Central Administrative Tribunal - Cuttack
Santosh Kumar Khuntia vs D/O Post on 5 February, 2020
1 OA 1029/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 1029 of 2014
Present: Hon'ble Mr. Gokul Chandra Pati, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
Santosh Kumar Khuntia, 48 years, S/o Late kali Charan Khuntia, At/PO- Bada Chhuruni, Via-B.Sathilo, Dist.- Mayurbhanj.
......Applicant VERSUS
1. Union of India represented through its Secretary cum Director General of Posts, Dak Bhawan, Sansad Marg, New Delhi -
110116.
2. Director of Postal Service4s (Hqrs), O/o C.P.M.G., Odisha, Bhubaneswar-751001.
3. Superintendent of Post Offices, Mayurbhanj Division, At/PO- Baripada, Dist.-Mayurbhanj, Odisha-757001.
......Respondents
For the applicant : Mr.N.R.Routray, counsel
For the respondents: Mr.L.Jena, counsel
Heard & reserved on : 13.1.2020 Order on : 05.02.2020
O R D E R
Per Mr. Gokul Chandra Pati, Member (A)
In this OA the applicant has prayed for the following reliefs :
"In view of the facts stated above, it is humbly prayed that Hon'ble Tribunal may graciously be pleased to quash Annexure-A/2 & A/7 and A/18.
And direct the Respondents to reinstate the applicant in service with all consequential benefits.
And for this act of kindness, the applicant as in duty bound shall remain ever pray."
2. The applicant was working as Gramin Dak Sevak Branch Post Master (in short GDSBPM) Badochhuruni in Mayurbhanj district when he was placed on put off duty on 1.12.1999 (Annexure-A/1) on allegations of misappropriation of charges. Charge-sheet dated 18.5.2001 (Annexure-A/2) was served on him with three charges pertaining to collection of money from the depositors of the savings bank accounts duly entered in the passbook, but not entered in government account on the same day as required under the rules. The same was construed to be violation of ED Agents (Conduct & Service) Rules, 1964 (in short Rules, 1964). It is averred in the OA that the Rules, 1964 have been repealed and although it is no longer in force, the respondents issued the 2 OA 1029/2014 chargesheet and the punishment order removing the applicant from service under the provisions of non-existing rules. For the same charge, the applicant faced criminal case from which he was acquitted as per the judgment of the Addl. District & Sessions Judge, Baripada (Annexure-A/5). It is further stated that the IO continued the inquiry without giving a reasonable opportunity of being heard and without supplying the documents asked for by the applicant after receipt of the chargesheet. The report of IO was supplied in hand written form which was illegible.
3. It is also averred in the OA that on receipt of the punishment order, the applicant preferred the appeal, but the Appellate Authority (respondent no.2) passed the order dated 29.1.2009 (Annexure-A/8) without application of mind. It is further averred in the OA that the ex-gratia compensation as per the rules for the put off period was paid to him only after his removal from service and was not paid earlier, for which, he could not properly defend himself in the disciplinary proceedings.
4. Counter has been filed by the respondents opposing the OA stating that the OA is barred by limitation. It is also stated as under:-
"As such, Sri Santosh Kumar Khuntia, GDSBPM, Badchhuruni BO was placed under off duty from 01.12.1999 and disciplinary proceedings under Rule-10 of GDS (Conduct & Employment) Rules 2001 was initiated against aforesaid Sri Khuntia vide SPOs, Mayurbhanj Division memo No. F4-1/11/99-2000 dated 18.05.2001. In the above mentioned memo dated 18.05.2001 the wordings under rule 10 of GDS (Conduct & Employment) Rules 2001 was inadvertently omitted which was added with partial modification vide memo of even No. dated 08.10.2003. IO/PO were appointed and the IO has proved all the three articles of charges framed against said Sri Khuntia. As such, the charged official said Sri Khuntia was removed from service vide SPOs, Mayurbhanj Division memo No.F4-1/11/1999-2000/Ch.I dated 31.12.2004. Sri Khuntia made an appeal before the DPC(Hqrs), Bhubaneswar against the punishment order issued vide SPOs, Mayurbhanj Division memo no. F4-1/11/199-2000/Ch.1 dated 31.12.2004. The Appellate authority (DPS(Hqrs), Bhubaneswar) disposed off the appeal confirming the punishment order issued by the SPOs, Mayurbhanj Division, The charged official Sri Khuntia was also convicted to undergo R.I. for 3 (three) years and to pay fine a sum of Rs.5000/- (Rupees Five Thousand) only in default to undergo R.I. for 6 (Six) months more U/s 409 I.P.C. vide the judgment of Hon'ble Chief Judicial Magistrate, Mayurbhanj, Baripada in pronounce dated 15.05.2008 in GR case No. 386 of 2001.
Being aggrieved with the punishment order of removal from service by the disciplinary authority and confirmation of the punishment by the appellate authority the applicant Sri Santosh Kumar Khuntia filed this OA No. 260/001029/2014 dated 13.08.2014, which was received at this office on 28.03-2019.
Para 4.1 - The averments made in this para is disputed. The applicant was put under off duty due to commission of SB fraud to the tune of Rs.1,41,399.00 while working as GDSBPM, Badchhuruni BO in account with Bahanada Sathilo S.O from 09.11.1993 to 08.12.1999. Exgratia Compensation (Put Off Duty allowance) was sanctioned to the applicant vide SPOs, Mayurbhanj Division memo No. F4-1/11/99-00(Ch.I) dated 18.10.2004.hence, the contention of the applicant regarding non-payment of ex-gratia compensation is false."
5. It was further averred in the Counter that the applicant was supplied all the listed documents and he was shown the documents in first sitting of the inquiry. Regarding mention of the repealed rules, it was stated that the disciplinary authority has issued a corrigendum after receipt of the GDS 3 OA 1029/2014 (Conduct & Employment) Rules, 2001 (copy of the same at Annexure-A/3 of the OA). The respondents have also enclosed a copy of the order datwed 29.2.2012 of the Tribunal in OA No. 163/2010 in which under similar circumstances, the Tribunal had not interfered in the punishment order.
6. Learned counsels for the applicant and the respondents were heard and the pleadings on record were perused by us. The respondents have cited the order passed in OA No. 163/2010 in support of their case. It is seen from the order dated 19.2.2012 (Annexure-R/3 of the Counter) that in that OA, the concerned GDS, while working as Branch Post Master, had forged the signature of the GDSMD working in the same post office and did not pay an amount of Rs. 126/- to the GDSMD while showing on paper that the amount was paid. The nature of offence in that OA included forgery while the charges in the present OA are non-deposit of the amount deposited by the SB account depositors in government account. In the cited OA, the applicant had exhausted the Revision forum after appeal whereas in the present OA, the applicant has not exhausted the revision forum as provided under the rules. Further, in this case, the applicant was convicted in the criminal case lodged for non-deposit of the amounts in government account and was acquitted in the criminal appeal vide judgment dated 24.6.2011 (Annexure-A/5). Thus, the present OA is factually different from the OA No. 163/2010 cited by the respondents for which the cited order will not apply to the present OA.
7. It is seen from the Counter that the allegation against the applicant has been mentioned to be commission of fraud of SB account amounting to Rs. 1,41,399. But the charge-sheet dated 18.5.2001 (Annexure-A/2) mentions three Articles of charges alleging non-deposit of Rs. 808.50 as per Article-I, Rs. 1000 as per Article-II and Rs.4900 as per the Article-III. From the judgment at Annexure-A/5, it is revealed that the applicant was acquitted of the criminal charge of misappropriation. It is also noted in paragraph 6 of the judgment at Annexure-A/5 that the applicant had deposited an amount of about Rs. 1,29,000/- before lodging of the FIR against the applicant. It was also observed in the said judgment about discrepancy in the figure of the amount of misappropriation. It is not clear if the amount of non-deposit as shown in the charge-sheet was included in the misappropriation amount mentioned in the judgment dated 24.6.2011 (Annexure-A/5) acquitting the applicant from criminal charges.
8. It is further seen that the applicant alleges non-payment of ex-gratia compensation when he was continuing on put off duty and it was paid after imposition of punishment, for which he claimed that he could not defend himself properly in the inquiry. Such contentions in para 4.9 of the OA have 4 OA 1029/2014 not been contradicted by the respondents in the Counter. The Appellate Authority in the order dated 29.1.2009 (Annexure-A/8) stated that the subsistence allowance was not paid to him in view of heavy loss sustained by the department towards fraud committed by the applicant and the same was sanctioned on 18.10.2004. The date of disbursement of the allowance to the applicant after sanction on 18.10.2004 has not been mentioned in the order of the Appellate Authority. Hence, it is clear that the applicant was not paid the ex-gratia compensation when the inquiry was going on against him and his contention that the same was paid to him after imposition of punishment of removal from service on 31.12.2004 has not been denied by the respondents in their pleadings.
9. It is also observed that the authorities have passed the order in the disciplinary proceeding before the judgment dated 24,6.2011 (A/5) was passed in the criminal appeal filed by the applicant against conviction. Since the applicant has not exhausted the Revision forum in the proceeding as per the provisions of the rule 19 of the GDS (Conduct and Engagement) Rules, 2011 and in view of the fact that the applicant's contention that he could not defend himself properly due to non-disbursement of the put off duty allowance in time has not been adjudicated by the Appellate Authority in his order dated 29.1.2009 (Annexure A/8), we are of the considered view that in the interest of justice, the applicant's case be considered by the Revisionary Authority as per provisions of law.
10. In view of the above discussions and without expressing any opinion on the merit of other issues raised by the parties in this OA including the issue of delay, we dispose of this OA with liberty to the applicant to submit an application for revision under the rule 19 of the GDS (Conduct and Engagement) Rules, 2011 alongwith an application to condone delay, to the Respondent No.1/ Head of the Circle (or C.P.M.G.) within 15 days from the date of receipt of a copy of this order and if such an application is submitted by the applicant within the time as stipulated above, then the aforesaid authority will consider the Revision application in accordance with the rule 19 of the GDS (Conduct and Engagement) Rules, 2011 and dispose of the same by passing a speaking and reasoned order to be communicated to the applicant within three months from the date of receipt of the revision application from the applicant as stated above. There will be no order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) I.Nath