Central Administrative Tribunal - Jabalpur
R.S. Dwivedi vs Union Of India on 11 August, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.708 of 2013
Jabalpur, this Tuesday, the 11th day of August,2015
Mr. G.P. Singhal, Administrative Member
Mr. U. Sarathchandran, Judicial Member
R.S. Dwivedi, S/o Late Ramlal Dwivedi Aged about 58 years,
R/o Cross Street 1 Qr. No.18 A Sector 1 Bhilai,
District Durg-490001 (C.G.) - Applicant
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India, Through its Secretary, Ministry of Communication & IT,
Department of Posts, Dak Bhawan, Sansad Marg, New Delhi-110001
2. Chief Post Master General, Chhattisgarh Circle,
Raipur (C.G.)-492001
3. Director Postal Services, Raipur Region, Raipur (C.G.) 492001
4. Sr. Superintendent of Post Offices, Durg Division, Civic Centre,
Bhilai 490 006 (C.G.) -Respondents
(By Advocate Shri S.K. Mishra)
(Date of reserving the order :- 16.07.2015)
ORDER
By G.P. Singhal, AM.-
The applicant is aggrieved by issuance of charge sheet dated 31.10.2012 (Annexure A-1) under Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules,1965 (hereinafter referred to as the CCS(CCA)Rules). He has sought for quashing of the orders dated 15.3.2013 (Annexure A-2) passed by the disciplinary authority imposing minor penalty of recovery of Rs.87,350/- upon the applicant for his alleged misconduct of gross negligence in his work which facilitated commission of fraud by D.M.Dongre, the then Sub-Post Master, Sector-8, Bhilai to the tune of Rs.6,90,742.45p and also the order dated 12.07.2013 (Anenxure-A-3) passed by the appellate authority rejecting his appeal.
2. In this Original Application, in the charge memo 3 separate charges were imputed against the applicant. In the first charge, it is alleged that the applicant while supervising the work of Ledger Posting on 28.1.2001, did not ensure, verification of signatures of concerned persons in some case, on their withdrawal forms with their signatures in the form submitted by them at the time of opening of accounts, as well as, preparation of statement relating to verification of half margin by the Ledger Clerk. In the 2nd charge it is alleged that while working as Ledger Clerk-I on certain dates in SOSB group, he failed to make necessary scrutiny of list/vouchers of receipts and payments under Saving Bank received from Sub Post Office, Sector-8 Bhilai and make their posting in the ledger of concerned accounts. The details of such accounts have been mentioned in the charge memorandum. In the 3rd charge it has been imputed that while working as Supervisor, SOSB group on certain dates, the applicant failed to ensure necessary scrutiny of receipt payment list/vouchers of certain Saving Bank Accounts, received from Sub-Post Office, Sector-8 Bhilai and their posting in concerned accounts. Thus, due to negligence of the applicant, Sub-Post Master Shri D.M.Dongre could defraud the government money of Rs.6,90,722.45p.
3. The applicant on receipt of show cause notice, asked for inspection of certain documents, which was allowed and applicant inspected all concerned and available documents on 5.12.2012 in Divisional office Bhilai. Thereafter, he filed representation dated 15.12.2012. The issues raised by the applicant in his representation were primarily the following:-
(i) The applicant was not provided all the documents asked for by him for inspection.
(ii) In Head Post Office, Durg, the work related to Ledger Posting of 56 Sub-Post Offices of the District was pending for few months and in some cases even years and therefore it was ordered to be completed under OTA. Initially, the employees were not ready to do this work under OTA, however, when disciplinary action was taken against some of the employees, they including the applicant, agreed to do this work under OTA. Therefore, Ledger Posting and its supervision was not done on the same date, which will clearly be evident from the charge-memo itself as there are wide gaps between the date of receipt payment and date of posting. In these circumstances it was not possible to ensure verification of signatures in from SV-7 with the signatures on form SV-3 and preparation of half margin verification statements. The circle level committee in its enquiry had not found any employee guilty, however, after lapse of 15 years, suddenly taking action on the report of a squad constituted for this purpose is not justified. The applicant also pointed out certain mistakes in the details of cases mentioned in the charge sheet.
4. The respondents in their reply have submitted that while working as Ledger Assistant-1 and Supervisor in SBSO group at Durg HO, the applicant failed to perform his duty property entrusted to him. Due to said reason fraud and embezzlement of public money committed by Shri D.M.Dongre could not be noticed timely which facilitated in the continuance of fraud and embezzlement of Rs.6,90,722.45p.
5. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
6. The main contention of the learned counsel for the applicant is that even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges imputed against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with, as held by the Honble Supreme Court in the matters of O.K.Bhardwaj Vs. Union of India and others (2001) 9 SCC 180. The learned counsel for the applicant submitted that in the instant case the applicant had expressly denied the charges levelled against him, still no full fledged enquiry was conducted against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 {hereinafter referred to as the CCS(CCA)Rules} . Hence the orders of punishment of recovery passed against him is liable to be quashed and set aside.
7. The learned counsel for the applicant placed reliance on the following decisions:
(i) G.M.Sorte Vs. Union of India and others, OA No.5 of 2013, decided on 15.6.2015 by Jabalpur Bench of this Tribunal, P.Sreeramulu Vs. The Supdt.of Post Offices & others, OA No.665/2008 decided on 8.6.2009 by Hyderabad Bench of the Tribunal, S.V.Santhoshkumar Vs. The Comptroller & Amp, etc. OA No.247 of 2010 decided on 22.9.2010 by Ernakulam Bench of this Tribunal, Shiv Bhushan Singh Vs. Union of India and others, OA No.497/2009 decided on 22.9.2011 by Allahabad Bench of this Tribunal for the analogy that if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for by relying on the decision of Honble Supreme Court in the matters of O.K.Bhardwaj Vs. Union of India and others (2001) 9 SCC 180.
(ii) C.N.Harihara Nandanan Vs. Presidency P.M. Madras G.P.O. and another, (1988) 8 ATC 673 wherein the Madras Bench of the Tribunal has held that negligence of non-following of departmental instructions for verification of relevant records resulting in non detection of fraud committed by another government servant, not punishable with recovery from pay of the pecuniary loss caused by the fraud.
(iii) In J.M.Makwana Vs. Union of India, 2002 (1) ATJ 283 fraud was committed by another employee and the applicant was found responsible for the same on the ground that by his negligence the fraud was not detected earlier. There was no charge that due to his negligence any pecuniary loss was caused to Government. The Ahmedabad Bench of the Tribunal allowed the OA and quashed the order of recovery as well as the order of penalty.
(iv) Smt.Kalpana Shinde & others Vs. Union of India and others, (2005)1 ATJ 45 decided by Jabalpur Bench of the Tribunal, B.R.Verma Vs. Union of India and others, O.A. No.496/2008 decided on 14.9.2011 by Allahabad Bench of this Tribunal and Shiv Kumar Singh Solanki Vs. Union of India, OA No.2187/2009 decided by Principal Bench of the Tribunal for the analogy that unless the person concerned is directly responsible for misappropriating any amount or for causing any pecuniary loss to the Government no recovery can be made from him.
(v) V.G.Dekate Vs. Union of India and others, Writ Petition (S) No.5634/2009 decided by Honble High Court of Madhya Pradesh at Gwalior. In the said matter by considering the fact that the authority failed to prove the fact that the petitioner was only negligent in performing his duties so the fraud has been committed and that there were other officers also who could have been responsible in the act of fraud, the Honble High Court quashed the order of punishment.
(vi) In Than Singh Vs. Union of India and others, 2003(3) ATJ 42 the Honble High Court of Delhi has held that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would be presumed that the same has been condoned.
(vii) M.P.State Agro Industries Development Corporation Ltd Vs. Jahan Khan, (2007) 10 SCC 88 wherein it was held that penalty of recovery of loss and stoppage of three increments with cumulative effect was a major penalty clearly envisage a regular enquiry before punishing the delinquent employee.
(viii) Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570. In the said matter the appellant was a peon in respondent Bank. He along with others was involved in a case of theft of bank draft book. The Honble Supreme Court has held that orders of disciplinary and appellate authority entails civil consequences hence the orders must be based on recorded reasons.
(ix) Union of India and others Vs. Gyan Chand Chattar, (2009) 12 SCC 78, wherein the Honble Supreme Court held that in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.
(x) Kuldeep Singh Vs. Commissioner of Police (1999) 2 SCC 10 wherein it has been held that court can interfere with finding of guilt if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority.
(xi) Govt.of A.P. and others Vs. A.Venkata Raidu, (2007) 1 SCC 338 wherein it has been held that since the charge was not specific, hence no finding of guilt can be fixed on that basis.
(xii) Union of India and others Vs. J.Ahmed, (1979) 2 SCC 286. In the said matter the respondent-an IAS officer was removed from service. The Honble Supreme Court has held lack of efficiency or attainment of highest standards in discharge of duty attached to public office would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. In the said matter it has been further held that an act or omission which runs counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. It has been further held that if a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service it is misconduct.
8. As regards the contention of the learned counsel for the applicant that since the charges levelled against the applicant were factual in nature and the applicant had denied them, enquiry should have been conducted, by relying on the decision of Honble Supreme Court in the case of O.K.Bhardwaj (supra), we find that in the said matter the Honble Supreme Court has held as under:
2. The High Court has recorded its opinion on two questions: (i) that the punishment imposing stoppage of three increments with cumulative effect is not a major penalty but a minor penalty; (ii) in the case of minor penalties, it is not necessary to give opportunity to the employee to give explanation and it is also not necessary to hear him before awarding the penalty: a detailed departmental enquiry is also not contemplating in a case in which minor penalty is to be awarded.
3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that withholding increments of pay with or without cumulative effect is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
4. Learned counsel for the respondent, however, says that though the second proposition of the High Court may not be correct, yet so far as this case is concerned it does not make any difference for the reason that in this case, as a fact an opportunity was given to the appellant and that there has been adequate compliance with the principles of natural justice. But since the High Court has not considered the matter from the above angle that is on merits the proper course in our opinion is to remit the matter to the High Court to consider whether an opportunity was given to the appellant to put forward his case and whether in the light of the facts and circumstances of the case, an enquiry was called for and if called for, was it held according to law and the principles of natural justice, and to dispose of the matter according to law. The appeal is allowed with the above directions. No costs.
9. In the instant case the applicant was issued minor penalty charge sheet under Rule 16 of the CCS(CCA) Rules, specifically levelling the charge of gross negligence in his work, which facilitated commission of fraud by others, and only after considering the reply submitted by the applicant to the charge-sheet, the impugned order of recovery was issued against him. Since only minor penalty of recovery was imposed against the applicant, after duly affording him an opportunity to have his say by filing representation against the minor penalty charge sheet, we are of the considered opinion that the respondents have duly complied with requirement of the principle of natural justice. The contention of the applicant that since he had denied the charges an enquiry was must as the charges were based on facts, it is seen that the charges levelled against the applicant were regarding violation of procedure/negligence which resulted in non-detection of fraud causing loss to the Government. The negligence/violation of procedure was to be established on the basis of records showing applicants involvement in the process prescribed for conducting the concerned activity. In this view of the matter the reliance placed by the learned counsel for the applicant on the decision of Honble Supreme Court in the matters of O.K.Bhardwaj (supra) is misplaced.
10. We also find that the applicant had not asked for full-fledged enquiry as envisaged under Rule 14 of the CCS(CCA)Rules. The provision of holding of an enquiry is there under Rule 16 of the CCS(CCA)Rules only in two situations : (i) when request is made by the delinquent employee for such enquiry and (ii) when holding an enquiry as per provisions of Rule 14 of the CCS(CCA)Rules is considered to be necessary by the disciplinary authority. In this case the request for enquiry was not made by the applicant-delinquent employee and the disciplinary authority also did not find it necessary, looking to the charges imputed against the applicant to hold such an enquiry.
11. We find that in the matters of Union Of India Vs M.L. Khare, Writ Petition No.10471 of 2010(S) decided on 28 September, 2011 by Honble High Court of Madhya Pradesh, a similar issue had been considered and decided, relevant paragraphs of the said order read thus:
3. Respondent while working as Supervisor in SBCO, Head Post Office, Balaghat, was charge- sheeted under Rule 16 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as 'Rules of 1965') on 18-08-2002.
4. Charges levelled against him were that while working as Supervisor with effect from 18- 02-2002 he derelicted in discharge of his duty as Supervisor as a result whereof one Shri Mahesh Padwar, Sub Post Master, Bisra Sub Office made bogus withdrawals from different saving Bank, Recurring Deposit, Term Deposit and Monthly Income Scheme accounts and did not account for the same in respective accounts, resulting in bogus withdrawals and loss to the Government to the tune of Rs. 29,21,222/- . It was alleged that charge sheeted employee failed to ensure proper voucher checking of SB/RD/TD/MIS etc. of Bisra Sub Post Office as required under the S.B. Control Procedure and thereby violated the instructions contained in Government of India Ministry of Communication, Department of Posts, No. 113-1/2002 SB, dated 05- 05-2003 and SB Order No. 33/2002 dated 13- 12-2002, violating Rules 3(1)(ii) and 3 (2) (I) of CCS (conduct) Rules, 1964.
5. Denial of charges led to initiation of departmental proceedings which culminated into the order dated 20- 06-2008; whereby, the punishment of recovery of Rs. 1,00,000/- from the pay of the respondent at the rate of Rs. 3,000/- per month was ordered.
6. Aggrieved, the respondent filed O.A. No. 191 of 2009 before the Tribunal.
7. The Tribunal while upholding the finding of misconduct recorded by the disciplinary authority, however, interfered with the quantum of punishment and accordingly quashed the impugned order of recovery. The Tribunal observed that the respondent- management failed to establish a direct link between the defaults by the applicant and the loss suffered by the Government. Tribunal relied upon the paragraph 106 and 107 of the Post Office Manual Volume III.
8. The Tribunal held in paragraph 14 :
"14. Usually, the disciplinary authority is the best judge in respect of punishment to be awarded to any Government servant. But if there is any basic legal shortcoming in the view taken by the disciplinary authority, the court can certainly interfere in the matter. A perusal of the disciplinary authority's order and the order of the appellate authority clearly shows that they have established he default of the applicant in not complying with various rules and in not discharging his duties in a proper manner. At the same time, they have failed to establish a direct link between the defaults of the applicant and the loss suffered by the Government. Looking to Rules 106 and 107 of the Post Office Manual, Volume III, quoted above, and also the authorities cited by the learned counsel for the applicant, I consider it proper to set aside the punishment awarded to the applicant, because in this case it has not been established that the applicant was directly responsible for the loss suffered by the Government, without disturbing the finding that the applicant was guilty of the charges levelled against him. In other words, upholding the orders of the disciplinary authority as well as the appellate authority except for the actual punishment awarded to the applicant, the matter of punishment to be awarded to the applicant is remitted back to the appellate authority who shall re-decide the issue within six months of the receipt of this order after giving a proper opportunity of hearing to the applicant. As per rules, the following minor penalties can be imposed on a Government servant :
(i) censure;
(ii)withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iv)withholding of increments of pay.
The disciplinary authority, in this case, imposed penalty no. (iii) which was not justified in the facts of the case as the same is legally untenable . Therefore, the appellate authority shall be free to consider the facts of the case, and after hearing the applicant, may impose any one of the above minor penalties on the applicant, except penalty no. (iii) . As a logical corollary, it is also ordered that the Respondents shall refund the amount already recovered from the applicant, if any . The amount already recovered should be refunded to the applicant within two months of the receipt of this order and the matter of punishment should be re-decide d by the appellate authority, after hearing the applicant, within six months of the receipt of this order."
9. It is the said order which is being challenged in this petition.
10. It is urged that the Tribunal fell into patent error in exonerating the respondent from recovery of pecuniary loss caused to the Government due to negligence. It is contended that it was beyond the powers of the Tribunal to have set aside the recovery more particularly when the charges of misconduct were proved and upheld by the Tribunal. It is contended that Tribunal misconstrued not only Rule 11 (iii) of the Rules of 1965 but also paragraph 106 and 107 of the Post Office Manual Vol. III. It is contended that upon true construction of the provision it would borne out therefrom that it is not a condition precedent for recovery of loss to the revenue that a person at whose instance the loss is incurred has personally gained from it. It is urged that the Tribunal has wrongly interfered with the punishment.
11. The respondent on his turn supports the order passed by the Tribunal.
12. The question for consideration is whether when the charge of negligence resulting in pecuniary loss to the Government having been proved in a departmental enquiry and upheld by the Tribunal, the Tribunal was justified in interfering with the punishment of recovery.
13. Trite it is that punishment is the discretion of the disciplinary authority and the Court will not substitute its own judgment [Administrator, Union Territory of Dadar and Nagar Haveli v. Gulabhia M. Lad : (2010) 5 SCC 775, paragraph 14, State Bank of Mysore and others v. M. C. Krishnappa :(2011) 7 SCC 325, Paragraph 8], unless the punishment shocks the conscience (Union of India v. Dwarka Prasad Tiwari : (2006) 10 SCC 388 Paragraph 10 & 15). Even in such cases it is held that, it should ordinarily remit the matter to disciplinary authority for reconsideration of punishment.
14. Rule 11 of Rules of 1965 lays down different penalties which can be imposed on a Central Govt. Servant found guilty of charges either under Rule 14 or 16, as the case may be. Clauses (i) and (iv) of Rule 11 lay down minor penalties. Clauses (v) to (ix) lay down major penalties. An exception vide explanation is carved out, as the instances given thereunder are not construed as penalties.
15. We are concerned with clause (iii) of Rule 11 which stipulates that on found guilty of the charges and for good and sufficient reasons penalty of "recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders" can be imposed.
16. In other words if due to negligence of Govt. servant there is pecuniary loss caused to the Government, the discretion lies with the disciplinary authority to recover from the pay of Government servant either the whole or part of such loss. Personal gain of a Government servant is not the condition precedent for effecting a recovery once it is proved that the loss is attributed to the negligence.
17. In the case at hand the loss to the Government ascertained is Rs. 29,21,222/- . The respondent though is not held guilty of charge of embezzlement but is found negligent in supervising which led to siphoning of colossis amount of money by a co-accused. In other words had the respondent be good at supervision, the attempt by co-employee in retrieving the money could have been checked. The Tribunal in our considered opinion is not justified in holding that unless there is personal gain mere negligence and the loss occasioned thereon will not be sufficient a ground to effect recovery of whole or part of such loss.
18. We accordingly set aside the order passed by the Tribunal and dismiss the Original Application filed by the respondent herein.
19. The petition is allowed to the extent above. No costs.
12. In the aforementioned judgment the Honble High Court has held that in terms of clause (iii) of Rule 11 which stipulates that on found guilty of the charges and for good and sufficient reasons penalty of "recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders" can be imposed, and further that if due to negligence of Government servant there is pecuniary loss caused to the Government, the discretion lies with the disciplinary authority to recover from the pay of Government servant either the whole or part of such loss. Personal gain of a Government servant is not the condition precedent for effecting a recovery once it is proved that the loss is attributed to the negligence.
13. Thus, having gone through the aforesaid judgment of the Honble High Court of Madhya Pradesh we are of the considered view that all the earlier judgments decided by this Bench and other Benches of the Tribunal, as relied upon by the learned counsel for the applicant, and referred to above, will not help the applicant, and his case is fully covered by the aforesaid decision of the Honble High Court in the matters of M.L.Khare (supra). As regards the reliance on other matters, the same are misplaced keeping in view the facts of the present case.
14. We find that the applicant was given due opportunity to file representation on show cause notice dated 29.10.2012. He was given opportunity to inspect the available relevant document before filing his representation. The disciplinary authority has given detailed reasons for not accepting the contentions of the applicant as raised by him in his representation and, thereafter passed the punishment order. On the appeal filed by the applicant, the appellate authority after duly considering his appeal has passed a detailed reasoned order, wherein all the issues raised by him in his representation have been covered.
15. In this view of the matter we do not find any merit in this Original Application and the same is dismissed, however, without any order as to costs.
(U. Sarathchandran) (G.P. Singhal) Judicial Member Administrative Member rkv 1 Subject : Recovery for negligence OA No.708/2013 Page 1 of 11