Central Administrative Tribunal - Allahabad
B.R. Verma vs Union Of India Through Secretary ... on 14 September, 2011
(Open Court) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 14th day of September, 2011 Present: HONBLE MR. SANJEEV KAUSHIK, MEMBER- J ORIGINAL APPLICATION NO. 496 of 2008 B.R. Verma, aged about 61 years, Son of Shri Nand Lal Verma, R/o Q. No. II/B-15, P&T Colony, Shanti Nagar, Cantt, Kanpur-4. Applicant. V E R S U S 1. Union of India through Secretary Ministry of Communications, Department of Post India, North Block, Parliament Street, New Delhi-11. 2. The Director General, Post & Telegraphs, Dak Bhawan, Parliament Street, New Delhi-11. 3. The Director of Postal Service, office of the Post Master General, Kanpur Region, Kanpur. 4. The Senior Supdt. Of Post Offices, Kanpur City Division, Kanpur. . . . . . . . . . . . . Respondents Present for the Applicant: Sri R.K. Shukla Present for the Respondents: Sri D.N. Mishra O R D E R
By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant seeks quashing of the order dated 31.07.2007 (Annexure A-I) . He further seeks quashing of order dated 08.08.2008 (Annexure A-II) whereby statutory appeal of the applicant dated 28.08.2007 filed against the order dated 31.07.2007 has been rejected.
2. The brief facts of the case are that the applicant was initially appointed as Postal Assistant with the respondents. The applicant was served with a memorandum of charges vide office order dated 14.06.2007 under rule 16 of CCS (CCA) Rules 1965 alleging therein that during the period from 01.06.2004 to 31.01.2005 he did not get completed the ledger posting, failed to check irregularities committed by the then Sub Post Master, New P.A.C. Line Post Office, Kanpur causing minus balance in different S.B Accounts standing opened at New P.A.C Line Post Office. It is further alleged that he did not maintain special error book/objection register and failed to take action for settlement of pending objections and also failed to get verified the high value withdrawals made in different accounts at New P.A.C Lines Post Office. Copy of Charge Sheet is appended as Annexure A-IV of O.A. In response to the above memorandum of charges the applicant submitted detailed reply on 17.07.2007 (Annexure A-V of O.A) wherein he rebutted all the charges leveled against him. It is also submitted that the applicant has not been provided opportunity of hearing and no procedure has been adopted by the respondents for examining the documents which is necessary for rebutting the allegations leveled against him. It is alleged that without taking into account the reply submitted by the applicant the Disciplinary Authority has passed the order dated 31.07.2007 whereby imposing the penalty of recovery to the tune of Rs. 78,000/- which is to be recovered from the salary of the applicant till his retirement and thereafter from the leave encashment of the official. Against this order the applicant preferred statutory appeal under rule 23 of CCS (CCA) Rules 1965, which was also rejected by the Appellate Authority by an order dated 08.08.2008 (Annexure A-II of O.A). Hence the instant O.A.
3. In pursuance to the notice the respondents appears and filed detailed counter affidavit and contested the claim of the applicant. In para 4 of the Counter Affidavit it is specifically stated by the respondents that one Sri R.A. Maurya was functioning as Sub Post Master at New P.A.C. Lines Post Office, Kanpur during 09.09.2002 to 30.11.2006 and he committed a heavy fraud to the tune of Rs. 26,08,440/- by not accounting for the amount of deposits and withdrawal in several saving accounts standing open at the Post Office. A detailed investigation was carried out in which it was observed that many officials of Kanpur Cantt Head Post Office did not discharge their duties diligently due to which Sri R.A. Maura, the then Sub Post Master, New P.A.C Lines Post Office got ample opportunity to continue the said fraud. It is further submitted that since the charge sheet was issued under rule 16 of CCS (CCA) Rules 1965 and opportunity was granted to the applicant to rebut the charges leveled against him, there was no need to conduct full-fledged inquiry and after considering the reply filed by the applicant the Disciplinary Authority passed the order dated 31.07.2007 imposing minor penalty of recovery of Rs. 78,000/- against which the statutory appeal of the applicant was also considered and same was rejected by the Appellate Authority by an order dated 08.08.2008 (Annexure A-II of O.A).
4. The applicant has also filed Rejoinder Affidavit to which the respondents filed Suppl. Counter Affidavit.
5. I have heard Sri R.K. Shukla, learned counsel for the applicant and Sri D.N. Mishra, learned counsel for the respondents and also perused the pleading on record .
6. Learned counsel for the applicant vehemently argued that the impugned order dated 31.07.2007 is violative of principle of natural justice as no opportunity whatsoever was given to the applicant before passing the impugned order. He has drawn my attention to the Memorandum of charges which is appended as Annexure A-V of O.A and submitted that no where in the charge sheet is alleged by the respondents that they are going to recover any amount from the applicant. He submitted that in the charge sheet the respondents have given expression that Had Sri B.R. Verma performed his legitimate duties in the prescribed manner, the fraud case could have come to light earlier and further loss sustained to the department in the case could also be avoided.. He submitted that the impugned order also suffers from violation of rules as no recovery can be affected from the leave encashment of the applicant. He further refers to rule 11 of CCS (CCA) Rules 1965 and submitted that even if a minor penalty is imposed then procedure has to be followed by the respondents by conducting a full-fledged inquiry, which admittedly, in the instant case, has not been conducted by the respondents. In support of his contention, learned counsel for the applicant has placed reliance on the judgment reported in (1991) 16 Administrative Tribunals Cases 70 - D.P. Sinha Vs. U.O.I & Ors. He also placed reliance upon a judgment passed by Madra Bench of this Tribunal reported in 2004(3) A.T.J page 369 A. Vedi Vs. U.O.i & Ors and 2005 (1) A.T.J page 45 Smt. Kalpana Shinde and ors. Vs. U.O.I & Ors. Lastly he placed reliance on an unreported judgment passed by Chandigarh Bench of this Tribunal in O.A No. 744/PB/2009 Gurmeet Kaur Vs. U.O.I & Ors decided on 24.08.2009 and submitted that the impugned orders dated 31.07.2007 and 08.08.2008 are liable to be quashed.
7. On the other hand learned counsel for respondents have argued that before imposition of the penalty reasonable opportunity was given to the applicant to rebut the charge leveled against him. Since the charge sheet was issued under rule 16 of CCS (CCA) Rules 1965, therefore, there was no occasion for the respondents to conduct full-fledged inquiry. He further argued that since the charges have already been proved against the applicant, there was no occasion for the respondents to conduct an inquiry whereas he is unable to show that how the charges framed against the applicant were found to be proved.
8. I have considered the rival submissions and also gone through the record as well as the judgments cited by the learned counsel for the applicant.
9. 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;
(ii). Withholding of his promotion;
(iii). Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iii.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;
(iv). 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.
10. 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. Admittedly the applicant was issued charge sheet dated 14.06.2007 alleging the following charge: -
Thus, Sri B.R. Verma showed gross negligence towards his duties and facilitated the then SPM, New PAC Lines P.O Sri R.A. Maurya to commit fraud in different accounts by not accounting for the transactions of deposit/withdrawals in the PO account. Had Sri B.R. Verma performed his legitimate duties in the prescribed manner, the fraud case could have come to light earlier and further the loss sustained to the department in the case could also be avoided..
After receiving reply from the applicant the impugned order dated 31.07.2007 has been passed. The relevant part of the order dated 31.07.2007 reads as under : -
I, therefore, K.K. Yadav, Sr. Supdt. Of Post Offices, Kapur City Dn as discussed above, find the said Shri B.R Verma the guilty of charges as leveled against him and I keeping in view of loss sustained to the department , impose on him the penalty of recovery to the tune of Rs. 78000/- (Rs. Seventy Eight Thousand Only) to be implemented as under : -
@ Rs. 5000/- per month from the pay of the official and remaining amount of Rs. 53000/- from leave encashment of the official..
11. From perusal of the charge leveled against the applicant (quoted above) in the Charge Sheet it is clear that nowhere the respondents have indicated that the applicant facilitated Sri R.A. Maurya to commit any fraud. Only allegation leveled against the applicant that he has not performed his duties diligently , which resulted in loss on account of fraud committed by Sri R.A. Maurya. Even from perusal of the impugned order it is nowhere concluded by the Disciplinary Authority that the applicant facilitated Sri R.A. Maurya to commit fraud. The finding has been recorded that the applicant is negligent in performing his duties and, therefore, recovery of Rs. 78,000/- has been imposed upon him from his pay at the rate Rs. 5000/- per months and thereafter remaining amount of Rs. 53,000/- from leave encashment. The appellate authority has also not considered the objections raised by the applicant in his appeal and has rejected the appeal of the applicant in an mechanical manner. The relevant para of the Appellate order reads as under : -
After going through the charge sheet, punishment , appeal and other relevant documents carefully I have come to the conclusion that the charges leveled against the appellant stand proved beyond doubt and appellant deserved sever punishment to curb the fraudulent tendencies in the department.
12. As per rule 11 it is mandatory that before coming to the conclusion that the applicant was not vigilant in performing his duties which resulted 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 11 does not confer any power upon the respondents to recover the amount of embezzlement from retiral dues of the official. My view has been supported by the judgment given by the Madras Bench of this Tribunal in the case of A. Vedi (Supra). The relevant observation reads as under : -
. We are therefore, of the view that the impugned orders suffer from non-application of mind and are not in accordance with the detailed guidelines of the government of India decision No. 23 under Rule 11 of the CCS (CCA) Rules 1965. Accordingly , the orders of the Disciplinary Authority as well as in the Appellate Authority are hereby quashed. If for the lapses on the part of the applicant in not drawing the line or not properly signing , the Disciplinary Authority is of the view that some penalty should be imposed and it is open to the Disciplinary Authority to impose any minor penalty commensurate to the proved lapse..
13. The Jabalpur Bench of this Tribunal in the case of Smt. Kalpana Shinde and ors (Supra) has also considered the similar controversy. The Bench held as under : -
11. We find that in the case of S.K. 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 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. Harihar 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 Govt.
13. Again in the case of J.M Makwana Vs. Union of India & Ors in O.A 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 i.e. 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 gone to observe that even if for a moment we believe that applicant was negligent in not 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.
14. We are in complete agreement with the ratio laid down by the above judgments. The order passed by the Disciplinary Authority and upheld by the Appellate Authority imposing punishment of recovery of the applicants is not in accordance with the provisions of Rule 11(3) of CCS (CCA) and therefore cannot be sustained. The order can easily be said to be illegal and as such , deserves to be quashed and set aside in all the cases.
14. Following the judgment in the case of Smt. Kalpana Shinde and ors Chandigrah Bench of this Tribunal has also allowed the O.A No. 744/PB/2009 (Supra), wherein the Tribunal has held as under : -
7. Learned counsel for the applicant argued that the applicant is not directly responsible for misappropriation of alleged amount/fraud, which admittedly had been solely committed by late Sh. Chander Prakash Khurana, Sub Post Master at Padhiana at the relevant time. Hence no charge can be attributed to the applicant and the penalty imposed is thus illegal and arbitrary, which deserves to be quashed. Inn this connection, he cited the following cases: -
1. J.M. Makwana Vs. UOI- ATJ 2002(1) 283
2. Smt. Kalpana Shinde and others Vs. U.O.I & Ors. ATJ 2005(1) 45..
15. 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, a 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 mater 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.
(Sanjeev Kaushik) Member-J /Anand/ ??
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