Central Administrative Tribunal - Jodhpur
Ram Lal vs M/O Communications on 6 August, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
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OA No.0290/00134/2016 Pronounced on : 06.08.2018
(Reserved on : 01.08.2018)
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CORAM: HON'BLE SMT. HINA P. SHAH, MEMBER (J)
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Ram Lal, S/o Shri Balu Ram, aged about 52 years, R/o Plot No.56-A, Bank
Colony, Raika Bag, Jodhpur (Office Address: Presently posted at Post Office,
Residency Road, Jodhpur as Postal Assistant.)
...APPLICANT
BY ADVOCATE : Mr. S.P. Singh.
VERSUS
1. Union of India, through the Secretary, Government of India, Ministry of
Communication, Department of Post, Dak Tar Bhawan, New Delhi.
2. The Chief Postmaster General, Rajasthan Circle, Jaipur-302007.
3. The Director, O/o Postmaster General, Western Region, Jodhpur.
4. Sr. Superintendent of Post Offices, Jodhpur Division, Jodhpur.
RESPONDENTS
BY ADVOCATE: Mr. K.S. Yadav.
ORDER
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HON'BLE SMT. HINA P. SHAH, MEMBER (J):-
1. The applicant has filed the present Original Application (O.A.) seeking the following relief(s):-
"a) The impugned order Memo No.STA/WR/44-A/52/15, dated 14.12.2015 (Annexure A1) and Memo No.F-9-1/10-11/Supp., dated 19.06.2012 forwarded by respondent no.4 (Annexure A1) may kindly be declared illegal, unjust and improper and deserves to be quashed and set aside.
b) The respondents may kindly be directed to refund the recovered amount with interest at the rate of 18% p.a."
OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 2
2. The brief facts of the case are as under:-
The applicant was appointed as Postal Assistant in the year 1985 and while he was posted at Jodhpur HO as Postal Assistant, a fraud case was committed at Phalodi Post Office, which is evident from FIR. It is pertinent to mention here that the applicant is working far away from Phalodi, which is at least 130 KMs away from Jodhpur HO. It is his contention that he has no link of alleged offence and that he is not charged with the same offence as mentioned in FIR. It is only on presumption, charge sheet has been issued to him and punishment order of recovery is awarded which is without fixing the liability of the applicant. It is his contention that he has completed 27 years of unblemished service and that the punishment order of recovery awarded to him is without his role in the alleged offence of misappropriation committed by official at Phalodi Post Office in the year 2005 and 2008 which was detected in the year 2009.
He has been framed with two charges namely the first charge is that the applicant while working as Postal Assistant in Jodhpur HO, failed to perform prescribed check while making the deposit entry in the ledger in Savings Bank Account No.711742 received from Phalodi, LSG-SO, and therefore, it was found that the balance and the date of transaction is incorrect. The second charge levelled against him was that he failed to check deposit voucher of Savings Bank Account No.714264 of Rs.15000/- and the balance after transaction was not entered whereas the same was mandatory thereby he has violated provisions of Rule 31(2)(iii) of CCS (CCA) Rules, 1964, the applicant was served with the charge memo dated 31.08.2010 (Annexure A3). The applicant replied to the said memo vide his representation dated 15.02.2011 whereas he denied the said charges levelled against him. The Disciplinary Authority after considering his reply, passed punishment order dated 19.06.2012 (Annexure A2) awarding penalty of Rs.2 lakhs from the pay of the applicant to be recovered at the rate of Rs.5000/- monthly with OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 3 immediate effect. The applicant filed an appeal against the said order of Disciplinary Authority stating that there is no mention of the various details of charges levelled against him and raised various pleas before the Appellate Authority in his appeal dated 28.10.2015 (Annexure A19). However, the Appellate Authority vide its order dated 14.12.2015 (Annexure A1), rejected the appeal.
It was stated in the order that the lapses on the part of the appellant has resulted in misappropriation of Government money and also contributed in further fraud by the culprits. Had the appellant been vigilant with his duty further fraud which continued in the case could have been avoided, thus, the Appellate Authority in its order dated 14.12.2015 found that the applicant was responsible for the facilitating the fraud resulting in commission of such a huge fraud.
Aggrieved vide order dated 19.06.2012 passed by the Disciplinary Authority and the Appellate order dated 14.12.2015 and the recovery of Rs.2 lakhs, the applicant has filed the present OA.
The applicant in his OA has averred that the charge memo has been issued on presumption. The respondents have not revealed how the applicant is liable to be committed. The alleged offence was committed by two persons namely Mr. Arjun Ram Bishnoi, the erstwhile SPM Phalodi and Mr. Pancha Ram Bishnoi, erstwhile PA (TR) Phalodi. For the loss caused to the State there was no role played by the applicant. Neither any action has not been taken against those who committed the fraud nor any recovery has been ordered from those persons who are facing Criminal as well as Disciplinary Proceedings. The punishment of recovery has been awarded based on an erroneous decision arrived at on the question of law and material irregularity. He submits that the respondents have initiated recovery without assessing his liability or any kind of exception to the applicant. The applicant relied under Rules 106 and 107 of the Post Office Savings Bank Manual, OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 4 Volume-I, and also under Rule 204 of P&T Volume-III & Section 4 of PAD Act, 1850, he has also relied under Rule 11 of CCS (CCA) Rules, 1965, which are annexed to the OA.
The applicant has also relied towards the judgment passed in OA No.156/2011 titled Sh. B.L. Verma Vs. UOI & Ors., decided on 22.05.2012, which is annexed at Annexure A15 and also to the judgment of Sunil Kumar Joshi Vs. UOI & Ors. passed in OA No.252/2012, decided on 09.08.2013 by the very same Bench, which is annexed at Annexure A16. It is hereby submitted that the punishment order of recovery was quashed and OA was allowed in OA No.252/2012 in the same fraud case (Phalodi fraud case). The Hon'ble High Court has also dismissed the WP No.1695/2014, challenging the order of this Tribunal in the said OA vide judgment dated 20.03.2014. The SLP No.CC No.673/2015, filed by the respondents in the said OA, stands dismissed vide order dated 19.01.2015.
The applicant also relies towards the judgment passed by this Tribunal in OA No.251/2012 titled S.N. Singh Bhati Vs. The UOI & Ors., where the OA was allowed and the respondents were directed to refund the amount already recovered. The said case was further taken up to the Hon'ble High Court of Judicature for Rajasthan at Jodhpur, and the Hon'ble High Court of Judicature for Rajasthan at Jodhpur, in D.B. Civil Writ Petition No.2494/2014 titled UOI & Ors. Vs. S.N. Singh Bhati, dated 04.04.2014, dismissed the WP filed by the respondents and held that the punishment of recovery is illegal, unjust and improper.
3. The respondents in their reply have averred that due to the shortcomings in performing his duty, the applicant facilitated Mr. Arjun Ram Bishnoi, the erstwhile SPM, Phalodi and Mr. Pancha Ram Bishnoi, erstwhile PA (TR) Phalodi to misappropriate the huge amount of Rs. 2 crores. It is his contention that the applicant along with number of other employees should have carried out the duties vigilantly then such misappropriation of public OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 5 money would not have been possible. The respondents have further averred that a charge sheet dated 31.08.2010 was served upon the applicant and after considering defence/representation submitted by the applicant, a penalty of recovery of Rs.2 lakhs was awarded vide order dated 19.06.2012 against which the applicant preferred OA No.287/2012 before this Tribunal, and the same was decided vide order dated 30.10.2015 with a direction to file an appeal and to consider the same in accordance with law and pass appropriate orders on the same. Consequently, the applicant preferred an appeal against the order dated 19.06.2012 and the same has been dismissed by the Appellate Authority vide memo dated 14.12.2015.
It has been averred in the reply that the applicant cannot escape from the charges levelled against him and the recoveries have been imposed after a thorough examination of the each identified offender including the applicant. The recovery was imposed due to the negligence towards the duties by the Government servant. The recovery can be made from the Government servant who is found guilty of the loss suffered by the Government. He has also averred that the image of the Department being a public dealing one, became malign. Thus, in fact, the applicant has proved to be a liability rather than an asset to the respondent Department. He has further averred that the penalty order, the Appellate order as well as the charge memo is justified and legal.
The respondents have relied on the judgment passed in OA No.430/2013 in case of Dhanraj Singh Meena Vs. The UOI & Ors., decided on 30.09.2015 as well as in OA No.384/2011 in case of S.P. Bhatia Vs. UOI & Ors., decided on 6.07.2012 of the same fraud case wherein the penalty imposed by the respondents by way of same procedure has been held to be justified and legal by this Tribunal.
4. By way of rejoinder, the applicant has relied on the judgment of Jassa Ram Vs. UOI & Ors. in OA No.290/00499/2012, decided by this Tribunal on OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 6 08.06.2018 wherein in an identical case, the OA was allowed and the respondents were directed to refund the amount recovered from the applicant by quashing the impugned orders.
The applicant has also relied on the judgment in OA No.1091/2013 titled MD. Lateefuddin Vs. UOI & Ors. decided on 22.11.2017, passed by the CAT Hyderabad Bench, wherein in an identical matter the Tribunal has allowed the OA setting aside the penalty order of recovery.
5. Heard both the counsels for the parties. The learned counsel for the applicant contended that the charge sheet issued to the applicant does not contain loss to the Department to the tune of Rs.2 lakhs caused by the applicant as the charge was to the effect that the applicant did not perform his duties and failed to keep a prescribed check in the deposit entry in the ledger and that he failed to check the deposit voucher and that the balance after transaction was not entered. The charge memo is extremely vague and it neither reveals the quantum of recovery arrived at. The charge sheet does not mention how the rules are violated. The charge sheet, Disciplinary order as well as the Appellate orders are based on mere presumption. The punishment of recovery of an amount is a special type of punishment and it can be awarded only when the result proved, loss to the Government. He further contended that the recovery of any amount it has not been mentioned as minor penalty under CCS (CCA) Rules, 1964 and as per the provision to Sub Rule (ix) of Rule 11 in any exceptional case any other penalty can be made. The enquiry officer while imposing the penalty of Rs.2 lakhs has not considered this aspect that whether any exceptional case is made against the applicant for imposing of penalty of Rs.2 lakhs.
On the other hand, counsel for the respondents contended that the amount for recovery has been fixed according to the duties which the learned official had failed to discharge, and that determination of amount for recovery OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 7 from both the Principal and subsidiary offenders identified had been made depending upon the level of failure of performance of their responsibility.
6. I have carefully considered the rival contention and perused the record.
7. I am not quite convinced with the arguments put forth by the counsel for the respondents, especially so because charge sheet does not contain the fact that any loss has been caused by the applicant to the Department and secondly even the punishment order does discuss the fact that how much peculiar loss has been caused by the applicant to the respondent Department.
8. I have perused Annexure A1, A2 i.e. the Appellate order as well as the Disciplinary / penalty order. Both these orders do not state about the quantum or the amount of such recovery to have been determined in a proper manner because that would have required adherence to the principles of Rules 106 and 107 of the Post Office Savings Bank Manual Vol.I, and would essentially require the quantum of negligence on the part of the delinquent government official to be legally determined, which has not been done in this case. What was the total amount or quantum of loss suffered by the Department in the Phalodi fraud case itself has not been correctly assessed and the respondent Department cannot be allowed to state that the quantum of responsibility of the applicant caused the peculiar loss of Rs.2 lakhs to the Department. In the memo of charge sheet, it has not been mentioned that the applicant violated Rule 204 of the Postal Manual under which such recovery could have been ordered to be made from the applicant.
9. As per Rule 11 of the CCS (CCA) Rules, 1965, the recovery of any penalty can be imposed only in any exceptional circumstances and for special reasons recorded in writing. Thus, it is seen that five categories of minor penalties in Sub-Rules- (i), (i), (iii), (iii) (a) and (iv) of Rule 11 and five categories of major penalties in Sub-Rules (v), (vi), (vii), (viii) and (ix) of OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 8 Rule 11 and there is 11th category of penalty also described within Rule 11, which is included in the second proviso to the Rule.
10. It, therefore, appears that in case of any action taken against the delinquent Government servant, which does not fall under five categories of minor penalties or five categories of major penalties, but which has to be classified as an exceptional case, the only requirement is (a) that the special reasons may be recorded in writing, and (b) a corollary that under the Constitution of India, the delinquent Government servant should have had a reasonable opportunity of being heard regarding the exceptional or compelling circumstances.
11. In the instant case, there is no allegation of misappropriation/embezzlement or any charge which may cast a doubt upon the integrity upon the applicant, anything which may indicate even the slightest hint of complicity on the part of the applicant with the two main offenders. The charges relate to account and discharge of his function as PA. The sum and substance of the charges levelled against the applicant is that he remained negligent. It would appear that the respondents in their anxiety to recover the huge loss of public money are implicating employees without categorically establishing their guilt, current case being one such glaring example.
12. Accordingly, it is held that after having issued the charge sheet under Rule 16 of CCS (CCA) Rules, 1965, the penalty of recovery could have been ordered by the respondents only as exceptional case for the reasons to be recorded in writing and that delinquent Government servant should have reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which such recovery was being ordered, which is not the case in the instant case.
OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.) 9
13. Therefore, in these circumstances of the case, the impugned order dated 14.12.2015 (Annexure A1) and dated 19.06.2012 (Annexure A2) are required to be quashed and the same are accordingly quashed and set aside. The respondents are directed to refund the amount already recovered from the applicant within a period of six months' from the date of receipt of a certified copy of this order.
14. The O.A. is accordingly allowed, as stated above, with no order as to costs.
(HINA P. SHAH) MEMBER (J) Dated: 06.08.2018 Place: JODHPUR /sv/ OA No. 290/00134/2016 (Ram Lal Vs. UOI & Ors.)