Central Administrative Tribunal - Gauhati
Deben Kumar Saharia vs D/O Post on 10 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00019/2019
Date of order: This, the 10th day of January, 2024
HON'BLE SMT. URMITA DATTA SEN, JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
Sri Deben Kumar Saharia
S/o Late Bangshi Dhar Saharia
House No. 3, Dharmanagarpath
Beltola Bazar Tinali, Guwahati - 781028.
...Applicant
By Advocate: Sri D.N. Sharma
- Versus -
1. The Union of India
Represented by the Secretary
To the Government of India
Ministry of Communications & I T
Department of Posts, Dak Bhawan
New Delhi - 110001.
2. The Chief Postmaster General
Assam Circle, Meghdoot Bhawan
Guwahati - 781001.
3. The Sr. Superintendent Post Offices
Guwahati Division, Guwahati - 781001.
...Respondents
By Advocate: Sri R. Hazarika, Addl. CGSC
Date of Hearing: 04.01.2024 Date of Order: 10.01.2024
O.A. No. 040/00019/2019
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ORDER
PER DR. SUMEET JERATH, MEMBER (A):
This is the second round of litigation. In the instant O.A. No. 040/00019/2019, the applicant - Sri Deben Kr. Saharia has sought relief by way of setting aside the impugned Penalty Order No. F7-2/16- 17/Misc/Discy/D.K. Saharia dated 23.01.2017 (Annexure-
A/1), whereby Respondent Authority i.e. Disciplinary Authority had awarded penalty of recovery of Rs.
1,20,000/- (Rupees One lakh and twenty thousand only) in 12 equal monthly instalments @ Rs. 10,000/- (Rupees Ten thousand) only per month from the pay and allowances of the applicant w.e.f. February 2017 payable in March 2017 and also to set aside the Charge Memorandum No. F7-2/16-17/Misc/Discy/D.K. Saharia dated 20.05.2016 (Annexure-A/2) issued by the Sr. Superintendent of Post Offices, Guwahati Division, Guwahati.
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2. The conspectus of the case is that the applicant is a retired Sub Post Master (SPM) under Guwahati Division, Guwahati. While he was working as Sub Post Master-Narengi Sub Post Offices under Guwahati Sub Division, he was served with a Memorandum of Charge-sheet No. F7-2/16- 17/Misc/Discy/D.K. Saharia dated 20.05.2016. The statement of imputation of misconduct or misbehaviour set out against Sri Debendra Kumar Saharia, the then Sub Post Master, Duni Sub Post Office under Mangaldoi Head Post Office under Rule 16 of CCS (CCA) Rules, 1965 was as follows:
"That the said Sri Debendra Kumar Saharia, while working as SPM, Duni SO for the period from 23.02.2007 to 18.01.2010 did not maintain Register of Accounts standing open at each Branch Post Offices for checking the receipt of passbooks at the Sub-Office from 1st April onwards in every year.
Sri Debendra Kumar Saharia, while working as SPM, Duni SO for the aforesaid period, did not prepare a list of Savings Accounts, the passbooks of which have not been received for posting of interest by 20th July every year, and did not send the list to the concerned IPO.
O.A. No. 040/00019/2019 4 Sri Debendra Kumar Saharia, while working as SPM, Duni So for the aforesaid period, did not submit the prescribed report to the Divisional head, to the effect that the list of passbooks not received for interest posting at S.O. have been duly prepared by the sub office sent to the concerned Inspector Posts.
Sri Debendra Kumar Saharia, while working as SPM, Duni SO for the aforesaid period, also did not prepare the Special Error Book at Duni SO during his period of incumbency and did not address the concerned depositors through Registered Post, whose passbook have not been received at the Sub-Office for interest posting.
Sri Debendra Kumar Saharia, while working as SPM, Duni SO for the aforesaid period, also did not prepare list of discontinued RD accounts and did not send the list to the Divisional head for appropriate action.
By taking the opportunity of above mentioned irregularities of Sri Debendra Kumar Saharia, the then SPM, Duni SO, Sri Madan Chandra Rajbongshi, GDS BPM (put off duty), Andherighat BO has defrauded an amount of Rs. 5,37,950.00 in respect of several SB & RD accounts. Sri Madan Chandra Rajbongshi, the erring GDS BPM, defrauded amount in r/o SB and RD deposits and fraudulently withdrawn SB withdrawn from SB accounts and did not send the passbooks for interest posting to the account office, i.e. Duni SO. Had Sri Debendra Kumar Saharia followed the prescribed rules of maintaining Register of Accounts, Special Error Book, preparation of list of discontinued RD accounts and had he called for the passbooks by addressing the concerned depositors, the concerned fraud case could have been detected O.A. No. 040/00019/2019 5 much earlier and the loss sustained by the Department would have been at minimum. Altogether 9 SB and 88 RD accounts were found involved in fraud committed by Sri Madan Chandra Rajbongshi, GDS BPM, Andherighat B.O. in a/c with Duni S.O. Had the passbooks been called for by Sri Debendra Kumar Saharia for interest posting, as prescribed in rules, and submitted the list of discontinued RD accounts to appropriate authority, Sri Madan Chandra Rajbongshi, would not have got the opportunity to defraud such a huge amount.
Thus, it is alleged that Sri Debendra Kumar Saharia, has contributed and aggravated towards committing fraud by Sri Madan Chandra Rajbongshi, GDS BPM (put off), Andherighat BO (put off duty) in a/c with Duni SO.
Therefore, Sri Debendra Kumar Saharia has alleged to have violated the provisions of Rule 75(1)(iii), 75(2)(i), 75(3)(ii), 75(3)(viii), 76(b)(i) and 76(b)(2) of Post Office Savings Bank Manual Volume-1.
By this above acts, Sri Debendra Kumar Saharia has shown his total lack of devotion towards his official duties and acted in a manner which is totally unbecoming of a Government Servant, and thus, he is also alleged to have violated the provisions contained in Rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964."
3. The above Charge-sheet was served after an inordinate delay and laches of more than 08 years which was allegedly prejudicial to the applicant. The applicant filed a written statement of defence denying O.A. No. 040/00019/2019 6 the alleged charges on 28.10.2016 (Annexure-A/9).
However, the Disciplinary Authority-Senior Superintendent of Post Offices, Guwahati Division, Guwahati vide Order No. F7-2/16-17/Misc/Discy/D.K. Saharia dated 23.01.2017 (Annexure-A/1) awarded the following penalty order:-
Order "I Sri Aparajit Pattanayak, Senior Superintendent of Post Offices, Guwahati Division, Guwahati in exercise of posers conferred under Rule 12 of CCS (CCA) Rules, 1965 do hereby award Sri Debendra Kumar Saharia, SPM, Narengi SO the penalty of recovery of Rs. 1,20,000/- (Rs. One Lakh Twenty Thousand) only in 12 (twelve) equal monthly instalments @ Rs. 10,000/- (Rs. Ten Thousand) only per month from the pay and allowances of the official w.e.f. February 2017 payable in March 2017."
4. Being aggrieved by this penalty order, the applicant filed an appeal to the Appellate Authority on 15.02.2017 (Annexure-A/10). When this appeal was not disposed of in time, the applicant filed O.A. No. 040/00254/2017 in this Tribunal which was disposed of by O.A. No. 040/00019/2019 7 order dated 13.09.2017. Operative portions of the said order are as follows:
"2. Accordingly, appellate authority is directed to dispose of the appeal dated 15.02.2017 on merits after taking into account all the submissions made therein and giving him an opportunity of being heard by a speaking order at the earliest but not later than three months from the date of receipt of the order. Till such time, recovery, if any, will not be made from the applicant.
3. The OA is disposed off, accordingly, at the admission stage itself."
5. As per the above order of this Tribunal, Director Postal Services (HQ), Assam Circle; Guwahati vide order No. Staff/9-283/2017 dated 14.11.2018 passed the following orders:
"ORDER I, K. Kevichusa, Director of Postal Services (HQ), Assam Circle, Guwahati and Appellate Authority in exercise of power conferred by Rule 27 of CCS (CCA) Rules, 1965 therefore, find no reason to interfere with the order of the disciplinary authority issued vide Memo No. F7-
2/16-17/Misc/Discy/D.K. Saharia dated 23.01.2017 and dispose off the appeal accordingly."
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6. Being aggrieved by the upholding of the penalty order by the Appellate Authority, the applicant has filed the instant OA.
7. Sri D.N. Sharma, learned counsel for the applicant made the following submissions:-
1. Charge brought in the Charge Memo dated 08.08.2016 is vague:-
The charge brought against the applicant is that a SB/RD fraud was committed by Sri Madan Ch Rajbongshi, the Branch Postmaster Andherighat B.O. in account with Duni Sub Post Office, where he worked as sub postmaster. For the crime committed by Shri Madan Ch Rajbongshi, applicant cannot be punished for the guilt of others.
2. That the Charge against the applicant is alleged violation of Rule 75 (1)(iii), 75 (1)
(iv), 75 (2)(i) & (ii) of post office savings bank Volume 1 were denied in his written statement of defence. The duty prescribed in the Rules 75 (1) (iii), 75 (1) (iv), 75 (2) (i) &
(ii) of post office savings bank manual Volume 1 are prescribed to be maintained by the Head Postmaster Mangaldai H.O and not by the Sub postmaster as per the SB Postal Manual Volume 1 (corrected up to 15.08.1988).
3. That it is revealed in the charge Memo that in all the paragraphs, there is no specific incident/points or evidence against the accused to substantiate the charges. There was no mention about the SB/RD accounts wherein frauds were committed by the O.A. No. 040/00019/2019 9 Branch Post master Andherighat B.O. and how the applicant aggravated the fraud which was continued from 01.08.2003, before his joining in the Duni S.O by the prime offender Shri Madan Chandra Rajbonghsi by the BPM, Andherighat BO.
4. The applicant had already stated in his written statement of defence dated 28.10.2016 that he did not violate any of the provisions of Postal Manual as mentioned above.
5. Charge is not established on proof:
Disciplinary Authority, after receiving the written statement dated 28.10.2016 where the applicant contested the charges to be vague, should have been established with proof but the disciplinary authority completely failed to establish the charges in support of evidence. Hence the claims of the applicant for maintenance for the above mentioned rules of Postal SB manual valume stands not proved. The onus of proof of charges falls upon the Disciplinary Authority. In the case of denial, he should hold the oral inquiry under rule 16 (1)(b) of CCS (CCA) Rules 1965 for fair disciplinary proceedings but this has not been done.
6. The SB/RD fraud was directly committed by Shri Madan Ch Rajbongshi, the EX Branch Postmaster Andherighat B.O. from 2003 to 1st of January 2008 in which period applicant was not working in Duni SO. The fraud occurred before his joining; there was no whisper about the fraud while he was working. But while he reported the case of suspicion of fraud to the Inspector of Post Offices, Mangaldai, the fraud come to light and the principal offender was dismissed from service. But no recovery was made from the prime offenders since his all retiring O.A. No. 040/00019/2019 10 benefits were forfeited. It was not mentioned anywhere in the charge sheet and penalty order how the applicant is responsible for the fraud committed by Shri Madan Ch Rajbongshi, the Branch Postmaster Andherighat BO Ex BPm, Andherighat BO. Neither the Charge memo describes the particulars of accounts where the deponent had been involved in the fraud and the amount for which he was liable in the memo of penalty. But penalty of recovery for Rs. 1,20,000/- was ordered from the applicant which is arbitrary and against the principle of natural justice. Hence, the impugned order of punishment is whimsical & discriminatory.
7. The total loss of the fraud came to Rs. 5,37,950/- committed by the Ex BPM, Andherighat B.O in respect of SB/RD premature withdrawal. The principal offender was dismissed from service and all retirement benefits are forfeited. So, penalty of recovery from the salary of the applicant is not only illegal but also arbitrary. Thus the impugned order is cryptic, non-speaking and Disciplinary Authority has not applied his mind. Even the Appellate Authority is not in conformity with Rule 27 (2) of CCS (CCA) Rules, 1965. In the event of difference with the findings of the Disciplinary Authority, Appellate Authority must discuss the reasons produced by the appellant in his order duly applying his mind. But in the appellate order dated 14.11.2018, the Appellate Authority did not discuss all the points raised by the appellant. At last, the Appellate Authority ignored the vital provision 12 of Rule 11 of CCS (CCA) Rules 1965.
8. Violation of Principle of natural Justice in the Punishment order:- As regards the procedural lapses in the proceedings, some O.A. No. 040/00019/2019 11 of the documents were not supplied to the applicant in connection with charge sheet and thereby violates the reasonable opportunity to the applicant to defend his case properly which was occurred after 8 years from the date of charge of S.O was handed over by the applicant.
In fact, the fraud was committed with effect from 2003 to1st January 2008 and whereas the applicant was relieved from the charge on 18.01.2010. The charge sheet was issued for the period in absence of the applicant which is completely unfair to identify applicant as subsidiary offender in the case. Records were not supplied to the applicant to defend his charges. In the case of Andhra Prades Vs. Venkayadu Raidu (2007) 1 SCC 338, the Hon'ble Apex Court has held that - it is a settled principle of natural justice that if any material is sought to be used in an inquiry, then copies of that materials should be supplied to the party." Thus, it s a complete violation to identify the applicant as subsidiary offender in the case.
In another case of O.K. Bharadwas Vs. Union of India and Ors., the Hon'ble Apex Court observed that - "even in the case of minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual, and if they are denied by the delinquent, an inquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
In the instant case, Appellate Authority, without going through the points raised by the applicant uphold the decision of the Disciplinary Authority and not called O.A. No. 040/00019/2019 12 for any inquiry into the matter while the applicant completely denied the charges. Hence, it is complete violation of the principle of natural justice.
9. Rule 106 and Rule 107 of Postal Manual Volume iii states that recovery of pecuniary loss can be imposed only when it is established that the Govt. servant was responsible for a particular act of negligence. But here in the instant case, penalty is imposed on conjecture and surmises.
10. Again Rule 4 of 204 of P&T manual Volume iii states that in deciding the degree of an officer's pecuniary liability, it will be necessary to look not only to the circumstances of the case, but also the financial circumstances of the officer.
Since the applicant has already retired from service in 2019, recovery from his gratuity is illegal. It is therefore, prayed that in view of the facts, the impugned order of recovery may be set aside.
Learned counsel for the applicant also relied on the following citations:-
(i) Kuldip Singh Vs. Commissioner of Police & Others reported in (1999) 2 SCC 10;
(ii) Sawai Singh Vs. State of Rajasthan reported in (1986) 3 SCC 454;
(iii) O.K. Bharadwaj Vs. Union of India & Ors. reported in (2001) 9 SCC 180;
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(iv) O.A. No. 683/2014 passed by the CAT, Allahabad Bench in the case of Viskarma Vs. U.O.I. & Ors.
(v) DBC WP No. 12007/2011 passed by Hon'ble Rajasthan High Court in the case of Union of India Vs. Sukhdev; and
(vi) Surath Chandra Chakraborty Vs. State of West Bengal reported in (1970) 3 SCC 548.
8. Sri R. Hazarika, learned Addl. CGSC appearing on behalf of the respondents vehemently opposed the above submissions of the learned counsel for the applicant and stated that the applicant had been given every reasonable opportunity to defend himself against the charges brought upon him and still had failed to absolve himself from the charges. Also the penalty imposed upon the applicant was not excessive in comparison to his contributory negligence in the matter of Andherighat BO under Duni SO fraud which was commensurate with the gravity of the offence committed.
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9. Heard the learned counsel of both the sides and perused the relevant documents and records. It is a fact that the Charge-sheet was filed after inordinate delays and laches-after a long gap of more than eight years. Also when Shri Madan Chandra Rajbongshi, GDS BPM (put off duty), Andherighat BO had defrauded an amount of Rs. 5,37,950/- in respect of several SB and RD accounts; and no nexus of collusion or conspiracy with the applicant had been proved; the penalty order-
recovery of Rs. 1,20,000/- from the applicant appears to be perverse and based on extraneous consideration. This Order of Recovery dated 23.01.2017 had been made without fixing any proportionate specific liability of the applicant and that too on the ground of negligence for which the applicant had given explanation that the tasks and responsibilities mentioned in the Charge-sheet were supposed to be performed by the Post Master not the Sub Post Master (SPM). Without considering all these submissions on the part of the applicant, the Disciplinary Authority had O.A. No. 040/00019/2019 15 imposed the said penalty which was further confirmed by the Appellate Authority vide order dated 14.11.2018.
10. In view of the above, we are of the considered opinion that the impugned Charge Memorandum No. F7-2/16-17/Misc/Discy/D.K. Saharia dated 20.05.2016 (Annexure-A/2), impugned Penalty Order No. F7-2/16-17/Misc/Discy/D.K. Saharia dated 23.01.2017 (Annexure-A/1) and impugned Appellate Order No. Staff/9-283/2017 dated 14.11.2018 (Annexure-A/14) are devoid of merit and liable to be quashed and set aside. Accordingly, all the above three impugned Orders dated 20.05.2016, 23.01.2017 and 14.11.2018 (Annexure-A/2, A/1 & A/14) respectively are quashed and set aside. Any recovery made from the applicant should be restored to the applicant by the respondents within a period of three months from the date of receipt of copy of this order.
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11. With the above observations and directions, the O.A. is allowed with no order as to costs.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
PB
O.A. No. 040/00019/2019