Central Administrative Tribunal - Hyderabad
A.K. Sharma And R.B. Jain vs Union Of India (Uoi), Rep. By The ... on 6 August, 2007
ORDER Bharati Ray, Member (J)
1. Since the issue involved and relief claimed is similar in both these OAs, the same are being disposed of by the following common order:
O.A. 516/2007The applicant in OA 516/2007 joined as Scientific Officer-B on 24.3.1981 and was initially allotted to the Eastern Region at Calcutta. The applicant was thereafter promoted to the post of Scientific Officer-C in 1983, D in 1989 and E in 1994. The applicant was transferred to Northern Region at New Delhi in the year 1984. It is the contention of the applicant that considering the merit and initiative exhibited by the applicant, when the AMD has created a new region the applicant was picked up and posted to the newly North Western Region (NWR for short) at Jaipur in 1988. The applicant was moved over to the headquarters at Hyderabad in the year 1999. The applicant submitted that he maintained a very clean and decent record of service through out his career. Since the region to which he was posted was newly carved out, it had to function even without the full potential of staff.
The post of Assistant Accounts Officer/Sub Pay Officer(SPO) was unfilled. Therefore, it was necessary to arrange for some mechanism, which would facilitate the pre and post audit functions. The SPO Northern Region at Delhi was directed to take up the responsibility of discharging the duties relating to the NWR Jaipur till such time the posts are filled up. This necessitated the NWR to send bills and other instruments duly approved for clearance by SPO, Northern Region, Delhi who in turn drew the said amounts after processing. It is the contention of the applicant that in the normal circumstance, even if such a procedure was adopted, it would be necessary for the SPO to draw either cheques or Demand drafts in respect of an individual or organisation to which payments are to be made. But this was not the procedure adopted but an unusual practice of sending up Uncrossed Demand Drafts in the name of Regional Director was followed. In this context learned Counsel for the applicant submitted that the cashier Sri Narpat Singh expired on 14.5.1994 and for the purpose of handing over the charge to his successor, the NWR had to take up the almost impossible task of reconciling the accounts and verifying the physical cash. The same was entrusted to a committee headed by Sri V.V. Ramachandra Rao, Deputy Controller of Accounts, AMD, Hyderabad. It was during this endeavour, the NWR has found that serious irregularities in maintenance of cash and connected records were committed by the late cashier. The said committee has prima facie held that the Regional Director, the officers including the applicant who were verbally assigned the duties as a stop gap arrangement during the absence of Regional Director, Senior Clerk, Assistant Accountant and the SPO, Delhi were responsible. Based on the said finding of the Committee, the applicant has been served a charge memorandum dated 28.6.1995 containing a sole charge that he has contravened Rule 13 and 92 of the Central Government (Receipts and Payments) Rules, 1983 resulting in defalcation of cash in NWR, Jaipur during 1994, that he has signed cheques and the cash book and was not ensuring proper principles including physical verification of the cash were followed thereby violating the provisions of Conduct Rules. After an unexplained and unduly prolonged pendency of the proceedings, the report of the Inquiry Officer was furnished to the applicant. The 2nd stage advice of the Central Vigilance Commission was also annexed to the report of the Inquiry Officer and comments of the applicant were called for. The applicant has mentioned that the CVC as well as the 3rd respondent in unison stated that the applicant had no motive or intention to defalcate or commit any irregularities. Inspite of such an observation, the 3rd respondent has advised that the penalty of reduction of pay by two steps in the time scale of pay for a period of two years with further direction that during the period of reduction, the applicant will not be earning any increment of pay and on expiry of the penalty period, the reduction will have the effect of postponing future increments of pay together with an order for recovery of Rs. 20,000/- and accordingly by an order dated 3.4.2003 the said penalty has been imposed. The applicant questioning the said penalty imposed by the 1st respondent approached this Tribunal in OA No. 826/2003. The Tribunal in the said case observed that the UPSC has also found that the charges and the findings against the officers were limited entirely to gross negligence in following the proper procedure, which enable substantial defalcation/loss to the government and that the UPSC has found that the charged officer had no ulterior motive in his conduct. In the said case the Tribunal has drawn a conclusion that applicant was neither officially required to do nor authorised to do. It was only a stop gap arrangement the applicant would have been given the benefit. Accordingly the Tribunal remitted back the case of the applicant along with one Sri A.K. Sharma to the disciplinary authority to consider the representations of the applicants in the matter afresh by quashing the punishment imposed on the applicants. The common order passed by the Tribunal in the above two OAs are extracted below:
Therefore, the case of the applicants in both the OAs is remanded back to the disciplinary authority to consider the representations of the applicants in the matter afresh, which the applicants are re-directed to make, within a period of One month and to modify the punishment inflicted on the applicants, which would be appropriate, just and fair keeping in view the judicial findings above within a period of another two months.
The punishment imposed on the applicants are hereby quashed by this Tribunal with a direction to the respondents for its re-consideration keeping in view the findings of the UPSC and judicial findings of this Tribunal as above.
The respondents in the above OAs filed writ petition No. 13495 and 14892 of 2005 against the order of the Tribunal and the Hon'ble High Court has disposed of the writ petition on 2.2.2006 as under:
10. The Tribunal had remitted the matter back to the disciplinary authority for reconsideration of the matter on the representations filed by the respondents. In our considered opinion, it is not really necessary, having come to the conclusion that the two respondents were neither officially required nor authorised to perform the duties, it is only stopgap arrangement the respondents should have been given the benefit. However, we are of the opinion that as the government money was involved and there was financial loss to the government exchequer, the petitioners can recover the amount through reasonable instalments from the respondents so that the government amount is safeguarded. Apart from that, the major punishment of reduction of pay by two stages in the time scale of pay for a period of two years and further direction that during the period of reduction he will not earn any increment of pay and on expiry of the penalty period the reduction will have the effect of postponing his future increments of pay is a disproportionate punishment having regard to the facts and circumstances mentioned above and therefore set aside.
Accordingly, the writ petitions are disposed modifying the order of the Tribunal. There shall be no order as to costs.
The first respondent issued the order dated 11.12.2006 (Annexure A1 to the OA) imposing the penalty of recovery of an amount of Rs. 20,000/- on account of loss caused to Government. It is the contention of the applicant that the first respondent has failed to understand the legal implication of the order of the Hon'ble High Court and therefore has passed such order. Questioning the order No. 1/13(5)/2005-Vig./Vol.II/9516 dated 11.12.2006 the applicant has approached this Tribunal and ha sought for the following relief:
(a) call for all the relevant and connected records relating to the order No. 1/13(5)/2005-Vig./Vol.II/9516 dated 11-12-2006 of the 1st respondent and quash or set aside the same holding it as arbitrary, illegal, unjust, without jurisdiction and violative of Articles 14 and 16 of the Constitution of India;
(b) consequent upon the setting aside of the impugned order direct the respondents to promote the applicant as Scientific Officer F (SO/E to SO/F) and from SO/F to SO/G on and from the date on which the immediate junior to him has been promoted and also grant the benefit of seniority as well as monetary benefits which flow from out of the quashing of the impugned order and the direction prayed for supra and direct release of the same together with interest at the rate of 12% per annum with quarterly rests payable from the date on which it has become due till the date of release of the amounts;
(c) further direct that the interest should be recovered from the concerned who was responsible for the unwarranted trauma of prolonged pendency of the proceedings (from 1995 to 2007) and the consequential denial of promotion owing to such pendency.O.A.515/2007
The applicant in OA 515/2007 joined as Scientific Assistant-C on 18.10.1988. Subsequently he responded to another notification throwing open vacancies of Scientific Officers SC. On being selected, he joined the newly formed North Western Region of AMD at Jaipur on 25.2.1991. All through his career, he maintained a decent record of service. Since the region to which he was posted was newly carved out, it had to function even without the full potential of staff.
The post of Assistant Accounts Officer/Sub Pay Officer(SPO) was unfilled. Therefore, it was necessary to arrange for some mechanism, which would facilitate the pre and post audit functions. The SPO Northern Region at Delhi was directed to take up the responsibility of discharging the duties relating to the NWR Jaipur till such time the posts are filled up. This necessitated the NWR to send bills and other instruments duly approved for clearance by SPO, Northern Region, Delhi who in turn drew the said amounts after processing. It is the contention of the applicant that in the normal circumstance, even if such a procedure was adopted, it would be necessary for the SPO to draw either cheques or Demand drafts in respect of an individual or organisation to which payments are to be made. But this was not the procedure adopted but an unusual practice of sending up Uncrossed Demand Drafts in the name of Regional Director was followed. In this context learned Counsel for the applicant submitted that the cashier Sri Narpat Singh expired on 14.5.1994 and for the purpose of handing over the charge to his successor, the NWR had to take up the almost impossible task of reconciling the accounts and verifying the physical cash. The same was entrusted to a committee headed by Sri V.V. Ramachandra Rao, Deputy Controller of Accounts, AMD, Hyderabad. It was during this endeavour, the NWR has found that serious irregularities in maintenance of cash and connected records were committed by the late cashier. The said committee has prima facie held that the Regional Director, the officers including the applicant who were verbally assigned the duties as a stop gap arrangement during the absence of Regional Director, Senior Clerk, Assistant Accountant and the SPO, Delhi were responsible. Based on the said finding of the Committee, the applicant has been served a charge memorandum dated 28.6.1995 containing a sole charge that he has contravened Rule 13 and 92 of the Central Government (Receipts and Payments) Rules, 1983 resulting in defalcation of cash in NWR, Jaipur during 1994, that he has signed cheques and the cash book and was not ensuring proper principles including physical verification of the cash were followed thereby violating the provisions of Conduct Rules. After an unexplained and unduly prolonged pendency of the proceedings, the report of the Inquiry Officer was furnished to the applicant. The 2nd stage advice of the Central Vigilance Commission was also annexed to the report of the Inquiry Officer and comments of the applicant were called for. The applicant has mentioned that the CVC as well as the 3rd respondent in unison stated that the applicant had no motive or intention to defalcate or commit any irregularities. Inspite of such an observation, the 3rd respondent has advised that the penalty of reduction of pay by two steps in the time scale of pay for a period of two years with further direction that during the period of reduction, the applicant will not be earning any increment of pay and on expiry of the penalty period, the reduction will have the effect of postponing future increments of pay together with an order for recovery of Rs. 20,000/- and accordingly by an order dated 3.4.2003 the said penalty has been imposed. The applicant questioning the said penalty imposed by the 1st respondent approached this Tribunal in OA No. 676/2003. The Tribunal in the said case observed that the UPSC has also found that the charges and the findings against the officers were limited entirely to gross negligence in following the proper procedure, which enable substantial defalcation/loss to the government and that the UPSC has found that the charged officer had no ulterior motive in his conduct. In the said case the Tribunal has drawn a conclusion that applicant was neither officially required to do nor authorised to do. It was only a stop gap arrangement the applicant would have been given the benefit. Accordingly the Tribunal remitted back the case of the applicant along with one Sri R.B.Jain to the disciplinary authority to consider the representations of the applicants in the matter afresh by quashing the punishment imposed on the applicants. The common order passed by the Tribunal in the above two OAs are extracted below:
Therefore, the case of the applicants in both the OAs is remanded back to the disciplinary authority to consider the representations of the applicants in the matter afresh, which the applicants are re-directed to make, within a period of One month and to modify the punishment inflicted on the applicants, which would be appropriate, just and fair keeping in view the judicial findings above within a period of another two months.
The punishment imposed on the applicants are hereby quashed by this Tribunal with a direction to the respondents for its re-consideration keeping in view the findings of the UPSC and judicial findings of this Tribunal as above.
2. The respondents in the above OAs filed writ petition No. 13495 and 14892 of 2005 against the order of the Tribunal and the Hon'ble High Court has disposed of the writ petition on 2.2.2006 as under:
10. The Tribunal had remitted the matter back to the disciplinary authority for reconsideration of the matter on the representations filed by the respondents. In our considered opinion, it is not really necessary, having come to the conclusion that the two respondents were neither officially required nor authorised to perform the duties, it is only stopgap arrangement the respondents should have been given the benefit. However, we are of the opinion that as the government money was involved and there was financial loss to the government exchequer, the petitioners can recover the amount through reasonable instalments from the respondents so that the government amount is safeguarded. Apart from that, the major punishment of reduction of pay by two stages in the time scale of pay for a period of two years and further direction that during the period of reduction he will not earn any increment of pay and on expiry of the penalty period the reduction will have the effect of postponing his future increments of pay is a disproportionate punishment having regard to the facts and circumstances mentioned above and therefore set aside.
Accordingly, the writ petitions are disposed modifying the order of the Tribunal. There shall be no order as to costs.
3. The first respondent issued the order dated 11.12.2006 (Annexure A1 to the OA) imposing the penalty of recovery of an amount of Rs. 20,000/- on account of loss caused to Government. It is the contention of the applicant that the first respondent has failed to understand the legal implication of the order of the Hon'ble High Court and therefore has passed such order. Questioning the order No. 1/13(5)/2005-Vig./Vol.II/9517 dated 11.12.2006 the applicant has approached this Tribunal and ha sought for the following relief:
(a) call for all the relevant and connected records relating to the order No. 1/13(5)/2005-Vig./Vol.II/9517 dated 11-12-2006 of the 1st respondent and quash or set aside the same holding it as arbitrary, illegal, unjust, without jurisdiction and violative of Articles 14 and 16 of the Constitution of India;
(b) consequent upon the setting aside of the impugned order direct the respondents to promote the applicant as Scientific Officer F (SO/E to SO/F) and from SO/F to SO/G on and from the date on which the immediate junior to him has been promoted and also grant the benefit of seniority as well as monetary benefits which flow from out of the quashing of the impugned order and the direction prayed for supra and direct release of the same together with interest at the rate of 12% per annum with quarterly rests payable from the date on which it has become due till the date of release of the amounts;
(c) further direct that the interest should be recovered from the concerned who was responsible for the unwarranted trauma of prolonged pendency of the proceedings (from 1995 to 2007) and the consequential denial of promotion owing to such pendency.
4. We have heard Mr. Siva learned Counsel for the applicants and Mr. V. Rajeswar Rao, learned Counsel for the respondents in OA 516/07. None appeared for the respondents in OA 515/07. We have gone through the facts of the case and material papers placed before us and the order passed by the Tribunal and the order of the Hon'ble High Court modifying the order of the Tribunal. The question that falls for our consideration at this stage is whether the application is maintainable.
5. Learned Counsel for the applicant argued strenuously that when there has been categorical finding of the court that the applicants were neither officially required nor authorised to perform the duties, it is only stopgap arrangement the applicants should have been given the benefit the question of punishing the applicant does not arise. He submits that the penalty order impugned herein was passed on 11.12.2006. The disciplinary authority had no authority to do so as the penalty imposed earlier on 3.4.2003 has been set aside in its entirety by the Tribunal and only the order remitting the same back to the disciplinary authority was interfered and modified by the Hon'ble High Court and thus there was no question of imposing any penalty. Referring to the judgment of CAT Jaipur in the case of Shri S.K. Sharma learned Counsel for the applicants submitted that the entire charge memorandum was quashed by the Jaipur Bench of the Tribunal on the sole ground that the disciplinary authority has not concluded the proceedings within the time limit stipulated by the Hon'ble High Court of Rajasthan. Therefore, by applying the same analogy in the case of the applicant the disciplinary authority has not taken the necessary action for recovery of loss within the time limit. Learned Counsel for the applicants submitted that the application filed for extention of time was dismissed on 11.12.2006 and the impugned order has been passed on the same day. It is also the contention of the learned Counsel for the applicant that when the Hon'ble High Court has observed that the loss caused to the government can be recovered it could be incumbent upon on the part of the respondents to first determine the loss it suffered and thereafter it has to be recovered after a scientific apportionment of the same. This exercise has not been done at all. The another ground taken by the learned Counsel for the applicants is that the recovery ordered to be made in the impugned order is disproportionate.
6. On going through the common order passed by the Tribunal we find that the Tribunal has set aside the order impugned therein and remitted the case back to the disciplinary authority for reconsidering keeping in view the findings of the UPSC. However, while modifying the punishment order imposed by the disciplinary authority the Hon'ble High Court has opined that "as the government money was involved and there was financial loss to the government exchequer, the petitioners can recover the amount through reasonable instalments from the respondents so that the government amount is safeguarded". The amount that was to be recovered from the applicants i.e. Rs. 20,000/- was very much in the order of the disciplinary authority. It was the subject matter of challenge before the Tribunal and the Hon'ble High Court was aware of the amount to be recovered. It is not in dispute that the charges framed against the applicants were not quashed by the Tribunal. This Tribunal set aside the impugned order of the first respondent and remanded the case to the disciplinary authority for reconsideration. But the Hon'ble High Court found that not necessary to remit back to the disciplinary for reconsideration of the matter on the representation filed by the respondents and opined that the respondents (petitioners in the writ petition) can recover the amount through reasonable instalments from the applicants (respondents therein) so that the government amount is safeguarded.
7. That being the position, we are of the view that when the entire disciplinary proceedings were not quashed, the impugned order passed by the disciplinary authority to recover the amount of Rs. 20,000/- from the applicants by way of penalty in the disciplinary proceedings on account of loss caused to the government is in order. We, therefore, do not find anything wrong in the order of the first respondent and the order which has been passed pursuant to the order passed by the Hon'ble High Court. That being the position, we do not find any scope to interfere with the order passed by the first respondent. If it is the case of the applicants that the respondents have failed to interpret the order of the Hon'ble High Court properly the applicants cannot seek clarification from the Tribunal.
8. We are, therefore, of the view that there is nothing wrong in the impugned order dated 11.12.2006. We therefore find no reason to interfere with the order passed by the disciplinary authority.
9. We, therefore, dismiss the OAs as not maintainable with no order as to costs.