Central Administrative Tribunal - Chandigarh
Manohar Sodhi vs Electronics Test And Development ... on 20 March, 2024
1- O.A. No. 1405/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1405/2021
Pronounced on:20.03.2024
Reserved on: 11.03.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Manohar Sodhi, aged 66 years of Shri S.S. Sodhi, R/o House No. 137,
Sector 46-A, Chandigarh- 160047.
....Applicant
(By Advocate: Mr. Vivek Salathia)
Versus
1. Union of India through Director General, STQC Directorate,
Government of India, Ministry of Electronics and Information
Technology, Electronics Niketan, 6 CGO Complex, Lodhi Road, New
Delhi. - 110003.
2. The Senior Director, Electronics Test and Development Centre,
Ministry of Electronics and I.T., Government of India, Malviya Industrial
Area, Jaipur-302017.
... .Respondents
(By Advocate: Mr. Piyush Khanna)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
(i) For quashing the impugned order dated 16.11.2021 (Annexure A-15) passed by the respondent department vide which the legal notice dated 08.03.2019 (Annexure A-11) served upon the respondent no. 1 and 2 has been rejected.2- O.A. No. 1405/2021
(ii) For directing the respondents no.1 and 2 to withdraw the communication/order dated 11.02.2019 (Annexure A-10) wherein the applicant has been directed to deposit an amount of Rs.2,15,097/-
(iii) Further directing the respondents not to enforce any illegal recovery amount to Rs.2,15,097/- from the pension account of the applicant.
2. The factual matrix of the case is that the applicant joined at Electronics Test and Development Centre (in short ETDC), Solan on 07.07.1981 which was subsequently taken over by the respondents in 1986. The applicant is re-designated as Administrative-cum-Accounts Officer (A.A.O.) and posted at ETDC, Solan. He was transferred to ETDC Jaipur (Respondent No. 2) on 03.07.2001. He was given the charge of AAO of Respondent No. 2 vide order dated 17.07.2001. On the same day, the applicant was directed by Sh. G.J. Gyani, the then Senior Director (retired now) in his own capacity to take charge of Drawing and Disbursing Officer of IIQM, Jaipur. It has been submitted that the applicant was neither transferred to IIQM, Jaipur nor was its AAO. It has been pleaded that the revenue receipts from IIQM, Jaipur were being received by the Superintendent and Assistants under the supervision of Administrative Officer of IIQM while the applicant was forcefully asked to endorse office expenditure cheques/vouchers of IIQM, Jaipur under the supervision of Administrative Officer, IIQM, under its overall control and supervision. He further averred that the decade old disputed Personnel Deposit Account (Opened and Operated by IIQM, Jaipur) is made non-operational and closed in December 2002 3- O.A. No. 1405/2021 after still resistance and refusal by the applicant in signing its cheques/vouchers.
3. The applicant was transferred to ETDC, Hyderabad on 09.06.2004. The applicant sent his detailed reply on 02.12.2004 to Respondent No. 1 in response to certain questions raised by a committee constituted by respondent no. 1 in context of above said practices going on at IIQM, Jaipur. The applicant retired from ETDC, Mohali on 30.06.2015, on attaining the age of superannuation. No Dues Certificate dated 15.06.2015 was issued in respect of the applicant (Annexure A-6). On 28.02.2018 (Annexure A-7 colly), the applicant received a communication dated 13.02.2018 (Annexure A-7 colly) received from Respondent No. 2 Centre that an amount of Rs. 2,15,097/- is to be recovered from the applicant in context of a communication dated 16.08.2017 of vigilance unit of Respondent No. 1 in view of disciplinary proceedings for recovery against Sh. G.J. Gyani, who was then head of the IIQM, Jaipur. Again, on 28.05.2018 (Annexure A-8 colly), the applicant received a communication from ETDC, Mohali to intimate a communication dated 18.05.2018 (Annexure A-8 colly) received from Respondent No. 2 that an amount of Rs.2,15,097/- is to be recovered from the applicant. The applicant served legal notice on 05.07.2018 (Annexure A-9). The respondents again issued a letter dated 11.02.2019 (Annexure A-10) to deposit an amount of Rs.2,15,097/-. The applicant served another legal notice dated 08.03.2019 (Annexure A-11). The applicant filed O.A. No. 385/2021 which was disposed of vide order dated 15.04.2021 with a direction to the respondent department to pass a speaking order within 4- O.A. No. 1405/2021 two months. The respondents department passed a speaking order dated 16.11.2021 (Annexure A-15) rejecting the claim of the applicant.
4. The contention of the applicant is that the impugned recovery has been ordered without holding any disciplinary/departmental enquiry or serving any charge-sheet to the applicant which is in violation of provisions of CCS (CCA) Rules 1965. The impugned speaking order has been passed after a gap of more than a period of 20 years since the applicant was transferred to respondent no. 2 Centre on 03.07.2001 as DDO. No standard procedure was ever followed as per Vigilance Manual (2005). It has been contended that the principles of natural justice have not been followed in the context of any vigilance enquiry which culminated into recovery from the applicant.
5. Reliance has been placed upon a number of judgments of Hon‟ble Supreme Court in the cases of Hira Nath Mishra and Ors. Vs. Principal Rajendra Medical College, AIR 1973 SC 1260, Reena Rani Vs. State of Haryana and Ors, 2012 (3) SCALE 519, Jaswant Singh Vs. State of Punjab, (1991) 1 SCC 362, Union of India Vs. Tulsiram Patel, (1985) 3 SCC 398, A.K. Kraipak Vs. Union of India, (1969) 2 SCC 262.
6. The respondents filed written statement contesting the claim of the applicant. It has been submitted that under the CCS (CCA) Rules 1965, no bar contained to prevent for initiation of recovery proceedings against the delinquent after his superannuation. NOC is one of the basic requirements, which has to be taken for every employee prior to his superannuation. But when an officer found guilty of any misconduct resulting into financial losses which can be fulfilled by imposing recovery 5- O.A. No. 1405/2021 against such delinquent then it is incumbent upon the authority to initiate recovery proceedings against the delinquent even after his superannuation. Neither NOC nor his superannuation creates any bar in the way of imposing recovery against him. It has been further submitted that the applicant was well aware in the year 2004 itself through an Internal Audit Report pertaining to ETDC/IIQM Jaipur, for the period from 09.11.1994 to 31.08.2004 forwarded by Controller of Accounts, Meity. In the said report, certain financial irregularities were observed wherein the applicant along with others were found responsible for irregularities and also he was found responsible for lapses while functioning as DDO and violated the Rules and procedure in his functioning. In this regard a representation/reply dated 02.12.2004 from the applicant, may be referred. Keeping in view the recommendations of investigating committee and nature of financial irregularities committed by various officers of ETDC, Jaipur, the matter was treated as vigilance case and with the approval of the then disciplinary authority, being the highest disciplinary authority, the department had sought first stage advice of CVC on the matter for initiation of common proceedings under rule 18 of the CCS (CCA) Rules, 1965 against all the identified officers including the applicant.
7. The respondents further submitted that on the first stage, CVC had advised to initiate disciplinary proceedings only against Sh. G.J. Gyni under Rule 9 of CCS (Pension) rules 1972 and to initiate recovery of all unauthorized payment from all other officers i.e. Sh. K.K. Simon, A.K. Gupta, O.P. Verma, Yogesh Kumar, C. Chakarvarty, Manohar Sodhi, G.D. Batra and A.U. Khan along with recordable warning vide its 6- O.A. No. 1405/2021 communication dated 29.06.2015. The advice of CVC has been accepted by the then disciplinary authority. As directed by CVC, a warning was issued to the applicant along with other officers found responsible for the irregularities. Thereafter, the CVC in agreement with the STQC Directorate had advised to recover a total amount of Rs.958215/- from the identified officers. Accordingly, the responsibilities and the amount to be recovered from the then Director and the DDOs of ETDC, Jaipur was assessed. This advice of CVC was accepted by the disciplinary authority who had also approved the recovery of the amount and accordingly the recovery of Rs.479107/- from Sh. G.J. Gyani and Rs.202036/- from K.K. Simon have been made. It has been submitted that in a normal course such an order imposing recovery amount always passed ex-parte, so no irregularities and violation of principles of natural justice caused while passing the order of recovery against some of the officials including the present applicant. On these grounds, the respondents prayed for dismissal of the O.A.
8. The applicant has filed rejoinder reiterating his contentions as raised in the Original Application.
9. I have gone through the pleadings, judgments and considered the rival contentions of learned counsel for both sides.
10. The issue requires consideration in the instant O.A. is as to whether the recovery of Rs.2,15,097/- from the applicant after his superannuation at the age of 60 on 30.06.2015 is sustainable in the eyes of law without there being any disciplinary proceedings. 7- O.A. No. 1405/2021
11. This is the 2nd round of litigation. Earlier, the applicant had filed O.A. No. 385/2021 assailing the communication dated 16.08.2017 whereby the respondents in the matter of disciplinary proceedings against G.J. Gyani, Director (Retired) viz.a.viz. in compliance to the CVC directions, ordered for recovery of Rs.2,15,097/- from the applicant. The said communication was assailed by the applicant in O.A. No. 385/2021 before this Tribunal. This Tribunal, vide order dated 15.04.2021, directed the respondents to decide the legal notice of applicant dated 08.03.2019 by passing a reasoned and speaking order. In terms of the aforesaid direction of this Tribunal, the respondents have passed order dated 16.11.2021 (Annexure A-15) and decided the contention in legal notice of applicant, which has been assailed herein. The relevant part of the impugned order dated 16.11.2021 is as under:-
"4. That keeping in view the recommendations of Investigating Committee and nature of financial irregularities committed by various officers of ETDC, Jaipur, the matter was treated as vigilance case. With the approval of the then Hon'ble Minister, being the highest disciplinary authority, the Department had initiated Common Proceedings under Rule 18 of CCS (CCA) Rules, 1965 against all the identified officers including Shri Manohar Sodhi and sought 1st stage advice of Central Vigilance Commission (CVC) on the matter.
5. That on the first stage CVC had advised to initiate disciplinary proceedings only against Sh. G.J. Gyani under Rule 9 of CCS (Pension) Rules and to initiate recovery of all unauthorized payments from all other officers i.e. Sh. K.K. Simon, A.K.Gupta, O.P. Verma, Yogesh Kumar, C. Chakarvarty, Manohar Sodhi, G.D. Batra and A.U. Khan along with recordable warning vide its communication dated 29.06.2015. The advice of CVC has been accepted by the then Hon'ble Minister. As directed by CVC, Recordable Warning was issued to Shri Manohar Sodhi along with other officers found responsible for the irregularities.
6. That thereafter the CVC in agreement with the S.T.Q.C. Dte has advised to recover a total of Rs.9,58,215/- in equal proportion from the identified officers (Director and AAOs/DDOs). Accordingly, the responsibility & the amount to be recovered from the then Director, AAOs and DDOs of ETDC, Jaipur was fixed as specified below:-8- O.A. No. 1405/2021
i. Sh. Manohar Sodhi, Joint Director (Now Retd)
Rs.2,15,097/-
ii. Sh. B.K. Sharma, Scientist-C (Now retd) Rs.61,975/-
iii. Sh. K.K. Simon, Dy Director, Rs.2,02,036/-
iv. Sh. G.J. Gyani, ETDC, Jaipur STQC (Now retd.)
Rs.4,79,107/-
This advice of CVC was accepted by Hon'ble Minister who had also approved the recovery of the amount as specified above. The recovery of Rs.4,79,107/- from Shri G.J. Gyani and Rs.2,02,036/- from Shri K.K. Simon has already been made.
7. That since Shri Manohar Sodhi was found involved for making unauthorized payments while functioning as DDO and was also found liable for recovery, a decision for recovery of the amount was taken in the department vide letter dated 29.06.2015 after he had obtained an NOC prior to his superannuation on 15.06.2015.
8. That since the recovery of Rs.2,15,097 is reasonable and as per the law, Sh. Manohar Sodhi, Ex-Joint Director is liable for payment of the same. He cannot claim protection on the ground of retirement and etc. as he was involved in misappropriate of Govt. money and financial irregularities."
12. From the perusal of the impugned order (Annexure A-15), it is admitted fact that no disciplinary proceedings were initiated against the applicant, but the respondents acting on the advice of the CVC, ordered the recovery of Rs.2,15,097/- from the applicant for the reason stated to be unauthorized payments of Government money and financial irregularities. To recover the loss caused by any Government servant to Government funds, the Rule 9(5) of CCS (Pension) empowered the President not only to withhold or withdraw pension but to order recovery of pecuniary loss from pension. For the sake of convenience, the Rule 9 (5) is reproduced hereunder:-
"(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-9- O.A. No. 1405/2021
third of the pension admissible on the date of retirement of a Government servant."
From the reading of the aforesaid Rule, it is clear that where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding 1/3rd month of pension admissible on the date of retirement of Government servant. The aforesaid Rule is an enabling provision which empowers the Competent Authority to issue order for recovery of pecuniary loss caused by the Government from his pension. However, a ceiling on quantum of recovery amount from the pension of retirement of Government servant has been fixed under this rule, whereas the respondents have raised recovery of Rs.2,15,097/- from the applicant in a single stroke without adhering to the mandate of Rule 9 of the CCS (Pension) Rules, therefore, it is held that the action of respondents to demand of recovery amount is in contravention of the Rule 9(5) of CCS (Pension) Rules.
13. Further, under the Rules, the power to withhold pension or gratuity or withdrawing the pension whether permanently or for specific period and to order recovery from the pension or gratuity of any financial loss caused to the Government can be exercised by the Competent Authority, if in any departmental or judicial proceedings, the Government servant is found guilty of gross misconduct or negligence during his service. It means that to invoke Rule 9 of CCS (Pension) Rules, it is warranted to hold either departmental or judicial proceedings as per Rules, resulting that the pensioner is proved to be guilty of grave misconduct or negligence. Only after the guilt is proved, the action of 10- O.A. No. 1405/2021 withholding of pension or gratuity or recovery from pension or gratuity can be ordered by the Competent Authority. In the instant matter, the action of the respondents to recover the amount of Rs.2,15,097/- without conducting any departmental proceedings is in violation of Rule 9(1) of CCS (Pension) Rules, therefore, the impugned order dated 16.11.2021 and communication dated 11.02.2019 are bad in law. The aforesaid recovery has been initiated by the respondents even without issuing any show cause notice of granting an opportunity to the applicant to explain the circumstances. Moreover, the contention raised by the applicant vide reply dated 01.12.2004 had not been considered in proper perspective. The said action of the respondents is against the principles of audi alterm partem and liable to be set aside. The Hon‟ble Supreme Court in the case of State of Orissa Vs. Dr.(Miss) Binapani Dei & Ors (1) AIR 1967 SC 1269 has held as under:-
"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial in Tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed, it need not be shown to be super added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the 11- O.A. No. 1405/2021 order is a nullity. That is a basic concept of the rule of law and 19 importance thereof transcends the significance in any particular case"
14. Further, not only to recovery from the pension, the Rules empower the disciplinary authority to recover the penalty amount from the pay of the Government servant during his service period wholly or partly for the loss caused to the Government by negligence or breach of orders on his part. However, the said penalty can be awarded only in case, where it has been established that the negligence or breach of orders on the part of Government servant has led to the loss to the department. In the instant matter, admittedly no proceedings were held by the respondents to assess the loss caused by the applicant. The respondents, in their reply, have submitted that when an officer is found guilty of any misconduct resulting into financial losses, which can be fulfilled by imposing recovery against such delinquent, then it is incumbent upon the authority to initiate recovery proceeding against the delinquent even after his superannuation. No doubt that the competent authority is empowered to recover loss caused by the Government servant to the Government Exchequer but prior to imposing recovery, it is also obligatory on the competent authority to follow due procedure as prescribed under the law and adhere to principles of natural justice, thereby holding the delinquent officer guilty for the loss to the Government funds. It is not understandable as to how the respondents have found the applicant guilty for the financial loss caused to the respondents in the absence of any disciplinary proceedings. 12- O.A. No. 1405/2021
15. Apart from the advice to initiate disciplinary proceedings only against G.J. Gyani under CCS (Pension) Rules 1972 and to initiate recovery of all unauthorised payments from all other officers including the applicant, it was also advised by the CVC to issue recordable warning to the other persons. The respondents have initiated disciplinary proceedings only against G.J. Gyani. The learned counsel for the applicant submitted that no warning was ever issued to the applicant till his superannuation, which is fortified with the observation in note- sheet that „the reasonable warning as advised by CVC was to be kept in abeyance till the matter related to recovery has been dealt with", which shows that the respondents have mentioned false fact in their reply.
16. The respondents have also taken a plea that Sh. G.J. Gyani and Sh. K.K. Simon had already deposited the amount of Rs.4,79,107/- and Rs.202036/- respectively out of four delinquent officers, therefore, the applicant, being on similar footing, are liable to pay the recovery amount. The respondents are treating the recovery case of applicant at par with other delinquent officers on the principle of parity. The rule of Parity viz-a-viz principles of natural justice demands that before imposing recovery on the applicant, the disciplinary proceedings as per the procedure must be conducted, as had been held in G.J. Gyani, so that he could defend himself of any charge of misuse of funds as levelled against him. The respondents acting on the advice of the CVC has not followed the due procedure to assess and fix accountability of the applicant towards financial loss.
17. The respondents, on the direction of this Tribunal have placed on record relevant documents, by way of MA No.428/2024. From the 13- O.A. No. 1405/2021 perusal of these documents, I have noticed that "the CVC, after perusal of investigation report and the comments of the Administrative Authorities, informed vide communication dated 16.06.2005 that the major lapse pertains to G.J. Gyani, Director sanctioning honorarium to himself and prescribing his own course material. The commission advised action under Rule 9 of CCS Pension Rules against Sh. G.J. Gyani and also advised recovery of all unauthorised payments along with recordable warning to all officers." From the aforesaid note-sheet, I noticed that the respondents have not taken any steps to initiate action of recovery of loss caused to the Government Exchequer, as advised by the CVC from 16.06.2005 i.e. date of advice till the superannuation of the applicant i.e. 30.06.2015. The respondents raised recovery of Rs.2,15,097/- on 16.08.2017 from the applicant, after his superannuation in illegal manner and contrary to the finding of the Committee constituted by the respondent no. 1. The relevant para of note-sheet requires to be mentioned hereunder:
"The then AS&CVO on 08.07.2006 approved the proposal and directed STQC to examine and fix individual responsibility and qualify amount to be recovered from each officer in consultation with IFD and also to examine whether the recovery is as a punishment or otherwise. The reasonable warning as advised by CVC was to be kept in abeyance till the matter related to recovery has been dealt with. Accordingly, a letter was written to STQC Dte. on 09.10.2006. A Committee was then constituted by STQC Dte. to calculate the amount of unauthorized payments and make clear recommendations about amount to be recovered. The Committee estimated a loss of about Rs.128 lakhs to the Government and identified the officers namely S/Shri G.J. Gyani, K.K. Simon, A.K.Gupta, O.P. Verma, Yogesh Kumar, C.Chakravarty and Manohar Sodhi, G.D. Batra, 14- O.A. No. 1405/2021 A.U. Khan and Azad Verma as officers responsible for the alleged financial irregularities. The Committee further observed and Shri G.J. Gyani and Shri K.K. Simon are solely responsible for the loss caused to the Government since both were involved in preparing the proposal for identifying the needs, selecting the agencies, approving the rates and proposing the release of payment in violation of Government Rules and procedures. Rest of the officers, being DDOs are releasing the payments out of PD Accounts. Their fault lies in the fact that they have not brought the violations to the notice of higher authorities and since all the activities were done under the direct supervision, control and approval of Shri. G.J. Gyani, the then Director, he should own the full responsibility for causing the entire/major loss to the Government. The Committee recommended that Shri G.J. Gyani is responsible for causing the entire/major loss (99%) to the Government by committing gross financial irregularities as well as violation of Government Rules and regulations enforced from time to time. Sh. K.K. Simon is responsible for causing minor loss (1%) to the Government for assisting the then Director, STQC then referred the matter to IFD as per the advice of Vigilance Unit."
18. Moreover, the knowledge of loss has been attributed to the applicant only on the basis of Internal Audit Report pertaining to ETDC/IIQM Jaipur for the period 09.11.1994 to 31.03.2004, whereas the respondents were also advised by the CVC to effect recovery from the concerned AAOs/DDOs along with Director vide advice letter dated 16.06.2005. Despite having notice of the CVC advice, the NOC was issued on 15.06.2015 before his superannuation without deciding his reply dated 02.12.2004 to the letter dated 25.11.2004 seeking information from the applicant. The said reply given by the applicant dated 02.12.2004 was decided by the respondents only after the direction of this Tribunal, vide impugned order dated 16.11.2021. 15- O.A. No. 1405/2021 Therefore, the action of the respondents is held to be arbitrary, illegal and not in consonance with the CCS (Pension) Rules. However, the entire amount of unauthorised payment, being public money, are required to be recovered, therefore, the respondents are legally bound to recover the same as per the Rules after following due procedure. A copy of this order be placed before the Disciplinary Authority.
19. For the discussion in the foregoing paragraphs, the impugned order dated 16.11.2021 (Annexure A-15) and the communication dated 11.02.2019 (Annexure A-10) are quashed and set aside. With the observations made hereinabove, the Original Application is allowed. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟