Central Administrative Tribunal - Cuttack
Dhaneswar Soren vs Posts on 16 February, 2024
1 O.A. No.435 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 435 of 2021
Heard & reserved on: 08.02.2024 Order on: 16.02.2024
Present:
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Mr.Pramod Kumar Das, Administrative Member
In the matter of
Dhaneswar Soren,
aged about 52 years,
Son of Laxman Soren,
At-Madhupur, PO-Luhakani,
P.S-Bisoi, Dist-Mayurbhanj.
.............Applicant
-Versus-
1. Union of India, represented through
Its Secretary, Department of Posts,
Dak Bhawan, Sansad Marg,
New Delhi-110001.
2. The Chief Post Master General,
Odisha Circle,
At/Po-Bhubaneswar,
District-Khurda-751001.
3. The Director of Postal Services,
HQ Region, Bhubaneswar,
O/o The Chief Post Master General,
Odisha Circle, At/Po-Bhubaneswar,
District-Khurda-751001.
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4. The Superintendent of Post Offices,
Mayurbhanj Division,
At/Po-Baripada,
District-Mayurbhanj -757001.
5. Samarjeet Nayak, Inquiry Officer cum Asst.
Superintendent of Posts(OD),
Mayurbhanj Division,
At/Po-Baripada,
District-Mayurbhanj -757001.
..........Respondents.
For the applicant : Mrs. Sailabala Jena, Counsel
For the respondents : Mr. G.R. Verma, Counsel
ORDER
Sudhi Ranjan Mishra, (Judicial Member) The instant Original Application has been filed by the Applicant under Section 19 of the Administrative Tribunal Act, 1985 challenging his removal from service and seeking the following relief(s):-
"i. This Honourable Tribunal may kindly be pleased to quash the charge sheet dated 12.03.2018 issued against the applicant, the Inquiry Report dated 17.08.2020 passed by the Respondent No.5, the punishment order dated 31.03.2021 passed by the Respondent No.4 and subsequently the order dated 19.08.2021 passed by the appellant authority, Respondent No.3 vide Annexure-A/1, A/3, A/5 and A/7 respectively.
ii. This Honourable tribunal may also be pleased to pass any other further order/orders as deemed fit and proper in the facts and circumstances of the case."3 O.A. No.435 of 2021
2. The brief facts of the case of the Applicant is that he was discharging his duties as SPM, Bahalda S.O in account with Rairangpur H.O. from 15.04.2016 to 13.10.2016 when he was charged with the allegation of involvement in a fraud case causing misappropriation of sum of Rs.1,15,913/-. A charge sheet dated 12.03.2018 (Annexure-A/1) consisting of five articles of charges was issued to him under Rule-14 of the CCS (CCA) Rules, 1965. The first imputation against the applicant was that he did not remit the cash of Rs. 50,000/- to Rairangpur H.O on the same day rather he made it the next day as a result failed to show devotion to duty. Second imputation was that the applicant received the amount of Rs 50,000/- and reflected the TD account but the said amount was not credited on the same date. The third imputation was similar to that of the second imputation, where an amount of Rs. 30,000/- was not credited on that day. Fourth imputation was that due to lack of supervision of the applicant, one Sri Sanjay Kumar Behera, PA misappropriated VP/COD amount. Similarly, in the fifth imputation it was alleged that, the applicant had received an amount of Rs 13447/- but not credited the same. The statement of Articles of Charge framed against the Applicant is reproduced below:-
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"Statement of Articles of Charge Framed against Sri Dhaneswar Soren SPM (under suspension), Bahalda S.O in account with Rairnagpur HO under Mayurbhanj Division ARTICLE-I Sri Dhaneswar Soren while working as SPM, Bahalda S.O in account with Rairangpur HO during the period from 15.04.2016 to 13.10.2016 on 14.07.2016 has shown cash remittance of Rs 50000/- to Rairangpur H.O vide his office daily account dated 14.07.2016 but physically he did not remit the cash to Rairangpur H.O on the same day Rather he made over the said cash to Rairangpur H.O on 15.07.2016 in the evening. By the above act Sri Soren has violated the Rule 8 of Postal Manual Volume VI Part III published on March, 1985 Thus, it is alleged that Sri Soren has failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a Govt. servant as per provisions laid down in Rule-3(1)(ii) and 3(1)(iii) of CCS(Conduct), Rules-1964.
ARTICLE-II That said Sri Dhaneswar Soren while working in the aforesaid capacity during the period has received Dundo BO daily account dated 23.06.2016 at Bahalda S.O on 25.06.2016. The GDSBPM, Dundo BO in account with Bahalda S.O has opened a 5 year TD account in the name of Md Hanif for Rs 50,000/- vide his PR No-36 dated 23.06.2016 and submitted all the required documents to the account office duly entered in his daily account dated 23.06.2016. The BPM has also remitted a sum of Rs 50,000/- to the account office on the same day. Sri Soren, the SPM(being Sub Account PA and Treasurer of the SO, as per Memo of Distribution of Works of the SO) has correctly received the remittance and reflected the TD account in the BO summary dated 25.06.2016 but the said amount was 5 O.A. No.435 of 2021 not credited to SO daily account on that date and the said TD account was also not opened at SO on that date. By the above act Sri Soren has violated the Rule 29 of Postal Manual Volume VI Part III published on March, 1985.
Thus, it is alleged that Sri Soren has failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a Govt. servant as per provisions laid down in Rule- 3(1)(il) and 3(1)(iii) of CCS(Conduct), Rules-1964 ARTICLE -III That said Sri Dhanneswar Soren while working in the aforesaid capacity during the period has received Kulgi BO daily account dated 31.08.2016 at Bahalda SO on 01.09.2016. The GDSBPM, Kulgi BO in account with Bahalda SO has opened a 5 year TD account in the name of Sumita Nayak with Rs.30000/- vide his office PR No-32 dated 31.08.2016. But due to heavy pressure of works the SPM requested the BPM to take the TD amount into BO account on the very next date i.e. on 01.09.2016. Accordingly, the BPM corrected his office daily account and other related BO records on 01.09.2016. The BPM has remitted a sum of Rs.30000 to the account office on 01.09.2016. Sri Soren, the SPM has correctly received the remittance and reflected the TD deposit in the BO summary dated 03.09.2016(02.09.2016 being Bharat Bandh) but the said amount was not credited to SO daily account on that date and the said TD account was also not opened at S.O on that date. By the above act Sri Soren has violated the Rule 29 of Postal Manual Volume VI Part III published on March, 1985.
Thus, it is alleged that Sri Soren has failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a Govt. servant as per provisions laid down in Rule-3(1)(ii) and 3(1)(iii) of CCS(Conduct), Rules-1964.
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ARTICLE-IV Due to lack of supervision by said Sri Dhaneswar Soren while working in the aforesaid capacity during the period Sri Sanjay Kumar Behera, PA, Bahalda S.O has misappropriated following VP/COD amount, i. MO No 1257 for Rs.4398/- was issued at Bahalda S.O on 14.05.2016 towards delivery of COD No YA060660717IN but the amount has not been taken into Govt account.
By the above act Sri Soren has violated the Rule 29 of Postal Manual Volume VI Part III published on March, 1985.
Thus, it is alleged that Sri Soren has failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a Govt. servant as per provisions laid down in Rule-3(1)(ii) and 3(1)(iii) of CCS(Conduct), Rules-1964.
ARTICLE V That said Sri Dlanerwar Soren while working in the aforesaid capacity during the period, on 14.05.2016 received Rs.13447/- as Treasurer/SPM of Bahalda S0 from the PA, MPCM counter but he had not credited the amount to SO daily account on that day. By the above act Sri Soren has violated the Rule 29 of Postal Manual Volume VI Part III published on March, 1985.
Thus, it is alleged that Sri Soren has failed to maintain devotion to duty and acted in a manner which is unbecoming on the part of a Govt. servant as per provisions laid down in Rule-3(1)(ii) and 3(1)(iii) of CCS(Conduct), Rules-1964.
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3. It is submitted by the learned counsel for the Applicant that after receiving the charge sheet, Applicant submitted representation on 12.03.2018 denying all charges. Thereafter, the inquiry was initiated by the Inquiring Officer on 11.02.2020 (Annexure-A/2). On 17.08.2020 the Inquiry Report was issued by the IO-cum-Asst. Supdt. of Posts (OD), Mayurbhanj Division (Respondent No.5) and on 31.08.2020 (Annexure-A/3) the said Inquiry Report was communicated to the Applicant by the Superintendent of Post Offices, Mayurbhanj Division, Respondent No.4. The findings of the Inquiry Report dated 17.08.2000 inter alia reads as follows:-
" FINDINGS ...On the basis of documentary and oral evidence adduced in the case before me and in view of the reasons given in sub-para-5 to 9 above, I hold the charges in Article-I, II, III, IV and V framed against Sri Dhaneswar Soren, PA, Rairangpur HO -757043 under Mayurbhanj Division under Rule-14 of Central Civil Services (Classification, Control and Appeal) Rules-1965 as conclusively "Proved".
4. On 14.09.2020 (Annexure-A/4) written note of defense was submitted by the Applicant. Thereafter, on 31.03.2021 (Annexure-A/5) the punishment order of Removal from service was passed by the Superintendent of Post Offices, Mayurbhanj Division, Respondent No.4. The operative portion of the punishment Order dated 31.03.2021 inter alia reads as follows:-
"...I have very carefully gone through the article of charges, defence representation of the CO. Report of the Inquiry 8 O.A. No.435 of 2021 Officer along with other relevant records connected to this case to reach at a rational conclusion of the case in hand.
It is no denying a fact that the said Sri Dhaneswar Soren, the C.O did not remit Rs 50,000/-on 14.07.2016 even though reflected on the Bahulda S.O daily Account dated 14.07.2016 and remitted the cash to Rairangpur H.O on the evening of 15.07.2016 violating the departmental guidelines and thereby exhibited grave misconduct. It is proved from the inquiry that the C.O has not remitted the amount till receipt of intimation from Rairangpur H.O in the evening of 15.07.2016. If at all the C.O was so concerned about remitting the money he could have intimated the fact of non remittance to H.O on the morning of 15.07.2016 itself during despatch of mails at 08.00 hours which shows the nefarious work culture and ulterior motive of the CO. The claim of the C.O that cash bag was not available at Bahalda S.O has been disproved by the exhibited documents such as Bahalda S.O Daily Account dated 24.06.2016 Thus plea taken by the C.O has no base and the article of charge is proved.
The CO failed to credit the TD amount of Rs 50,000.00 received vide Dundu BO daily Account dated 23.06.2016 into Bahalda S.O Daily Account of the corresponding date till 22.09.2016. The CO also failed to open the said TD account at S.O on the respective date of receipt of relevant forms and documents violating the departmental guidelines and thereby exhibited grave misconduct. The plea taken by the C.O in his defence representation dated 14.09.2020 defect in filling up of index form (SB-3) by the depositor is baseless and completely afterthought. Thus the article of charge is proved.
The C.O failed to credit the TD amount of Rs 30,000.00 received vide Kulgi BO daily account dated 01.09.2016 into SO daily account of the corresponding date till 22.09.2016. The CO also failed to open the said TD account at S.O on the 9 O.A. No.435 of 2021 respective date of receipt of relevant forms and documents violating the departmental guidelines and thereby exhibited grave misconduct as SPM. The plea taken by the C.O in his defence representation dated 14.09.2020 has no base to prove him innocent. Thus the article of charge is proved.
The C.O as SPM, Bohalda S.O failed to supervise the work of Sri Sanjay Kuma Behera, the then PA, Bahalds S.O. It has been proved that MO No.1257 for Rs 4398.00 was Bahalda S.O on 14.01.2016 towards delivery of COD No.YA06066717IN but the amount has not been taken into Govt. Account. The claim of the C.O vide his defence representation dated 14.09.2000 that due to multifarious engagement of the SPM, pressure of work and cunningness of the P.A the amount has been misappropriated, is not at all acceptable to prove his innocence. Thus the article of charge is proved.
The C.O did not credit the MPCM and PLI/RPLI counter transaction amount to SO daily account on 14.05.2016 and thereby misappropriated a sum of Rs 13447.00 on the date. The C.O admitted his irregularity vide Ext. S-7 and credited the entire non credit amount vide Ext. S-14. The plea taken by the C.O due to over pressure of work and due to acknowledgement of short amount from the P.A in shape of soily & torn currency notes has no base to stand and not at all acceptable to free the C.O from the charges levelled against him. Thus the article of charge is proved.
I find that the Inquiry Officer by arriving at his findings has already taken into account all the points raised by the charged official giving the charged official reasonable opportunity of defending his case at all stages. I established the findings of the Inquiry officer just and proper. As per the findings of the Inquiring Officer, the charges are proved conclusively. Having analysed the case in detail as discussed above with due application of mind, I 10 O.A. No.435 of 2021 entirely agree with the findings of the Inquiring Officer and hold the charges as proved fully.
It reveals from scrutiny of the records pertaining to the case that there is prima facie strong documentary evidence against the CO and the allegation made out in the charge sheet are absolutely sustainable Without any iota of doubt it can be concluded that the charged official is guilty of the charges framed against him.
The undersigned has gone through all the connected records very carefully and observes that the action of the charged official from the beginning to the end was intentional and intended to misappropriate the Govt. money for his personal gain. It is sure that with ulterior motive and intention, he had acted in such a manner and involved in a fraud causing misappropriation of a sum of Rs 1, 15,913.00 detected, so far. As such the charged official is absolutely guilty of the charges. The charged official by his above narrated misconduct defamed the image of the Department in the eyes of the public. The malfeasance and misdemeanour of the charged official attract severe exemplary punishment so that others in the field will desist from such misconducts.
After a dispassionate and judicious consideration of all the facts and circumstances involved in this case 1, Sri Mrutyunjay Bera Superintendent of Post Offices, Mayurbhanj Division, Baripada consider that Sri Dhaneswar Soren, the then SPM, Bahalda S.O in account with Rairangpur H.O and now working as P.A, Rairangpur H.O is not a fit person to be retained in service and accordingly I awarded Sri Dhaneswar Soren, P.A. Rairangpur H.O the punishment of "Removal from Service"
with immediate effect.
11 O.A. No.435 of 2021
5. Being aggrieved Applicant filed an Appeal dated 28.05.2021 (Annexure-A/6) against the punishment before the Director of Postal Services, HQ Region, Bhubaneswar, Respondent No.3. It is submitted by the learned counsel for the Applicant that the Appellate Authority without considering the grounds taken in the appeal, vide Order dated 19.08.2021 (Annexure-A/7) rejected the appeal. Hence this instant O.A. with the prayers as mentioned above.
6. It is the contention of the learned counsel for the Applicant that if there is no pecuniary loss caused to the Government and the alleged amount has already been accounted for, then it does not amount to any kind of misappropriation of fraud as alleged against the Applicant.
7. The learned counsel for the Respondents in their counter inter alia submitted that the Disciplinary Proceedings under Rule-14 of CCS(CCA) Rules 1965 issued vide Superintendent of Post Offices, Mayurbhanj Division Memo No-F/Misc-02/10/2016-17(Disc-I) dtd 12/03/2018 for misappropriation of Government money has already been finalized vide the Superintendent of Post Offices Mayurbhanj Division Memo No-F/Misc- 02/10/2016-17(Disc-1) dtd 31/03/201 and for the grave misconduct committed by the Applicant in not-discharging his duties with due devotion 12 O.A. No.435 of 2021 justified punishment of "Removal from Service" which is commensurate with the gravity of offence. Applicant preferred Appeal dtd 28/05/2021 before the Director of Postal Services (Head Quarters) O/o the CPMG Odisha Circle, Bhubaneswar (Respondent No-3) which was disposed of with issuance of reasoned and speaking order vide Memo No INV/51-10/2021 dtd 19/08/2021(Annexure-R/1) upholding the punishment given by the Disciplinary Authority (Respondent No-4). The charge sheet dated 12/03/2018 issued against the Applicant, inquiry report dtd 17/08/2020 passed by the Respondent No-5 (Inquiry Officer cum Assistant Superintendent of Posts (OD), Mayurbhanj Division), punishment order dtd 31/03/2021 passed by the Respondent No-4 (i.e. Superintendent of Post Offices, Mayurbhanj Division) and order dtd 19/08/2021 passed by the Appellate Authority/Respondent No-3 (i.e Director of Postal Services (HQ), O/o the CPMG Odisha Circle, Bhubaneswar) are just and proper and commensurate with the gravity of offence committed by the Applicant. The punishment has been imposed only after following due procedure of inquiry as per extant rules and no procedural lapse is there. As such, it is submitted by the Ld. Counsel for the respondents that the prayer of the Applicant is not sustainable and the OA is liable to be dismissed.
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8. Heard learned counsel for both sides. Perused the relevant records/ documents and citations submitted by both sides.
9. The Hon'ble Supreme Court in Shivaraj V. Patil And Arijit Pasayat, AIR 2003 SC 1571, has observed as under:-
"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra), that the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
10. As per the settled law on the scope of judicial review of the disciplinary proceedings, the Tribunal can interfere in the disciplinary proceedings if there is violation of natural justice or statutory rules or if the findings are based on no evidence. In this regard Hon'ble Supreme Court in the case of B. C. Chaturvedi vs. Union of India & Anr., 1996 AIR 484, has held as under:
"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 that the conclusion which the authority reaches is necessarily correct in the eye of the court.14 O.A. No.435 of 2021
When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or 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.
11. In the case of Union of India Vs. P. Gunasekhran, 2015 (2) SCC 610, Hon'ble Supreme Court has held as under:
15 O.A. No.435 of 2021
".........In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a) The enquiry is held by a competent authority;
b) The enquiry is held according to the procedure prescribed in that behalf;
c) There is violation of the principles of natural justice in conducting the proceedings;
d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced he finding;
i) The finding of fact is based on no evidence."
12. On careful consideration of the entire case of the applicant vis a vis the reply of the respondents as well as the documents placed in support of respective parties, this Tribunal do not find any case of procedural lapses on the part of the respondents rather Disciplinary Authority after giving all reasonable opportunity to the applicant and following due process of rules 16 O.A. No.435 of 2021 have passed the order of punishment, which has been upheld by the Appellate Authority in a well reasoned order. The contention of the applicant that there was no pecuniary loss to the government and hence he may be exonerated from the charges cannot be justified when the dereliction and non-devotion to duty has been proved by the Inquiry Officer in its report. It is also not the case of the applicant that the charge sheet or punishment was imposed by any incompetent authority. No violation of principle of natural justice has also been established. A public servant is expected to be in his best behavior at all times and upheld the faith of the general public at large by his act and conduct. The misconduct of the applicant tarnished the image of the department before general public in large, therefore this Court is of the considered opinion that the punishment of removal from service, cannot be said to be disproportionate to the allegations made against the applicant and, it is held that it is not shocking to the conscience of this Court. Accordingly this Tribunal does not find any illegality on the part of the respondents warranting interference by this Tribunal.
13. Accordingly the OA is dismissed being devoid of merit. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) (KB/PS)