Central Administrative Tribunal - Kolkata
Koushik Paul vs D/O India Post on 14 May, 2024
1 0A 350/01738/2021, MA 108 & 243 of 2022 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. OA./350/01738/2021 Date of order : 14.05.2024 MA./350/00108/2022 MA./350/00243/2022 Present: | Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kumar Das, Administrative Member Koushik Paul, Son of Rabindranath Paul, aged about 45 years, by Occupation- Postmaster (now under Suspension), attached to Cossipore Head Office, residing at Bazar Colony, P.O.- Dhubutlia, P.S.- Dhubulia, District - Nadia, Pin - 741139. Levees Applicant -Versus- 1. Union of India, through the Secretary to the Government of India, Department of Posts, Dak Bhawan, Parliament Street, New Delhi - 110001. 2. The Chief Postmaster General, West Bengal Circle, P-36, CR Avenue, Yogayog Bhawan, Kolkata - 700012. 3. The Sr. Superintendent of Post Offices, North Kolkata Division, 5A, Indra Biswas Road, Kolkata - 700037. 4. The Assistant Superintendent of Post Offices, North Kolkata 27° Sub-Division, Alambazar PO, Kolkata - 700035. 5. Mr. Anirban Saha, Enquiry Officer-Cum-ASP Division, Nadia North Division, service through the Sr. Superintendent of Post Offices, North Kolkata Division, 5A, Indra Biswas Road, Kolkata - 700037. been eeeeeneees Respondents. For the Applicant Mr. Arpa Chakraborty, Counsel Ms. P. Mondal, Counsel For the Respondents : Mr. B.B. Chatterjee, Counsel 2 0A 350/01738/2021, MA 108 & 243 of 2022 ORDER
Per: Mr. Suchitto Kumar Das, Administrative Member:
The applicant has approached this Tribunal by filing the instant O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a) Charge Memorandum dated 19.07.2021 and Corrigendum dated 22.07.2021 issued by the respondent No. 3 are not tenable in the eye of law and as such the same may be quashed.
b) An Order do issue directing the respondents to pay the applicant the subsistence allowance and at enhanced rate after expiry of 3 months from the initial date of suspension along with all the arrears thereto and interest accrued therein with effect from 15.10.2019 along with all consequential benefits.
c) An order do issue directing the respondents to cancel/withdraw/rescind the impugned order of suspension dated 15.10.2019 forthwith and to unfreeze all the accounts of the applicant which were freezed by the authority and to release all passbooks and cheque books of postal and bank accounts that were seized by the authority on the day of suspension.
d) To grant Costs and incidentals.
e) Any other order or orders as the Hon'ble Tribunal deems fit and proper,"
2. The facts of the case are under:-
2.1. The applicant was posted as a Postal Assistant at Sinthee and then Cossipore P.O.s He was placed under suspension w.e.f 15.10.2019 on the ground that disciplinary proceedings were contemplated against him for alleged financial irregularities during his tenure at Sinthee and Cossipore. A charge memorandum was issued to him on 19.07.2021.
2.2. On 08.11.2021, the applicant by this O.A. approached the Tribunal for quashing the Charge Memorandum against him as well as for payment of subsistence allowance due to him during the period of suspension.
2.3, This Court vide its order dated 11.11.2021 directed the respondents to supply the RUDs to the applicant and to pay the subsistence allowance to him. It was further ordered that the enquiry against the applicant would not
3.
3 0A 350/01738/2021, MA 108 & 243 of 2022 be proceeded with till the compliance of the order regarding supply of RUDs and payment of subsistence allowance to the applicant by the respondents. 2.4. RUDs were supplied to the applicant on 3.3.2022. Subsistence allowance for the period from October, 2021 to June, 2022 at the rate of 25% of his pay was paid to the applicant.
2.5 A criminal case was started against the applicant by the police on the same charges of defalcation of money. The applicant was taken into custody on 18.7.2022 and was produced before the ACJM/Sealdah who remanded him to police custody till 25.8.2022.
Ld. Counsel for the applicant submits that the RUDs mentioned in the Annexure to the Memorandum dated 19.7.2021 were not supplied to the applicant.
Inquiry was started against the applicant without any intimation to the applicant and its first sitting was held behind the applicant's back. Charge Memorandum was issued on 19.7.2021 in respect of events which purportedly took place in 2018 and 2019. Inordinate delay in framing charges and in issue of charge memorandum has the effect of vitiating the disciplinary proceeding.
3.1 Ld. Counsel for the applicant submits that for the aforementioned reasons the disciplinary proceedings against the applicant is liable to be quashed. Ld. Counsel for the applicant further submits that a criminal case against the applicant has been instituted on the self-same charges. Departmental proceedings should be discontinued for the reason that the charges leveled against the applicant are pending adjudication in a Criminal Court and the applicant should not be compeiled to disclose his defences in the departmental proceedings which will be prejudicial to his interests in the criminal trial pending against him.
3.2. Ld. Counsel for the applicant further submits that the respondents did not pay the subsistence allowance to the applicant for the period from 15.10.2019 to September, 2021 and paid it @ 25% of the salary from
4. 4 0A 350/01738/2021, MA 108 & 243 of 2022 October, 2021 to June, 2022. Learned Counsel for the applicant also submits that as per rules the applicant is entitled to 50% of his pay as subsistence allowance for 90 days and 75% of his pay thereafter, but the respondents have arbitrarily reduced the applicant's subsistence allowance to 25% of his pay.
Per contra Learned counsel for the Respondents submits that the applicant during his tenure at Sinthee and Cossipore was involved in financial frauds. The charges against him being serious, he was placed under suspension. Charge Memorandum was issued to him after the documentary evidences relating to the case were procured and collated. Given the dimension of the fraud, the time taken to initiate the disciplinary proceedings against the applicant is quite reasonable.
4.1 Learned counsel for the Respondents further submits that on the point of Sri Paul not being served with the notice of disciplinary proceedings, it is to be noted that several attempts were made to communicate with Sri Koushik Paul (From his suspension order, to charge sheet, to intimation of Board of Inquiry) at the addresses available with the department vide Sri. Paul's service records, but every time the correspondences have returned with remarks 'Absent without intimation', 'Unclaimed', 'Out of station' etc. 4.2 Even the charge sheet had to be pasted on Sri. Paul's house gates of both the above mentioned addresses, in presence of witnesses as per departmental norms as Sri Paul was not available in any of those addresses to receive the same. This unmistakably proves the fact that Sri Koushik Paul | was absconding during his period of suspension, trying to evade the departmental disciplinary proceeding.
4.3 Sri Paul did not even appear at the CAT's Bar Library on 24.12.2021, as decided by both sides' counsels and approved by the Tribunal, for receiving the RUDs. This establishes the fact that the applicant never acted in good faith.
5 0A 350/01738/2021, MA 108 & 243 of 2022 4.4 Learned Counsel for the respondents further submits that as per CCS(CCA) Rules:
"The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article or charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and state whether he desires to be heard in person."
4.5. As per Rule 14; Sub Rule 1 of the CCS (CCA) Rule, the statement of defence submitted under sub-rule (5)(a) may be limited to admitting or denying the charges communicated to the officer. For such admission or denial, inspection of documents is not necessary. The delinquent official would get full opportunity to inspect the listed documents during the course of enquiry. Then, the applicant's insistence on supply of RUDs alongwith the charge memorandum is totally misleading and a misconceived attempt to delay the departmental proceedings against him.
4.6 Respondents submit that the subsistence allowance for the period of 9 (nine) months (w.e.f. October 2021 to June 2022) which is admissible as. per the CCS(CCA) Rules, 1965, amounting to Rs. 1,41,283/- (Rupees One lakh forty one thousand two hundred and eighty three) has been paid into the Bank account the applicant on 07.07.2022.
4.7 Respondents further submit that each claim of subsistence allowance should be supported by a certificate of non-employment in prescribed proforma by a government official under suspension. Since his suspension on 15.10.219, applicant the applicant has been absconding. He has and neither reported to his Headquarter (Cossipore H.O., Kol. 700002) nor has he submitted his monthly non-employment certificates at Cossipore H.O. as per departmental instruction, until 20.10.2021.
6 OA 350/01738/2021, MA 108 & 243 of 2022 4.8 Under FR 53(2), the payment of subsistence allowance is subject to the Government servant under suspension furnishing a certificate in the prescribed form EVERY MONTH to the effect that he was not engaged in any other employment.
4.9 The charged official has been supplied with the RUDs under receipt on 03.03.2022 and admissible subsistence allowance has also been paid to him on 07.07.2022 by the department as per rules. The applicant was subjected to 50% decrease in his initial subsistence allowance in the Suspension Review .Committee report dated 25.03.2021 and as he was eligible for subsistence allowance w.e.f. October 2021 to June 2022, at the time of payment, he was paid subsistence allowance amounting to Rs.
1,41,283/.
3. Heard the Ld. Counsel for parties. Perused material on record.
6. In the instant case the charge memorandum was issued almost two years after the alleged fraud was detected following which the applicant was placed under suspension. It is clear from the details contained in the charge memorandum that alleged misconduct involved multiple actions and transactions affecting a number of customers who had deposited money with the respondents. Preliminary investigation, collection of evidence and fixing of prima facie responsibility are essential in such cases for framing charges against the responsible official. The time taken for these activities to be completed in the instant case is considered reasonable and we do not agree with the applicant's submission that there was an inordinate delay in issuing the charge memorandum, 6.1.CCS (CCA) Rules governing the conduct of disciplinary proceedings against a delinquent government employee provides that the charge memorandum should contain the particulars of the RUDs, which can be examined by the charge official during enquiry. The applicant in this case 7 0A 350/01738/2021, MA 108 & 243 of 2022 has clearly avoided participating in the enquiry on one pretext or another. Respondents have pointed that even when it was arranged by the Counsels of both sides to supply the RUDs at a neutral location like the CAT Bar Library, the applicant did not present himself at the venue on the appointed date. Respondents have filed several. documents with their reply to substantiate their contention that they had made repeated attempts to contact the applicant, who contrary to the rules, was not found present in any of his addresses available with the respondents. The contention of the applicant that the enquiry was started behind his back is also not acceptable in the light of the fact that all attempts at contacting him were in vain.
7. _Hon'ble Supreme Court in State of Karnataka & Anr. vs. Umesh in Civil Appeal Nos. 1763-1764 of 2022 has observed :-
"13. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct fram those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction."
It is clear from above that the respondents' action in proceeding with the departmental enquiry against the applicant even when a criminal case on the same charges is pending against him is in conformity with the ratio laid down by the Hon'ble Supreme Court.
Hon'ble Supreme Court has further stated in the State of Karnataka & Anr. vs. Umesh(supra) :-
"17. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of
8 0A 350/01738/2021, MA 108 & 243 of 2022 misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
In the instant case, the respondents have made genuine efforts to communicate with the charged official, the applicant herein, who appears to have deliberately avoided participation in the disciplinary proceedings. Therefore, it cannot be said that he has not been given due opportunity to defend himself. The respondents have taken care to comply with the rules of natural justice. From the details given in their reply to the OA, it is evident that all care has been taken by the respondents to follow the statutory rules governing the conduct of the disciplinary proceedings.
8. In view of the above, we do not find any reason to interfere with the disciplinary proceedings against the applicant at this stage.
9. FR 53 which lays down the rules with respect to payment of subsistence allowance to an employee under suspension is as follows:
"F.R. 53: (1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely:
(i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to Military duty, the pay and allowances to which he would have been entitled had he been suspended while in military employment;
(11) in the case of any other Government servant
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave _on half average pay_or on _half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary:
Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(1) the amount of subsistence allowance may be increased by_a suitable amount, not exceeding 50. per cent of the subsistence allowance admissible during the period of the first three months, if, 9 0A 350/01738/2021, MA 108 & 243 of 2022 in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant:
(ii) the amount of subsistence allowance, may be reduced by_a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;
(iii) the rate of dearness allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (1) and (41) above.
(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfilment of other conditions laid down for the drawal of such allowances.
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation: Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement, under sub-rule (3) or sub-rule (4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the amount of-subsisience allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him."(emphasis added) 9, An employee under suspension, on submission of non-employment certificate is entitled to 50% of his pay for the first 90 days of his suspension.
Thereafter the subsistence allowance can be raised to 75% of the pay if the delay in finalizing the case for which he has been put under suspension is on account of administrative reasons. If, however, it is determined that the delay is caused on account of the actions of the delinquent employee, the allowance will be reduced to 25% of the pay. In this case, applicant by his refusal to cooperate with the authorities on unsustainable grounds is clearly responsible for the delay in Q) Feat aoe feunal
- 10 0A 350/01738/2021, MA 108 & 243 of 2022 finalizing the case against him. The respondents have, therefore, rightly reduced his subsistence allowance to 25% of his pay.
10. [tis not disputed that till October, 2021 the applicant did not submit his non-
employment certificate. As per Rules quated above, the respondents could not have _ paid the subsistence allowance in the absence of such a declaration which should have been submitted every month. Once he submitted the non-employment certificate from October, 2021 onwards, he was paid the subsistence allowance.
11. It is noted that this Court took the initiative vide its earlier orders to facilitate submission of non-employment certificate for the entire period of suspension.
Accordingly, these certificates were received by the respondents in June, 2022.
12. In view of the discussions above, we do not find any legal infirmity in the acts of the respondents in either initiating disciplinary proceedings against the applicant or in payment of subsistence allowance at the reduced rate after receipt of non-employment certificate from the applicant.
13. O.A is devoid of merit and is dismissed. Interim order/orders, if any, stand vacated. Consequently, the M.A.s also stands disposed of accordingly.
It is open for the respondents to consider payment of subsistence allowance for the period prior to October, 2021 as per rules.
No costs.
(SuchiftéKumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member Kb/Drh