Central Administrative Tribunal - Bangalore
K M Annapurnamma vs D/O Posts on 23 November, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00119/2022
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Smt. K.M. Annapurnamma,
Aged 64 years,
W/o Nandish,
Retired Assistant Post Master,
Rajajinagar HO, Bangalore-560 010.
Residing at Shankara Nilaya,
5th Cross, 3rd Main, Gokula Extn.,
II Stage, Tumakur-572104. ..Applicant.
(By Advocate Shri P. Kamalesan)
Vs.
1.Union of India,
Reptd. by Secretary,
Department of Posts,
Dak Bhavan, New Delhi-110001.
2.Director General,
Department of Posts,
(VP Section)
Dak Bhavan, New Delhi-110001.
3.Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110069.
4. Chief Post Master General,
Karnataka Circle,
Bangalore -560 001.
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5. Senior Superintendent of Post Offices,
Bangalore West Division,
Bangalore-560086. ....Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondents No. 1, 2 4 & 5-
through video conference.
Shri N. Amaresh, Sr. Panel Counsel for Respondent No.3- through video
conference.)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) Quash the Senior Superintendent of post offices, Bangalore West Division, Bangalore Memo No.F/4-2/16-17/Disc-2 dated: 28.8.2017 (Annexure-A7), vide which the enquiry process was proposed to be held against the applicant.
b) Quash the I.O. report dated: 26.2.2018 (Annexure-A11).
c) Quash the Union Public Service Commission, New Delhi, letter F No.3/453/2019-S.I dated: 16.2.2021 (Anexure-A15).
d) Quash the Government of India, Ministry of Communication, Department of Post, New Delhi-110001, order vide letter No. C-
14016/74/2019-VP dated: 27.7.2021 (Annexure-A17), vide which a penalty of "withholding of 10% monthly pension otherwise admissible to the applicant, for a period of one year", has been imposed.
e) Consequently declare the entire proceedings as null and void. 3
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f) Grant any other relief as deemed fit into the facts and circumstances of the case, in the interest of justice and equity.
2. The facts of the case as pleaded by the applicant, and the grounds on which the relief has been prayed for, in her pleadings, are as follows:
a) The applicant was working as Assistant Post Master at Rajajinagar HO and retired on superannuation on 28.2.2018.
b) Disciplinary proceedings under Rule 14 of CCS(CCA Rules 1965) were contemplated by Disciplinary Authority vide Memo dated:
28.8.2017, and the proceedings continued after retirement under Rule 9 of CCS pension rules 1972. Finally a penalty of withholding of 10% of the monthly pension for a period of one year was imposed on advice of UPSC.
c) The applicant while working as Assistant Sub Post Master at Sheshadripuram PO. Bangalore, made an error extract No.60/dated:
31.1.2017, regarding the discrepancies in entries of RD accounts. The error extract was seen by Post Master, Sheshadripuram, on 31.1.2017.
d) The Post Master Sheshadripuram PO submitted a report to Senior Superintendent of Post Offices, Bangalore West Division, Bangalore, regarding the irregularities committed by Sri Prakash Chalke P.A. in charge of SB counter 2 from 23.1.2017 to 31.1.2017. 4
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e) The applicant submitted a representation on 7.2.2017 reporting the irregularities observed in respect of the RD Accounts handled by Shri P. Chalke, PA, Seshadripuram PO.
f) The applicant was kept under suspension by the Senior Superintendent of Post offices, Bangalore West Dn., Bangalore, vide Memo No.F/4- 2/16-17 dated: 17.2.2017. The ASP Bangalore West Sub Dn. II obtained statement from one Sri Byaranayaka, PA Sheshadripuram on 4.7.2017. The Assistant Superintendent of post offices, Bangalore west Sub Dn. II, submitted his preliminary investigation report to Senior Superintendent of post offices, Bangalore West Dn., vide letter No.ASP /SDP/RD/ PPF/Dlgs dated: 20.7.2017.
g) The Senior Superintendent of Post offices, Bangalore West Division, Bangalore, issued a memorandum of charges under Rule 14 of CCS (CCA) Rules 1965 to the applicant, vide memo No.F/4-2/16-17/ Disc 2 dated: 28.8.2017. The applicant submitted a representation on 5.9.2017, 20.9.2017 and 10.10.17, to Senior Superintendent of Post offices, Bangalore West Dn., Bangalore, requesting him to furnish some documents to prepare her detailed reply to the charge memo. The Senior Superintendent of Post Offices, without furnishing the documents, and without giving any reply to the applicant, appointed a I.O. vide letter No. F/4-2/16-17/Disc/2/ dated: 4.10.2017.
h) The applicant submits that the post Master Sheshadripuram, Bangalore, informed the Senior Superintendent of Post Offices, Bangalore West 5 OA.No.119/2022/CAT/Bangalore Bench Dn., stating that the circular No.L2/CBS/dlgs dated: 27.10.2015/ LS/ Misc/dlgs dated: 24.6.2015, and F/L-2/15-16/ II dated: 10.6.2016, were not available at that office, vide letter No. SDP/Misc/17-18 dated:
16.1.2018.
i) The I.O. submitted his report on 26.2.2018, holding that the Articles I & II were proved beyond any doubt against the applicant. The applicant submitted a representation dated: 28.9.2020, to the CVO, Department of Posts, New Delhi.
j) The Union Public Service Commission, New Delhi vide letter F No.3/453/2019-SO dated; 16.2.2021, submitted its advice to the Ministry of Communication, Department of Posts. The applicant submitted an appeal to Director General, Department of Posts, New Delhi, on 11.3.2021, regarding the advice of UPSC. The Government of India, Ministry of Communications, Department of Posts, VP Division New Delhi, imposed a penalty of "withholding of 10% ( Ten percent) of the monthly pension, otherwise admissible to the C.O. for a period 1 (one) year" vide letter No.C-14016/74/2019-VP dated:
27.7.2021.
k) The applicant submits that it was alleged in the charge Memo vide Article I that the applicant failed to check on the SB counter work, as required under Rule 2 (3) and Rule 2(4) of POSB Manual Vol. I.
l) The applicant submit that one P.A. working in the SB counter namely Prakash Chalke, working at Seshadripuram P.O. was receiving the 6 OA.No.119/2022/CAT/Bangalore Bench deposits from the public and not accounting the same in the department of accounts. It came to be known with regard to missing credits in respect of RD account No.124713368 on 31.1.2017 when the main culprit was on leave. The matter was reported by the applicant through an error extract No.60 dated: 31.1.2017 to the post master of Sheshadripuram, P.O.
m) It was alleged in Article 1 of Statement of Articles of charges against the applicant that she failed to supervise the checks on SB counter work as required under Rule 2(3) and Rule 4 of POSB Manual Vol. I. Rule 2(3) stipulates that the post master will however remain personally responsible for the general functioning of the SB branch. Rule 2(4) stipulates "If the officer to whom the duties of the SB branch have been delegated, notices any erasures or alteration of withdrawal (Form SB.7) or account closure form (SBTA) in the list of transaction, these will be brought to the personnel notice of the post master who will report the matter at once by name to the Divisional Head confidentially. The applicant brought to the notice of post master on 31.1.2017 vide EE No.60, regarding the irregularity committed by the SB counter clerk. Therefore, the charge that the applicant failed to supervise the SB branch, and violated Rule 2(3) and 2(4) of Postal Manual Vol. I is baseless and without any credible evidence.
n) The Article II of the charge Memo was that the applicant failed to implement the instructions issued vide letter No.L2/Misc/Dlgs dated:24.6.2015, No. L2/CBS/dlgs dated: 27.10.2015 and No.F/4-2/ 7 OA.No.119/2022/CAT/Bangalore Bench 15-16 /11 dated: 10.6.2016, which facilitated to commit frauds in SB counter Sheshadripuram. The applicant submits that the above- mentioned letters were not circulated among the staff working at Sheshadripuram P.O. and such letters were not available in the files of Sheshadripuram P.O. as per Post Master, Sheshadripuram letter to Senior Superintendent of post offices, Bangalore West Dn, vide letter dated: 16.1.2018 (Annexure-A10). Therefore, the allegation that the applicant failed to implement the instructions dated: 24.6.2015, 27.10.2015, and 10.6.2016, is unsustainable.
o) The applicant requested the disciplinary authority to furnish some relevant documents to submit reply to the Memo of charges vide letter dated: 5.9.2017, 20.9.2017, and 10.10.2017 (Annexure-A8). The disciplinary authority failed to furnish the documents as requested, and without the reply statement from the applicant, proceeded to appoint I.O. vide Annexure A-9, which is illegal and against the provisions of rules.
p) The charges were framed without following the procedure prescribed under rule 14(2) of the CCS (CCA) Rules 1965. The opening sentence of said Rule 14(2) stipulates that the disciplinary authority has to form an opinion to frame the charges and contemplate disciplinary proceedings. The applicant submits that information obtained through RTI vide letter dated: 26.8.2020, reveals that no such opinion is available in the concerned records (Annexure-A12). Therefore, the 8 OA.No.119/2022/CAT/Bangalore Bench charge memo itself suffers from procedural irregularity, therefore, the entire proceedings were vitiated.
q) Without allowing reasonable opportunity to submit the statement of defense, as prescribed under Rule 14(4) of CCS(CCA} Rules 1965, and without recording the findings as required under Rule 14(5) of CCS (CCA Rules) 1965, the disciplinary authority appointed I.O., violating the procedure prescribed under Rule 14(5) of CCS(CCA) rules 1965.
r) The respondents have kept the case pending for more than 2 years without finalization and referred it to UPSC for their advice during February 2020, only after the applicant filed O.A.1643/2019 for early disposal of the case. Therefore, the respondents, violated the DOPT OM No.372/3/2007 - AVD III (vol. 10 dated: 14.10.2013), wherein a time limit of 18 months has been prescribed for finalization of Departmental proceedings from the date of initiation.
s) She was only a group C official and the action of respondents in seeking, UPSC advice in respect of Group C official is not based on the applicable rules and it is only with sole intention to cause delay in finalization of proceedings early. Neither the charge Memorandum nor the I.O. report, mention anything regarding the grave misconduct of the applicant. The UPSC only concluded from case records, that Article I & 2 amount to negligence and did not arrive at conclusion regarding "grave misconduct ".
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t) The order of Government of India, Ministry of Communications, Department of Posts V.P. Division, New Delhi dated: 27.7.2021, imposing the penalty, reveals that the competent authority did not analyze the case independently and mechanically applied the advice of UPSC, which is against the rules.
3. The respondents No.1, 2, 4 & 5 have filed their written statement wherein they have averred as follows:
a) The applicant was working as Assistant Sub Postmaster (for short, ASPM) in Seshadripuram Post Office with effect from 07.06.2015.
Seshadripuram Post Office is having two Finacle counters dealing with transactions of Savings Bank, Recurring Deposit, Monthly Income Scheme, Public Provident Fund etc. with single window system i.e., any transaction can be made at any counter. The applicant was working as Supervisor to the said two counters.
b) One counter assistant, who was recruited under sports quota, in Seshadripuram Post Office, namely, Shri D Prakash Chalke, working in Finacle Counter-2, was relieved to participate in All India Postal Hockey Tournament, which was scheduled to be held at Kolkata, West Bengal from 22.01.2017 to 08.02.2017.
c) On 31.01.2017, one Shri Kempegowda, holder of Recurring Deposit (for short, RD) Account no. 1247133698 approached Sheshadripuram Post Office counter and presented his RD Passbook and an amount of 2,000/- towards remittance of instalment for the month of January- 10
OA.No.119/2022/CAT/Bangalore Bench 2017, to his aforesaid RD account. It was observed by the Counter Assistant, who was working on 31.01.2017 that, office record i.e. Finacle data was showing due amount or collection as 12,000/- (current instalment along with 5 instalments of previous months) along with default fee of Rs.300-/ from the depositor/account holder. The Counter Assistant brought it to the notice of the applicant, who was the Assistant Sub Postmaster on the said date. On verification of the entries in the Pass Book with Finacle data, the applicant found that, deposits of Rs.2,000/- each, which were entered manually in the Pass Book on 24.08.2016, 29.09.2016, 27.10.2016, 10.11.2016 and 20.12.2016 were not entered in the office records i.e., Finacle.
d) The applicant immediately contacted Shri. D. Prakash Chalke, the counter Assistant who had made the said entries in the Pass Book and got confirmed the non-accounting of said deposits. The applicant accounted the entire amount of Rs.12,000/- (including non-credits) and default fee of 300/- on 31.01.2017 by crediting the difference amount and brought the irregularity to the notice of Postmaster. An error entry, as above, was made by the applicant vide EE No. 61 dated 31.01.2017.
e) The above issue was reported to the Respondent No.5 by the Postmaster Seshadripuram PO vide report dated 01.02.2017 and requested for further investigation into the matter. The Assistant Superintendent, Bengaluru West Sub Division-II was directed to conduct detailed investigation and verification of the work done by the 11 OA.No.119/2022/CAT/Bangalore Bench fraudster. A team was formed to contact all the depositors to verify the balances of the accounts.
f) During the verification of Passbooks by the investigating officer, frauds in various Recurring Deposits and PP accounts amounting to Rs.5,75,900-, committed during the period from May-2016 to January- 2017, came to light. Shri D Prakash Chalke, who was working as Finacle Counter Assistant, for the said period, was identified as the fraudster. The modus operandi in the case was non-credit of deposits accepted from the depositors across the counters. After accepting the deposits from the customers/depositors, manual deposit entries were made in the Passbooks by the fraudster and the said deposits were not entered and accounted in Finacle.
g) The fraudster was working under the direct supervision of the applicant and most of the fraudulent transactions had occurred under the direct supervision of the applicant. Hence, the applicant was identified for contributory negligence in connection with her grave lapses as a supervisor, which are listed below:
i) The position of applicant's seat in the Post Office was just 3 feet away from the said counter where fraudulent transactions took place. The demur of the official could have been noticed by the applicant if a proper watch was kept on handling of transactions at the counter.12
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ii) Instructions were issued to all Post Offices under Bengaluru West Division to insist computerized entries in the Pass Books and to discontinue manual entries to curb the frauds in Savings Accounts vide letters No.L2/Misc/dlgs dated 24.06.2015 & No.L2/CBS/dlgs dated 27.10.2015 and instructions of Sr. AOICO (SB) vide letter no. SB/13- 1/14-15 dated 15.10.2015. But the applicant, being a supervisor, allowed the counter assistant to continue manual entries without implementing the said orders/instructions.
iii) In RD A/c no. 1246954294 held by Shri Siddu Nilagiri, the applicant allowed the closure of account, even when there was difference in balance.
iv) Subsequent transactions were accounted in RD Accounts., where there were already non-credits and this should have been noticed by the Supervisor by observing the Date of Last Transaction (for short, DLT) & Balance After Transaction (for short. BAT) during the verification of transactions.
v) On 31.01.2017, when non-credits made by the fraudster came to light, as detailed in previous paras, the applicant, in consultation with the fraudster, credited the amount of non-credit of 10,000/- with default fee of R300/- to the RD account concerned on 31.01.2017 and thereby suppressed the fraud, by crediting the part of the fraud amount.
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vi) The single window system (any transaction in any counter) was discouraged by the fraudster as most of the Recurring Deposit and Public Provident Fund deposits in the accounts were accepted at his counter to shield the non-credits in the accounts. This was neither observed nor corrected by the applicant.
vii) There are many temporary misappropriation transactions where the fraudster himself had prepared the vouchers while crediting the non-credited deposits on subsequent dates. This was not noticed by the applicant, who was a supervisor to the fraudster.
h) In view of said lapses in her supervisory work, the applicant was kept under suspension on 18.02.2017 (Fore Noon), which was subsequently revoked vide Memo No.F/4-2/16-17/Dise-2 dated 18.07.2017 issued by the Respondent No.5. Further, action under Rule-14 of CCS (CCA) Rules, 1965 was initiated against the applicant.
i) The applicant was charge sheeted, vide Memo No. F/4-2/16-17/Disc-2 dated 28.08.2017 issued by the Respondent no.5. On receipt of the memo of charges, the applicant submitted her representation dated 05.09.2017 requesting to provide all the documents mentioned in Annexure III of memo of charges and also some additional documents. The documents listed in Annexure- III of memo of charges were provided to the applicant, vide Respondent No.5 letter No.F/4-2/16- 17/Disc-2 dated 25.09.2017 with further information that, the other documents which are not listed in the Annexure III of memo of charges, 14 OA.No.119/2022/CAT/Bangalore Bench will be examined, if needed during the inquiry and found relevant by Inquiring Authority (for short, IA). Subsequently, an inquiry was ordered into by Respondent No.5, vide memo no. F/4-2/16-17/Disc-2 dated 04.10.2017 by appointing an independent Inquiring Authority.
j) The preliminary hearing under Rule 14 of CCS (CCA) Rules, 1965, was held on 13.11.2017 and the applicant was asked to give in writing the particulars and willingness of defence assistant to the Inquiring Authority on or before 23.11.2017. During the preliminary siting, the applicant denied the Article I and Article II of Memo of charges and did not plead guilty of any of the charges leveled against her. Subsequent inquiry sittings were held on 27.12.2017, 17.01.2018, 24.01.2018, 31.1.2018, 01.02.2018, 05.02.2018, 06.02.2018, 08.02.2018 and departmental inquiry was concluded on 09.02.2018. All the documents requested by the applicant, which were relevant to the charges and available, were provided to her during the course of departmental inquiry, which was held as per the rules and procedure prescribed under Rule 14 of CCS (CCA) Rules, 1965. It is submitted that, sufficient and reasonable opportunities were given to the applicant at every stage of the departmental inquiry, under the principles of natural justice
k) The inquiry officer submitted his report, vide letter No. ASP/PSD/R-
14/KMA/Corr/17-18 dated 26.02.2018, to the Respondent No.5. The IO, based on the documentary evidences and oral evidences adduced during the course of departmental inquiry, held that, both the articles 15 OA.No.119/2022/CAT/Bangalore Bench of charge framed against the applicant in the memo of charges dated 28.08.2017 are proved beyond any doubt. Subsequently, a copy of the IO report was sent to the applicant and she was given an opportunity to make representation or submission in writing to the Disciplinary Authority/Respondent No.5, if she desires to do so. The applicant submitted her representation dated 14.3.2018 to the Disciplinary Authority/Respondent No.5,
l) The applicant retired from Govt. Service on superannuation on 28.02.2018 and the departmental disciplinary proceedings initiated under Rule-14 of CCS (CCA) Rules. 1965 were deemed to have been continued under Rule 9 of the CCS (Pension) Rules. 1972).
m) Since the departmental Disciplinary proceedings were converted under Rule-9 of CCS (Pension) Rules. 1972 due to the retirement of the applicant, only penalties of withholding or withdrawing pension or gratuity or both, either in full or in part, either permanently or for a specified period, could be imposed on the applicant with the approval of the President of India. Further, first proviso to Rule 9 (1) of the CCS (Pension) Rules 1972 provides that, consultation with Union Public Service Commission is mandatory in all cases of withholding or withdrawing of pension. Also, Rule-9 of CCS (Pension) Rules, 1972 stipulates that, the President reserves to himself right of withholding or withdrawing pension or gratuity or both, either in full or in part, either permanently or for a specified period. if any, in any department or judicial proceedings, the pensioner is found guilty of grave misconduct 16 OA.No.119/2022/CAT/Bangalore Bench or negligence during his service, provided that, the Union Public Service Commission shall be consulted before any final orders are passed. If the proceedings had been initiated by an authority subordinate to the President, such authority will submit the report of the Inquiring Authority, after recording its findings to the Government, to the President of India, as the power to pass orders in such a case vests in the President of India, under Rule 9 of the CCS (Pension) Rules. 1972. Accordingly, the case was referred by the Disciplinary Authority to the President of India along with relevant case records for decision.
n) As per Government of India (Transactions of Business Rule), 1961, the Minister In-charge of the Ministry acts on behalf of the President of India for disposing the business pertaining to his Ministry. Therefore, the powers of the President, under Rule 9 of CCS (Pension) Rules, 1972, are to be exercised by the Minister concerned on behalf of the President. The applicant is a retired Group-C official and as such the Competent Authority, in this case, is the Minister on behalf of the President of India. The case records were examined in detail at the said stage and with the approval of the Minister on behalf of the President of India, the case was referred to Union Public Service Commission on 16.01.2020 for seeking their advice to the President, as the charges proved were observed to be grave in nature which warrants imposition of suitable penalty by way of cut in pension or gratuity or both. 17
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o) UPSC is a Constitutional body. Article 320(3)(c) of Constitution of India provides that, UPSC shall be consulted on all disciplinary matters affecting a person serving under the Government of India in a civil capacity, including memorials and petitions relating to such matters. The proviso to this Article provides that the President may make regulation specifying the matter in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary to consult the UPSC. The President of India has under this proviso made the Union Public Service Commission (Exemption from Consultation) Regulations, 1958. The pensioners under Central Government are not exempted and further first proviso to Rule 9(1) of the CCS (Pension) Rules 1972 provides that consultation with Union Public Service Commission is mandatory in all cases of withholding or withdrawing of pension.
p) UPSC, after going through the records of the case in detail, tendered its advice on 16.02.2021. The Union Public Service Commission concluded from the case records that, the charges proved in Article-I and Article-II amounts to negligence, and, therefore, failure to maintain discipline in discharge of duties, in violation of Rule 3(1 )ii) and Rule 3(i)xix) of CCS (Conduct) Rules, 1964 is established against the applicant and considered that, the ends of justice would be met in the case, if the penalty of "withholding of 10% (Ten percent) of the monthly Pension otherwise admissible to the CO, Smt. K. M. Annapurnamma, 18 OA.No.119/2022/CAT/Bangalore Bench is imposed for a period of l(one) year. Her gratuity may be released, if not required to be withheld, in any other case."
q) On receipt of the said advice of UPSC, the case was analyzed in detail, the applicant was given opportunity to give her representation on the advice of the Union Public Service Commission. In this case, as the applicant has not furnished any new facts in her representation against the advice of UPSC, the Minister, on behalf of the President of India, considered the advice given by UPSC as just and proper. Further, the records of the case, advice of UPSC, and representation dated 11.03.2021 of the applicant, were examined in detail independently. The Minister, on behalf of the President of India, did not find any reason to differ from the advice of UPSC. Accordingly, the penalty of "withholding of l0% (Ten percent) of the monthly Pension otherwise admissible to the CO, Smt. K. M. Annapurnamma, is imposed for a period of l(one) year. Her gratuity may be released. if not required to be withheld, in any other case" was awarded in the name of President.
r) The applicant was provided adequate opportunity to justify and to explain her misconduct. All the steps and due procedure have been followed scrupulously. No procedural irregularity or technical infirmity has been adopted in the proceedings. Also, the penalty awarded is proportionate to the charges proved in the case.
s) As per the Government of India (for short, GOI) decision (2) below Rule 9 of CCS (Pension) Rules, 1972, the President's right to withhold 19 OA.No.119/2022/CAT/Bangalore Bench or withdraw pension in full is absolute. Further, as per the GOI decision (11) & (12) below Rule 15 of CCS (CCA) Rules,1965 and as per Judgement of Hon'ble High Court of Patna in CWJC No.4417 of 201l dated 17.01.2022 in the matter of Shri Arun Kumar Shukla Vs UOI & Others, the decision of the Disciplinary Authority is absolute.
4. Respondent No.3 (UPSC) has filed its reply and has averred as follows:
t) The UPSC (Respondent no. 3) is an advisory body and its advice is sought in the disciplinary cases in accordance with the requirement of consultation with them as laid down in Article 320 (3) (c) of the Constitution of India read with Regulation 5 (1) of the UPSC (Exemption from Consultation) Regulations, 1958. However, the DA takes its own independent decision by taking into consideration the advice so tendered by UPSC, along with all other relevant facts. u) The advice of the Commission was sought by the Ministry of Communications for action under Rule 9 of the CCS (Pension) Rules, 1972 against Ms. K. M. Annapurnamma, APM (Retd.) Rajajinagar HO, under Bengaluru West Division. The Commission, advised, vide letter dated 16.02.2021 (Annexure A), that the penalty of "withholding of 10% of the monthly pension otherwise admissible for a period of 01 year", may be imposed on CO, Ms. K. M. Annapurnamma. The Disciplinary Authority, after considering various factors including the advice of the Commission and the representation of the CO thereon, 20 OA.No.119/2022/CAT/Bangalore Bench imposed the same penalty on the CO, as advised by UPSC, vide order dated 27.07.2021.
v) Commission, being an advisory body had tendered its advice in the disciplinary case of the Applicant in accordance with the requirement of consultation with them as laid down in Article 320 (3) (c) of the Constitution read with Regulation 5 (1) of the UPSC (Exemption from Consultation) Regulations, 1958. The Commission had tendered its advice to the President after a thorough, judicious and independent consideration of the case records made available by the Administrative Ministry. The advice of the Commission is self-contained, self-
explanatory and well-reasoned. Therefore, the contention of the applicant is factually not correct and hence, not tenable.
5. In his rejoinder to the replies filed by the respondents, the applicant has pleaded as follows:
a) The applicant submits that the respondents accepted that Shri D. Prakash Chalke, who was working in Finacle counter-2, was relieved to participate in the All-India Postal Hockey Tournament from 22-1-
2017 to 8-2-2017. A person posted in POSB counter should be available in the counter throughout the working Hours. However, posting a sports person on such sensitive posts is in violation of Rule 6 of POSB Manual.
b) The applicant did not contact Sri Prakash Chalke. The Post Master contacted him. The applicant had immediately brought to the notice of 21 OA.No.119/2022/CAT/Bangalore Bench the post master, the irregularities noticed by her as per Rule 2(4) of POSB manual. The post master was responsible for the general functioning of POSB counters as per Rule 2(3) of POSB manual.
c) The disciplinary authority did not follow Rule 14(2) of CCS (CCA) Rules 1965 by not examining the investigation report along with preliminary evidence collected, and issued a charge memo dated:
28.8.2017. The documents relied by disciplinary authority were not enclosed with charge memo, which effected the applicant's defense statement for reply to the charge memo.
d) Out of 30 documents requested by the applicant, before the IO, only 12 documents were provided which denied the applicant to effectively prepare her defense, which was violative of the principles of natural justice.
e) The I.O report was received by respondent No.5, before the date of retirement of the applicant, but it was communicated to the applicant on 6.3.2018.
f) The case was referred to UPSC on 16.1.2020. The applicant submits that it is not such a case, wherein the UPSC advice is required. The applicant was a Group "C" employee and the charges alleged negligence in supervising duties.
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g) Entire proceedings were carried out with predetermination and prejudiced action only to impose the penalty, and this caused injustice to the applicant.
6. The respondents filed an additional reply to the rejoinder. In this additional reply they have averred as follows:
a) The applicant has not produced any material rulings or provision in support of her contention that posting a sports person in counter is in violation of any rule. There is no such mention that sports person should not be posted in POSB counter in Rule-6 of POSB Manual as cited by the applicant in the rejoinder.
b) On verification of entries in the Pass Book with Finacle data, the applicant had found that deposits of Rs.2,000/- which were, each entered manually in the Pass Book on 24.08.2016, 29.09.2016, 27.10.2016, 10.11.2016 and 20.12.2016 were not entered in the office computer records i.e, Finacle. The applicant had immediately contacted Shri. D. Prakash Chalke, the counter Assistant who had made the said entries in the Pass Book and confirmed non-accounting of the said deposits. The applicant accounted the entire amount of Rs.12,000/-
(including non-credits) and default of Rs.300-/ on 31.01.2017 by crediting the difference amount and brought the irregularity to the notice of Postmaster. The enquiry held on 04.07.2017 stipulates that, the applicant credited the amount of Rs. 12,000 + 300 in the RD account after consulting Sri Prakash D Chalke over phone. 23
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c) Instructions were circulated to all Post Offices under the Division to insist on computerized entries in the Pass Books and discontinue manual entries to curb the frauds in Savings Accounts vide letters no. L2/Misc/dlgs dated 24.06.2015, L2/CBS/dlgs dated 27.10.2015. The instructions of Sr. AOICO (SB), vide letter no. SB/13-I/14-15 dated 15.10.2015 were also conveyed through e-mail. But the applicant, being a supervisor, had allowed the counter assistant (fraudster) to continue manual entries without implementing the said orders/instructions. Irregularities committed by the fraudster since several months were not noticed and reported by the applicant, who was the immediate supervisor of said POSB Counter. Hence, the applicant was identified for contributory negligence in connection with her grave lapses as a supervisor. The contention of the applicant that the Postmaster was responsible for the general functioning of POSB counters, is not tenable.
d) There was no procedural irregularity in issue of charge sheet memo as referred by the applicant.
e) The applicant was given reasonable opportunity to submit her statement of defense. After receipt of memo of charges, the applicant submitted her representation dated 05.09.2017 requesting to provide all the documents mentioned in Annexure III of the memo of charges along with some additional documents. All the documents listed in Annexure III of the memo of charges were provided to the applicant vide Respondent No.5 letter No. F/4-2/16-17/Disc-2 dated 25.09.2017 24 OA.No.119/2022/CAT/Bangalore Bench with further information that other documents which are not listed in the Annexure III will be examined, if needed, during the inquiry and found relevant by the Inquiring Authority. As the written statement of defense was not received from the applicant till 04.10.2017 and since, the applicant was due for retirement on attaining superannuation, on 28.02.2018, the appointment order of the Inquiry Officer and Presenting Officer was issued on 04.10.2017 so as to provide reasonable opportunity to the applicant under the principles of natural justice. The applicant was given sufficient opportunity to submit her written statement of defence.
f) A copy of the report of the Inquiring Authority dated 26.02.2018 was sent to the applicant vide Respondent No.5 letter no. F/4-2/16-17/Disc- 2 dated 27.02.2018 giving her an opportunity to make her representation or submission in writing to the Disciplinary Authority, if she desires to do so. The representation of the applicant dated 14.03.2018 was received by the Disciplinary Authority on 21.03.2018. However, the applicant had retired on superannuation on 28.02.2018. As the Rule-14 case initiated against the applicant, while in service, could not be finalized before her retirement on superannuation, the case was continued under Rule-9 of CCS (Pension) Rules, 1972 [Now, Rule-8 of CCS (Pension) Rules, 2021].
g) As enjoined in Rule-9 of CCS (Pension) Rules, 1972 (now, Rule-8 of CCS (Pension) Rules, 2021), it is mandatory to consult the UPSC before issue of final orders by the Competent Authority. The contention 25 OA.No.119/2022/CAT/Bangalore Bench of the applicant that, it is not a case where the UPSC advice is required, is not tenable.
h) The applicant was provided adequate opportunity to justify and to explain her misconduct at all stages, starting from the issuance of memo of charges till awarding the final order of penalty. All the steps and due procedure have been followed scrupulously. No procedural irregularity or technical infirmity has been adopted in the proceedings. The penalty awarded is proportionate to the charges proved in the case.
7. Heard learned counsels for the parties and perused the pleadings made by them.
8. In the present case, the gist of the charges against the applicant is that she had failed to ensure adequate supervisory check on the SB counter work as required of her under the rules. There were frauds committed by the concerned Postal Assistant at SBPO between 7.6.2015 to 1.12.2017. It is further alleged that the applicant failed to implement the instructions issued by the respondents vide letter dated 24.6.2015, 27.10.2015 and 10.6.2016, regarding ensuring that there shall be no manual entry in Pass Books of various accounts, and the entries in Pass Books should only be made by printing through electronic printers. The failure on the part of the applicant to implement these instructions facilitated in committing frauds in the concerned savings counter of the Seshadripuram Post office where she was functioning as the immediate supervisor.
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9. A detailed enquiry under the rules was conducted after giving full opportunity to the applicant to present her case in her defence. After a detailed inquiry, it was established that there was supervisory lapse on the part of the applicant, which resulted in committing the fraud by the concerned SB Postal Assistant. The said Postal Assistant allegedly made manual entries in the Pass Books without entering the same amounts in the computer through Finacle software, resulting in missing credits in the departmental accounts. The total fraudulent amount detected was of the order of Rs.5,75,900 during the period from May 2015 to January 2017. All these frauds had happened due to making manual entries in the Pass Books but not entering the same and accounting them in the Finacle account.
10. In the course of hearing, the learned counsel for the applicant stated that the applicant had categorically stated during the course of inquiry that she had not received any copy of these instructions relating to making entries in Pass Books only through Pass Book printers and making manual entries only in cases wherever Pass Book printers were not available. These instructions had been issued to discontinue manual entry in Pass Books in order to curb frauds in various Post offices.
11. The Commission in its advice dated 16.2.2021 in para 4.32 had observed as follows:
"4.32 The Commission observe that the CO in her defence statement dated
12.06.2017 in reply to Qn. No.1 stated that she was entrusted with work of the Treasury branch, MPCM centre, SB-1, and SB-II counters of the 27 OA.No.119/2022/CAT/Bangalore Bench Seshadripuram PO. When asked as to why she did not insist on discontinuation of manual entries in Passbooks as per instructions, the CO replied that she had given instructions to the counter staff to discontinue manual entries in Saving Account Passbooks, but manual entries were made without her knowledge."
12. Further in para 4.34 the Commission had specifically observed as follows:
"4.34 The Commission observe that as per documentary and oral evidences discussed as above, the CO was the supervisor in-charge of the SB Counters. She was aware of the instructions contained in PD-23, PD-24 and PD-25 about discontinuation of manual entries in Passbooks. The instructions issued vide PD-24, dated 27.10.2015 for displays such as "kind attention of the customer... please get the Passbook entries printed at SB Counter.... Do not encourage manual entries" appear to have not been displayed at the SB Counters in the PO. In spite of the CO saying that she had instructed Counters to discontinue manual entries in Passbooks, she apparently did not ensure implementation of the instructions. It is also seen in this connection that the Postmaster, PW-1 confirmed on 01.02.2018 that the instructions dated 10.06.2016 were not followed in the Seshadripuram PO, but there is no evidence that he as the CO's supervisor tried to ensure overall compliance. Therefore, in view of the documentary and oral evidences discussed as above, the part of the Charge that the CO failed to have implemented the printing of Passbook entries and prohibiting manual entries in Passbooks as per instructions of the department is established." 28
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13. However, the applicant in her representation dated 11.3.2021 against the UPSC advice submitted to the Competent Authority (President), had stated as follows:
"1.31.At para 4.26, the Commission has noted that in this part of the charge, the allegation against the CO is that she failed to carry out the written instructions issued by the Department to discontinue manual entries in Passbooks and insist on only computerized entries, to curb frauds in Saving Bank accounts. The Commission has also noted under para 4.27 that the Department of Posts vide office letters No.L2/Misc/dlgs, dated 24-06-2015 No. 12/CBS/dlgs dated 27-10-2015 and No. F/4-2/15-16/1, dated 10- 06- 2016 issued instructions for computerizing transactions and discontinuation of manual entries in Passbooks, to prevent frauds at SB counters. But the Commission has not observed the document DD-7 which clearly says that the above stated letters are not available at the Seshadripuram Post Office. The Commission has not observed the reply of the CO dated 14-03-2018 in reply to the report of the Inquiry officer dated 27-02-2018 with regard to the findings of the 1O with Article No. II, wherein the CO has clearly mentioned that the said circulars were not received by her for the implementation nor she had received any directions to implement the circular instructions
14. The Competent Authority (President), in his Presidential order, while imposing the penalty of withholding 10 percent of monthly pension otherwise admissible to the applicant for a period of one year, has observed that in the written representation dated 11.3.2021, the CO has not stated any 29 OA.No.119/2022/CAT/Bangalore Bench material evidence against the advice of UPSC. The Competent Authority has further stated in the penalty order that, "the representation of the CO has been carefully considered in this office taking into account the advice of UPSC, relevant rules, records of the case, proceedings and findings of the Inquiry Officer and the Disciplinary-Authority. It is found that inquiry was held as per the prescribed procedure and the CO was given reasonable opportunity to defend her case. The CO has violated the provisions of rules and instructions of the Department. The charges levelled against the CO have been Proved during the Rule-14 inquiry under the CCS(CCA) Rules, 1965. The representation submitted by the CO has no merits. The UPSC has already discussed all the aspects of the case including the plea put forth by the CO. She has shown gross negligence while performing her supervisory duties. Therefore, imposition of penalty advised by UPSC is just, proper and acceptable". The DA has finally concluded that the penalty proposed by the UPSC in the case may be imposed on the CO.
15. From the above pleadings it is evident that the contention of the applicant that the communications dated 24.6.2015, 27.10.2015 and 15.10.2015, had neither been received by her, nor were these available in the concerned Post Office, has not been examined by the Competent Authority. In order to establish the charge of supervisory lapse on the part of the applicant by not following these instructions to prevent such frauds, it was incumbent on the Competent Authority to examine this aspect in detail, based on the available evidence, before recording its findings and imposing a penalty of pension cut on the applicant.
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16. Consequently, the order dated 27.07.2021 issued by the Competent Authority (Annexure-A17) is set-aside and the matter is restored to the file of the Competent Authority to re-consider the matter inasmuch as the representation made by the applicant pursuant to the UPSC report submitted to her calling for her representation/explanation. The Competent Authority shall address the issue raised by the applicant that no circular/office letter no. L2/Misc/dlgs dated 24.06.2015, L2/CBS/dlgs dated 27.10.2015 and no. F/4-2/15-16/1 dated 10.06.2016 were received by her and, thereafter, giving a finding on this issue, shall take an appropriate decision regarding penalty to be imposed, if any. Compliance shall be made in an expedite manner.
17. The OA stands disposed of accordingly. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/