Central Administrative Tribunal - Cuttack
Nabin Kumar Chhura vs D/O Post on 6 December, 2023
1 OA 260/00449 of 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00449 of 2015
Reserved on: 04.12.2023 Pronounced on : 06.12.2023
CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
Nabin Kumar Chhura, aged about 40 years, S/O- Late
Angada Chhura, Ex-GDS BPM. At/P.O- Palsada, Via-
Paikmal, Dist-Bargarh.
......Applicant
VERSUS
1. Union of India, represented through its Director
General of Posts, Govt. of India, Ministry of
Communications, Department of Posts, Dak Bhawan,
Sansad Marg, New Delhi, Pin-110001.
2. Chief Post Master General, Odisha Circle,
Bhubaneswar, Dist.-Khurda, Pin-751001.
3. Postmaster General, Sambalpur Region, At/PO/
Dist- Sambalpur.
4. Director Postal Services, Office of the Postmaster
General, Sambalpur Region, At/PO/ Dist- Sambalpur.
5. Superintendent of Post Offices, Sambalpur
Division, At/Po/Dist- Sambalpur.
......Respondents
For the applicant : Mr. D.P.Dhalsamant, Counsel
2 OA 260/00449 of 2015
For the respondents : Mr. M.R.Mohanty, Counse
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicant's case is that he was appointed as GDS BPM, Palsada BO in account with Pakmal SO in the year 2002. While working as such, vide order dated 30.12.2011 he was placed under off duty by the Inspector of Posts, Rajborasambar Sub-Division under Rule 12(1) of GDS (C&E) Rules, 2011 in contemplation of disciplinary proceedings. The said order of putting him under off duty was ratified by the respondent No.5 vide order dated 09.01.2012 as per rules. Thereafter, charge sheet under Rule 10 of GDS (C&E) Rules, 2011, ibid Rules, 2011, was issued to the applicant vide memo dated 29.11.2012 on the allegation that he had kept shortage of cash to the tune of Rs. 81,908.20 on 30.12.2011 and, thus, violated the provision under Rules-11 Below "Note" of rules for Branch Offices. On submission of his written statement of defence to the charge sheet, IO and PO were appointed by the competent authority for holding inquiry. The IO after holding inquiry submitted his report on 12.07.2013, copy of which was supplied to the applicant by the Disciplinary Authority on 16.07.2013 giving him opportunity to have his say on the report of the IO. The applicant submitted representation on 12.08.2013.
3 OA 260/00449 of 2015 The DA after considering the report of IO, reply of applicant and the records, imposed the punishment of removal on the applicant vide memo dated 28.08.2013. The applicant preferred appeal on 28.09.2013, on consideration of which, the AA did not find any ground to interfere in the order of the DA and, hence, rejected the appeal on 03.01.2014. Thereafter, applicant preferred revision to Respondent No.3, upon rejection of the same vide order dated 10.07.2014, he has approached this Tribunal in the instant OA seeking to quash the order of the DA dated 28.08.2013, order of the AA dated 03.01.2014 and the order of the RA dated 10.07.2014.
2. The stand points of the respondents, in their counter, are that during the incumbency of the applicant as GDS BPM of Palsada BO, on 30.12.2011 the Inspector of Posts, Rajborasambar Sub Division Rajborasambar visited Palsada B.O for annual inspection. During verification, it was found that as per the Palsada BO Account and last closing balance of the Palsada B.O dated 29.12.2011, the cash and stamp balance should have been Rs 84,313.20 but the applicant failed to account for the part of his office cash balance amounting to Rs 81,908.20. As per the inventory of the cash and stamps produced by the applicant, 4 OA 260/00449 of 2015 the amount was found as Rs 2,405.00 only. Thus, there was a shortage of amount of cash and stamps to the tune of Rs 81,908.20. The applicant, in his written statement dated 30.12.2011 categorically admitted the above shortage of cash with explanation that due to his mother's health problem and family trouble he spent the shortage amount for his personal expenses. Accordingly, he had deposited the shortage amount in phased manner @ Rs 50,000/- vide UCR receipt no-A 441 dated 03.01.2012, Rs 16,000/- vide UCR receipt no-A 442 dated 03.01.2012 and Rs 15,908.20 vide UCR receipt no-A 443 dated 05.01.2012 at Paikmal SO being the total shortage amount of Rs 81,908.20. 2.1 It is further averred that the applicant was placed under off duty. He was served the charge sheet. The matter was enquired into and the IO after conducting the inquiry, in accordance with rules and in compliance with principle of natural justice, submitted his report holding the charge as proved. The IO's report was supplied to the applicant and the applicant submitted his reply. The DA after considering the entire fact of the matter, imposed the punishment of removal from service, which was duly upheld by the AA and the RA after considering the stand taken by the applicant in his petition vis a vis the relevant records. According to 5 OA 260/00449 of 2015 the respondents, there was no wrong in initiating disciplinary proceedings against the applicant. There is no flaw or any irregularity or illegality in conducting the disciplinary proceedings. The entire matter, from the starting till the end, being made by following due process of rule, law and after complying with the principles of natural justice, this OA is liable to be dismissed.
3. According to Ld. Counsel for the applicant, the removal order dated 28.08.2013 has been passed by the DA in a mechanical manner without going to the records and representation of the applicant, which was upheld by the AA and RA without verifying the illegality committed by the DA as required under rules. The DA in his order has held that inventory was prepared out of seven witnesses, three are independent witnesses. However, eight witnesses were examined by the prosecution, out of which, one independent witness SW-8 stated in his deposition that he was not present at the time of inventory and know nothing about the contents of ex. 2, i.e. inventory. The inventory was prepared with a preplanned manner by the IPO in presence of official witness those are subordinate to IPO and residing at 10-15 Kms distance from BO. No independent witness was present at the time of inventory, as required 6 OA 260/00449 of 2015 under the provision of Vol. V of Postal Manual and, therefore, the inventory prepared by the IPO is not sustainable in the eyes of law. The applicant paid wages under MGNREGA to the wage earner without keeping vouchers but the applicant was denied to produce witness, which violated the principles of natural justice. The IPO allowed 7 days time to the applicant to deposit the amount, in question. The applicant deposited the same on the 6th day after collecting the amount of the wage earner but the applicant has been imposed with the punishment of removal thereby depriving him two meals per day. It has been contended that the settled position of law in the cases of Krishna Rai & Ors. Vs. Banaras Hindu University, (2022) 2 SCC (L&S) 616, and Biswantah Sethi Vs. State of Odish & Ors, 2021 (I) ILR-CUT page 391, that where law requires something to be done in a particular manner, if not done in that manner, it would have no existence in law. Since, the inventory was not prepared as per the provision in Vol. V of Postal Manual, the disciplinary proceedings are liable to be quashed. The applicant was held guilty by the IO without examining the material witnesses and, thus, the entire proceeding is vitiated for violation of principle of natural justice, he has placed reliance on the decision of the Hon'ble Supreme Court in 7 OA 260/00449 of 2015 the case of Hardwari Lal Vs. State of UP & Ors, 2000 SCC (L&S) 85. The entire proceeding was conducted as an empty formality and, thus, the punishment is not sustainable, he has placed reliance on the decision of the Hon'ble Apex Court in the case of Jagdish Prasad Saksena Vs. State of MP, AIR 1961 SC 1070. The statements of witnesses were not authenticated by the witness, the applicant and the IO, which having not been done, it contravenes the DGP&T Letter No. 6/66/60-Disc, dated 14.04.21961 and para-92 of P&T Manual, Vol. III. The Court and Tribunal is competent to interfere in the disciplinary proceedings where the proceedings were not in accordance with rules, law and principles of natural justice, Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex Court in the cases of Prafulla Ku. Samal Vs. Chairman, Orissa Forest Development Corporation Ltd. & Ors., 2022 (II) ILR-CUT-805, B.C.Chaturvedi Vs. UOI, (1995) 6 SCC 749. Accordingly, Ld. Counsel for the applicant has prayed for the relief claimed in the OA.
4. The aforesaid arguments was strongly refuted and controverted by the Ld. Counsel appearing for the respondents. By placing reliance on the counter, he has submitted that the inventory was prepared in presence 8 OA 260/00449 of 2015 of 7 witnesses. During oral inquiry, 8 witnesses were examined, out of which, other witnesses are the witness to the documents as per charge memo. The independent witness, SW-8, had stated in his deposition that he was called for to the post office and told about the fact in the presence of the applicant and he has signed in the inventory at the post office as a witness. The applicant categorically admitted in his own handwriting that he spent the amount of Rs. 81,908.20 towards treatment of his mother and personal use for his own purpose. Thereafter, he had also deposited the said amount. The applicant is the custodian of government cash and valuables. Nowhere he has stated anything about MGNREGA payment to the wage earners without keeping vouchers. This stand is purely afterthought and concocted story, made to get sympathy from the court of law. There is no such provision for payment of MGNREGA wages to wage earners without any voucher, i.e. withdrawal application form SB 7. As per rules, payment of MNGREGA wages is being deposited in their account standing in the post office. After that the wage earner can withdraw the money from MGNREGA passbook and withdrawal application, i.e. SB-7 voucher in the post office in any working day and business period. The conduct of the applicant is 9 OA 260/00449 of 2015 unbecoming on the part of a government servant. By utilizing govt. money unauthorizedly for his personal purposes, he has lost his credibility and trust of the department. The applicant has betrayed showing his dishonesty. When the applicant himself admitted his guilt, imposition of punishment by following due process of rules, law and natural justice cannot be faulted with and, therefore, interference in the matter is not warranted. In this regard, he has placed reliance in the decision of the Hon'ble Apex Court in the case of UOI & Ors. Vs. M.Duraisamy, Civil Appeal No. 2665 of 2022 (arising out of SLP(C) No. 6062/2022), State of Karnataka & Anr. Vs. N.Gangaraj, Civil Appeal No.8071 of 2014, and has prayed for dismissal of the OA.
5. After giving due consideration to the arguments, we have gone through the contents made by the parties in the pleadings and materials placed in support thereof. We have also gone through the deposition of Laxmidhar Bhoi and the written brief submitted by the PO, which have been filed by the applicant through affidavit dated 04.01.2023.
6. We may state that the admission of the applicant, in writing, that he had spent the shortage amount for his personal uses, has not been disputed by the applicant in his pleadings or in course of argument.
10 OA 260/00449 of 2015 Rather, the shortage amount was, subsequently, deposited by the applicant himself without any explanation. It is also not in dispute that payments of the MGNREGA wages are being made in their respective MGNREGA account and the wage earner can withdraw the same by submitting withdrawal application in SB-7 voucher along with MGNREGA passbook in the concerned post offices on any working day in business hours. From the record, it is established that the applicant was given due opportunity by the IO to submit his written statement of brief at the closure of the inquiry but he failed to avail such opportunity. The PO examined eight witnesses and exhibited eight documents to sustain the charges framed against the applicant. The PO requested to more additional documents and the applicant had requisitioned two additional witnesses vide their letter dated 01.02.2013 and 25.02.2013. The said request was duly considered by the IO but rejected the same being found irrelevant to the charge leveled against the applicant. In the application, which the applicant submitted on 28.09.2013, had stated that he was under threat of village politics and compelled to effect MGNREGA wages to the wage earner even on Sunday and, admitted his fault by stating that he did not collect the voucher while effecting payment. The applicant 11 OA 260/00449 of 2015 challenged the order of punishment on the grounds that since the inventory was not prepared as per the provision in Vol. V of Postal Manual, the disciplinary proceedings are liable to be quashed. We have gone through the said provision filed by the Ld. Counsel for the applicant wherein it has been provided that if the officers and officials is unable to produce the money or stamps found shortage and is "unable to given any satisfactory explanation" in such an event, an inventory of the cash and stamp actually found should be drawn up and got signed by two independent witnesses and action should be taken as prescribed in the rules on the subject or criminal offences in Chapter IV, Postal Manual, Volume-II. In the instant case, as discussed above, undisputedly, the applicant has given explanation in writing that he had spent the shortage amount for his personal use and subsequently, he made good of the shortage by depositing the same. However, this Tribunal is reminded by the decision of the Hon'ble Apex Court in the case of State Bank Of Patiala & Ors Vs S.K.Sharma, 1996 AIR 1669, wherein it was held that "violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the 12 OA 260/00449 of 2015 complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. In the instant case, the applicant has not specifically stated as to how he was prejudiced for not adhearing to the above provision, rather, it is an admitted fact that the applicant had adopted a novel procedure in making MGNREGA payments, that too de hors the rules. Hence, by applying the decisions relied on by the applicant in the cases of Krishna Rai (supra) and Biswantah Sethi (supra), providing that the law requires something to be done in a particular manner, if not done in that manner, it would have no existence in law, the procedure adopted by the applicant in the matter of payment is unbecoming act on the part of the applicant. The IO did not call the two witnesses cited by the applicant as they were not relevant to the matter. The applicant did not prefer any appeal to such refusal to call those two witnesses by the IO. He also did not submit his written brief despite due opportunity justifying as to how those two witnesses were relevant and not calling them how he will be prejudiced. Neither in the pleadings nor in course of hearing any such material has been placed to convince this Tribunal as to 13 OA 260/00449 of 2015 how the proceeding was an empty formality. It is seen that the statement recorded was signed by the IO. The statement of the witnesses has not been questioned by the applicant either before the DA, AA or RA or even in this OA. Thus, non signing of the statement cannot be fatal so as to interfere in the punishment imposed on the applicant on proved charge. It is seen that the DA took note of all the points and imposed the punishment dated 28.08.2013 in a well reasoned and speaking order as would be evidence from the extract of the relevant portion of the order, which runs thus:
"After going through the charges and considering the representation of the charged official it is felt that the contention of the said Shri Chhura is not correct. As per the documentary evidence in support of the article of charges adduced during the course of inquiry it is clear that while working as GDS BPM Palsada BO in account with Paikmal SO under Bargarh HO the said Shri Nabin Kumar Chhura could not produce the cash amounting to Rs 81809.20 before the IP Rajborasambar on 30.12.2011. The same was also admitted by the said Shri Chhura vide his written statement dated 30.12.2011 marked as Ext.S-3 and in his written representation dated 12.08.2013. The said Shri Chhura stated that the inventory was not prepared in presence of two independent witness is not correct. In this case out of the seven witnesses, three of them are independent witnesses. Since the said Shri Chhura clearly admitted the shortage of cash amounting to Rs 81809.20 on the spot and during the inquiry, the plea taken that he has paid the money to wage earners without keeping vouchers is not acceptable and not permissible as per rules. So there is no question to examine the wage earners also. The said Shri Chhura further stated that he has made good the amount within reasonable time period given by the investigating officer the IP Rajborasambar. But as per rule there is no such reasonable period, rather as per rule- 11 below Note of Rules for Branch Offices the GDS BPM should produced for inspection when called for, within the time required for
14 OA 260/00449 of 2015 going to and coming back from the place where the cash is kept for safe custody. But in this case the said Shri Chhura could not produced or made good the amount on the said date of verification i.e 30.12.2011. In view of the fact as above and taking into consideration of all the documentary evidences and deposition of all the SWs it is revealed that the charge made against the said Shri Chhura that he had kept shortage of cash of Rs 81809.20 on 30.12.2011 and could not produce or made good the shortage amount on the spot as per rules stands proved beyond doubt.
I Shri Abhimanyu Behera Supdt of Post offices, Sambalpur Division, Sambalpur gone through the case as above and found that Shri Nabin Kumar Chhura, is not a trust worthy person to be retained in GDS engagement since he has utterly failed to maintain absolute integrity and due devotion to duty by utilizing the Govt money from the cash balance of the Branch Office for his own purpose. Hence 1 do here by order that Shri Nabin Kumar Chhura, GDS BPM (under Put off duty) Palsada BO in account with Paikmal SO under Bargarh HO shall be removed from GDS engagement with immediate effect."
7. Relevant portion of the order of the AA reads as under:
"I have gone through the appeal dated 28.9.2013, punishment order of the Disciplinary Authority, Inquiry report of the IO and other connected records and applied my mind and find the IP Rajborasambar had visited Palsada BO on 30.12.2011 for inspection of the BO accompanied by his OS Mails and two other GDS and detected shortage of cash to the tune of Rs 81908.20/-(Rupees Eighty one Thousand Nine Hundred Eight and twenty paise only) Inventory was prepared on that day which has been signed by the appellant and witnessed by three departmental witnesses and three independent witnesses. Thus the contention of the appellant that no independent witness was taken on the inventory is not at all correct. During his examination on 30.12.2011 by the IP Rajborasambar Sub Division (Ext S-3) the appellant has admitted in his own hand writing that he has spent the amount for his own purpose, towards treatment of his mother and other family problem. The State Witnesses have confirmed it during the oral inquiry. No- where he has stated anything about MGNREGS Payment. Thus his contention that he was compelled to effect MGNREGS wage payment on Sunday and without vouchers is after thought and concocted story only. The IO has also rightly not allowed any wage earner for examination during oral inquiry as it was irrelevant to the charge. Since the appellant has used the money for 15 OA 260/00449 of 2015 his own purpose it was his duty to credit it to the Govt account. By utilising the money for his personal purpose he has lost his credibility and fiduciary trust reposed on him by the department. Thus the Disciplinary Authority has taken appropriate action.
Keeping the above discussion in view 1, M.A Patel, Director Postal Services, Sambalpur Region, do not find any cogent reason to intercede on behalf of the appellant and uphold the punishment awarded by the Disciplinary Authority. The appeal dated 28.09.2013 of Sri Nabin Kumar Chhura, Ex GDS BPM;Palsada BO is disposed of accordingly."
8. Rather, we find that the decision relied on by the Respondents in the case of M. Duraisamy (supra) has some force on this issues. Relevant portion of the decision is quoted herein below:
"3.2 That the delinquent officer admitted the charges and the misconduct and he deposited the entire amount along with penal interest only after the detection of the fraud committed by him. It is submitted that looking to the serious proved misconduct and when the respondent was holding a public office of confidence in the Postal Department and thereafter when a conscious decision was taken by the Disciplinary Authority to remove him from service, the same ought not to have interfered with by the Tribunal as well as the High Court. It is urged that merely because the delinquent officer worked for 39 years and the present one was the first misconduct and that the entire amount was deposited (after the fraud was detected) cannot be grounds to interfere with the conscious decision taken by the Disciplinary Authority to remove the delinquent officer from service.
xxx xxx xxx
8...........Neither the Tribunal nor the High Court have found any irregularity in conducting the departmental enquiry. No procedural lapses have been found. In fact, the respondent employee admitted the charge of having defrauded Rs.16,59,065/- and on detecting the fraud, he deposited the defrauded amount of Rs.16,59,065/- along with penal interest. But for the detection of the fraud, probably, the respondent employee would not have deposited the defrauded amount. Once, a conscious decision was taken by the Disciplinary Authority to remove an employee on the proved misconduct of a very 16 OA 260/00449 of 2015 serious nature of defrauding public money, neither the Tribunal nor the High Court should have interfered with the order of punishment imposed by the Disciplinary Authority, which was after considering the gravity and seriousness of the misconduct.
xxx xxx xxx
12..........The impugned judgment and order passed by the High Court dated 30.08.2016 passed in Writ Petition No. 33303 of 2013 dismissing the same and confirming the judgment and order passed by the Tribunal dated 26.03.2013 in O.A. No. 357 of 2012 is hereby quashed and set aside. Consequently, order dated 26.03.2013 passed by the Central Administrative Tribunal, Madras Bench in O.A. No. 357/2012, by which the Tribunal substituted the punishment of removal to that of compulsory retirement is hereby quashed and set aside. Consequently, O.A. No. 357/2012, preferred by the delinquent officer, stands dismissed and the order passed by the Disciplinary Authority imposing the punishment of removing the delinquent employee from service is hereby restored."
9. It is not out of place to mention that the applicant in his capacity dealt with the public money and holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently when fraud or embezzlement of govt. money is spent otherwise impermissible in rule/law. In the instant case, the act and conduct of the applicant in utilizing the govt. money for his personal use is a serious misconduct. Even if it is assumed that he had paid the amount as wages under MGNREGA, which was without strictly adhering to the rules that too as admitted by him on govt. holidays, the action is not condonable. In the aforesaid circumstances, this Tribunal being not the appellate authority 17 OA 260/00449 of 2015 over the decision taken by the competent authority or competent to reassess the evidence, declined to interfere in the matter.
10. In the result, this OA stands dismissed leaving the parties to bear their own costs.
(Rajnish Kumar Rai) (Pramod Kumar Das) Member (Judl.) Member (Admn.) RK/PS