Central Administrative Tribunal - Kolkata
Malay Mukherjee vs D/O India Post on 12 September, 2022
® CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA No. 0.A.350/1378/2017 . Date of order : 12.09.2022 M.A.350/823/2017 Coram: Hon'ble Mrs. Bidisha Banerjee, Judicial Member MALAY MUKHERJEE, son of Late Madhusudan Mukherjee residing ~ at Village - Gangapur near Chowmatha, Post Office and Police Station-Duttapukur,' District -- 24 Parganas (North), Pin -- 743 248 sesteseseesaeecs Applicant - VERSUS - 1. Union of India through the Secretary, Government of India, Department of Post, Dak Bhawan, Parliament Street, New Delhi -- 110 001; 2. The Director, Kolkata-G.P.O., Kolkata ~ 700 001; 3. The Chief Post Master General, West Bengal Circle, Yogayog Bhawan, 5" floor, Chittaranjan Avenue, Kolkata-700 012; ~ | 4, Dy. Director, Post Office,(Adm.), Kolkata G.P.O., Kolkata-700 001 eeserseeenenseeses Respondents For the applicant : Mr. A.P. Deb, counsel For the respondents : Mr. S. Bera, counsel ORDER
Heard Learned counsel for the parties and perused the records.
"a)To quash and/or set aside the order of Disciplinary Authority Memo No.Inv-56/Fraud/Disc. M. Mukherjee/2015-16 dated 15.09.2015 issued by the Deputy Director Post Office Kolkata G.P.O. imposing a punishment of recovery of Rs.4,80,000/-(Rupees four lacs eiylity thousand) only in 20 instalments at the rate of Rs.24,000/- per month from the pay of the applicant on and from month of September,2015;
b) To quash and set aside the Appellate Authority being Memo No.Inv-
56/Appeal/Disc. M. Mukherjee/2015-16 dated 28.12.2015 issued by the Director, Kolkata G.P.O.; oo
c) To quash and or set aside the Charge Sheet being Memo No.inv- 56/Appeal/Disc. M. Mukherjee/2015-16 dated 28.04.2015 issued by the Deputy Director, Post Office Kolkata G.P.O.,
d) Costs er incidental to and arising out of this application;
e) Any other order or orders as your Lordships may deem fit and proper by way of molding reliefs."
The applicant has also preferred an M.A. No.823/2017 for condonation of delay in filing the O.A. Having heard -both sides, the M.A. is allowed.
2. Brief facts as set out in the O.A. are as follows:-
A charge sheet dated 28.04.2015 was issued against the applicant on the ground that when he was working as the Assistant Deputy Director of Post Office (A.D.D.P.O in short) scroll point of Accounts Department during the period from 01.01.2009 to 05.07.2013 he received Bank Debit Scrolls from S.B.I. Kolkata Main Branch regularly showing the debited amount against 18(eighteen) fake cheques drawn from Kolkata G.P.O. to supervise the genuineness of encashment with the corresponding list of drawn from Banks for both pending as well as daily dues work at a time. According to the applicant, no thorough enquiry was conducted in the matter and the charge sheet did not disclose the names of the miscreants and the beneficiaries who made unlawful gain. That, he replied to the charge sheet on 05.05.2015 denying the charges levelled against him. Thereafter disciplinary proceeding was conducted and an order of Disciplinary Authority dated. 15.09.2015 was issued against him imposing a penalty of recovery of Rs.4,80,000/- in 20 instalments @ Rs.24000/- per month from the month of September,2015 for the part of pecuniary loss caused by him to the Government for negligerice of duty. The applicant preferred an appeal dated. 27.05.2015 (Annexure A/4) . against the order of Disciplinary Authority which was disposed of on 28.12.2015 with the following orders:-
"l, Sri T. Mang Min Thang, Director, Kolkata GPO & the Appellate Authority in exercise of powers conferred upon me under CCS(CCA) Rules 1965 hereby order that punishment awarded to Sri Malay Mukherjee vide memo no.inv- 56/Fraud/Disc./M. Mukherjee/2015-16 dated 15-09-2015 for recovery of Rs.4,80,000/-(Four lac eighty thousand) only in (20) twenty instalments @ _ Rs.24,000/-(Twenty four thousand) only per month from the pay of Sri Malay - Mukherjee, ADDPO, Accounts Department, the then PA/T.S. Accountant of Accounts Department, Kolkata GPO on and from the month of September 2015 is "upheld", -
3. The applicant has filed written note of arguments where he mentioned that the entire work of scroll point was added to the share of the applicant for supervision of 7 Personnel Assistants of the Scroll Point in addition to that of his own. The applicant was over burdened as he was made to supervise 8+7=15 P.As which was beyond the norms of establishment that he did his best to supervise all the P.As and submitted weekly. report of progress of back log through to ADPO/DDPO Accounts to the Director, Kolkata G.P.O. right from 01.01.2009 and none of them raised any objection on progress of | pending work till 16.03.2011, upto the date of detection of fraud. That, It is not correct to allege that the register was not. maintained at all. In fact, during investigation of the cheque-fraud case, the register was either seized or the same was weeded out in the normal course and hence not traceable at that. moment. That the ADDPO-5 was responsible for supervision work of scroll point whereas the applicant --
was penalized which is bad.
Triat the cancelled cheques were required to be destroyed to avoid mischief which was not done. That, the authority concerned has not been able to establish either his connivance with the miscreants or any nexus of the applicant with that of the said cheque-fraud case and when contributory negligence cannot be explicitly attributed to a particular offence, pecuniary liability could have been worked out, therefore, recovery was bad.
4, The respondents have filed their written reply denying the claim of the applicant. They have categorically pointed out that the applicant was entrusted exclusively for supervision of Scroll Work at Accounts Section of Kolkata GPO vide office Memo dated 26.12.2008. He received Bank Debit Scroll from State Bank of India, Kolkata Main Branch regularly showing debited amount against each cheque drawn from Kolkata GPO, but did not supervise the pending as well as daily due work of reconciliation/pairing of the Bank Debit Scrolls to ascertain the genuineness of payment, with the corresponding list of drawn cheques done by the Postal Assistants. As a result, a total number of eighteen fake cheques were debited from Kolkata.GPO Govt. Account with greater amount than the amount actually issued for by the Kolkata GPO, | Thus the department sustained a huge loss amounting to Rs.1,04,32,505/-. That, the competent authority of Kolkata GPO lodged an FIR with the Hare Street PS immediately and the same was registered under No.158 dated 18.03.2011. Subsequently Hare Street P.S. indexed another case vide No.463 dated 12.07.2013 under Section 120B/467/468/471/409/120B/420/511 IPC read with U/s 13 P.C. Act and Hare Street PS/DD Case No.463 dated | 12.07.2013 U/s 120B/467/468/471/409/420 IPC read with 13 Prevention of Corruption Act, 1988 and the competent police authority was going towards framing of Charge Sheet against the prime offender involved in the case. That, the applicant being identified as one of the Subsidiary Offenders was proceeded against under the provision of Rule-16 of cesicca) Rules, 1965 for the specific omissions/negligence/laxity while performing his duty as ADDPO. Scroll point of Accounts Department of Kolkata GPO, elaborated in the Charge Sheet. As such allegation made by the applicant that the Responding Authority made him a scapegoat is not correct.
The respondents in their written reply have stated that thorough enquiry was conducted in the matter and recovery was awarded after assessing the contribution of lapse of the applicant pertaining to the fraud case, in order to adjust the pecuniary loss sustained by the department. According to the respondents, 18 fake cheques were debited from Kolkata GPO, Government Account with greater amount 'than the amount actually issued for by the Kolkata GPO due to the negligence of supervision of Scroll work at the Accounts Section by the applicant, therefore, the applicant's claim is not maintainable in the eye of law and the O.A. deserves to be dismissed.
5. The applicant has also filed a rejoinder to the reply reiterating the same as mentioned in the O.A. and written notes of argument.
6. Heard the rival contentions of both sides and considered the facts and circumstances of the case.
7. The applicant has strongly relied upon the following order passed by this Tribunal and claimed that it squarely applies to the case. The order passed in O.A.No.345 of 2021 is extracted hereunder for clarity:-
"16. PROCEDURE FOR IMPOSING MINOR PENALTIES:
(1)(1) Subject to the provisions of sub-rule (5) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to fiv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal: >
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; , *{(d) consulting the Commission where such consultation is necessary. The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission to the Government servant, who shall be required to submit, if he so desires, his written representation or submission on the advice of the Commission, to the Disciplinary Authority within fifteen days; and
(e) recording a finding on each imputation or misconduct or misbehaviour. ] (1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments.of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty, (2) The record of the proceedings in such cases shail include-
(i) a copy of the intimation to the Government servant of the proposal to take action against him;
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
| (iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the advice of the Commission, if any;
**[(vi) representation, if any, of the Government servant on the advice of the Commission; -
(vii) the findings on each imputation of misconduct or misbehaviour; and
(viii) the orders on the case together with the reasons therefor."
7, DoP&T OM dated 28.10.1985 provides as under:
"Rule 16(1-A) of the CCS (CCA) Rules, 1965, provides for the holding of an inquiry even when a minor penalty is to be imposed in the circumstances indicated therein. In other cases where a minor penalty is to be imposed, Rule 16(1) ibid leaves it to the discretion of Disciplinary Authority to decide whether an inquiry should be held or not. The implication of this rule is that, on receipt of representation of Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the Disciplinary Authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government Servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the Disciplinary Authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the Disciplinary Authority could after without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice." ;
8 Rule 77 of P&T Manual reads:
"Inspection of documents may be permitted.- Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, does not make it incumbent on the part of the Disciplinary Authority that it should give the accused official an opportunity to inspect the relevant records, provided no formal enquiry is considered necessary by the Disciplinary Authority. if, however, an accused officer in such a case makes a request for permitting him to inspect the relevant records to enable him to submit his defence, the Disciplinary Authority may grant the necessary permission."
9. The applicant in this OA has heavily relied upon the following decisions to emphasis the need of holding an enquiry where charges in a minor penalty providing are factual and have been denied and recovery of loss was held illegal.
(i) O.A. 994 of 2014 & O.A. 995 of 2015.
(li) OA 374 of 2014 where relying upon the decision in OA.1961 of 2010 this Tribunal held :
"The learned counsel for the applicant submitted an order passed by this Bench on 3.6.2015 in OA No. 1961 of 2010 (Bikash Kanti Mishra Vs Union of India and others) to substantiate his stand that imposition of punishment of recovery for contributory lapse or negligence, as in the instant case, is not sustainable in the eyes of law. The relevant portion of the order is quoted hereunder:-
6. We have considered the rival submissions of the parties with reference to the pleadings and material placed support thereof. We find, that the 'respondents have not disputed in their counter as also in course of hearing that the disciplinary proceedings were initiated under Rule 16 of the Rules ibid and after following due process of rules and principles of natural -
justice, the applicant, has been visited with the punishment of recovery for his contributory lapses, which facilitated the BPM, Tiroi BO to commit fraud. It is worthwhile to mention that imposition of punishment for contributory lapse or negligence has received due consideration in very' many cases in past viz in the case of C.H.Harihara Nandanan vs Presidency Post Master, Madras and another reported in (1988) 8 Administrative Tribunal Case page 673 by the Ahmedabad Bench of the Tribunal J.M.Makwana Vs UO! and others reported in 2002 (1) ATJ 283 and by the Cuttack Bench of the Tribunal in OA No. 634 of 2009 disposed of on November, 2010 (Sukomal Bag Vs UO! and Ors) which was also upheld by the Hon'ble High Court of Orissa vide order dated 22.8.2011 in WP ( C ) No. 4343 of 2011 in which recovery for contributory lapses/negligence was held to be illegal. Aforesaid being the facts and law, we see no justification to uphold the order passed by the Disciplinary' Authority dated 11.05.2010 and the order of the Appellate Authority dated 20.8.2010 which are hereby quashed and the Respondents are directed to refund the amount, if any, already recovered from the pay of the applicant within a period of thirty days from the date of receipt of copy of this order.
7. In the result for the discussions made above,' this CA stands allowed. There shalt be no order as to costs."
7. Since a decision has already been taken by a Division Bench on a similar matter, there is no scope for us to take any _ alternate view regarding imposition of punishment of recovery in such minor penalty cases. Hence we quash the order of punishment of recovery of Rs. 40, O00i- imposed on the applicant along with the Appellate order.
8. Last but not the least; we would like to observe that there are several punishments for minor penalties available under Rule 11 of the CCS (CCA) Rules, 1965 to be imposed if an employee is found _quilty in a proceedings initiated Under Rule_16 of the CCS(CCA) Rules, 1965. But the applicant has in the meantime retired from service and_no punishment can be imposed in a proceedings initiated under Rule.16, which does not subsist after retirement. We, therefore, refrain from_remanding the matter back after quashing the present order of punishment.
Hence, it is ordered that the sum of Rs. 40,000/- recovered from the salary of the applicant in February and March, 2013 be refunded back to the applicant within two months of getting a certified copy of this order. This O.A succeeds. There shall be no order as to costs."
__ (iii) WP(C) 4343 of 2011 (UO! vs. Sukomal Bag), where Hon'ble High Court held as under: . ve "The Tribunal in paragraph-4 of the impugned order specifically came to a conclusion that it is not the case of the petitioners that the opposite party had _misappropriated the Government money nor was the case of the petitioners that for the direct culpable negligence pecuniary loss was caused to the petitioners. it is the positive case of the petitioners that due to . failure in supervisory duty of the opposite party another employee misappropriate the Government money and subsequently he died --
by committing suicide.
On the basis of the aforesaid 'observation, the Tribunal directed that no punishment for recovery of a sum of Rs.60,000/- could have been imposed on the.opposite party by the Disciplinary Authority and accordingly allowed the Original Application and set aside the order of punishment. .
~~ After hearing learned counsel for the petitioners and on perusal of the reasons assigned by the Tribunal in the impugned order, we find no justification to interfere with the same.
The Writ Petition is accordingiy dismissed."
(v) WPCT 112 of 2019 where Hon'ble High Court observed as under:
"in the present case, this Bench has no manner of doubt that both Uday and Prasenjit were denied proper and reasonable . opportunity of defending. themselves by reason of no formal enquiry having been initiated by their disciplinary authority, and thereby they have suffered severe prejudice. .
There is, thus no reason to interfere with the orders passed by the Tribunal on the original apglications interfering with the orders of penalty."
10. The discernible facts are as under :
(i) The applicant retired from service on 28.02.2013. The appellate order dated 16.01.2013 by the Director of Postal Services and the revisional order dated 23.09.2013 by the CPMG were issued after his retirement, not under Pension Rules but under Discipline and Service Rules which may not be permitted by the said authorities in case of a retired employee. Hence the orders are void ab-initio.
Rule 9 of CCS (Pension) Rules envisage as under :
"9. Power to withhold or withdraw pension .-
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct --
or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the amount of (Rupees Three thousand five hundred) per mensem).
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his_retirement_or during his re-employment, shall, after the _final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are.instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President. .
(b) The departmental proceedings, if not instituted while the Government servant was in service and continued after retirement, shall have no effect on the pension and gratuity of the pensioner. (c) The . departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-
employment, -
(i) shall not be instituted save with the sanction of the President in Format 2;
__ (ii) shall not be in respect of any event which took place more. than four years before such institution; and . (iii) shall be conducted 'by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service:
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental. proceedings instituted under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are continued under subrule (2), a provisional pension as provided in sub-rule (4) shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. --
(6) For the purpose of this rule -
(1)(a) departmental proceedings shall be deemed to be instituted 'on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and
(ii) in the case of civil proceedings, on the date the suit is filed in the court."
The orders passed by the Appellate Authority and Revisionary Authority are made under Rule 16 and 29 of CCS (CCA) Rules 1965 which have no manner of application to'a pensioner. .
in the present case, in the first round, itself there is no recording of reason by the DA as to why enquiry was not required as Rule 16 ibid mandates, The violation of statutory provision is thus palpable.
In view of the decisions cited and their implications as well as discussions supra the penalty imposed and its affirmation by the higher authorities is not sustainable and thus liable to be quashed.
11. Accordingly, the penalty order and consequent orders are quashed with liberty to.act in accordance with law.
12. O.A is thus disposed of. No order as to costs."
8. in the present case it is evident that the applicant has raised the following grounds which according to him have not been considered by the Disciplinary Authority and the Appellate Authority {i) The entire work of Scroll point was added to the share of the applicant for supervision of 7 Personnel Assistants (P.As) of the Scroll paint in addition to that of his own. The applicant was over burdened having to supervise 8+7=15 P.As which is beyond the norms of establishment but even then the Applicant did his best to supervise all the P.As and submitted weekly report of progress of back log through to ADPO/DDPO Accounts to the Director, Kolkata G.P.O. right from 01.01.2009 and none of them raised any objection on progress of pending work till 16.03.2011, upto the date of decision of fraud;
(ii) The cheque-fraud case came to light on 16.03.2011, when back log work was in progress and the arrear position was known to the competent authority and that is why the order dated 10.06.2011 was issued for clearance of arrear by 07.07.2011.
(iii) The ADDPO responsible for supervision work of scroll point was not implicated but the applicant (ADDPO-6) was penalised;
(iv) The cancelled cheques were required to be-destroyed in terms of Rule 182 of FHB (Financial Hand Book-1) but the Drawer did not do it leaving a scope to the miscreants to commit mischief;
13(v) Due to disrupted facts a full fledged enquiry was necessary but not considered by the Respondent, in order to unearth the truth of the said embezzlement of Rs.1,04,32,505/- that took place by issuance of 18 fake and forged cheques by alteration/manipulation of the names of payees and the sum amount. The Hon'ble Apex Court in O.K. Bhardwaj vs. Union of India & Others [2002 SCC (L&S) 188 has ruled "if charges are factual and the same are denied by the employee, even in the case of 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 alleged against him. More over, if the charges are factual and denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the
-
principle of natural justice."
(vi) The authorities concerned have not been able to establish either connivance or nexus in the case of the applicant with that of the said cheque-fraud case;
(vii) Invoking of Rules 106 and 107 is not applicable in the instant case and no penalty can be inflicted under the Rules which are not applicable as is in the case of the applicant;
(viii) A penalty of recovery can be imposed when it is -- established that the Government servant was responsible for particular act or omission or breach of rule/orders/instructions and that such negligence/omission resulted in losses;
14(ix) The rules 106,107 and 111 of Postal Manual Volume-lil specifically specifies that the competent authority should correctly assess contributory negligence in a realistic manner on the part of the Charged officer and the extenuating situation/circumstances in which duties were performed by the officer/the applicant herein, also requires to be given due weightage.
(x) | The competent authority who had the power/authority to issue or preserve and destroy and cancel cheques were kept out of the orbit;
(xi) The memorandum of charges does not disclose the loss ~ caused due to the lapse on the part of the applicant;
(xii) | The main offender has been punished by the competent court of law. The concerned. authority cannot cause recovery of any amount from its employee without establishing the reasons for contributory negligence;
(xiii) Penalty of recovery can be awarded only when the lapses on the part of the employees have led directly to the commission of fraud. When the contributory negligence cannot be explicitly _ attributed to a particular offence, pecuniary liability cannot be worked out, recovery cannot be made.
159. In view of the above, the matter is remanded back to the appellate authority to grant an oral hearing to the applicant and pass an appropriate order keeping the order in 0.A.No.350/345/2021 in mind.
10. Anorder be issued by 3 months. No costs.
(Bidisha Banerjee) Judicial Mémber sb