.A.T. Jodhpur Bench.
iii) OA No.05 of 2013 titled G.M. Sorte Vs. UOI & Ors., decided on 15.06.2015 of C.A.T. Jabalpur Bench.
iv) OA No.496 of 2008 titled B.R. Verma Vs. UOI & Ors., decided on 14.09.2011 of C.A.T. Allahabad Bench.
v) OA No.524 of 2008 titled S. Venkataswamy Vs. The Sr. Superintendent of Post Offices & Anr., decided on 27.08.2008 of C.A.T. Hyderabad Bench.
x) The case of the applicant is that all these matters are identical to the present OA and that charge sheet under Rule 11 of CCS (CCA) Rules, 1965, penalty of recovery would have been ordered by the respondents only as an exceptional case for the reasons to be recorded in writing and the delinquent official should have had a reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which such recovery is being ordered.
3. The respondents in their reply dated 18.01.2016 have averred that the applicant was appointed as Postal Assistant in the Department of Posts on 10.12.1986. Shri Pankaj Kumar Nigam, the then SPM Udaipur Railway Station PO misappropriated Government money by making fraudulent withdrawal in SB/TD/MIS accounts and the applicant was identified as the subsidiary offender in the said case. She was therefore issued charge sheet under Rule 16 of CCS (CCA) Rules, 1965 alleging that while working as PA (SBSO) at Udaipur HPO on 13.06.2008, 29.06.2008, 22.04.2009 and 10.06.2009, she committed following irregularities:-
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 6
i) She failed to prepare half margin verification memo in respect of SB withdrawals at Udaipur Railway Station NDTSO in SB account no.203453 dated 27.09.2008 for Rs.60,000/- LOT dated 27.09.2008 and SB account no.203672 dated 21.04.2009 for Rs.70,000/- LOT dated 21.04.2009 respectively as required under Rule 85 read with note 3 below Rule 33 (04) of POSB Manual Volume-I.
ii) She also failed to challenge the difference of balance after transaction as shown on pay-in-slip/withdrawal form of Udaipur Railway Station SB withdrawal in account no.201578 for Rs.60,000/- on 09.06.2009, LOT dated 09.06.2009 with SBHO ledger while making data entries on 10.06.2009 as required vide Rule 31 (2) (ii) & Rule 38 (1) (a) of POSB Manual Volume-I.
i) The respondents further stated that due to above irregularities committed by the applicant, at Udaipur HO, a huge misappropriation of Government money by Shri Pankaj Kumar Nigam at Udaipur Railway Station NDTSO could not be detected and as a result of conclusion of disciplinary proceedings under Rule 16 of CCS (CCA) Rules, 1965; she was awarded with penalty of recovery of Rs.1,02,815/- from the pay of the official in 20 instalments of Rs.5000/-each and last instalment of Rs.2,815/- vide SSPOs Udaipur memo no.F2/4-1/10-11/R-16, dated 16.06.2015.
ii) The respondents have also raised a preliminary objection that the applicant has directly approached this Tribunal by filing the present O.A. without availing alternate remedy available to her. It is proper to say that the order dated 16.06.2015 (Annexure A2) passed by Disciplinary Authority against which departmental appeal lies and the applicant without filing Appeal before the respondents filed the present OA and therefore without exhausting departmental remedies approached this Tribunal OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 7 directly and so the present OA is not maintainable and deserves to be dismissed.
iii) The respondents submitted that the applicant was given full opportunity to defend herself as per Rule 77 of P&T Manual, Volume-III. She was allowed to inspect relevant documents to enable her to submit her defence and finally the applicant had submitted her detailed representation on 07.05.2015 and the same was rejected vide impugned order dated 16.06.2015 (Annexure A2). The respondents stated that had the applicant being vigilant, Shri Pankaj Kumar Nigam could not have misappropriated huge Government money and the same could have been recovered from him, but he has retired on 02.04.2012. He further added that besides the applicant, four more officials are also held responsible for the loss and the proportionate recovery from them also has been ordered. The recovery was therefore correctly assessed keeping in view the contributory negligence on the part of the applicant and also in pursuance to the instructions issued under Rule 106, 107 and 111 of P&T Manual Volume-III. The penalty of recovery imposed upon the applicant is therefore just and proper.
iv) The respondents relied on the judgment passed in OA No.01/2013 titled Shri Ram Sharma Vs. UOI & Ors., decided on 29.09.2014 by Hon'ble C.A.T. Jaipur Bench, wherein it has been held that the departmental proceeding had been conducted by any respondents for imposing minor penalty of recovery of pecuniary loss caused by negligence of any official, in such type of matter, this Tribunal held that there is no illegality and irregularity in the action of the respondents for imposing penalty of recovery from the pay of the official by way of minor punishment.
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 8
v) The respondents, therefore, submitted that the said case squarely covers the present case and is on the same issue, and therefore, the orders of recovery passed by the respondents are just and proper.
4. The learned counsel for the applicant stated that she has not filed an appeal as if the order of the Disciplinary Authority been void ab initio then the Appellate Authority cannot make it valid and relied on the judgment of Baradakanta Mishra Vs. High Court of Orissa & Anr., AIR 1976 SC 1899. He has also relied on the recent judgment passed by this Tribunal in OA No.290/00134/2016 titled Ram Lal Vs UOI & Ors., decided on 06.08.2018.
5. Heard Shri J.K. Mishra, learned counsel for the applicant and Shri B.L. Bishnoi, learned counsel for respondents no.1 to 3 and perused the record available on the file.
6. Learned counsel for the applicant contended that the charge sheet dated 15.04.2015 issued to the applicant was for minor penalty during the period from 29.09.2008, 22.04.2009 and 10.06.2009, but the penalty order was issued for the irregularities committed on 13.06.2008, 29.09.2008, 22.04.2009 and 10.06.2009. The charge memo is extremely vague and it neither reveals the quantum of recovery arrived at. The charge sheet does not mention how the rules are violated. The charge sheet and the Disciplinary order are based on mere presumption. The punishment of recovery of an amount is a special type of punishment and it can be awarded only when the result proved loss to the Government. He further contended that the recovery of any amount it has not been mentioned as minor penalty under CCS (CCA) Rules, 1964 and as per the provision to Sub Rule (ix) of Rule 11 in any exceptional case any other penalty can be made. The enquiry officer while imposing the penalty of Rs.1,02,815/- has not considered this aspect that whether any exceptional OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 9 case is made against the applicant for imposing of penalty of Rs.1,02,815/-.
7. On the other hand, learned counsel for the respondents contended that the amount for recovery has been fixed according to the duties which the learned official had failed to discharge, and that determination of amount for recovery from both the Principal and subsidiary offenders identified had been made depending upon the level of failure of performance of their responsibility.
8. I have carefully considered the rival contention and perused the record.
9. I am not quite convinced with the arguments put forth by the counsel for the respondents, especially so because charge sheet does not contain the fact that any loss has been caused by the applicant to the Department and secondly even the punishment order does discuss the fact that how much peculiar loss has been caused by the applicant to the respondent Department.
10. I have perused Annexure A1, A2 i.e. the charge sheet as well as the Disciplinary order. Both these orders do not state about the quantum or the amount of such recovery to have been determined in a proper manner because that would have required adherence to the principles of Rules 106 and 107 of the Post Office Savings Bank Manual Vol.I, and would essentially require the quantum of negligence on the part of the delinquent government official to be legally determined, which has not been done in this case. What was the total amount or quantum of loss suffered by the Department in the fraud case itself has not been correctly assessed and the respondent Department cannot be allowed to state that the quantum of responsibility of the applicant caused the peculiar loss of Rs.1,02,815/-
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 10 to the Department. In the memo of charge sheet, it has not been mentioned that the applicant violated Rule 3(1)(ii) of CCS (Conduct) Rules, 1964.
11. As per Rule 11 of the CCS (CCA) Rules, 1965, the recovery of any penalty can be imposed only in any exceptional circumstances and for special reasons recorded in writing. Thus, it is seen that five categories of minor penalties in Sub-Rules- (i), (i), (iii), (iii) (a) and (iv) of Rule 11 and five categories of major penalties in Sub-Rules (v), (vi), (vii), (viii) and
(ix) of Rule 11 and there is 11th category of penalty also described within Rule 11, which is included in the second proviso to the Rule.
12. It, therefore, appears that in case of any action taken against the delinquent Government servant, which does not fall under five categories of minor penalties or five categories of major penalties, but which has to be classified as an exceptional case, the only requirement is (a) that the special reasons may be recorded in writing, and (b) a corollary that under the Constitution of India, the delinquent Government servant should have had a reasonable opportunity of being heard regarding the exceptional or compelling circumstances.
13. In the instant case, there is no allegation of misappropriation/embezzlement or any charge which may cast a doubt upon the integrity upon the applicant, anything which may indicate even the slightest hint of complicity on the part of the applicant with the main offender. The charges relate to account and discharge of her function as PA. The sum and substance of the charges levelled against the applicant is that she remained negligent. It would appear that the respondents in their anxiety to recover the huge loss of public money are implicating employees without categorically establishing their guilt, current case being one such glaring example.
OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.) 11
14. Accordingly, it is held that after having issued the charge sheet under Rule 16 of CCS (CCA) Rules, 1965, the penalty of recovery could have been ordered by the respondents only as exceptional case for the reasons to be recorded in writing and that delinquent Government servant should have reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which such recovery was being ordered, which is not the case in the instant case.
15. Therefore, in these circumstances of the case, the impugned charge sheet dated 15.04.2015 (Annexure A1) and penalty order dated 16.06.2015 (Annexure A2) are required to be quashed and the same are accordingly quashed and set aside. The respondents are directed to refund the amount already recovered from the applicant within a period of six months' from the date of receipt of a certified copy of this order.
16. In view of the submissions made above, the MA filed by the respondents bearing MA No.290/00121/2016 for vacation of interim order granted by this Tribunal dated 17.07.2015 is disposed of.
17. The O.A. is accordingly allowed, as stated above, with no order as to costs.
(HINA P. SHAH) MEMBER (J) Dated: 16.08.2018 Place: Jodhpur /sv/ OA No. 290/00253/2015 (Ms. Sangeeta Kukreja Vs. UOI & Ors.)