Central Administrative Tribunal - Ernakulam
K.Sasisekharan Nair vs Union Of India Represented By The ... on 22 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.1028/11
Wednesday this the 22nd day of May 2013
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER
K.Sasisekharan Nair, S/o.G.Krishna Pillai,
Retd. Senior Superintendent, RMS,
TV Division, Trivandrum.
Residing at Krishna Vilas,
Malayinkil PO, Trivandrum - 695 571. ...Applicant
(By Advocate Mr.Shafik M.A)
Versus
1. Union of India represented by the Secretary,
Department of Posts, Ministry of Communications,
New Delhi - 110 011.
2. The Assistant Director General (VIG.I),
Department of Posts, Ministry of Communications and IT,
Dak Bhavan, Sansad Marg, New Delhi - 110 116.
3. The Chief Postmaster General,
Kerala Circle, Trivandrum - 685 011.
4. Union Public Service Commission,
represented by its Secretary, Dholpur House,
Shajahan Road, New Delhi - 110 069. ...Respondents
(By Advocates Mr.Millu Dandapani,ACGSC [R1-3]
& Mr.Thomas Mathew Nellimoottil [R4])
This application having been heard on 4th April 2013 this Tribunal on
22nd May 2013 delivered the following :-
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The applicant is a retired officer of the Indian Postal Service Group A, having retired as Senior Superintendent, RMS 'TV' Division, Trivandrum with effect from 29.2.2008. When he was serving as Senior Superintendent of Post Offices, Trivandrum North Division during February, 2006 to August, 2007, under his administrative control came the Trivandrum GPO among other post offices. In June, 2007 on conducting half yearly accounts verification of the said GPO, the Deputy Superintendent of Post Offices, Trivandrum North Division detected a shortage of Rs.14,00,000/- in the cash balance of the GPO. The cash and other instruments such as Postal Orders etc. were in the joint custody of the Treasurer No.1 and the Deputy Postmaster No.2 (delegated duty of the Senior Postmaster) as per the P&T Financial Hand Book Vol.II. As the applicant was holding administrative control of the said post office, he was issued with a charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 on 22.2.2008 just 7 days prior to his superannuation. The charges were as under :-
(i) The applicant while functioning as Sr. Supdt. of Post Offices, Thiruvananthapuram North Dn., granted vigilance clearance for appointment as treasurer to a Postal Assistant of the GPO, convicted of an offence under Section 417 of IPC (offence under section 138 NI Act). This official on conviction was sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs.1000/- was continuing in the department on the strength of the order of the appellate court suspending the sentence, during the pendency of the appeal. This official on his appointment as treasurer, committed misappropriation of cash amounting to Rs.1474238/- within a year of his posting.
(ii) The applicant, as SSP, TVM North Dn failed to notice the incidence of retention of cash in excess of the authorized limit of Rs.24.5 lakhs fixed in the year 1998 due to his failure to obtain and review the weekly statement of balances (PA-16) and this facilitated the misappropriation of Rs.1474238/- by the treasurer.
(iii) The Treasurer-I of Thiruvananthapuram GPO was not maintaining the out of account register as per the rules on the subject and this was not noticed by the applicant during his annual inspection of the GPO from 27.12.2006 to 3.12.2006 and this helped the treasurer to misappropriate Rs.74,238/-
from the out of account cash in June, 2007.
2. The applicant having denied the charges, formal inquiry was conducted. The inquiry officer submitted his report vide Annexure A-5 dated 11.5.2009 holding that the charges were not proved. However, the Disciplinary Authority struck a disagreement note vide memo dated 15th March 2010 holding all the charges proved. Annexure A-6 refers. The applicant submitted his representation dated 29.3.2010 (Annexure A-7). The case was referred to the UPSC in December, 2010 and the Commission gave its advice vide A-2 communication dated 25.7.2011 recommending penalty of withholding of 20% of monthly pension of the applicant for a period of 5 years. Annexure A-1 order imposing the aforesaid penalty was passed by the Assistant Director General (VIG.I) by order and in the name of the President. The applicant has filed this O.A challenging the said penalty order as well as advice of the Commission, seeking the following reliefs :-
1. To call for the records relating to Annexure A-1 to A-10 and to quash A-1 order imposing a punishment of 20% reduction of pension for a period of 5 years.
2. To call for the records of A-3 charge sheet and to quash all proceedings based on the same.
3. To direct the respondents to grant him full pension with effect from the date of his retirement with all consequential benefits with 12% interest.
4. To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case.
And
5. To grant the costs of this Original Application.
3. The respondents have contested the O.A. According to them there is no legal infirmity in the decision making process and imposition of the penalty of withholding of 20% of pension is fully valid as the order was passed strictly following the rules and regulations on the subject. It has been contended that in view of the administrative lapses in the very selection of Treasurer No.I and his failure in the proper inspection of the GPO, Trivandrum, which resulted in the pecuniary loss to the Government, the applicant who was the then Senior Superintendent of Post Offices was charge sheeted under Rule 14 of the CCS (CCA) Rules. It has also been stated that the selection of the Treasurer No.I was based on the report/clearance for appointment as Treasurer No.I, given by the applicant himself who had failed to take notice of a crucial fact of an earlier conviction of the said individual. They have also justified the reasons for disagreement by the Disciplinary Authority who has held that all the charges stood proved.
4. The applicant has filed his rejoinder in which he had stated that the GPO is a gazetted Head Post Office headed by Senior Postmaster of Postal Service Group B Cadre. As far as Treasury is concerned the immediate superior is Deputy Postmaster. The Senior Superintendent of Post Offices sits in an independent administrative office for overseeing the work of the subordinates. One of the Assistant Superintendents was designated as Office Supervisor who has to conduct supervision of the work of PA or Treasurer working in the GPO. As far as the question of appointment as Treasurer No.I is concerned, the incumbent to the said post was convicted under the provision of Section 138 of the Negotiable Instruments Act and this fact was known to the Senior Post Master but he did not mention the same in his report. The report rather stated that no disciplinary case was pending or contemplated against the PA (who was appointed as Treasurer later on). At the time of giving vigilance clearance, the applicant duly verified the prescribed records such as confidential report and service book of the PA. Records made available to the applicant were scrutinized did not contain any adverse remarks nor had they reflected about the conviction of the applicant under Rule 138 of the Negotiable Instruments Act. In any event the said PA/Treasurer No.I was acquitted in the criminal proceedings vide judgment dated 21.7.2007. As regards failure to review weekly statement of balances, which resulted in the retention of the excess cash over and above the authorized amount the applicant has submitted that the excess retention of cash as a regular feature was noticed by the applicant during the inspection of the GPO. There were overwhelming reason for retention of unavoidable amount beyond the prescribed limit. Similarly as regards charge No.3 the cash retained included amount which is not Government Cash. The alleged shortage is out of full cash entrusted to the Treasurer in June, 2007 for payment to outside agency such as Insurance, LIC, Cooperative Bank etc. The respondents have mistakenly presumed that the amount kept out of account for various reasons is also (which pertain to non Government money) a part of Government money. It has also been stated in the rejoinder that even as per the respondents, the misappropriation of cash is not the subject matter of the inquiry against the applicant. Though the inquiry officer has held the charges as not having been proved, the Disciplinary Authority disagreed without considering any of the evidences adduced in the inquiry but solely based on speculation, surmises and conjectures. The applicant has also contended that the CLI report was not produced as a exhibited document in the inquiry.
5. Additional reply statement has been filed by the respondents.
6. Counsel for the applicant argued as under :-
(a) Provisions of Rule 9 of the CCS(Pension) Rules could be pressed into service only when there is a grave misconduct and while the Inquiry Officer had held the charges as not proved, nowhere has there been a finding even by the Disciplinary Authority that the applicant had committed a grave misconduct.
(b) The decision of the Disciplinary authority is one of mechanical in nature, without due application of mind, in as much as, he had relied upon fully the advice by the UPSC, and the UPSC took into account new grounds and thus, the decision is vitiated. To substantiate, the counsel argued that the UPSC had found certain defects in the recommendation letter made by the Senior Postmaster and this point was one which had not been dealt with by the Inquiry Officer nor had the applicant been put to notice in this regard. Similarly, the UPSC was very critical about the retrospective effect given to the selection of Treasurer without considering the existence of powers with the authorities to meet the exigencies of service. When the decision is based entirely on the advice of the UPSC, the authorities ought to have made available a copy of the UPSC Advice as well to the applicant before imposing any penalty. In this regard, the counsel relies upon the decision of the Apex Court in the case of Union of India and others vs S.K. Kapoor (2011 (4) SCC 589).
(c) The order of the Disciplinary Authority is not one of a reasoned order. The Disciplinary Authority had rejected the findings of the Inquiry Officer, which were based on evidence. While so rejecting, no specific reasons were given with reference to the difference of opinion. The proceedings were in violation of compliance with the principles of Natural Justice.
(d) There is no scope or possibility of the applicant coming to know about the earlier conviction of the treasurer appointed.
The prescribed procedure is to verify the records and the opinion arrived at. The Reports did not reveal the factum of conviction of the treasurer appointed.
(e) The so called shortage included certain extent of the out of accounts money, such as amount collected for remittance to the Departmental Society, Recreation Club etc.,
(f) The respondents have included the amount of out of accounts money as well in describing the loss to the ex-chequer.
(g) Bias is also manifest in the action by the Disciplinary Authority. The same vitiates the entire proceedings as held by the Apex Court in the case of Yoginath D Bagde vs State of Maharashtra and another AIR 1999 SC 3734 and Punjab National Bank and Another vs Kunj Bihari Mishra (1998) 7 SCC 84.
(h) None of the relevant records to prove the shortage or misappropriation which were in the custody of the Department were shown to the applicant.
(i) The decision is against the spirit of the Apex Court Judgment in the case of M.V. Bijlani vs Union of India and others (2006) SCC (L&S)
919.
(j) The amount lost was at the joint custody of whom one is the treasurer. However, the Disciplinary Authority had not considered the role of the Joint Custodian at any stage. The same omission to consider this aspect has been committed by the UPSC as well.
(k) Certain documents were relied upon, which have not been exhibited. Certain documents were produced for a limited purpose, whereas the entire documents were considered, without opportunity to the applicant to meet the same. (Details as spelt out in Ground M have been sought to be referred to by the counsel in this regard).
(l) Art. II is one of perverse to the core in character.
(m) Charge of not pointing out the excess retention through weekly statement review is also unsustainable as contained in ground No. N.
(n) The penalty is excessive and shocking.
7. The counsel for the applicant relied, in addition to the deposition of Prosecution Witness No. PW 1 upon the following decisions to substantiate his case :-
(a) LIC of India and Anr vs Ram Pal Singh Bisen (2010) INSC 191
(b) Dilip Kumar & O(rs vs State of Madhya Pradesh (1975) INSC 258
(c) Union of India vs S.K. Kapoor (2011) 4 SCC 589
(d) Yoginath D Bagde vs State of Maharashtra and another AIR 1999 SC 3734
(e) Punjab National Bank and Another vs Kunj Bihari Mishra (1998) 7 SCC 84.
(f) M.V. Bijlani vs Union of India and others (2006) SCC (L&S) 919.
8. Counsel for the respondents submitted that there is absolutely no procedural error in the decision making process. UPSC has given its considered opinion, which, on a fair consideration by the Disciplinary Authority, was fully worth accepting and it was on account of the same that the Disciplinary Authority after duly considering the defence statement of the applicant took into account the recommendations of the UPSC and decided to impose the penalty of withholding of 20% of the pension for a specific period, which cannot be considered as excess under any barometer.
9. Arguments were heard and documents perused. Admittedly the charges as per the report of the I.O. stood NOT PROVED, while the Disciplinary Authority had disagreed from the findings of the I.O. and held that all the charges remain proved. Thus, first it is to be ascertained whether the findings arrived at by the Disciplinary Authority are legally sustainable.
10. The foundations of the findings by the Inquiry Officer and that of the Disciplinary Authority could be tabulated and the same are as under :-
Article Foundation of finding by IO Foundation of finding by DA Article I Vigilance Clearance for The responsibility of issue of appointment of Treasurer I had vigilance clearance is that of the been given on the basis of CR SSPO and the SSPO ignored the Dossiers and clearance given by prevailing practice of the Senior Post Master and the circulating vigilance clearance ASP(HQ) who had stated that proposal among the Office there is no pending inquiry or Assistance of his Office. Had the currency of penalty against Shri CO circulated the proposal Satheesh Chandrakumar, the amongst the Office Assistants, aspirant to the post of Treasurer the information of conviction I. The fact of conviction of the would have come to the notice of said person vide Ex. P4 the applicant. Thus, the CO had juddgment of JFCM I of not followed the instructions on Neyyattinkara dated 7th August, issuing vigilance clearance 2004 was made known to Shri resulting in the appointment of Warrier, SSPOs, who was the Shri V. Satheeshchandrakumar predecessor of the applicant as Treasurer, who committed through Senior Post Master letter misappropriation of office case dated 29-12-2004 and the amounting to Rs 14,74,238/- . applicant who had joined the post Hence, the charge stands proved.
on 06-02-2006 had no occasion
to have the knowledge of the
conviction of the said Satheesh
Chandra Kumar. Hence, Art. I
stands not proved.
Article Foundation of finding by IO Foundation of finding by DA
Article II D 11 appears to show that review Inadequate monitoring by the of weekly statement of balances SSPOs was reported by the audit. of GPO is the duty of Dy. SPOs, If lack of clarity is a reason to though there appears a lack of believe that it is not the duty of clarity. In cross examination, the SSPOs, then how can it be PW3, who functioned as Dy. reasoned that it is the duty of Dy. SPO deposed that it is the duty of SPOs? The deposition of the Dy. SPO to review the weekly then Dy. SPO also does not balances of the GPO. sound a true statement since he The audit report justified retentionwas not reviewing the said weekly upto 100 lakhs, while the arrear statement and was making authorized amount was to the the said statement about a work tune of Rs 24.5 lakhs. which he was not doing. Dy.
SPOs is mainly intended to assist Ex. P 12 inspection report proves SSPOs, who will remain ultimately that the applicant noticed the fact responsible for proper functioning of excess retention of cash vide of all branches and efficient para 55 of P2, marked as D 19. function of the Division as a whole. Retention of cash in excess of authorized limit as a Hence, the charge is not proved. regular feature without monitoring paved the way for misappropriation by the Treasurer.
There is a total disorder in the maintenance and check on the day today cash balances. Hence, the charge is proved.
Article Foundation of finding by IO Foundation of finding by DA Article III Ex. P12 inspection report does The fact that the applicant had not have any mention of non- not even touched upon the issue entry of out of account cash of the out of account cash balance in the HO summary. maintained in the GPO in his The CGS deposed that there is Inspection Report in itself is a no question on this in Exhibit D 9 supervisory lapse of the CO.
inspection questionnaire of Head There does exist a question in the Post Office. Questionnaire of HOP at point No. (iv) under HO Summary, which reads "Is there a tendency to keep money out of account?"
The Inspecting officer is expected to make a list of questions on his own particular to the Head Post Non keeping of proper records of Office.
out of account cash has not been The Register was maintained in a proved by any documentary casual manner and a number of evidence. Entries in the P9 corrections appear in it at various register are not proved wrong by places. It goes against the any supporting evidence. findings of the IO that no evidence was brought to the effect that Exhibit P9 was not properly maintained.
Out of account amount shortage The point in question is not reflected in P8 letter dated 27-07-exactly the time of noticing the 2007 cannot prove that inmisappropriation but the disorder December 2006, records of out of that existed in the maintenance of account cash were not properly records irrespective of the time of maintained. Maintenance ofmisappropriation by Treasurer I. register in proper manner alone The CO who should have taken could enable PW1 to locate the note of the issue and brought out shortage as reported in P8 report. in the Inspection Report failed to Hence, charge not proved. do so. Hence, the charge stands proved.
11. As regards Art. I above, admittedly, the conviction episode of the said Treasurer was not brought to the notice of the applicant. For the first time in 2006 the applicant came to know of the same. That at the time of consideration of the case of the said Satheesh Chandrakumar there was neither any pending proceedings nor currency of penalty is also the admitted position. And, the grant of vigilance clearance by the SSPOs was based on the fact that there was no proceedings pending or currency of penalty was in vogue against the said individual. The above facts are based on records and clearance given by vigilance. Thus, it was on this ground that the applicant had absolutely no idea of the conviction of the Treasurer, that the I.O. had held that Art. I is not proved. However, the disagreement note struck by the Disciplinary Authority is based on his view that there has been a prevailing practice of circulating the vigilance clearance amongst the office assistants and the same has not been followed by the applicant at the time of issue of vigilance clearance. Had the same been followed, the fact of the conviction of the Treasurer would have been brought to the notice of the applicant and the vigilance clearance would not have been given. In other words, the regulations which prescribed that the clearance would be given on ensuring that there is no pending disciplinary proceedings or currency of penalty, though not specifically mention about circulating the proposal amongst the office assistants, which was the 'prevailing practice', the same has not been followed by the applicant and hence, the charge is proved. The question is whether the 'prevailing practice' ought to have invariably been followed before giving the vigilance clearance. Admittedly there is a set procedure prescribed as per P2 rule which stipulates that while giving the vigilance clearance for posting an official as treasurer, the authority should take into account "all pending disciplinary cases, currency of penalties etc.,"
Prevailing practice could be pressed into service only when there is no rule to hold the field. In the instant case the procedure is clearly stipulated.
Thus, the 'prevailing practice' cannot be insisted to be followed as a pre-
requisite for issue of vigilance clearance. It is pertinent to refer to a decision of the Apex Court in the case of Bimlesh Tanwar vs State of Haryana (2003) 5 SCC 604 wherein the Apex Court has addressed the very same point and held as under :-
25. It is not in dispute that despite absence of any specific rule relating to determination of inter se seniority, a long-
standing practice prevailing in the High Court has been that it be determined strictly on the basis of the order of merit.
x x x
47. It is also well settled that in the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case.
12. Stretching a little further, since the rule contains the word 'itc.,' the question may arise as to whether circulation amongst the Office Assistants, which is a prevailing practice, would be covered by the term 'etc' used in the rule. The term 'etc.,' which is preceded by the words, 'all pending pending disciplinary proceedings, currency of penalties' would normally have to receive the same colour as the preceding words. Thus, the term may cover only those which are proximately connected with the disciplinary proceedings etc., such as 'suspension', or at best 'integrity', which normally is reflected in the ACR Dossiers and certainly it cannot be extended to the the prevailing practice.
13. Thus, the ground for D.A's disagreement in regard to Art. I is feeble and cannot stand judicial scrutiny. Thus, the finding of the I.O. in regard to Article I stands.
14. Coming to Article No. II, deposition by PW3 goes in favour of the applicant when PW3, a Dy.SPOs stated that review of weekly statement of balances of GPO is the duty of the Dy.SPO. This statement of the said PW3 came up in cross examination when the question was as to whose duty is to review the weekly statement of balances received from Trivandrum GPO as per Exhibit D 11 memo of distribution of work of divisional office. The answer is "As per D11 dated 07-02-1994, it is the duty of the DY. SP. In Trivandrum Division it is done by ASP(OD). As Dy. SP, Trivandrum North Division I was reviewing the weekly statement of balances of Attingal HO and not that of Trivandrum GPO..." There has been no re-examination by the PO. Thus, the statement of the said Prosecution Witness is based on Ex. D-11. This has been brought out by the IO and on the basis of the above with certain other facts as narrated in the report, the IO had held that the said Article No. II has also not been proved. Disagreeing from the same, the Disciplinary Authority has observed :-
(a) The deposition of the then Dy. SPO also does not sound a true statement.
(b) Since he was not reviewing the said weekly arrear statement and was making the said statement about a work which he was not doing.
15. It is pertinent to point out here that the witness is one of prosecution and not from the side of the applicant. The prosecution in its own wisdom has projected the said PW as their witness. The question put forth to the said PW was not with particular reference to his duties but one of generic nature, with reference to the charter or distribution of duties as per the Memo of Distribution of work in the Divisional Office, vide D-11. And, the answer by a Dy. SPOs is "As per D 11, dated 7-02-1994, it is the duty of Dy. S.P." The said PW3, a Dy. SPOs confirmed that he was reviewing the weekly statement of balances of Attingal HO. In other words, he was doing the job of reviewing the weekly arrear statement, with reference to his jurisdiction. This very same set of facts as has been interpreted by the I.O. goes in favour of the Applicant while by the Disciplinary Authority, has disagreed with the findings of the I.O. The D.A. goes to observe that the said PW3 was not reviewing the weekly arrear statement (of Trivandrum GPO) and he cannot make a statement about a work which he was not doing. The reply of the said PW ought to have been analyzed with reference to the charter of duties and not whether the said witness was doing that job or not. It appears that the Disc. Authority has fixed the target first and tried to justify the same which is impermissible in a quasi-judicial function.
16. Again, the I.O. has taken note of the fact that Ex. P 12 inspection report proves that the applicant noticed the fact of excess retention of cash vide para 55 of P2, marked as D 19. This inspection report happens to be contemporaneous with the inspection carried out i.e. 30.12.2006. This observation in the inspection report is obviously based on review of statement of balances. This part of the report by the IO had been totally ignored by the Disciplinary Authority.
17. Thus, the point of disagreement by the Disc. Authority cannot be said to be sound.
18. The Tribunal hastens to add here that by the above discussion, it be not construed that there is re-appreciation of evidences by the Tribunal. This limited examination of contrasting of the I.O's report and Disc. Authority's disagreement is only with a view to finding out whether this is a case of no evidence. Analysis of evidence by the Tribunal upto this limited level is certainly permitted as held by the Apex court in the case of Moni Shankar vs Union of India (2008) 3 SCC 484 wherein the Apex court has held as under :-
17. The departmental proceeding is a quasi-judicial one.
Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. (Underlining supplied)
19. Thus, the finding of the Inquiry Officer that Article No. II is not proved does stand.
20. As regards the last Article, i.e. Article III, the same pertains to failure on the part of the applicant to notice during the inspection carried out from 27.12.2006 to 30.12.2006 the non maintenance of the record of daily balance of out of account cash in the HO summary as required in Rule 47
(c) of Postal FHB Vol II and the same facilitated the treasurer to misappropriate the out of account cash to the tune of Rs 74,238/-. The said Rule provides that the HO summary should contain details of sums kept out of account in the joint custody of Treasurer and the Postmaster. The summary should be prepared by the Treasurer and the details of money dept out of account should be verified by the Postmaster daily and both the Post Master and the Treasurer should sign the HO Summary. (Culled out from the Brief of the P.O.)
21. Certified copy of the register of out of account cash had been produced as Ex. P-9 and the I.O. has held that no evidence was however brought in the inquiry that P9 was not properly maintained. To the same, the Disc. Authority has stated " The Register was maintained in a casual manner and a number of corrections appear in it at various places. It goes against the findings of the IO that no evidence was brought to the effect that Exhibit P9 was not properly maintained."
22. A perusal of the depositions would go to show that the Treasurer was the person who was to maintain the register which he had admitted (the admission includes also the entries made by him.) He has also stated that there are entries written by some others too. According to the said Prosecution Witness, he used to maintain the register daily. He had also deposed in his chief examination that he credited all the amounts to the agents for which he received the list and remaining cash was kept inside the Treasury. He has stated in the cross examination "I am now facing disciplinary action on the charge of shortage of cash in the out of account amount. The case is yet to be finalized. The charge is about non payment of out of account cash to various agencies and non collection of receipts and payment. There is no charge about the register maintained for out of account cash. Upto May 2007, there was no complaint about out of account cash...."
23. PW 3, one of the prosecution witnesses clearly stated that in the half yearly verification conducted by him in June, 2007. with reference to the out of account cash, there was a difference of Rs 3410/- (in excess).
24. It is trite that if the register was not properly maintained, the first bullet would have been to the person responsible for maintenance of such Register and as per the Treasurer, there was no charge about the register for out of account cash not being properly maintained. Again, he himself has stated that upto May 2007 there was no complaint about out of account cash. PW 1 in his chief examination was asked the following question to which the answer was as thereunder :-
Q 27 : Can you say that the out of account register has been maintained properly in the GPO?
A. DPM II has not reported any irregularity about the non maintenance of the Register.
25. Again, para 47(c) of Postal FHB Volume II, the summary should be prepared by the Treasurer and the details of money dept out of account should be verified by the Postmaster daily and both the Post Master and the Treasurer should sign the HO Summary. The said provision, which is referred to in the charge sheet does not talk of maintenance of register but only HO summary. If DPM II has not reported any irregularity about the non maintenance of the Register, it is not exactly known as to how the Disciplinary Authority holds " The Register was maintained in a casual manner and a number of corrections appear in it at various places.". In other words, he overrules the deposition of Prosecution Witness made at the time of cross examination, which is impermissible save by way of re-examination. Again, corrections, if duly authenticated by the ostensible authority, cannot mean that the register is not maintained properly.
26. In this regard too, reference is invited to the decision in the case of Moni Shankar (supra) that such an examination is conducted within the territory of judicial review in Disciplinary proceedings, as recognized by the Apex Court
27. Thus, Article III also stands not proved as held by the Inquiry Officer.
28. A word about the manner in which the UPSC has examined the case and came to its conclusion and recommendations therefor is appropriate at this juncture. As regards the first charge, the UPSC has observed :-
(a) Ex. P 18 from the office of the SPO to the SSPO informs the conviction of Treasurer I. This indicates that the office of the SSPO is well known of the fact that the said Treasurer was involved in a criminal case.
(b) Had the SSPO circulated the proposed vigilance clearance to all the Office Assistants, as per the prevailing practice, the information regarding conviction would have been brought to his notice.
29. As regards (a) above, the UPSC clearly forgot to note the views of the I.O. in para 7.4 of the Report, which is as under :-
07.4 Exhibits P18 letter dated 29.12.2004 from Senior Postmaster GPO intimates the conviction of Satheesachandrakumar to SSPOs Thiruvananthapuram North.
However, this exhibit is from the GPO file as indicated by 'O/C' below the signature of the Senior Postmaster. Exhibit P17 reply, dated 4.1.2005 from SSPOs file No.B/1596, to P18 letter shows that the then SSPOs, Mr.S.M.Warrier had seen P18 letter and came to know about the conviction reported to him. However, he was not a witness on either side to testify this. Exhibit P17 is also from GPO file as shown by the remarks in ink on its bottom. Now, the question is whether the CGS who joined as SSPOs on 6.2.2006 came across these two exhibits in his office file. The CGS deposed that he saw these documents for the first time in this inquiry. Exhibit D7 is file B/1596 of SSPOs Thiruvananthapuram North. It contains correspondences up to 7.4.2003 only. In the absence of the missing correspondences it is not proved that CGS as SSPOs had come across those correspondences after his joining on 6.2.2006. The other sources from which the CGS might have come to know about the conviction of the official are the Confidential Report and the Service Book. Exhibit D5 is the CR of V.S.Satheesachandrakumar. It has no entry regarding the conviction in P4 judgment. Exhibit D8 Service Book also contains no indication of the conviction. Therefore, there is no evidence to prove that the CGS had knowledge of the conviction of V.S.Satheesachandrakumar when he granted him vigilance clearance.
30. Again, PW2 in his deposition has clearly stated that the case of conviction of Shri V.S. Satheesachandrakumar was taken very casually by the then SSP (predecessor of the applicant) and further there was no communication of the case from the Divisional Office. He has also deposed the fact of conviction was not recorded in the memo of services of the official by his predecessor Shri R. Ravindran Pillai II. And there was no prevailing practice to refer to the P.F. of the individual while writing the CR. Further no entry has been recorded in the service book as to the said conviction. It is to be highlighted here that in fact, the said Ex. P 18 was not the one taken out from the office of the SSPO but taken out from the file of the GPO as indicated by 'O/C' below the signature of the Senior Postmaster. Reply to the said Exhibit is also from the file of the GPO only and not of SSPO. In fact, the file maintained in the office of the SSPO contained correspondence only upto 7.4.2003 and the said correspondence (Ex P-18 and Ex P 17 were not proved to have been within the knowledge of the SSPO. Nor has the fact of conviction been reflected either in the CR or in the Service Book. These are the observations of the Inquiry Officer in para 7 of the Report. Thus, the observation of the UPSC vide para 3.12 to 3.14 had been made without due examination of the I.O's reports and the corresponding depositions of Prosecution Witnesses. The UPSC seems to have been keen in endorsing the conclusion arrived at by the Disciplinary Authority, which is also evident from the fact that lot many portions of its advice are reproduction of the words of the Disciplinary Authority.
31. As regards (b) above, which again is based on the conclusion of the Disciplinary Authority, the decision of the Apex Court in the case of Bimlesh Kumar Talwar (supra) does not support the view of the UPSC.
32. As regards Article II, the UPSC took into account the charter of duties attached to the post of Dy. SPOs and SSPOs and observed that the SSPOs will however remain ultimately responsible for the proper functioning of all the branches and efficient working of the Division as a whole. Review of Weekly Arrear Statement was not specifically spelt out in the charter but a Dy. SPOs as a prosecution witness has clearly stated that it is the duty of Dy.SPOs and in the instant case, it was the ASP who had conducted the Review. The said PW, also stated that he had done the same in the Attingal HO. This important piece of evidence has been marginalized by the Disc. Authority stating that the statement cannot be true as the said witness cannot depose about a work which he was not doing. The Commission has thoroughly eclipsed this piece of evidence. Thus, omission to consider a relevant piece of evidence vitiates the observation by the Commission.
33. The observation by the I.O. that the amount misappropriated was less than the amount authorized to be kept in the office and thus, non review of weekly statement cannot be said to have facilitated the misappropriation, had been rejected both by the Disc. Authority as well as UPSC. In fact, this observation has been made by the I.O. after rendering a categorical finding by the I.O. when in para 08.04, he has held, "Thus, it cannot be concluded that the non review of weekly statement of cash balance facilitated excess retention of cash, as authorized balances should have been revised first for doing a meaningful review of weekly statement." The finding did not rest on the aforesaid observation. Even if this observation of the IO is removed from the scene, the finding of the I.O. remains intact.
34. Lastly, as regards Article III, the charge is non maintenance of the register (of out of account cash) in accordance with Rule 47(c) Vol II under various heads. Neither the DA nor the Commission adverted to what does this provision stipulate. The said Rule 47 talks of Head Office Summary (and not Register) and 47(c) states as under :-
(c) In addition to the account items, the Head office summary contains the memorandum of sums out of account in the joint custody of the Head Postmaster and treasurer under the following heads :-
(i) Undisbursed pay and allowances returned by
Overseers.
(ii) Money remaining in hand, being the total amount
recovered from the addressees of value payable articles after the closing of the money order journals.
(iii) Other items, e.g. Amounts received from local Sub Offices after closing the day's transactions, sums recovered on account of Co-operative credit society dues, Professional tax, etc. The total number of Indian Postal Orders of all denominations in hand, the serial numbers of insured articles in the office safe and the total number of the account bags or sealed cash bags received from the sub and Branch offices after the close of the day's transactions and kept with the Treasurer for custody overnight will also be shown in the Head Office summary.
35. The UPSC based its observation on the views expressed by the DA. Again, as stated earlier, corrections in the register, if duly authenticated, cannot lose its validity. Thus, the views expressed by the Commission lacks weight.
36. With reference to the opinion of the UPSC and adoption of the same by the Disciplinary Authority, the counsel for the applicant relied upon the decision of the Apex Court in the case of Union of India vs S.K. Kapoor (2011) 4 SCC 589 wherein the Apex Court has held as under :-
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge-
sheeted employee so that he may have a chance to rebut the same.
6. Mr Qadri, learned counsel for the appellant submitted that the copy of the report of the Union Public Service Commission was supplied to the respondent employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India v. T.V. Patel. We do not agree.
7. In the aforesaid decision, it has been observed in SCC para 25 that "the provisions of Article 320(3)(c) of the Constitution of India are not mandatory". We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v. Union of India.
9. It may be noted that the decision in S.N. Narula case was prior to the decision in T.V. Patel case. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V. Patel case, the latter decision is a judgment per incuriam. The decision in S.N. Narula case was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
37. The above dictum does not apply to the facts of this case. In the instant case, it was at the stage of imposition of penalty that the Commission was consulted. The decision to disagree was the independent view of the D.A. and the same has been much earlier than reference to the UPSC. Again, the wordings of the advice of the UPSC establish that the UPSC has only endorsed the views of the DA (which he spelt out in the disagreement note) and not that it was on receipt of the UPSC Advice that the D.A. had come to the conclusion holding that the charges got proved. Of course, in so far as quantum of penalty is concerned, the decision of the D.A. is totally based on the recommendation of the Commission. In S.K. Kapoor, what the Apex Court has held is that if the view of the UPSC was the basis for starting the proceedings, then the individual is entitled to a copy beforehand. Here, it was at penalty stage that the opinion of the Commission had been obtained.
38. The counsel for the applicant raised the issue that the charges, even if taken as proved, cannot amount to a grave misconduct. Visiting with the pension in full or in part, either for a limited period or for eternity, should, as per the provisions of the Pension Rules, be only when the misconduct is of grave character. The charge includes negligence which entailed pecuniary loss to the Government Ex-chequer. It has been held by the Apex Court in the case of Pandit D. Aher vs State of Maharashtra (2007) 1 SCC 445 as under :-
12. Indisputably, the charges are of grave nature. The appellant has not only been charged with negligence in his duty, the State is also said to have suffered losses on account of his action and/or inaction in implementing the Jeevandhara Well Scheme.
39. Thus, the contention of the counsel for the applicant in this regard cannot be accepted.
40. Notwithstanding the fact that in respect of the above said aspects (applicability of the decision in the case of S.K. Kapoor and the character of the misconduct as contained in the charge sheet) the contention of the counsel for the applicant could not succeed, in so far as the charges are concerned, in view of the discussions contained above, the charges cannot be held to be proved.
41. In view of the above, the OA is allowed. The impugned order of withholding of 20% of pension for a period of five years and the advice of the UPSC vide Annexures I and II are hereby quashed and set aside. It is declared that the applicant is entitled to full pension without any truncation on account of the penalty proceedings. Respondents 1 to 3 are directed to arrange refund the withheld amount of Pension within a period of three months from the date of communication of this order. Though the applicant has prayed for interest @ 12% per annum, as the issue of charge sheet is not accentuated by malafide etc., in the interest of justice, the interest claimed is disallowed.
42. Under the above circumstances, there shall be no orders as to cost.
(Dated this the 22nd day of May 2013)
K.NOORJEHAN Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp