Central Administrative Tribunal - Jaipur
Adisal Meena vs D/O Post on 4 August, 2022
1
OA No. 245/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 245/2013
Order reserved on 25.07.2022
DATE OF ORDER: 04.08.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Mr. Adisal Meena s/o Mr. Bodan lal Meena, by caste
Meena, aged about 61 years, r/o village and post
Rajpur, Teh. Rajgarh, District Alwar, presently
superannuated as L.S.G. P.A. on 30/9/2011 from
Alwar H.O.
....Applicant
Shri B.K. Jatti, counsel for applicant.
VERSUS
1. Union of India through the Secretary to the Govt.
of India, Department of Post, Dak Bhawan,
Sansad Marg, New Delhi.
2. Chief Post Master General, Rajasthan Circle,
Jaipur.
3. Superintendent Post Offices, Alwar Dn., Alwar.
.... Respondents
Shri Rajendra Vaish, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:- 2 OA No. 245/2013
"8.1 That by a suitable writ/order or the directions the orders A. Dated 31/7/2012 vide Annexure A/1 of the appellate authority be quashed and set aside. B. The order dated 28/9/2011 be quashed and set aside.
C. The charge memo dated 1/9/2011 be quashed and set aside.
D. That it is humbly prayed that the money as Rs. 1,00,666/- be refunded to the applicant with a reasonable interest as it has been recovered from the leave encashment of the applicant arbitrarily.
8.2 Any other relief which the Hon'ble bench deems fit."
2. Brief facts of the case, as stated by the applicant, is that a charge memo dated 01.09.2011 (Annexure A/3) under Rule 16 of CCS (CCA) Rules, 1965 was issued to him alleging that while he was working as a Ledger Assistant at Bahror H.O. on 18.05.2007, he received documents along with warrant of payment (SB-7) pertaining to premature MIS Account Nos. 190563 and 190564 for Rs. 1,00,666/- (Rs. 50,333 each) and the same was transferred to S.B.C.O. branch. Later on, the amount of said MIS accounts was found to be paid to the person other than the actual depositor. The difference of signatures of the depositor and warrant of payment have not been checked and verified by the applicant and due to this forged payment done, the department has sustained a 3 OA No. 245/2013 monetary loss to the tune of Rs. 1,00,666/-. It is further alleged that he has failed to carry out the check as prescribed under Rule 38 and 44 of S.B. Manual, Volume-I (Second Edition corrected upto December, 2010) and instructions contained in S.B. order No. 11/2006 under D.G. Post New Delhi dated 25.05.2006 and due to his negligence, a loss of Rs. 1,00,666/- was caused to the department. It is also alleged that applicant has failed to maintain absolute devotion to duty as required under Rule 3(i)(ii) of CCS (Conduct) Rules, 1964. On receiving the said charge memo dated 01.09.2011, applicant submitted an application dated 10.09.2011 (Annexure A/4) to the respondents requesting to provide some documents. As he was not provided documents, he submitted another application dated 17.09.2011 (Annexure A/5) but no documents were provided to him. On the said applications made by the applicant, Sr. Superintendent of Post Offices, Alwar Division, Alwar vide letter dated 15.09.2011 (Annexure A/6), as received by the applicant on 19.09.2011, has stated that there is no provision of inspection / supply of documents in the minor disciplinary action and the applicant was asked to send his defense by the prescribed date i.e. 23.09.2011, otherwise an ex-parte 4 OA No. 245/2013 decision will be taken at this end. In spite of non- availability of documents as demanded by the applicant, he has submitted his defense statement dated 23.09.2011 (Annexure A/7). But the Disciplinary Authority without considering his defense statement has awarded a penalty of recovery of Rs. 1,00,666/- vide order dated 28.09.2011 (Annexure A/2) from the encashment of Earned Leave on his superannuation i.e. on 30.09.2011. Thereafter, the applicant submitted an appeal dated 25.10.2011 (Annexure A/8) against the penalty order dated 28.09.2011, but the same has been rejected by the Appellate Authority vide order/Memo dated 31.07.2012 (Annexure A/1). Therefore, being aggrieved by the action of the respondents- authorities, the applicant has approached this Tribunal for redressal of his grievance.
3(i). After issue of notices, respondents have filed their reply stating that in the year 2009, Harsauli fraud case cropped out and found that a number of accounts holder of MIS / RD have been cheated and an amount of Rs. 18,54,649.40 is found misappropriated. Hence, Divisional level inquiry as well as Circle level inquiry was conducted and the 5 OA No. 245/2013 applicant was identified as one of the subsidiary offender. The applicant was charge-sheeted under Rule 16 of CCS (CCA) Rues, 1965 for the lapses committed by him vide SSPO's Alwar Memo dated 01.09.2011 and he was given an opportunity to submit his defense within a period of 10 days from the receipt of the said memo. The applicant submitted an application dated 10.09.2011 and requested to supply photocopies or get inspection of certain documents. The applicant was replied suitably as per provision of Rules and informed to submit his defense, if any, by 23.09.2011 positively. The applicant submitted his defense vide representation dated 23.09.2011, which was received in the office on 26.09.2011. After giving due consideration to the defense of the applicant, he was awarded with a penalty of recovery of Rs. 1,00,666/- from his Earned Leave Encashment on the retirement (i.e. 30.09.2011) vide respondent No. 3 (Disciplinary Authority) Office Memo dated 28.09.2011, which was delivered to applicant on 30.09.2011 through Postmaster, Alwar HO. The applicant being aggrieved with the aforesaid punishment order has preferred an appeal dated 25.10.2011 to the competent authority. The appellate authority duly considered the appeal of the applicant 6 OA No. 245/2013 in the light of relevant record and relevant rules/instructions on the subject and disposed of the same vide Circle Office Jaipur Memo dated 31.07.2012 upholding the punishment order issued vide SSPO's Alwar Memo dated 28.09.2011. The aforementioned orders have been issued by the competent authorities as per relevant rules.
3(ii). The respondents further state that the misappropriation of Government money to the tune of Rs. 1,00,666/- has been established on the basis of documents and evidences. Vouchers were inspected by the applicant and supplying copies of documents is not mandatory in minor penalty proceedings. As per Rule 74 of Postal Manual Volume-II, the right of access to official records by an accused official for submission of his defence is not unlimited and it is open to the disciplinary authority to deny such access. However, Rule 77 of Postal Manual Vol. III have slight reference of inspection of documents but in minor disciplinary proceedings, the same do not make it incumbent on the part of disciplinary authority. Therefore, the applicant was replied according to provisions of rules and informed to submit his defence, if any, by 23.09.2011.
7OA No. 245/2013 3(iii). The respondents also state that the whole case is based on documentary evidences and thereby applicant was held responsible in DLI/CLI carried by the departmental authorities and elicit that his negligence play a vital role in excelling the fraud. Had the applicant compared the signature of the depositors properly, the fraud could have been detected on that day and further fraud could have been avoided. It was established in the departmental proceeding that there was failure on the part of the applicant to perform his duties as required, otherwise the commission of fraud could have been avoided. The action of the respondents is as per law. Thus, the applicant has no ground to challenge orders/Memo passed by the respondents and, therefore, Original Application deserves to be dismissed.
4. The applicant has also filed a rejoinder denying the contentions of the respondents. The applicant further states that principles of natural justice are violated. No opportunity to inspect the documents was allowed to the applicant. In absence of the documents, he could not submit his proper defence. The respondents have not correctly considered his 8 OA No. 245/2013 case. Charge-sheet was provided only when he was about to retire. The recovery against the applicant has been imposed arbitrarily and the same has been recovered, which is required to be refunded with interest. There is no negligence on his part and also he has not violated any rules. Therefore, the act of negligence as mentioned by the respondents for recovering amount is illegal and arbitrary. The applicant also states that it has not been pointed out that how he has been identified as one of the subsidiary offender. Thus, the applicant prays that he is entitled for the relief sought for by him and the O.A. deserves to be allowed. In support of his contentions, learned counsel for the applicant relied upon the following judgments / orders: -
"(a) Central Administrative Tribunal, Jodhpur Bench order dated 16.08.2018 passed in the case of Ms. Sangeeta Kukreja vs. UOI & Ors. (OA No. 290/00253/2015).
(b) Hon'ble High Court of Judicature at Bombay order dated 22nd December, 2021 passed in the case of Bhupendra Pal Singh vs. UOI & Ors. (WP No. 5764 of 2021) and connected matter.
(c) Central Administrative Tribunal, Allahabad Bench order dated 14th September, 2011 passed in the case of B.R. Verma vs. UOI & Ors. (OA No. 496/2008).
(d) Central Administrative Tribunal, Jodhpur Bench order dated 08.06.2018 passed in the 9 OA No. 245/2013 case of Jassa Ram vs. UOI & Ors. (OA No. 290/00499/2012)."
5. We have heard learned counsels for the parties and examined the pleadings brought on record including the judgments/orders cited by the applicant.
6. The applicant and respondents have reiterated their stand as taken earlier.
7. After hearing the parties and perusing the pleadings, factual matrix of the case is that applicant was issued Memo of Charge dated 01.09.2011 (Annexure A/3) proposing to take action against him under Rule 16 of CCS (CCA) Rules, 1965 alleging that the applicant while working as a Ledger Assistant at Behror HO on 18.05.2007, received documents along with warrant of payment (SB-7) pertaining to premature Harsoli MIS account Nos. 190563 and 190564 for Rs. 1,00,666/- (Rs. 50,333 each) and the same was transferred to SBCO Branch. Later on, the amount of said MIS accounts was found to be paid to the person other than the depositor. There was a difference of the signatures of the depositor and warrant of payment had not been checked nor verified by the applicant and due to this act of the applicant, 10 OA No. 245/2013 forged payment was done and the department had sustained a monetary loss the tune of Rs. 1,00,666/-. It was further alleged that the applicant failed to carry out checks as prescribed under Rule 38 and 44 of the SB Manual Volume-I and instructions contained in SB order No. 11/2006 issued under D.G. Post, New Delhi vide No. 111-114/2001-SB dated 25.05.2006 and thereby due to negligence of applicant, a loss of Rs. 1,00,666/- was caused to the department. It was also alleged that by the above act, he has failed to maintain absolute devotion to duty as required under Rule 3 (1) (ii) of CCS (Conduct) Rules, 1964.
8. Thereafter, applicant submitted an application dated 10.09.2011 (Annexure A/4) to the respondents requesting them to provide some documents. As he was not provided documents as sought, he submitted another application dated 17.09.2011 (Annexure A/5) but no documents were provided to him. The Sr. Superintendent of Post Offices, Alwar Division, Alwar vide letter dated 15.09.2011 (Annexure A/6), has stated that there is no provision of inspection / supply of documents in the minor disciplinary action and he was asked to send his defense by the prescribed date, failing which ex-parte decision will be taken in the 11 OA No. 245/2013 matter. The applicant, helplessly and even without inspecting documents nor having a copy of the said documents, which were relied upon by the respondents for framing the charge against the applicant, submitted his defence / representation dated 23.09.2011 (Annexure A/7) to the said charge memo dated 01.09.2011. The respondents have not considered the vital fact that the applicant was not provided with any documents though the same were required to be provided to him. But the Disciplinary Authority without considering his defense statement has awarded a penalty of recovery of Rs. 1,00,666/- vide order dated 28.09.2011 (Annexure A/2) from the encashment of Earned Leave on his superannuation i.e. on 30.09.2011. Thereafter, the applicant submitted an appeal dated 25.10.2011 (Annexure A/8) against the penalty order dated 28.09.2011, but the same has been rejected by the Appellate Authority vide order/Memo dated 31.07.2012 (Annexure A/1).
9. After going through the said order dated 28.09.2011, (Annexure A/2), we find that the applicant had clearly mentioned in his defence statement dated 23.09.2011 (Annexure A/7) that he has been charge-sheeted vide Memo dated 12 OA No. 245/2013 01.09.2011 on the hypothetical charges and he is now due to retire on superannuation on 30.09.2011. He had requested to supply / get inspection of certain documents, which were directly connected with the charges but the same has been straightway refused to the applicant on the plea that there is no provision of inspection / supply of documents in the minor disciplinary cases. As per provisions of GOI No. 2 below Rule 16 of the CCS (CCA) Rules, 1965, the Disciplinary Authority may grant permission to inspect relevant records before submitting representation of defence, which is also essential vide Rule 77 of the P&T Manual Vol. III. The denial of access to records in such cases may handicap the Govt. servant in preparing his representation, request for inspection of records in such cases has to be considered by the Disciplinary Authority on merits. The allegation levelled against the applicant is purely based on the documents like SB-7 of certain MIS Accounts of Harsauli SO. Performing the duty as HO Ledger PA in Behror HO, comparison of specimen signature of the depositors and whether these so called withdrawals were made on the certain date or office etc. thereby availability of documents were very essential for preparing the defence and to prove his innocence. As 13 OA No. 245/2013 per provisions under Article 311 of the Constitution of India, every civil servant should be given a reasonable opportunity in his own defence and, thus, principles of natural justice were required to be followed.
10. We have also noticed that the allegation raised against the applicant was pertaining to the forged withdrawal in premature Harsauli MIS A/c No. 190563 and 190564 and according to which, the respondents had sustained monetary loss to the tune of Rs. 1,00,666/-. It is seen by us that the applicant was about to retire on 30th September, 2011 and the applicant was charge-sheeted on 01.09.2011, just before his retirement for the incidence, which took place in May, 2007. It is highly impossible to believe that a person can remember actual figures and incident of a matter which is around 4½ years old. The applicant could not make proper justification on the charges levelled against him as it is found that human error can be committed and if the documents relied by the respondents were provided to the applicant, he would have been in a better position to explain and justify his stand. But we find that the same was missing in the case of the applicant. 14 OA No. 245/2013
11. As far as the charges levelled against the applicant that due to negligence on the part of the applicant to verify the differences in signatures and due to which the department had caused a loss is also not accepted by us. It is clear from the pleadings as well as the orders annexed to the OA that the claim of the depositors would might have been obtained but could not be sanctioned by the department because of uncertainty of the forged withdrawal and the same may be still lying pending with the respondents. It is clear that till the claims are sanctioned and paid to the depositors then it would be a case of monetary loss to the Government. But we do not find any such incidence in this particular case that the money has been paid to the depositors. Thus, it is highly hypothetical assumption on the part of the respondents to raise a claim of loss to the Government to the tune of Rs. 1,00,666/-.
12. We also find that the recovery of any kind of loss sustained by the department can only be made from the actual offender in the case. But in the present case, we find that the applicant is only a subsidiary offender. The quantum of loss levelled against the applicant cannot be clarified from the charge memo 15 OA No. 245/2013 against the applicant. Also recovery of any amount of loss sustained by the department for the contributory negligence on his part is yet to be arrived at. It is clear that the respondents only with the mala fide intention in order to harass the applicant have levelled the charges against him and that too when he is about to retire. The respondents have failed to provide any such document as to what punishment has been imposed on the main offender and, therefore, issuing a penalty order of recovery from Earned Leave Encashment of the applicant, who has retired on 31st September, 2011 is highly unjustified. We find from the action of the respondents that it is highly unbelievable that for a fraud which has been detected to the tune of Rs. 18,54,649.40/- and, out of which, the applicant is responsible to the loss of Rs. 1,00,666/-, the quantum of loss to which the respondents have arrived at in the case of the applicant has not been properly explained by them in the charge memo.
13. Coming to the grounds raised by the applicant the principles of natural justice are violated, no opportunity has been given to the applicant for inspection of any document nor the same were 16 OA No. 245/2013 provided to him, also the respondents have failed to prove contributory negligence against the applicant, charge sheet has been issued on the verge of retirement, the department's loss has not been established, are found to be sustainable and the same are accepted. On the other hand, we do not accept the version of the respondents that failure on the part of the applicant to perform his duties, the commission of fraud would have been avoided if the applicant had tallied the signatures as it is very clear that the applicant was only a subsidiary offender. We find that no punishment has been imposed on main accused / main offender nor respondents have produced any such document to show that they have taken action against the principal offender. Therefore, it is clear that the respondents in an arbitrary and mala fide manner imposed penalty upon the applicant for an incident of May, 2007 only on 01.09.2011 when he was on the verge of retirement on 30.09.2011.
14. The Hon'ble Apex Court vide its order dated 08.08.2005 in the case of P.V. Mahadevan vs. M.D. Tamil Nadu Housing Board, Appeal (Civil) No. 4901 of 2005 has observed that allowing the respondent to proceed further with the departmental proceedings at 17 OA No. 245/2013 this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. It is also seen that the matter before the Hon'ble Apex Court was related to the charge memo, which has been issued in the year 2000 for the irregularity in issuing a sale deed in 1990. Though the record was very much available with the respondent, no action was taken against the appellant since 1990 18 OA No. 245/2013 for about 10 years and no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. The Hon'ble Apex Court further observed that they have no hesitation to quash the charge memo issued against the applicant.
15. The Hon'ble Bombay High Court in the case of Bhupendra Pal Singh vs. UOI & Ors. (supra), as relied upon by the applicant, was also in the opinion that the reasons assigned by them while allowing WP No. 5764 of 2021, would squarely apply on the facts and circumstances of that case and that there being no valid and acceptable explanation for the delay of almost six years in issuance of the charge-sheet coupled with the fact that the petitioner attained the age of superannuation on November 30, 2011, it would be just and proper and in the interest of justice to set aside not only the impugned judgment and order of the Tribunal dated March 1, 2019 but also the Memorandum of Charges dated December 4, 2009 and it was ordered accordingly.
19OA No. 245/2013
16. In the present case, the respondents have issued charge memo on 01.09.2011 for the so called irregularity committed in May 2007 i.e. after a delay of about 4½ years despite the fact that though the records were very much available with the respondents and that no explanation whatsoever has been offered by the respondents for the inordinate delay in issuing the charge-sheet. It is also noted that the charge-sheet was issued to the applicant only in the same month of September, 2011, (on 01.09.2011), in which the applicant was scheduled to superannuate on 30.09.2011. Therefore, we are of the view that the charge sheet / Memorandum dated 01.09.2011 (Annexure A/3) is not sustainable and deserves to be quashed and set aside.
17. Further, it is noted that the Disciplinary Authority has passed order dated 28.09.2011 (Annexure A/2) whereby order of penalty to recover Rs. 1,00,666/- from the encashment of Earned Leave on his superannuation / retirement (30.09.2011 afternoon) has been imposed upon the applicant. It is seen that Ahmadabad Bench of this Tribunal in the case of B.R. Verma vs. Union of India & Ors. (supra), as relied upon by the applicant, has observed that as per Rule 20 OA No. 245/2013 11 of CCS (CCA) Rules, 1965, even if a minor penalty is imposed then procedure has to be followed by the respondents by conducting a full-fledged inquiry, which admittedly, in that case, has not been conducted by the respondents. Ahmedabad Bench of this Tribunal has also observed that as per Rule 11, it is mandatory that before coming to the conclusion that the applicant was not vigilant in performing his duties which resulted loss to the Government for which the penalty of recovery has been ordered, the procedure has to be adopted by conducting full- fledged inquiry. The Tribunal has held that the order passed by the Disciplinary Authority and upheld by the Appellate Authority imposing punishment of recovery of the applicants is not in accordance with the provisions of Rule 11 (3) of CCS (CCA) and, therefore, cannot be sustained. The order can easily be said to be illegal and as such, deserves to be quashed and set aside in all the cases. It is also observed that the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss. Here, in the present case also, we see that no full-fledged inquiry was conducted and 21 OA No. 245/2013 only on submitting defence statement / representation against the charge-memo by the applicant, Disciplinary Authority issued the penalty order dated 28.09.20011 (Annexure A/2), which is not sustainable in the eye of law.
18. It is also seen that Jodhpur Bench of this Tribunal in the case of Jassa Ram vs. UOI & Ors. (supra), as relied upon by the applicant, had observed that in an identical case, dealing with the same very incidence of misappropriation of funds at Phalodi Sub Post Office, this Tribunal while dealing with OA No. 251/2012 (S.N. Singh Bhati vs. UOI & Ors.) has already taken a view that as per Rule 11 of the CCS (CCA) Rules, 1965, penalty of recovery can be imposed only in exceptional circumstances and for special reasons to be recorded in writing. It has further been held that after having issued a charge sheet, under Rule 11 of the said Rules, the penalty of recovery could have been ordered by the authority only as an exceptional case for the reasons to be recorded in writing and the delinquent official should have had a reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which such recovery is being ordered. In the instant case, it 22 OA No. 245/2013 is clear that no full-fledged inquiry was held, more particularly, no documents on which the charge-sheet was based, were provided to the applicant though asked to provide the same. It is also seen that the Disciplinary Authority has not recorded any reason in writing regarding any exceptional and compelling circumstances on the basis of which such recovery was ordered nor the applicant had been granted reasonable opportunity of being heard.
19. The Jodhpur Bench of this Tribunal in the case of Ms. Sangeeta Kukreja vs. UOI & Ors. (supra), relied upon by the applicant, has observed and held as under: -
"9. 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.
10. I have perused Annexure A1, A2 i.e. the charge sheet as well as the Disciplinary 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 23 OA No. 245/2013 case. What was the total amount or quantum of loss suffered by the Department in the 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.1,02,815/- to the Department. In the memo of charge sheet, it has not been mentioned that the applicant violated Rule 3(1)(ii) of CCS (Conduct) Rules, 1964.
11. 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 Rule 11 and there is 11th category of penalty also described within Rule 11, which is included in the second proviso to the Rule.
12. 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.
13. 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 main offender. The charges relate to account and discharge of her function as PA. The sum and substance of the charges levelled against the applicant is that she remained negligent. It would appear that the respondents in their anxiety to recover the huge loss of public money are implicating employees 24 OA No. 245/2013 without categorically establishing their guilt, current case being one such glaring example.
14. 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."
Therefore, we are of the view that charge-memo as well as orders passed by the Disciplinary Authority and Appellate Authority require interference by this Tribunal. Besides, looking to the facts and circumstances of the present case and also as the recovery from the applicant has been done by the respondents from his Earned Leave Encashment amount at the time of his superannuation, the applicant is entitled to receive interest thereon at reasonable rate.
20. We are aware that the jurisdiction of the court / tribunal in judicial review is limited. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure 25 OA No. 245/2013 that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. However, the Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
21. In view of the discussions and observations made herein-above, we are of the considered view that the order dated 31.07.2012 (Annexure A/1) passed by the 26 OA No. 245/2013 Appellate Authority, order dated 28.09.2011 (Annexure A/2) passed by the Disciplinary Authority as well as the charge memo dated 01.09.2011 (Annexure A/3) are not sustainable and, accordingly, the same are hereby quashed and set aside. Consequently, respondents are directed to refund an amount of Rs. 1,00,666/- to the applicant, which was recovered from his Earned Leave Encashment at the time of his retirement/superannuation, with interest at the GPF rate applicable from time to time from the date when he was entitled to receive the same till the actual payment is made. This exercise shall be carried out by the respondents within a period of six weeks from the date of receipt of a certified copy of this order.
22. With these observations and directions, Original Application is allowed. No costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/