Rajasthan High Court - Jodhpur
Union Of India & Ors vs Sukhdev on 17 August, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
DBCWP No.12007/2011
UOI & Ors. Vs. Sukhdev
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:::::
ORDER
UNION OF INDIA & ORS. VS SUKHDEV
D.B. CIVIL WRIT PETITION NO. 12007/2011
DATE OF ORDER: 17th August 2012
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II
Mr. Vinit Kumar Mathur, for the petitioners.
Mr. J.K. Kaushik, for the respondent.
BY THE COURT: [Per Dinesh Maheshwari, J.]
<><><> By way of this writ petition, the petitioners, Union of India and its officials in the Department of Posts seek to question the order dated 08.08.2011 as passed in Original Application ('OA') No. 62/2008 whereby by Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the CAT') has quashed the orders passed against the applicant (the respondent herein) in the disciplinary proceedings; and has ordered refund of the recovered amount after finding that the proceedings against the applicant had been in violation of the principles of natural justice and the department failed to deal with the principal offenders for the questioned acts/omissions where the applicant was rather a subsidiary offender. The CAT has, however, left it open for the petitioners to 2 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev hold joint or separate enquiry against the principal and the subsidiary offenders, and then, to apportion the quantum of the loss suffered due to the fraudulent withdrawal of Rs. 25,000/- from a Savings Bank Account.
The brief facts of the case leading to the present petition are as follows: The applicant-respondent, while working on the post of Postal Assistant ('PA') in the Savings Bank Control Organization ('SBCO') at Sriganganagar, was served with a memo dated 06.02.2004 issued by the Superintendent of Post Offices, Sriganganagar Division (the Disciplinary Authority) proposing to hold an inquiry under Rule 16 of the Central Civil Services (Classification and Control Appeal) Rules, 1965 on the allegation that while working as PA, SBCO, Sriganganagar HO on 12.1.2001, he failed to check the Savings Bank (SB) Branch vouchers dated 11.01.2001 with the list of vouchers; and one voucher pertaining to SB withdrawal dated 11.1.2001 for Rs 25,000/- in SB account number 136939, entered in the list at serial number 23, was found missing in the checking carried out on 26.02.2001. It was alleged that the forged withdrawal could not be detected in time for the applicant's failure to check on 12.01.2001 and, therefore, the department suffered a loss of Rs 25,000/-. It was also alleged that for such an omission, the applicant violated Rule 3 (i) (ii) of Part IV of the Postal Small Savings Scheme.
It appears that on 20.2.2004, the applicant-respondent applied to the department for providing him the copies of certain documents for his defence which included: (i) Duty list of SBCO for the months of January 2001 to February 2001; (ii) Instruction 3 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev book of the postmaster for the period between 08.01.2001 to 22.01.2001; (iii) Vouchers receipt issued to the SB branch; (iv) Voucher verification register of SBCO for the months of January 2001; (v) MPR of SBCO for the months of December 2000 and January 2001; and (vi) Copy of Rule 3 Part IV as given in A.N Dureja Book on Post office Small Savings Scheme.
It is borne out from the material on record that while the respondent was supplied with a photocopy of the relevant rule as per item No.(vi) (supra); and he was allowed to inspect the other documents except that at item No.(iii), which was said to be not available for being retained for 2 years only.
The applicant-respondent in his reply dated 09.03.2004 stated the grievance of having not been supplied with the copies of the documents sought and having been allowed only to inspect. Further, the respondent particularly stated that he was not even allowed to inspect the voucher's receipt given to the SB Branch on the ground that such receipt was preserved only for 2 years. The respondent contended that when the charge-sheet was issued in the year 2004 and the voucher's receipt, which formed the basis of allegation, was not available, the charges levelled against him remained baseless. The respondent also stated the grievance that the department supplied the copies of the aforesaid and co-related document to the other delinquent employees but refused to give the same to him.
On the merits of the allegations, the stand of the respondent was that checking of the list of transactions and sealed bundles was the duty of one Shri Meghraj Swami who was working as PA- 4 DBCWP No.12007/2011
UOI & Ors. Vs. Sukhdev III SBCO. The respondent maintained that he was neither incharge of SBCO on 12.01.2001 nor was ordered to work as such. It appears that the said Shri Meghraj Swami was on leave on the given day, i.e., 12.01.2001 and the stand of the department had been that his duties, including those of receiving the vouchers from the SB Branch, was assigned to the respondent.
After examining the stand of the delinquent-respondent and the department, the Disciplinary Authority proceeded to pass the impugned order on 21.05.2004 holding the respondent guilty of violation of Rule 3(1)(ii) of Part IV of the Post Office Small Saving Scheme and thereby, having contravened the Conduct Rules with dereliction of duty. The Disciplinary Authority, therefore, imposed the penalty of recovery of an amount of Rs.15,000/- together with interest of Rs.1,750/- from the salary of the respondent. This order dated 21.05.2004 was affirmed by the Appellate Authority on 30.12.2004 and by the Revisional Authority on 08.02.2007. The relevant aspects of the matter have been succinctly put in the Revisional Authority's order dated 08.02.2007 and the same could be usefully reproduced as under:-
"4. I have carefully and dispassionately gone through the petition along with case file and other relevant records of the case. The record reveals that PA -III and Incharge SBCO was on leave on 12.1.2001 and the petitioner was looking after his duties also. The vouchers of 11.1.2001 were undoubtedly received by him and on inquiry it was found that the withdrawal form for Rs.25000/- dated 11.1.2001 of SB account no.136939 duly entered in the list of Sl.No.23 was missing. This is a very serious negligence on the part of the petitioner which frustrated the inquiry and it could not be established as to whom and how the amount was paid. Under these circumstances the petitioner can not be absolved of his accountability to receive and keep the vouchers safely. None of the argument put forth by him about his duty is maintainable. Since he was entrusted the duty of PA-III & Incharge SBCO, he cannot escape from his responsibility. As regard to his claim for equality with other officials about access to 5 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev the relevant documents, it is observed that after examination of original documents and taking extracts thereof, the issue has no weight. The petitioner's allegations of mala fide action and biasness with a scheduled caste also do not subsist. As per rules recovery of Govt. loss is to be made from the officials who facilitated the loss due to their negligence."
Aggrieved by the orders so passed in the disciplinary proceedings, the applicant-respondent filed the OA leading to this writ petition. The respondent contended before the CAT that the orders passed against him were without any basis, wholly perverse and illegal. It was submitted that the applicant- respondent was not working as Supervisor at the relevant time and it was not a part of his duty to receive the vouchers and hence, he was not responsible for receiving the sealed cover bundle of vouchers and examining them. Besides, the applicant- respondent also submitted that a proper disciplinary inquiry should have been conducted because the charges against him were required to be proved by documentary evidence; and he should have been given the opportunity to cross-examine the witnesses after perusal of the documents which was not done. The applicant- respondent pleaded that he was not afforded a reasonable opportunity to defend his case except filing a written reply; and hence, the inquiry proceedings stood vitiated on account of violation of the principles of natural justice and, therefore, the orders passed against him were liable to be quashed and set aside.
Per contra, the Department's stand was that the CAT would undertake the task of judicial review only of the procedure and not of the decision taken by the competent authorities; and as the department had followed the prescribed procedure and the 6 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev applicant-respondent participated at every level, there was no irregularity in the procedure so as to call for interference. Besides, it was also contended that as on 12.01.2001, the applicant- respondent was given the charge of PA-III as well as Supervisor of SBCO Branch and he ought to have verified the absence of the missing voucher; and having failed to do so, had rightly been penalized.
The CAT in its order impugned observed that the fraudulent withdrawal of Rs.25,000/-was made on 11.01.2001 in the Savings Bank Branch of the concerned post office; and, therefore, the principal offenders were the persons serving in the said Savings Bank Branch. The CAT observed that from the material on record, it was not clear as to whether the principal offenders in the Savings Bank Branch of the concerned post office were proceeded against or not; and as to how much of the loss suffered by the department was ascribed to the principal offenders, the employees of the Savings Bank Branch of the concerned post office?
The CAT also observed that though as per the impugned orders, the applicant-respondent was the Supervisor of the SBCO branch temporarily on the given date and was responsible for putting a check on irregularities, if any committed but then, the role of the respondent was essentially of a subsidiary offender; and the department should have quantified the proportionate liability of principal offenders and subsidiary offenders in committing the irregularities. The CAT expressed the view that no recovery could be made from the applicant-respondent without first apportioning 7 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev the quantum of responsibility amongst the respective principal and subsidiary offenders.
Apart from the above, the CAT also held that no opportunity of personal hearing was afforded to the applicant-respondent at any stage and no proper disciplinary inquiry was conducted and the department, thus, violated the principles of natural justice.
In view of the above findings and observations, the CAT quashed the orders impugned and ordered that the applicant- respondent be refunded the recovered amount within next three months along with interest. The CAT, however, extended the liberty to the petitioners to hold either separate or a joint disciplinary enquiry against all the principal and the subsidiary offenders (including the applicant) and then, to determine and apportion the quantum of loss suffered by the department due to the fraudulent withdrawal on 11.01.2001 in the concerned post office and interest thereupon, which could be recovered from each of such offenders from their salary/pension.
Aggrieved by the aforesaid order of the CAT, the petitioners have preferred this writ petition. The learned counsel for the petitioners has strenuously argued that the CAT exceeded its jurisdiction by proceedings as if an appellate authority and setting aside the orders of the competent disciplinary authorities while replacing the same by its own order and directing refund of the money recovered from the respondent. The learned counsel submitted that the CAT is not empowered to undertake the judicial review of the decision of the competent authorities; that the scope of judicial review is limited only to the extent of examining the 8 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev procedure adopted by the Disciplinary Authority; and that there being no irregularity in the procedure adopted, the CAT was not right in interfering in this matter.
Another ground raised by the petitioners before this Court is that the issue of proportionate ascribing of liabilities upon the principal and subsidiary offenders for recovering the losses was not raised before the CAT nor did the CAT summoned any document to adjudicate this matter and hence, the petitioners could not apprise the CAT about the existing facts. It is submitted that for the period between 01.11.2000 to 23.01.2001, four fraudulent transactions took place amounting to a loss of Rs.1,20,000/-; and as far as the respondent's case is concerned, there were two offenders in the fraudulent transaction of Rs.25,000/- on 11.01.2001: one being the respondent and another being one Shri Ved Prakash. It is submitted that the competent authority has found the respondent's involvement in the loss to the extent of Rs. 15,000/-, while the other delinquent Ved Prakash was penalized with recovery of Rs. 10,000/-. It is also submitted that by the order dated 30.09.2005, the said Shri Ved Prakash was penalized for other fraudulent activities too, and was awarded punishment of recovery of the loss amounting to Rs. 51,000/- along with reduction of his pay scales by two stages. The learned counsel for the petitioners also submitted that apart from the respondent and Ved Prakash, three other employees involved in fraudulent activities were also penalized by the department appropriately. Thus, it is suggested that the co-offenders had already been dealt with; and the directions by the CAT remain rather unnecessary.
9DBCWP No.12007/2011
UOI & Ors. Vs. Sukhdev Per contra, the learned counsel for the applicant-respondent has duly supported the order passed by the CAT and submitted that there being no jurisdictional error on the part of the CAT, no case for interference in the writ jurisdiction is made out.
We have given anxious consideration to the submissions made and have scanned through the material placed on record.
The substance of the charge against the respondent had been that on the relevant date i.e., 12.01.2001, he was entrusted the task of verification of the vouchers received from the Savings Bank Branch of the Post Office with the list thereof for the incumbent otherwise on such duty being on leave since 10.01.2001. According to the department, the respondent failed to carry out the verification of the vouchers with the list; and in the checking made on 26.02.2001, one voucher of 11.01.2001, relating to account No.136939 for Rs.25,000/- was not found. Thus, it was alleged that for the failure on the part of the respondent to carry out the verification on 12.01.2001, such fraudulent withdrawal of Rs.25,000/- on 11.01.2001 was not detected.
It remains indisputable that the referred transaction, fraudulent in nature, took place at the Savings Bank Branch on 11.01.2001; and obviously, the principal offenders ought to be related with such Savings Bank Branch. Even if it be assumed that the respondent had been entrusted the duty of verification of vouchers and failed to carry it out, his role could have been described as that of subsidiary offender, like that of supervisory negligence. In the given set of circumstances, the CAT cannot be 10 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev faulted in observing that department was required to affix the responsibility and then, to apportion the quantum of loss amongst the offenders.
The CAT has not given a clean chit to the respondent but, on the given set of facts and circumstances, has found it necessary that the department apportions the liability properly. Such an order cannot be said to be of any interference in the authority available with the department to hold and conclude the disciplinary proceedings in accordance with law.
So far the impugned orders passed against the respondent in disciplinary proceedings are concerned, the same were even otherwise required to be quashed for the fundamental reason of denial of proper opportunity of hearing to him and want of conducting the necessary inquiry into the facts. The CAT has noticed and observed as under: -
"18. Further, no opportunity of personal hearing has been afforded to the applicant at any stage whatsoever, and no proper disciplinary inquiry has been conducted. Even if for the minor punishment of recovery of the amount, the conduct of a proper disciplinary inquiry was not warranted, at least the immediate superior of the applicant, the Disciplinary Authority ought to have given him an opportunity of being personally heard, in the interest of natural justice, which has also not been done."
We find nothing of infirmity or fault in the foregoing observations by the CAT. It was not a case where the entire matter could have been concluded by the Disciplinary Authority without even holding the necessary inquiry on the relevant facts; and in any case, an opportunity of personal hearing could not have been denied to the respondent. The Disciplinary Authority 11 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev having passed the impugned order only after taking the reply from the respondent, the same could not have been sustained.
As noticed, the CAT has yet not given a clean chit to the respondent nor has annulled the proceedings altogether. Looking to the nature of the charges and the overall scenario, the CAT has only directed the department to properly conduct the inquiry against all the concerned, whether separate or joint; and then, to pass appropriate orders. In this regard, it is now suggested in this writ petition that such a question was not raised before the CAT and it is sought to be shown that in fact, another person Shri Ved Prakash was found responsible for the transaction in question and an amount of Rs.10,000/- was ordered to be recovered from him. It has also been suggested that the said Shri Ved Prakash was found involved in other cases also and was penalized accordingly. It is yet further suggested that 3 more employees were found involved in different fraudulent withdrawals and they too were punished.
Though it is contended that the CAT before passing the order impugned did not call upon the petitioners to supply the information in regard to principal offenders but then, it is noticed that one of the contentions of the applicant-respondent had all through been that the other delinquent employees were indeed supplied the requisite documents but he was not. The orders as passed in relation to other delinquent employees were in the knowledge of the department and, looking to the subject matter of the OA, such facts ought to have been placed by the petitioners before the CAT. Be that as it may, we are of the view that in the 12 DBCWP No.12007/2011 UOI & Ors. Vs. Sukhdev given set of facts and circumstances, a slight modulation of the directions as issued by CAT would serve the cause of justice .
Having regard to the circumstances, it appears appropriate and hence, is made clear that if at all the department seeks to hold inquiry afresh in relation to the applicant-respondent, he shall be supplied all the necessary facts in relation to other inquiries, which bear relevance to his case; and then, the department may hold appropriate inquiry in relation to the applicant-respondent, of course, in accordance with law and after extending proper opportunity of defence to him.
So far the orders as questioned before the CAT are concerned, for what has been observed hereinbefore, the same cannot be sustained and thus, there is no reason to interfere with the order of the CAT except the modification as ordered hereinabove.
Subject to observations foregoing this writ petition stands dismissed.
(NARENDRA KUMAR JAIN-II,J.) (DINESH MAHESHWARI, J.) cpgoyal/-