Central Administrative Tribunal - Delhi
Sh. S.K. Shinghal vs Union Of India Through on 21 November, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-105/2008
Reserved on : 12.11.2014.
Pronounced on : 21.11.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. S.K. Shinghal,
Age 48 years,
S/o Harsharan Dass,
C/o D.P. Bansal,
R/o A-44, J.J. Colony,
Tegri, Khanpur,
New Delhi. .. Applicant
(through Sh. S.K. Gupta, Advocate)
Versus
1. Union of India through
Secretary,
Deptt. of Dak Bhawan,
Ashoka Road, New Delhi.
2. Chief Post Master General,
U.P. Region,
Lucknow.
3. Director Postal Services,
Office of Postal General
Agra Region,
Agra.
4. Sr. Superintendent of Post Office,
Bulandsahar Division,
Bulandsahar.
5. Sarvesh Devi,
S/o Sh Sukhbir Singh,
R/o Village Hasanpur,
P.O. Khas,
Distt. Bulandsahar,
Uttar Pradesh. .. Respondents
(through Sh. R.V. Sinha, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was working as SPM, Jhahgir Pur when on 11.11.2005 he was transferred to Bullandsahar, Head Office on administrative grounds. On 24.11.2005 he was placed under suspension. A charge sheet under Rule-14 of CCS (CCA) Rules was issued to him on 23.02.2006. It contained the following charges:-
Statement of imputation of misconduct or misbehavior against Shri S.K. Singhal designated PA Bulandshahr HO.
ARTICLE-I That the said Shri S.K. Singhal while working as SPM Jahangirpur on 1.1.05 charged a payment of Rs.21342/- from Jahangirpur one year TD account no. 130687 while the depositor already expired on 14.9.04.
Therefore, it is alleged that in doing so the said Shri S.K. Singhal committed a grave misconduct and caused a loss of Rs.21432/- to the department and violated the provisions of Rule no. 115(I)(iii) and 2 of PO SB Man. Vol. I and also failed to maintain absolute integrity, devotion to duty as required under Rule 3(I)(i),(ii) of CCS (Conduct) Rules 1964.
ARTICLE-II That the said Shri S.K. Singhal while working as SPM Jahangirpur during the period from April 05 to Oct. 05 allowed the balance more than the prescribed limit of Rs.1 (one) lac. By depositing heavy amounts in Jahangirpur SB a/c no. 4605567 on 16.4.05, 24.5.05, 7.6.05, 13.6.05, 23.6.05, 24.6.05, 14.10.05 & 19.10.05.
Therefore, it is alleged that the said Shri S.K. Singhal in doing so violated the provisions of Rule no. 4 [Table item no. I single account (a)] of the Post Office Savings Accounts Rules 1981 and also failed to maintain absolute integrity and devotion to duty as required under Rule 3(I)(i)&(ii) of CCS (Conduct) Rules 1964. While the suspension of the applicant was revoked on 23.03.2006 the enquiry against him continued after denial of charges by him. The Enquiry Officer (EO) submitted his report dated nil in which he found the charges against the applicant as not proved. However, respondent No.4 disagreed with the report of the EO and issued a disagreement note on 21.02.2007. The applicant replied to the same on 28.02.2007. The respondent No. 4 inflicted on the applicant the punishment of reduction to lower stage in the time scale by one step for a period of one year with the stipulation that the applicant will not earn any increment during such period. For the suspension period the payment was limited to subsistence allowance already drawn by the applicant. Before the applicant could file an appeal, the respondent No. 3 issued a show cause notice dated 14.08.2007 to the applicant asking him to explain as to why the punishment should not be enhanced. The applicant replied in detail on 30.08.2007 and submitted supplementary representation on 01.09.2007. However, the respondent No. 3 vide impugned order dated 22.10.2007 awarded punishment of dismissal from service to the applicant in terms of Rule-29 of CCS(CCA) Rules, 1965. Aggrieved by the same, the applicant filed this O.A. before us on 10.01.2008. This was considered by a Co-ordinate Bench of this Tribunal and disposed of vide order dated 10.07.2008. The operative part of the order reads as follows:-
11. On careful consideration of the case, we find that the order dated 22.10.2007 passed by the Director Postal Services is without jurisdiction, and in nullity as was not issued by CPMG or PCMG as per the SO No. 1279 ibid. Director Postal Services not though competent, has in misconception ordered to resume the proceedings and as such, show cause notice issued by the aforesaid authority and its confirmation by imposing punishment of dismissal cannot be sustained in law.
12. Liberty in law may be a right of the respondents but it has to be operated in accordance with rules. As the original punishment imposed upon the applicant is dated 31.5.2007, now if we remit back the case giving liberty to the respondents to exercise the power of review, there would be a time gap of six months which is maximum time limit laid down under Rule 29 of CCS (CCA) Rules, 1965 to revise the order passed by the subordinate authorities. In such view of the matter, we cannot by way of remitting back the case can go against the statute and legalise an action which is wholly without jurisdiction in so far as time limit to exercise power of revision is concerned. Maintaining the original punishment, this OA is partly allowed. Show cause notice issued by revisional authority as confirmed in Annexure A-2 is set aside. Applicant is directed to be reinstated in service with all consequential benefits within two months from the date of receipt of the copy of this order. No costs. This order was challenged by the respondents herein before the Honble High Court of Delhi in WP(C) No. 6181/2011. The Honble High Court of Delhi remanded this matter for fresh adjudication by this Tribunal vide their order dated 06.02.2013, which reads as follows:-
1. Learned counsel for the parties jointly state that after setting aside the impugned decision the 3 original applications; being O.A. No. 105/2008, O.A.No. 2173/2008 and O.A. No. 434/2008 may be restored before the Tribunal for fresh adjudication in view of the subsequent events which have transpired being that O.M. dated May 29, 2001 was struck down by the Gujarat Bench of the Central Administrative Tribunal against which writ petition filed was dismissed by the High Court and the view was upheld by the Supreme Court in Civil Appeal No. 2606/2006 decided on July 01,2011 UOI & Ors. vs. Vikrambhai Manojbhai Chaudhary. Thereafter the Government of India issued an office memorandum dated July 17, 2012 taking corrective action.
2. We make it clear that we have not expressed any opinion on the merits of the controversy and all contentions urged by the applicants before the Tribunal would be open for being considered by the Tribunal and likewise all defences available to the Union of India and the Postal Department would be available to be urged before the Tribunal.
3. The impugned orders which are set aside are:-
(i) Order dated 10.07.2008 in O.A.No.105/2008, order dated 13.04.2009 in O.A. No. 2173/2008 and order dated 17.07.2008 in O.A. No. 434/2008 allowing the original applications.
(ii) Common order dated May 31, 2011 dismissing review applications filed by the Union of India being R.A.No. 284/2010 in O.A. No.105/2008, R.A. No.291/2010 in O.A. No. 2173/2008 and R.A. No. 294/2010 in O.A. No. 434/2008.
4. Since parties are represented through counsel we direct that they shall appear before the Registrar of the Tribunal on March 04, 2013 who shall thereafter list the 3 original applications before the appropriate Bench.
5. At this stage, as desired by Sh. J.P. Sharma, Advocate we record that if Hariom Sharma were to file a miscellaneous application praying for release of full GPF money due to him in the GPF account, the same shall also be decided by the Tribunal.
CM No. 12473/2011 in W.P.(C) No. 6181/2011 CM No. 1364/2013 in W.P.(C) No. 6361/2011 CM No. 18432/2011 in W.P.(C) No.8181/2011 Disposed of as infructuous. Accordingly, this O.A. has been heard afresh by us.
2. The applicant has challenged both the orders of the Disciplinary Authority (DA) as well as the Appellate Authority (AA) through this O.A. on the following grounds:-
(i) Respondent No.3 was not competent to exercise powers under Rule-29 of CCS (CCA) Rules in terms of Notification dated 29.05.2001.
(ii) The disagreement note issued by the DA was against the law declared by Honble Supreme Court in the case of Yoginath D. Badre Vs. State of Maharashta & Anr., 1999(7)SCC 739 as the disagreement was not tentative.
(iii) The respondents failed to take into account that father of the deceased had stated that Sh. Harveer Singh had expired only on 20.01.2005. After this deposition no case was made out against the applicant in so far as Article-I of the Charges is concerned. Even the wife of Sh. Sukhbir Singh had written to the respondents that her husband had expired only on 20.01.2005 and also supplied a copy of the death certificate.
(iv) The punishment inflicted on the applicant is highly excessive and is not commensurate with the gravity of the charge.
(v) The signature of the depositor Sh. Harveer Singh on the withdrawal form was matching with the specimen signature on record. Under Rule-36 of the Postal Manual this was verified by Sh. Mahinder Singh, GDS, who stated so before the EO. In view of this evidence, no charge in so far as Article-I is made out against the applicant.
(vi) As far as Article-II is concerned while there was limit of one matter prescribed for deposition in the account, there was no bar from depositing the amount beyond the prescribed limit. The only stipulation was that as per Savings Account Rules, the respondents were not required to pay on the excess amount.
3. On the basis of these grounds, the applicant has sought the following reliefs:-
(a) to quash the orders dated 31.5.2007 (ANNEXURE-1) and 22.10.2007 (ANNEXURE A-2).
(b) to direct the respondents to reinstate the applicant with all consequential benefits.
(c) to pass such other and further order which this Honble Tribunal may deem fit and proper.
4. In their reply filed on 29.05.2008 after narrating the facts of the case as stated above the respondents have stated that the charge sheet was served on the applicant on 06.03.2006. He denied the charges levelled against him vide his letter dated 08.03.2006. Consequently on 21.03.2006 an EO was appointed to conduct the enquiry. He submitted his report on 28.06.2006 in which he found that the charges levelled against the applicant were not proved. A disagreement note was issued on 21.02.2007, which contained the following two points of disagreement:-
(a) The death certificate of Shri Sukh Veer Singh S/o Shri Har Veer Singh showing date of death dated 14.9.04 issued by Gram Panchayat Vikas Adhikari, Gram Panchayat Hasanpur, Vikas Khan Khurja was verified by Mail Overseer Khurja, ASPOs Khurja & also attested by Smt. Raj Bala, the then Gram Pardhan Hasanpur, may not be treated as false, while there is no other death certificate is available of other date.
(b) The IO has reported in his report that there is no need to inquire the balance of an account deposited in a account beyond the prescribed limit, while as per Saving Bank ruling no depositor is allowed to deposit the amount more than Rs.1 lac in a single account. You have allowed the depositor to deposit the amount more than Rs. 1 Lac on several dates, why?
The applicant was allowed to submit his representation against the same which he did on 28.02.2007. After taking into account his submissions, a punishment of reduction to lower stage in the time scale by one step for a period of one year with the stipulation that he will not earn any increment during such period was awarded to him. Further, it was ordered that his suspension period shall be treated as duty but payment during the same period shall be limited to subsistence allowance already paid. The applicant did not submit any appeal against the aforesaid decision but the Director Postal Services reviewed the case and awarded punishment of dismissal from service on 22.10.2007. The respondents have stated that even the past work of the applicant was got verified and it was found that he had misappropriated an amount of Rs.10,50,850/- showing fraudulent discharge of Kisan Vikas Patras. The respondents have also stated that the AA is competent to revise the punishment order in exercise of powers conferred under Rule 29(1)(v) of CCS(CCA) Rules.
5. In their additional affidavit filed on 02.07.2013, the respondents have stated that the applicant had been working as time scale Sub Postmaster at the relevant point of time. This is a Group-C post. According to the schedule of appointing/disciplinary/appellate authority published in the Gazette of India on 15.09.1990 the appointing authority for the post of Postmaster in time scale is Head of the Division and the authority competent to impose the penalty is also the Head of the Division. The AA in such cases is Head of Circle/Postmaster General/Director of Postal Services. Further, they have submitted that the authorities notified as AAs in the aforesaid Notification are competent to pass orders under Rule-29(1)(v) of CCS(CCA) Rules, 1965 in their capacity as AAs. They have also submitted that the Department of Posts has various circles and regions headed by Chief Postmaster General (CPMG) and Postmaster General (PMG). In circles/regions where there is no post of Director of Postal Services, the CPMG or PMG as the case may be functions as AA. However, in circles/regions where there is such a post, Director of Postal Services functions as the AA.
4.1 With regard to the claim of the applicant with reference to SO 1279 dated 29.05.2001 the respondents have stated that the said Notification is issued in terms of Rule-29(1)(vi) of CCS(CCA) Rules, 1965 and is in addition to the power vested in the authorities under Rule-29(1)(i) to (v) of CCS(CCA) Rules, 1965. The said Notification does not take away the powers vested in the respective authorities under these Rules. Consequently, the order/judgment dated 20.04.2005 of the Ahmedabad Bench of the Tribunal in OA-333/2004 titled Vikram Bhai M. Chandhari Vs. UOI & Ors., quashing the Notification dated 29.05.2001 as upheld by Honble High Court of Gujarat and further upheld by Honble Supreme Court resulting in issuance of Gazette Notification dated 18.04.2012 does not have any relevance to the case at hand.
4.2 During the pendency of this case, we had observed that the controversy in this case can be resolved if the correct date of death of Sh. Sukhbir Singh is ascertained. We had, therefore, directed the parties to obtain death certificates from the competent authorities of Government of Uttar Pradesh. In compliance of our orders, both the parties have filed additional affidavits.
4.3 The applicant in the additional affidavit filed on 02.08.2014 has stated that he approached the Block Development Officer of Khurja, who stated that the birth and death certificate of Sh. Harveer Singh was issued on the basis of entry made at page-186 of the Parivar Register. The applicant has submitted that he has further checked the position from the Parivar Register and found that the name of the father of Sh. Sukhbir Singh has been wrongly entered as Roshan Singh and that the entry relating to the death of Sh. Harveer Singh has not been signed by anybody. There are other discrepancies in the Parivar Register inasmuch as the death of Smt. Murti, mother of Sh. Sukhbir Singh who had expired two years back is not entered in the register. On this basis, the applicant has claimed that this entry is unreliable. The applicant has also obtained an affidavit from Village Pradhan Smt. Raj Bala Devi, who had stated that her signature on the certificate which shows that the death of Sh. Harvir Singh had taken place on 14.09.2004 was forged.
4.4 The respondents in their counter affidavit have produced a letter from the Block Development Officer in which he has stated that no register containing the birth and death registration of village concerned have been received after 2004-05. In the register available with the Block at page-126 of the same the date of death of Sh. Sukhbir Singh has been shown as 14.09.2004. On the basis of this entry the certificate dated 14.11.2005 was attested by the Panchayat Secretary.
5. We have heard both parties and have perused the material on record. Each of the grounds taken by the applicant in support of his case are discussed as hereunder:-
5.1 The first ground taken by the applicant is that respondent No.3 i.e. Director, Postal Services was not competent to exercise powers under Rule-29 of CCS(CCA) Rules in terms of Notification dated 29.05.2001 reissued on 18.04.2012 after specifying the time limit. According to the applicant only CPMG and PMG were competent to do so under Rule-29(1)(vi) within six months of the passing of the order of DA. Since the impugned order dated 22.10.2007 enhancing the punishment to dismissal from service has been issued by Director, Postal Services, it is unsustainable as it has been issued by an incompetent authority.
On the other hand, the respondents had argued that Director, Postal Services was competent to issue the aforesaid order in terms of Rule-29(1)(v) as he was the AA. It is noteworthy that the applicant has not disputed that the Director, Postal Services was his AA. His claim is that this power did not vest in the Director, Postal Services and only CPMG/PMG were competent in this regard.
We have perused the relevant Rule, which reads as follows:-
29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be [revised]; or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit: A reading of this Rule would reveal that the authorities mentioned therein have the power to confirm, modify, set aside, reduce or enhance the penalty imposed by the authority concerned. Such power can be exercised against any order made under these Rules either suo motto or otherwise. Clause-v of the aforesaid Rules empowers the AA to exercise this power within six months from the date of the order proposed to be revised. Clause-(vi) empowers the President to issue an order empowering any other authority to do so. The applicants counsel had argued that since by issue of Statutory Notification the President had empowered CPMG/PMG to exercise this power, the power of the Director, Postal Services was taken away. In our opinion, this argument of the applicant appears to be unacceptable. By issue of Statutory Order under a Statute, the power conferred by that very Statute cannot be taken away as the statutory order cannot override the Statute itself. By Clause (vi) the Legislature has delegated to the President the power to notify any other authority which can exercise this power. Such notified authority can only be in addition to the authorities already empowered by the Legislature under Clauses (i) to (v). The President who is a delegatee cannot by any stretch of imagination have the authority to modify by issue of a Statutory Order the empowerment done by the delegator, that is Legislature through the Statute. Even if the two are repugnant to each other, Statute would prevail over the Statutory Order. In the instant case Rule-29(1)(v) clearly empowered the AA to exercise power of revision of the order of DA. Issue of a Statutory Order by the President cannot in any way take away, reduce or modify the power conferred by this Statute. Therefore, in our opinion, the respondents are right in saying that in the instant case Clause-29 (1)(v) is relevant under which the impugned order has been issued and the Statutory Notification issued under Clause-29(1)(vi) has no relevance to this case. This ground taken by the applicant is therefore not tenable.
5.2 The second ground taken by the applicant was that the disagreement note was not in conformity with the law laid down by Honble Supreme Court in the case of Yoginath D. Badre (supra) as the disagreement was not tentative.
We have seen the disagreement note, translated copy of which is available at pages 64 and 65 of the paperbook. Through this the applicant has been furnished a copy of the enquiry report and he has been directed to submit his representation against the same with points of disagreement. It reads as follows:-
Reference No. E/Misc/S.K. Shingal/F4/21/6/2007.
Subject : Point of disagreement on the report of the Enquiry Report as submitted after conducting enquiry under Rule 14.
One copy of the enquiry report is being sent to you of the enquiry as conducted by the Enquiry Officer under Rule 14. It is hereby directed to submit your representation within a period of 15 days. It has been charged that on one year account No. 130687, you made the payment after the death of the depositor which is against the rule. In the Enquiry, Enquiry Officer has found the charged not proved on the fact that the death certificate was not attested by birth and death office. Where as the death certificate was attested by Post Superintendent and Assistant Postal Superintendent, Kurja. Both certificates which have attested by department officials, how it can be false.
2. You have been charged that while working as SPM, Jhangirpur you deposit beyond the prescribed limit in Saving Bank Account No. 4605567. The Enquiry Officer in his Enquiry Report has submitted that there is no need to examine this issue, whereas as per the Saving Bank Account Rule, it is clear that under the singular account, the deposit shuld not exceed more than two lakhs. In the aforesaid Account on 24.5.2005 up to 23.6.2005, the amount of deposit is more than two lakhs, while aforesaid amount was more than two lakhs. Why was excess got deposited? In this the applicant has been furnished a copy of the enquiry report and he has been directed to submit his representation against the same with points of disagreement. The DA disagreed with the EO on the genuineness of the death certificate and asked the question from the applicant as to how such a certificate can be treated as false when the same has been attested by the departmental officials. Similarly, about the second issue regarding excess deposition in the saving account the DA has asked the question as to how this can be ignored when it is against the Saving Account Rules. In our opinion, from the language of the disagreement note it cannot be said that the DA had made up his mind to punish the applicant and that his disagreement was not tentative. As is clear from the above note both points of disagreement have been posed by the DA in the form of question. Moreover, the applicant has been asked to submit his representation on each of the points. We, therefore, feel that it cannot be said that the disagreement was not tentative and that the DA had already made up his mind to punish the officer reducing the submission of representation to mere formality. Hence, this ground taken by the applicant is also rejected.
5.3 The third issue is regarding the death certificate of Sh. Harveer Singh. In this regard, the applicant submitted that the death certificate relied upon by the department was unreliable as it was issued on the basis of an entry made in the Parivar Register which had not been signed by anybody. Moreover, he contended that there were many infirmities in the Parivar Register and the same cannot be relied upon. In this regard, he relied on the judgment of Honble High Court of Delhi in Crl. Rev. P. No. 528/2009 & Crl.MA No. 10977/2009 (Radhey Shyam Vs. STATE) pronounced on 09.09.2010, in Para-13 of which it has been observed as follows:-
13..In the true attested copy of the Kutunbvar Register issued by AW-1 (Ex.AW1/DB), the house number of the petitioner was shown as 203, whereas in the Register actually brought by the said witness in Court, the house number of the petitioner was mentioned as 143 at page No. 387. The register was not signed or authenticated against the entries made therein whereas, the witness admitted that whenever an entry was made in the Register, the Gram Panchayat Adhikari was required to authentical and sign the same. The witness admitted that while he had recorded several entries during his tenure as Gram Panchayat Adhikar since 12.12.2006, he had never signed the register at any place for authenticating the entries made therein for recording births, deaths and marriages, etc. Further, he has furnished the extracts of U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970, Rule-4 and Rule-5 of which read as follows:-
4. Quarterly entries in the family register.- At the beginning of each quarter commencing from April in each year, the Secretaries of a Gaon Sabha shall make necessary changes in the family register consequent upon births and deaths, if any occurring in the previous quarter in each family. Such changes shall be laid before the next meeting of the Gao Panchayat for information.
5. Correction of any existing entry.- The Assistant Development Officer (Panchayat) may on an application made to him in this behalf order the correction of any existing entry in the family register and the Secretary of the Gaon Sabha shall then correct the Register accordingly. On the basis of the aforesaid, learned counsel for the applicant argued that the death certificate relied upon by the respondents to claim that Sh. Harveer Singh had expired on 14.09.2004 is unreliable. Moreover, learned counsel argued that both the father of the deceased as well as his wife had given statements that Sh. Harveer Singh had died on 20.01.2005 i.e. after the date of withdrawal from the TD account. As such, the charge levelled against the applicant was unsustainable.
On the other hand, the respondents argued that the village register clearly had an entry that Sh. Harveer Singh had expired on 14.11.2004. The competent authority had issued a certificate certifying this to be the date of death of Sh. Sukhbir Singh. On the directions of the Court, the respondents had again approached the Block Development Officer who had confirmed that this certificate had been issued by the competent authority on the basis of an entry made in the Parivar Register, which showed the date of death of Sh. Sukhbir Singh as 14.09.2004.
We have heard the submissions of both the sides. It is trite law that in judicial review re-appraisal of evidence is not to be done. If two opinions are possible then it is not open for the Courts to substitute their judgment for the judgment of the DA/AA. The role of the Courts is limited to see whether the case at hand was a case of no evidence or whether the findings arrived at by the DA/AA were perverse. In the instant case, we find that the applicant has only succeeded in raising doubts about the correction of the content of the death certificate issued by the competent authority. He has not been able to produce any other certificate showing a different date of birth of the deceased Sh. Harveer Singh. Thus, two contending views were available to the DA/AA. One was to rely on the certificate purportedly issued by competent authority and duly counter signed by departmental officials and the other was to reject the same on the ground that it was issued on the basis of an entry made in the Parivar Register, which itself was unsigned by any authority and therefore unreliable. The DA and AA chose the former and relied upon the death certificate. In our opinion, in judicial review, we cannot substitute our judgment on the judgment of the authorities concerned.
5.4 The next ground taken by the applicant is that the rules of the department provided that for any excess amount beyond Rs. 1 lac deposit in the Savings Account, no interest would be payable. As such, no loss is caused to the department by the excess amount deposited. On this ground, he argued that the second charge was not maintainable. However, we notice that neither has he disputed that the amount deposited in this account was more than Rs. 1 lac nor has he disputed that the Savings Accounts Rule, 1981 provided for a ceiling of Rs. 1 lac in the Savings Account. Since the charge against the applicant was only that he acted in violation of the Rules, the respondents are right in concluding that the charge stood proved against him.
5.5 Learned counsel for the applicant had also argued that in Swamys Compilation of CCS CCA Rules by O.M. No. 39/2/68-Ests.(A) dated 14.05.1968, the following procedure had been prescribed for review of the order under Rule-29 of CCS(CCA) Rules:-
Procedure to be followed while proposing enhancement of the penalty already imposed on a Government servant :-
Instances have been brought to the notice of this Ministry in which when orders of punishment passed by the subordinate authorities were reviewed under Rule 29 (1) of the CCS (CCA) Rules, 1965, and a provisional conclusion reached that the penalty already imposed was not adequate, the authorities concerned set aside/cancelled the order of punishment already passed by the subordinate authorities and simultaneously served show-cause notices for the imposition of higher penalties. Thereafter, the replies of the Government servants to show-cause notices were considered and the Union Public Service Commission also consulted, wherever necessary, before the imposition of enhanced penalties.
It is clarified that in case of the kind mentioned in the preceding paragraph, it is not appropriate to set aside/cancel the penalty already imposed on the Government servants, more so when the revising authority is the President, as strictly speaking cancellation of the penalty, if done in the name of the President amounts to modification by the President of the earlier order of the subordinate authority, for which prior consultation with the Union Public Service Commission is necessary under Regulation 5 (1) (c) of the UPSC (Exemption from Consultation) Regulations, 1958. The correct procedure in such cases will, therefore, be to take action in accordance with the first proviso to Rule 29 (1) of the CCS (CCA) Rules, 1965, without cancelling/setting aside the order of the subordinate authority. It is only at the final stage when orders are issued modifying the original penalty, that it would be necessary to set aside the original order of penalty. He argued that the Director, Postal Services had acted in violation of the aforesaid provision inasmuch as he did not cancel the punishment awarded by the DA while imposing the punishment of dismissal from service.
On the other hand, the respondents argued that the order of DA stood merged in the order of the Director, Postal Services. In this regard we notice that the last para of the impugned order of Director, Postal Services reads as follows:-
Therefore I Vinod K. Verma in the capacity of Director Postal Services Agra Region, Agra under the powers conferred in Rule 29(1)(v) of CCS (CCA) Rules, 1965 revise the punishment of reduction to lower stage by one step from Rs.6000/- to Rs.5875/- in the scale of pay Rs.4500-125-7000 for one year awarded vide SPOs Bulandshahr memo No. F-Misc/S.K. Singhal/05-06 dated 31.5.07 enhancing it to Dismissal from service with immediate effect. It is clear from the aforesaid order that the punishment awarded by the DA, i.e., reduction to lower stage in the time scale has been revised and enhanced to dismissal from service. Thus, we do not see any violation of the aforesaid instructions in the same.
6. On the basis of the above analysis, we are of the view that none of the grounds taken by the applicant are valid. No other ground was pressed before us. We do not find any infirmity in the orders of the respondents warranting our interference. We, therefore, dismiss this O.A. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/