Central Administrative Tribunal - Ernakulam
V.Sahadevan vs Union Of India Represented By Its ... on 15 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00030/2016
Thursday, this the 15th day of December, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
V.Sahadevan, S/o.A.Vasu,
Retired Mail Overseer,
Trivandrum East Sub Division.
Residing at Vishnu Bhavan, Mulayara PO,
Vellanad, Thiruvananthapuram District - 695 543. . . . Applicant
(By Advocate Mr.Shafik M.A.)
Versus
1. Union of India represented by its Secretary,
Department of Posts, Ministry of Communications & IT,
Dak Bhavan, New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. The Superintendent of Post Offices,
Thiruvananthapuram South Division,
Thiruvananthapuram - 695 036. . . . Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
This application having been heard on 15 th November 2016, the
Tribunal on 15th December, 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant is aggrieved by the refusal of the respondents to disburse his retiral benefits in the guise of a disciplinary proceeding. The applicant retired on superannuation on the afternoon of 31.10.2015 from the post of Mail Overseer (MACP-III) Trivandrum East Sub Division in the pay scale Rs.9300-34800 + GP Rs.4200/-. Prior to his retirement he was under treatment at Pankaja Kasthuri Ayurveda Medical College, Kattakada from 29.10.2015. When he returned home on 5.11.2015 after discharge, he found some papers pasted on the gate of his house. The papers were found in a wet and torn condition due to rain and wind.
2. The applicant understood that it was Annexure A-1 charge memo issued to him under Rule 14 of the CCS (CCA) Rules, 1965. The applicant submitted a reply dated 7.11.2015 along with a copy of the discharge card from the Medical College Hospital. The applicant recalls that earlier he was called upon to make good the loss of an amount of Rs.397010/- in a fraud committed by the Branch Postmaster and furnish a reply within three days of the receipt of the notice. The applicant sent a reply denying his liability to make good the loss. The applicant states that the 3 rd respondent had served a notice on the applicant stating that one K.Jayalakshmi (late), Ex- GDSPM, Trivandrum Ramakrishnan Mission BO had committed a fraud in the Branch Office. The primary offender is no more. The loss to the Government remained unsettled. The investigating officer is stated to have reported that the applicant who was the Mail Overseer had failed to detect the fraud in 3 Saving Bank accounts and 2 Time Deposit accounts which were reported by him as verified while doing duty as the Mail Overseer. Therefore, the applicant was called up on to furnish his reply within three days of the receipt of the notice and also make good the loss amount of Rs.397010/-. The applicant sent a reply dated 12.10.2015 denying his liability to make good the loss.
3. The applicant submits that the check and verification made by the Mail Overseer during the visit to a Branch Post Office (BO) are invariably noted in the diary, copy of which is submitted to the Sub Divisional ASP every week along with the visit report and the list of SB pass books/RD pass books (5 each) checked and TD pass book, if any. The BO working hours are for 4 hours only. If the pass books are checked outside the working hours of the BO, the BAT (Balance after Transaction) and DLT (Date of Last Transaction) in respect of the account are noted down and the list of SB/RD pass books so checked are also forwarded to the Sub Divisional ASP along with the dairy. Applicant argues that it is the job of ASP to send the list containing verification report to the HO/SO concerned and get them checked and confirmed with the post office record and in case of discrepancy noticed, take up further investigation in the matter. Applicant also argues that the alleged loss of 3 lakhs in the 2 TD accounts mentioned in Annexure A-3 notice is virtually a mistake of fact and not admitted for the reason that the credit is only Rs.200/- in the PO records and the receipt was also given to the depositor for that amount only. Applicant alleges that an attempt appears to have been made by the pass book holder himself to defraud the Postal Department on realizing that the concerned BPM committed suicide after committing a fraud.
4. The items of the job required to be carried out by the Mail Overseer are spelt out in clear terms in Rule 355 (2) of Postal Manual Volume VIII. No duty is prescribed to verify all entries of the pass book during his visit to Post Office. The provision in Rule 355 (3) would state that the entries in the diary should be made in duplicate, and at the end of each week, ie., on the 1st , 8th , 16th , and 24th of each month, the upper of the two leaves forming the diary for the preceding week, should be torn out of the book and despatched to the Inspector to whom a summary of work in form (Genl-
12) should be sent with the diary for the last week of the month.
5. The applicant submits that the Mail Overseer is a supporting staff of the Sub Divisional head. In each quarter of the year he visits the Branch Offices on his beat and verifies the balances in cash and stamps of the Branch Offices situated in his beat and notes the result in his diary besides other routine checks and verification and reports the result of the check in his diary. As regards duties of Mail Overseer in the area of SB and RD work performed in B.Os, the duties required of Mail Overseer under Rule 355 (2) are that he has to check the used and unused receipts in the current book of Saving Bank Preliminary receipts to see that they are in consecutive order and that the used ones have been issued in chronological order.
6. The applicant argues that the articles of charge framed against him under Annexure A-1 is for violation of Rule 355 (2) and (3) of Postal Manual Volume VIII. On a perusal of the provisions contained in Annexure A-6 Rules, it will be seen that no duty is cast on the Mail Overseer to verify the entries in SB/RD pass books of individual depositors in the normal course with reference to the entries made in the Post Office records. There is no case that any specific case was referred to the applicant/Mail Overseer for making a special report by any of his superior officers. As far as the SB and RD accounts of the BO are concerned the only duty prescribed in Rule 355 (2) is that the Mail Overseer should check the used and unused branch office receipts in the current book of receipts to see that they are in consecutive series up to 100 and that the used ones have been issued in chronological order.
7. Applicant also argues that the mode of service of the charge memo is prescribed in Rule 30. It is provided in Rule 30 of the CCS (CCA) Rules, 1965 that 'Every order, notice and other process made or issued under these rules shall be served in person on the Government servant concerned or communicated to him by registered post'. The relief sought by applicant is to set aside Annexure A-1 being illegal and arbitrary and to direct the respondents to sanction and disburse the pension and retirement gratuity of the applicant and commuted value of pension and other retiral benefits with penal interest at the rate of 12% per annum expeditiously and at any rate, within a time frame that may be fixed by this Tribunal.
8. The respondents in their statement submit that RK Mission Branch Office is a Branch Post Office which lies in the beat of the applicant. It was detected that the Gramin Dak Sevak Branch Postmaster, RK Mission BO committed fraud to the tune of Rs. 9,87,463/-. The loss of public money due to the said fraud could not be recovered, as the GDSBPM committed suicide upon detection of the fraud. The modus operandi adopted by the GDSBPM was to accept deposit in SB/RD/TD accounts from the depositors, make illegible entries in the passbooks, impress unclear date stamps and return the passbook to the depositors. The duties of a Mail Overseer are supervisory in nature and the Mail Overseer is required to make quarterly visits to each branch office in his beat and exercise check over the work of the B.Os allotted to him. It is the duty of the Mail Overseer to report the result of his verification and checks to the Sub Divisional head by submitting timely reports.
9. On past work verification, it was found that the lapses and laxity on the part of the applicant also facilitated the GDSBPM to continue making fraudulent entries in the passbooks and misappropriating the deposits. Hence, the applicant was identified as a subsidiary offender. As a subsidiary offender as per letter, the applicant was intimated on 7.10.2015 to make good a portion of the loss as the same had occurred due to lack of supervision. The applicant immediately thereafter applied for commuted leave on medical grounds from 10.10.2015 to 22.10.2015. The applicant intimated respondent vide letter dated 12.10.2015 that he was not responsible for the loss. He also submitted a representation on 21.10.2015 seeking copies of some documents and an extension of 10 days to submit a reply to the letter dated 7.10.2015. Permission accorded to the applicant in this regard was handed over to ASP, Trivandrum East Sub Division to be delivered to him on 26.10.2015, when he was expected to join duty after the expiry of the leave.
10. As the applicant did not join duty on expiry of the above leave, charge sheet was issued to him on 26.10.2015 by registered post with acknowledgement due. The charge sheet could not be delivered as the applicant was not available at his address and the house was found locked and the whereabouts of the applicant were not known. While so, a leave application dated 23.10.2015 along with a medical certificate of Community Health Centre, Vellanad dated 23.10.2015 seeking leave from 23.10.2015 to 29.10.2015 and another leave application seeking commuted leave from 30.10.2015 to 31.10.2015 were received. Another attempt to deliver a copy of the charge sheet was made through ASP, Nedumangad Sub Division on 29.10.2015 and this service also could not be effected. Hence, left with no option, the charge sheet was pasted on the gate of the compound wall of the house of the applicant in the presence of witness GDSMD, Mulayara and Mail Overseer of Nedumangad Sub Division as the applicant had neither reported for duty on the due date nor did he respond to the intimation served through his sister. Rule 30 of the CCS (CCA) Rules, 1965 stipulates that every order, notice and other process made or issued under these rules shall be served in person on the Government servant concerned or communicated to him by registered post. Hence, the charge sheet sent to the applicant by registered post on 26.10.2015 is deemed to have been delivered to him while he was still in service. The Apex Court in Delhi Development Authority Vs. H.C. Khurana (1993) 3 SCC 196 observed as follows :
'15. The issue of charge-sheet, therefore, means its dispatch to the government servant, and this act is complete the moment the steps are taken for the purpose, by framing the charge-sheet and dispatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'charge- sheet has already been issued to the employee'.'
11. The disciplinary case initiated against the applicant while in service under Rule 14 of the CCS (CCA) Rules, 1965 is to be continued under Rule 9 of the CCS (Pension) Rules, 1972 as the applicant had retired on 31.10.2015. Respondents submit that the applicant will be given sufficient opportunity to defend himself during the course of the inquiry and to put forth his defence to the charges in the charge sheet.
The Apex Court in Union of India Vs. Ashok Kacker (1995) Suppl. (1) SCC 180 has held that it is premature of a Court to consider a challenge to the charge sheet where the employee has just rushed to the Court on receiving the charge sheet. In the said decision the Apex Court held as follows :
'The respondent has the full opportunity to reply to the charge sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge sheet and the appropriate course for the respondent to adopt is to file his reply to the charge sheet and invite the decision of the discipilinary authority thereon.'
12. In Union of India & others Vs. Upendra Singh (1994) 3 SCC 357 the Hon'ble Court dealt with the jurisdiction of the Tribunal or court at the stage of issuing of charge sheet and held as follows :
'6. In the case of charges framed in a disciplinary inquiry the Tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the discrplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the discipilinary authority orthe appellate authority as the case may be.'
13. Payment of provisional pension has been authorized to the applicant as per Director Accounts Letter No.5211/Pen4/11434/2015 dated 13.1.2016.
14. The applicant in his rejoinder submits that he had submitted leave application dated 23.10.2015 along with medical certificate of Community Health Centre, Vellanad. In the circumstances sending charge sheet dated 26.10.2015 to the home address of the applicant was not justified.
15. Heard the learned counsel for the parties and perused the written submissions made. The respondent argues that applicant by his lack of supervision while working as Mail Overseer, facilitated the Branch Post Master to cheat depositor by making fraudulent credit entries in the pass books and misappropriating the physical cash instead of depositing it into the Post Office Account. Applicant contends that he is covered under Annexure A-6 Volume VIII Post & Telegraph Manual Chapter 7. However, he overlooks Rule 149 of Post Office Savings Bank Manual Volume I which stipulates that the Mail Overseer is required to verify the pass books at the Branch Post Office. If he had verified the pass book entry with the Branch Post Master's daily account, he would have discovered that whereas entries of deposit are shown in the pass book, the sums are not reflected as a receipt in the Daily Account of the Branch Post Master. Merely perusing entries in passbooks would reveal no information unless it is compared with the office record of receipts and this would be substantiated with entries in the Daily Account which in the debit and credit column would reflect deposits and withdrawals, a copy of which would have been available with the BPM. However, it is not for the Tribunal to look into these aspects reflected in the reply statement. It is for the discipilinary proceedings, Inquiry Officer and the discipilinary authority to go into the details of charge levied and a proper inquiry will establish the charges as proved or otherwise. It is not for the Tribunal to arrive at a finding on the matter. The applicant will be given adequate opportunity to present and defend his case.
The innocense or otherwise of the applicant is not to be established by the Tribunal.
16. Applicant brings to our notice that the charge memo under the first article quotes applicability of Rule 355 (2) and (3) of Postal Manual Volume VIII. Respondent points to relevance of Rule 149 of Post Office Savings Bank Manual Vol.I to which no reference has been made in the charge memo. Thus applicant points out a technical fault of not quoting the appropriate rule. He argues that the charge levelled is not appropriate and is defective and hence discipilinary proceedings ought to be dropped. It is not for the Tribunal to look into the accuracy or otherwise of the charge memo. It is for the respondent to quote the appropriate rules in the charge memo.
17. Due to non-availability of applicant at the address known to the office, the service of charge memo was made by pasting it on the known address at a place where it is likely to be noticed by the applicant, as per instructions circulated by the Department of Personnel, Government of India. We find no shortcoming in the service of the charge memo. The Apex Court has ruled that dispatch of the charge memo by registered post to the correct residential address will also be deemed to be sufficient service made. Respondent also argues that the service of charge memo was made on 23.10.2015 much before the medical leave application was received in the respondent office on 30.10.2015.
18. The applicant is entitled to benefits of Rule 69 of CCS Pension Rules. Rule 69 (i) (b) allows provisional pension to be authorized by the Accounts Officer during the period commencing from the date of retirement, up to and including the date on which after the conclusion of departmental proceedings, final orders are passed by the competent authority. This has been done by respondent on 13.1.2016. Hence the second prayer has already been granted. No further direction is required to be issued in that behalf.
19. We are not in favour of setting aside the charge memo issued. An article of charge gets culminated into an order affecting the right of the applicant only when an inquiry report is submitted and charge undergoes metamorphosis into a punishment. Inquiry is conducted as an attempt to establish the truth of the allegations or otherwise. This would not be right moment to stall the inquiry or retard the investigative process to find actual facts with the participation of and in the presence of the parties. The applicant has to place all relevant materials in the enquiry which will help the Disciplinary Authority to judge the correctness or otherwise of the allegations made in the charge. This is not the stage to interfere, guided by misplaced sympathy or on compassionate grounds. In Union of India Vs. Upendra Singh (1994) 3 SCC 357 and Secretary Ministry of Defence & Others Vs. Prakash Chandra Mirdha (2012) 11 SCC 565 the Hon'ble Apex Court had held that Tribunal had no jurisdiction to examine the correctness of charges and also cannot take over the role of the disciplinary authority. The truth or accuracy or establishment of the charges is a matter for the Disciplinary Authority to go into. The plea that the charges should be properly substantiated by quoting the proper applicable rules is a matter on which the Disciplinary Authority has to take a decision. Hence the prayer for quashing the charge sheet is dismissed.
20. Accordingly the O.A is disposed of. In view of the order in O.A., M.A.No.413/2016 is closed. No costs.
(Dated this the 15th day of December 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp