Central Administrative Tribunal - Cuttack
G C Mohanty vs D/O Post on 30 August, 2022
1 O.A.No. 260/00253 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/000253 of 2018
Reserved on 16.08.2022 Pronounced on 30.08.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Sri Golak Chandra Mohanty aged about 63 years, son of
Late Braja Kishore Mohanty, Vill. Astapraharajpuur, PO.
Mirichandpur, P.S./Dist. Jajpur and retired on
superannuation from Postal service as Deputy Manager,
Postal Printing Press, Bhubaneswar.
.....Applicant
For the Applicant : Mr. S.K.Ojha, Counsel
-Versus-
1. Union of India represented through the Secretary to
Govt. of India, Ministry of Communications & IT,
Department of Posts, Dak Bhawan, Sansad Marg, New
Delhi-110001.
2. The Chief Postmaster General, Odisha Circle,
Bhubaneswar, At/Po-Bhubaneswar, Dist. Khurda, PIN-
751001.
..... Respondents
For the Respondents: Mrs. S.B.Das, Counsel
2 O.A.No. 260/00253 of 2018
ORDER
Swarup Kumar Mishra, Member (J):
The applicant Sri Golak Chandra Mohanty has filed this O.A. seeking inter alia to quash the charge memo under Annexure-A/3 dated 07.11.2014, order of the Disciplinary Authority (DA in short) under Annexure-A/8 dated 17.12.2014 imposing punishment of reduction of pay by one stage for a period of one year without cumulative effect and recovery of Rs. 50,000/- from his pay @ 5000/- per month and the order of Appellate Authority (AA in short) under Annexure-A/10 dated 05.02.2018 rejecting his appeal with a further prayer to refund the recovered amount with 9% interest per annum. The sum and substance of the ground based on which he has prayed the relief is that the charge sheet is vague without any supportive documents and was issued intentionally and purposefully after six years. The DA imposed the punishment without considering the materials and the rules in its proper perspective and imposed the punishment by bringing into extraneous things which were not part and parcel of the charge sheet. It has also been stated that the applicant has been charge sheeted and punishment was imposed for not his direct involvement in the offence but for contributory negligence.
2. Respondents have filed their counter denying the stand point taken by the applicant in support of the relief and precisely stating that while the 3 O.A.No. 260/00253 of 2018 applicant was working as SPOs, Balasore, a fraud to the tune of Rs. 5,36,267/- was committed by the then SPM, Rajnilagiri SO, Anadi Charan Das, which came in fore on 13.07.2009. The amount of fraud committed by the official being huge even exceeding the monetary limit of SPOs himself, an FIR was lodged. The applicant did not take any step to inquire into the case personally and report the case to police on 14.07.2009 or immediately thereafter along with a report of inquiry or inventory of loss prepared. The IP, Rajnilagiri Sub- Division reported the case to IIC, Nilagiri PS on 15.10.2009 nearly after 3 months of the fraud without encosing a preliminary inquiry report for which the FIR was not accepted. To make further delay in investigation, the applicant referred the case to CO on 21.01.2010, i.e. after six months, seeking a permission from the CPMG, Odisha Circle, office to report the case to CBI or not even through he was competent to lodge FIR at local police sation. Until it was refused by CBI to register the case at their end, the applicant neither supplied a copy of preliminary inquiry report to IP, Rajnilagiri nor did he keep a watch over its submission on 03.08.2010 to Nilagiri OPS by IP, Jagnilagiri Sub-Division. It has further been stated that had the applicant taken immediate steps to examine Anadi Charan Das on 14.07.2009 and lodged FIR personally at local PS along with the inventory of loss amount on the day itself, the misappropriation to the extent of Rs. 5,36,267/- could have been 4 O.A.No. 260/00253 of 2018 recovered from the said Sri A.C.Das through police action. According to the respondents, due opportunity was granted to the applicant through memorandum of charge under Rule 16 of CCS(CCA) Rules, 1965 to defend his case, the applicant submitted his explanation to the charge sheet, the DA taking into consideration all facts of the matter and rules imposed the punishment which was also duly upheld by the AA in well reasoned and speaking order. It has been stated that it cannot be said that applicant was not at fault and therefore, for the omission and commission committed by the other employee he should not have been visited with the punishment. Accordingly, respondents have prayed for dismissal of this O.A.
3. The applicant has filed rejoinder in which it has been stated that the applicant was not promoted and posted as SPO Balasore Division on regular basis. However, the applicant took necessary steps when the fraud was detected including circle level investigation. It has been alleged that be that as it may fact remains that the applicant has been visited with the punishment for contributory negligence due to the fraud committed by another employee, which is not sustainable as held by this Tribunal in OA No. 103/2015 and, therefore, the present case being one and the same, the impugned orders are liable to be quashed. The respondents have also filed reply to the rejoinder denying the factual matrix stated by the applicant in his rejoinder. 5 O.A.No. 260/00253 of 2018
4. The applicant's stand is that the disciplinary proceedings initiated against the applicant is based on no evidence, the Disciplinary Authority imposed the punishment without due application of mind and that the Appellate Authority upheld the order of the Disciplinary Authority without giving due/proper consideration to the true fact of the matter as the applicant had discharged his onerous duty of making inquiry in accordance with the procedure provided under the rules and that imposition of punishment as a measure of subsidiary offender is against the decision of this Tribunal in O.A. 103/2015, (Khageswar Mohanta Vs UOI & Ors) disposed of on 28.06.2017. Hence, it is submitted that there being injustice caused to the applicant in the decision making process of the matter, the applicant is entitled to the relief claimed in this O.A.
5. On the other hand, Ld. Counsel appearing for the respondents submitted that from the records and arguments advanced by the Ld. Counsel for the applicant, it transpires that the applicant desires this Tribunal to go into the merit of the matter and come to the finding that the initiation of proceedings culminating with imposition of punishment is bad in law, which is not permissible as held by the Hon'ble Apex Court, various High Courts as also this Bench of the Tribunal in very many cases in past. At the cost of repetition, it 6 O.A.No. 260/00253 of 2018 was contended that charge sheet was served on the applicant under Rule 16 ibid for omission and commission in discharging duties by the applicant with due diligence. In terms of the rules, in the matter of proceeding under Rule 16, the procedure prescribed to be followed in Rule 14 proceedings is not mandated unless specifically requested by the delinquent against whom Rule 16 proceedings has been initiated. Although, opportunity was available for the applicant to demand for regular inquiry, he did not exercise the said opportunity. He submitted reply to the charge sheet. The points raised by the applicant before this Tribunal were also raised before the Disciplinary Authority in the reply submitted by the applicant. The Disciplinary Authority took note of the same and in a reasoned order held the applicant guilty and imposed the punishment which was also upheld by the Appellate Authority. Therefore, the stand taken by the applicant insofar as the merit of the matter is misnomer. Further, it has been contended by him that the applicant has been opposing the present punishment imposed on him although while the applicant during his incumbency of SPO as Disciplinary Authority initiated and imposed punishment for similar offence committed by the employees concerned. Hence, he has prayed for dismissal of this O.A. 7 O.A.No. 260/00253 of 2018
6. It is seen that the applicant has been charge sheeted under Rule 16 of the CCS(CCA) Rules, 1965 not for committing any fraud or misappropriation by himself but on the allegation that for his failure to timely report the matter, the SPM has misappropriated the fund, which could not be recovered from him and immediate investigation into the case by the applicant could have prevented such misappropriation. It is submitted that the principle offender being the custodian of the cash and stamp he has absconded taking the cash of Rs. 5,36,267/- from 13.07.2009. In the charge memo it has been admitted that the amount was huge, therefore, the inquiry is to be made by the Circle Office level which was conducted on 08.05.2012, i.e. after three years. Even the FIR lodged by the Inspector immediately on 13.07.2009, the same was not accepted by the IO in absence of any inquiry report. However, after much persuasion, the FIR was accepted by the Police. The above facts are not disputed by the respondents.
7. It is the specific case of the applicant that the Disciplinary Authority imposed the punishment without any evidence and had the Disciplinary Authority considered all the points raised by him in his defence, the Disciplinary Authority would not have come to such a conclusion. Be that as it may, the Hon'ble Supreme Court while dealing with a matter of Rule 16 of CCS 8 O.A.No. 260/00253 of 2018 (CCA) Rules, 1965 in the case of O.K.Bhardwaj Vs. UOI & Ors., 2002 SCC(L&S) 188, was pleased to hold as under:
"Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with"
In the case of Uday Shankar Das Vs. UOI in OA 436/2001, who was imposed with the minor penalty without inquiry, by applying the decision of Hon'ble Apex in the case of O.K.Bhardwaj (supra) this Tribunal quashed the punishment vide order dated 12.03.2003, which was also upheld by the Hon'ble High Court of Orissa.
8. It cannot be disputed that the allegation against the applicant is factual which was also denied by the applicant in his defence before the Disciplinary Authority and the Disciplinary Authority, in view of the law stated above, ought to have called for a regular inquiry instead of imposing the punishment without inquiry. Thus, this Tribunal is of the opinion that the punishment imposed by the Disciplinary Authority which was upheld by the Appellate Authority is in violation of the principle of natural justice and law discussed above. Similar matter came up and decided by this Tribunal in O.A. 103/2015, 9 O.A.No. 260/00253 of 2018 (Khageswar Mohanta Vs UOI & Ors) disposed of on 28.06.2017 and O.A. No. 260/00338 of 2018 (Manmohan Mohapatra) decided on 25.05.2022 wherein this Tribunal quashed the punishment imposed on the said applicants for the offence committed by another employee. Hence, by applying the aforesaid ratio and keeping in mind the law laid down in the case of O.K.Bhardwaj (supra), the impugned order of the Disciplinary Authority and Appellate Authority are hereby quashed. Normally, the matter should have been remitted back to the Disciplinary Authority for a detailed inquiry but as it has been given to understand that the applicant has in the meantime retired from service and this being a proceeding under Rule 16 where major penalty for reduction or curtailment from pension is not permissible, this Tribunal refrain from doing so. In view of the above, the respondents are directed to take consequential action within a period of 90 days from the date of receipt of a copy of this order.
9. In the result, the O.A. stands allowed by leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS