Central Administrative Tribunal - Ahmedabad
A A Shaikh vs D/O Post on 27 August, 2021
(CAT/AHMEDABAD BENCH OA NO.125/2015) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.125/2015.
Dated this the 27thday of August, 2021.
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Shri A.A. Shaikh
Son of Abdul Karim Umarbhai Shaikh,
Postal Assistant, Jamnagar Head Post Office - 361 001
Residing at: Pathan Fali, Nagnath Gate,
Jamnagar - 361 001.
...Applicant
(By Advocate Mr. A. D. Vankar)
Vs
1. Union of India & others
Notice to be served through
Secretary to the Govt. of India,
Ministry of Communication & I.T.
Department of Posts, Dak Bhavan,
Sansad Marg,New Delhi - 110 001.
2. Chief Postmaster General,
Gujarat Circle, Khanpur, Ahmedabad - 380 001.
3. Postmaster General,
Rajkot Region, Rajkot - 360 001.
4. Director Postal Services,
O/o. the Postmaster General,
Rajkot Region, Rajkot - 360 001.
5. Supdt. Of Post-Offices,
Jamnagar Division, Jamnagar - 365 601.
...Respondents
(By Advocate Ms. R. R. Patel)
(CAT/AHMEDABAD BENCH OA NO.125/2015) 2
ORDER(ORAL)
PER: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. Aggrieved by the punishment of "Recovery of Rs.1,84,115/-" awarded to the applicant by the Disciplinary Authority vide impugned order dated 22.07.2014 (Annexure A/2) and upheld by Appellate Authority order dated 14.01.2015 (Annexure A/3), and also the charge memo dated 28.06.2014 (Annexure A/1), the applicant herein has filed the present OA under section 19 of the Administrative Tribunal Act of 1985 seeking following reliefs:-
"8
(i) May be pleased to admit and allow this Original Application.
(ii) May be pleased to declare impugned orders No. a) B2/13/06/AAS/2014-15 dated 28.06.2014 annexed at Annexure A-1
b)Order No. B2/13/06/AAS/2014-15 dated 22.07.2014 annexed at Annexure A-2
c) Order No. STA-20/20/2014 dated 14.01.2015 annexed at Annexure A-3 as illegal, arbitrary, irrational, unjust, unfair, atrocious, vindictive, discriminative and bad in law and to quash and set-aside the same.
(iii) May be pleased to direct the respondents to refund entire amount to the applicant already recovered from him forthwith and
(iv) May be pleased to pass any other and further orders as deemed appropriate.
2. Learned counsel for the applicant Mr. A. D. Vankar mainly submits that the entire decision making process of the Disciplinary Authority suffered from vice of gross procedural irregularities, and thereby rendered the final decision in impugned orders is null and void. It is noticed that Applicant was served with the charge sheet under Rule 16 of CCS (CCA) Rules 1965 dated 28.06.2014(Annexure A/1)for alleged negligence and failure to follow the Rule 4 (2) of PO savings Bank Man. Vol-II while working as SB Ad-hoc Postal Assistant (PA) in Jamnagar HO and thereby he failed to maintain devotion to duty as required vide Rule 3 (1) (ii) of CCS (Conduct) Rules 1964. The statement of imputation of misconduct served upon the applicant, which reads as under: -
(CAT/AHMEDABAD BENCH OA NO.125/2015) 3"That the said Shri A A Shaikh, PA Jamnagar HO while working as SB Adhoc PA in Jamnagar HO had executed an indemnity bond for loss of 6 NSC VIII Issue certificate No. 57EE 702778 = 23 of Deno. Rs. 10000/- each for indemnifying the sum of Rs.368230.00 (Rs.230000/- + 138230/- ) together with all cost against misused blank certificates on 11.08.2008. The said bond was accepted by the SPOs Jamnagar Division on behalf of the President of India on 11.08.2008. The aforesaid certificates were subsequently found to have been issued fraudulently in the name of Shri B N Purohit, Ex. PA Jamnagar Ho. This resulted into ultimate loss of Rs. 368230 + Rs.11040 =37929.00 to the Government. So, he was asked to credit the fifty percent of maturity value of the certificates plus interest thereon if any into Government vide this office letter no.F2/V/1/2013-14 dated 21.01.2014 as per his indemnity bond executed vide Rule 4(2) of PO Savings Bank Manual Volume.II and subsequent reminders issued on 14.2.14 (Regd.AD) and 12.3.14 (Regd.AD. Thus, he failed to credit the amount on his part into Government even after issue of reminders.
It is, therefore, alleged that Shri A A Shaikh has infringed the provision of Rule 4(2) of PO Savings Bank Manual Volume.II and thereby he has failed to maintain devotion to duty as required vide Rule
3 (1) (ii) of CCS (Conduct) Rules, 1964.
3. It is stated by the applicant that earlier he was served with charge sheet dated 09.05.2008 under Rule 16 of CCS (CCA) Rules 1965 for alleged charges that while he was working as S.B. Ad-hoc PA/SB NSC PA Jamnagar HO on 07.11.2007 he had supplied 6 NSC (VIIIth) issue certificates of DM Rs.10,000/- to Okha SO without physically counting the bunch of 100 NSC being supplied (Annexure A/4). After considering defence/representation of the applicant the disciplinary authority held that the there is a omission on the part of applicant while working as SB PA SO NSC at Jamnagar HO and awarded punishment for withhold of his one increment for 3 month without cumulative effect vide order dated 28.07.2008 (Annexure A/5). Thereafter, the applicant had executed indemnity bond dated 11.08.2008 for loss of said NSC VIII (Annexure A/6).
4. Further, it is stated by the applicant that again after lapse of more than 6 years, the applicant was served with charge sheet dated 28.06.2014 (Annexure A/1) for non credit of 50 % of maturity plus interest on alleged misuse of 6 NSC (VIII) issue. He submitted his defence/representation dated 07.07.2014 (Annexure A/7) and explained that the indemnity bond was given by him for the reason that if any misuse after the loss of said certificate occurred than the applicant is responsible but before the 3 month of loss of the said certificate one Shri Bharat Purohit had misused the said certificate and fraudulently issued the same. The applicant was only (CAT/AHMEDABAD BENCH OA NO.125/2015) 4 responsible for not counting the certificate for which the department had already awarded the punishment. Since the certificates were issued before it came to the knowledge about loss of the certificate. Therefore, he is not responsible and requested to drop the charge. However, the disciplinary authority did not accept the said explanation of the applicant and held applicant liable for the negligence as alleged in the charge sheet and awarded punishment of recovery of Rs.1,84,115/- from the pay of the applicant in 35 installments of Rs.5200/- each and one last installment of Rs.2155/- with immediate effect vide impugned order dated 22.07.2014 (Annexure A/2). Against the said order applicant had filed statutory appeal before the Appellate Authority and the said appeal came to be rejected by the Appellate Authority vide order dated 14.01.2015 (Annexure A/3). Hence, this OA.
5. Learned counsel for the applicant mainly submits that as a result of negligence in counting certificates under inquiry, the applicant has already been awarded punishment (Annexure A/5). Now, for the same negligence, the applicant once again has been awarded punishment of recovery of amount of Rs.1,84,115/- (Annexure A/2), which is illegal and irrelevant as it is well settled principle of natural justice that, none can be prosecuted twice for same offence.
5.1 It is also submitted by the applicant that, certificates alleged to have been issued fraudulently are having date stamp impression of 15.09.2007 whereas he was held responsible for not physical verification of aforesaid certificates while their dispatch from Jamnagar Head Post Office on 07.11.2007. It is pertinent to submit that on 15.09.2007, the applicant has not worked in Jamnagar H.O. as Postal Assistant for issuance of certificates. 5.2 The respondents have already lodged police complaint against one Shri B. N. Purohit who had confessed in writing that, certificates reported have lost from Jamnagar Head Post - Office were stolen by him and the said certificate were fraudulently issued on 15.09.2007 by him. In view of above, the applicant has wrongly been awarded punishment of recovery for contributory negligence without initiating any action against Principal Offender. Therefore, the applicant cannot be held responsible for any irregularity noticed in certificates dispatched by him prior to execution of (CAT/AHMEDABAD BENCH OA NO.125/2015) 5 bonds and all the charge memos issued against him should be quashed and set - aside.
6. On the other hand the respondents have filed their reply and denied the contentions of the applicant.
6.1 The respondents has raised preliminary objection against the present OA to entertain the same on the ground that applicant has committed a serious misconduct and lapse resulted into loss of public fund exchequer, for which the applicant was found guilty for such offence by the respondent authority. He failed to deposit 50% amount of indemnity bond executed by him, therefore, the application is required to be dismissed in limine. 6.2 It is submitted the disciplinary authority awarded punishment of withheld of one increment vide order dated 28.07.2008 with respect to proved charged against the applicant about his failure to physically counting the bunch of NSCs and short supply of National Saving Certificate while working as SB Ad-hoc PA / SB NSC PA, Jamnagar on 07.11.2007.
6.3 It is submitted that the case of loss of certificates at the time of issue of a duplicate certificate(s) in favour of the holder of National Saving Certificates the responsible postal officials required executing the personal bond of indemnity. Since the applicant was custodian of NSCs and was held responsible for short supply of 23 NSCs he was under statutory obligation to execute his personal bond of indemnity. Accordingly, the applicant herein on 11.08.2008 had executed his Personal Bond Of Indemnity in favour of the president of India whereby the applicant had represented that on 09th October 2007 he was entrusted with the custody of National Savings Certificate No.57EE 702778 To 702800 = 23 of Denomination Rs.10,000/- each and further represent that the said NSCs and the identity slip(s) have been lost or misplaced while in the custody of applicant and have not been transferred, sold, pledged or deposited or otherwise parted with by way of security or otherwise. The holder of NSCs applied for duplicate certificates of the NSCs and the postmaster Jamnagar HO on behalf of the president had agreed to issue duplicate certificate but for the better protection the applicant i.e. A A Shaikh should execute an indemnity bond agreeing to indemnify the government that if the applicant shall when required to pay to the president the sum of Rs. 26830/- together (CAT/AHMEDABAD BENCH OA NO.125/2015) 6 with all cost have been incurred by or occasion to the president or any of the servants of the government by reason, consequent upon a duplicate certificate of the aforesaid NSCs being issued and agreed to the terms and conditions stipulated in the said indemnity bond (Annexure A/6 refer). 6.4 It is further contended that the NSCs were subsequently found to be issued fraudulently one Shri Rakesh Bhimji bhai and his family members by one Shri B N Purohit Ex-PA Jamnagar HO. This resulted into loss of Rs. 3,79,270/- to the Government. Therefore, the applicant was asked to credit 50% maturity value of the certificates plus interest thereon as the applicant had already executed indemnity bond in terms of Rule 4 (2) of the PO Saving Bank Man. Vol-II. However, inspite of reminder the applicant did not paid the said amount hence, for such negligence and misconduct for devotion to duty on the part of the applicant, the Disciplinary Authority was compelled to take disciplinary action and issued memorandum dated 28.06.2014 under Rule 16 of CCS (CCA) Rules 1965.After considering the explanation of the applicant the disciplinary authority by speaking order held the charges leveled against the applicant proved and by taking the lenient view and order recovery of Rs.84115/- only against the applicant. The appellate authority has also considered the grounds raised by the applicant in his appeal and same was rejected vide impugned order dated 14.01.2015 by observing that the charge sheet was issued for non credit of amount in terms of indemnity bond of NSCs, the applicant cannot escape from his responsibility. The punishment for withholding increment was awarded for different charge whereas in the present disciplinary action the charges against the applicant are about his failure to adhere to provision of Rule 4 (2) of POSB Man. Vol-II as he failed to credit the 50% maturity value of the certificates as per the indemnity bond executed by him. Therefore, the disciplinary authority as well as Appellate Authority passed the impugned order in accordance with the procedure prescribed under the Rule and based on the evidence came on record. Under the circumstance the applicant is not entitled for any relief as sought in this OA.
7. The applicant has filed rejoinder and reiterated the contentions stated in the OA. Additionally, it is contended that the applicant has not disputed for alleged misuse of NSCs and indemnity bond executed by him on (CAT/AHMEDABAD BENCH OA NO.125/2015) 7 11.08.2008 but the alleged loss and further misuse of NSCs took place on 07.11.2007, whereas the applicant was asked forcefully by the respondent to execute indemnity bond i.e., on 11.08.2008. He was pressurized with empty assurance that the same was formal procedure and will not make responsible. The bond was executed on threat and now same has been utilized against him making ground for imposing harsh and unbearable recovery as such applicant has been again punished for the same misconduct.
Further, it is stated that respondents awarded the recovery against the applicant under pretext of "contributory negligence" that too without observing procedure laid down in Rule 204 and 204-A of Postal Man. Vol- III. It is stated that the applicant has received the copy of Investigation Report under RTI with respect to fraud case of Jamanagar HO, Shri B N Purohit related to fraudulently issuance of NSCs on 15.09.2007 in all 23 certificates were found fake and fictitious. It is stated that the said B N Purhoit was found principal offender and applicant herein and other 4 officials have been stated to be subsidiary offenders. Therefore, the disciplinary authority ought not to have awarded punishment of recovery of huge amount against the applicant (Annexure A/11 refer). Initially the said certificates were found to be lost and after verification by concern PA Jamnagar on 21.03.2012 it was found that total 23 certificates were stolen by one Shri B. N. Purohit from 21.07.2007 to 15.09.2007, further it was found that other officials failed to ensure safe custody of NSCs and Shri Purohit took disadvantage of their negligence. Shri A A Shaikhwas also found responsible for counting NSC physically thus all are responsible for act of negligence of their duties. Mr. Purohit was found to be the principal offender of this case by issuing NSCs fraudulently on 15.09.2007 and taken away amount for his personal use. The applicant herein and other 4 officers were found subsidiary offenders
8. We have heard the parties and perused the material on record.
9. In the matter of departmental inquiry and the action taken by disciplinary authority, normally the Court/Tribunal does not interfere with the findings of facts recorded in the domestic inquiry except it is case of no evidence.
(CAT/AHMEDABAD BENCH OA NO.125/2015) 810. In the present case, undisputedly the applicant had executed his personal bond dated 11.08.2008 whereby he had agreed for indemnifying the sum of Rs.3,68,230/- with all cost against misuse blank certificate. The 6 NSC (VIII) issue certificate total in number 23 were subsequently found to have been issued fraudulently in the name of Shri Rakesh Bhimji bhai by other official namely B. N. Purohit. This resulted into ultimate loss to the public exchequer amounting total loss of Rs. 3,68,230/- + Rs. 11040 = Rs. 3,79,270/-. The applicant herein was asked to credit 50% of maturity value of the certificate vide office order dated 21.01.2014 followed by reminder; he failed to credit the amount on his part. Hence, for infringed the provision of Rule 4 (2) of POSB Man. Vol-II the applicant failed to maintain devotion to duty and the said charge leveled against the applicant vide memo dated 28.06.2014 believed to be proved by the DA in its order dated 22.07.2014. The submission of the counsel for the applicant was already charge sheeted for non-counting the NSCs and awarded punishment in the year 2007, therefore, again he should not be punished for such negligence. The said submission is not acceptable for the reason that the charges leveled against him in charge memo dated 28.06.2014 are about his failure to adhere to the condition of Rule 4 (2) POSB Man. Vol-II that is execution of personal bond indemnity by the responsible officials for loss of NSCs. Whereas, the charges leveled in charge memo dated 09.05.2008 was in respect to failure on the part of applicant for not physically counting the NSCs and short supply of the certificates.
11. Further, it is noticed that the DA as well as the Appellate Authority by considering the defence representation as well as the ground raised in appeal memo rejected the explanation of the applicant by way of speaking order vide reason assigning for rejection such explanation of the applicant is cogent and based on evidence on record. Under the circumstances, it cannot be said that this is a case of no evidence. Therefore, we do not incline to interfere with the decision of DA as well as the Appellate Authority.
The submission of the counsel for the applicant about disproportionate punishment awarded to the applicant is concerned, the said is also not helpful to the applicant as it is noticed that the DA after considering the (CAT/AHMEDABAD BENCH OA NO.125/2015) 9 explanation of the applicant had taken lenient view and awarded less amount of recovery against the applicant from the total alleged loss of amount.
12. In view of above discussion, we do not find any legal infirmities in the impugned decision. The OA lacks merit. Accordingly, same is dismissed. No order as to cost.
(A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) PA