Central Administrative Tribunal - Mumbai
Murlidhar G Ale vs M/O Communications on 17 September, 2019
4 0.A.No.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.566/2014 Connected with ORIGINAL APPLICATION No.564/2014 ORIGINAL APPLICATION No.7 06/2014 Date of Decision: 4y* September, 2019 CORAM: Dr. Bhagwan Sahai, Member (A) R.N. Singh, Member (J) (ORIGINAL APPLICATION No.566/2014) R.S.Dharmik Postal Assistant, Amravati Head Office Amravati -444601 R/o Deshpande layout - Near Gond Baba Mandir Dastur Nagar Amravati-444601 - .. Applicant. (By Advocate:-Ms.Priyanka Mehndiratta) Versus (1). The Union of India Through The Chief Postmaster General, Maharashtra Circle, Mumbai-400001 (2). The Director Postal Services, O/o The Post Master General. Nagpur Region, Nagpur-440010 (3). The Superintendent of Post Offices, Yavatmal Division, Yavatmal-445001 .. Respondents. 2 O.A.No.566/2014 cw 0.A.No.564/2014 0.A.No.706/2014 (By Advocate:-Sbri R.R. Shetty ) Connected with Original Application No.564/2014 Murlidhar Ganpatrao Ale, working as LSG Supervisor, SBCO Yavatmal Head Office-445001 R/o Plot No.76,New Gilani Nagar, Near Umarsara Gram Panchayat, Yavatmal-445001 ... Applicant. (By Advocate:- Ms.Priyanka Mehndiratta) Versus. (1). The Union of India, through The Chief Postmaster General, Maharashira Circle, Mumbai-400001 (2). The Director Postal Services, O/o The Post Master General, Nagpur Region, Nagpur-440010 ' (3). The Superintendent of Post Offices, O/o The Senior Postmaster Amaravati H.O.-444601 ... Respondents. (By Advocate:-Shri R.R. Shetty) Connected with Original Application No.706/2014 D.P.Balsaraf Aged 54 years Postal Assistant, -- Amravati Head Office Amravati -444601 R/o C/o N.P.Meshram - Chandore Nagar - oo 3 0.4.No.566/2014 cW 0.A.No.564/2014 0.A.No.706/2014 Dhamangaon Road Yavatmal 445001 .. Applicant. (By Advocate:- Ms.Priyanka Mehndiratta) Versus. - (1). The Union of India Through The Chief Postmaster General, (GPO ) Maharashtra Circle, W H. Road Fort Mumbai-400001 (2). The Director Postal Services O/o The Post Master General, Nagpur Region, Nagpur-440010 (3). The Superintendent of Post Offices. Yavatmal Division, Yavatmal-445001 ... Respondents. (By Advocate:-Shri R.R. Shetty/Shri V.S. Masurkar) Reserved on : 13.03.2019. Pronounced on: IF, 09,2-019, ORDER Per:- R.N. Singh Member (J)
All the three OAs have been filed by the respective applicants : under Section 19 of the Administrative Tribunals Act, 1985. In the above OAs the applicants are admittedly similarly situated. The impugned orders and reliefs prayed for are almost the same. Hence, facts, circumstances and reliefs prayed for being similar, the OAs are being disposed of by a common order treating O.A.No.566/2014 as lead case.
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2. The O.A.566/2014 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs :-
"ray, This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same. quash and set aside all the three impugned orders (A-1,A-2 & A-3) with all consequential benefits.
(b}. The Hon'ble Tribunal may further be pleased to direct the Respondents to refund the amount already recovered from the salary of the Applicant alongwith interest at the rate of 18%.
(c), Cost of the Application be provided for.
(dj. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
3, The O.A.564/2014 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs :-
"faj. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside all the three Impugned orders dated 19.06.14, 22.11.13 and 18.07.13 (A- | .A-2 & A-3) with all consequential benefits.
(b}. The Hon'ble Tribunal may further be pleased to direct the Respondents to refund the amount already recovered irom the salary of the Applicant alongwith interest at the rate of 18%.
(ec), Cost ofthe Application be provided for.
(d}. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed,"
4. The O.A.706/2014 has been filed by the applicant under ae 5 0.A.No.566/2014 cw O.A.No.564/2014 O.A.No.706/2014 Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs :-
"/q). This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside all the three Impugned orders (A-1,A-2 & A-3) with all consequential benefits.
(b). The Hon'ble Tribunal may further be pleased to direct the Respondents to refund the amount already recovered from the salary of the Applicant alongwith interest at the rate of 18%.
(c). Cost of the Application be provided for.
(d). Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
5. The brief facts as contended by the applicants of OA No.566/2014 are as follows:-
The applicant states that while working as Postal Assistant, SBCO, Yavatmal with the respondents, he was directed to make spot audit of Postal Colony TSO on 12.8.05 and 13.08.2005. The applicant did comply with the directions and submitted the requisite audit report. This audit report was duly forwarded by the Chief Supervisor (HSG.I) Yavatmal HO to the Accounts Officer ICO (SB) O/o Post Master General, Nagpur Region, Nagpur, Respondent No.2 with a copy. to the Superintendent of Post Offices, Yavatmal, Respondent No.3 on 27.08.05 (Annex A-4). It is stated that the Respondents have alleged that the applicant failed to submit any Audit Report. However, this was never pointed out by the authorities concerned nor was the ~ applicant ever confronted till this date on or after 13.8.2005 and 6 O.A.No.566/2014 CW 0.A.No.564/2014 O.A.No.706/2014 after a period of about nine years from the date of Audit, the Respondent No.3 has issued the impugned Charge Memo to the applicant on 18.04.13 (Annex A-2) which reads as under:-
" DEPARTMENT OF POSTS, INDIA O/O The Supa. of Post Offices, Yavatmal Division Yavatmal-443 001 Memo No. FA.2/Dis/RSD/08.09 Dated at Yavatmal 18:4:2013 MEMORANDUM Shri R S. Dhamik, PA SBCO Yavatmal H.O. is HEREBY INFORMED THAT IT IS PROPOSED TO TAKE ACTION AGAINST him under Rule-16 of CCS (CCA) Rules 1965. A statement of imputation of Misconduct or Misbehaviour on which action is proposed to be taken as mentioned above is enclosed.
2. Shri R. S. Dharmik is hereby given an opportunity to make such representation as he may wish to make against the proposal.
3. if Shri RS. Dharmik fails to submit his representation within 10 days of the receipt of this Memorandum it will be presumed that he has no representation to make and order will be liable lo pass against Shri R.S. Dharmik Ex parte.
The receipt of this memorandum should be acknowledged.
Supdt. Of Post Offices Yavatmal Dn. Yavatmal-445 001 Copy to:-
RegdADShrik.S. Dharmk, PASBCO Yavatmal HO seo ok ask Statement of imputations of misconduct or misbehaviour on the basis of which Action under Rule 16 of CCS (CCA) Rules-1965 is proposed to be taken agains! Shri RS Dhamik, PA SBCO Yavatmal H.0O.
7 0.A.No0.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 That Shri R. S. Dhamik was working as PA SBCO Yavatmal HO during the period from 2.6.2003 to 24 8.2005. While working as such, he was allotted Postal Colony TSO for Spot Auditing by actually visiting the single and double handed office (o exercise spot check. Accordingly the said official was ordered to visit Postal Colony TSO on 12.8.2005 and 13.8.2005 vide Division office Yavatmal L No LRD/MIS/ Spot Auditing TLP/2005-06 dated 98.2005 which was issued in pursuance of R O Nagpur letter No NR/ICO/SB/Audit dated 27.8. 2005.
Actually there was a case of misappropriation of Rs. 7,49377- in 57 RD accounts by Shri S B Madavi while working as SPM Postal Colony TSO during the period from 20.14.2003 to 1.2..2006. Details of defrauded RD accounts are annexed herewith, He had adopted various modus operandi to commil fraud in RD accounts such as raising denomination of the account or double closure of account on preparing fake ledger card, premature closure of RD accounts posing bogus entries into ledger card etc. He had also effected the payment through cash instead of cheque where the amount of closure was exceeding 20, 000/-.
In fact, the main objective of the Spot Andit was to deiect fraud/ misappropriation of Govt money, to check 100% closure of RD accounts, checking of PRSS/MPKBY lists to check deposits made by depositors on various dates with reference to ledger/journal and S.O. account. The Staff of SBCO carrying out Spot checking was directed to submit detailed report to Divisional Office covering all points as per questionnaire supplied. It was duty of the official Shri R S Dharmik to carry out all the aspects envisaged for spot checking and submit the report to Divisional Office Yavatmal, which is the basic step to prevent/detect the fraud. But the official had failed to submit the report and violated the instructions. Also he had not intimated anything about mis-happening at Postal Colony TSO and not performed any mode to cross check the transaction already performed by Shri S.B. Madavi. Had Shri RS. Dhamilk acted in vigilant manner and gone through the Postal Colony RD records thoroughly, the fraud committed by Shri S B Madavi could have -- been detected much earlier.
It is therefore imputed that Shri R. S. Dharmik while rendering services as PA SBCO failed to obey the instructions/orders issued by this office vide letter cited above and thereby exercised lack of devotion to duty by violating the provisions of Rule 3 (1) (ii) of CCS (Conduct) Rules 1964.
Sd/-
Supdt of Post Offices, Yavatmal Dn., Yavatmal 445001"
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6. The applicant requested for supply of the copy of the Audit Report submitted by him on 27.8.05 by letter dated 27.04.13. Thereafter, vide letter dated 7.5.13, the Respondent No.3 intimated that no Audit report was submitted by the staff of SBCO (Annex A-6). The applicant submitted his reply to the Charge Sheet on 22.5.2013 denying all the charges and it was also requested therein that in case the explanation is not found to be satisfactory, an inquiry under Rule 16 (1)(b) of CCS (CC&A) Rules, 1965 be ordered in the interest of natural justice (Annex A-7). The Respondent No.3 declined the request of the applicant for holding an inquiry and passed impugned penalty order dated 5.8.2013 directing to recover a sum of Rs.80,000/- from the salary of the applicant, in 20 instalments of Rs.4000/- per month starting from the month of August, 2013 onwards. It is stated that the applicant has filed an appeal before the Respondent No.2 on 21.9.2013 (Annex A-8). Even before the appeal was submitted by the applicant or considered by the Respondents, the amount was recovered from the salary of the applicant from August, 2013 with a predetermined and biased mind set of the Respondents.
7. It is stated that no prosecution witnesses whatsoever have been called for to substantiate the charges against him and no prosecution documents have been listed along with the charged Memo by which the charges are proposed to be substantiated. It is stated that the Disciplinary Authority has no evidence against the applicant for the alleged charges. It is stated that the 9 O.A.No.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 respondents are harassing the Applicant by making him a scapegoat. It is stated that after rejecting all his pleas, the Respondent No.3 issued order dated 05.08.2013 (Annex A-3) imposing the penalty of Rs.80,000/-
without as signing any reasons which reads as under.
" DEPARTMENT OF POSTS, INDIA OFFICE OF THE SUPERINTENDENT OF POST OFFICES YAVATMAL DIVISION YAVATMAL-445001 MEMO NO F4-2/Disc/RSD/08-09 Dated at Yavatmal:; 05/08/2013 Shri RS Dharmik PA SBCO Yavaitmal HO was informed vide this office memo No F4-2/Dise/RSD/O08-09 dated 184.2013 that it has been proposed to take disciplinary action against him under Rule 16 of CCS (CCA) Rule 1965. A statement of imputalions of misconduct or misbehaviour on which action was proposed to be taken as mentioned above was also -- enclosed -- along with the memo.
Shri R S Dharmik was also directed to submit his representation within 10 days of the receipt of the memorandum if he so desires, failing which it will be presumed that he has no representation to make and the order will be liable to be passed ex-parte.
(2). The statement of imputations of misconduct or misbehaviour framed against Shri R S Dharmik reads as follows.
That Shti R. 8. Dharmik was working as PA SBCO Yavatmal HO during the period from 2.6.2003 to 24.8.2005. While working as such, he was allotted Postal Colony TSO for Spot Auditing by actually visiling the single and double handed office to exercise spot check. Accordingly the said official was ordered to visit Postal Colony TSO on 12.8.2005 and 13.8.2005 vide Division office Yavatmal L No L/RD/MIS/ Spot Auditing/ TTP/2005-06 dated 9.8.2005 which was issued in pursuance of R O Nagpur letter No NRACO/SB/Audit dated 27.8.2000.
Actually there was a case of misappropriation of Rs.7,49,377/- in 87 RD accounts by Shri S B Madavi while working as SPM Postal Colony TSO during the period from 20.1.2003 to 1.2.2006. Details of defrauded RD accounts are annexed herewith. He had adopted various modus operandi to commit fraud in RD accounts such as raising
-- denomination of the account or double closure of account 10 0.A.No.566/2014 CW O.A.No.564/2014 0.A4.No.706/2014 on preparing fake ledger card, premature closure of RD accounts posting bogus entries into ledger card etc. He had also effected the payment through cash instead of cheque where the amount of closure was exceeding 20,000/-.
In fact, the main objective of the Spot Audit was to detect fraud/misappropriation of Govt money, to check 100% closure of RD accounts, checking of PRSS/MPKBY lists to check deposits made by depositors on various dates with reference to ledger/journal and S.O. account. The Staff of SBCO carrying out Spot checking was directed to submit detailed report to Divisional Office covering all points as per questionnaire supplied. It was duty of the official Shri R S Dharmik to carry out all the aspects envisaged for spot checking and submit the report to Divisional Office Yavatmal, which is the basic step to prevent/detect the fraud. But the official had failed to submit the report and violated the instructions. Also he had not intimated anything about mis-happening at Postal Colony TSO and not performed any mode to cross check the transaction already performed by Shri SB Madavi. Had Shri RS. Dharmik acted in vigilant manner and gone through the Postal Colony RD records thoroughly, the fraud commitied by Shri S B Madavi could have been detected much earlier.
It is therefore imputed that Shri R. 8. Dharmik while rendering services as PA SBCO failed to obey the instructions/orders issued by this office vide letter cited above and thereby exercised lack of devotion to duty by violating the provisions of Rule 3 (1) (ii) of CCS (Conduct) Rules 1964.
(3). Shri R S Dharmik has received the memo-dated 18.4.2013 on 20.4.2013. He had requested to supply copy of spot audit report dated 12 and 13.8.2005 of Postal Colony TSO and extension of 15 days from date of receipt of copy to submit his representation. Since the staff of SBCO Yavatmal had not submitted the copy of spot audit report dated 12/13.8.2005 in respect of Postal Colony TSO, it was not possible to supply the same. The official was informed accordingly vide this office letter dated 75.2013. He has then submitted his representation-dated 22.35.2013 through Postmaster Yavatmal HO, which was received by this office on same day. Shri R S Dharmik has put forth the following points in his representation.
i). Period of misappropriation is from 20.12.2003 to 12.2006 whereas charge sheet has been issued on 18.4.2013 ie., afier lapse of seven years. Delay of seven years is fatal from the point of view of affording reasonable opportunity and also amounts violation of the principle of natural Justice. No violation of any departmental -- rule of manual of S.B. Control pairing and internal check organization has been alleged in the charge sheet. No any statement of the applicant was recorded during the preliminary investigation of the case.
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ii). The report of the spot audit dated 12- 13/8/2005 of Postal Colony TSO submitted by the applicant, which was duly signed by the applicant and by Shri D P Balsaraf who was accompanied with the applicant for spot audit, was forwarded to the SPOs Yavatmal along with letter No SBCO/3-L/spot audit 05/reports dated 610.2003 along with other nine spol auditreporis. Thus the question of violation of instructions does nat arise. it is also brought to your kind notice that during the period from 13.8.2005 to 184.2013, no any explanation of the applicant for non submission of the report of spot audit of Postal Colony TSO was called for during the period of eight years. This is the evidence thal, said report sent on 6.10.2005 duly entered was received in the Division office Yavatmal.
ii}. The yearly inspection of the Postal Colony TSO was carried out by the then ASPOs Yavaimal on 25,9, 2003 and on 24.11.2004 and then SPOs Yavatmal himself had carried out the yearly inspection of this office on 9.6.2005. As per instructions regarding spot audit, one vouchers bundle of RD is io be carried out for spot audit, checking of transactions for selected date with 100% checking of closures is to be done, in respect of closed accounts of selected date, the deposits made by the depositors on various dates are to be checked with reference to ledger journal/ledger and S O account. As the last yearly inspection of the Postal Colony TSO was carried oul by the then SPOs Yavatmal on 96.2005, the date 12.8.2005 was selected for spot audit and checking of one closed RD account, lot of MPKBY Agent Sau S M Thete, Sau Sonali Deo, and one PRSS ageni of Narayanrao Makde School was done with satisfactory result, No any account from the accounts cited in the Annexure of the charge sheet was taken place for checking on the selected date. Thus the question io intimate anything about misappropriation and to perform any mode to cross check the transactions already performed by Shri S B Madavi on other dates than the date selected for spot audit did not arise.
iv). While carrying out the yearly inspections of Postal Colony TSO on 25.9.2003 and 24.11.2001, the then ASPOs Yavatmal and on 9.6.2005, the then SPOs Yavatrnal, though acted in vigilant manner and gone through Postal Colony RD records thoroughly. the fraud which was continued during the period of those three inspections could not be detected. The fraud which could not be detected by the inspecting authorities in three yearly inspections, ~. if cannot be expected to detect by the P.A. cadre in spot audit in which the checking is of only one
-
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0.A.N0.564/2014 O0.A.No.706/2014 selected date. The applicant had not lack of devotion to duty and the question, therefore to violate the provision of Rule (3) (1}(i) of CCS (Conduct) Rules 1964 does not artse.
v). The charge sheet is issued with intention of imposing penalty of recovery of loss to the department. The applicant is not directly responsible for this fraud. It is established that the real culprit/main offender in this fraud case is S B Madavi, the then SPM Postal Colony TSO and thus recovery of loss should be made from him by forfeiting the retiring benefits or from his property or through legal proceedings.
vi). The applicant may either be exonerated from the charges levelled or inquiry under Rule 16D) (®) of the CCS (CCA} Rules 1965 may kindly be ordered.
(4). I have carefully gone through the statement of imputations of misconduct or misbehaviour framed agains! Shri RS Dharmik, PA SBCO at Yavatmal HO, his representation dated 22.35.2013 and related records of the case and my findings with reference to the points raised by the official are as follows :-
(i). The official Shri RS Dharmik had visited Postal Colony TSO Yavatmal on 12.8.2005 and had carried out Spot Audit of the -- office on 12.8.2005 and 13.8.2005 and the fraud is detected on 22.11.2008. Thus there is no period of seven years hetween date of detection of fraud and the date of charge sheet. Further the official was not denied to examine the available records to refresh his memory, Therefore the question of denial of natural justice does not arise.
ii & iti). As per the submission of Shri R S Dharmik, PA SBCO Yavatmal that he had correctly submitted Spot Audit report on 6.10.2005, Moreover he has also submitted that his report was, submitted with satisfactory result and further submitted that he had checked the record since DLI (9.6.2005).
However as per instructions on Spot Auditing, there are no instructions that Spot Audit should be conducted only with effect from last date of inspection. Inspection is done in different way and spot auditing was to be carried out in different manner. He should have to carry oul spol auditing from the date of transfer of RD Ledger Posting work to Sub Post Office failing which he has failed to trace the fraud. Further spot auditing instructions also contains that 100% withdrawals should be checked. Ht does not mean that 100% withdrawals or selected dates should be checked ft only contains that selected dates transactions should be checked. Because of the lapses on the part of the official, the fraud could not be traced in time and "
a 13 0.A.No.566/2014 CW O.A.No.564/2014 O.A.No.706/2014 therefore fraud was traced on 22.11.2008. Due to delay in tracing the fraud. recovery from main offender became impossible.
iv). Shri R S Dharmik PA SBCO is connecting Annual Inspections carried out by Inspectorial Authorities with his Spot Auditing.. Spot auditing was order because whole record was not coming in Head Office. Even though Annual Inspections are being ~--scarried = out -- by inspecting officers, thorough verification is being done in SBCO as per instructions on the subject.
y), The official has raised point that the loss caused to Government should be recovered from main offender. The delay in tracing the fraud facilitated the official to dispose the amount defrauded by him and made it impossible to recover the loss from him. Since the recovery became impossible from main offender as the fraud came into light late and therefore recovery from Shri RS Dharmik PA SBCO Yavaimal becomes necessary.
vi). Since all points raised by Shri R S Dharmik are commented properly, I feel that there is no need to conduct inquiry under Rule 16 (1) (b) of CCS (CCA) Rules 1965 and therefore I pass the following order.
ORDER £, SP. Ghantode, Supdt. of Post Offices, Yavatmal Division Yavatmal by virtue of powers vested in me under Rule-12 of CCS (CCA), Rules-1965 hereby order the recovery of Rs.80,000/- Rs. Eighty thousand only from the salary of Shri RS Dharmik PA SBCO Yavatmal HO @ Rs.4000/-per month. The recovery will be made in 20 installments (4000 X 20= 80,000). Recovery will start from the salary of August 2013 payable on 31.08.2013.
('S.P. Ghantode) Supdi. of Post Offices, Yavatmal Dn. Yavaimal-445 G01 Copy forwarded for information and necessary action to :-
(1). Shri k S Dharmik, PA SBCO, Yavatmal H.O. (2). The Postmaster Yavatmal HO. with one spare copy.
While acknowledging the receipt, he will certify that the suitable action has been taken to -- implement the order.
(3). CR. & PE. of the official.
(4). Punishment Register.
(5). Office copy."
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8. Thereafter, the applicant has preferred an appeal dated 21.09.2013 which was rejected by the Respondent No.2 vide impugned order dated 28.4.14 (Annex A-1) by passing a cryptic and non- speaking order without application of mind which reads as under:-
&e Department of Posts, India Office of the Postmaster General, Nagpur Region, Nagpur-440010 No. NR/Staff-1/4- 10/22/2013 Date : 28/04/2014 This is an appeal dated 00.09.2013 preferred by Shri R.S.Dharmik, the then PA SBCO Yavatmal H.O now PA Amravai HO against the order of recovery of Rs.80,000/- awarded by the SPOs, Yavaunal vide Memo No. F4-2/Disc/RSD/V8-09 dated 3.8. 2013.
2. The charge against the appellant ts as under :-
That Shri RS. Dharmik was working as PA SBCO Yavatmal H.O during the period from 2.6.2003 to 24.8.2005. While working as such, he was allotted Postal Colony TSO for Spot Auditing by actually visiting the single and double handed office to exercise spot check. Accordingly, the said officials was ordered to visit Postal Colony TSO on 12.8.2005 and 13.8.2005 vide Division office YavatmalL, No. LRD/MIS/Spot Auditing/TTP/2005-06 dated 9.82005 which was issued in pursuance of R.O Nagpur letter No. NRAICO/SB/Audit dated 27/8/2005.
Actually there was a case of misappropriation of 7.49.377/- in 37 RD accounts by Shri S.B.Madavi while working as SPM Postal Colony TSO during the period from 20.1.2003 to 1.2.2006. Details of defrauded RD accounts are annexed herewith. He had adopted various modus operandi io commit fraud in RD accounts such as raising denomination of the account or double closure of account on preparing fake ledger card, premature closure of RD accounts posting bogus entries into ledger card etc, he had also effected the payment through cash instead of cheque where the amount of closure was exceeding Rs. 20000/..
In fact, the main objective of the Spot Audit was to detect fraud/ misappropriation of Govt. money, fo check 100% closure of RD accounts, checking of PRSS/MPKBY lists to check deposits made by depositors on various dates
-.with reference to ledger/journal and S.O Account. The staff EE 15 0.A.N0.566/2014 cw 0.A.No.564/2014 0.A.No.706/2014 of SBCO carrying out Spot Checking was directed to submit detailed report to Divisional Office covering all points as per questionnaire applied. It was duty of the official Shri RS. Dharmik to carry out all the aspects envisaged for spot checking and submit he report to Divisional office, Yavatmal, which is the basic step to prevent/detect the fraud. But the official had failed to submit the report and violated the instructions. Also he had not intimated anythin about mis-happening at Postal Colony TSO and not performed any mode to cross check the transaction already performed by Shri S.B.Madavi .Had Shri R.S.Dharmik acted in vigilant manner and gone through the Postal Colony RD records thoroughly, the fraud committed by Shri S.B.Madavi could have been detected much earlier.
It is, therefore, imputed that Shri R.S. Dharmik while rendering services as PA SBCO fuiled to obey the instructions/orders issued by SPOs, Yavaimal vide letter cited above and thereby exercised lack of devotion to duty by violating the provisions cited a of Rule 3(1)(ti) of C.C_S (Conduct) Rules, 1964.
3. The appellant has raised the following main issues for consideration-
i). The disciplinary authority has not supplied the copy of spot audit report and denied the reasonable opportunity and denial of natural justice.
ii). There was an abnormal delay in iniliating the disciplinary action against him.
iti). The SP/ASP carried out annual inspections of Postal Colony TSO for the period of 3 years but they failed to detect the fraud took place at Postal Colony TSO.
iv). The disciplinary authority has not issued speaking punishment order, as such same need to be set aside.
Vv). The uppellant is not directly responsible for pecuniary loss to the Govt, and the appellant cannot be made responsible for recovery of loss sustained by the Govt. as per rule £1 (3) of the C.C.S (CC&A) Rules, 1965, in the case of JM. Makvana Vs. Union of India & others. The punishment of recoverywas quashed and directed the respondents to refund the recovered amount.
vi). The disciplinary authority denied the enquiry under Rule 16 (1}(b) of C_C.S (CC&A) Rules, 1965.
vii). The disciplinary authority has not made preliminary enquiry before initiating the disciplinary action against him.
viii). The punishment of recovery of Rs.80,000/- is not justified and need to be set aside.
4. T have gone through the appeal with connected records. The observations on the above poinis are as under: -
i) The contention of this para is not correct. The spot 16 0.4.N0.566/2014 CW O0.A.No.564/2014 0.A.No.706/2014 audit report of Postal Colony dated 12/13-8-2003 was not received by the disciplinary authority. Therefore, the question of supply of copy of spot audit report by the disciplinary authority does not arise. This has already be discussed by the disciplinary' authority in the punishment order.
ii) The contentions are denied. There was no delay for initiating disciplinary action under Rule 16 'of CCS (CC&A) Rules, 1965. The disciplinary authority had initiated disciplincry action only afier completion of Past Work Verification The Past Work Verification was completed on 19/70/2011.
il) It is true that the Inspecting Officers had carried out annual inspection of Postal Colony TSO Yavatmai, but the Inspecting Officer failed to detect the fraud is not tenable. The appellau is trying to shirk his responsibility on the shoulders of others, which is not correct. The quesiionnuire prescribed for annual inspection by Inspecting Officers and spot audit report are different from each other.
iv) The contention of the appellant that the disciplinary authority has not issucd speaking punishment order is not tenable. The disciplinary authority has discussed each and every point in the punishment order raised by the appellant in his representation dated 22/3/2013. The appellant was found responsible for not observing the instructions/orders issued by the disciplinary authority and failed to perform his duty with full devotion and thereby the appellant violated the Rule 3 (iti) of CCS (Conduct) Rules, 1964. The punishment awarded by the disciplinary authority ts Just and commensurate with the gravity of the charge levelled against the appelhmt.
vy} The appetiant has quoted the judgement of Makwana Vs, Union of India. which is not applicable in the instant case. It is mentioned that the CAT judgement is applicable to tha particular case as if is delivered in the circumstances end evidence produced in that particular case. It cannot be made applicable to all the cases.
vi) The contention of the appellant that he was not allowed the enquiry under Rule 16 (1)(b) of CCS (CC&A) Rules. 1965, it is mentioned that it is a discretion powers of the aisciplinary authority to allow the said enquiry under Rule 16(1)(b) which is not mandatory on the part of disciplinary authority as per CCS (CC&A) Rules, 1965.
vil) It is not required to record the explanation/statement for initiating disciplinary action under Rule 16 of CCS (CC&A) Rites, 1963, however, the appellant was given an ample opportunity to submit his represeniation on the allegation mace against him, The appellant failed to carry oul spol audit in the vigilant manner and also failed to check 100% closed R.D Accounts. This has fneilitated Shri Sit, Madavi to commit fraud of huge amount.
17 O.A.No.566/2014cw 0.A.No.564/2014 O.A.No.706/2014 vill) The appellant contented that the punishment awarded by the disciplinary authority is not justified is not tenable. The disciplinary authority has awarded the punishment of recovery of Rs. 80,000 from the appellant is proportionate to the gravity of offence committed. I have gone through the record of the case. The appeal lacks merit and is rejected.
ORDER I RP .Gupta, Director Postal Services, Nagpur Region, Nagpur by virtue of powers vested in me vide Rule 27 of C.C.S (CC&A) Rules, 1965 hereby reject the appeal.
(R.P. Gupta) Director Postal Services Ovo Postmaster General Nagpur Region, Nagpur-440010 To, SH-RS, Dharmik, PA Amravati H.O (Through SSPO's, Amravati Division)"
9, It is contended on behalf o the applicant that this illegal action of the Respondent No.3 was upheld by the Respondent No.2 vide impugned order dated 28.04.2014 (Annex A-1) with the following concluding remarks:-
"The Appellant failed to carry out spot audit in the vigilant manner and also jailed to check 100% closed R. D. Accounts. This has facilitated Shri S.B.Madavi to commit fraud of huge amount.
veeeees The Applicant contended that the punishment awarded by the- Disciplinary authority is not justified is not tenable. The Disciplinary authority has awarded the punishment of recovery of Rs.80000/- from the appellant is proportionate to the gravity of offence committed. I have gone through the record of the case. The appeal lacks merit and is rejected."
10. It is further contended that the impugned Appellate order is both erroneous and factually misplaced, apart from being cryptic and non- speaking. The Audit cannot indicate the fraud as alleged by the Respondent No.2. The fraud had already been committed 18 O.A.No.566/2014 cw 0.A.No.564/2014 0.A.No.706/2014 before the dates of Audit as such how the Applicant facilitated the offence is not understood. The order is also not a_ speaking order. Nothing has been substantiated against the Applicant to prove that he facilitated the fraud which makes him liable to pay the penalty. No basis whatsoever has been given to arrive at the figure of Rs.80000/- recoverable from the Applicant. No Rule or Law on the basis of which the amount has been worked out to be payable by the Applicant has been mentioned. No penalty can be imposed without any Rule or Law. There is no basis for issuance of Charge Memo in the first place, much less passing of the penalty order. The penalty order thus imposed is illegal and void ab-initio and deserves to be quashed. The Disciplinary Authority is duty bound to concede to the request of an Employee if he wants to be heard in the matter. The Disciplinary Authority cannot simply refuse the plea of conducting the enquiry and follow a short cut method of penalizing the employee with a predetermined and biased mind set, as has been done in the present case. The Disciplinary Authority has misled itself by ignoring the fundamentals Principles of natural justice. [t is stated that the Respondents have acted in an arbitrary manner and issued the impugned charged Memo in colourable exercise of power.
11. It is argued by the learned counsel for the applicants that it is not understood that when the matter has not been finally enquired into and not yet finalized against the actual culprit in criminal proceedings, 19 0.A.No.566/2014 CW O.A.No.564/2014 O.A.No.706/2014 then how the Applicant can be held responsible in an autocratic manner as has been done in the present case. The actual culprit is roaming around freely and enjoying the misappropriated amount of more than Rs.Seven lakhs whereas the innocent officials of the Audit office have been punished in an autocratic way. Moreover, the department did not make any efforts to recover the amount from the culprit or from his family. His bank account or assets were never attached nor was his house searched to find out the assets. Nor the subsistence allowance of the culprit was withheld. It is stated that no enquiries whatsoever were made from the Applicant before issuance of dictatorial order to deposit heavy amount. The fraud came to the knowledge of the higher authorities in August 2005 when Audit was ordered. Thereafter, Annual Inspections were also carried out in 2005 but no deficiency was found. The Respondents have alleged in the penalty order that the fraud was finally detected on 22.11.2008 but no action was taken by the Respondents thereafter. Suddenly on 18.4.2013, it drew the attention of Respondents to penalize the Applicant from Audit and the Charge Sheet was issued. It is stated that inadvertent omissions or commissions cannot form subject matter of Disciplinary proceedings unless some ill motive or other circumstances are also cited. To hold negligence as misconduct, it should not be a mere carelessness, inadvertence or omission but a culpable negligence. This view was upheld by the Hon*ble Supreme Court in the case of "4unzararao Bhikaj Nagarkar Vs. UOI and Others. 1999 SC (L&S) 20 O.A,No.566/2014 CW O.A.No.564/2014 0.A.No.706/2014 P1299. Since no such misconduct has been alleged or proved, the entire disciplinary proceedings are null and void and deserve to be quashed.
12. The learned counsel for the applicants has further argued thal there is gross violation of Principles of natural Justice. No opportunity was ever allowed to the applicant to explain his stand. The Charged Memo was issued and dictatorial order to deposit the amount was passed. The Hon'ble Supreme Court has held in catena of cases that if the documents, a copy of which has not been supplied and at the sane time he is asked to submit his defence, it violates the principles of natural justice and it cannot be said that reasonable opportunity to defend the case was provided to him. No speaking order has been passed in this case and no evidence whatsoever has been brought on records to hold the applicant liable for any penalty. It is stated that the findings of guilt can be recorded on the basis of specific evidence only and mere suspicion, howsoever strong, can never take the place of evidence or legal proof. No documentary evidence has been adduced and no prosecution witnesses have been called to substantiate the charge. Moreover, no opportunity of hearing was allowed before tmposing the penalty.
13. The learned counsel for the applicant further argues that the applicant did submit the Audit report for the audit done on 12.08.05 and 13.8.2005. If the same was not recetved by the Respondents, it was incumbent upon the Respondents to remind and obtain it. However, the 21 0.A.No.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 Respondents themselves slept over the issue upto 22.11.08 when the fraud is stated to have been detected. As no reminder was ever received by the applicant regarding the non-submission of the Audit Report, it was under
stood that the report had been received by the Respondents. After August, 2005 the Respondents have proceeded straight away on 28.04.2014 to issue a Charged Memo which is illegal and deserves to be quashed. It is contended that the only charge against the Applicant is that "on account of non-submission of Audit report the fraud could not be detected earlier'. The Respondents themselves failed to pursue the fraud and after ordering Special Audit in August, 2005 the Respondents are not supposed to wait and allow the culprit to continue to defraud the Department upto 01.02.2006 as has been done in this case and the Applicant cannot be held responsible for the same. It is contended that the applicant's request for regular inquiry was declined and the penalty was imposed which is clear denial of natural justice. As such the penalty imposed deserves to be quashed on this ground alone. It is further added that the respondents were aware of the fraud when they directed Special Audit on 12.08.05 and 13.8.05. However, the culprit was allowed to continue in his seat till 01.02.2006 and was also allowed to commit fraud in 5 (five) more cases listed at Sr.No.53 to 57 of the enclosure to Charge-sheet. This clearly shows that the Respondents were in fact hand in gloves with the culprit and did not remove him from the seat before ordering for audit and even thereafter allowed him to continue 22 0.A.No,.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 with his nefarious activities and the innocent applicant has been made a scapegoat without assigning any reasons. It is argued that the applicant cannot be held responsible for the fraud committed by the culprit prior to the date of audit irrespective of the fact that the Applicant in O.A.566/2014 was unable to notice such fraud.
Similarly, he cannot be held responsible for the frauds of Rs 68311/- in five cases, committed by the culprit, after the date of audit. The Respondents are directly responsible for this fraud as they allowed a culprit to continue in his seat and to continue with his nefarious actions.
14. Besides the above, the learned counsel for the applicants has invited our attention to the following grounds taken by the applicants to seek the relief(s) prayed in the above OAs. The impugned charge-sheet dated 18.4.13 is ex-facie illegal, void, unjust and unfair. No prosecution documents were mentioned in. the Charge Memo by which the charges were proposed to be proved. No prosecution witnesses were named in the Charged Memo which again shows that the Respondents had no witnesses to prove or disprove the alleged charges. No speaking order has been passed while holding the Applicant liable to pay the sum of Rs 80000/-. The memorandum of charges against the Applicant is based on the alleged carelessness in the matter of Audit of Postal Colony TSO, Yavatmal. Alf the functions of each and every employee are subject to supervision by his superiors. Hence the omission, if any, of the Applicant, in Audit work was also liable for such 23 0.A.No.566/2014 CW 0.A.No.564/2014 0.4,.No.706/2014 supervision by his seniors and all acts and omissions, if any, of the Applicant stood merged with the final decisions of the Superiors. There is no co-relation amongst the Charge framed, facts on records and the conclusions drawn while imposing penalty. The Applicant was not at any time connected with the culprit or the fraud. The Disciplinary Proceedings initiated and concluded against the Applicant are based on a belated Charge sheet. The entire Proceedings are hopelessly time barred and hit by Principles of delay and laches. The Applicant has been denied a_ reasonable opportunity of being heard in the matter.
15. Por sake of brevity, we consider it not necessary to incorporate the facts of other two connected OAs in detail except that the applicant in O.A.No.564/2014 was working as Postal Assistant, SBCO, Yavatmal H.O. from 01.10.2005 to 01.02.2006. During this period he was allotted duties at Postal Colony TSO for checking of Recurring Deposit vouchers and other documents for the month of January, 2003. It was alleged by the respondents that the applicant failed to exercise proper check. However, after a period of more than seven years from the date of checking, the Respondent No.3 issued the impugned Charge Memo to the applicant on 18.04.2013. He submitted his reply dated 16.08.2013 (Annex A-4) to the Charge Sheet denying all the charges. It was also requested that in case the explanation is not found satisfactory, an inquiry under Rule 16 (1) (b) of CCS (CC&A) Rules, 1965 be ordered in the interest of justice. The Respondent No.3 declined his request and passed the 24 0.A.No.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 impugned penalty order dated 22.11.2013 directing to recover a sum of Rs.80,000/- from the salary of the applicant in 20 instalments of Rs.4000/- per month from November, 2013. Aggrieved with the aforesaid order the applicant preferred an appeal dated 10.01.2014 (Annex A-5) to the Respondent No.2; which was also rejected vide order dated 19.06.2014.
Hence, this OA.
16. In O.A.No.706/2014, the applicant was working as Postal Assistant, SBCO Yavatmal H.O. from 30.05.2005 to 05.05.2009. Durmg this period he was allotted duties at Postal Colony TSO for spot audit on 12.08.2005 and 13.08.2005. It was alleged by the respondents that the applicant failed to exercise proper check. However, after a period of more than eight years from the date of spot audit, the Respondent No.3 issued the impugned Charge Memo to the applicant on 19.08.2013. He submitted his reply dated 27.08.2013 (Annex A-5) to the Charge Sheet denying all the charges and also requesting therein for supply of the copy of Audit Report submitted on 27.08.2005. It was also requested that in case the explanation is not found satisfactory an inquiry under Rule 16 (1) (b) of CCS (CCé&A) Rules, 1965 be ordered in the interest of justice. The Respondent No.3 declined his request and passed the impugned penalty order dated 02.12.2013 directing to recover a sum of Rs.80,000/- from the salary of the applicant in 20 instalments of Rs.4000/- per month from December, 2013. Aggrieved with the aforesaid order the applicant preferred an appeal dated 15.01.2014 (Annex A-8) to the Respondent 25 0.A.No0.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 No.2, which was also rejected vide order dated 26.06.2014. Hence, this OA.
17. During the course of hearing, the learned counsel for applicants has also placed on record a copy of an Order No.STA/44- 2(5)/(56)01/2017 dated 26.04.2017 wherein the respondents had issued a charge sheet against one Shri A.W. Onkar, PA SBCO, Amaravati on the same grounds 1.e. voucher checking, maintenance of RD and also failed to exercise proper check which facilitated misappropriation of RD accounts. T'o which he filed petition dated 20.10.2014 against the order of appellate authority and finally the same has been set aside which reads as under:-
"4. | have gone through the petition and the relevant records and observed that:
i. The Fraud was spread over the period fram 20.01.2003 to 01.02.2006 and the same was detected on 22.11.2008. After completion of Past Work verification of the SO the subsidiary offenders "were identified. CLI report is of 31.08.2010 and Charge sheet was issued on 18.04.2013, The delay of more than 2/2 years in issuing Charge Sheet to subsidiary offender, that too without specific charge and particulars seems abnormal.
fi. In case of any type of misconduct, before taking disciplinary action, the role of the official should be properly investigated, As regards denial of inquiry under Rule-16 (1)
(b) of CCS (CCA) Rules, 1965, as per DOPT OM. no. 11012/18/85-Estt.(A) dated 28.10.1985, the Disciplinary Authority should have, after due consideration, recorded reasons for his conclusion if an inquiry was not necessary.
fit. The petitioner has pointed out irregularities on part of other officers, which cannot be an excuse to escape from liability. As per said duty list, from 02.01.2003 to 31.05,2003, the petitioner was allotted other POs and not Postal Colony P.O. Period of fraud is from 20.01.2003 to 01.02.2006. Whereas, Charge sheet
18. 26 0.A.N0.566/2014 cW 0.A.No.564/2014 0.A.No.706/2014 was issued for the working period of petitioner from 01.04.2003 to 31.05.2003. The periods do not commensurate with one another.
iv, There was no such adverse criticism of Hon'ble CAT judgments in order of appellate authority. It is fact that judgment issued in individual cases cannot be applied to all cases. Because, each case has its own merits.
5. Apart from above, I have also observed that:
(a) Violation of Departmental Rules has not been mentioned in Charge Sheet.
(b) Charge levelled against the petitioner in charge sheet is not specific. The list of all the accounts in which fraud committed, was attached with charge sheet instead of mentioning specific fraudulent transactions, which petitioner failed to check during his working. The action of disciplinary authority is not in accordance with instruction Issued by Dte. No. 114/176/78-Disc. 11 dated 13.02.1981.
(c). Without knowing the specific irregularity on the part of petitioner, i.e. amount of fraud facilitated by him, his share in responsibility of refunding the amount to the Govt. Exchequer cannot be ascertained. Imposing the penalty of equal amount of recovery on all the subsidiary offenders, is not in accordance with Rule 107 of Postal manual Vol-HI.
(d) There was error in Charge sheet in mentioning name of RD Register to be maintained at SBCO. It was written as "RD-63' instead of 'SB-86'. However, same has been explained by Disc.
Authority as well as Appellate Authority, the disciplinary authority should ensure that no technical error is occurred while issuing charge sheet.
In the light of above discussion, I observe the casual approach of disciplinary authority in dealing with such fraud case. Therefore, I pass the following order:
Order I HC. Agrawal, Chief Postmaster General, by virtue of power vested' in me vide Rule-29 of CCS (CCA) Rulés, 1965, set aside the punishment order issued by Sr. Postmaster, Amravati HO. vide Memo No.B/2/Disc/AWO/2013-14 dated 6.12.2013.
(H.C. Agrawal) Chief Postmaster General, Maharashtra Circle, Mumbai-400 001."
Opposing the claim of the applicant, the respondents have filed reply stating therein that the applicants were assigned duties of spot 27 0.A.No.566/2014 Cw 0.A.No.564/2014 0.A.No.706/2014 audit of Postal Colony TSO, Yavatmal and after being found lacking in performance of their duties, the Respondent No.3 has take action against the applicants for recovery of loss caused of the government money. The Respondents have taken action against the applicants for recovery of loss caused to the government, by following the minor penalty proceedings under Rule 16 of CCS (CCA) Rules, 1965. In fact the main object of the spot audit was to detect fraud/misappropriation of government money by checking 100% closure of RD accounts, checking of Press/MPKBY lists. But the applicants have failed to submit the report and violated the instructions. The respondents have stated that there was no delay in initiating disciplinary action after completion of past work verification, which is one of the most important factors in fraud case and past work verification was completed on 19.07.2011. It is stated that the applicants are staff of the respondents and shortcomings or discrepancies ought to have been noticed during the spot audit of Postal Colony TSO, Yavatmal and brought to the notice of Superintendent of Post Offices, Yavatmai i.e. disciplinary Authority. As such the charge sheets were issued to the applicants. Finally, after due process, the Disciplinary Authority has awarded the punishment of recovery of Rs.80,000/- from the pay of each of the applicants. They have submitted their appeals but the same were also dismissed by the competent authority. It is stated that the grounds are not at all tenable or sustainable as per facts and circumstances, as such the OAs are devoid of merits and liable to be dismissed.28 z 0.A.No.566/2014
CW 0.A.No.564/2014
0.A.No,706/2014
19. In the Rejoinder, the applicants have reiterated the averments made in their respective OAs and denied the contentions raised in their respective Counter-replies.
20. The respondents have also filed Additional Reply(s) reiterating the averments already made in their earlier reply(s).
21. We have gone through the entire pleadings and documents on record and have also have heard the learned counsel for the applicants and respondents and carefully considered the facts and circumstances, law points and rival contentions in the case.
22. Learned counsel for the applicants has relied upon the following judgments:-
(i). Order/judgment of CAT, Hyderabad Bench in O.A.No.1091/2013 dated 22.11.2017 titled M.D. Lateeuddin vs. Union of India & Others.
(ii). Order/judgment Of CAT, Jodhpur Bench in O.A.No.499/2012 dated 08.06.2018 titled Jassa Ram vs. Union of India & Others.
23. Learned counsel for the respondents has relied upon the following judgment:-
(i). State of Punjab & Ors. Vs. Dr. Harbhajan Singh Greasy of Hon'ble Supreme Court delivered on 12.04.1996 reported in JT 1996 (5) SC 403 wherein it is laid down that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to 29 0.A.No.566/2014 CW 0.A.No.564/2014 O.A.No.706/2014 follow the procedure from the stage at which the fault was pointed out and to take action accordingly to law.
24, Before dealing with the facts of the case, it is relevant to note down certain provisions of CCS (CCA) Rules 1965 specially Rule 11], which deals with the penalties, specifically Minor Penalties: -
"Minor Penalties;
(i). censure;
(ti). Withholding of his promotion;
(iti). 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;
(tit.a}. reduction to a lower stage in the time scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension;
fiv). Withholding of increments of pay.Note 23 (a) of Rule 11 also deals with the general conditions of procedure to be adopted in case of imposition of penalty for recovery.
"23. Imposition of the penalty of recovery: - (a} General conditions In the case of proceedings relating to recovery of pecuniary losses caused to the government by negligence or breach of orders by a Government servant, the penalty of recovery can be imposed. only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss."
25. From perusal of the above reproduced procedure it is clear that the penalty of recovery can be imposed only when it is established that the Government servant was responsible, for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss. As per rule 11 of the CCS (CCA) Rules 1965, it is mandatory that before coming to the conclusion that the applicants were 0,A.No.566/2014 cw 0.A.No.564/2014 0.A.No.706/2014 not vigilant in performing their duties which resulted in loss to the government for which the penalty of recovery has been ordered, the procedure has to be adopted by conducting full-fledged inquiry. Rule 1! does not confer any power upon the respondents to recover the amount of embezzlement from retiral dues of the official/(s) as all the applicants are now retired.
26, Brom perusal of the charge levelled-against the applicants in the respective Charge Sheets, it is clear that nowhere the respondents have indicated that the applicants facilitated commitment of any fraud. Only allegation levelled against the applicants is that they had not performed their duties diligently, which resulted in loss on account of fraud committed by some other person. Even from perusal of the impugned orders it is seen that nowhere it was concluded by the Disciplinary Authority that the applicants facilitated commission of fraud. The finding has been recorded that the applicants were negligent in performing their duties and, therefore, recovery of Rs.80,000/- has been imposed upon each of them from their pay at the rate Rs.4000/- per month. The records 1.€. the charge-sheet or any other documents do not indicate the actual loss, for which the applicant is responsible or he has been conspirator with the actual offender. Neither the impugned orders not the reply statement mention the basis for quantifying the each applicant's share towards the loss for which recovery has been ordered by the respondents. There is no sound or rational basis for arriving at the loss, sought to be recovered from the applicants. It has also not come on record as to what steps have been 31 O.A.No.566/2014 cw 0.A.No.564/2014 O.A.No.706/2014 taken by the respondents to recover the loss caused, if any to them from the real offender namely Ms.S.B. Madavi, or their other own employees. The respondents also failed to give explanation to indicate delay in issuing the charge-memo to the applicants. Besides, from the respondent's order dated 26.04.2017 referred to in para-17 above, it is evident that in similar circumstances, the respondents have themselves set aside the order of punishment. Moreover, the applicants have categorically replied that they have duly discharged the duties assigned to them and the respondents have not been able to controvert the same. The appellate authority has also not considered the objections raised by the applicants in their respective appeal/(s) and has rejected the appeal/(s) of the applicants in a mechanical manner.
27, The Jabalpur Bench of this Tribunal in the case of Smt. Kalpana Shinde and Others reported in 2005 (1) ATJ-45 has also considered the similar controversy. The Bench held as under : -
Il. We find that in the case of SK Chaudhury Vs. Union of India and Ors in O.A No. 504/1996 decided on dated
26.03.2001, the Ahmedabad Bench of CAT while dealing with similar case of fraud having been perpetuated by somebody else and the applicant therein being held responsible for negligence in not detecting the same has observed as under -
"The reasoning of the disciplinary authority .. proceeds on the ground that if the applicant had carried out these duties, no fraud would have been committed but this is a mere surmise, as even after carrying out these duties the Sub Post Master being in possession of the cash was in a_ position to misappropriate the amount. Further more such negligence even if there is one, cannot be a cause for punishing the applicant with the recovery of loss sustained by the department. The applicant obviously was not directly responsible for the misappropriation 32 0.A.No.566/2014 CW 0.A.No.564/2014 O.A.No.706/2014 of this amount ought to have been made from the person directly responsible for the misappropriation merely because the department found that it was not possible to recover the amount from the main culprit some other scapegoat cannot be found out and cannot be levied with the punishment of recovery of the loss.
12. Again in the case of C.N. Harthar Nandanan Vs. Presidency Post Master, Madras SPO reported in a similar situation observed that the employee was sought to be made responsible for the pecuniary loss caused to the Govt. on the ground that he was negligent in performing his duty. He was also tried to be made technically responsible due to the non- compliance of the instructions by not getting every six transaction entry properly verified. Quashing the recovery order, the Madras Bench has observed that the applicant was not directly responsible for causing any pecuniary loss to the Gove.
13. Again in the case of JM Makwana Vs. Union of India & Ors in OA No. 750/98 decided on 4.9.2001 by the Ahmedabad Bench of this Tribunal same question of holding somebody else liable for the fraud perpetuated by somebody else was involved. Quashing and setting aside the order of the recovery passed by the Disciplinary Authority therein, the Tribunal has observed as under : -
"We have no hesitation in concluding that the whole order of the disciplinary authority as well as of the appellate authority is based on misconception of the terms negligence and in utter disregard to the __ provisions of Rule 11(3) of the CCS (CCA) Rules. It appears that the disciplinary authority and the appellate authority believe that whenever some fraud has taken place in the department and there is loss of revenue, some body should be held guilty for the loss caused to the department. It is not kept in mind by the disciplinary authority as well as the appellate authority that the rule providing for imposing penalty Le. Rule 11{3) of CCS (CCA) Rules clearly lays down that the recovery can be imposed from the pay of the Govt. Servant if the pecuniary loss is caused by him to the Govt. by the negligence or the breach of the orders. We fail to understand how the penalty of recovery of Rs. 9000/- could have been imposed by the disciplinary authority on the applicant and confirmed by the appellate authority, when the
- charges leveled against the applicant not that, he by his act of negligence caused any pecuniary loss to the Govt. The charge leveled against the applicant was that by his negligence in not posting the entries of passbooks in the error book, the fraud was not detected earlier."
The Tribunal had further observed that even if for a moment we believe that applicant was negligent in not a a 33 0.A.No.566/2014 cw -- O.A.No.564/2014 0.A.No.706/2014 posting the entries of the passbooks in the error book, then also this negligence was not such that would be a cause for punishing the applicant with recovery of loss sustained by the department as well withholding of one increment. The applicant obviously is not responsible for -- the misappropriation of this amount and therefore, the recovery if any was to be made for the loss of the amount ought to have been made from the person directly responsible for the misappropriation.
28. That judgment of the co-ordinate Bench of this Tribunal has been followed by other co-ordinate Jodhpur Bench of this Tribunal in O.A.No.344/2003 connected with O.A.Nos.353, 354,355 and 357 of 2003 in order dated 22.11.2004 titled Smt.Kalpana Shinde & Others vs. Union of India & Others and also by Hyderabad in order dated 22.11.2017 in O.A.No.1091/2013 titled M.D. Lateefuddin vs, Union of India & Others wherein it is further held that in the absence of a proper basis the quantifying the loss that was alleged to have been caused ; the loss is fixed on the basis of surmises, it is also held therein that the negligence on the part of the Government servant leading to the fraud committed by another person cannot be a ground for imposing the penalty of recovery.
29. Further, a co-ordinate Bench of this Tribunal at Jodhpur vide order/judgment dated 08.06.2018 in O.A.No.290/00499/2012 titled Jassa Ram vs. Union of India & Others has reiterated its earlier view that as per Rule u of the 1965 Rules, penalty of recovery can be imposed only in exceptional circumstances and for special reasons to be recorded in writing and also that after having issued a charge sheet, under Rule 11 of the '1965 Rules', the penalty of recovery could have been ordered by the _ Respondents only as an exceptional case for the reasons to be recorded in 0.A.No.566/2014 cw O0.A.No.564/2014 0.A.No.706/2014 writing and the delinquent official should have had a reasonable opportunity of being heard regarding the exceptional and compelling circumstances of which recovery is being ordered. In the present case, the respondents have not acceded to even the request of the applicants for a full fledged enquiry and that too without assigning any reasons there for.
30. In the case of B.R. Verma vs. Union of India & Others decided on 14.09.2011 the Central Administrative Tribunal, Allahabad Bench has held as follows:
"715 From the facts of the case in hand it is no where remotely suggested by _ the respondents that misappropriation of amount/fraud was committed by the applicant and the pecuniary loss caused to the department was not on account of any act of omission or commission of the applicant, nor the applicant, in any way, @ CO- conspirator or associated with it . Even the charge sheet was issued under rule 16 of the CCS (CCA) Rules, which itself denotes that there is no serious charge against him. In view of the above jurisdictional pronouncement when the person concerned is _ directly responsible for misappropriation of money causing pecuniary loss to the government, it was held that no recovery can be made from him. Moreover, recovery of money is a matter of civil consequence is not permissible without firstly conducting an regular inquiry. Thus for the forgoing reasons as pointed out above the impugned order dated 3107.2007 and 08.08.2008 are set aside. If any amount in pursuance to the impugned order is recovered from the applicant, the same shall be refunded to the applicant within period of four weeks. No costs."
31. The applicants being Group 'C' employees and having retired on (Applicant in OA No.564/2014 on 31.12.2017), (Applicant in OA No.566/2014 on 30.06.2018) and (Applicant in OA No.706/2014 on 30.09.2017) on superannuation and at this belated stage, we don't find reason or justification to remand the matter to the respondents to proceed 0.A.No.566/2014 CW 0.A.No.564/2014 0.A.No.706/2014 in the matter afresh, that too in a minor penalty proceedings. Hence, the matter deserves to be put to quietus. In the facts and circumstances the judgment of the Hon'bie Apex Court in Dr. Harbhajan Singh Greasy (supra) does not help the respondents.
32. In view of the facts and circumstances as discussed above and considering the decisions referred to herein above, there is no reason to arrive at a different conclusion except to conclude that the OAs are having merit. Accordingly, OAs deserve to be allowed and are accordingly allowed with the following directions:-
(1), The impugned orders dated 05.08.2013, 18.04.2013 and 28.04.2014 (Annexes-3,2, 1) respectively in OA.No.566/2014, impugned orders dated 18.07.2013, 22.11.2013 and 19.06.2014 (Annexes-3,2,1) respectively in OA.No.565/2014 and impugned orders dated 02.12.2013, 19.08.2013 and 20.06.2014 (Annexes-
3,2,1)} respectively in OA.No.706/2014 are hereby quashed and set aside. The interim order granted earlier in the OAs made absolute.
(ii). The respondents are also directed that no recovery shall be made from the pension of the applicants in pursuance to the impugned order/(s)/proceeding/(s) and also to refund the amount if already recovered from them along with interest as applicable on GPF.
(ili). The aforesaid exercise shall be completed by the respondents within eight weeks from the date of receipt of a certified copy of this order.
33. No order as to costs, oa (Roa Singny ao (Dr.Bhagwan Sahai) Member (J) Member (A) Amit/-
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