Central Administrative Tribunal - Delhi
Shri Ravinder Singh Bawa vs The Union Of India on 17 April, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1095/2013 Reserved On:07.03.2013 Pronounced On:17.04.2014 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Basu, Member (A) Shri Ravinder Singh Bawa S/o Shri Dayal Singh Bawa Aged 55 years Ex-Postal Assistant, Krishna Nagar HPO, Delhi-110051. ..Applicant R/o H.No.B-83, South Anakali, Street No.7, Post Office Street, Delhi-110051. Address for Service C/o R.P. Sharma Advocate CAT Bar Room, Copernicus Marg, New Delhi-110 001. By Advocate: Shri Deepak Verma with Shri R.P. Sharma. Versus 1. The Union of India, Ministry of Communcation & I.T., Through Secretary, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi-110001. 2. The Director Postal Services ( O) C/o CPMG, Delhi Circle, Meghdoot Bhawan, New Delhi-110 001. 3. The Sr. Supdt. Of Post Offices, Delhi East Division, Karkardoma, Delhi-110051. Respondents By Advocate: Shri B.K. Berera. ORDER
Shri G.George Paracken, M(J) Applicant has filed this Original Application challenging the impugned orders in the disciplinary proceedings culminated in the penalty of removal from service imposed upon him and the rejection of his appeal against the same by the Appellate Authority.
2. The brief facts of the case are that the Applicant was proceeded under Rule 14 of the CCS (CCA) Rules, 1965. The substance of imputation of misconduct and misbehavior in respect of which the enquiry was held as set out in the Articles of Charges are as under:-
ARTICLE-I That the said Shri R.S. Bawa while working as APM (SBSO) in Krishna Nagar HPO Delhi-110051 during the period from 01.03.2004 to 30.04.2004 had allegedly facilitated the opening of savings account number 612304 at Krishna Nagar Head Post Office on 31.03.2004 in joint name of Kamla Ajmera and P.L. Ajmera without the introduction of depositors after putting his initial unauthorizedly in place of signature of Postmaster on fictitious Account opening application (SB-3) placed before him by the SB Asstt. Shri Vijay Kumar. Further deposit of Rs.4,82,500/- was allegedly allowed in this account on 31.03.2004 by him unauthorziedly in excess of the prescribed limit of maximum balance in Joint Savings a/c and entry of this deposit was made by him in computer through Data Entry Module. Further withdrawal of Rs.4,82,500/- in cash from this savings A/c on 31.03.2004 was unauthorizedly approved by him after making his initial payment order of withdrawal application (SB-3) ARTICLE-II That during the aforesaid period and while functioning in the aforesaid capacity the said Shri R.S. Bawa had allegedly allowed the opening of savings account No.611919 at KNHO on 6.3.2004 in joint name of Kuldeep Kumar Garg and Renu Garg after putting his initial unauthorizedly in place of signature of Postmaster on account opening applicant (SB-3) placed before him by the SB Asstt. Shri Vijay Kumar without scrutinizing the same at all. Further withdrawals of Rs.50000/- on 6.3.2004, of Rs.50000/- on 18.03.2004, of Rs.104000/- on 23.04.2004, of Rs.102000/- on 26.04.2004 of Rs.104000/- on 27.04.2004 were also unauthorizedly allowed from this savings a/c by him after passing and initialing the payment order whereas the opening of savings accounts and transaction to be made from these accounts should have been allowed by Shri D.K. Popli APM (SB) KNHO.
ARTICLE-III That during the aforesaid period and while functioning in the capacity the said Shri R.S. Bawa had allegedly allowed the opening of saving account No.612095 at KNHO on 13.04.2004 in joint name of Kuldeep Aneja and Ashoka Aneja unauthorisedly on the basis of fictitious Account opening application (SB-3) and Pay-in-slip (SB-103) placed before him by the SB Assistant Shri Vijay Kumar. Further withdrawals of Rs.92000/- on 23.04.2004, of Rs.92000/- on 26.04.2004, of Rs.92000/- on 27.04.2004, of Rs.98000/- on 28.04.2004, of Rs.204630/- on 29.04.2004 were also unauthorisedly allowed from this saving account after making initial on payment order while the withdrawals should have been permitted by Shri D.K. Popli, APM (SBHO).
ARTICLE-IV That during the period from 01.04.2004 to 31.05.2004 and while functioning in the aforesaid capacity the said Shri R.S. Bawa is alleged to have joined the opening of Saving A/c No.612094 unauthorisedly in KNHO on 13.04.2004 in joint name of Vimal Malhotra and Annu Malhotra R/o A-25, East Krishna Nagar, Shahdara, Delhi-11032 on the basis of fictitious Account opening application (SB-3) and Pay-in-slip (SB-103). Further amount of Rs.198475/- on 30.04.2004 and of Rs.200090/- on 01.05.2004 was credited in this saving a/c after getting it irregularly transferred from MIS Counter Asstt. and entries of these deposit were allegedly made in Computer through Data Entry Module by him unauthorziedly.
ARTICLE-V That during the period from 02.05.2004 to 31.05.2004 and while functioning in the aforesaid capacity the said Shri R.S. Bawa is alleged to have allowed the opening of Saving A/c No.612227 unauthorisedly in Krishna Nagar HPO on 08.05.2004 in joint names of Prem Lata and Dharam Pal Sharma R/o E-I/II/Krishan Nagar, Delhi-110051 on the basis of fictitious Accounts opening application (SB-3) and Pay-in-slip (SB-103). Further amount of Rs.38600/- was credited in this saving a/c on the same date after getting it irregularly transferred from MIS Counter Asstt. KNHO and Entry of this deposit, was allegedly made in computer through DATA ENTRY MODULE by him unauthorizedly. Further the withdrawal of Rs.386000/- in cash from this saving A/c was unauthorizedly allowed on 08.05.2004 after making his initial on payment order of withdrawal application (SB-7) by said Shri R.S. Bawa.
3. The Inquiry Officer, after holding a detailed enquiry in the matter, submitted a report holding that the aforesaid Articles of Charges leveled against the Applicant have not been proved. The relevant part of the said report is as under:-
Analysis and Assessment of Evidents The charges leveled against Shri R.S. Bawa while working as APM (SBSO) in Krishna Nagar HPO Delhi-110051 during the period from 01.03.2004 to 30.04.2004 was alleged to have opened a SB A/c No.612034 at KNHO on 31.3.2004 without the introduction of depositors after putting his initial unautorizedly in place of signature of Postmaster on fictitious account opening application SB-3 & similar procedure was adopted in opening SB A/c No.611919. He also alleged to have allowed the withdrawn by making his sign on payment order in place of Shri D.K. Popli APM (SB) KNHO. Thirdly he allowed the deposits beyond the prescribed limited in SB A/c.
During the course of enquiry keeping in front of the exhibited documents and going through the deposition of witnesses it was observed as under:-
(1) Jagdish Teg Project Officer (SW-1) on his examination in Chief Dated 20.12.2007 has agreed that the SB A/c No.612034, 611919, 612094, 612227 were generated by him on 20.06.2005 but while the cross-examination in question No.1 and question No.2 he denied to reply the question by saying I am not aware & in answer to question No.4 he also repeated the same version did not come out any answer in support of the charges only to confirmation of computer general SB A/c Nos.
(2) Shri Roop Chand, Dy. PM (trg) KNHO (SW-2) while his deposition dated 15.3.2008 has confirmed the contents of Attendance Register and Nominal roll for the month of April and May 2005 & Log Book for the period from 01.03.2004 to 08.05.2004 which indicates that the charged official had acted & supported the so called allegations while performing his duties on a particular seat and Post.
(3) Shri S.D. Tyagi the Ex.Sr. Postmaster KNHO (SD-3) in answer to (cross-examination) Question No.1 has certified the contents of order No.297 dated 10.11.2003 for the deployment of Shri D.K. Popli as APM (SBHO) KNHO saying that yes it is evident from the record but in answer to question No.3 he had stated that I was not aware of the fact Shri D.C. Sharma ASP was investigated the case knows better facts about the case did not give any clear picture in the case.
(4) Shri Brij Mohan Rohilla Ex.APM (SBHO) KNHO Delhi-110051 (SW-4) has confirmed the certified copies of computer generated SB ledger copy of SB A/c 612095 which was standing with name of Shri Kuldeep Aneja & ordered on 13.4.2004 with an initial deposit of Rs.100/- the said SB A/c was alleged to have unauthroizedly opened on the basis of fictitious A/c opening form (SB-3) but if happened not to be clear into whether what roles have the CO played & It has only been stated in the deportation that the said A/c was only signed by the witness.
(5) Smt. Kamla Ajmera SW-5 While deposition dated 31.07.2008 has stated that she had been shown her statement dated 28.4.2005. The contents of which was confirmed by her along with SB-3 Dated 01.04.2004 SB-103 Dated 30.03.2004 in r/o SB A/c No.612034 and SB-7 dated 3.03.2004 for Rs.482500/-. She also confirmed that the following documents were signed by her (1) SB-3 if MIS A/c No.13454 (2) SC-7 dated 28.6.2003 of MIS A/c No.13454 (3) SB-7 dated 28.7.2003 for Rs.3958/- & (4) SB-7 dated 31.5.2003 for Rs.3958/-
Whereas she demanded the following documents to be signed by her.
SB-7 of MIS A/c 13454 for Rs.482500/-
SB-3 of SB A/c 612034 dated 01.04.2004 SB-7 of SB A/c 612034 dated 31.3.2004 for Rs.482500/-
The above discussion does not indicate modus operandi if CO as to how he reached to commit irregularities on his part. If the SB-7 and SB-3 were not signed by the depositors who manipulated the signature.
(6) Smt. Prem Lata W/o Late Shri Dharam Pal (SW-6) was agreed & confessed vide her deposition dated 26.9.2008 that the SB-103 of deposit of Rs.386000/- dated 08.05.2004 in SB A/c No.612227 was not signed by her but the confirmation is incomplete it is the question that by whom the SB-13 in question was signed.
(7) Shri Vimal Malhotra (SW-7) has deposed vide his deposition dated 16.12.2008 that SB-3 of MIS A/c No.13616, 13557 were related to him whereas sign on SB-103 in r/o SB A/c No. 612094 was not relating to him. While in cross examination in answer to question No. 4 he stated that Sh. Rajeev Arya ran away with his pass books with money on 29.04.2004 but in answer to question No. 5 he further stated that the agent used to return my pass books after depositing the latish amount. Resultantly it does not ascertain what aspect the witness desires to put forth in r/o charges leveled against the charges official.
(8) Sh. Kuldeep Aneja (SW-8) while deposing his witness on 17.01.2009 that the SB-3 of the following MIS A/c numbers were not signed by them.
MIS A/c No. 14010 MIS A/c No. 14011 MIS A/c No. 14888 MIS A/c No. 14889 MIS A/c No. 17786 MIS A/c No. 17787 The witness discussed in his statement that it can say that the documents were not signed by them who signed these documents! It is the question! is there is the statement that these were signed by CO. No. The statement does not reflect that the SB-3 was exactly signed by charged official. The depositor further agreed that the blank forms duly signed by them were given to the agent.
(9) Sh. D.C. Sharma ASP (SW-9) was highlighted in his statement dated 04.08.2009 that he had obtained the statement of various concerned during the course of enquiry & made the enquiry in the case. The witness did not highlight any extra fact strengthening the case except repetition of story.
Finding All the witnesses have categorically confirmed rectified the veracity of the respective documents concerning to them during the course of enquiry as can be seen in the fore going paras.
Thus, I, J.P. Rajour, Enquiry Officer in the case, therefore, held the charges framed against Sh. Ravinder Singh Bawa PA Patpar Ganj PO Deljhi-110092 as NOT PROVED.
4. However, the Disciplinary Authority, vide its order dated 08.07.2010, disagreed with the aforesaid findings of the Inquiry Officer and furnished a copy of the said disagreement note to the Applicant for his comments/representation. The relevant part of the Disagreement Note reads as under:-
Article of Charge-I:
The charges were that he facilitated the opening of saving account No.612034 at Krishna Nagar HO on 31.3.2004 in joint names of Kamla Ajmera and P.L. Amera without the introduction of depositors after putting his initial unauthorisedly on fictitious account opening application (SB-3), deposit of Rs.4,82,500/- was allowed in this account on 31.03.2004 by him unauthorisedly in excess of the prescribed limit of maximum balance in joint saving account and entry of this deposit was made by him in computer through data entry module, further withdrawal of Rs.4,82,500/- from said saving account on 31.03.2004 was unauthorisedly permitted by him after his initial withdrawal form (SB-7).
The veracity of ledger copy of SB account No.612034 generated through backend by Shri Jagdish Teg, project officer Delhi circle and taken on record during the enquiry has been confirmed by the state witness Sh. Jagdish Te (SW-1). Question No.1 and question No.2 made during the cross-examination of him by DA/CO were not related to him. The answer to these questions does not carry any weight in this case. From the ledger copy it is well established that the deposit of Rs.4,82,500/- was made in computer through data entry module by the Charged Official Shri R.S. Bawa unauthorisedly and violating the prescribed limit of maximum balance in joint saving account. Smt. Kamla Ajmera (SW-5) appeared during the enquiry has stated in her deposition dated 31.07.2008 that account opening application (SB-3) of SB account number 612034, withdrawal form (SB-7) dated 31.03.2004 for Rs.4,82,500/- of SB account No.612034 were not signed by her whereas the IO has incorrectly mentioned in his report that the contents of both these documents were confirmed by this state witness which is not acceptable at all in the presence of the documentary record. The version of the IO If the SB-7 and SB-3 of SB account No.612034 were not signed by the depositor, who manipulated the signature cultivated during the analysis of the evidence is not logical and correct for the reason that this is not for the real depositor to intimate the name of the person who prepared the fictitious documents after putting the fake signature. The real depositors are summoned during the enquiry; only to confirm their signatures on the relevant documents. As regards unauthorized permission for the withdrawal of Rs.4,82,500/- on 31.3.2004 from SB account NO.612304, the state witness Shri S.D. Tyagi has certified the contents of order No.297 dated 10.11.2003 for the posting of Shri D.K. Popli, APM, SBHO, KNHO. Undoubtedly the payment order on the said withdrawal form should have been made by the APM, SBHO after his checking but the charges official Shri R.S. Bawa made his initial thereon and thereby facilitated the withdrawal. This has been admitted by Shri R.S. Bawa on his written statement dated 11.06.2004 brought on record during the enquiry as on 13.09.2006.
In view of the above findings the article of charge-I leveled against the Charged Official Shri R.S. Bawa stands proved.
Article of Charge-II:
That charge is that account opening application (SB-3) of saving account No.611919 opened on 6.3.2004 at KNHO in joint name of Kuldeep Kumar Garg and Renu Garg was unauthorisedly initialed by him and further withdrawal of Rs.50000/- on 6.3.2004, of Rs.50000/- on 18.03.2004, of Rs.104000/- on 23.04.2004, of Rs.102000/- on 26.04.2004, of Rs.104000/- on 27.04.2004 were allowed from this saving account by him after putting the initial on the payment order whereas all this work must have been done by Shri D.K. Popli, APM, SBHO, KNHO.
From the record of the inquiry it has been seen that the state witness Shri Kuldeep Kumar Garg and Renu Garg were dropped as they could not be produced during the enquiry by the prosecution. However, the written statement dated 15.10.2004 of the Charged Official made before the ASP Sub Division during the fact finding enquiry has been taken on record on 13.09.2006 after showing to the Charged Official wherein he has clearly admitted that account opening application (SB-3) of SB account No.611919 was initialed by him instead of the AMP, SBHO. Further, it was also admitted by him that the withdrawal vouchers dated 6.3.2004 for Rs.50000/-, dated 18.03.2004 for Rs.50000/-, dated 23.04.2004 for Rs.104000/- and dated 27.04.2004 for Rs.104000/- were initialed by him in the evening of the concerned dates. Moreover, the Charged Official did not examine himself in his own behalf as an opportunity provided under Sub-Rule (17) of Rule 14 of CCS (CCA) Rules, 1965. The admission of the Charged Official is sufficient to prove this article of charge. Hence the findings of the IO of this charge as Not proved is not plausible and this charge totally stands proved in view of the forgoing discussion.
Article of Charge-III:
That IO has represented in his findings that SB-3 of MIS account number 14010, 14011, 14888, 14889, 17786, 17787 were not singed by Shri Kuldeep Aneja (SW-8) as per his deposition dated 17.01.2009 whereas this is absolutely contradictory to his deposition seen by the disciplinary authority. The depositor Shri Kuldeep Aneja and Ashok Aneja have admitted their signature on SB-3 of these MIS accounts during their deposition on 17.01.2009 before the IO this shows the misrepresentation of the facts on the part of the IO. The said depositors had denied their signature on account opening application (SB-3) dated 13.04.2004 in respect of saving account No.612095 opened at KNHO (ex.SD-5), pay in slip dated 13.04.2004 for Rs.100/- of saving account No.612095, withdrawal form (SB-7) dated 23.04.2004 for Rs.92000/-, dated 26.04.2004 for Rs.92000/-, dated 27.04.2004 for Rs.92000/-, dated 28.04.2004 for Rs.98000/-, dated 29.04.2004 Rs.204630/- during the inquiry proceedings taken on 17.01.2009. During the examination in chief of these state witnesses (marked SW-8), the SB-3 of saving account No.612095 and withdrawal forms (SB-7) of above mentioned different states of SB account No.612095 were shown to them but it is a matter of much surprising that these listed documents were not taken on record of the inquiry. Moreover, the facts relating to the denial of signature on SB-3 and SB-7 by the depositor has also not been highlighted in his findings by the IO. The Charged Official Shri R.S. Bawa admitted in his written statement dated 16.10.2004 given before ASP Delhi East-I sub-division that he had put his initial on account opening application (SB-3) in place of APM SBHO of saving account No.612095 and payment order on the withdrawal forms of above mentioned withdrawals of saving account No.612095 was also initialed by him instead of APM SBNO. This statement was taken on record during the inquiry.
In view of these documentary facts on record, the articles of charge-III leveled against Shri R.S. Bawa stands entirely proved.
Article of Charge-IV The IO has simply stated in his findings in respect of this charge that SB-3 of MIS account No.13616, 13557 were related to the depositor Shri Vimal Malhotra whereas the signature on pay in slip of SB account No.612094 was not of the depositor. Further it does not ascertain what aspect the witness desires to put forth in respect of charges leveled against the Charged Officials. Finally he held this charge as Not proved without any reasoning.
As per ledger copy of SB account No.612094 generated through back end by Shri Jagdish Teg project officer Delhi Circle it is undoubtedly clear that entry of deposit for Rs.198475/- on dated 30.04.2004 and of Rs.200090/- on 01.05.2004 were made in computer through date entry module by Shri R.S. Bawa and the contents of this ledger copy were confirmed by him on 26.12.2007 during the enquiry. The Charged Official Shri R.S. Bawa admitted in his written statement dated 16.10.2004 given before ASP Delhi East Ist Sub Division that he had put his initial on SB-3 of SB account No.612094 in place of APM, SBHO. Further he stated that he was on special leave on 01.05.2004 for election duty. This written statement was admitted by him on 13.09.2006 during the inquiry and brought on record by the IO. Having gone through the documentary evidence and circumstantial evidences on record, I come to the finding that the Charged Official Shri R.S. Bawa has overstepped from his jurisdiction by putting his initial on SB-3 of SB account No.612094 and thereby facilitated the opening of said saving account on the basis of fictitious documents. The version of the charged official that he was on special leave on 01.05.2004 is acceptable but the documentary evidence, i.e., the ledger copy generated through the back end and bearing his name cannot be brush aside. As per statement of the Charged Official the SC counter Assistaqnt Shri Vijay Kumar used to bring the vouchers to him for signature in the evening and the same were returned to him after initial/signature. The said Shri R.S. Bawa was on duty on 30.04.2004 and it may be possible that he had turned back to the office in the evening of 01.05.2004, after performing the election duty and made the entry deposit of Rs.200090/- in the computer through data entry module. Moreover, the standard of proof required in a disciplinary case is that of preponderance of probability and not proof beyond reasonable doubt.
In view of the above findings this article of charge is proved.
Article of Charge-V:
The IO has concluded that Smt. Prem Lata w/o Late Shri Dharmapal (SW-6) was agreed and confirmed her deposition 26.09.2008 and that the SB 103 of deposit of Rs.386000/- of dated 08.05.2004 in SB account No.612227 was not signed by her but the confirmation is incomplete, it is the question by whom the SB-103 was signed. This finding of the IO does not cover up the charges leveled against the said Shri R.S. Bawa. Moreover, this is not the task of the real depositor Smt. Prem Lata to produce the person who signed the deposit slip dated 08.05.2004 for Rs.386000/-. Her statement is only limited to deny or admit the signature on deposit slip. The IO has tried to take away the case towards the meaningless direction.
As per ledger copy of SB account No.612227 the deposit entry of Rs.386000/- and the entry of withdrawal for this amount was made on 08.05.2004 in computer through data entry module by Shri R.S. Bawa and the authenticity of this ledger copy generated through back end was confirmed during the entry by Shri Jagdish Teg, project officer, Delhi Circle. Smt. Prem Lata has also denied her signature on SB-3 of saving account No.612227, on deposit slip 08.05.2004 for Rs.386000/- on saving account No.612227 and also on the withdrawal form dated 08.05.2004 for Rs.386000/- of said saving account. No cross examination by DA/CO of this state witness was done. Shri R.S. Bawa stated in his written statement dated 11.06.2004 given before the ASP Delhi East Ist Sub Division and taken on record of the inquiry that he had put his initial on SB-3 of this saving account in place of APM, SBHO. The payment order on the withdrawal form dated 08.05.2004 for Rs.386000/- was initialed by him on presentation before him by the SB counter Assistant Shri Vijay Kumar. This entire act done by him was not under his jurisdiction. This work should have been done by Shri D.K. Popli, APM, SBHO as per orders issued by the Sr.PM, KNHO, Delhi-110051. All these facts prove the doubtful integrity on the part of the Charged Official. In the presence of these documentary evidence and facts on record, the findings of IO to declare this charge as Not proved is totally incorrect. In view of the above facts this article of charge is declared as proved
5. The Applicant made a detailed representation dated Nil against the disagreement note of the Disciplinary Authority. He referred to the findings of the Inquiry Officer and submitted that none of the charges have been proved against him. However, the Disciplinary Authority vide its impugned order dated 23.09.2010 imposed the punishment of removal from service upon the Applicant with immediate effect. The relevant part of the said order reads as under:-
Article of Charge-I:
The plea of the charged official is that the disciplinary authority cannot deny the signature of Smt. Kamla Ajmera on SB-7 of MIS Account Number 13454 for Rs.482500/-, SB-3 of SB A/c No. 612034 and SB-7 of SB Account No. 612034 dated 31.3.04 for Rs.482500/-, in the absence of report of the hand writing expert. Further his version is that it was the duty of the disciplinary authority to investigate who manipulated the signature of depositor. The holder of MIS Account Number 13454 Smt. Kamla Ajmera (SW-5) appeared during the departmental enquiry on 31.7.08 and denied her signature on SB-3 of SB account number 612034 SB-7 dated 31.3.04 for Rs.482500/- in respect of SB Account number 612034 was opened without the introduction of the depositors violating the provisions of departmental rules. The omissions on the part of the charged official were elaborated in the imputation of misconduct or misbehavior (annexure II) enclosed with this office memo No. F-1/Misc./04-05 dated 24.6.05. It is well established from the facts on record that the deposit of Rs.482500/- in SB Account number 612034 was made in computer through DATA ENTRY MODULE by him and the withdrawal for Rs 482500/- from said saving account was unauthorizedly allowed on 31.3.04 by him. The report from hand writing experts in departmental disciplinary proceedings is not mandated as the departmental proceedings are quasi judicial in nature. The provision of Indian Evidence Act and the Criminal Proceedings Code are not followed meticulously in the conduct of the departmental proceedings as in the Courts of Law. The standard of proof required in a disciplinary case is that of preponderance of probability and not proof beyond reasonable doubt. This is not the duty of the Disciplinary Authority to find out the person who had made the forged signature of depositor on SB-3 and SB-7 of SB Account number 612034, such type of investigation is taken up in criminal cases by the police/CBI.
In view of the above discussion, the plea of the charged official do not carry and weight and this article of charge No. I stands proved.
Article of Charge II:
The charged official has stated in his written representation that he could not find out the designated capacity in which he had initiated the SB-3 of SB account Number 611919 and allowed withdrawal of Rs.50000/- on 6.3.04, Rs. 50000/- on 18.3.04, Rs.104000/- on 23.04.04, Rs.102000/- on 26.4.04, Rs. 104000/- on 27.4.04. It was already stated in the article II of Annexure II enclosed with this office memo dated 24.6.05 that the payment order of said withdrawal from SB Account number 611919 was initiated by him unauthorisedly in connivance with Shri Vijay Kumar SB Asstt. whereas it was the duty of Shri D.K. Popli APM. SBHO as per standing orders issued by the Sr. Postmaster, Krishna Nagar HO, Delhi-51. The said Shri R.S. Bawa is overshooting by saying this. Further the admission of the charged official in his written statement dated 15.10.04 made before the ASP Sub division and taken on record during the enquiry proceedings on 13.9.06 that SB-3 of SB Account No. 611919 was initiated by him instead of APM, SBHO and withdrawal vouchers of aforesaid withdrawal were initiated by him. Moreover the charged official did not examine himself in his own behalf as an opportunity provided under Rule 14 of CCS (CCA) Rules 165. This admission without any objection during the departmental enquiry is sufficient to prove this article of charge. This charge thus stands proved on these grounds.
Article of Charge III:
The version put forth in respect of this article of charge in his written representation by the charged official is far away from the charges contained in article of charge number III of Annexure II enclosed with this office memorandum of even number dated 24.6.05. Therefore the same cannot be discussed and this article of charge stands proved for the reasons mentioned in the Disagreement Note by the disciplinary authority.
Article of Charge IV:
The said Shri R.S. Bawa has stated regarding this charge that he was ordered to perform election duty o the day of transactions made in MIS Account No. 13616, 13557 and SB account number 612094 then how he can sign/initial the voucher and made entry in ledger by computer.
The SB account number 612094 was opened on 13.4.04 and on that day he was on duty and account opening application (SB-3) was undoubtedly initiated in placed of signature of postmaster by him unauthorisedly. The deposit entry of Rs.198475/- in SB Account number 612094 was made in computer on 30.4.04 through Data Entry Module by him as per facts on record. The deposit entry of Rs. 200090/- in the said SB account was also made on 1.5.04 in computer through Data Entry Module by Shri R.S. Bawa as per ledger copy of said SB Account No. 612094 generated through back end by Shri Jagdish Teg, Project Officer, Delhi Circle. As per record he was on special leave on 1.5.04 for election duty but the documentary evidence i.e. ledger copy generated through back end is the key document in providing this charge. Further the said Shri R.S. Bawa also overstepped beyond his competency by putting his initial on SB-3 of SB Account number 612094 and thereby facilitated the opening of SB account on the basis of fictitious documents. Moreover, it has been observed in his case by the disciplinary authority that he was in the habit of making the transactions in computer through Data Entry Module to which he was not competent at all especially in respect of SB accounts standing at Krishna Nagar HO. Therefore this charge stands proved.
Article of charge V:
The submission brought in his representation in respect of this charge is similar to article of charge No.I. Most of the submission is not clear and also incomplete. No one can conclude what the writer wants to say. The disciplinary authority had already gone through the documents and facts on record before making his findings in the Disagreement Note served to the charged official. Nothing new has been generated in his representation by the charged official and findings in respect of this article of charge stands proved.
Order I, G.R. Bharde, Sr. Supdt. of Post Offices, Delhi East Division, Delhi-110051 in exercise of the powers vested in me vide Rule 12 of CCS (CCA) Rules, 1965 hereby order the removal of Shri R.S. Bawa from service with immediate effect.
6. The Applicant made appeal against the said order but the same was dismissed by the Appellate Authority vide its order dated 23.01.2013. The relevant part of the said order reads as under:-
I have gone through the entire case through the facts of the case, the contention of the appellant and the comments of the SSPOs and found that:-
1. Reasons of disagreement of disciplinary authority with the finding of the IO have been discussed in the disagreement note and the contention of the charged official through the defence representation have also been discussed in the punishment order by the Disciplinary Authority. I find that the Disciplinary Authority has issued a reasoned and well thought out disagreement note and has clearly recorded the justification of his assessment and I agree with the findings of the Disciplinary Authority.
2. The past good or bad conduct does not influence the decision of the present misconduct.
3. It is correct that the work of SBHO was entrusted to Shri D.K. Popli but there is documentary evidence that vouchers were initialed/signed by the charged official in place of Shri D.K. Popli and these facts have also been admitted by the charged official vide his written statement.
4. SB A/c No.612034 was opened without taking the introduction of the depositor violating the provisions explained in departmental rules. The withdrawal of Rs.482500/- from the said SB A/c was also unauthorizedly allowed on 31.3.2004 by the charged official.
5. It is the duty of the official to get his password discontinued/changed after changing his duty from the respective seat to avoid any misuse.
6. The findings of the IO are advisory to the Disciplinary Authority who can issue disagreement on the basis of his own conclusion on the basis of assessment of the documentary evidence forming part of the record of the enquiries.
7. The offence is established beyond doubt. Punishment of removal from service found justified in accordance with the gravity of the offence.
Taking into the consideration the facts on record, the appeal as discussed above and gravity of offence, I find no reason to intercede on behalf of the appellant. Thus the appeal is rejected.
7. The Applicant has challenged the aforesaid order in the disciplinary proceedings on the ground that when the Inquiry Officer has submitted a well founded report holding that the Articles of Charges leveled against him have not been proved, the Disciplinary Authority could not have arbitrarily held that the charges have been proved. In this regard he has referred to a judgment of the Apex Court in the case of Jaibir Singh, Ex.HC/GD Vs. Director General, CISF 182 (2011) DLT 430 DB wherein it has been held that when there was no justification with Disciplinary Authority to disagree with well considered findings of the Inquiry Officer that the charges having not been proved and the petitioner has been exonerated on the basis of the evidence on record, the Disciplinary Authority could not have interfered with such report without any valid justification. Accordingly, the High Court held that the imposition of the penalty of compulsory retirement was patently perverse and the same was quashed. The relevant part of the said judgment reads as under:-
18. In this view of the matter, we find that there was no justification whatsoever with the Disciplinary Authority to have disagreed with the well considered findings of the Inquiry Officer of the charges having been not proved. It is not the stand of the Disciplinary Authority or the Appellate Authority that the findings of the Inquiry Officer are contrary to the evidence on record. Rather we find that the evidence on record clearly exonerates the petitioner and the Inquiry Officers report is well founded and has been unduly interfered with by the Disciplinary Authority without any valid justification. Consequently, we hold that the final order of 15.12.1997 Annexure P-1 imposing penalty of compulsory retirement as well as the Appellate order of 13.5.1998 upholding it, are patently perverse and are accordingly quashed.
8. He has also stated that a Circle Level Investigation had already been held on the fraudulent premature closure of different MIA accounts at Krishna Nagar Head Post Office and non-accounting of the amount of monthly deposits in RD Accounts, Pass Books in Post Office records by Shri Rajiv Arya, Shri Sanjay Arya, Smt. Sarika Arya and Smt. Geetika Bala, all SAS and MPKBY agents and members of one family. According to the Report submitted on 04.09.2007 the fraud in respect of MIS A/cs has taken place due to the negligence of the depositors and the department had no liability in the case. According to the Applicant when the department itself has disowned its liability how could they make the Applicant who is their employee liable. In this regard he has referred to para 23 of the Report of the Inquiry Officer wherein the IO has explained the modus operandi of the persons who were involved in the fraud and it reads as under:-
23. MODUS OPERANDI
(i) Shri Rajiv Arya, SAS Agent, his wife Smt. Sarika Arya MPKBY Agent, Shri Sanjay Arya SAS Agent and his wife Smt. Geeta Bala MPKBY Agent, all family members used to get MIS accounts opened in KNHO. In the names of sames, R/D A/cs were opened for depositing the monthly interest. For the purpose of crediting the monthly interest of MIS A/c in their RD A/cs, they got the depositors to give blank withdrawal forms duly signed at the application portion and used these forms to collect the monthly interest as authorized messenger of the depositors.
(ii) The agents opened SB A/cs in the name of the depositors by introducing themselves.
(iii) Shir Rajiv Arya, SAS Agent misused the withdrawal forms, which were signed by the depositors for MIS monthly interest and got premature closure of MIS A/c.
(iv) To avoid detection of fraud, payments of premature closure of MIS A/cs was transferred by the agent themselves in the SB A/cs opened and took the payments of withdrawal in cash either on the same date or on the subsequent dates.
(v) In case of premature clousre of MIS A/c No.10902 on 31.05.2003, Shri Rajiv Arya got the amount transferred to his own individual SB A/c No.607697 and thereafter withdrew the amount. In case of MIS A/c No.11780, he had taken the payment in cash instead of cheque.
(vi) Shri Rajiv Arya and Shri Sanjay Arya, SAS Agents (both were allowed to transact the business at the post office unauthorisedly on behalf of their wives Shri Sarika Arya and Smt. Geeta Bala) used to made the deposit entry in the RD passbooks themselves and apparently got passbooks date stamped, which were not included in the RD schedules.
(vii) They showed these RD passbooks to their respective depositors, with bogus deposit entries to convince them that the monthly interest withdrawn by them from MIS A/cs are being credited in their R/D A/cs.
(viii)Shri Rajiv Arya has obtained cheques from Smt. Navita Ajmera, the depositor of RD A/c No.396617 in his personal name and encashed them from her bank account but did not deposit the amount in her RD A/c.
9. He has also referred to the paras of the report dealing with the statement of the report and police action which would show that the Applicant was totally innocent. The said paras of the report reads as under:-
SETTLEMENT OF CLAIMS One claim of Rs.4000/- in r/o RA A/c No.387672 has been settled in this case so far. As far as claims in respect of MIS accounts are concerned, it is concluded that the depositor had left the pass books of their MIS and RD A/cs in the custody of the agents. They have given blank SB-7 forms duly signed to the agent in respect of MIS A/cs, which have been misused by the agent. The frauds in respect of MIS A/cs have taken place due to the negligence of the depositor. Therefore, the depositors are the party to the fraud, and the original pass books are not produced by them. Therefore, the department has no liability in respect of fraud in MIS A/cs. However, justified RD claims, should be settled by the SSP, which are within his powers and sent the cases beyond his financial powers to the Circle office.
31. POLICE ACTION FIR No.333 dated 15.07.2004 u/s 406, 409, 420, 468, 471 & 120B of IPC at Anand Vihar PS was registered on the complaint of Shri Kuldeep Kumar Garg and Smt. Renu Garg; FIR No.359 dated 24.07.2004 at PS Anand Vihar was registered on the complaint of Shri P.L. Ajmera; FIR No.376/04 dated 1.8.2004 at PS Anand Vihar was registered on the complaint of Shri Vimal Malhotra and FIR No.236 dated 26.7.2004 at PS Welcome was registered on the complaint of Shri Dharm Pal Sharma (Copies at Annexure O).
Shri Rajiv Arya SAS Agent and Shri Vijay Kumar P.A., are reportedly in the judicial custody and Shri Sanjay Arya, Smt. Sarika Arya and Smt. Geeta Bala Arya are reportedly granted bail by the court. SSP, Delhi Eat Dn. Will report the matter to police from departmental side and also keep liaison with the police and assist them for successful conviction of the accused.
10. The Applicant has also stated that the charge against him was contrary to the findings in the Report of the Circle Level Investigation. In this regard he has made a comparative statement of both Article I & IV of the Charges vis-`-vis the findings of the Circle Level Investigation Report which are reproduced as under:-
Charge Memo dated 24.06.2005 Circle Level Investigation Report Article-II That during the aforesaid period and while functioning in the aforesaid capacity the said Shri R.S. Bawa had allegedly allowed the opening of savings bank account No.611919 at KNHO on 6.3.2004 in joint names of Kuldeep Kumar Gard and Renu Garg after putting his initial unauthorisedly in place of signature of Post Master on account opening application (SB-3) placed before him by the SB Assistant Shri Vijay Kumar without scrutinizing the same at all ..the said Shri R.S. Bawa is alleged to have allowed. The opening of S/B A/C No.612904 unauthorizedly in KNHO on 13.4.2004 in joint names of Vimal Malhotra and Annu Malhotra r/oon the basis of fictitious A/c Opening application (SB-3) and pay in slip (SB-103).. Para 4.1.4 SB A/c No.611919 was opened in the joint names of Shri Kuldeep Kumar & Smt. Renu Garg on 6.3.2004 with the initial deposit of Rs.100/- in cash at KNHO by Shri Vijay Kumar. This account was opened on the introduction of Shri Rajeev Arya, SA S agent holding KNHO SB A/c No.607697. As stated in para 4.1.3 above, this A/c was also opened by Shri Vijay Kumar .From this it is concluded that this SB A/c was opened with mala fide intention by Shri Rajiv Arya, SAS Agent in connivance with Shri Vijay Kumar.
5.1 Rs.1,98,475 was transferred to SB A/c 612094 without any written request/application of depositor in violation of the provisions of Rule 31 (11) of POED manual Vol.1 by Shri Sanjeev Sharma, MIS counter PA the payment order was complete by Shri Tarun Bhardwaj, MIS ledger Asst. instead of Shri Sanjiv Sharma MIS counter P.A. initialled by Shri D.K. Popli, APM (SB). The withdrawal voucher bears the signature of Shri Vimal Malhotra and same appears to tally with the specimen signature available on SB-3card of MIS a/c in question..
11. The learned counsel for the Applicant has also submitted that the Disciplinary Authority has shown discrimination in its decision to impose penalties upon the officers alleged to have been involved in this case. He has submitted that while Shri Vijay Kumar, Postal Asstant, Shri Sunder Lal, Postal Assistant and the Applicant were identified as the principal offenders in the Circle Level Investigation, the Respondents have imposed the punishment of removal from service only on Shri Vijay Kumar and the Applicant but in the case of Shri Sunderlal, the punishment was restricted to recovery of Rs.40,000/- to be paid in eight monthly instalments and reduction of his pay by two stages from Rs.14200/- to Rs.13370/- for a further period of 5 years. According to him, no such discrimination could have been made. In this regard he has relied upon the following judgments:-
(i) The Apex Courts judgment in the case of Kailash Nath Gupta Vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and Others 2003 (3) ATJ 227. The relevant part of the said judgment reads as under:-
11. In the background or what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject matter of his removal from service. The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the bank (which he quantifies at about Rs.46,000/-) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service.
(ii) The Apex Court in the case of Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ (SC) 120. The relevant part of the said judgment reads as under:-
12. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.
XXX XXX XXX
14. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re- instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.
(iii) The judgment of the Honble High Court of Delhi in W.P. ( C) Wazir Singh Mour Vs. U.O.I. decided on 20.02.2013. The relevant part of the said judgment reads as under:-
10. Service rendered by the delinquent employee has to be taken into account for the reason pension is not a bounty. It is earned by the dint of labour. Not only would the Government servant be entitled to the pension but upon his death the family would receive family pension. The right and interest of the family has to be kept in mind.
XXX XXX XXX
13. Such penalty should ordinarily be inflicted for wrongs which do not have a moral turpitude but the wrong is of a kind where not retaining Government servant in service would further a public interest and at the same time the Government servant receives the pension and gratuity for the work done. For offences which lack moral turpitude a compulsory retirement would be the best suitable penalty to be levied if service record is other wise good and long service is rendered.
(iv) The judgment of the Central Administrative Tribunal, Principal Bench in O.A. No.2210/1996 - G.P. Sewalia Vs. U.O.I. & Others decided on 27.08.2008. The relevant part of the said order reads as under:-
9. In the context of our observations as made above, the question that arises for determination is as to whether assuming that the applicant as CMD of DSCFDCL invested money on fluctuating rate of interest instead of fixed rate, by which the yield ultimately became lesser, and further that he deposited the amount for a year and not less than a year, did he commit any misconduct? In our considered view, even if both the allegations, as mentioned above, were to be held proved, it was not a case of misconduct at all. At the most it would be a case of some inefficiency, for which there are adequate measures to be adopted. Such acts that the applicant is said to have committed may, in other words, at the most, result into recording of some remarks as may be deemed appropriate in his ACRs, but the same, in any case, cannot be made subject matter of an enquiry and punishment major or minor. The approach of the respondents appears to be vitiated in wrongly thinking and concluding that by depositing the amount for a year and for fluctuating rate of interest the applicant indulged in misconduct. The explanation furnished by the applicant apart, we are of the considered view that the applicant for alleged acts done by him, ought not to have been proceeded departmentally.
10. The Honble Supreme Court in Union of India & Others v J.Ahmed [(1979) 2 SCC 286] held that deficiencies in personal character or personal ability would not constitute misconduct for taking disciplinary proceedings. It was further held that negligence in performance of duty or inefficiency in discharge of duty are not acts of commission or omission under rule 4 of the Discipline and Appeal Rules. The facts of the case aforesaid reveal that the respondent, an IAS officer, was posted as Deputy Commissioner and District Magistrate in Nowgong District, Assam, when in June 1960 there were large scale disturbances leading to considerable damage to property. He was suspended after preliminary enquiry and the following charges came to be framed against him:
(i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed;
(ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and coordinate co-operations with the police to restore Law and Order;
(iii) Did not personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal control of the situation and to exercise necessary supervision;
(iv) Did not keep Government informed of the actual picture and extent of the disturbances;
(v) Showed complete inaptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete break down of Law and Order in Nowgong town as well as the rural areas of Nowgong District.
Thus you proved yourself completely unfit to hold any responsible position.
While commenting upon the charges as framed against the respondent, it was observed that the same related to his efficiency as an officer, and besides negligence the charges referred to lack of qualities of leadership, foresight, firmness and indecisiveness, but competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge functions attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under rules. It is relevant to mention that the Honble Supreme Court was dealing with rule 4 of the Discipline and Appeal Rules which were to be understood in the context of All India Services (Conduct) Rules, 1954. Rule 3 of the Rules of 1954 required maintenance of, at all times, absolute integrity and devotion to duty. It was held that lack of integrity, if proved, would undoubtedly entail penalty, and failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty, and that the expression devotion to duty, had been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. An act or omission which runs counter to the expected code of conduct was also held to constitute misconduct. In a recent decision in the matter of Inspector Prem Chand v Government of NCT of Delhi & Others [(2007) 4 SCC 566], after discussing the case law it has been held that error of judgment or negligence simpliciter would not be misconduct.
12. The Respondents have filed their reply. They have submitted that applicant had been working as officiating Assistant Postmaster (SBSO) at Krishna Nagar, Head Post Office during March, 2004 to May, 2004. During the said period, he facilitated the opening of some of the saving accounts at Krishna Nagar at Head Post Office on fictitious account opening application without taking the introduction of the depositors or on the introduction of Shri Rajiv Arya, SAS agent and without scrutiny of the account opening application. The deposit of amount shown against saving account No.612034, 612094 and 612227 were also made by him in computer through Data Entry Modules. Such deposits were also in excess of the prescribed limits of maximum balance of Rs.2 lakhs in joint savings accounts in some cases. Further the withdrawals shown below were also unauthorisedly allowed by him after initialing the payment order. Those accounts were as under:-
S.No. S.B. Account No. Date of opening Name of depositors Subsequent despots made in computer through Data Entry Modules Date of Withdrawal Amount of withdrawal (in Rs)
1. 612034 31.03.04 Kamla Ajmera & P.L. Ajmera Rs.482500 dated 31.03.04 31.03.04 482500.00
2. 611919 6.3.04 Kuldeep Kumar Garg & Renu Garg 06.03.04 18.03.04 23.04.04 26.04.04 27.04.04. 50000.00 50000.00 104000.00 102000.00 104000.00
3. 612095 13.04.04 Kuldeep Aneja & Ashoka Aneja 23.04.04 26.04.04 27.04.04 28.04.04 29.04.04 92000.00 92000.00 92000.00 98000.00 204360.00
4. 612094 13.04.04 Vimal Malhotra & Annu Malhotra Rs.198475.00 Dt. 30.4.04 Rs.200090.00 Dt.1.5.04
5. 612227 8.5.04 Prem Lata & Dharam Pal Sharma Rs.38600.00 Dt.8.5.04 8.5.04 386000.00
13. They have further stated that the Applicant, Officiating Assistant Postmaster (SBSO Group) was found to be a principal offender since he was involved in making the entry of deposits in excess of the prescribed limit of maximum balance of Rs.200000.00 in computer through Data Entry Module and in signing the documents relating to aforesaid saving accounts opened on the basis of fictitious documents and payment orders on the withdrawal forms concerning with the fraudulent withdrawals. He was facilitating the fraudulent transactions. As per standing orders Shri D.K. Popli, Assistant Post Master (Saving Bank counter) was authorized for checking and signing the SB documents during that period but the Applicant initialed/signed the vouchers in place of Shri D.K. Popli and those facts have also been admitted by the Charged Official vide his written statements. Thereafter, disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 against Applicant was initiated vide memo dated 24.06.2005. Enquiry report from the IO was received on 04.03.2010 holding the charges as not proved. Not agreeing with the findings of the IO, a copy of enquiry report along with the disagreement note holding all the charges as proved by a reasoned order was forwarded to the Applicant for submission of his written representation. The written representation from the Applicant was received on 30.07.2010. The Disciplinary Authority after taking into consideration the facts of the case, representation of the Applicant and other documentary evidences adduced during the course of enquiry awarded the major penalty of removal from service vide memo dated 23.09.2010. Thereafter, Applicant preferred appeal against the said order to the Director Postal Services (O), Appellate Authority on 21.10.2010. The Appellate Authority after taking into consideration the facts on record, the appeal and the gravity of offence rejected the same by issuing a speaking and reasoned order vide Memo No.Staff/H-1/04/P/2011 dated 23.01.2013. No revision petition was preferred by the Applicant.
14. They have also stated that four FIR at Police Station, Anand Vihar and one FIR at Police Station Welcome, Delhi were registered by the SHO on the written complaints of different five account holders. Prosecution sanction was granted for taking cognizance of the case against the Applicant also by the Appointing Authority on the written requisition of police in some cases.
15. They have also denied the contention of the Applicant that the Disciplinary Authority has not maintained the proportionately of punishment vis-a-vis all other co-delinquents. According to them, the Articles of Charges leveled against all of them were not the same and the delinquents were punished according to the gravity of the misconduct proved against them during the enquiry proceedings.
16. We have heard the learned counsel for the Applicant Shri Deepak Verma with Shri R.S. Sharma and the learned counsel for the Respondents Shri B.K. Berera. Admittedly the disciplinary proceedings have been initiated against the Applicant on the recommendation contained in the Circle Level Investigation in the fraudulent premature closure of different MIS accounts standing at Krishna Nagar Post Office and in non-accounting of the amount of monthly deposits shown in different RD accounts, Pass Books in Post office record by Shri Raveej Arya, Shri Sanjay Arya, Smt. Sarika Arya and Smt. Geeta Bala, all SAS and MPKBY Agents and Member of the same family. Applicant was one of the persons identified during the investigation as the principal offender. The specific charge against him in a nutshell was that while he was working while working as APM (SBSO) in Krishna Nagar HPO Delhi-110051 during the period from 01.03.2004 to 30.04.2004 was alleged to have opened a SB A/c No.612034 at KNHO on 31.3.2004 without the introduction of depositors after putting his initial unautorizedly in place of signature of Postmaster on fictitious account opening application SB-3 & similar procedure was adopted in opening SB A/c No.611919. He also alleged to have allowed the withdrawal by making his sign on payment order in place of Shri D.K. Popli APM (SB) KNHO. Thirdly, he allowed the deposits beyond the prescribed limited in SB A/c. A very detailed enquiry was conducted in the matter by the Inquiry Officer. The Inquiry Officer considered the depositions of all the prosecution witnesses but found that they did not give any evidence against the Applicant to hold him guilty. Rather, the Inquiry Officer held that the statements of the witnesses do not reflect that the SB-3 was signed by the Applicant. He has, therefore, held that the charges framed against the Applicant was not proved. But the Disciplinary Authority disagreed with the aforesaid findings of the Inquiry Officer and held that all the Article of Charges against the Applicant were either proved or totally stands proved or entirely proved.
17. The question for consideration is whether the Disciplinary Authority was empowered to arrive at such categorical findings entirely contrary to the findings of the Inquiry Officer. Rule 15 (2) of the CCS (CCA) Rules, 1965 deals with such a situation and it reads as under:-
15(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
A perusal of the disagreement note of the Disciplinary Authority shows that it is not a tentative one. In fact, the disagreement note of the Disciplinary Authority is yet another enquiry report having its own definite findings. According to Rule 15 (2) ibid, at this stage, the Disciplinary Authority can only give its own tentative reasons for disagreement with the findings of the inquiring authority and not to render his own findings on the Article of Charges. If the Disciplinary Authority has already arrived at this conclusions, the very purpose of giving an opportunity to the Government servant to make his representation against its disagreement note renders meaningless and render such representation infructuous. Therefore, the aforesaid disagreement note of the Disciplinary Authority is not in conformity with the mandate of Rule 15 (2) ibid.
18. The Apex Court in the case of Punjab National Bank Vs. Kunj Behari Misra (1998) 7 SCC 84, wherein it has been held as under:-
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
19. Same was reiterated in Yoginath D. Begde vs. State of Maharashtra (1999) 7 SCC 739. The relevant part of the said judgment is as under:-
29.But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
20. The Apex Court in the case of Lav. Nigam vs. Chairman and Managing Director, I.T.I. and Ors.( 2006 SCC (L&S) 835) again held as under:-
If a Disciplinary Authority differs with the findings of inquiry officer, he is bound to give a notice setting-out of his conclusion to the appellant. It is only after hearing the appellant, the Disciplinary Authority will arrive at a finding of guilt. If punishment is proposed another notice relating to, it is to be issued.
21. Further we observe that the Appellate Authority did not apply its independent mind while rejecting the appeal of the Applicant. It is evident from its order that it has taken into consideration the comments of the Disciplinary Authority which is an extraneous material for which the Applicant has no notice. Consideration of such comments prejudicial to the interest of the Applicant is against the principles of natural justice. The Appellate Authority being a quasi-judicial authority is expected to consider the appeal uninfluenced by any extraneous consideration.
22. In view of the above position, impugned Disagreement Note of the Disciplinary Authority dated 08.07.2010, its subsequent order dated 23.09.2010 imposing the penalty of removal from service upon the Applicant and the Appellate Authoritys order dated 23.01.2013 are quashed and set aside. Consequently, the Applicant shall be deemed to be reinstated in service from the date he was removed from service. However, the Disciplinary Authority is at liberty to issue a fresh disagreement note to the Applicant strictly in accordance with the provisions contained in Rule 15(2) of the CCS (CCA) Rules, 1965. In that case, the Applicant shall be under deemed suspension from the date of his removal from service. We also make it clear that we have not gone into any other aspects of the case and they are left open for adjudication, if need arises in future.
23. The OA is accordingly allowed. No costs.
(P.K. BASU) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh