Central Administrative Tribunal - Jodhpur
Dilip Kumar Dave vs M/O Communications on 10 December, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
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OA No.290/00371/2016 Pronounced on : 10.12.2018
(Reserved on : 27.11.2018)
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CORAM: HON'BLE SMT. HINA P. SHAH, MEMBER (J)
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Dilip Kumar Dave, S/o Shri Mukha Lal Dave, aged about 45 years, b/c
Brahman, R/o Shanti Nagar, 'B' Block, Bhinmal Bypass Road, Jalore,
District Jalore (Office Address:- Employed as Postal Assistant Jalore HO,
under SPO, Sirohi Division, Sirohi).
...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.
3. The Postmaster General, Western Region, Rajasthan, Jodhpur.
4. Director of Postal Services, O/o Postmaster General, Western
Region, Jodhpur.
5. Superintendent of Post Offices, Sirohi Division, Sirohi.
RESPONDENTS
BY ADVOCATE: Mr. K.S. Yadav, for R1 to R5.
ORDER
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HON'BLE SMT. HINA P. SHAH, MEMBER (J):-
1. The present Original Application (O.A.) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, wherein the applicant is seeking the following reliefs:
"a) The impugned order Memo No.F7-1/Dilip Kumar Dave SBLC/2013-14 dated 16.06.2016 forwarded by respondent no.5 (Annexure A/1) may kindly be declared illegal, unjust, improper and deserves to be quashed and set aside.
OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 2
b) By an appropriate writ, order or direction the impugned order Memo No.STA/WR/44-A/49/16, dated 12.09.2016 (Annexure A/1(a) may kindly be declared illegal, unjust and improper and deserves to be set aside.
c) That any other direction, or orders be passed in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
d) That by Writ, order or direction the respondents may kindly be directed to refund the recovered amount with interest @18% pa.
e) That the cost of this application may be awarded.
2. The brief facts of the case as stated by the applicant are as under:-
a) The applicant was appointed as Postal Assistant in the year 1991 and was posted at HO Jalore under SPO Sirohi, a fraud to the tune of Rs.2,91,30,671/- was detected at TSO Industrial Area, which was committed by Ganpat Singh Deora, the SPM. The applicant further states that he was posted at Jalore HO, which is at far distance from the place where the fraud was actually committed. It is his contention that he is working in SB but the misappropriation was done in the accounts of MIS & RS Accounts, therefore, there is no role of the applicant if misappropriation is made by Ganpat Singh Deora, the SPM TSO Industrial Area, Jalore in MIS & RD Accounts. It is his contention that the respondents have adopted pick and choose policy as they did not reveal how the applicant is liable to the alleged offence committed by the SPM, TSO Industrial Area, Jalore, what was the loss caused to the State by the contributory role played by the applicant and how the applicant is linked with the alleged offence and how he is made a target when he has no link in respect of the alleged offence. It is the applicant's plea that the respondents also did not reveal how the applicant has violated the rules OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 3 mentioned under the charge memo. It is his case that punishment is awarded only on presumption to reconsider the misappropriated amount as a remedial measure. Also the charge sheet and the punishment order of recovery is awarded to him merely on presumption and without specifically mentioning the compelling circumstances being exceptional case and no specific reasons are recorded in writing as required under Rule 11 of CCS (CCA) Rules, 1965. It is his contention that he has completed 25 years of unblemished service and that the punishment order of recovery ordered to him is without his direct role in the alleged offence and misappropriation is instead committed by Ganpat Singh Deora, the SPM TSO Industrial Area. The applicant further states that the negligence does not precede as mandatory in fraud case, as the fraud is already committed by SPM TSO Industrial Area. The applicant further states that the respondents did not recover the amount from the SPM, but as a remedial measure, the amount is started to be recovered forcibly from the applicant. It is clear that the illegality and irregularity committed by SPM was informed by the applicant, who was working as PA SBCO but, in fact, still he is punished and the recovery is ordered against him. The applicant further states that the respondent without correctly assessing, fixed the quantum of amount to the tune of Rs.2,87,250/- by calculating in their own way awarded the punishment and became the judge of their own case. The respondents have not recovered the amount from the delinquents, who committed the misappropriation but it is the applicant, who is compelled to deposit the amount and recovery is being affected forcibly. The respondents have failed to show how the applicant is actually liable to the alleged offence, which was OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 4 committed by the SPM TSO Industrial Area, Jalore and what the actual loss caused to the State by the contributory role played and how the applicant is linked with the alleged offence.
b) The respondents have passed punishment order of recovery of Rs.2,87,250/- from the applicant whereas the same amount has been recovered in the same matter from the other delinquents, who are facing departmental proceedings. There is no statutory provision to authorize the respondents to assess any loss caused by the Government servant because it is not open to the respondents to be the judge of their own case. The respondents have failed to prove the fault of the applicant and punished him on suspicion and on the basis of presumption. The applicant has been issued with the charge sheet dated 01.03.2016 (Annexure A2) on the charge that he did not compare the signature of depositors with specimen signature and sign below the signature of depositors on withdrawal forms of SB account of Industrial Area, Jalore DSO as required under Rule 38 (1) (a) of PO SB Manual Volume-I . It has also been mentioned in the charge sheet that because of this act of the applicant, Shri Ganpat Singh Deora, Ex SPM, Industrial Area, Jalore, DSO succeeded to committing misappropriation / fraud of Govt. money in MIS & RD accounts resulting in loss sustained to the Department for Rs.2,91,30,671/-. The applicant had replied to the said charge sheet vide letter dated 28.04.2016 where he denied the charges and stated that he is not responsible for the fraud committed by Ganpat Singh Deora, the Ex SPM. The disciplinary authority after considering his reply, passed punishment order dated 16.06.2016 (Annexure A1) awarding penalty of Rs.2,87,250/- to be recovered from the pay of the official in 28 equal installments of Rs.10,000/-
OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 5 each and remaining one installment of Rs.7,250/- commencing from the month of June, 2016. Thereafter, the applicant filed an appeal dated 19.07.2016 (Annexure A4) against the said order which was rejected by the Appellate Authority vide order dated 12.09.2016 (Annexure A1/a). It was stated in the order that it is due to the lapses on the part of the applicant, which has resulted in misappropriation of Govt. money and which also attributed in further fraud committed by the culprit. It was also pointed out that the failure on the part of the applicant to discharge his duty as per the rules had resulted in non-detection in continuance of the fraud of Jalore and the Appellate Authority agreed the findings with the Disciplinary Authority.
c) The applicant further states that the respondents did not correctly assess the loss and charge sheet is issued without mentioning the amount of loss caused by the applicant. He demanded relied upon documents which were also not provided to him by the respondents on the ground that some of them have been weeded out. It is further stated that no amount is fixed in accordance with liability. The respondents did not correctly assess the loss and charge sheet is issued without mentioning the amount of loss caused by the applicant. The charge sheet itself states that the applicant has not committed fraud, but same is committed by Shri Ganpat Singh Deora, SPM TSO Industrial Area, Jalore. It is clear that there is no link of the applicant with the alleged offence, therefore, the assessing of loss and recovery from the applicant is illegal.
d) The applicant has averred that he was not looking after the MIS & RD Accounts and admitted that he was working in SB and that there is no allegation of any misappropriation in the SB. It is his OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 6 contention that the respondents have not bothered for taking action to recover the misappropriated amount from the property of the main culprit / offender i.e. Ganpat Singh Deora, but they have adopted another way to compensate by calculating the amount as remedial measure and have charge sheeted the applicant and collected the recovery amount forcibly. It is also clear that no amount is fixed in accordance with liability and modus operandi. The punishment is awarded to recover the misappropriated amount as a remedial measure because the negligence does not precede as mandatory in fraud case and the fraud is already committed by SPM TSO Industrial Area and the punishment order also does not reveal the exceptional case as compelling circumstances and specific reason recorded in writing as an obligatory measure for awarding the punishment of recovery under Rule 11 of CCS (CCA) Rules, 1965. Therefore, the respondents have not complied with Rule 11 of CCS (CCA) Rules, 1965, in its true spirit. The applicant relies Rule 106, 107 of the PO Savings Bank Manual Volume-1, Rule 204 of P&T Vol.III and also Rule 11 of CCS (CCA) Rules, 1965.
e) The applicant has relied towards the judgment passed in OA No.156/2011 titled Sh. B.L. Verma Vs. UOI & Ors., decided on 22.05.2012, 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. It is hereby submitted that the punishment order of recovery was quashed and the OA was allowed in OA No.252/2012 in the 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.
OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 7 The SLP (CC) No.673/2015, filed by the respondents in the said OA, stands dismissed vide order dated 19.01.2015.
f) The applicant also relied 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.
g) Aggrieved by the order dated 16.06.2016 passed by the Disciplinary Authority and the order dated 12.09.2016 passed by the Appellate Authority and against the recovery of Rs.2,87,250/, the applicant has filed the present OA.
3. The respondents in their reply have averred that the applicant while working as SB LC at Jalore HO during the period 12.02.2011 to 19.02.2011 was entrusted with the duties attached to the post of SB LC and thus the applicant was supposed to check and compare the signatures/thumb impression of account holders on withdrawal form (SB-
7) with sample signatures of accountholders available in account opening form. It is their case that Ganpat Singh Deora, processed the multiple closing / half withdrawals with fake signatures and deposited such fraud money in various Savings Bank Accounts including the 8 Savings Bank Accounts as mentioned in the charge sheet of the applicant and later on withdrew the amount with withdrawal forms with fake signatures of real account holders. It was the case that the applicant failed to prepare such high value withdrawal memos / half margin verification memos and as he OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 8 did not perform his duty properly, indirectly supported the fraud and accordingly misappropriation was committed by Ganpat Singh Deora. It is their case that due to such negligence on the part of the applicant, Ganpat Singh Deora was able to commit the fraud of Rs.2,91,30,671/-. It is the case of the respondents that out of the total fraud, the applicant was at least liable for the 9 transactions, and therefore, the Disciplinary Authority proceeded to impose the punishment of recovery, which is commensurate to the dereliction of the duties by the applicant. The applicant was issued a memo dated 16.06.2016 on the basis of the contributory negligence on the part of the applicant. It is their case that the total amount of irregular withdrawals related to the applicant's period was Rs.5,74,500/- which was divided in 2 equal parts and one part i.e. Rs.2,87,250/- was to be recovered from the applicant and the remaining one part from APM (SB) of Jalore HO. It is their case that the applicant failed to perform the duties vigilantly and thus indirectly facilitated the main culprit to commit huge fraud to such offender. It is their contention that there is no violation of Rules 106, 107 and 204 of Postal Manual Vol-III. The respondents further averred that the charge sheet was accordingly served to the applicant on 01.03.2016 and after considering the representation submitted by the applicant a penalty of Rs.2,87,250/- was awarded by the Disciplinary Authority, and thereafter, the applicant has filed an appeal against the said order, which was rejected by the Appellate Authority vide order dated 12.09.2016.
4. 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 each of the identified offender including the applicant. The recovery was imposed due to the negligence towards the duties by the Government servant as the recovery can be made from the Government servant who is found guilty of the loss OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 9 suffered by the Government. It 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 are justified and legal.
5. The respondents have relied on the judgment of Shri Ram Sharma Vs. UOI & Ors., in OA No.01/2013 decided by the CAT-Jaipur Bench, Jaipur, on 29.09.2014, wherein the Tribunal did not interfere in the orders passed by the respondents and the OA was dismissed. The respondents have also 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 wherein this Bench of the Tribunal had observed not to interfere with the orders of the Disciplinary Authority as well as the Appellate Authority.
6. The applicant in rejoinder had relied on the judgment of B.R. Verma Vs. UOI & Ors. in OA No.496/2008 decided by CAT-Allahabad Bench on 14.09.2011, wherein an identical case, the Tribunal had allowed the OA setting aside the penalty order of recovery and had also observed that if any amount in pursuance of the impugned order is recovered from the applicant, the same shall be refunded to the applicant within a time frame.
7. The respondents have filed their Additional Reply.
8. Heard learned counsels for the parties.
9. Shri S.P. Singh, learned counsel for the applicant contended that the applicant was posted at Jalore, HO which was at a far distance from the place where the actual fraud took place. He reiterated that the applicant was not looking after the MIS & RD Accounts as he was working in SB and there was no misappropriation of any amount in SB. It is his further OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 10 contention that the punishment awarded on the applicant is on the basis of presumption in order to recover the misappropriation of the amount done by Shri Ganpat Singh Deora, SPM and the applicant was made a scapegoat to extract the amount for the loss committed by Shri Ganpat Singh Deora. It is his further case that the charge sheet, order of the disciplinary authority and the appellate order 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 charge is proved about the loss caused to the Government. He further contended that the recovery of any amount has not been mentioned as minor penalty under CCS (CCA) Rules, 1965 and as per the provision to Sub Rule (ix) of Rule 11 in any exceptional case any other penalty can be imposed
10. On the other hand, counsel for the respondents vehemently argued and contended that the amount for recovery has been fixed according to the quantum of loss and on account of failure of the official to discharge his duties, and that determination of amount for recovery from both the principal and subsidiary offenders identified had been made depending upon the level of failure of performance of their responsibility.
11. I have carefully considered the rival contentions of both the counsels and perused the record.
12. I am not convinced with the arguments put forth by the learned counsel for the respondents especially so because the order of the disciplinary authority as well as the appellate order do not show that the actual loss has been caused only because of the negligence on the part of the applicant. It is clear that the applicant was not directly involved in the fraud that took place as the applicant was working as PA SBLC SO at HO Jalore while the fraud was detected at TSO Industrial Area Jalore. It is OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.) 11 clear that nowhere the respondents have indicated that the applicant facilitated Shri Ganpat Singh Deora to commit any fraud. Only allegation is that the applicant has not performed his duties diligently. The applicant had denied the charges on the plea that he was working in SB and there was no allegation of any misappropriation in SB whereas he had been charged that he was not looking after the MIS & RD Accounts as evident from the charge sheet. The reasoning of the Disciplinary Authority preceeded on the ground that if the applicant had carried out his duties vigilantly, no fraud would have been committed, but this is a mere surmise that even after carrying his duties the SPM being in possession of cash was in a position to misappropriate the amount. Furthermore, such negligence, even if there is one, cannot be a cause for punishing the applicant with the recovery of loss sustained by the Department. The applicant obviously is not responsible for the misappropriation of the amount. It is clear that as the department found that it was not possible to recover the amount from main culprit, the applicant was made a scapegoat and levied with the punishment of recovery for the loss caused to the Government.
13. The order of the Disciplinary Authority as well as that of the Appellate Authority is based on misconception of the terms negligence and in utter disregard to the provisions of Rule 11 (3) of the CCS (CCA) Rules. It appears that the Disciplinary Authority and the Appellate Authority believe that whenever fraud has taken place in the department and there is loss of revenue, somebody should be held guilty for the loss caused to the Department. The charge levelled against the applicant was that by his negligence in not comparing the signatures of depositors with specimen signature and sign below the signature of depositors on withdrawal forms of SB Account at Industrial Area, Jalore DSO fraud has been committed by Shri Ganpat Singh Deora.
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14. The respondents relied on the judgment in the case of Dhanraj Singh Meena Vs. UOI & Ors, in OA No.430/2013, decided on 30.09.2015, wherein the applicant had accepted the charges in his statement, but in the present case, the applicant has denied the charges, therefore, the said case cannot be compared. Also, the facts of the case of Sri Ram Sharma, are completely different from the present case, hence, cannot be taken into consideration.
15. 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 his function as PA. The sum and substance of the charges levelled against the applicant is that he remained negligent which facilitated Shri Ganpat Singh Deora, SPM, TSO in committing fraud. 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. Also recovery of money is a matter of civil consequences is not permissible without conducting a regular inquiry.
16. 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 an exceptional case for the reasons to be recorded in writing and that the delinquent Government servant should have been given 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.
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17. I am in complete agreement with the ratio laid down in the judgments relied upon by the applicant and especially B.R.Verma's case. The orders passed by the Disciplinary Authority and upheld by the Appellate Authority imposing punishment of recovery from the applicant is not in accordance with the provisions of Rule 11(3) of the CCS (CCA) Rules, 1965. Therefore, in these circumstances of the case, the impugned order dated 16.06.2016 (Annexure A1) and dated 12.09.2016 (Annexure A1/a) 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 certified copy of this order. However, the respondents are not precluded from proceeding against the applicant strictly in accordance with CCS (CCA) Rules, 1965 and imposing an appropriate penalty, if the charges of negligence and failure of duties are held proved.
18. The O.A. is accordingly allowed, as stated above, with no order as to costs.
(HINA P. SHAH) MEMBER (J) Dated: 10.12.2018 Place: Jodhpur /sv/ OA No. 290/00371/2016 (Dilip Kumar Dave Vs. UOI & Ors.)