Central Administrative Tribunal - Delhi
Darshan Kumar Popli vs M/O Communications on 10 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1694/2016
Reserved on 5th September 2018
Pronounced on 10th October 2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Shri Darshan Kumar Popli, aged about 70 years
s/o Shri Amarnath
Assistant Post Master (Retired), Shahdara PO
Delhi East Postal Dn, Delhi - 110 051
Address for service
C/o R P Sharma & Deepak Verma, Advocate
CAT Bar Room, Copernicus Marg
New Delhi - 110 001
..Applicant
(Mr. Deepak Verma and Mr. R P Sharma, Advocates)
Versus
1. Union of India
Ministry of Communication & IT
Through Secretary, Dept. of Posts
Dak Bhawan, Sansad Marg
New Delhi 110 001
2. The Chief Post Master General
Delhi Circle, Meghdoot Bhavan
Link Road, New Delhi - 110 001
3. The Sr. Supdt. Of Post Offices
Delhi East Division, Karkardoma
Delhi - 110 051
..Respondents
(Ms. Shvetima Dwivedi, Advocate)
ORDER
Mr. K.N. Shrivastava:
There is a famous idiom that Government is an impersonal body without any sensory organs. This idiom writ large in the present case. The applicant has been facing the disciplinary enquiry (DE) proceedings since 2 2005, which have not yet been concluded, even though he retired from service on 28.02.2006. Looking at the records as well as attitude of the respondents, one cannot be sure as to when the DE proceedings would be concluded.
2. Briefly, the facts of the case are as under:-
2.1 At the relevant point of time, the applicant was posted as Assistant Post Master, KNHO, Delhi - 110 051 when Annexure A-1 (c) charge memo dated 24.06.2005 came to be issued to him. The charges leveled in it would read as under:-
"Article 1 That the said Sri D.K. Popli APM was ordered to look after the work of Saving Bank counter KNHO in addition to NSC/KVP/MIS counter by the Senior Postmaster KNHO vide order Number 297 dated 10.11.03 recorded in the order book. These orders were however noted with initial/signature by said Sh. D.K. Popli but not alleged complied with resulting in that five savings accounts numbers 612034, 611919, 612095, 612094, 612227 were opened at KNHO by the SB Asstt on the basis of Account opening applications (SB-3) bearing fictitious signature of depositors and Pay-in-slip bearing an indistinct mark/signature of Rajiv Arya SAS agent RD 6647 in place of depositors signature. Further amount of fourteen MIS accounts on account of their premature closure was irregularly credited in these five savings accounts by the SB asstt and withdrawal applications (SB-7) bearing fictitious signatures of depositors thereon in alleged collusion with the SB Asstt and APM (SBSO) Shri R.S. Bawa...
By doing so, the said Shri D.K. Popli is alleged to have disobeyed the orders of Senior Postmaster KNHO by not keeping the supervision on Savings Bank Counter KNHO, to have facilitated the opening of five savings accounts on the basis of fictitious Account opening applications and Pay-in-slips, to have facilitated the irregular deposits/withdrawal from these savings accounts and thereby allegedly failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of Govt. servant violating the Provisions of Rule No. 3(1)(i), 3(1)(ii), 3(1) (iii) of CCS (Conduct) Rules 1964.3
Article II That the said Sh. D.K. Popli while working as APM, MIS counter KNHO Delhi-51 during the period from March 2004 to May 2004 allegedly allowed the premature closure of different fourteen MIS accounts standing at KNHO without exercising the due checks as required under the rules and the prematurity nature thereof was allegedly not ordered to be paid by Cheque only as per DG posts letter No. 5-20/UP-06/2000-INV dt 28.8.01. The amount on premature closure of such MIS accounts was transferred to SB Asstt for credit in Savings accounts number 612034, 611919, 612095, 612094, 612227 without any written application/request from depositors and also in violation of the prescribed limit of maximum balance of Rs. 2,00,000/- in joint savings accounts by the MIS counter Asstt and no objection was allegedly raised by said Sh. D.K. Popli being supervisory of MIS counter.
By doing so, the said Sh. D.K. Popli is alleged to have violated the provisions of Rule No. 33(3)(iii) read with Rule No. 158(1) (i) of PO SB Manual Vol. I Rule No. 31 (11) of PO SB Manual Vol I read with Rule No. 5(1) (d) of PO, SB General Rules 1981 and also allegedly failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Govt. servant contravening the provision of Rule No. 3(1)(i), 3(1) (ii), 3(1) (iii) of CCS (Conduct) Rules 1964."
2.2 Pursuant to the charge memo, DE proceedings started against him. As many as 4 enquiry officers (EOs) were changed. Finally, the EO submitted his report dated 22.11.2010 (Annexure A-2) concluding therein that the direct involvement of the charged official (applicant) towards the charge leveled against him is not established, and as such, the charge is not proved.
2.3 The disciplinary authority (DA), however, did not accept the EO‟s report and preferred to issue the impugned Annexure A-1 (d) disagreement note dated 03.01.2012, which would read as under:-
"Statement of the findings of the Disciplinary Authority together with brief reasons for its disagreement with the findings of the Inquiring Authority.4
The undersigned has examined carefully and dispassionately the Inquiring Authority‟s report and the record of the inquiry and finds that the charged official Shri D.K. Popli has been given a reasonable opportunity to defend himself but I do not agree with the findings of the Inquiring Authority on both the articles of charge for the reasons as under and record my own findings as under also:
Article I The Inquiry officer has given his findings without maintaining a balance between the interest of the state and the avoidance of unjustice to the charged official. He has recorded his findings without respecting the article of charge. The wordings of charge leveled against him by the Disciplinary Authority was as under, „The said Shri D.K. Popli is alleged to have disobeyed the orders of Sr. Postmaster KNHO by not keeping the supervision on Saving Bank counter KNHO, to have facilitate the opening of five saving Accounts on the basis of fictitious account opening Applications and Pay-in- slips, to have facilitated the irregular deposits/withdrawal from these savings Accounts.
In his findings the I.O. has not discussed the duties assigned to the charged official. The charged official was ordered to look after the work of SB counter, in addition to his NSC/KVP, MIS counter work recorded in the order book on 10.11.2003. In his written statement dated 11.6.04 given before Shri D.C. Sharma and taken as Ex SD-8
(xi) during enquiry the said Shri D.K. Popli has admitted it adding that due to abnormal pressure of work he was unable to carryout additional duty of supervision of SB counter. Th saving Accounts were opened on the basis of fictitious Account opening Application and pay-in-slips and deposits/withdrawals there from were made irregularly. Under the head Analysis and assess of evidences in the Inquiry Report the signature on Account opening Application and withdrawal form of SB account No. 612227 and 612095 has been shown denied by their depositors. He I.O. ha taken these aspects very lightly. Had the supervision on the work of saving Bank counter at Krishan Nagar H.O. been kept by the said Shri D.K. Popli in compliance of the orders of Sr. Postmaster KNHO, the opening of above referred saving accounts deposits/withdrawal from these accounts could not have allegedly been made possible by the SB assistant Shri Vijay Kumar in alleged connivance with Shri R.S. Bawa APM (SBSO) and SAS Agent Shri Rajiv Arya.
In view of above, this article of charge stands proved. Article-II The I.O. has declared this article of charge as not proved without proper analysis. Undoubtedly premature closure of all the fourteen MIS accounts were allowed by him and amounts there of were deposited in the newly opened five SB accounts in the name of 5 depositors without any written request of the depositors and also in violation of the prescribed limit of maximum balance of Rs. 2,00,000/- in joint SB accounts. The prematurely value of above MIS accounts was not ordered to be paid by cheque only. Frequent premature closure of lot of MIS accounts in the name of different depositors and deposits of their proceeds in the newly opened SB accounts by/through an agent are sufficient ground to create a doubt in his mind to check up the cases with all aspects. Further in case of MIS account NO. 15176, the withdrawal of amount Rs. 3,00,000/- from this account was presented by Rajiv Arya as a messenger but the payment order on this withdrawal form was prepared for Rs. 3,86,000/- (Rs. 4,00,000/- Rs. 14,000/-) by the MIS ledger Asstt Shri Tarun Bhardwaj and the same was passed after initialing it by said Sh. D.K. Popli which shows that no proper and due checks were exercised by him.
In view of above discussion this article of charge is proved." 2.4 What is strange about the disagreement note is that it is not tentative in nature. The DA, in the last paragraph, has said that the article of charge is proved. This would indicate pre-conceived mind of the DA. 2.5 It is also to be noticed that the respondents, vide impugned Annexure A-1 (a) order dated 11.04.2016, have decided to re-enquire the matter from the stage of examination of the applicant under Rule 14 (18) of CCS (CCA) Rules, 1965, and have accordingly appointed a new EO. The reason for the issuance of the Annexure A-1 (a) order appears to be that for appointment of the new EO, approval of the President of India was required since the charged official (applicant) had already retired from service on 28.02.2006, and in that process, the Director (VP), Department of Posts, Ministry of Communications & IT, vide letter dated 02.02.2016, has conveyed a major objection that the EO had not examined the applicant under Rule 14 (18) of CCS (CCA) Rules, 1965.
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Aggrieved by the decision of the competent authority respondents to issue a disagreement note and to appoint new EO, the applicant has approached the Tribunal in the instant O.A. seeking the following reliefs:-
"(i) Quash and set aside the Orders No.F-1/Misc/04-05 dated 11.04.2016, Memo No.F1/Misc/04-05 dated 24.06.2005, Letter No.F-
1/Misc/04-05 dated 03.01.2012 (impugned as Annexure-A1 colly).
(ii) Direct the respondents to release all withheld retiral benefits along with penal interest @ 24% per annum from the date the same fell due till it is paid."
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply, to which the applicant has filed rejoinder.
4. On completion of pleadings, the case was taken up for hearing the arguments of the parties on 05.09.2018. Arguments of Mr. Deepak Verma with Mr. R P Sharma, learned counsel for applicant and Ms. Shvetima Dwivedi, learned counsel for respondents heard.
5. Mr. Deepak Verma, learned counsel for applicant submitted that the impugned Annexure A-1 (a) order dated 11.04.2016 is illegal because it has not been issued by a delegatee of President of India, which is a statutory requirement under Rule 9 of CCS (Pension) Rules, 1972. He further submitted that the DE proceedings stand vitiated on the ground of prolonged delay in concluding the proceedings. In this regard, he placed reliance on the judgment of Hon‟ble Apex Court in the case of P.V. Mahadevan v. MD T.N. Housing Board, 2005 SCC (L&S) 861, wherein it has been held as under:-
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"16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment...."
6. Additionally, the learned counsel has also placed reliance on the following judgments of this Tribunal and Hon‟ble Apex Court in support of his contention:
Tribunal
i) Navin Kumar Sharma v. Union of India & others, 2016 (3) AISLJ (CAT) 503.
ii) Tushar Ranjan Mohanty v. Union of India & others, 2017 (3) AISLJ (CAT) 188; and
iii) U. Das v. Union of India & another (O.A. No.288/2015 with connected cases) decided on 08.05.2017.
Hon‟ble Apex Court
iv) Prem Nath Bali v. Registrar, High Court of Delhi & another (Civil Appeal No.958 of 2010) decided on 16.12.2015. 8
7. On the substantive issue, Mr. Verma drew our attention to Annexure A-6 letter dated 01.10.2013 of the respondents, wherein it is stated that Mr. Dharampal Sharma, Supr. SBCO and Mr. Hari Singh, P/Asstt. SBCO have been let-off without any penalty since they had retired from service. He stated that Mr. Dharampal Sharma and Mr. Hari Singh were the ones, who were directly involved in the alleged transactions but no action has been taken against them since they had retired from service. On the contrary, the applicant, who was not directly involved in the alleged transactions and was only supervising them, has been subjected to DE proceedings, and hence, for the reasons of parity also, the DE proceedings initiated against the applicant deserve to be quashed and set aside.
8. Mr. Verma vehemently argued that since his retirement, the applicant has been getting only the provisional pension. All his retiral dues, viz. leave encashment, GPF, gratuity, etc. have been withheld and he has also been denied regular pension. He, thus, concluded by submitting that the applicant deserves the reliefs prayed for.
9. Per contra, Ms. Shvetima Dwivedi, learned counsel for respondents submitted that the enquiry process has been initiated within time bound limits of serving the charge memo to the applicant, which was served on 24.06.2005 and the DE proceedings were started immediately thereafter on 28.11.2005 by nominating the EO and that the delay has occurred in the case for the reasons beyond the control of the respondents, and due to circumstantial factors, the EOs were changed 4 times during the course of the enquiry. She further stated that since the competent authority had not agreed with the EO‟s report dated 22.11.2010 (Annexure A-2), it was 9 necessary to issue the disagreement note. However, when the Director (VP), Department of Posts, Ministry of Communications & IT, vide letter dated 02.02.2016, pointed out that the applicant has not been examined by the EO under Rule 14 (18) of CCS (CCA) Rules, 1965, vide the impugned Annexure A-1 (a) order dated 11.04.2016, the DA had directed the new EO to re-enquire the matter from the stage of examination of the applicant under Rule 14 (18) of CCS (CCA) Rules, 1965.
10. Regarding the letting-off of the co-accused, Mr. Dharampal Sharma, Supr. SBCO and Mr. Hari Singh, P/Asstt. SBCO, the learned counsel submitted that their direct involvement was not established and no action was taken against them since they had already retired from service. She relied on the following judgments of Hon‟ble High Court and Hon‟ble Apex Court to controvert the issue of delay raised on behalf of the applicant:
High Court
i) Ex. Ct. Jasminder Singh v. Union of India & another (Writ Petition (Civil) No.2087/2001) decided on 12.10.2009,
ii) Balkar Singh v. Union of India & others (Writ Petition (Civil) No.1191/2015) decided on 07.09.2016; and Hon‟ble Apex Court
iii) Satyavir Singh & others v. Union of India & others, AIR 1986 SC 555.
11. We have considered the rival contentions of the parties and have perused the pleadings.
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12. It is not in dispute that the DE proceedings started against the applicant with the issuance of Annexure A-1 (c) charge memo dated 24.06.2005 to him. The applicant has fully cooperated in the DE proceedings. Hon‟ble Apex Court in Prem Nath Bali's case (supra) has held that the DE proceedings should be completed as expeditiously as possible and preferably within a period of six months. In the instant case, more than 13 years have passed and even now there is no sign of visibility of any light in the dark tunnel of the DE proceedings. This long delay is entirely attributable to the respondents. Needless to say that this long delay has prejudiced the interest of the applicant, as he has been deprived of his legitimate retiral dues as well as the regular pension. The applicant is already more than 72 years old, and hence, for the reasons of equity, it would not be appropriate to allow the DE proceedings to continue.
13. Another issue to be borne in mind is that an earlier EO, vide his report dated 22.11.2010 (Annexure A-2), has held that the charge against the applicant is not proved. The competent authority, however, has not accepted the said report and with pre-conceived mind has issued the disagreement note, which should have been tentative in nature, but it is not. Hence, it severely suffers with legal disability.
14. We also find that the impugned Annexure A-1 (a) order dated 11.04.2016 appointing a new EO does not indicate that it has been issued with the approval of a delegatee of the President of India and, thus, the mandatory requirement of Rule 9 of CCS (Pension) Rules, 1972 is also violated.
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15. Another aspect, which we would like to mention here, is that the two officials, namely, Mr. Dharampal Sharma, Supr. SBCO and Mr. Hari Singh, P/Asstt. SBCO, have not been subjected to any DE proceedings on the pretext that they had already retired from service, even though they were the ones, who were directly involved in the illegal transactions.
16. In the conspectus of the discussions in the foregoing paragraphs, taking into account the fact that it is more than 13 years since the DE proceedings were started and there is no indication that even in the foreseeable future, these are going to be completed, as also considering the fact that the applicant is more than 72 years old, we are of the view that the ends of justice will meet only by granting the reliefs prayed for by the applicant in this O.A.
17. Accordingly, we allow this O.A. in the following terms:-
(a) Impugned Annexure A-1 (d) disagreement note dated 03.01.2012 and Annexure A-1 (a) order dated 11.04.2016 are quashed and set aside.
(b) As a consequence of (a) above, the applicant shall be paid all his retiral dues and shall be sanctioned the regular pension within a period of four weeks from the date of receipt of a copy of this order.
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(c) The applicant shall be entitled for interest @ 8% per annum on the arrears of pension (regular pension minus provisional pension) and on arrears of the retiral dues.
There shall be no order as to costs.
( S.N. Terdal ) ( K.N. Shrivastava ) Member (J) Member (A) /sunil/