Central Administrative Tribunal - Allahabad
Surendra Kumar Sharma vs Chief Post Master General Up Circle on 11 January, 2024
OA No. 375 of 2018
Reserved
(On 11.12.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated: This the _11th_ day of _January_ 2024
Original Application No. 375 of 2018
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Surendra Kumar Sharma, a/a 28 years, S/o Shri Priya Sharan Sharma,
Presently working as Postal Assistant under Senior Superintendent of
Post Offices, Jhansi Division, Jhansi Permanent R/o Village and Post
Sirol, District Datia (MP) and presently residing at Deepak Lodge near
Orai Head Post Office, Orai.
. . .Applicant
By Adv : Shri S.K. Kushwaha
VERSUS
1. Union of India through the Secretary, Ministry of Communication
and IT Dak Bhawan, Sansad Marg, New Delhi.
2. Chief Post Master General, UP Circle, Lucknow.
3. Post Master General, Agra Region, Agra.
4. Director Postal Services, in the office of Post Master General, Agra
Region, Agra.
5. Superintendent of Post Offices, Jhansi Division, Jhansi.
. . .Respondents
By Adv: Shri Amitabh Kumar Sinha
ORDER
By Hon'ble Dr. Sanjiv Kumar, Member (A) The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned Charge Sheet dated 29.04.2015, impugned inquiry report dated 26.05.2017, impugned punishment order dated 30.06.2017 and impugned appellate order dated 29.01.2018 with all consequential benefits, and to restore pay in the same grade pay as no order of reduction of pay had ever been passed, and to grant the benefit of annual increment which were stopped as per punishment order, and regularize the suspension Page 1 of 13 OA No. 375 of 2018 period with arrears of full pay after deducting the amount already paid as subsistence allowance with 12% interest, and any other benefit, and to pass any other suitable order deemed fit and to award cost.
2. The fact of the applicant is that he was appointed as Postal Assistant and while working as Postal Assistant at Lalitpur HO transferred and posted as Postal Assistant Moth vide memo dated 11.03.2014 and he joined at Moth. Subsequently the applicant had been suspended on contemplation of the disciplinary proceedings vide order dated 28.03.2014. The charge sheet under rules was not served on the applicant within 90 days from the date of suspension and the suspension was extended illegally and arbitrarily several times. Only after a lapse of one year, the respondent No. 5 (Disciplinary Authority) has served the major penalty charge sheet dated 29.04.2015 under Rule 14 of CCS (CCA) Rules 1965 but without attaching the copies of RUDs of the charge sheet which is violative of Rule 14(4) of CCS (CCA) Rules 1965. However, the applicant had asked for the documents mentioned in the charge sheet for making representation against the charge sheet vide representation dated 05.05.2015. The main charges were that while working as System Manager at Lalitpur Head Post Office for the period from 22.09.2012 to 06.03.2014, applicant had not made regular check and managed all the systems and softwares properly. It has further been alleged that applicant had not kept the back-up daily, weekly and monthly in C.D. and further not handed over it to the Postmaster, Lalitpur with acknowledgment, and due to such failure, Installation and operation of Data Entry Module of Sanchay Post Software in Account Branch could not be detected, by which fake entries have been made in different Saving Bank Accounts and embezzlement amounting to Rs. 3,07,74,350/- was done. By such act, applicant has violated the provisions of distribution of Work, Rule 4 of Part I of Postal Manual Vol. VI and S.B. Order dated Page 2 of 13 OA No. 375 of 2018 06.09.2012. Thus the applicant had failed to maintain his absolute integrity, maintain devotion towards duty and act such as which is unbecoming to the Government servant which is violative of Rule 3(1)(i), 3(1) (ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
3. The applicant's case is that reasonable opportunity of hearing or defending himself at the charge sheet stage was not given by the disciplinary authority and on the date of inquiry attested copies of the relied upon documents have been given to the applicant on 30.11.2015, but not allowed to tally with the original documents, as those were not available with them and the Inquiry Officer adopted hasty procedure. The applicant had submitted a list of additional documents containing with total 56 documents, amongst those 05 documents were denied on the ground that those are not relied upon documents, however relevancy was to be seen by the delinquent official but not by the Inquiry Officer vide order sheet No. 11 dated 12.08.2016. However, only 18 documents have been made available by the presenting officer out of 51 documents allowed by the Inquiry Officer vide letter dated 30.12.2016. No reasons have been given by the disciplinary authority for not making available those documents. Thus the applicant has been denied the fair opportunity to defend himself and arbitrarily in the course of inquiry proceedings prosecution witnesses No. 2 and 3 were dropped vide order sheet dated 07.03.2017. As the proceedings of the prosecution side was over on 07.03.2017 and the applicant submitted his written brief to the Inquiry Officer on 07.03.2017 but the content of the said written brief was not appreciated by the Disciplinary Authority and without basis the Presenting officer in his brief asserted that all the charges have been proved. And against the Presenting Officer report the applicant also submitted his brief on 17.05.2017. Where he mentioned that the documents sought by the applicant as additional documents have not been given to the applicant Page 3 of 13 OA No. 375 of 2018 which causes prejudice to the applicant to defend himself. None of the prosecuting witnesses have supported the case of the prosecution as their statements were self-contradictory to other statements. And that it was not substantiated that the applicant worked as System Manager on the relevant point of time. Hence, all allegations have been washed out and so he requests to drop the charge sheet against the applicant and he alleges that the Inquiry Officer has ignored the basic facts and evidences and submitted his report based on conjectures and surmises and his findings are perverse. As the applicant had not worked as System Manager during the period from 22.09.2012 to 06.03.2014 but only after transfer of Mayank Sharma, the applicant had worked as System Manager for the period between 30.05.2013 to 06.03.2014 at Lalitpur Post Office. Besides that on the direction of Post Master, the applicant had worked as System Manager from time to time. The Inquiry Officer has proved the charges of not regular checking of all the system, its maintenance and software, while working as System Manager as proved. But charges of having knowledge regarding installation of Data Entry Module in Accounts Branch, and the allegation regarding embezzlement of Rs. 3,07,74,350/- through Data Entry Module and by making fake withdrawal from Saving Bank Account and violation of Divisional Office letter dated 01.10.2008, Rule 4 of Postal Manual Vol. VI, Part I were found not proved. However, he contends that the Inquiry Officer has further illegally concluded as proved the allegation regarding violation of SB Order No. 11/2012 dated 06.09.2012 as proved which is self-contradictory. So the inquiry report is liable to be quashed.
4. The inquiry report has been served on the applicant by the disciplinary authority without attaching his disagreement note, as Disciplinary Authority concluded all charges as proved. The Inquiry Officer had considered proved the charges that the applicant had not checked all Page 4 of 13 OA No. 375 of 2018 the systems regularly etc. Further, the Inquiry Officer had considered proved that provisions of SB Order No. 11/2012 dated 06.09.2012 has been violated which provides that these provisions was to be followed by the Post Master with the help of System Manager, as such the applicant being a System Manager, he cannot be discharged from the said charge. However, the applicant concludes that these charges cannot be sustained on the basis of report of the Inquiry Officer.
5. And the applicant further contends that the Disciplinary Authority had passed impugned punishment order on 30.06.2017 vide which he imposed punishment of recovery of Rs. 7,20,000/- @ Rs. 10,000/- per month in 72 instalments effective from July 2017 alongwith reduction of Pay to the lowest stage of the basic pay of the present grade pay with cumulative effect w.e.f. 01.07.2017 for 5 years. It was specified that during this period the applicant would not get increments but after expiry of the said period it would not have any effect on future increments.
6. The applicant further contends that one of the penalties is a minor penalty and another one is a major penalty. Hence, it is an amalgamated punishment, which as per applicant there are several rulings of Hon'ble Apex Court and Hon'ble High Courts that the disciplinary authority cannot impose such amalgamated punishment in one proceeding. The applicant further alleges malice against the respondents for suspending him and extending his suspension for quite long time without affording him adequate opportunity of being heard and imposing disproportionate penalty and amalgamated penalty, and due to which the order of Disciplinary Authority and Appellate Authority are untenable and they should be set aside and hence the applicant's OA should be allowed.
7. On notice the respondents have filed counter affidavit. In the counter affidavit the respondents say that the applicant was working as Page 5 of 13 OA No. 375 of 2018 System Manager, Lalitpur Head Post Office during the period of 30.05.2013 to 06.03.2014 and did not perform his duty as per division office letter dated 01.10.2008 and instructions mentioned in SB Order No. 11/2012 dated 06.09.2012 and based on pseudonymous complaint dated 04.03.2014 a team was constituted to inquire into the irregularity. And during the course of preliminary inquiry, it was found that the fraudulent withdrawals/payments have been made from certain SB accounts by making fake entries of deposits in back date in the master data of SB accounts through Data Entry Module, misusing the password of supervisors. And subsequently forged withdrawals were made on identification of certain National Saving Agent and embezzlement of huge Government money to the tune of Rs, 3,07,74,350/- has been committed by certain Postal Employees with the help of some other Postal employees of Lalitpur Head Post Office and some National Savings Agents. And accordingly due to gravity of the charges and role of the applicant he was placed under suspension vide memo dated 28.03.2014. Before the expiry of 90 days the said suspension order was reviewed by the review committee which wanted it to be extended further and accordingly it was extended for several occasions. The applicant had not functioned as System Manager, Lalitpur and performed his duties as per division office letter dated 01.10.2018 and instruction dated 06.09.2012. Knowingly he did not take the backup of Lalitpur Head office daily, weekly and monthly basis in CD and further not handed over it to the Postmaster, Lalitpur, Head Office with acknowledgment. And due to such failure, unauthorized installation and operation of data entry module of Sanchay Post Software in account branch by which fake entries have been made in different SB account and embezzlement of huge amount of Rs. 3,07,74,350/- has been made and the same could not be detected in time and accordingly, charge sheet under Rule 14 of CCS (CCA) Rule 1965 Page 6 of 13 OA No. 375 of 2018 was issued on 29.04.2015. On completion of inquiry under Rule alongwith the inquiry report dated 26.05.2017 was given to the accused vide letter dated 19.06.2017 for submission of defence representation within 15 days and the applicant has submitted his defence representation on 27.06.2017. After examining all records of the case and report of the Inquiry Officer the Disciplinary Authority decided to impose recovery of Rs. 7,20,000/- in 72 instalments of 10,000/- per month and also given the penalty of reduction of his present basic pay to minimum for a period of 05 years with cumulative effect w.e.f. 01.07.2017. The said case was also inquired by the CBI where the applicant is identified as an accused and prosecution sanction has been given. Against the punishment order the applicant has preferred an appeal dated 14.08.2017, which was rejected by the Appellate Authority vide order dated 29.01.2018. Aggrieved, by the same the applicant has filed this OA.
8. The inquiry has been conducted as per procedure laid down and based on the preponderance of probabilities inferences have been drawn and accordingly, charges have been considered proved and based on the gravity of the charges and the role of the applicant reasonable punishment has been imposed on the applicant. Hence, there is no illegality in the case and everything is as per rules and procedures. Hence, the respondents argued that the OA should be dismissed.
9. Rejoinder has been filed by the applicant wherein he has reiterated his stand as in the OA.
10. Supplementary affidavit has been filed by the respondents wherein they reiterate their stands as in the counter affidavit.
11. The case came up for final hearing on 11.12.2023. Shri S.K. Kushwaha, learned counsel for the applicant and Shri Amitabh Kumar Page 7 of 13 OA No. 375 of 2018 Sinha, learned counsel for the respondents were present and heard. We have gone through the records carefully and considered the rival contentions.
12. In the disciplinary cases the scope for judicial review is very limited as has been defined in various judgments of the Hon'ble Apex Court. The Hon'ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;Page 8 of 13 OA No. 375 of 2018
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
Simple examination of the present case we can see that above short comings are not present in the instant case.
13. As CBI inquiry and criminal investigations were simultaneously going on in the case in hand, hence there was constrained in providing original records to the applicant but department did provide sufficient records which was adequate for the applicant to make out his defence. The applicant has failed to pinpoint any specific document or information which was not given to him and was so vital that it could have changed his defence for quality of evidence before the Inquiry Officer and his contention that he was not provided adequate document and opportunity of being heard is not sustained from the records which are available before us. The inquiry report is on record which is from page 44 onwards of the OA and from the contents of the inquiry report we can confirm that inquiry has been meticulously conducted as per procedure laid down and evidences have been appreciated by the Inquiry Officer properly and in the report it is clearly stated and concluded that from documentary and Page 9 of 13 OA No. 375 of 2018 other evidences adduced it is proved that after transfer of Shri Mayank Sharma from 30.05.2013 to 06.03.2014 the applicant was working as System Manager, Lalitpur and in addition Postmaster had been giving off and on the charge of System Manager to the applicant. So during his charge as System Manager the allegation regarding that he did not check the systems regularly of Head Post Office, Lalitpur, and maintained it properly and kept informed himself of software etc. properly, substantiated by evidences and is proved.
14. Although, it doesn't come out from the evidence that the applicant was having direct information of any data entry module installed unauthorisedly in the account section, and that through data entry module from various SB accounts fraudulent withdrawal of Rs. 3,07,74,350/- was done and defalcated is not proved against the applicant and that the violation of letter dated 01.10.2008 was also not conclusively substantiated but the instruction dated 06.09.2012 was clearly to be complied with the help of System Manager by the Postmaster, hence System Manager cannot be exonerated from the said responsibility. So clearly in the conclusion three things emerges that the applicant was System Manager for certain time between 30.05.2013 to 06.03.2014 and he had responsibility to maintain all the system in the Head Office and to take its backup and know all details. Hence, for not maintaining those he had seriously committed the misconduct as alleged in the charge sheet. Although, the Inquiry Officer concluded that there was no direct evidence about installation of unauthorised data entry module in the Account Section and defalcation of more than rupees three crore with the direct connivance of the applicant. From the reading of the charges and the nature of the charges, and their interrelation ships it is clear that System Manager who had to take backup regularly and as he failed to take up such backup, which could have been used for verifying any Page 10 of 13 OA No. 375 of 2018 unauthorised user in the system or unauthorized entries at various point of time in various accounts, applicant could not be completely exonerated. Even though direct evidence may not have been there the other two inferences regarding existence of unauthorized data entry module in Account Section and the defalcation of amount flows out of the core responsibility of System Manager of keeping close watch on the system and his responsibility to take regular backup and assisting the Postmaster in his overall supervision of the complex software mechanism.
15. So, from the evidence available on record, the contention of the applicant that he never worked as System Manager and so no charges can ever be proved against him is absolutely erroneous and without any substantive basis and hence Disciplinary Authority has rightly found some anomaly in the conclusions drawn by the Inquiry Officer in his inquiry report. Based on his own conclusions regarding culpability of the applicant vis-a-vis non detection of unauthorized data entry module in the Account Section and fraudulent withdrawal of more than Rupees three crore from various Saving Bank Accounts was right; but the authorities should have given some opportunity of explicit hearing about this specific point to the applicant through issuing him a dissent note service of a dissent note, when the disciplinary authority differed in his conclusion with the inquiry officer, was a procedural pre-requisite.
16. Also the applicant has emphasized that there is amalgamation of minor and major penalty imposed in the same inquiry, which as per the order of the Hon'ble High Court in Service Single No. 7118 of 2011 - Raj Bahadur vs. Lucknow University through Registrar Lko. & Ors and Service Bench No. 719 of 2015 - Union of India through Secy. Ministry of Post Dak Bhawan & Ors. vs. Central Administrative Tribunal Lko. Bech Lko and another, wherein they observed regarding Page 11 of 13 OA No. 375 of 2018 the composite orders or amalgamated orders with major and minor penalty in the same disciplinary inquiry is not permissible in law.
17. Further the applicant has relied the order of Hon'ble Supreme Court in the case of Roop Nigh Negi vs. Punjab National Bank - 2009 (1) SCC (L&S) 398 and M.V. Bijlani vs. Union of India and others - 2006 SCC (L&S) 919, wherein the Hon'ble Apex Court had mainly ruled in following manner:-
"....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
18. From this citation it is not clear which aspect of the inquiry is not inconformity of this judgment? Hon'ble Apex Court's in a catena of judgments explained the limited scope of judicial scrutiny of disciplinary inquiries where it is made amply clear that the Court cannot get into the shoes of the Inquiry Officer and the Disciplinary Authority and re- appreciate evidence, or substitute its own evaluation for the imposition of penalty. Court can see only, if any, violation of principle of natural justice and irregularity in procedures are there. The applicant has failed to show any such irregularity in the proceedings of the Inquiry Officer, Disciplinary Authority or the Appellate Authority. But as the Disciplinary Authority has not given and served on the applicant a disagreement note before disagreeing with the inquiry report, to that extent inquiry vitiates. In that sense limited opportunity was given to the applicant to comment on the aspects of inquiry report which were taken as not proved by the Inquiry Officer. Hence, considering it as violation of principles of natural justice, we consider it appropriate that in the fitness of things the Disciplinary Page 12 of 13 OA No. 375 of 2018 Authority may redo the inquiry from the stage of issuance of a disagreement note to the applicant giving reasons for such different conclusion from the side of the Disciplinary Authority invariance to the conclusions of the Inquiry Officer and giving ample opportunity to the applicant to respond to the same and then after considering his defence, pass appropriate order. And while passing order the Disciplinary Authority may also keep in mind the contention of the applicant about amalgamated or mixed imposition of penalties as has mentioned in the two cited Hon'ble High Court's orders. We do not find any other irregularity in the instant case. Rhetorical objection of malice taken by the applicant is not substantiated by the applicant. We do not find any short comings in the charge sheet either, hence it cannot be set aside. With these observations, we pass following orders:
"The OA is partly allowed. The impugned orders dated 30.06.2017 and 29.01.2018 are set aside, and the Disciplinary Authority is directed to conduct the inquiry afresh from the stage of examination of inquiry report by the Disciplinary Authority, who should make out a clear disagreement note and serve the same on the applicant alongwith the inquiry report and take other required steps strictly as per laid down rules and procedures. And all further actions should be completed within a period of four months from the date of receipt of certified copy of this order. All pending MAs, if any, shall stand disposed of. No costs."
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (A) Member (J)
/Piyush/
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