Rajasthan High Court - Jodhpur
Union Of India vs Radhey Shyam Swarnkar on 11 April, 2019
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 2393/2019
1. Union Of India, Through the Secretary, Ministry Of
Communication, Department Of Posts, Dak Bhawan, New
Delhi.
2. Director, Postal Services, Rajasthan, Southern Region,
Ajmer.
3. The Superintendent of Post Offices, Bhilwara Division,
Bhilwara.
----Petitioners
Versus
1. Radhey Shyam Swarnkar S/o Sh. Mohan Lal, Resident of
F-150, Shubhash Nagar, Bhilwara. Presently working on
The Post of Postal Assistant, at Head Post Office,
Bhilwara.
2. Central Administrative Tribunal, Jodhpur Bench.
----Respondents
For Petitioner(s) : Mr. I.R.Choudhary
For Respondent(s) : Mr. S.K. Malik
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Judgment 11/04/2019
1. By way of this writ petition, the petitioners have questioned legality of order dated 11.12.18 passed by the Central Administrative Tribunal (CAT), Jodhpur Bench, Jodhpur, whereby the original application preferred by the respondent questioning the legality of order dated 8.3.17 passed by the Appellate Authority, affirming the order dated 29.12.16 passed by the Disciplinary Authority, imposing penalty of recovery of Rs.60,000/- (Downloaded on 27/06/2019 at 11:13:42 PM)
(2 of 6) [CW-2393/2019] from the respondent in 12 monthly installments in proceedings under Rule 16 of Central Civil Services (Classification, Control and Appeal) Rules, 1965(for short "the Rules of 1965"), has been allowed and the orders impugned have been quashed. However, the petitioners have been given liberty to take appropriate proceedings against the respondent in accordance with law.
2. The facts relevant are that the first respondent employed as Postal Assistant in the Department of Posts, Government of India was served with the memorandum of charges dated 5.8.16 alongwith the statement of allegation under Rule 16 of the Rules of 1965. The allegations levelled against the respondent as contained in statement of allegations read as under:-
";g fd Jh jk/ks';ke Lo.kZdkj mi Mkdiky yscj dkWyksuh HkhyokM+k rRdkyhu Mkd lgk;d HkhyokM+k iz/kku Mkd?kj us Mkd lgk;d HkhyokM+k iz/kku Mkd?kj ds in ij fnukad 06-05-10 ls 01-09-14 ds nkSjku fuEu rkjh[kksa esa miys[kk 'kk[kk esa dk;Z djrs gq, fuEu vfu;ferrk,a cjrh %& 1- ;g fd Jh jk/ks';ke Lo.kZdkj mi Mkdiky yscj dkWyksuh HkhyokM+k rRdkyhu Mkd lgk;d HkhyokM+k iz/kku Mkd?kj us fnukad 17-09-13, 18-09- 13, 19-09-13, 21-09-13, 23-09-13, 24-09-13, 26-09-13, 28-09-13, 30-09-13, 05-10-13, 11-10-13, 14-10-13, 19-10-13, 22-10-13, 25-10- 13, 07-11-13, 26-11-13, 30-11-13, 03-12-13 vkSj 27-12-13 ds nkSjku miys[kk 'kk[kk esa dk;Z djrs gq, ekaMy miMkd?kj ls izkIr nSfud ys[ks esa ntZ euh vkMZj Hkqxrku lwfp ,oa euh vkMZj Hkqxrku okmplZ dks ,e-vks- vksfMV@,e- vks- Hkqxrku 'kk[kk esa izkfIr jlhn ysdj ugha fn, x,A 2- ;g fd Jh jk/ks';ke Lo.kZdkj us miMkdiky ekaMy }kjk nSfud ys[ks esa ntZ euhvkMZj Hkqxrku lwfp ds lkFk euh vkMZj okmpjksa dks izkIr dj ,e-vks- vksfMV@,e-vks- Hkqxrku 'kk[kk esa nsus ds fy, fu/kkZfjr foHkkxh; fu;eksa dh vuqikyuk djus esa vlQy jgs ftlds dkj.k Jh jkedqaokj eh.kk miMkdiky ekaMy euhvkMZj Hkqxrku esa 974750 #- dk xcu dj ljdkjh jkf'k dk nqfoZfu;kstu djus esa lQy jgsA vr% vkjksfir fd;k tkrk gS fd Jh jk/ks';ke Lo.kZdkj us Mkd fu;e iqLrd & VI ikVZ-II ds fu;e 40 ¼5½ ,oa Mkd fu;e iqLrd VI ikVZ-III ds fu;e 4 vkSj 48 dk mYya?ku fd;k ,oa vius dk;Z ds izfr lR; fu"Bk ,oa drZO; ijk;.krk ugha cuk;s j[kh tks fd dsUnzh; flfoy lsok ¼vkpj.k½ fu;ekoyh 1964 ds fu;e 3(i) (ii) ds rgr muls visf{kr FkhA"
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3. On receipt of memorandum of charges, the first respondent by way of letter dated 13.8.16 asked the Disciplinary Authority to supply some documents, however, the request made was declined by the Disciplinary Authority on the ground that the documents demanded do not relate to the charges of misconduct. The first respondent did not file any representation against the charges levelled. The Disciplinary Authority after perusal of the record found that the first respondent violated the rules and failed to discharge his duties faithfully inasmuch as, he received the lot of vouchers and paid MO vouchers from Mandal SO and while handing over the said list of vouchers and paid MO vouchers to MO paid and audit branch , he did not take receipt which resulted in misappropriation of government money by Shri Ramkumar Meena, Sub Post Master, Mandal. Consequently, for the charges of misconduct proved, a penalty was imposed upon him by the Disciplinary Authority vide order dated 29.12.16 as indicated above. Aggrieved thereby, an appeal preferred by the respondent was dismissed by the Appellate Authority vide order dated 8.3.17.
4. The original application preferred by the respondent questioning the legality of the aforesaid order passed by the Appellate Authority, affirming the order passed by the Disciplinary Authority has been allowed by the CAT, Jodhpur Bench, while relying upon the earlier decisions of the CAT holding that the penalty of recovery could have been ordered by the petitioners herein only as exceptional case for the reasons to be recorded in writing and before imposing the penalty of recovery, the delinquent employee was required to be given an opportunity of (Downloaded on 27/06/2019 at 11:13:42 PM) (4 of 6) [CW-2393/2019] being heard regarding exceptional and compelling circumstances. Hence, this petition.
5. Learned counsel appearing for the petitioners contended that the respondent did not file any representation in response to the memorandum of charges served upon him and therefore, the Disciplinary Authority was absolutely justified in recording the finding of guilt after due consideration of the material on record. Learned counsel submitted that the failure on the part of the respondent in discharging duties diligently and faithfully, resulted in embezzlement of government money by the Sub Post Master and thus, taking into consideration the totality of the facts and circumstances of the case, the order passed by the Disciplinary Authority imposing penalty of recovery of Rs.60,000/- from the respondent in conformity with Rule 11 (iii) of the Rules of 1965 was absolutely justified and thus, the CAT has seriously erred in interfering with the order passed by the Appellate Authority, affirming the order passed by the Disciplinary Authority.
6. We have considered the submissions of the learned counsel for the petitioners and perused the material on record.
7. Indisputably, the allegation against the first respondent was that the respondent while working as Postal Assistant during the period from 17.9.13 to 27.12.13 in Sub Account Branch failed to deliver the list of money order paid and money order payment vouchers to MO Audit/ MO Payment Branch under due receipt as received from Mandal Post Office alongwith daily accounts which resulted in misappropriation of a sum of Rs.9,74,750/- by Sub Post Master Shri Ramkumar Meena. It is not in dispute that the respondent demanded some documents, however, the request made was declined stating that the documents demanded do not (Downloaded on 27/06/2019 at 11:13:42 PM) (5 of 6) [CW-2393/2019] relate to the charges levelled. It is true that the respondent did not file any representation in response to the memorandum of charges and the disciplinary proceedings initiated being for the minor penalty, the Disciplinary Authority was not required to conduct a detailed inquiry. But then, the Disciplinary Authority was under an obligation to record the categorical finding that on account of the respondent's failure to follow the procedure provided under the rules resulted in misappropriation of the Government money by the Sub Post Master. A perusal of the order reveals that the Disciplinary Authority has recorded merely its ipse dixit that on account of the respondent's failure in following the procedure laid down has resulted in misappropriation of the Government money. Suffice it to say that the findings recorded as aforesaid is not supported by reasons. It is true that under Rule 11 (iii), the Disciplinary Authority is empowered to impose minor penalty of recovery from the pay of the delinquent employee, whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders. But, the pecuniary loss being caused by the delinquent employee to the Government by negligence or breach of orders must be established on the basis of material on record. In the considered opinion of this court, the finding recorded by the Disciplinary Authority, affirmed by the Appellate Authority without reasons therefor is not sustainable and thus, the order impugned passed by the CAT, though for different reasons, does not warrant any interference by this court, moreso when the liberty has been extended by the CAT to the Disciplinary Authority to take appropriate proceedings against the respondent in accordance with law.
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8. The writ petition is therefore, dismissed. No order as to costs.
(DINESH MEHTA),J (SANGEET LODHA),J
43-Aditya/-
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