Central Administrative Tribunal - Delhi
Om Prakash Sharma vs The Union Of India on 8 November, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1085/2012
Reserved on:23.09.2013
Pronounced:08.11.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Om Prakash Sharma
S/o Late Shri Brij Lal
Postal Assistant (Retired)
Head Post Office,
Mathura (UP)
R/o Village and Post-Jarar (Via-Sureer)
District-Mathura (UP). .....Applicant
By Advocate: Shri R.P. Sharma.
Versus
1. The Union of India,
Ministry of Communication and
Information Technology
Through Secretary,
Department of Posts,
Dak Bhawan,
Sansad Marg,
New Delhi.
2. The Director Postal Services
Office of Post Master General,
Agra Region,
Agra-282001.
3. The Sr. Superintendent of Post
Offices,
Mathura Division,
Civil Lines,
Mathura(U). ...Respondents
By Advocate: Shri R.V. Sinha.
ORDER
G. George Paracken,Member (J) This is the second round of litigation by the Applicant before this Tribunal. OA No.3140/2010 filed by him in the first round was disposed of vide Annexure A-11 order dated 17.03.2011 by remitting the matter to disciplinary authority to pass fresh order only on the ground that the impugned order of penalty was passed with retrospective effect which is not permissible under law. All other grounds were left open. The said order, being a short one, is reproduced as under:-
The Applicant was charge sheeted for misappropriating Rs.1750/- @Rs.350 each KVP No.72CC 181237 to 181241 dated 16.05.2000, Rs.2625@ Rs.525/- each on KVP No.72CC 181244 to 181248 and Rs.2625/- @ 525/- in KVP No.72 CC 181249 to 181253 dated 20.05.2000. He was so charge sheeted vide memo dated 11.08.2008, the Applicant submitted his reply dated 30.08.2008 denying the charges alleged against him. Vide order dated 18.09.2008 Shri B. Arya, Asstt. Supdt.(Post) (HQ) Mathura was appointed as an enquiry officer to conduct enquiry. In his report the enquiry officer found the Charge-I against the Applicant not proved and Charge-II and Charge-III as proved.
2. A copy of the enquiry report was made available to the Applicant. The Applicant, made representation against the same. In his representation, the Applicant raised following contentions:-
(i) Though he had asked for additional documents for his defence, same were not provided to him;
(ii) Mr. Siyaram stated that he had no complaint of short payment and after finishing his post office work and the amount 5250/- was received by his wife.
(iii) Smt. Ramwati did not make any complaint and she also did not appear in the enquiry.
3. The Senior Superintendent of Post Office, Mathura passed the order dated 09.12.2009 imposing the penalty of reduction in pay of the Applicant from the stage of 14,420 to 13,590/- from 01.12.2009 to 31.01.2010. The Applicant preferred an appeal dated 22.01.2010 against the said order. Vide order dated 15.06.2010, the Director of Postal Services, Agra Region, Agra rejected the appeal so preferred by the Applicant.
4. Assailing the order of penalty dated 09.12.2009 and also the order of Appellate Authority passed by it in the appeal, the Applicant has filed the present OA. He has raised several grounds to substantiate his challenge to aforementioned orders. However, since we find that the order of penalty dated 09.12.2009 is made effective from 01.12.2009, i.e., from retrospective date, which is not permissible, we do not propose to examine the other contentions raised by the Applicant. We quash the order of penalty dated 09.12.2009 on the ground that the same is made effective from back date, i.e., 01.12.2009. Order of appellate authority passed by it upholding penalty order is also quashed. Quashing the penalty order on this ground alone, we remit the matter back to Disciplinary Authority to pass fresh order according to law. The pay of the Applicant reduced by the impugned order passed by the Disciplinary Authority would be restored within two months from the date of receipt of copy of this present order. In case, the Applicant is aggrieved by the order passed by the Disciplinary Authority, he will be at liberty to agitate the same on all grounds available to him including those which raised in the present OA.
5. The OA stands disposed of. No order as to costs.
2. The relevant part of the order of the Disciplinary Authority dated 09.12.2009 referred to in the aforesaid order of this Tribunal is also reproduced as under:-
I have gone through defence statement of Shri O.P. Sharma, and his defence briefs. The inquiry report and all related exhibits and statements of witnesses have been gone through by me. I agree with the inquiry report. It is clear from the inquiry that Siyaram, holder Kisan Vikas Patras Sl.72CC-181244 to 181248 dated 20.05.2000, each valued Rs.10,000/-. The payment of these Vikas Patras was made on 13.09.2007 at Naujheel post office with the acknowledgement receipt recorded at Vikas Patras, which he clearly complained as it is clearly stated in Exhibit-5. The holder Sh. Siyaram informed inquiry officer on 12.05.2009 in his reply to the question that he did not record acknowledgement receipt on Kisan Vikas Patras and simply signed these. It is thus fully clear that without got written the amount received by the holder merely by getting his signature, costs doubts on Shri Sharma. In addition to it, Shri Siyaram has also supported on 12.05.2009, the Exhibit-5. Alongwith it the holder has stated receipt of amount of Rs.20525/- of Kisan Vikas Patras, which is after thoughts. In reply to a question by the defence-side, he clarified that excess amount of Rs.525/- for each Kisan Vikas Patra was received by his wife. It is, therefore, evident that Shri O.P. Sharma, without getting the amount of Kisan Vikas Patra received by the holder, got his signature and did not make full payment.
Shri Ram Singh, PW-1 stated in Exhibit-1, that Shri Om Prakash Sharma, got payment receipt on the certificate on 13.09.2007 before five minutes of closing of office, whereas, Ram Singh was not present in the post office at the time of recording certificate of payment.
It is, therefore, clear that Shri Om Prakash, merely got signature of said Shri Siyaram Sharma, in the referred Kisan Vikas Patras, without making payment and did not make him complete payment and thereafter, got written from Ram Singh. The payment receipt of Rs.525/- X 5, i.e. Rs.2625/-.
In this way Shri Sharma, in another case of Kisan Vikas Patra 72CC-181249 to 181253 dated 20.05.2000 each valued Rs.10,000/- made payment on 13.09.2007 from Naujheel Post Office to Smt. Ramwati W/o Shri Siyaram simply got her signature and later on got written the payment receipt Shri Ram Singh paid each certificate less by Rs.525/-, misappropriated Rs.525/-X 5= Rs.2625/-.
Said Shri Sharma violated departmental rules without getting payment receipt from the holders made payment and thereafter before five minutes of closing of office got written payment receipt from Shri Ram Singh over Kisan Vikas Patras misappropriated the amount. Thus, Charge-2 and Charge-3 are fully proved on said Shri Om Prakash Sharma.
The misappropriation above by the employee Shri Sharam, violates the departmental rules meant deceive to the public and is deseteration by dues. Even then, the retirement of the employee to be very near, taking a generous view, make following orders-
I, R.S. Nigam, Sr. Suptd. Of Post Offices, Mathura Dn. Mathura, order that Shri Om Prakash Sharma, Sub Post Master (Then Sub Post Master, Naujheel), in the scale of Rs.5200-20200 to be placed from the stage of Rs.14420/- to 13590/- from 01.012.2009 to 31.01.2010.
Sd/-
R.S. Nigam 09/XII/09 Sr. Suptd. Of Post Offices, Mathura Dn. Mathura.
3. Pursuant to the aforesaid order of this Tribunal, the Disciplinary Authority has passed the impugned Annexure A-1 order dated 25.04.2011 reiterating the same penalty imposed upon the Applicant but making the date of its effect from 09.10.2009 instead of 01.12.2009. The said order reads as under:-
DEPARTMENT OF POSTS o/o Sr. Superintendent of Post Offices, MathuraDivision, Mathura-1 Memo No.CR-10/281000/ Dated at Mathura 079/07-08 the 25th April, 2011.
Shri Om Prakash Sharma the then PA Mathura HO (Now Retired) was awarded a punishment of reduction of one stage of his pay for a period of two months from Rs.14420/- to Rs.13590/- w.e.f. 01.12.2009 to 31.01.2010 vide this office Memo No.even dated 09.12.2009. Against the said order, the official had preferred an appeal with Director Postal Services Agra which was rejected by the D.P.S. Agra (Appellate Authority) vide his Memo No.STA/44-1/10-2010 dated 15.06.2010. Against both these orders, the official Shri Om Prakash filed an OA No.3140/2010 Om Prakash Sharma Vs. U.O.I. in Honble CAT (PB) New Delhi and the matter was finally decided by the Honble Court on 17.03.2011 under which the orders of Disciplinary Authority as well as Appellate Authority have been quashed and directed the Disciplinary Authority to pass a fresh order according to law and thus the court has remitted the matter back to Disciplinary Authority, because the punishment order dated 09.12.2009 has been order to be effective from 01.12.2009, i.e. from retrospective date, which is not permissible.
Now, therefore, in compliance with Honble CAT (PB) New Delhi judgment order dated 17.03.2011 passed in OA No.3140/2010 (in the instant case), it is ordered that the date of effect of punishment order dated 09.12.2009 may please be read as 09.12.2009 instead of 01.12.2009.
4. The Applicant filed statutory appeal dated 31.05.2011 against the aforesaid order of the Disciplinary Authority but the Appellate Authority vide its order dated 08.12.2011 rejected it.
5. The Applicant has challenged the aforesaid order in this Original Application on the ground that it is not in conformity with the order dated 17.03.2011. Learned counsel for the Applicant has argued that by the said order, this Tribunal had directed the Respondents to pass a fresh order in accordance with law and the impugned order dated 25.4.2011 is not a fresh order at all and moreover the same has not been passed in accordance with law, as ordered to be passed by this Tribunal. In this regard he has relied upon the judgment of the Apex Court in Mahavir Prasad Vs. State of U.P. AIR 1970 SC 1302 wherein it has been held that there was nothing on record which shows that the representation made in the matter was even considered. Further, according to the said judgment, the authority concerned should have given adequate reasons which disclose that an attempt was made to reach a conclusion according to law and justice.
6. Further, the contention of the Applicant is that once an order has been quashed by this Tribunal it cannot be relied upon by the Respondents to deny the benefits to the employee. In this regard he has argued that the impugned order is in violation of the judgment of the Hyderabad Bench of this Tribunal in Ch. Narsiman Vs. General Manager, Naval Armament Depot, Vishakhpattnam and Another decided on 14.10.2004 wherein it has been held as under:-
When a Government order reducing the pay scale of Junior Chargeman has been quashed by the Tribunal, the very same order cannot be relied upon to deny the benefits to an employee.
He has also relied upon the order of this Bench in Chander Kanta Taneja Vs. U.O.I and Others (OA No.1730/2006 ) decided on 17.05.2007 in support of his argument that an order which has been quashed by this Tribunal cannot be relied upon to deny the benefit to an employee. Further, according to the Applicant, when the major penalty imposed upon him vide the earlier order dated 09.12.2009 has been quashed by this Tribunal, the amended impugned order dated 25.04.2011 adversely affects the pensionary benefits. Thus, the penalty imposed upon him now is an amalgamation of two penalties which is not sustainable in law, as held by Apex Court in State Bank of India Vs. T.J. Paul 1999 (4) SCC 759. The other submission of the learned counsel for the Applicant is that when the Inquiry Officers finding is that the one charge is not proved and the other has been proved, the Disciplinary Authority cannot come to a different conclusion contrary to it, unless he disagrees with it giving tentative reasons for doing so. In this regard, he has relied upon the judgment of the Apex Court in State Bank of India and Others Vs. Arvind Kumar Shukla JT 2001 (4) SC 415.
7. Further, the learned counsel for the Applicant submitted that this is a case of no evidence as the prosecution witnesses Shri Bhuri Singh and Shri Siyaram on whose testimony the charges were framed, denied that the CO retained any amount payable to them. Therefore, the Inquiry Officer should have held that the charges have not been proved. On the contrary, the IO relied upon the conclusion of the preliminary enquiry conducted behind the back of the Applicant and held that the charges have been proved. According to him, such a procedure adopted by the Respondents is against the principles of natural justice as held by the Apex Court in Ram Babu Peshkar Vs. U.O.I. 1988 (6) ATC 1004 (Allahabad) wherein it has been held as under:-
statement made during preliminary enquiry cannot be accepted in a regular enquiry as evidence without examining the persons who made them.
In this regard, he has also relied upon the judgment of the Calcutta Bench of this Tribunal in Km. Ratna Nandy Vs. U.O.I. ATR 1986 (2) CAT 24 (Calcutta) wherein it has been held as under:-
Non-furnishing of copies of statements of witnesses recorded during preliminary enquiry amounts to denial of reasonable opportunity.
8. The learned counsel for the Applicant has also submitted that Smt. Ramwati, on whose complaint charge No.III was framed, had actually neither made any complaint nor attended the regular inquiry. However, the charge has been created through the deposition of a third party which is against the principles laid down by the Apex Court in the case of State of Rajasthan Vs. S.K. Dutt Sharma 1994 SCC(L&S) 1977 wherein it has been held that if witnesses are not produced for cross-examination, evidence on affidavit, may be rejected. In this regard he has also relied upon the judgment of the Apex Court in Bareilly Electric Supply Co. Ltd. Vs. Workmen 1971 (2) SCC 617 wherein it has been held that no material can be relied upon to establish a contested fact, which are not spoken to by person who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. Again, on the same ground he has relied upon the judgment of the Apex Court in the case of State of U.P. VS. Saroj Kumar Siinha 2010 (2) AISLJ 59 wherein it has been held that no relied upon document enclosed with charge sheet nor the same were provided during the enquiry, held natural justice denied. The appeal of the State Government was dismissed by the Apex Court.
9. The Respondents have filed their reply and countered the submissions/grounds made by the Applicant in this OA. According to the brief facts submitted by them, while the Applicant was working as Sub Postmaster, Naujheel (Mathura), made payment of KVPs No.72CC 181237 to 181241 issued on 16.05.2000 for Rs.10,000/- each to its holder Shri Bhuri Singh, Village Mubarikpur Post Naujheel, Mathura. A complaint dated 10.07.2007 of the holder of KVPs and his written statement dated 17.09.2007 were considered by the Respondent-department and according to them, an amount of Rs.20,350/- for each KVP was accounted for in Government record while the holder of the KVPs was paid only a sum of Rs.20,000. Thus, the Applicant misappropriated Rs.1750/- @Rs.350 on each KVP and he pocketed the same for his personal use. They have also submitted that the Applicant made payment of KVPs No.72CC 181244 to 181248 issued on 20.05.2000 for Rs.10000/- to its holder Shri Siyaram, Village Baroth, Mathura on 13.09.2007 for which the amount worth Rs.20,525/- for each KVP was accounted for in the Government records while the holder was paid only a sum of Rs.20,000/-. Thus, he misappropriated Rs.2625@ Rs.525/- on each KVP and he pocketed the same for his personal use. Similarly, he made payment of KVPs No.72 CC 181249 to 181253 issued on 20.05.2000 for Rs.10,000/- each to its holder Smt. Ramwati W/o Shri Siyaram on 13.09.2007 for which the amount worth RS.20,525/- was accounted in Government records while the holder was paid only a sum of Rs.20,000/- thereby misappropriating Rs.2625/- @525/- on each KVP. On receipt of complaints from the aforesaid holders, the Applicant was placed under suspension on 16.1.2007 and a preliminary enquiry was conducted through Sub Division Inspector (North), Mathura who submitted his report on 08.10.2007. Thereafter, charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued to him on 12.08.2008. On denial of charges by him, the Disciplinary Authority appointed the Inquiry Officer and the Presenting Officer on 18.09.2008. The suspension of the Applicant was revoked, later on 04.12.2008. The IO submitted his report to the Disciplinary Authority (SSPOs Mathura) on 16.11.2009 and a copy of the same was sent to the Applicant on 17.11.2009. He, thereafter, submitted a representation on 03.12.2009. The Disciplinary Authority, after careful consideration, decided to impose the punishment of reduction to a lower stage in the pay scale of Rs.5200-20200 from Rs.14,420/- to Rs.13,590 for the period from 01.12.2009 to 31.01.2009 vide order dated 09.12.2009. The aforesaid order was delivered to him on 10.12.2009. Thereafter, he submitted an appeal against the aforesaid order dated 09.12.2009 and the Appellate Authority rejected it vide his order dated 15.06.2010. In the meantime, Applicant retired from service on superannuation w.e.f. 31.01.2010.
10. Aggrieved by the aforesaid orders dated 09.12.2009 and 15.06.2010, the Applicant filed OA No.3140/2010 (supra) which was disposed of on 17.03.2011 whereby both the orders dated 09.12.2009 and 15.06.2010 were quashed and the matter was remitted to the Disciplinary Authority to pass a fresh order. Pursuant to the aforesaid directions of the Tribunal, Disciplinary Authority passed order dated 25.04.2011 mentioning that the date of effect of punishment order dated 09.12.2009 may be read as 09.12.2009 instead of 01.12.2009. The Applicant herein submitted an appeal dated 31.05.2011 against the order dated 25.4.2011 which was considered by the Appellate Authority and rejected vide order dated 08.12.2011.
11. The grounds taken by the Applicant in this OA were also denied by the Respondents and submitted that they are wrong, misleading and misconceived. They have also submitted that the case of the Applicant was decided by the competent authority on its merit and passed a speaking order after considering each and every aspect of the case. Thus, there is no violation of principle of natural justice. They have further submitted that the order dated 09.12.2009 passed by the Disciplinary Authority was prior to the date of retirement of the Applicant and as such his contention that it was done to affect the pensionary benefits is wrong and baseless. Further, they have submitted that S/Shri Bhuri Singh and Siya Ram have admitted in their written statement recorded during the preliminary enquiry that the payments made to them were short by Rs.1750/- and Rs.2625/- respectively. They have also submitted that all the documents were provided to the Applicant during the course of the enquiry and the allegations made by him contrary to it are totally wrong, misleading and misconceived. Further, the husband of Smt. Ramwati, i.e., Shri Saya Ram, during the course of the preliminary enquiry as well as the inquiry under Rule 14 of the CCS (CCA) Rules, 1965, had stated clearly about the short payment and the Applicant attempted to conceal those material facts from this Tribunal. Further, the IO has fully proved the charge No.2 on the basis of evidence adduced during the course of inquiry. The Appellate Authority has also considered each and every aspect of the case before passing its order and the same does not suffer from any illegality and/or infirmity. Hence, the OA is devoid of any merit and deserves to be dismissed with cost.
12. We have heard the learned counsel for the Applicant Shri R.P. Sharma and the learned counsel for the Respondents Shri R.V. Sinha. As stated earlier, this is the second round of litigation by the Applicant. In the first round, this Tribunal vide order dated 17.03.2011 set aside the Disciplinary Authoritys order dated 09.12.2009 on the ground that by it the Applicant was inflicted with the penalty with retrospective effect which is not permissible under the rules. Consequently, this Tribunal has directed the Respondents to restore the pay of the Applicant which has been reduced within two months from the date of receipt of the said order. As the said order has become final, the penalty of reduction in the pay of the Applicant from the stage of Rs.14,420/- to Rs.13,596/- from 01.12.2009 to 31.01.2010 became non-existent and the Applicants pay stood restored to Rs.14,420/- w.e.f. 01.12.2009. Thereafter, the Applicant retired from service on superannuation on 31.01.2010 and admittedly, no fresh order imposing any penalty was imposed upon the Applicant before that date. Since the earlier order of the Disciplinary Authority dated 09.12.2009 has already been set aside, the Applicant was not undergoing any penalty on the date of his superannuation. Hence, he was entitled for his provisional pension w.e.f. 01.02.2010 on the basis of his pay of Rs.14,420/- w.e.f. 01.12.2009 and increments, if any, due subsequently. Thereafter, any proceedings against the Applicant could have continued only under Rule 9 of the CCS (Pension) Rules, 1972 which provides as under:-
9. Right of President to withhold or withdraw pension 1[(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.] (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in 2[Rule 69] shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule, -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to be instituted
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.
13. Admittedly, the Respondents have not passed any such order. Hence, the impugned order of penalty dated 25.4.2011 and the appellate order dated 08.12.2011 under CCS (CCA) Rules, 1965 is null and void. In the above facts and circumstances of the case, it is not necessary for this Tribunal to go into other aspects of this case argued by the Applicants counsel.
14. Consequently, the impugned orders dated 25.4.2011 and 08.12.2011 are quashed and set aside and the Applicants pay at the stage of Rs.14,420/- which he was drawing before the issuance of the order dated 09.12.2009 is restored with all consequential benefits. He shall also be entitled for all pensionary/terminal benefits w.e.f. 01.02.2010 with interest at GPF rate on the arrears of pension and gratuity till the date they are paid. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order.
15. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh