Central Administrative Tribunal - Delhi
Ramesh Chand Verma vs Union Of India & Ors on 23 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO.2245/2006 New Delhi, this the 23rd day of September, 2008 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ramesh Chand Verma, Ex-Post Assistant, Near Green Hotel, Bai Pass Road, Ghaziabad (U.P.) Applicant (By Advocate: Shri M.K. Bhardwaj) Versus 1. Union of India & Ors, through : The Secretary, Ministry of Communication, Department of Post, Dak Bhawan, New Delhi 2. The Director Postal Services, Office of the Post Master General, Bareilly Region, Bareilly 3. The Sr. Supdt. of Post Offices, Ghaziabad Division, Ghaziabad Respondents (By Advocate: Shri S.M. Arif) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, an ex-Post Assistant, has through this OA challenged the major penalty of compulsory retirement together with the penalty of recovery of Rs.93,000/- from his retirement gratuity and pension. The reliefs claimed are quashing the impugned Charge Memo dated 24.7.2002, the order dated 10.11.2003 by the Disciplinary Authority (DA) and the Appellate Order dated 24.2.2006 upholding the aforesaid penalties. Besides, a direction to the respondents for his reinstatement with all consequential benefits including arrears of pay has also been sought.
2. A disciplinary proceeding under Rule 14 CCS (CCA) Rules, 1965 was initiated against the applicant vide O.M. No.F/Misc/01-02/Neharunagar dated 24.7.2002 framing two charges against him. The main charge was that while working as Sub Post Master, Nehru Nagar Post Office on 14.9.1998 he had encashed Kisan Vikas Patrikas (numbers and denominations specified) purported to have been issued from Borivili West P.O. Mumbai and made payment without getting them transferred or verified from the office of issue. Thereby a loss of Rs.93,000/- was alleged to have been caused to the department. Besides, the second charge was of doing away the relevant documents containing the original vouchers of this payment, in connivance with the other staff and thereby destroying the evidence.
For these charges he was said to have violated provisions of CCS Rule 3 (1)(i)(ii) & (iii) by not maintaining integrity and devotion to duty.
While the charges were denied by the Charged Official (CO); during the inquiry of the two charges, only the first one was held as proved. The DA, agreeing with the findings of the Inquiry Officer (IO) imposed the aforesaid penalties. The applicant has thus been retired compulsorily w.e.f. 10.11.2003 and the recovery of Rs.93,000/- also effected from the retiral dues. The appeal against the order of DA has been rejected by the order of the Appellate Authority (AA). Hence the present O.A.
3. The applicants stand is that the payment in question was made by him after following the prescribed procedure. This meant getting the identity of the bearers of Kisan Vikas Patrikas (KVPs) confirmed by a known person, which in this case was done by Shri Pradeep Kumar Sharma, an agent of National Savings Schemes. Besides, these persons were said to be relatives of some officials from the Department. It is submitted that one Shri Rajesh Kumar, working as Head Treasurer in the main Post Office, Ghaziabad, had himself requested for the payments to these relatives of his and was present during that time (para 4.5 & A-6) of the OA.
His grievance is that these material submissions by him have not been considered by the IO, as also by the DA and the AA (paras 4.6 and 4.10). The Inquiry Report is faulted for non-assessment of evidence (para 5-M). The orders of DA and AAS are said to be non-speaking and cryptic and thereby violative of principles of natural justice (para 5-A).
Several other procedural flaws, such as this being a case of no evidence (para 5-B), charge No.1 having been proved by depending upon documents which were never served upon the CO (para 4.3) and not calling vital witnesses like the Post Master, Borivili West P.O., Mumbai and Rajesh Kumar (para 5-D & E) have also been raised.
The applicants further grievance is that he has been imposed two punishments, i.e. compulsory retirement together with recovery of the amount of Rs.93,000/-(para 5-L) . On all these grounds, the quashing of the impugned Charge Memo and the orders imposing penalty has been sought.
4. The OA is contested by the respondents with the submission that this was a case of making payment against bogus KVPs which caused loss to the department. The fact of the payment has been admitted by the CO himself. Asserting to provide the CO all reasonable opportunity of self defence, and following principles of natural justice at every step, the averments made in the OA have been rebutted.
In response to para 4.3 regarding charge No.1 being proved by the IO by relying on documents as were never served upon the CO, it is submitted that the daily order sheet no.2 dated 3.10.2002 mentions that copies of all the original documents were seen by the CO. Regarding vital witnesses not being called, para 5-D of the counter submits that no need was felt to call the Sr. Post Master Borivili as the applicant had never repudiated during inquiry about the non-issue of the KVP from Mumbai Office. Similarly, regarding Rejesh Kumar, para 5-N of the counter mentions that as per the inquiry he has no relationship with the case. Further, the applicant could have called him as his own witness. This aspect is seen to have been dealt with in the order of the DA in the following manner:-
All the pleas advanced by the official are not acceptable, as these are a trial for overlapping the committed fault. What good the witness was whose witness was taken at the time of payment, who could not cause the repayment of the loss to the Department. Taking the witness of certain person is always an additional precaution while making the payment, it is not sole resort for the purpose. Said Shri Rajesh Kumar has also deemed the fact that payment was made to any of his relatives.
5. It is trite that the scope of judicial review in disciplinary proceedings is limited. In its recent judgment in Alhilesh Kumar Singh vs. State of Jharkhand & Ors, (2008) 1 SCC (L&S) 381, the Apex Court quoted with approval from the single Judge Patna High Courts dicta that while exercising jurisdiction under Articles 226/227 of the Constitution, Courts cannot act as an appellate authority and substitute their own findings for those of administrative authorities. We would, therefore, refrain from stepping into their shoes and make pronouncements. We are also aware that the concept of natural justice must not get bogged down by technical procedural shackles. However, procedural violations assume importance when these prejudice the delinquent employees right of effective self-defence.
6. Having considered the submissions before us carefully, we are struck by the peculiar facts of this case and the nature of penalty imposed. The extenuating factor posed on behalf of the applicant is that his fault at the most was that of a wrong payment made in good faith in a departmental colleague. This plea comes out consistently in all the representations as well as appeals by the CO. The charge framed and proved is also of wrong payment but not of defalcation or misappropriation of Govt. funds. The related charge of destroying the documentary evidence has not been held to be proved during the inquiry or by the DA and the AA.
As the concerned employee has in fact caused a loss to the Department, whatever may be the attendant circumstance, the penalty of recovery of the corresponding amount was awarded; this is also said to have been recovered from the applicant. In addition the major penalty of compulsory retirement has also been inflicted, when as stated the CO had five years to go before superannuation. This is submitted to be needlessly harsh.
These very pleas were taken by the applicant in his appeal dated 17.12.2003 (A-7) which, however, are not found to have been addressed appropriately. The following relevant portion from the AAs order is extracted:
2. That the most learned (D.A) has awarded two in one, punishment i.e., Recovery of Rs.93,000/- of the Deptl. loss.
Compulsory retirement (Major Penalty)
3. That the punishment of compulsory retirement is server. He could have made good the loss during five years of service before the order. The amount of Govt. loss could have been recovered easily and it would not have been a financial strain for the responsible official.
The disciplinary authority has reported that the payment of the amount has been ordered by him and the fraudulent payees have not snatched the money from the appellant. He has himself accepted that he has ordered the payment without proper verification / transfer of KVPs for which he has been punished for violation of the rules. It caused a loss of huge amount to the department. No body else is at fault in the case only the appellant is responsible. He could have refused the payment without verification which he has failed to do so. With these observations, the AA simply reiterates the view taken by the DA without even referring to the submissions by the applicant or giving reasoned findings for their acceptance or rejection.
7. In this context, we find the guidelines issued by D.G. P&Ts Circular No.105/26/81-Vig.III dated 30.3.1981, which mention that though there is no technical bar in imposing another penalty along with recovery but in such cases the severity of the strain vis-`-vis the nature of offence committed should be considered.
The punishing authority should, however, bear in mind that when more than one penalty is imposed, on of which is recovery of pay of the whole or part of loss caused to the Government, the net cumulative effect on the Government servant should not be of such a severity so as to make it impossible for him to bear the strain. This plea has also been taken by the applicant in his appeal dated 17.12.2003.
8. In Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 442, it was held by the Apex Court that the punishment or penalty to be imposed must be commensurate with the gravity of the misconduct. Again, in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 and Shri Bhagwan Lal Arya V. Commissioner of Police, Delhi, (2004) 4 SCC 560, it was held by the Honble Supreme Court that although the choice and quantum of punishment is within the jurisdiction and discretion of the authorities, yet it must suit the offence and it should not be vindictive or unduly harsh nor so disproportionate to the offence so as to chock the conscience and amount in itself to conclusive evidence of bias.
9. In the light of the aforesaid discussions, we find merit in the applicants contention that the order of the AA is not a speaking one and does not address adequately the points raised in the appeal, thereby violating the principles of natural justice and prejudicing the right of self-defence of the applicant.
Considering the nature of the proved charge which did not involve misappropriation of funds and at the most pertained to a wrong payment, the additional punishment of compulsory retirement together with recovery of the amount prima faice seems to be unduly harsh. The departmental guidelines quoted in para-7 above lends support to this view.
10. For the foregoing reasons, allowing the OA partly we quash the impugned appellate order dated 24.2.2006 (Annexure A/2) and direct the Appellate Authority to reconsider the punishment of compulsory retirement, treating the averments in this OA as supplementary representation and keeping in view our observations in this order. A speaking and reasoned order, particularly highlighting the justification or otherwise of imposition of an additional punishment, is to be passed within a period of three months from the date of receipt of a copy of this order. Needless to say, in the event of the Appellate Authority taking a view not to impose the additional punishment of compulsory retirement, all consequential benefits as per law would follow. No costs.
(Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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