Central Administrative Tribunal - Mumbai
Pranay Govind Surve vs Department Of Posts on 22 May, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI. ORIGINAL APPLICATION No.297 OF 2023 Date of Decision: 22" May, 2024 Shri Pranay Govind Surve - Applicant (By Advocate Shri R.B. Kadam) Versus Union of India & 4 Ors. - Respondents (By Advocate Shri R.R.Shetty) CORAM :HON'BLE SHRI RAJINDER KASHYAP, MEMBER (A) (a) To be referred to the Reporter or not? - YES - (b) Library. - YES (c) To be uploaded or not? - YES (Rajinder Kashyap) Member (A) 1 OA No.297/2023 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.297/2023 Dated this Wednesday the 22" day of May, 2024 CORAM: SHR! RAJINDER KASHYAP, MEMBER (A) Shri Pranay Govind Surve, S/o Late Govind Vishram Surve, Age 59 years, Sub Postmaster Sewari Sub Post Office, Residing at 602, Raigad Tower CHS Ltd., G.D.Ambedkar Marg, Parel Village, Mumbai 400 012, (M) 9870701061, Email: [email protected]. --- Applicant (By Advocate Shri R.B.Kadam) Versus 1. _ Union of India, through Secretary, Department of Posts,Ministry of Communications & IT, Dak Bhavan, Sansad Marg, New Delhi 110 001. 2. The Chief Postmaster General, Maharashtra Circle, Mumbai GPO Building, Mumbai 400 001. 3. The Postmaster General, Mumbai Region, Mumbai GPO, Mumbai 400 001. 4, The Senior Superintendent of Post Offices, Mumbai East Division, Dadar (East), Mumbai 400 014. 5. The Senior Postmaster, Dadar Head Post Office, Mumbai 400 014. - Respondents (By Advocate Shri R.R.Shetty) Reserved on 24.04.2024. Pronounced on 22.05.2024. Page 1 of 67 2 OA No.297/2023 ORDER
The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 against the impugned order of recovery of loss sustained to the department in the case of loss of Kisan Vikas Patra (KVP) Certificates from Railway Wagon Patna and fraudulently discharged at Antop Hill P.O. Mumbai on 25.02.2005. The following reliefs are sought by the applicant:
"8{a), This Hon'ble Tribunal may be pleased to call for the records of the case of the applicant from the respondents and after perusal consider grant of reliefs as prayed for hereunder on the basis of settled principle of laws and rules.
8(b). To quash and set aside impugned orders dated 14.12.2020 Annexure A/1 by which recovery 'of Rs.2,00,000/- Rs. Two Lakh has already been effected without issue of charge sheet and direct respondents to refund the amount illegally recovered from the pay and allowance of the applicant, within such period as this Hon'ble Tribunal deems fit and proper.
&(c). To quash and set aside impugned order dated 08.09.2022 Annexure A/2 issued by Respondents No.4 by which applicant has been directed to credit normal plus penal interest amounting to Rs.2,10,375/- (Rs. Two Lakh ten thousand three hundred seventy-five).
&(d). Any other further order as this Hon'ble Tribunal deems fit in nature and circumstances of the case be passed."Page 2 of 67 3 OA No.297/2023
2. The brief facts of the case are that the applicant was appointed as Postal Assistant on 25.01.1986. He worked at Antop Hill Post Office, Mumbai as a Senior Postal Assistant for the period from August 2002 to May 2006. It is stated that on 27.01.2005, Kisan Vikas Patra (KVP) Certificates KVPs bearing No.46CC 896801 to 896830 ie. a total of 30 certificates of denomination of Rs.10,000/- (Rupees Ten Thousand Only) each which were issued at Dishergarh Post Office under Senior Superintendent of Post Offices, Asansol Division in West Bengal Circle were submitted for encashment at Antop Hill Post Office and the said KVP were discharged after due verification. Maturity proceed was given through a cheque No.754843 dated 25.02.2005 for Rs.6,00,000/- (Rupees Six Lakhs Only) of Dadar Head Post Office. After a period of five years, it was found that the said KVP certificates were stolen from Railway Wagon Patna and were fraudulently issued at the concerned Post Office in Asansol Division. Explanation of applicant was sought by the respondents. Not satisfied with the explanation given by the applicant on 26.11.2010 and holding him Page 3 of 67 Se galing.
Mien ey 3 2 i f Ca) 4 OA No.297/2023 responsible for fraudulent encashment of the said KVPs. It was also alleged that he did not refer to the Negative List before discharge of said certificates. A charge-sheet under Rules 16 of CCS (CCA) Rules, 1965 was issued to the applicant on 14.09.2011. After considering the representation of the applicant, a punishment of withholding the next increment for a period of six months without cumulative effect was imposed upon the applicant on 06.03.2012 even when the SSPOs of Mumbai City - North West Division vide letter dated 07.02.2011 stated that the relevant records were weeded out. The SSPOs of Mumbai City East Division vide letter dated 24.01/14.02.2011 in respect of case of payment at Antop Hill Post Office reported: -
(i) Service cover containing verification report sent by SPM Disergarh PO addressed to Hill PO is not available.
(fi) | RL.No. through which verification was sent to Disergarh is not available.
(iii) = RL No. through which verification application received from Disergarh is not available.
(iv) RL No. through which NC-10 was received back after noting by Disergarh is not available.Page 4 of 67
on ag, ? 3 See 5 OA No.297/2023
(v) Antop Hill PO sent NC-10 to Disergarh under RL No.2436 dated 25.02.2005 (as noted in the NC-10}.
2(a). Director Postal Service, Mumbai Region and Director Postal Service, South Bengal Region carried out a joint investigation on fraudulently encashment of loss/stolen KVPs bearing No.46CC 896801 to 896830 i.e.30 certificates for denomination of Rs.10,000/- (Rupees Ten Thousand Only) each purported to have been issued from Dishergarh Post Office and discharged from Antop Hill Post Office Mumbai 400 037 on 25.02.2005. The joint investigation team submitted its report on 13.09.2019.
2(b). Payment was made to the purported holder of the KVPs through Dadar Head Post Office Cheque No.683566 dated NIL of Rs.6,00,000/- (Rupees Six Lakhs only) and the same was handed over to Sri Shashi Sharma on 25.02.2005 by counter SB PA of Antop Hill post office without mentioning the account number of the account holder. It is stated that the KVP holder did not submit any bank account number though he produced details of A/c No. | of his father-in-law, one Sri Mishra Bhagwan Chaturbhuj SB A/c Page 5 of 67 wr deeds spy ate ean i ' & 2 5 H Se 2 No.309 and the Maratha Mandir Cooperative Bank Ltd does not 6 OA No.297/2023 exist in Antop Hill, Mumbai 400 037.
2{c). It is mentioned in para (IV) of Joint Enquiry Report that one increment of the applicant was withheld for 06 {six} months without cumulative effect. In the conclusion, it was stated that KVPs Certificate No.46CC 896801 to 896830 & 46CC 896831 to 896845 of denomination of Rs.10,000/- (Rupees Ten Thousand only) were shown to have been issued from Dishergarh PO under Asansol HO on 28.01.1999 and finally discharged from Antop Hill PO, Mumbai 400 037 on 25.02.2005.
2{d). The applicant states that after twelve years of payment and 7A years after imposition of penalty, he received letter dated 18.09.2019 directing the applicant to credit his share of Rs.2,00,000/- (Rupees Two Lakhs only) to the Government. Not convinced with the reply, respondent No.4 ordered recovery of Rs.2,00,000/- (Rupees Two Lakhs only) commencing from December, 2020 without issuing charge-sheet as required under CCS (CCA) Rules, 1965. The applicant submitted representation on Page 6 of 67 7 OA No.297/2023 19.04.2021 to the respondent No.3 against the action of respondent No.4 for ordering recovery. On 08.09.2022, the respondent No.3 and 4 further directed that applicant to credit Rs.2,10,375/- (Rupees Two Lakhs Ten Thousand Three Hundred and Seventy-Five) towards normal plus penal interest. The applicant retired from service on 31.05.2023 and submitted that both the impugned orders and prayed for refund of illegally and ordered recovered amount by quashing the impugned orders at Annexures A-1 and A-2.
3. The applicant had filed Miscellaneous Application for condoning the delay in filing the OA. The respondents have filed their reply on the MA No.398/2023 stating that Joint Investigation Report dated 13.09.2019 has attributed lapses on the part of applicant. They contended that the recovery of amount of loss with interest from the applicant is due to his fault. They have further stated that the applicant has been given due opportunity to explain his case and he has also submitted representation, thereafter, he was conveyed the decision to credit his share of loss Page 7 of G7 8 OA Na.297/2023 at normal interest and penal interest. The respondents further stated that MA is devoid of any merit as the statements, submissions and/or contentions of the applicant in the MA are contrary to and/or inconsistent keeping in view the respondents have earlier issued Rule 16 charge to the applicant on 14.09.2011 which was decided on 06.03.2012 imposing a penalty of withholding of one increment falling due on 01.07.2012 for a period of six months without cumulative effect and ordering a recovery on 08.09.2022 of Rs.2,10,375/- (Rupees Two Lakhs Ten Thousand 'Three Hundred and Seventy Five Only). After examining the details on various aspects connected to this case, the deiay in this case is condoned and MA for seeking condonation of delay is allowed. .
4, The respondents have filed their reply on 11.08.2023, wherein, it has been stated that one Shri Shashi Sharma presented application dated 27.01.2005 to the Post Master Antop Hill Post Office Mumbai along with a xerox copies of KVPs Nos.46CC 896801 to 896830 i.e. 30 certificates for denomination of Page 8 of 67 9 OA No.297/2023 Rs.10,000/- (Rupees Ten Thousand Only) each purported to have been issued from Dishergarh Post Office, West Bengal. The application was sent to SPM Dishergarh Post Office for verification of genuineness of KVPs. It is stated that the Verification Report was received back from SPM Dishergarh Post Office, West Bengal - 713333 duly verified having his signature, seal and postal date stamp of the office with remarks that as per records the particulars of KVPs are verified and found | correct and genuine.Payment may be made on proper identification. On receiving the above report from the SPM Dishergarh Post Office, the SPM Antop Hill Post office obtained Cheque No.683566 amounting to Rs.6,00,000/- (Rupees Six Lakhs only) from Senior Postmaster Dadar HO in favour of Shri Shashi Sharma and after verification by PRIP, cheque was handed over to Shri Shashi Sharma on 25.02.2005 by the counter PA Shri D.R.Surveand SB incharge Shri P.G.Surve.
4(a). As per rule, the NC 10 was prepared in triplicate and two copies were sent to the office of issue /.e. SPM Dishergarh PO by a Page 9 of 67 10 OA No.297/2023 registered No.2436 dated 25.02.2005 and one copy duly noted was received back from SPM Dishergarh and it was sent to A.O Kolkata on 09.03.2005 under RL No.2463 of Antop Hill PO. This case came to light when RO Mumbai vide letter No.MR/Inv/9/9/loss/Rly Wagon/10 dated 14.10.2010 sent the details of certificates which were stolen from the Railway Wagon at Patna and are encashed in Post Offices in connivance with Postal staff. RO Mumbai again vide letter of even number dated 28.10.2010 had intimated that DA(P) Nagpur vide letter No. CC Patram/CC Theft/Patna/2009-10/676 dated 28.10.2010 had reported that 30 KVP certificates bearing No.46CC 896801 to 46CC 896830 were found discharged at Antop Hill PO, Mumbai 400031 under Dadar HO on 25.02.2005. Meanwhile, the SSPOS, Asansol! Division, West Bengal vide letter dated 04.01.2011 had intimated that the stolen certificates were found to be discharged at Antop Hill PO, Jogeshwari PO and Sasaram Post Office but all the certificates were found issued at Dishergarh SO in West Bengal.
RO Mumbai vide letter dated 17.08.2011 directed to fix the Page 10 of 67 il OA No.297/2023 accountability of the officials at fault and intimate the disciplinary action initiated against them. The then SSPOs Mumbai East Division vide DO letter dated 08.11.2011 had intimated that disciplinary action under Rule 16 of CCS (CCA) Rules 1965 had been initiated against Shri D.R.Surve, the then counter PA, Shri P.G.Surve, the then ASPM and Shri V.S.Pawar, the then PRI(P) of Antop Hill PO. Meanwhile, PMG South Kolkata Region, Kolkata vide letter dated 23.02.2012 informed that in the enquiry report it is stated that the said KVP certificates were not issued through Dishergarh PO and the stamp on the certificates were not of the said PO. Disciplinary Action under Rule 16 of CCS (CCA) Rules 1965 initiated against the applicant for contributory negligence resulted into imposition of punishment of withholding of one increment falling due next {i.e. on 01.07.2012) for a period of 6 months without cumulative effect vide memo No.Fl/Disc/28/11- 12 dated 06.03.2012.
4(b). The respondents further state that the Joint Investigation report was received on 24.09.2019 vide RO Mumba} letter dated
-
Page 11 of 67 12 OA No.297/202323.09.2019. Joint Investigation was conducted by DPS MR, Maharashtra Circle and DPS, South Bengal Region, West Bengal Circle on fraudulent encashment of lost/stolen KVP certificates and report submitted vide Memo No.PMG (SB)/ INV- B/Misc- 21/12/10 dated 13.09.2019. It was observed that:
a. The date stamp affixed on the verification letter was fake and there was no PIN Code of 713333 of Dishergarh PO.
b. The initial of the SPM was not of the person who was working at that time at Disergarh PO, c. No such certificates were issued by Disergarh PO on 99.02.1999, d. No application for verification sent by Antop Hill PO has been found received by Disergarh PO.
e. NC 10 claimed to have been sent by Antop Hill PO vide RL No.2436 dated 25.02.2005 was not received by Dishergarh PO.
A(c}. Respondents state that it was concluded in the Joint Investigation that prescribed rules were not followed by the staff of Antop Hill PO at the time of encashment of certificates. Hence, disciplinary action is to be taken against the officials at fault and amount to be recovered from them. The respondent authorities issued letters to all the three officials at fault to credit Rs.2,00,000/- (Rupees Two Lakhs only) vide SSPOs, Mumbai East oe Page 12 of 67 13 OA No.297/2023 Division letter dated 26.09.2019. As disciplinary action had already been initiated and charge of misconduct was proved against Shri P.G.Surve, hence, second charge sheet cannot be initiated for same reason, SSPOs, Mumbai East Division vide letter dated 14.12.2020. directed Sr.Postmaster Dadar HO to recover Rs.2,00,000/- (Rupees Two Lakhs only) from the salary of Shri P.G.Surve since December 2020 in 20 (Twenty) installments of Rs.10,000/- (Rupees Ten Thousand only) per month. The said amount of Rs.2,00,000/- (Rupees Two Lakhs only) recovered from the salary of the applicant and completed in the month of july 2022. The amount of Normal Interest and Penal Interest to be recovered was calculated as Rs.2,10,375/- (Rupees Two Lakhs Ten Thousand Three Hundred and Seventy-Five only) and the same was to be recovered from the applicant. SSPOs, Mumbai East Division vide letter dated 08.09.2022. The applicant was directed to credit the said amount. The recovery being made is not by way of penalty but for the actual loss caused to the exchequer, hence, the allegations that the recovery cannot be made without issue of Page 13 of 67 14 'OA No.297/2023 chargesheet is not sustainable in law. It was prayed by the respondents that the OA may, therefore, be dismissed with costs.
5. The applicant has stated that he has sent the application to Dishergarh PO, West Bengal i.e. the office of issue for verification of genuineness of the certificate on 27.01.2005 and received the reply on 01.02.2005 i.e., within 05 to 06 days. However,as per the Joint Investigation Report, the said certificates were not issued by the Disergarh PO and verification report was not given by the SPM Disergarh.
6. The respondents state that the submissions of the applicant are incorrect. The applicant had not obtained or verified any identity of the holder of the certificate ie. Shri Shashi Sharma. Instead, he had obtained the identity and residence proof of the father-in-law of the holder and effected payment.Further Negative List (List of lost/stolen certificates) was not checked by the applicant before effecting sayment to the holder.
6{a). It is also stated by the respondents that the applicant obtained the identity documents of father-in-lawof the (purported "
Page 14 of 67 15 OA No.297/2023holder of KVP to whom payment was made) which was further verified by Public Relation Inspector also. The identity of the holder was established neither by the applicant nor by the Public Relation Inspector.The respondents state that as per the Joint Investigation Report (Annexure-R1), NC 10 claimed to have been sent by Antop Hill PO vide RL No. 2436 dated 25.02.2005 was not received by Dishergarh PO. They further state that the Regional Office Mumbai vide e-mail dated 28.10.2010 had intimated that Director of Accounts (Nagpur) vide letter dated 28.10.2010 informed that 30 Certificates of KVPs of denomination of Rs.10,000/- (Rupees Ten Thousand only) bearing Nos.46CC 896801 to AGCC 896830 were found discharged at Antop Hiil PO under Dadar HO and directed to conduct further investigation in this case. It was directed to seize the records from the Post Office for handing it over to CBI authority.Thus, investigation started and statement of the applicant was recorded on 26.11.2010. It is also stated that as per the inquiry report of then ASP(T) Mumbai East Division, japses on the part of the staff at Antop Hill PO were (i) Page 15 of 67 16 OA No.297/2023 the negative list circulated by the department was not verified before effecting the payment. (ii) The proper identification of the holder was not made as he had not submitted his own genuine identity proof. Hence three officials including the applicant from Antop Hill PO were held responsible and disciplinary action under Rule 16 of CCS (CCA) Rules 1965 was initiated against the staff of Antop Hill PO for the lapses on their part.
6{b). The respondents state that the applicant has stated that even after verifying the genuineness of KVPs, he did not effect payment and got the identity of the holder verified through Public Relation Inspector of the Office. But the identity of the holder was not verified by the PRI(P) instead the documents were related to the father-in-law of the holder which was verified by the PRI(P). Further, the applicant has stated that Negative List was not available at Antop Hill PO. Respondents state that such an excuse is not acceptable from a senior official like applicant. Hence, charge sheet was issued.Page 16 of 67 17 OA No.297/2023
6(c). it is further stated by the respondents that the SSPOs, Mumbai East Division issued letter dated 18.09.2019 to the applicant to credit his share of loss caused to the department due to lapses on his part.it is further submitted that the lapses on the part of the applicant were already intimated to the applicant. However, in reply to his letter dated 26.11.2019, by way of letter dated 27.11.2019, lapses on his part were again pointed out and the applicant was directed to credit the amount of his share of loss. It was also pointed out that if failed to credit the amount, action will be initiated in accordance with provision of Rule 106, 107 & 111 of Postal Manual Voldll and DG P&T letter No.114/176/78/Disc-ll dated 13.02.1931 against him. As per the Joint Investigation report, officials from Office of issue were not held responsible as the registered letters sent for verification did not reach the office of issue and this was attributed as complicity and misconduct on the part of Applicant. The applicant was already informed of his lapses and was also directed to credit the amount of loss to the Government. As the amount of share of loss Page 17 of 67 18 OA No.297/2023 was not credited by the applicant, many reminders were sent to the applicant to credit his share of loss caused to the department. The applicant demanded a copy of the Joint Investigation Report vide letter dated 10.08.2020. It was denied vide SSPOs, Mumbai East Division letter dated 17.11.2020 stating that there is no provision to supply the investigation report to offenders /subsidiary offenders in the loss and fraud case. The applicant was again directed to credit the amount within 8 days of receipt of this letter, But the applicant again demanded the copy of the Joint Investigation report through RTI application dated 26.12.2020 and the same was supplied to'him after collecting required fee. In the Joint Investigation Report, the lapses on the part of office of payment are clearly mentioned and recovery from officials at fault along with interest was specified. The applicant did not credited his share of loss despite of repeated reminders, the SSPOs, Mumbai East Division issued order dated 14.12.2020 to recover the loss caused to the department due to lapses on the part of the applicant.The applicant was not barred from making an appeal to 7 Page 18 of 67 19 OA No.297/2023 the higher authorities against the orders of recovery from the salary. It is not necessary that the recovery should be stopped till his appeal is decided as it was already ordered by the SSPOs.
6(d). It is stated that the as per D.G. P&T order No. 4 below Rule 11 of CCS (CCA), Rules, 1965 (Annexure R-2}, two penalties cannot be imposed for one lapse. Rule 16 Charge Sheet was already issued to the applicant and punishment was awarded in this case. Hence, another charge sheet cannot be issued in the same case. But pecuniary loss caused to the Government was to be recovered from the officials at fault before their retirement. It was concluded in the Joint Investigation that prescribed rules are not followed by the staff of Antop Hill PO at the time of encashment of certificates. Hence, disciplinary action is to be taken against the officials at fault and amount to be recovered from them. The applicant was intimated through several reminders to credit the amount which he did not credit. Hence Sr. Postmaster Dadar HO was directed to recover an amount of Rs.10,000/- (Rupees Ten Thousand only) each in 20 installments from the salary of the applicant.Page 19 of 67
ES EK SRS US RSS EATEN aeouees @) EY, 20 OA No.297/2023 6(e). They further submitted that the representation dated 19.04.2021 submitted by the applicant was forwarded to RO Mumbai. The case was again referred to RO Mumbai vide SSPOs, East Division letter dated 17.10.2022 in reply to which R. O. Mumbai vide letter dated 22.12.2022 (Annexure R-3} intimated to take action as per letter dated 03.03.2020, wherein, it was intimated that SSPOs is competent to decide the case. Hence, there is no other option except to recover the loss caused to the Govt. due to the lapses on the part of the officials at fault.
6(f). . Respondents state that as per the Joint investigation report, lapses on the part of the office of payment got established and it was clearly mentioned that recovery to be made from officials at fault of Antop Hill PO. The representation dated 19.04.2021 of the applicant was forwarded to RO Mumbai and RO Mumbai intimated that SSPOs is competent to take necessary action in this case. Rule 16 Charge Sheet was already issued to the applicant and punishment was awarded in this case. Hence another charge sheet cannot be issued in the same case. But pecuniary loss Page 20 of 67 angular f ens nN '2 ey z z 5 @ al OA No.297/2023 caused to the Government was to be recovered from the officials at fault before their retirement. As the amount of loss had already been recovered in 20 installments from the salary of the applicant, the interest on loss got calculated through SBCO and the applicant was directed to credit the amount of interest vide this office letter dated 08.09.2022.
6(g). It is stated by the learned counsel for the respondents that the repeated reminders were sent to the applicant for recovery of normal interest and penal interest from the applicant as the applicant was due for his superannuationretirement.
6(h). it is submitted that the representation dated 03.10.2022 received from the applicant was replied vide SSPQs, East Division letter dated 03.01.2023. In the said reply it was mentioned that as per the Joint Investigation Report dated 13.09.2019 lapses are on the part of Antop Hill PO and recovery of amount with normal interest and penal interest is to be recovered from officials at fault. Meanwhile RO Mumbai was addressed vide this office letter dated 17.10.2022 with brief history of the case and guidance was Page 21 of 67 22 OA No.297/2023 sought to settle the case. RO Mumbai in reply stated that SSPOs is competent to decide the case. As the amount of share of loss of Rs.2,00,000/- (Rupees Two Lakhs only) was already recovered, the amount of interest was calculated and addressed to the applicant to credit the same.
6(i). It is further submitted that the representation dated 03.10.2022 received from the applicant was replied vide letter dated 03.01.2023 stating that his representation was not considered as it is a loss to the Government and the same to be recovered from the officials at fault. In the said reply it was mentioned that as per the Joint [Investigation Report dated 13.09.2019 lapses are on the part of Antop Hil PO and recovery of amount with normal interest and penal interest is to be recovered from officials at fault.
6(j). It is submitted that the said KVPs were encashed at Antop Hill PO on 25.02.2005 and the fraudulent encashment came to light in the year 2010 and inquiry started then. Directorate vide letter No. 5-04/MH-01/2011-Inv dated 27.06.2011 mentioned that Page 22 of 67 23 OA No.297/2023 the case is delayed for more than 6 years. Still lapses on the part of officials at Office of payment are not fixed and disciplinary action not taken. The officials at fault were identified and charge sheeted under Rule 16 of CCS (CCA) Rules 1965 was issued in the year 2012. The Joint Investigation Report was issued in the year 2019 and it was categorically mentioned that lapses are on the part of Office of payment due to following points: -
(i) Negative list was not referred.
(ii) Due procedure for payment at Offices other than Office of issue vide Directorate's instructions dated 06.01.2005 not followed {copy enclosed).
(iii) Payment made without proper identification of the holder.
6(k). Further, it was directed to recover the amount of loss with interest from the officials at fault of Antop Hill PO. Hence the recovery was made.
6(I). It is submitted that as charge sheet under Rule 16 of CCS(CCA) Rules 1965 was already issued to the applicant and punishment was finalized, second charge sheet for the same reason could not be issued. Guidance was sought from RO Page 23 of 67 24 OA No.297/2023 Mumbai which in turn replied that SSPOs is competent to decide the case. The applicant was asked to credit his share of loss by the . SSPOs repeatedly but he failed to do so. Hence recovery from the salary of the applicant was ordered.
6(m). It was further submitted that the applicant did not verify the negative list which he cannot claim that it was not available at the office. The applicant did not verify the identity of the holder concerned, lapses on the part of the applicant have already been mentioned in the above paras.lt is submitted that the payment was made in 2005 and the fraudulent encashment came to light in the year 2010 after expiry of 5 year and hence no Police Complaint was found to have been lodged to recover the amount from the culprit. Further being a robbery case, the case was already under investigation by CBI Patna.|t is further submitted that as per para No.3 of DG Posts letter No. 11012/1/2000-Estt. (A) dated 6''September 2000 (Annexure R-4) the entire loss to the Govt.
should be recovered from the official at fault irrespective of the Page 24 of 67 25 OA No.297/2023 number of years involved. The Hon'ble Tribunal be pleased to dismiss the O.A. with costs.
7. The applicant has filed rejoinder to the repiy filed by the respondents and submitted that the investigating Authorities rightly decided and directed to initiate disciplinary action against _ the official at fault and make the recovery of loss. Applicant contended that the submission of the respondents that recovery being made is not by way of penalty but for the actual loss caused to the exchequer, hence, allegations that the recovery cannot be made without issue of charge sheet is not sustainable in law and in itself is against the provisions of Rules. Rule 11 of CCS (CCA) Rules, 1965 are as under: -
"The following penalties may, for good and sufficient reasons as hereinafter provided, be imposed on a Govt. Servant, namely-
And the Rule 11 (iii) of CCS (CCA) Rules, 1965 states that "recovery from his pay of the whole or part of any pecuniary loss caused by him to the Govt. by negligence or breach of orders".
7{a). Considering this mandatory provision of the rules no recovery of loss caused to the government servant to be made Page 25 of 67 26 OA No.297/2023 without issuing charge sheet. Therefore, whole action of the respondents in recovering the alleged loss violates these provisions. Moreover, as per Joint investigation Report it can be seen that the SSPOs concerned at Mumbai has made recovery from the official at fault by issuing charge sheet to them.
7(b). The applicant submits that respondents has directed the applicant to credit the normal and penal interest amounting to Rs.2,10,375/- (Rupees Two Lakhs Ten Thousand Three Hundred and SeventyFive only) which is against the provisions of rules as explained in preceding Para. Therefore, applicant prays before this Hon'ble Tribunal to entertain, hear and dispose of the OA with grant of reliefs claimed by him in the present OA.
8. The respondents have also filed sur-rejoinder reiterating the grounds mentioned in the rejoinder by the applicant.
9, Heard the learned counsel for the applicant and the learned counsel for the respondents. | have also perused the pleadings and documents submitted by the parties.
Page 26 of 67 27 OA No.297/202310. it may be stated that while initiating disciplinary action under Rule 16 of CCS (CCA) Rules, 1965 against the applicant, it was alleged that while working as Senior Postal Assistant, Antop Hill PO, Mumbai 400 037 on 25.02.2005, the applicant failed to supervise and follow the proper procedure of payment made by Shri D.R.Surve, SB counter PA for Rs.6,00,000/- (Rupees Six Lakhs only) by cheque No. 683566 dated 25.02.2005 towards the fraudulent encashment of fake KVPs No.46CC 896801 to 896830 for Denomination of Rs.10,000/- (Rupees Ten Thousand only) each issued in the name of Shri Shashi Sharma under Registration No.9432 dated 28.01.1999 at Dishergarh S.O. (West Bengal). The Disciplinary Authority vide order dated 06.03.2012 imposed a penalty of withholding of one increment falling due on 01.07.2012 for a period of six months without cumulative effect.
10({a). The respondents have stated that a joint investigation was carried out by DPS Mumbai Region, Maharashtra Circle and DPS South Bengal Region, West Bengal Circle on fraudulent encashment of lost/stolen KVPs bearing No.46CC 896801 to or Page 27 of 67 28 OA No.297/2023 896830. The said Joint investigation Report was issued on 13.09.2019. The applicant was identified as one of the four subsidiary offenders. It was also mentioned in the report that disciplinary action under Rule 16 of CCS (CCA) Rules, 1965 has already been taken and punishment of withholding of one increment for six months without cumulative effect has been imposed upon the applicant. Respondent No.4 vide letter dated 14.12.2020 ordered to respondent No.S to recover the share of Rs.2,00,000/- (Rupees Two Lakhs only) from the salary of applicant from the month of December, 2020 in twenty installments of Rs.10,000/- (Rupees Ten Thousand only) each. He further mentioned that the normal and penal interest will be intimated on completion of recovery of Rs.2,00,000/- (Rupees Two Lakhs only).
11. Rule 11 deals with Penalties and Disciplinary Authorities. Penalties are categorized into two categories namely minor penalties and major penalties. Under the category of minor penalties, the fallowing punishments have been prescribed: -
(i) Censure;Page 28 of 67 29 OA No.297/2023
(ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order; [(iii) (a) reduction to a lower stage in the time-scale of pay by ohe stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension]:
(iv) withholding of increments of pay: and
12. A joint investigation report dated 13.9.2019 by the DPS Mumbai Region, Maharashtra Circle and DPS South Bengal Region, West Bengal Circle hold applicant as one of the subsidiary offenders in the matter of fraudulent encashment of loss/stolen KVPs bearing No.46CC 896801 to 896830 = 30 for denomination of Rs.10,000/- (Rupees Ten Thousand only) each purported to have been issued from Dishergarh PO and discharged from Antop Hill PO, Mumbai 400 037 on 25.02.2005 and Jogeshwari (E) Post Office, Mumbai on 12.04.2005 i.r.o. KVP No.46CC 896830-896845 = 15 of denomination of Rs.10,000/- (Rupees Ten Thousand only) each. The applicant was held responsible for contributory negligence. In the said report, it has also been mentioned that the we Page 29 of 67 30 OA No.297/2023 disciplinary action was initiated against the applicant and the punishment of withholding of one increment for six months without cumulative effect was imposed upon him.
13. Subsequently, on 27.11.2019, a letter. was issued to the applicant by SSPO Mumbai East Division, Mumbai wherein the applicant was directed to credit his share of Rs.2,00,000/- (Rupees Two Lakhs only) in Government treasury within eight days from the receipt of letter failing which action will be initiated against him in accordance with the provisions of Rule 106, 107 and 111 of Postal Manual Vol. Ill and DGP&T letter dated 13.02.1981. The applicant desired a copy of Joint Investigation report. The request was denied by the SSPO Mumbai East Division vide his letter dated 17.11.2020. Vide another letter dated 27.11.2020, the applicant was directed to credit his share of Rs,2,00,000/- (Rupees Two Lakhs only) with normal and penal interest in the Government treasury. On 10.08.2020 and 17.12.2020, the applicant again requested to supply a copy of Joint Investigation Report as he was wanted to make an appeal to Director Postal Service. The L Page 30 of 67 31 OA No.297/2023 applicant made an appeal to Director Postal Service, Mumbai Region, Mumbai on 19.04.2021. On 23.09.2022, the SSPOs Mumbai East Division conveyed the details of normal and penal interest to be paid by the applicant.
14. The applicant has placed reliance on the decision of Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), AIR 2015SC696, in which the mere clarification cannot over rule the law as laid down in para 12 of the judgment of the Hon'ble Apex Court in Rafiq Masih (supra). The relevant part of the judgment reads as follows:
"12, It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of theirentitlement.
Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-lll and Class-IV service (or Group 'C' and Group 'D' service). "ee a Page 31 of 67 32 OA No.297/2023
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(ii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
15. The respondents in their reply and sur rejoinder has stated that as disciplinary action under Rule 16 Charge Sheet was already issued to the applicant and punishment was awarded in this case. Hence, another charge sheet cannot be issued in the same case. But pecuniary loss caused to the Government was to be recovered from the officials at fault before their retirement. As the amount of loss had already been recovered in 20 installments from the Page 32 of 67 33 © OA No.297/2023 salary of the applicant, the interest on loss was also required to be recovered and to be credited and the applicant was told accordingly vide letter dated 08.09.2022.
16. It would be relevant to consider the decision of the Hon'ble Supreme Court in the case of Girish Chandra Singh Vs. State of U.P.& Others, 2008 (1) AWC 906 decided on 03.12.2007, it has been held in para 11 that:
"11. It is settled legal position that no person should be vexed twice for the same cause of action. The said principle is contained in Article 20 (2) of the Constitution of India and is fundamental to criminal jurisprudence. Though Article 20 (2) of the Constitution of India does not apply to departmental proceedings but nonetheless the doctrine of double jeopardy or the principle that no one should be vexed twice for the same cause of action is equally applicable to cases of departmental punishment. Thus, where the competent authority has already arrived at one decision on the basis of same charges on the conclusion of enquiry and a punishment though minor in nature or no punishment has been imposed, the authority or its successor cannot subsequently reopen the matter and inflict another order of punishment especially without cancelling, revoking or rescinding the earlier order. In the instant case it is admitted that the petitioner was exonerated from both the charges of bigamy and misconduct. The said order is intact and has not been recalled, cancelled or revoked. In the case of Ganga Din v.Page 33 of 67
17. case of Nand Kumar Verma Vs. State of Jharkhand & Others 34 OA No.297/2023 UPSRTC and Ors, 1992 AWC 1484 this Court applying the principle contained in Article 20(2) of the Constitution of India held that where an employee has been charge sheeted but on taking the lenient view he was reinstated, it was not open for the employer to punish him for the same incident. Recently, a Division Bench of the Punjab and Haryana High Court in the case of Lila Singh v. Punjab State Electricity Board and Ors. 2006 LAB. I.C. 1491 held that where an employee had already been punished by forfeiting one year, it was not competent for the authorities to have passed an order of termination by reopening the whole proceedings and punishing him for the same cause of action as it amounted to punishing him twice for the same misconduct."
In another decision of the Han'ble Supreme Court in the decided on 01.02.2012 in Civil Appeal No.1458/2012, it has been held that:
"On General Principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. |f, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment. or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible. In the present case, a charge memo was issued and served on the appellant. A Page 34 of 67 Ta 35 OA No.297/2023 reading of the charge memo does not contain any reference to the proceedings of the Standing Committee at all. It is also not found as to whether the earlier proceedings has been revived in accordance with the procedure prescribed. In fact, after receipt of the charge memo, the appellant,in his reply statement, had brought to the notice of the enquiry officer that on the same set of charges, a notice had been issued earlier and after receipt of his explanation dated 21.12.1994, the Standing Committee, after accepting his explanation had dropped the entire proceedings and the same had been communicated to him by the Registrar General of the High Court by his letter dated 02.02.1995. In spite of his explanation in the reply statement filed, the enquiry officer has proceeded with the enquiry proceedings and after completion of the same, has submitted his report which has been accepted by the disciplinary authority. Therefore, in these circumstances, there is no justification for conducting a second enquiry on the very charges, which have been dropped earlier.
Even through the principles of double jeopardy is not applicable, the flaw permits only disciplinary proceedings and not harassment.
Allowing such practice is not in the interest of public service. In the circumstance, we cannot sustain the impugned order reverting the appellant to the lower post.
18. In so far as recovery of pecuniary loss caused to the department/Government due to negligence or breach of ordersis concerned, the Hon'ble High Court of Karnataka (Kalaburagi w Page 35 of 67 ; arin.
@ 4 Hi Fi i & Comme SS Aad ee Bench) in the case of Vajendra Rao and others Vs. Union of 36 OA No'297/2023 india& Others decided on 18.03.2019 in Writ Petition Nos.101277 of 2013 and others, it has been in para 7 held that:
"7. In respect of any recovery of pecuniary loss caused to the department/Government due to negligence or breach of orders, Disciplinary Authority is required to frame specific charge with reference to dates and events. Even in a case of number of frauds or misappropriation are stated to have been committed, it is not always possible to recover the entire amount of loss from the real culprit. In some cases, it is not even possible to identify the real culprit/servant and it becomes impossible to take action against the subsidiary offender - servant with _primary object of recovering pecuniary loss sustained by the department. Therefore, the penalty of recovery can be awarded only if the lapses on the part of Government servant have either led to the commission of the fraud or misappropriation. Hence, charge sheet should be quite elaborate with clear nature of lapses on the part of a particular Government servant, if it is more than one Government servant, each individual's role is required to be stated in the charge memo or Inquiring Officer has to reveal."
19. Incapacity of the respondents to recover the pecuniary loss caused to the respondent Department by the principal offender (s) and modus operandi of the respondents in identifying the subsidiary offenders and imposing heavy punishment of recovery Page 36 of 67 37 OA No.297/2023 either after Department inquiry or without Departmental Inquiry is pointed out in the decision of the Hyderabad Bench of this Tribunal in OA No.337/2020 in the case of National Association of Postal Employees & Others Vs. Union of. India and others, decided on 23.09.2021, the relevant portion of the judgment is reproduced as under:
"Demoralization is a serious issue that cannot be swept under thé carpet. A demoralized employee cannot put his heart and soul in the assignment given to him. With heavy workload thrusted on him due to the consequence of irregular establishment review, will drive fear in him that he is likely to make mistakes to complete the work in time. This fear is a great demoralizer, particularly when those who had committed innocuous mistakes without any ulterior motive are made to pay for the folly, with respondents instituting major disciplinary proceedings to impose a major cut in the pay & allowances and sometimes sending them home to cool their heels. Respondents organization is a Public institution and the humongous hierarchy they have, is to keep up the staff morale. Higher morale results in ensuring higher customer satisfaction. Customer satisfaction is critical to public interest and the respondents organization being a public institution has been in the forefront in rendering public service of superior quality. They need to continue the same but not dent it with decisions of the nature in question, lacking pragmatism and the backing of rules and law".Page 37 of 67
nan eee 38 OA No.297/2023 Further, it has been held by the Hon'ble CAT Hyderabad bench that:
"Moreover, this Tribunal is witness to a number of disciplinary cases instituted by the respondents resulting in recoveries running into lakhs from staff members for having been identified as subsidiary offenders in fraud cases on grounds of not following rules. Fraud is committed by someone and instead of recovering the loss from the main offender, it is recovered from other staff members, who are no way directly connected to the fraud, by alleging that they have not followed the rules."
18. From the perusal of the reasoning of the Revisional Authority, it is apparent that even in the case of the present petitioner there is no direct nexus between the acts of the petitioner and the loss sustained by the Government as it was not the duty of the petitioner to check the actual disbursement of payment in respect of National Savings Certificates and Kisan Vikas Patras at Idgah Colony, Post Office, Agra before remitting the amount to sub post office.
19. A charged official can be designated as 'subsidiary offender' only when it can be shown that employee had commonality of purpose and design, continuity of action and proximity of role in the alleged fraud = or misappropriation or misconduct leading to monetary loss in Government Sir Government dues are defined in Section 71 of CCS (Pension) Rules 1972.
20. It needs to be further stated that the loss to the Government due to fraud or misrepresentation does not fall under the definition of 'Government dues' (3) The expression 'Government dues' includes -
Page 38 of 67ee ERS 39 OA No.297/2023 {a) dues pertaining to Government accommodation including arrears of licence fee [as well as damages for the occupation of the Government accommodation beyond the permissible period after the date of retirement of the allottee}] if any;
(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961).
21. Therefore, Section 71(3)(b) of CCS (Pension) Rules 1972 can be quoted to say that it has been wrongly classified as 'Government Dues' by the respondent _ Disciplinary Authority.
20. It would be relevant to cite the decision of the Bangalore Bench of this Tribunal in the case of Shri Anneppa Sherikar Vs. The Union of India & others decided on 01.09.2023 in OA No.262/2022, the Tribunal has held that: -
"8, Contributory negligence ordinarily is the failure to exercise reasonable care for their safety by the party who brings a case against another party. Contributory negligence can bar recovery or reduce the amount of compensation a person receives if their actions increased the likelihood that an incident occurred. Contributory negligence has to be established. Merely on presumptions and assumptions no contributory negligence could be Page 39 of 67 40 OA No.297/2023 fixed. In the Full Bench decision of the Hon'ble High Court of Karnataka in the case of North East Karnataka Road Transport Corporation Vs. Smt. Vijayalaxmi and Others reported in ILR 2011 KAR 4845 (FB), the Hon'ble High Court has held thus:
"NEGLIGENCE"
Li. Negligence is a conduct, not a state of mindconduct which involves an unreasonably great risk of causing damage. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In strict legal analysis, negligence means more than heediess or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. It is a question of law whether in any particular circumstances a duty of care exists. The question is was the defendant under any duty of care at all, and, if so, did he observe the standard required in the circumstances of the case? Foresight is the test for duty and remoteness. It is a characteristic of the definition of the tort of negligence that it does not refer to the scope of the protection it affords to the plaintiff but rather to the qualities of blameworthiness or fault to be attributed to the conduct of the defendant. There is no liability for negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others. This duty of carefulness is not universal; it does not extend to all occasions and all persons and all modes of activity.
Page 40 of 67 41 OA No.297/2023The harm to the plaintiff's interest which has in fact occurred must be of a kind against which it was the duty of the defendant to take precautions. In the absence of some existing duty the general principle is that there is no liability for a mere omission to act. The fundamental notion appears to be that the imposition of an obligation to take positive steps for the benefit of another requires that other should furnish something by way of consideration. The standard of conduct required by the common law is that of the reasonable man. The reasonable man is presumed to be free both from over-apprehension and from over-confidence. A reasonable man does not mean a paragon of circumspection. But he is also cool and collected and remembers to take precautions for his own safety even in emergency. So, while on the one hand an error of judgment may not amount to negligence, on the other hand the fact that it might happen to him is not necessarily a defence -- even the most careful are sometimes careless.
CONTRIBUTORY NEGLIGENCE "42. The doctrine that, if the plaintiff's act was the proximate cause of the damage the plaintiff could not recover damage was a_ well-established principle of medieval law. in the sixteenth and seventeenth centuries the conception of negligence as a ground of liability worked its way into the common law. With the recognition of negligence as a ground of liability a practice grew up of alleging that a plaintiff could not recover because he was debarred by his own negligence. The Rule of law is .
that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss fies where it falls. When any person \ 1 Page 41 of 67 .
7ba ne i as Se eS 42 OA No.297/2023 suffers damage as the result partly of his own fault and partly on the fault of any other person or persons, the claim in respect of that damage shall not be defeated by reason of the fault of the person suffered damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
13. The question of contributory negligence does not depend upon any breach of duty as between the plaintiff and the defendant. Al! that the defendant is obliged to prove is that the plaintiff failed to take reasonable precautions for his own safety in respect of the particular danger which in fact occurred, so that he thereby contributed to his own injury. This however is not to say that in all cases the olaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. The governing principle is that the defendant must show that the plaintiff has failed to take reasonable care for his own safety in respect to the particular danger which has in fact occurred. The question whether the principle applies in any particular case is, as always, one of fact. Firstly, the law does not, in general, require any man to be careful of his own safety. What it does say is that a man who has negligently created a danger whereby another person is injured may plead as a way of avoiding liability that the injured person by his negligence contributed to create the danger. Secondly, no question of operative contributory negligence arises in a case where the defendant proves that the plaintiff has failed to take precautions against a foreseeable danger which has not occurred and that those precautions, if taken, Page 42 of 67 ae SSR CaS Suan neuen 43 OA No.297/2023 would have been effective to protect him against the unforeseeable danger which in fact occurred. The statement that the plaintiff must be shown to have failed to take proper precautions-for his own safety against the particular danger which in fact occurred does not mean that the particularform in which the danger manifested itself should actually have occurred to his mind. It is sufficient if it is a danger of a particular class whose occurrence he should anticipate and take reasonable precautions to guard against him. It is necessary to consider not only the causative potency of a particular act, but also its blameworthiness, though culpability here, as elsewhere in the law of torts, means not so much moral blameworthiness as a departure from the standard of care of the reasonable man. The court must also consider a third factor - namely, what is just and equitable. Hence the precise percentage by which the award is reduced is a question of fact in each case. The Court should find and record the total damages which would have been awarded if the claimant had not been at fault. It is inappropriate to apply this principle when the responsibility of one of the parties is properly to be assessed at 100 per cent. The court cannot deal with minute percentages. It is a question of fact in each case whether the conduct of the plaintiff amounts to contributory negligence. The burden of proving the negligence of the plaintiff that contributed to the damage in such a way as to exonerate the defendant wholly or partially lies upon the defendant. The defendant must always establish such contributory negligence as will amount to a defence. When the court has to decide, that the case is one in which it is proper to apportion the loss between the parties, the result is Page 43 of 67 44 OA No.297/2023 that the plaintiff's damages are reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage."
9. In the circumstances, even assuming that there was some negligence on the part of the applicant in not discharging the duties as required under the POSB Manual Volume-l, the appropriate action would be to impose the penalty coming within the ambit of Rule 16 of CCS (CCA) Rules, 1965, but fixing the responsibility and recovering the amount from the applicant during the period of working as SPM without ascertaining the actual proportion of negligence contributed by the applicant is unscientific and irrational. There cannot be any hard and fast rule or mathematical precision for fixing responsibilities of contributory negligence on the SPM to make good the loss suffered by the department owing to fraud committed by the main offender, Shri Abdul Jaleel, but such assessment should be based on some tangiblematerial evidence.
10. Rule 16 of the CCS (CCA) Rules, 1965 prescribed procedure for imposing minor penalties:
"(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 (iv) 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 Page 44 of 67 45 OA No.297/2023 representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (24) 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."
Rule 11 (iii) of the CCS (CCA) Rules, 1965 reads thus:
"recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders"
Imposing of punishment under the said Rule should be in proportionate to the gravity of charges imputed. if the fraud is committed by one main offender and the loss is not fully recovered, contributory share or apportionment Page 45 of 67 a LC :
ee =o eee Te ue eee) 46 OA No.297/2023 _ made on the applicant based on the period of their work as SPM is dictatorial. The factum of contributory negligence is not static and it varies from case to case. In other words, it depends on the facts and circumstances of each case. It cannot be uniformly prescribed or applied.
11. Rules 106 and 107 of P&T Manual Volume-ill reads thus:
"106. In the case of proceedings relating to recovery of pecuniary losses caused to the Government by negligence, or breach of orders by a Government servant, the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss.
107. in a case of loss caused to the Government, the competent disciplinary authority should correctly assess in a_ realistic manner the contributory negligence on the part of an officer and while determining any omission or lapses on the part of an officer, the bearing of such lapses on the loss considered and the extenuating circumstances in which the duties were performed by the officer shall be given due weight."
12. It is beneficial to refer to the Instructions dated 20.12.2022 issued by the Department of Posts, Vigilance Division, Government of India wherein the instructions issued vide DGPS DO letter dated 29.11.2021 has been reiterated. Para 3 of the said instructions is reproduced in the instructions dated 20.12.2022. The same reads thus:
Page 46 of 67 47 OA No.297/2023"In this context, a need has been felt to sensitize the Disciplinary Authorities about the adverse outcome of such faulty identification of offenders and making recovery from them for no lapse or the lapses, which are not relatable to the commission of a particular fraud. It should be clearly understood by the allDisciplinary Authorities that an official can be punished for good and sufficient reasons, but the penalty of recovery can be awarded only if the lapses on their part have led to the commission of fraud or misappropriation. This does not mean that for the alleged lapses, an official cannot be identified as subsidiary offender, but it is only to emphasize that in cases where the contributory negligence cannot be explicitly attributed to a particular offender or pecuniary liability cannot be worked out, instead of the penalty of recovery, any other statutory penalty should be imposed. Wherever it is proposed to award penalty of recovery, the charge sheet should be drafted carefully to clearly indicate the loss due to lapses on the part _ of the official concerned. The instructions contained in this office communication no. DG P&T- No. 114/176/78- Disc.Il dated 13.02.1981 Gol No.12(b) below Rule 11 of CCS(CCA) Rules 1965 may also be referred to."
13. The quasi-judicial authorities are bound to consider these Rules/instructions in cases of contributory negligence before imposing the penalty of recovery. It should be established that the lapses on the part of the applicant has led to the commission of fraud/misappropriation to fix the contributory negligence. Assessment of final liability is a factor to be determined Page 47 of 67 48 OA No.297/2023 based on evidence in fixing the contributory negligence. Easier process of recovery by summary proceedings, involving good jot of money, without holding any inquiry is against the principles of natural justice. Failure of the administration in not recovering the loss from the main offender itself is not the ground to fix the financial liability on the identified subsidiary offender, unless the negligence on the part of the charged official is established. Disciplinary Authority has merely given a . finding that the negligence on the part of the Charged official has facilitated GDS Packer- main offender to deceive the depositor's money. This alleged fraud was committed by the GDS Packer, Shri Abdul Jaleel from 11.06.2013 to 03.04.2018 and Rs.1,14,800/- has been recovered from the said main offender. Balance amount is distributed amongst the other SPMs worked during the period of fraud. In our considered view, penalty of recovery of the whole amount assessed towards loss for the particular period attributing pecuniary liability sans holding any enquiry is not appropriate and the same requires reconsideration. The Disciplinary Authority as well as the Appellate Authority have proceeded in a narrow direction in fixing the pecuniary liability sans establishing the misconduct/contributory negligence on the part of the applicant, which is not in conformity with law.
14. For the reasons aforesaid, the impugned orders are not sustainable. Hence, we set aside the impugned orders at Annexure A-11 dated 12.12.2019 and Annexure-A13 dated 09.03.2020 issued by the Respondents No.3 and 2 i respectively.....
Page 48 of 67 49 OA No.297/202321. The judgment of the Hon'ble High Court of Delhi in Writ Petition (C) No.8233/2002 in the case of Shri R.C.Sharma Vs. Union of India and othersdecided on 16.02.2010, it is held that:
"From the perusal of the reasoning of the revisional authority it is apparent that even in the case of the present petitioner there is no direct nexus between the acts of the petitioner and the loss sustained by the Government as it was not the duty of the petitioner to check the actual disbursement of payment in respect of National Savings Certificates and Kisan Vikas Patras
- at Idgah Colony, Post Office, Agra before remitting the amount to sub post office."
22. It is a well laid out dictum that in the case of proceedings relating to recovery of pecuniary iosses caused to the Government by negligence or breach of orders by a government servant, the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss. In the case of loss caused to the Government, the Competent Disciplinary Authority should correctly assess in a realistic manner, the contributory negligence on the part of an officer and whiledetermining any omission or Page 49 of 67 50 OA No.297/2023 lapses of an officer, the bearing of such lapses on the loss considered and the extenuating circumstances in which the duties were performed by the officer, shall be given due weight.
23. Manner in which charge-sheet to be framed, as is well known the penalty of recovery from pay is a special type of penalty which cannot be awarded in all types of misconduct. Rule 11(3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, clearly prescribes that the penalty of recovery from pay of the whole or part of the loss caused by the Government servant to the Government by negligence or breach of orders on his part can awarded to him. Thus, the rule itself makes it clear that this penalty can be awarded only in a case where it has been established that the negligence or breach of orders on the part of a government servant has led to the loss to the department. It has been observed that penalty of recovery has been set aside on the ground that the disciplinary authority merely established certain lapses on the part of the Government servant without explaining the facts leading to the loss and the Page 50 of 67 51 OA No.297/2023 manner in which the lapses on the part of the Government servant had a link with the loss sustained by the department. No appeal has been filed in this case as it was found that it would not be possible to sustain the order of the penalty of recovery which was not consistent with the rule referred to above. _ 24, It is further stated that a number of frauds or misappropriations are committed and it may not be always possible to recover the entire amount of loss from the real culprit. in some cases, it is not even possible to locate the real culprit and accordingly it becomes impossible to take action against the subsidiary offenders with the primary object of recovering loss sustained by the department. Time and again, it has been clarified to the disciplinary authorities that while an official can be punished for good and sufficient reasons, the penalty of recovery can be awarded only if the lapses on his part have either led to the commission of the fraud of misappropriation or frustrated the enquiries as a result of which it has not been possible to locate the real culprit. It is, therefore, obligatory that the charge-sheet \ Page 51 of 67 52 OA No.297/2023 should be quite elaborate and should not only indicate clearly the nature of lapses on the part of the particular official but also indicate the modus operandi of the frauds and their particulars and how it can be alleged that but for the lapses on the part of the official, the fraud or misappropriation could be avoided or that successful enquiries could be made tolocate the stage at which the particular fraud had been committed by a particular person. This will enable the accused not only to submit a defence against the allegation brought against him but also to explain how the lapses had not contributed to the loss in any manner. The disciplinary authority is also required to give a clear finding in the punishment order on both these points. If it is not done, the order, awarding the penalty of recovery will be liable to be set aside.
25. It is also laid down that the recovery from pay as a punishment for any pecuniary loss caused by a government servant by negligence or breach of orders should not exceed one-
third of basic pay (i.e., excluding dearness pay or any other Page 52 of 67 53 OA No.297/2023 allowances) and should not be spread over a period of more than three years.
26. It has been laid down that in the case of officials due to retire shortly, recovery of loss imposed on a government servant asa measure of penalty, the recovery from pay should be effected in the normal course. If during the course of recovery, the official retires from service and a balance is still outstanding for recovery, the amount so outstanding cannot be adjusted against the gratuity without following the procedure laid down in Article 351- A, C.S. Rs. [Rule 9 of Central Civil Services (Pension) Rules, 1972]. In cases where a government servant is due to retire shortly and the amount of loss caused by a government servant cannot be recovered in full because of his impending retirement, the final punishment order should not be passed and the case referred to the Directorate for initiation of action under Article 351-A of the C.S. Rs. along with the record of disciplinary proceedings.
27. In the instant case, it may be pointed out that Joint Investigation was carried out after almost 14 years of the incident Page 53 of 67 54 ~ OA No.297/2023 of payment of the said KVPs and after almost 7 years of imposition of penalty under Rule 16 of CCS (CCA) Rules, 19650n the applicant. Nothing new has been found out in the Joint Investigation beyond the information available to the respondents at the time of initiation of Rule 16 Chargesheet for which punishment under minor penalty has been imposed.tt is not clear from the record as to when was Joint Investigation was orders and why it took such a long time to complete the said joint investigation. If the joint investigation was delayed. However, these are the questions which need to be pondered upon by the respondents. Even the Joint Investigation Report mentions that relevant disciplinary action should be initiated against the subsidiary offenders to recovery the amount. Even Regional Office, Mumbai has taken action after almost 5 years from the date of discharge of the said KVPs as the respondents inform in their reply that the Regional Office Mumbai vide e-mail dated 28.10.2010 had intimated that Director of Accounts (Nagpur) vide letter No. CC/Patram/CC Theft/Patna/2009-10/976 dated 28.10.2010 that 30 Certificates of Page 54 of 67 ops 55 . "OA No.297/2023 KVPs of denomination of Rs.10,000/- (Rupees Ten Thousand only) bearing Nos.46CC 896801 to 46CC 896830 were found discharged at Antop Hill PO under Dadar HO and directed to conduct further investigation in this case.Such tardy action on the part of Head Post Office and Director Account (Postal}, Nagpur throws ample light on the priority being attached to urgent and important tasks where immense loss has been caused to the government by the miscreant. It is strange and complete abdication of role and responsibility by respondent No. 3 when Respondent No. 4 sought directions from Respondent No. 3 in the matter. He did not provide any guidance or instructions to him and shun his responsibility by merely stating that | Respondent No. 4 is competent to take action in the matter.
28. The respondents state that the purported holder (one Shri Shashi Sharma) of the KVP presented. an application dated 27.01.2005 to the Post Master Antop Hill Post Office Mumbai along with a Xerox copy of KVPs Nos. 46CC 896801 to 896830 i.e. 30 certificates for denomination of Rs.10,000/- (Rupees Ten Page 55 of 67 56 OA No.297/2023 Thousand Only) each purported to have been issued from | Dishergarh Post Office, West Bengal. The application was sent to the Sub Post Master (SPM) Dishergarh Post Office for verification of genuineness of KVPs. It is stated that the Verification Report was received back from SPM Dishergarh Post Office, West Bengal 713333 duly verifying the signature, seal and postal date stamp of the office with remarks that as per records the particulars of KVPs are verified and found correct and genuine with the remarks that the payment may be made on proper identification. On receiving the above report from the SPM Dishergarh Post Office, the SPM Antop Hill Post office placed demand and obtained a payment Cheque No.683566 amounting to Rs.6,00,000/- (Rupees Six Lakhs only) from Senior Postmaster Dadar HO in favour of the said Shri Shashi Sharma and after verification by PRI(P), the cheque was handed over to the said Shri Shashi Sharma on 25.02.2005 by the counter PA Shri D.R. Surve and SB incharge Shri P.G. Surve.
29. From the above position as stated by the respondents, the application for discharge of KVP in question along with Xerox Page 56 of 67 57 OA No.297/2023 copies of the KVP was presented to the Sub Post Master Antop Hill Post Office and not to the applicant. It is also stated that the process of verification was undertaken and after having received the verification particulars from the office issue, the payment was made. It is the Sub Postmaster of Antop Hill Post Office, Mumbai who would have placed requirement for issuance of a Cheque of maturity proceed through Dadar Head Post Office and before placing demand for issuance of Cheque for making payment towards the maturity proceed of the KVP in question, the Sub Postmaster would have checked the justification of the correct liability. Further, when it is claimed that payment of KVPs in question was made only after obtaining the verification report from the office of issue, the question of not making payment does not arise. As it could be divulged almost aroutid 7 years after the transaction that the transaction in question was a fraudulent one and Department decided to fix responsibility. The respondent authorities issued a Charge Sheet under Rule 16 of the CCS(CCA) Rules, 1965 and imposed a punishment of withholding the next Page 57 of 67 oy 58 increment for a period of six months without cumulative effect on OA No.297/2023 06.03.2012. None of the records based on which imputation was framed was available with the respondents. They have stated that the relevant records are not available. Sub Postmaster who is incharge of the post office and is answerable for maintenance and upkeep of all records in the post office has neither been questioned by Respondents nor by the officers who conducted Joint Investigation in this matter.it could be stated that the . role,responsibility involvement and misconduct by the applicant in discharge/payment of above mentioned KVPs must have been assessed, weighed and examined by respondent No. 4 while imposing penalty of a punishment of withholding the next increment for a period of six months without cumulative effect on 06.03.2012.
30. In view of the facts that it is applicant who is pressing for verification of details of the holder of KVPs before making payment and after verification options of not making payment are dim. In this situation, it could be stated that there is no direct Page 58 of 67 59 OA No.297/2023 nexus of the applicant in the transaction wherein the amount has been defrauded. The respondents have miserably failed to bring clarity on the issue. Rather, when they started investigation and -- decided to issue minor penalty charge sheet under Rule 16 of CCS (CCA) Rules 1965, they have reported that no record was available in the post office. Further, the respondents have also failed to bring clarity on the aspect of availability of Negative List in the | Antop Hill Post Office and whether the said Negative List has been made available with the post office staff handling savings back work. Clarity on this aspect was essential in the view of applicant's vehement denial! on the availability of Negative List at Antop Hill post office. It is a matter of serious concern that respondent authorities did not make it mandatory to record consultation of Negative list as a must step in the process of payment 'of KVPs being presented for discharge which are not issued at the office of payment. It is also important to point out that respondent authorities are operating Savings Bank and Savings Certificate operations in computerized mode for a considerable long time and Page 59 of 67 60 OA No.297/2023 to provide for such solution is very important to obviate frauds. Therefore, it is imperative upon them to not only provide the Negative listbut also keep updating the said list and make it available to the front-line staff for referring. to in a seamless manner when handling transaction where consultation of such list
(s) is mandatory. The forms and the software must provide for provision of having consulted the such list by the concerned staff before making such payments. To buttress their point, they would have relied upon the inspection report of various inspecting authority in the preceding years. As stated above, it is the applicant who has pointed out that payment should be made after proper verification of the identity of the holder of KVP and for that purpose, PRI(P) has been deputed who gave his report. After the said report, the cheque of maturity proceed was given to the KVP holder. Therefore, the applicant cannot be held responsible for making payment without proper verification. The respondent w authorities are silent on this aspect.
Page 60 of 67 61 OA No.297/2023.31. The respondents are silent about the role of Savings Bank Sub Office (SBSO) at Dadar Head Post Office whose responsibility was to check the transactions made at Sub Post Office and Savings Bank Control Organization (SBCO) at Dara Head. Post Office whose responsibility is to carryout checking and verification of payments made by the Head Post Offices and Sub Post Offices. Had the SBCO acted ina prompt manner, the discrepancies could have been detected much earlier and the defrauded amount would have been recovered from the main offender. It is surprising that the Joint Investigation also did not deliberate upon this aspect. The role and responsibility of inspecting officer who have carried out inspections and visits year after year is also shrouded under cover of cloud as nothing has been said in the Joint Investigation report about them. This shows lack of functioning of preventive vigilance apparatus and putting into place proactive vigilance methodology by the respondents to provide robust and safe operational environment to its own employees and to protect government exchequer from the frauds. Respondents are well aware that they Page 61 of 67 62 OA No.297/2023 operate these savings schemes on behalf of government of India and they are paid for such services by the Government. It is their responsibility to ensure that safe, secure and robust mechanism is put into place to protect the transactions under these schemes from insiders and outsiders' miscreants and fraudster. Reaction time is too tardy, when some action js initiated it is too late and there is no evidence to nab the guilty persons including guilty employees as either there is lack of evidence or: evidence is destroyed. It could be seen in this case that when the investigation was taken up after almost 6 years, no evidence could be found. The pressure of recovery when mounted from the top, some lower-level operative officials were identified as subsidiary offenders. During the relevant period, the Sub Post Officer would have been inspected by many officers, no such officer was identified as subsidiary offender. Respondent No. 3 failed to provide any guidance to respondent No. 4 and in such situation, respondent No. 4 tried to recover the amount by imposing recovery without following the due process as laid down under Page 62 of 67 63 OA No.297/2023 law.Why those actions / inactions are instrumental in causing this fraud and delay in detection of this fraud were not made subsidiary offenders? This is an area which should be grave concern to the respondents.
32. In view of detailed position explained above, the respondents have failed to establish that the applicant has any direct nexus due to which he could be declared as subsidiary offender and recovery of Rs. 2,00,000/- (Rs. Two lacs) has been made from his pay without following due process as laid down in the law. This is also important to mention that it is the applicant who had ressed for verification of identity of purported holder before making payment. If he would have nexus of any kind, he might have simply made payment without getting any verification done. It is the Sub Post Master, Antop Hill Post Office who has placed demand for issuance of Cheque towards maturity proceed. On whose name such Cheque is to be prepared and whether the said Cheque needs to contain details of Account of holder or not, are the issues which Sub Post Master should have Page 63 of 67 64 OA No.297/2023 examined.Therefore,for the reasons discussed above, the applicant cannot be held responsible for contributory negligence.
33. As discussed supra, the recovery in this case would not have been possible as disciplinary action in form of charge-sheet under Rules 16 of CCS (CCA) Rules, 1965 was issued to the applicant on 14.09.2011. After considering the representation of the applicant, a punishment of withholding the next increment for a period of six months without cumulative effect was imposed upon the applicant on 06.03.2012. The respondents are well aware that if they would have taken another disciplinary action against the applicant to recover the amount for the similar transaction for which already punishment has been imposed, it would tantamount to double jeopardy. Therefore, they resorted to asimple but unlawful method to recover of Rs. 2,00,000/- (Rs. Two lacs) from the salary of the applicant and also directed applicant to deposit Rs. Rs.2,10,375/- (Rs. Two Lakh ten thousand three hundred seventy-five only) as normal and penal interest. Sadly, respondent No. 4 is well aware of the position but still he resorts Page 64 of 67 65 OA No.297/2023 to the illegal method of recovery. Respondent No. 3 miserably failed to provide any guidance to Respondent No. 4 when he raised this issue with him. As has been mentioned above, such an option was not available to the respondents. Therefore, the respondents resorted to an unlawful method of recovery which is impermissible as per the guidelines issued by their own .
Department as mentioned above. Therefore, the amount recovered from his salary towards contributory negligence and amount worked out towards penal interest from the applicant is illegal. -
34, The case of applicant is also covered under the decision of Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer}, AIR 2015SC696 as laid down in para 12 of the judgment of the Hon'ble Apex Court in Rafiq Masih (supra). The relevant part of the judgment reads as follows: -
"12, It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of theirentitlement. Be that as it may, based on the decisions referred to ' a
-Page 65 of 67 66 OA No.297/2023
herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: -
(i) Recovery from employees belonging to Class-Ill and Class-lV service {or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued..
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a ' higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
35. In view of above, the Original Application is allowed. | issue the following orders: -
(a) Impugned orders dated 14.12.2020 (Annexure A-1) imposing recovery of Rs.2,00,000/- (Rs. Two Lac) on the applicant which has already effected without issue of charge sheet is quash and set aside.Page 66 of 67 67 OA No.297/2023
(b) Impugned order dated 08.09.2022 (Annexure A-2) issued by Respondents No.4 by which applicant has been directed to credit norma! plus penal interest amounting to Rs.2,10,375/- (Rs. Two Lakh ten thousand three hundred seventy-five only) is also quashed and set aside.
(c) The respondents are directed to refund the amount recovered from the applicant within four weeks from the receipt of this order. While making payment to the applicant, rate of interest as applicable on the GPF should be paid on the recovered amount to the applicant.
(d) A cost of Rs. 15,000/- (Rs. Fifteen thousand) i.e. Rs.
7500/- (Rs. Seven thousand five hundred) each is imposed on Respondent No. 3 and 4. The cost should be deposited in the account of CAT, Bar Association, Mumbai Bench, Mumbai.
(e} Pending MA, if any, is also closed.
(RAJINDER KASHYAP) MEMBER (ADMINISTRATIVE) kmg* -
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